IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-10878
_____________________
DELBERT BOYD TEAGUE, JR.,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
(4:96-CV-24-Y)
_________________________________________________________________
April 30, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
In this death penalty case, Delbert Boyd Teague appeals the
denial of his petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. Finding no error in the denial, we affirm the
decision of the district court.
I
Teague was found guilty of capital murder by a Texas jury on
July 23, 1986. Viewed in the light most favorable to the verdict,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the evidence adduced at trial showed the following (as later
summarized by the Texas Court of Criminal Appeals):
[Teague] and his cohort, Robin Partine, robbed [nineteen-
year old] Donna Irwin and her date, Tommie Cox, late at
night at [Inspiration Point,] a scenic area overlooking
Lake Worth in Tarrant County[, Texas]. After [Teague]
bound Cox with a rope and left him lying face down on the
ground, [Teague] and Partine kidnapped Irwin and left the
scene in a truck driven by [Teague]. As they left the
area, they passed three young men in a four-wheel drive
vehicle going the other way in the direction of where Cox
had been left. [Teague] turned the truck around and
began to follow the four-wheel drive vehicle. Cox had
managed to set himself free, and he approached the
four-wheel drive vehicle on foot as it drove toward him.
When the four-wheel drive vehicle stopped, Cox told its
occupants about what had happened and asked for help.
[Teague] suddenly appeared on foot, shot each occupant in
the four-wheel drive vehicle at least once in the head,
and took their wallets. Cox escaped uninjured. One of
the occupants of the four-wheel drive vehicle died from
his injuries and another suffered permanent brain damage.
The other occupant, James Bell, recovered from his
wounds . . . . After the shootings, [Teague] and Partine
left the scene in their truck with Irwin. Later that
night, they took turns sexually assaulting her. [Teague]
and Partine were eventually arrested in Louisiana after
Irwin had left a note, saying she had been kidnapped, in
a women’s restroom at a gas station.
Teague v. State, 864 S.W.2d 505, 508-09 (Tex. Crim. App. 1993).
Following a separate penalty-phase hearing, the jury returned
affirmative answers to two special sentencing issues1 submitted
1
Briefly stated:
(1) Do you find from the evidence beyond a reasonable
doubt that the conduct of the defendant . . . that
caused the death of the deceased . . . was
committed deliberately and with the reasonable
expectation that the death of the deceased or
2
pursuant to Tex. Code Crim. Proc. art. 37.071(b). Based on the
jury’s answers, the trial court imposed a sentence of death.
Teague’s conviction and sentence were affirmed by the Texas
Court of Criminal Appeals. Teague v. State, 864 S.W.2d at 505.
Teague decided to forego an application for writ of certiorari from
the United States Supreme Court, and instead filed a petition for
state habeas relief. On May 30, 1995, his petition was denied by
the Texas Court of Criminal Appeals in an unpublished order.
III
His state remedies at last exhausted, on January 16, 1996,
Teague filed the instant petition for writ of habeas corpus in the
United States District Court for the Northern District of Texas,
complaining of multitudinous defects in the conduct of his trial
and appeal. On May 20, 1997, Magistrate Judge Bleil issued
proposed findings of fact and conclusions of law, and recommended
denying relief.
In making his findings, the magistrate judge purported to
apply the standards of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) retroactively to Teague’s petition,
another would result?
(2) Do you find from the evidence beyond a reasonable
doubt that there is a probability that the
defendant . . . would commit criminal acts of
violence that would constitute a continuing threat
to society?
3
relying on the then-current precedent of Drinkard v. Johnson, 97
F.3d 751 (5th Cir. 1996). In general, the AEDPA provides for a
much more deferential standard of review of state court proceedings
on petition for federal habeas relief than prevailed under prior
law. See Williams v. Cain, 125 F.3d 269, 276-77 (5th Cir. 1997).
Subsequent to the magistrate judge’s recommendation, but
before the district court’s ultimate resolution of Teague’s
petition, the Supreme Court decided the case of Lindh v. Murphy,
117 S.Ct. 2059 (1997). In Lindh, the Supreme Court overruled
Drinkard as to retroactive application, and held that the standards
of the AEDPA did not apply to habeas petitions, like Teague’s, that
were filed prior to the statute’s effective date of April 24, 1996.
Lindh, 117 S.Ct. at 2067.
Recognizing the problem, the district court rejected the
magistrate judge’s conclusion that the AEDPA applied to Teague’s
case. Finding sufficient pre-AEDPA support in the magistrate
judge’s recommendations, however, District Court Judge Means
concluded that Teague’s petition should nonetheless be denied.
Accordingly, an order denying Teague’s petition was entered on
August 8, 1996, from which final decision Teague appeals.
4
IV
Teague raises four substantive issues on appeal from the
district court’s denial of habeas relief, all of which are
completely meritless under longstanding Fifth Circuit precedent.
A
As an initial matter, Teague argues that his case should be
remanded for a new hearing because the magistrate judge’s improper
retroactive application of the AEDPA impermissibly tainted all of
his findings of fact and conclusions of law. As a close reading of
the magistrate judge’s thorough opinion reveals, however, each and
every one of Teague’s issues was resolved on both pre-AEDPA and
post-AEDPA grounds. No portion of the magistrate judge’s ruling
was contingent on the AEDPA, and Teague can therefore not succeed
as to any issue on this complaint alone.
Furthermore, although the magistrate judge was misled by our
ruling in Drinkard as to the AEDPA’s applicability to Teague’s
petition, the district court judge was not. Any defect that might
have crept into the magistrate judge’s analysis was therefore cured
by the district court judge’s reassessment of the issues under the
proper standard. For both of these reasons, the mere fact of the
magistrate judge’s error in assessing the statute’s applicability
cannot serve as a basis for relief on appeal, and we may turn to
the merits of Teague’s substantive issues.
5
B
Teague first complains that one of the potential jurors at his
trial was erroneously excluded for cause even though she did not
indicate an inability to perform her functions under the Texas
death penalty scheme, just a general objection to the death
penalty. The record reveals, however, that this potential juror
specifically said that her belief would prevent her from responding
to a special issue in a way that would result in the imposition of
the death penalty, and that the trial court found her to be
excludable for cause on this basis. Under our longstanding
precedent, we must accept the state trial court’s judgments as to
potential jurors’ inability to apply state law so long as they are
fairly supported by the evidence when viewed as a whole. See Brock
v. McCotter, 781 F.2d 1152, 1156 (5th Cir. 1986). Because the
juror’s statement, viewed in the light of her entire testimony, is
manifestly sufficient to justify the trial court’s finding under
this “fair support” standard, Teague may not obtain relief on this
ground.
C
Teague next argues that voir dire was inadequate with respect
to three other jurors because the court limited the defense’s
questioning of their understanding of the difference between the
words “deliberate” and “intentional.” Both parties agree that the
6
court allowed some questioning on this issue. Under United States
v. Greer, 968 F.2d 433, 437 (5th Cir. 1992), it is clear that the
only constitutional sufficiency requirement for voir dire is that
enough questions be asked to ferret out any bias. Furthermore, in
Milton v. Procunier, 744 F.2d 1091, 1095 (5th Cir. 1984), this
court specifically held that there was no right to ask jurors about
their understanding of the definition of “deliberately,” as that
term was of common usage. In the light of Milton, Teague’s
complaint does not raise even a colorable claim of constitutional
error, and he may not obtain relief on this basis either.
D
Teague next contends that his appellate counsel was inadequate
for failing to raise the just-discussed voir dire problem on direct
appeal, citing supposedly dispositive Texas case law on the
question of reversible error in the limitation. Regardless of what
the Texas courts would have done had this issue been raised on
direct appeal, however, under Ricalday v. Procunier, 736 F.2d 203,
207 (5th Cir. 1984), inadequate performance by appellate counsel
must be tied to a fundamental unfairness of constitutional
proportions in the trial itself in order to give rise to federal
habeas relief. As the voir dire in this case was constitutionally
adequate in the first place, this requirement has not been met, and
Teague’s petition fails on this point as well.
7
E
Finally, Teague argues that Texas’s capital sentencing scheme
is unconstitutional under Simmons v. South Carolina, 114 S.Ct. 2187
(1994), because it prevented the jury from learning that he would
be ineligible for parole for twenty years if given a life sentence.
Teague claims that this information would have been relevant to the
jury’s analysis of the second special sentencing issue, future
dangerousness. In addition to the Teague problems, see Teague v.
Lane, 488 U.S. 288, 296 (1989), that Teague encounters in trying to
apply Simmons to his conviction (which became final, after all,
long before Simmons was decided), this court specifically held in
Allridge v. Scott, 41 F.3d 213, 221 (5th Cir. 1994), that Simmons
is only applicable to cases where the jurors are denied information
about complete ineligibility for parole under an alternate life
sentence, not mere ineligibility for a limited period of time.
Furthermore, as the Supreme Court recently indicated in Brown v.
Texas, 118 S.Ct. 355 (1997), informing the jury about a twenty-year
minimum on the alternate life sentence would probably be more
likely to harm a defendant’s chances of obtaining a finding of no
future dangerousness than to help them. On this claim as well, we
therefore find no basis for relief.
8
V
Delbert Boyd Teague engaged in a vicious crime spree
consisting of murder, attempted murder, kidnaping, rape, and
robbery, and he neither disputes his guilt nor raises meritorious
legal arguments in this appeal. In these circumstances, the
federal courts may not interpose themselves between Teague and the
punishment that constitutionally has been meted out to him. The
judgment of the district court is therefore
A F F I R M E D.
9