UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-10367
DAVID LEE HERMAN,
Petitioner-Appellant
VERSUS
GARY JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee
Application for Certificate of Probable Cause to Appeal
from the United States District Court
for the Northern District of Texas
October 10, 1996
Before DUHÉ, WEINER and STEWART, Circuit Judges.
JOHN M. DUHÉ, Circuit Judge: David Lee Herman, sentenced to death
for the murder of Jennifer Burns, seeks to appeal the district
court’s denial of his petition for writ of habeas corpus. We
dismiss his appeal.
I. Background
While robbing the Lace Club in Arlington, Texas, David Lee
Herman shot three people. One of the three, Ms. Burns, died.
Before Herman’s trial for capital murder, his attorney asked the
state trial judge to submit a fourth issue to the jury in the
punishment stage of the trial. The issue asked, “Do you find any
aspect of the defendant’s character that would justify life in
prison rather than death?” In the alternative, Herman’s attorney
asked that the trial court inform the parties what instructions the
court would give the jury regarding the application of mitigating
evidence in the punishment phase. The defense argued this
information would be important to it during voir dire of
prospective jurors. The court denied both defense requests, and
stated it would properly instruct the jury as to mitigating
evidence if mitigating evidence were later submitted.
At voir dire, both parties were allowed wide latitude to
examine prospective jurors’ attitudes towards the death penalty,
their ability to understand and answer special issues, and their
ability to consider mitigating evidence. Defense counsel
repeatedly asked potential jurors what standard of proof they would
use to determine if mitigating evidence presented for Herman was
sufficient to support a sentence of life imprisonment rather than
death. The prosecution successfully objected to these questions on
the ground they were irrelevant to qualification as a juror, since
the standard of evidence used to evaluate mitigating evidence is a
legal standard and not a factual matter appropriate for voir dire.
Herman now argues his voir dire was impermissibly restricted
so that he was deprived of his right to intelligently use his
peremptory challenges. He contends this deprivation impaired his
rights to due process and the effective assistance of counsel under
the Fifth, Sixth, Eighth and Fourteenth Amendments.
Herman exhausted his direct appeals, was denied certiorari by
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the United States Supreme Court, and unsuccessfully sought relief
through Texas habeas proceedings. Herman then sought federal
habeas relief. The district court denied the habeas petition and
denied Herman’s application for certificate of probable cause.
Herman now petitions this court for that certificate.
II. Application for Certificate of Probable Cause to Appeal
Herman did not move for Certificate of Probable Cause with
this court, instead filing a notice of appeal of the district
court’s denial of his petition for writ of habeas corpus. In the
past, a habeas petitioner sentenced to death who files a notice of
appeal has had his notice treated as an application for a
certificate of probable cause. Jones v. Whitley, 938 F.2d 536, 538
(5th Cir. 1991). Since Herman requested a certificate of probable
cause from the district court, and his appellate brief requested a
certificate of probable cause to appeal, we treat his notice of
appeal to this court as a request for a certificate.
III. Application of the Antiterrorist and Effective Death Penalty
Act of 1996
On April 24, 1996, the President signed the Antiterrorist and
Effective Death Penalty Act of 1996 (“the Act”), which amends the
procedures to be followed by habeas petitioners who wish to appeal
denial of their application for habeas relief.1 Previously,
petitioners were required to obtain a certificate of probable cause
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Herman filed his notice of appeal on April 4, 1996.
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(“CPC”) to appeal. Under the amended law, petitioners must obtain
a certificate of appealability (“COA”) instead.
The Act requires an appellate court grant a COA “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (emphasis added).
A CPC could only be issued if a substantial showing of the denial
of a federal right was made. Barefoot v. Estelle, 463 U.S. 880,
103 S.Ct. 3383 (1983). Whether the requirements for a COA should
apply to pending applications for a CPC has already been the
subject of some discussion in other circuits.
The Second and Tenth Circuits both recently held the Act
applicable to pending applications for certificates of probable
cause. Reyes v. Keane, 90 F.3d 676, 679-81 (2nd Cir. 1996); Lennox
v. Evans, 87 F.3d 431 (10th Cir. 1996). The Reyes court explained
that “the substantive standard for a COA is the same as the
standard for the prior CPC.” 90 F.3d at 680.
The Ninth Circuit has stated otherwise, noting in discussion
of another section of the Act that the COA standard is more
demanding than that for a CPC. Williams v. Calderon, 83 F.3d 281,
286 (9th Cir. 1996). However, that court has twice specifically
declined to address whether the Act applies to pending
applications. Id. at 286; Lowell v. Prunty, 91 F.3d 1358 (9th Cir.
1996). The Lowell court noted the earlier language in Williams
that commented stricter criterion exist for issuing a COA than a
CPC. It then, however, refused to officially hold a COA imposed a
higher standard than a CPC. The court only went so far as to
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accept the view that if a petitioner could not make a showing
sufficient for issuance of a CPC, he could not receive a COA: “In
cases such as this in which appellant does not meet the CPC
standard under pre-Act law, a fortiori appellant could not meet a
more demanding standard.” Id. at 1359.
While we make no determination whether the standards for
issuance of a COA are higher than the standards for a CPC, nor
whether COA applies to pending appeals of denial of habeas, we hold
Appellant made no showing he was denied either a federal or
constitutional right. He therefore failed to meet the standards
for either a CPC or COA.
III. Discussion
In Harris v. Johnson, this court set out the standards for
issuance of a CPC:
To obtain a CPC, [the petitioner] must make a substantial
showing of the denial of a federal right. “This standard
does not require petitioner to show that he would prevail
on the merits, but does require him to show the issues
presented are debatable among jurists of reason.”
Further, in a capital case we properly may consider the
nature of the penalty in deciding whether to grant a CPC
but, as we have observed, that fact alone does not
suffice to justify the issuance of a CPC.
Harris v. Johnson, 81 F.3d 535, 538 (5th Cir. 1996) (citations
omitted).
In appeals alleging violations of the requirements of voir
dire in state court cases, federal courts are limited to enforcing
the commands of the United States Constitution. Mu’min v.
Virginia, 500 U.S. 415, 422, 111 S.Ct. 1899, 1903 (1991). Trial
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court judges have traditionally been afforded much latitude in
choosing how to conduct voir dire, and their decisions on voir dire
are usually respected by appellate courts as within the trial
court’s discretion. Id. at 422-23; 1903-04.
Herman argues he is entitled to a CPC because the trial
court’s refusal to inform him what instruction would be given to
jurors in the penalty trial on evaluating mitigating evidence
deprived him of his right to intelligently exercise his peremptory
challenges. However, peremptory challenges are not constitutional
rights, Georgia v. McCollum, 505 U.S. 42, 57, 112 S.Ct. 2348, 2358
(1992), and Herman does not claim that non-constitutional federal
rights were violated. Beyond the limitation that challenges may
not be used for the purposes of excluding jurors solely on the
basis of race or gender, J.E.B. v. Alabama ex rel. T.B., 511 U.S.
127, 114 S.Ct. 1419 (1994), there are few other rights connected to
peremptory challenges. The Supreme Court has stated:
[W]e reject the notion that the loss of a peremptory
challenge constitutes a violation of the constitutional
right to an impartial jury. We have long recognized that
peremptory challenges are not of constitutional
dimensions. They are a means to obtain the end of an
impartial jury. So long as the jury that sits is
impartial, the fact that the defendant had to use a
peremptory challenge to achieve that result does not mean
the Sixth Amendment was violated.
Ross v. Oklahoma, 487 U.S. 81, 88; 108 S.Ct. 2273, 2278 (1988)
(citations omitted).
The trial court judge was soundly within his discretion when
he refused to allow detailed questioning of veniremen on the legal
standard they would use to evaluate mitigating evidence. Herman
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never alleged the jury seated in his trial was unfair or unable to
properly evaluate mitigating evidence. The judge afforded both
parties considerable latitude in investigating possible juror bias
in voir dire, and was under no obligation to give Herman the very
wide license he sought. See, e.g., Mu’Min, 500 U.S. 415, 111 S.Ct.
1899. Herman has made no showing that the trial court’s refusal to
allow Herman to question individual veniremen on this topic was a
denial of any federal or constitutional right.
Thus Herman would not have been entitled to CPC and is not
entitled to COA.
For that reason, the motion for a certificate of probable
cause is DENIED.
APPEAL DISMISSED.
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