UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-40072
WILLIAM K. BURNS,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
5:99-CV-15
October 15, 2001
Before DAVIS, JONES and DeMOSS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge.*
William Burns, a Texas death row inmate, seeks a certificate
of probable cause to appeal the district court’s dismissal of his
habeas petition. We deny the certificate.
*
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opinion should not be published and is not precedent except under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.
I.
A.
William Burns was indicted for the capital offense of murder
while in the course of a robbery in 1981.2 William Burns was
tried, convicted, and sentenced to death that same year, but this
conviction was eventually reversed on appeal by the Texas Court of
Criminal Appeals based on error in the jury charge.3 Burns was
again tried, convicted, and sentenced to death in 1986, but that
conviction was also reversed by the Texas Court of Criminal Appeals
based on the trial court’s exclusion of mitigation evidence.4
Burns was tried, convicted, and sentenced to death for a third time
in 1989. He appealed to the Texas Court of Criminal Appeals, which
affirmed his conviction in 1992. The United States Supreme Court
denied certiorari in 1993.5
Burns filed an application for writ of habeas corpus in 1998
in state district court. The state court held an evidentiary
hearing and issued findings of fact and conclusions of law
recommending denial of relief, which the Court of Criminal Appeals
2
William Burns, his brother Victor Burns, and a friend, Danny
Ray Harris were accused of robbing and murdering William Burns’
“replacement” at the plant from which petitioner had been fired
shortly before the offense.
3
Burns v. State, 703 S.W.2d 649 (Tex. Crim. App. 1985).
4
Burns v. State, 761 S.W.2d 353 (Tex. Crim. App. 1985).
5
Burns v. Texas, 510 U.S. 838, 114 S.Ct.118 (1993).
2
adopted in 1999. Burns then filed a petition for federal habeas
relief. The district court denied relief in 2000, and petitioner
filed the instant application for COA with this court.
B.
A COA may only issue if the petitioner makes a “substantial
showing of the denial of a constitutional right.”6 This burden can
be met if the issues presented “are debatable among jurists of
reason; . . . a court could resolve the issues in a different
manner; or . . . the questions are adequate to deserve
encouragement to proceed further.”7
A death sentence alone does not justify the automatic issuance
of a COA, although it is a proper consideration.8 Any doubts as to
whether the COA should issue are to be resolved in the petitioner’s
favor.9
Burns’ petition was filed after the enactment of the
Antiterrorism and Effective Death Penalty Act (ADEPA). Thus, for
6
28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484,
120 S.Ct. 1595, 1603 (2000); United States v. Kimler, 150 F.3d 429,
431 (5th Cir. 1998).
7
Miller v. Johnson, 200 F.3d 274, 280 (5th Cir. 2000)(quoting
Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 2283, 3394
n. 4 (1983); Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999),
cert. denied, 528 U.S. 1132, 120 S.Ct. 976 (2000); see also Slack,
529 U.S. at 484, 120 S.Ct. at 1603-4 (quoting Barefoot v. Estelle,
463 U.S. at 893 n. 4; 103 S.Ct. at 3394 n.4).
8
Lamb v. Johnson, 179 F.3d 352, 356 (5th Cir. 1999), cert denied,
528 U.S. 1013, 120 S.Ct. 522 (1999).
9
Id.
3
questions of law or mixed questions of law and fact adjudicated on
the merits in state court, we may grant federal habeas relief under
28 U.S.C. § 2254(d)(1) only if the state court decision “was
contrary to, or involved an unreasonable application of, clearly
established [Supreme Court precedent].”10 We now turn to Burns’
specific claims.
II.
A. Failure to introduce mitigating evidence
Burns first argues that his trial counsel was ineffective in
failing to introduce evidence that his brother, Victor Burns,
entered a plea of guilty to the offense in question. Petitioner
contends that this information would have been relevant mitigating
evidence to be used during the punishment phase. Texas case law
did not permit Burns to introduce this evidence in mitigation. The
Texas Court of Criminal Appeals has stated the following: “We do
not see how the conviction and punishment of a co-defendant could
mitigate appellant’s culpability in the crime. Each defendant
should be judged by his own conduct and participation and by his
own circumstances.” Evans v. State, 656 S.W.2d 65, 67 (Tex. Crim.
App. 1983). See also Cordova v. Johnson, 157 F.3d 380, 383-84 (5th
Cir. 1998). Burns argues further that even if his co-defendant’s
sentence would not be relevant mitigating evidence, his co-
defendant’s conviction would. The language of Evans, cited above,
10
See Miller, 200 F.3d at 281.
4
however, makes it clear that this argument fails as well.
In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954 (1978), the
Supreme Court held that the sentencer can generally consider as a
mitigating factor “any aspect of the defendant’s character or
record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.” Id.
at 604, 98 S.Ct. at 2965.
Burns argues that his brother’s guilty plea judicially
establishes that he was the “triggerman” and that, despite the
Texas case-law cited above, his attorney should have proffered this
evidence because it is a relevant “circumstance of the offense.”
This argument is without merit. Victor Burns plea stated that he
“...intentionally and knowingly cause[d] the death of an
individual, Johnny Lynn Hamlett, by shooting him with a gun....”
No evidence was offered in support of Victor Burns’ conviction, and
it is unclear whether Victor caused the death as a principal or as
an accomplice. The state was entitled to obtain the conviction
without showing that Victor was the triggerman. The plea does not
therefore “judicially establish” that Victor Burns was the sole
“triggerman.” Additionally, counsel had very good reason for not
attempting to make such an argument. In William Burns’ statement
to the police, he admitted that he shot the victim. (“I took the
pistol out and I shot through the crack. There were only two
bullets in the pistol and I shot them.”)
Because an attorney cannot be ineffective for failing to raise
5
meritless objections,11 petitioner’s trial counsel did not perform
deficiently in failing to raise either of the above arguments. We
cannot, therefore, say that trial counsel was ineffective for
failing to introduce this evidence, and the district court was
correct in reaching this conclusion.12
B. Eighth Amendment Violations
Petitioner contends that his Eighth Amendment rights were
violated because he received a harsher sentence than his cohorts.
Victor Burns received a life sentence as a result of a plea bargain
he entered into with the State, and Danny Ray Harris was never
tried for the offense. Petitioner therefore argues that his “death
sentence is disproportionate to his culpability in the offense”
because “petitioner neither possessed a weapon nor fired a shot at
the victim.” As discussed above, whether petitioner actually shot
11
Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994).
12
Burns asserts a separate but related claim that the government
violated Brady v. Maryland in failing to disclose its intent to
dismiss the charges against co-defendant Danny Ray Harris. Brady,
373 U.S. 83, 83 S.Ct. 1194 (1963). Burns argues that he suffered
prejudice from the state’s failure to disclose this information
because he could have used it as mitigating evidence in the
punishment phase of his trial. Even if the state did not intend to
try Harris and if it had disclosed this intent, this evidence would
not have been admissible under Texas law for the same reason that
the disposition of the charges against Victor Burns were not
admissible. Moreover, this evidence is irrelevant to a defendant’s
character, prior record or the circumstances of the offense.
Lockett v. Ohio, 438 U.S. at 601-02. See also Penry v. Lynaugh,
492 U.S. 302, 327-28, 109 S.Ct. 2934, 2951-52 (1989). Because the
evidence was inadmissible, under Texas law and constitutionally
irrelevant to mitigation, the state had no duty to disclose it
under Brady.
6
the victim is a disputed issue.
In finding that petitioner’s death sentence was not
disproportionate in light of his moral culpability, the magistrate
judge entered proposed findings and recommendations which summarize
the resolution of this issue perfectly:
“Disparate sentencing appears to some degree inherent in
our system. The Supreme Court has repeatedly reminded us
of this fact and has consistently held that, even in the
special context of the death penalty, there is nothing
unconstitutional about it.” United States v. Ives, 984
F.2d 649, 650 n.3 (5th Cir. 1993). Thus, the mere fact
that other perpetrators were treated more leniently does
not render Burns’ death sentence a violation of the
Constitution and laws of the United States. Absent such
a violation, the Court cannot grant habeas corpus relief.
Magistrate Judge’s Proposed Findings and Recommended Disposition,
at 5.
Burns has proffered no fact or persuasive legal argument that
would lead us to conclude that reasonable jurists could find the
district court’s decision on this issue (which adopted the
magistrate’s findings reproduced above) debatable or wrong.
C. Juror problems
1. Ineffective assistance of counsel in failing to strike a
potential juror.
Burns argues that his trial counsel was ineffective in failing
to exercise a peremptory challenge against juror Tennyson. This
argument is based on Tennyson’s statement during voir dire that his
religious beliefs lead him to the conclusion that “if a person take
a life then his life should be took [sic].” Burns argues that his
7
lawyer should have stricken Tennyson from the jury because he held
an intractable belief that death is the only punishment he would
consider. This argument fails.
Burns failed to object to the magistrate judge’s findings
(adopted by the district court) rejecting this ineffective
assistance of counsel claim. The district court therefore reviewed
Burns’ claim only for plain error and held that the magistrate
judge’s finding (that trial counsel’s failure to excuse Tennyson
was not ineffective assistance of counsel) was not debatable among
jurists of reason. This conclusion is sound because the record
shows that although Tennyson did state that he believed in a “life
for a life,” he expressed that belief only upon questioning by the
prosecutor regarding his prior written statement that he could
never, under any circumstances, return a verdict which assessed the
death penalty. Tennyson also indicated that he would render a
decision according to the law and the evidence and would answer
“no” to the special assessment questions (if he thought that was
the proper answer) even if that would result in a sentence contrary
to his religious teachings.
Additionally, Tennyson made several statements favorable to
the defendant, including that he would require the State to produce
at least two witnesses against the accused and that he interpreted
“beyond a reasonable doubt” to mean “where you don’t have any doubt
whatsoever.” Tennyson’s trial counsel testified at the state
habeas proceeding that, in addition to the above statements, he did
8
not strike Tennyson because he was involved in a missionary
program. One of Burns’ punishment witnesses in the sentencing
phase was involved in similar work, and Burns’ trial counsel felt
that Tennyson might be able to identify with that witness.
When we look at all of Tennyson’s voir dire testimony--
particularly in light of counsel’s testimony at the habeas hearing-
-it is clear that Burns’ trial counsel was not ineffective in
failing to strike Tennyson. Reasonable jurists would not argue
otherwise.
2. Juror bias as a matter of law
Burns next argues that the acceptance of juror Tennyson
resulted in an unfair trial, since he describes Tennyson as holding
an intractable belief that the death penalty is the only punishment
he would consider. This claim fails for two reasons. First, trial
counsel made no objection to Tennyson as a juror. As the
magistrate judge correctly observed, “absent a contemporaneous
objection, federal habeas corpus review of claims about the
composition of jury panels is barred.” See Huffman v. Wainwright,
651 F.2d 347, 349 (5th Cir. 1981). Second, the evidence indicates
that Tennyson was not, in fact, biased, as discussed above.
Rather, Tennyson was a person who believed that the death penalty
is appropriate in murder cases, but would follow the law and
evidence, and consider mitigating evidence in deciding whether to
assess that punishment.
9
3. Improper (for cause) dismissal of a member of the venire
Relying on Witherspoon v. Illinois, 391 U.S. 510, 521-22, 88
S.Ct. 1770, 1776-77 (1968), Burns next argues that prospective
juror McKay was improperly excluded from service because of her
views opposing the death penalty. Although Ms. McKay did state
that she was “closer to being totally against the death penalty,”
the record shows that she was stricken for general unsuitability
rather than for anti-death penalty sentiments.
The prosecutor asked McKay whether she would be able to answer
the three special assessment questions truthfully and she responded
that she had not read the questions. After several confused
responses, the trial court gave petitioner’s counsel an opportunity
to rehabilitate McKay by asking, “Would you refuse to find a person
guilty even if the evidence overwhelmingly showed him to be
guilty?” McKay responded, “I don’t know ahead of time.” When
asked about the three special punishment issues again, McKay
responded again that she had not read them. The trial court then
gave McKay an opportunity to read the questions. After an extended
period of time, the trial judge made the following comments:
Sir, have the record reflect this venire man is over
distraught just from having to answer the question or
read the questions. She is obviously not capable of
making a decision. The court excuses her upon challenge
from the State.
...
Mr. Court Reporter, you will have in your notes the
amount of -- inordinate time this venire man took just
sitting [here] attempting to decide how she was going to
answer the question. The record shall reflect when the
10
court asked her to read the three questions she became
distraught and began to cry and shake her head.
Obviously not a fit person for jury service, obviously
not.
A federal habeas court gives substantial deference to the
trial judge’s decisions on juror bias and suitability.13 The
petitioner has presented no facts or persuasive legal authority
calling into question the trial judge’s decision to exclude juror
McKay.
III.
For the reasons stated above, we deny Burns’s motion for a
certificate of appealability.
13
See, e.g., Wainwright v. Witt, 469 U.S. 412, 424-26, 105 S.Ct.
844, 852-53 (1985).
11