IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________________
No. 96-20511
______________________________________
PONCHAI WILKERSON,
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 Southern District of Texas
(H-95-4493)
_____________________________________________
August 18, 1999
Before WIENER, EMILIO M. GARZA, and PARKER, Circuit Judges.
WIENER, Circuit Judge.*
Petitioner-Appellant Ponchai Wilkerson asks us to reverse the
district court’s denial of his federal petition for habeas corpus,
and its refusal to grant a certificate of probable cause (CPC) to
appeal that ruling. He also asks us to grant CPC. Concluding that
Wilkerson has not met the standard required for the granting of
CPC, we deny his request and affirm the rulings of the district
court.
I.
FACTS AND PROCEEDINGS
*
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this opinion should not be published and is not precedent except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 facts of the capital murder of which Wilkerson was
convicted are set forth in Wilkerson v. State.1 It suffices for
today’s purposes that even Wilkerson, who testified on his own
behalf, concedes that he fatally shot a jewelry store employee
during an armed robbery and that the shooting was neither
accidental nor in self-defense. He was tried and convicted in
state court by a jury which, in the subsequent punishment phase of
the trial, affirmatively answered the questions of deliberateness
and future dangerousness pursuant to the Texas special issues.2
The state trial court sentenced Wilkerson to death. Wilkerson’s
conviction and sentence were affirmed by the Court of Criminal
Appeals of Texas, which subsequently denied rehearing. The United
States Supreme Court denied certiorari. After exhausting the state
habeas process to no avail, Wilkerson filed this action in the
district court seeking federal habeas relief, which that court
denied. It also declined to issue a CPC, and the instant appeal
followed.
II.
ANALYSIS
A. Standard of Review
1
881 S.W.2d 321, 324 (Tex. Crim. App.), cert. denied, 513
U.S. 1060 (1994).
2
Tex. Code Crim. P. Code Ann. § 37.071(b) (West 1981 & Supp.
1999).
2
Before issuing a CPC in this pre-AEDPA3 case we must determine
whether Wilkerson has made a substantial showing of the denial of
a federal right.4 To do so, Petitioner must “demonstrate that the
issues are debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the questions
are ‘adequate to deserve encouragement to proceed further.’”5 We
apply our well-known standards of review when we examine the
district court’s denial of habeas relief, i.e., our review of the
factual findings of that court is conducted under the clearly
erroneous standard, and our review of questions of law, and of
mixed questions of fact and law, is plenary. Under 28 U.S.C. §
2254(d), factual findings of the state courts are entitled to a
presumption of correctness.
B. Guilt-Innocence Phase
In applying to us for a CPC, Wilkerson has specified no issues
implicating the conduct of the guilt-innocence phase of the state
jury trial that produced his conviction for capital murder of the
jewelry store employee. Rather, Wilkerson advances six claims of
error in the punishment phase of his trial, insisting that as to
each he has made a substantial showing of the denial of a federal
right, thereby meeting the pre-AEDPA CPC standard stated in
3
Anti-terrorism and Effective Death Penalty Act. of 1996, 28
U.S.C. § 2254 (1994 & Supp 1998).
4
Barefoot v. Estelle, 463 U.S. 880 (1983).
5
Id. at 893 n.4 (quoting Gordon v. Willis, 516 F. Supp. 911,
913 (N.D. Ga. 1980)).
3
Barefoot v. Estelle.6 We turn therefore to the punishment phase of
his trial and examine the errors alleged to have been committed
there.
C. Punishment Phase
Wilkerson’s trial attorney sought a punishment-phase jury
instruction explaining the effects of parole in the context of a
Texas life sentence. In Wilkerson’s direct appeal, however, his
trial counsel did not compound this vain act by asserting trial
court error in refusing such an instruction. Nevertheless, at
least three of Wilkerson’s six claims of constitutional error
implicate the question of the effects of parole, including the
trial court’s refusal to give such an instruction, defense
counsel’s failure to argue on appeal that such ruling constituted
reversible error, and the prosecution’s comments about confinement
in closing argument.
Regarding the instruction, the State responds, and we agree,
that Supreme Court precedent and our own combine to eviscerate
Wilkerson’s assignments of equal protection, due process, and cruel
and unusual punishment errors on no less than three grounds.
First, they are procedurally barred given Wilkerson’s failure to
pursue —— exhaust —— this matter in his direct appeal and in his
habeas applications in the state system.7 That defense counsel
6
Id.
7
As a matter of law, Wilkerson’s claim is exhausted under 28
U.S.C. § 2254 because he cannot now raise it under state law;
indeed, were he to try, even after failing in federal habeas, he
would be prevented by the Texas version of abuse of the writ.
4
might perceive objections or claims of error on appeal to be
useless, hollow acts does not excuse the failure to make them so as
to preserve the objection and avoid procedural bar. Second, these
claims are without substantive merit. Albeit subsequently, the
Court in Simmons expressly excepted Texas and its sentencing and
parole systems from the requirement to instruct the jury on the
effects of parole under a life sentence, and our precedent under
Allridge is to the same effect. Prior to Simmons no precedent had
required a parole-effects instruction, at least not in Texas.
Wilkerson concedes as much and, in admirable candor, also concedes
that his efforts in this regard are grounded in the hope, however
forlorn, that this panel might write something that would lead to
an en banc reconsideration of our Allridge position. We decline
this invitation, which brings us to Wilkerson’s third strike:
Teague v. Lane.8 Even if we were to disregard both procedural bar
and existing precedent, and were to convince this court to revisit
the issue en banc and overrule Allridge and its progeny (and
thereafter not be reversed by the Supreme Court on the basis of
Simmons), the result would constitute a “new rule” under Teague and
thus would be unavailable to Wilkerson because of Teague’s
prohibition against applying new rules retroactively.
This is a double-edged sword, but a proper one: The same
analysis thwarts Wilkerson’s ineffective assistance of counsel.
Wilkerson cannot get past the “cause” prong of the test articulated
8
489 U.S. 288 (1989).
5
in Strickland v. Washington.9 Objectively judged, the professional
performance of Wilkerson’s counsel on direct appeal, in not
claiming error in the trial court’s refusal to grant the parole
instruction, cannot be deemed to have been deficient. Even though,
as noted, Simmons and Allridge were not decided until after the
professional performance at issue, the fact that the Supreme Court
in Simmons expressly excepted Texas from the effect of that
judgment supports a determination that counsel cannot be faulted
for failing to include the denial of the parole instruction among
those issues urged on appeal. Moreover, were we to reach the
prejudice prong of the Strickland test, we would almost certainly
conclude that the absence of the parole instruction in the
punishment phase of Wilkerson’s trial was not a “but for” cause of
the jury’s response to the special issue of future dangerousness.
The extensive litany of Wilkerson’s violently dangerous behavior
eschews any such conclusion.
Albeit legally distinct, Wilkerson’s due process claim that
the prosecution’s assertions in closing argument to the effect that
nothing guarantees that Wilkerson will remain in prison is closely
analogous to his complaints regarding the absence of the parole
instruction and the deficiency of counsel’s performance in failing
to advance that error on direct appeal. Wilkerson insists that,
despite (1) the trial court’s instruction to the jury to disregard
the prosecution’s comment, and (2) the prosecution’s explanation to
the jury that the comments were made in reference to the
9
466 U.S. 668 (1984).
6
possibility of escape, the court’s denial of Wilkerson’s motion for
a mistrial on the basis of the remarks —— which, according to
Wilkerson, violated Texas jurisprudence that prohibited the
prosecution from asking jurors to consider the actual length of the
time of incarceration that will result from the sentence they
assess10 —— was not grounds for a mistrial under the instant
circumstances. In rejecting this contention by Wilkerson, the
district court agreed with the observation of the Court of Criminal
Appeals of Texas that any error in the prosecution’s closing
argument was harmless because it is common knowledge that prisoners
—— even death row prisoners —— do escape. Although Wilkerson’s
habeas counsel now characterizes that holding as “outrageous,” in
his oral argument to this panel, counsel argued, in discussing this
very concept in the context of future dangerousness, that jurors
have no concern about future danger to fellow prisoners. This
argument is at least as outrageous: The law has long recognized
that future danger to inmates, and, even more so, future danger to
prison personnel, are valid considerations in the context of the
possibility (or absence thereof) of escape, parole, or probation.
It suffices that we agree with the analysis of the district court
in rejecting this contention.
Wilkerson asserts that the trial court’s permitting the
prosecution to introduce the testimony of a witness, James McCowan,
regarding offenses committed by one Wilton Bethany in the presence
10
See Clark v. State, 643 S.W.2d 723, 724 (Tex. Crim. App.
1982).
7
of Wilkerson was an erroneous admission of evidence of extraneous
offenses by another person. This is a mischaracterization of the
nature and purpose of McCowan’s testimony. Although the testimony
of the unlawful acts of Bethany were indeed described by the
witness, it was done by way of background and perspective, given
that the “extraneous offense” committed by Wilkerson during the
same violently unlawful episode —— his indiscriminate firing of
multiple rounds in the densely-populated urban setting of an
occupied apartment complex where the incident occurred —— was the
point being made by the prosecution in its case for future
dangerousness. Moreover, Wilkerson’s failure to object
contemporaneously to the admission of McCowan’s testimony
procedurally bars its consideration now.11 And, even if it were not
barred, when that testimony is read in its entirety it is easily
recognized as evidence of Wilkerson’s —— not Bethany’s ——
unadjudicated offenses, which is clearly admissible in the
punishment phase.12
Wilkerson’s two remaining claims may escape the label
“frivolous,” but, at best, are void of both legal and factual
merit. Apart from the likelihood of being procedurally barred,
Wilkerson’s challenge to (1) the method and extent of the review by
the Court of Criminal Appeals of Texas of mitigating evidence
presented to the jury regarding future dangerousness, and (2) the
11
See Wilkerson, 881 S.W.2d at 326-27.
12
See, e.g., Duff-Smith v. Collins, 973 F.2d 1175, 1184 (5th
Cir. 1992); Milton v. Procunier, 744 F.2d 1091, 1097 (5th Cir. 1984)
cert. denied.
8
sufficiency of the evidence to support the jury’s conclusion of
future dangerousness, may be acceptable vigorous advocacy in light
of the ultimate penalty faced by Wilkerson, but that does not raise
these contentions to a level that even approaches a demonstration
of a substantial showing of the denial of a federal right. It
suffices that our review of the record, the district court’s
disposition of this case, and the legal arguments of counsel in
their respective appellate briefs and oral arguments to this court
make clear beyond cavil that, like the other four issues, these two
fall short of the Barefoot standard and therefore do not justify
the issuance of a CPC.
III.
Conclusion
For the reasons set forth above, we decline Wilkerson’s
request for a CPC and affirm the rulings of the district court.
CPC DENIED; Rulings of the District Court AFFIRMED.
9