IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20540
IN RE DAVID EARL GIBBS,
Movant
Motion for an order authorizing the
United States District Court for the Southern
District of Texas, Houston Division, to consider
a successive habeas 28 U.S.C. § 2254 application
August 15, 2000
Before KING, Chief Judge, and HIGGINBOTHAM, Circuit Judge.*
PATRICK E. HIGGINBOTHAM; Circuit Judge:
David Earl Gibbs seeks authorization to file a successive
petition for a writ of habeas corpus in the United States District
Court for the Southern District of Texas, contending that his right
to file a successive federal writ of habeas corpus should be
measured by the cause and prejudice standard in place until April
26, 1996, the effective date of the AEDPA. We reject this
argument, refuse permission to file the petition, and refuse to
stay his execution now scheduled for August 23, 2000.
I
*
This matter is being decided by a quorum, 28 U.S.C. 46(d).
In 1986 a jury in Montgomery County, Texas, convicted Gibbs
and sentenced him to death for the rape and murder of Marietta
Bryant in the course of a burglary of a habitation. The conviction
and sentence have been affirmed both on direct appeal and
collateral review by the Texas Court of Criminal Appeals.1 After
this review Gibbs sought federal habeas relief. The federal
district court denied relief, and we affirmed that decision.2
Gibbs seeks to file a second petition for federal habeas to
raise a single claim, not raised in his first federal petition:
A juror’s false statement, during voir dire, that she had
never been the victim of a violent crime, when in fact
she had been brutally kidnaped, assaulted, raped, and
robbed, deprived Mr. Gibbs of his right to a fair trial
and impartial jury in violation of the Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution.
II
Our question is whether Gibbs can escape the strictures of 28
U.S.C. § 2244(b)(2), which provides that:
(2) A claim presented in a second or successive
habeas corpus application under section 2254
that was not presented in a prior application
shall be dismissed unless –
(A) the applicant shows that the claim relies
on a new rule of constitutional law, made
retroactive to cases on collateral review
by the Supreme Court, that was previously
unavailable; or
(B)(i) the factual predicate for the claim
could not have been discovered
1
Gibbs v. State, 819 S.W.2d 821 (TEX. CRIM. APP. 1991), cert.
denied, 502 U.S. 1107 (1992).
2
Gibbs v. Johnson, 134 F.3d 253 (5th Cir. 1998), cert. denied,
Gibbs v. Johnson, 119 S.Ct. 1501 (1999).
2
previously through the exercise of due
diligence; and
(ii) the facts underlying the claim, if
proven and viewed in light of the
evidence as a whole, would be
sufficient to establish by clear and
convincing evidence that, but for
constitutional error, no reasonable
factfinder would have found the
applicant guilty of the underlying
offense.
Gibbs concededly cannot meet (2)(B)(ii). He urges that
because application of AEDPA’s substantive standards “would have an
impermissibly retroactive effect on him,” the pre-act standards for
successive writs of McCleskey v. Zant, 499 U.S. 467 (1991), should
control. He argues that he could not reasonably have anticipated
when filing his first federal habeas petition that his claim of
juror bias would be barred by the later- enacted AEDPA standard of
innocence.3 His argument continues that he could make a prima
facie showing of cause and prejudice under the McCleskey standard.4
The cause requirement assertedly is met by a combination of
three factors: the practice then prevalent of setting an execution
date to provide incentive to a prisoner to proceed with efforts to
3
That standard is but for a constitutional error no reasonable
fact finder would have found him guilty. (2)(B)(ii).
4
“Some objective factor external to the defense impeded
counsel’s efforts” to raise the claim earlier and “actual prejudice
result[ed] from the errors of which he complained.” Or, in the
absence of cause, “a fundamental miscarriage of justice would
result from a failure to entertain the claim” as “when a
constitutional violation probably has caused the conviction of one
innocent of the crime.” 499 U.S. at 493-94.
3
obtain habeas relief,5 the federal requirement that a petitioner
cannot bring a petition with both exhausted and unexhausted claims,
and the refusal of Texas courts to entertain a petition if a
request for federal relief is then pending.
Texas responds that we rejected essentially the same effort to
escape the AEDPA in Graham v. Johnson, 168 F.3d 762 (5th Cir.
1999), cert. denied, 120 S.Ct. 1830 (2000); that Gibbs cannot
demonstrate that he has been whipsawed from a timely assertion of
the claim of juror bias in his effort to escape the innocence
requirement; that he cannot meet the cause and prejudice standard
of McCleskey in any event. Finally, Texas urges that the claim is
procedurally defaulted and has been decided against Gibbs on its
merits.
III
5
The use of execution dates in the absence of time limits to
create incentives for habeas petitions in death cases had its
problems. But it did not foreclose Gibbs a reasonable opportunity
to develop and file his pleadings. For example, The Court of
Criminal Appeals affirmed the conviction and sentence on September
18, 1991, the Supreme Court denied certiorari in Gibbs’s direct
appeal on February 24, 1992, and Gibbs filed his first application
for a state writ of habeas corpus on April 16, 1992. Indeed, the
Court of Criminal Appeals denied relief on Gibbs’s first writ of
habeas corpus on October 12, 1994, some seven months before the
days of June 1995 where he argues lack of time placed him in such
a difficult circumstance. It bears emphasis that a focus on the
time between a prisoner’s filing and the execution date under the
system then in place leads attention away from the reality that a
prisoner under sentence of death had little incentive to file
absent an execution date and years sometimes passed without court
activity. We focus today on a short time span in the summer of
1995, but that was over nine years after Gibbs was convicted and
sentenced to death.
4
We turn to the factual setting of Gibbs’s claim, starting with
the circumstances surrounding the filing of the first federal
habeas petition.
First, the dates of filing, keeping in mind that Gibbs was
tried and convicted in 1986. With execution scheduled for July 18,
1995, Gibbs filed his second state habeas petition on July 5, 1995.
The Texas Court of Criminal Appeals denied the application on July
15, 1995. Gibbs filed his first federal petition on July 17, 1995,
and execution was stayed on that day. Gibbs urges that on July 13,
1995, with Gibbs facing the execution date of July 18, 1995, and
approximately a week after filing a second state habeas
application, juror Lois Webster told Gibbs’s counsel that she had
been raped while a teenager. Counsel was then preparing Gibbs’s
federal petition in anticipation of a state denial and only four
days remained before the execution date, including a Saturday and
Sunday.
Texas replies that the claim could have been made in this
second state petition. The contention is that the state courts
found that counsel knew the factual basis for the juror bias claim
as early as June 8, 1995 (when habeas counsel interviewed the juror
and her husband) and at the latest on June 29, 1995, when the juror
signed an affidavit, but counsel filed a state habeas claim on July
5 without including it. The state continues that Gibbs could also
have amended his state petition, pointing out that the state trial
judge did not enter its findings on the habeas petition until July
14. Moreover, the state says, Gibbs did not return to state court
5
for three years and eight months, days before a then scheduled
execution – with the juror claim in his pocket all the while.
Gibbs rejoins that the Texas Court of Criminal Appeals
implicitly rejected the factual finding by the state habeas trial
court that petitioner’s counsel had knowledge as early as June 8 of
the factual basis of the claim of juror bias. Gibbs points to the
conclusion of the Court of Criminal Appeals that the state rules
for filing a successive writ were met. The contention is that
under state law the successive petition could not have been filed
if the factual predicate of its claims were discoverable at the
time the first petition was filed, July 5, 1995.
Whether counsel had the factual predicate on June 8 or June 29
aside, the state habeas court concluded that counsel “made no
attempt to investigate the matter further until February 26, 1999
. . . and presented no reasonable justification for the three year
and eight month delay between his discovery of the underlying basis
for this [claim] and his first attempt to investigate.” This
finding is not challenged. The lapse of time it finds spans the
April 25, 1996, effective date of the AEDPA. It led to the holding
by the Texas Court of Criminal Appeals that Gibbs’s third state
writ was defaulted under the common law abuse of writ doctrine.
The record does not disclose if efforts to obtain the information
were made in the nine preceding years. Apparently the factual
predicate for the claim of juror bias came only from the
information the juror volunteered in 1995.
IV
6
Gibbs’s effort to escape the conceded bar of the AEDPA rests
on a premise that he was justified in relying upon the law then in
place – specifically, that the claim would not have been barred by
the law defining abuse of the writ in place before the statute
became effective. The effort must accept that the abuse of writ
rules had been tightened considerably before the AEDPA became
effective. One need not gainsay the possible difficulties to a
petitioner of the combined effects of the two forum rule and the
doctrine of complete exhaustion to reject the contention that their
hindrance would here have constituted good cause under the pre-
AEDPA law.
We are not persuaded that counsel was justified in omitting
the claim of juror bias because he thought the law in effect would
allow him to do so. To the point and at the least, he was at such
grave risk in doing so that AEDPA cannot fairly be said to have
upset his settled expectations. In the words of Graham, “The focus
of our retroactivity inquiry should be on the detrimental reliance
[the petitioner] placed on pre-AEDPA law and the extent to which
statutory changes upset his settled expectations.” 168 F.3d at
787.
Texas urges that even if he could not have included the claim
in his second state filing, the two forum rule and the requirement
of complete exhaustion did not prevent Gibbs from dismissing his
federal habeas petition without prejudice after obtaining the stay
from the federal district court, investigating the claim, and
returning to state court; that Gibbs was assured of time to do so
7
because a new execution date could not have been scheduled inside
of thirty days. We agree.
We also agree that after obtaining the stay of execution in
July 1995, Gibbs could have added the claim of juror bias. This
would have either resulted in a dismissal of the then mixed
petition, or a decision on its merits. If dismissed by the federal
courts, returning to state court would not have increased his risk
of being found to have abused the state writ. To the contrary, it
would likely have reduced it. At the least, the risk of a finding
of writ abuse would not have been increased. Equally, he would
have lost little that he ever had on return to federal court, a
return available long before AEDPA became effective the following
April. Yet, Gibbs pocketed the claim and the affidavit for over
three years. As it was, the bar to the federal door aside, the
Texas Court of Criminal Appeals found that Gibbs abused its state
process by withholding the claim for those years.
That Gibbs’s difficulties in presenting the claim of juror
bias at this late date are the product of a justifiable reliance
upon the law before April 26, 1996, when AEDPA became effective, is
not credible.
V
The state courts also rejected Gibbs’s claim of juror bias on
its merits. After an evidentiary hearing, a state trial court
accepted the testimony of the juror that her earlier experience as
a rape victim had been suppressed in her mind; that she honestly
responded to the juror questionnaire form and was not biased
8
against the defendant. Gibbs urges that we should give no
deference to this factfinding by the state court because the trial
judge who entered the finding of fact on behalf of the Texas Court
of Criminal Appeals did not conduct the evidentiary hearing.
Rather, the trial judge relied upon the transcript of hearings
conducted by another judge. We have also reviewed those
transcripts and find no reason there or otherwise to not accord
appropriate deference to the findings of the state court. We
conclude then that even if the AEDPA were not applicable, and we
believe that it is, Gibbs cannot show the actual prejudice required
of a successive writ before AEDPA, even if he had good cause, which
he did not.
The petition to file a successive writ is denied and the
request that the execution scheduled for August 23, 2000 be stayed
is denied.
9