United States Court of Appeals
Fifth Circuit
F I L E D
REVISED FEBRUARY 25, 2004
February 4, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 03-40492
_____________________
JASEN SHANE BUSBY
Petitioner - Appellant
v.
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
Respondent - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.
KING, Chief Judge:
Petitioner-appellant Jasen Shane Busby has been convicted of
capital murder in the Texas state courts and sentenced to death.
The district court denied Busby’s petition for a writ of habeas
corpus but granted Busby a certificate of appealability (COA) on
several issues. This court later denied Busby’s request for a
COA on additional claims. We now address the issues for which
Busby was granted a COA. Finding them without merit under the
governing standards, we affirm the district court’s denial of
habeas relief.
I. FACTUAL AND PROCEDURAL BACKGROUND
The basic facts of the crime are no longer disputed at this
stage of the proceedings. Busby, his friend Christopher Kelley,
and Kelley’s girlfriend Brandy Gray lived together in a cabin in
Maydelle, Texas. On Sunday, April 16, 1995, they spent the night
in a trailer in Antioch with Tenille Thompson, an acquaintance.
The next morning, Busby drove Kelley’s truck to buy donuts for
the group for breakfast. When Busby returned, he was accompanied
by Darrell Smith. The group made several trips to various places
that day, and at one point some members of the group, including
Busby, took turns shooting an assault rifle outside of the
Maydelle cabin. During the course of the day they also purchased
some marijuana, which some of the group, including Busby, smoked
later that night at the Antioch trailer.
Around ten o’clock that night, Busby and Smith went outside
the trailer. Kelley, who was still inside the trailer, heard
them loading a gun and talking about how many bullets were in it.
Kelley started to open the door but found that someone else was
already opening it from the other side. Busby then shot Kelley,
Gray, and Thompson and drove off in Kelley’s truck with Smith.
The two women were dead. Kelley, with a gunshot wound in the
neck, went to a neighboring house for help. He described Busby
2
and the truck to the police. Kelley survived the wound and would
testify at Busby’s trial, providing many of the details recounted
above.
The police took Busby and Smith into custody on the night of
the shootings after an officer spotted Kelley’s truck on the
highway. Busby had a clip of bullets in his pocket.
Investigators spoke to both men late that night and into the next
morning. After being read his rights, Busby gave a taped
confession, which he would later claim was the product of drug
intoxication. Smith told investigators that Busby had hidden the
murder weapon, and Smith showed them where to find it. The
authorities recovered the gun, which was later linked to shells
found at the scene of the killings. Busby was indicted for
capital murder.
The legal claims in this appeal arise from two sets of
circumstances that occurred while Busby was awaiting trial.
First, Busby claims that pretrial publicity poisoned the
atmosphere in Cherokee County, the site of the trial. At the
time, Cherokee County had a population of approximately 42,000
people. The only local daily newspaper was the Jacksonville
Daily Progress, with a paid circulation of around 5,500. The
paper ran at least a dozen articles about the murders on its
front page, including articles and photographs that identified
Busby as the only suspect, cited evidence against him, referred
to a confession, pictured him in handcuffs, and reported an
3
allegation that he was a Satanist. The Cherokeean Herald, a
weekly paper with a circulation of about 3,500, gave the case
less prominent coverage but also ran articles about the case,
including stories concerning the amount of fees that Busby’s
court-appointed lawyers were incurring at the taxpayers’ expense.
Busby filed a motion to change venue. During a hearing on
the motion, the court heard testimony from several prominent
citizens who opined, based on their reading of community
sentiment, that many residents of the county had already decided
that Busby was guilty. The county sheriff testified that there
were threats against Busby’s life; he stated that he had opposed
the defense team’s request to visit the crime scene because he
feared violence. Other citizens who testified at the hearing,
including some of those called by Busby, said that there had been
relatively little discussion of the case in the community and
that many people had not heard of Busby. The trial judge denied
the motion to change venue.
The second set of facts relevant to this appeal involves
certain letters that Busby wrote to friends and family while in
pretrial detention. The jail’s policy manual stated that all
outgoing non-privileged inmate mail could be inspected and read,
and it regularly was. Pursuant to this policy, jail staff came
across letters in which Busby admitted to and described the
killings, made what appeared to be threats against others, and
suggested that a correspondent send him drugs. (This was after
4
Busby had already admitted to the killings in the taped
confession, mentioned above.) Before sending the letters off to
their addressees, the jailers copied them and turned the copies
over to investigators.
At trial, Busby objected to the state’s use of the letters
against him. He pointed out that no warrant had been issued to
search Busby’s mail, and he contended that reading the letters
constituted an illegal interrogation. Relevant to this appeal,
Busby also claimed that the jail’s policy violated the First
Amendment, although that was not the primary basis for his
objection. In deciding whether to admit the letters, the trial
judge heard testimony from the county sheriff and the jail
administrator, who testified regarding the jail’s mail policies.
They stated that jail staff read mail in order to watch for
suicide risks, escape plans, threats of violence, and other
dangers to jail safety and security. It does not appear from the
record that Busby was targeted in particular for surveillance,
nor does it appear that the mail policy, which accorded with
state jail regulations,1 was directed at detecting inculpatory
1
In 1994, the Texas Commission on Jail Standards adopted
new regulations concerning inmates’ mail privileges. The
regulations provided, regarding non-privileged mail: “Outgoing
correspondence may be opened and read. Correspondence may be
censored provided a legitimate penological interest exists. A
copy of the original correspondence should be retained.” 19 Tex.
Reg. 9880 (Dec. 13, 1994) (codified as amended at 37 TEX. ADMIN.
CODE § 291.2(3)(B) (West 2003)).
5
communications. The jail administrator testified that inmates
were not given copies of the jail’s policy manual, which
explicitly authorized the reading of inmates’ non-privileged
mail. The inmates instead received a brief inmate handbook,
which did not explicitly warn inmates that their mail would be
read. The inmate handbook did, however, instruct inmates not to
seal outgoing envelopes unless the envelope contained privileged
mail; according to the handbook, sealed non-privileged mail would
be rejected. Accordingly, the practice within the jail was that
non-privileged mail was given to jailers unsealed. Some of
Busby’s letters, including his early letters, suggest that Busby
suspected that jailers could read his mail. The trial judge
overruled Busby’s objections to using the letters at trial.
During the guilt phase of the trial, the state called Mark
Oppen, a friend who had received some of the letters the jailers
had read and copied. Through Oppen, the state introduced two
letters in which Busby described the killings. On cross-
examination, the defense introduced another letter that Busby
wrote to Oppen in which Busby denied committing the murders and
told Oppen to throw away the previous letters.
The state introduced dozens more letters in the punishment
phase of the trial. Some of these letters showed Busby as
remorseless and revealed violent thoughts directed at Kelley and
the judge. Other letters——including some of those introduced by
the state as well as letters put into evidence by the
6
defense——were more sympathetic in that they showed Busby’s love
for his family and his newfound devotion to the Bible; many of
the letters were arguably mitigating because they suggested that
Busby had been in a marijuana- and LSD-induced daze on the night
of the killings. Apart from the letters, the state’s case in the
punishment phase included testimony from people to whom Busby had
made arguably threatening remarks, testimony from an inmate who
had overheard Busby saying that he would go on a shooting
“rampage” if he got out, and expert testimony from a psychologist
who opined that there was a significant risk that Busby would
commit future acts of violence. The defense called a dozen
witnesses in the punishment phase, including jail employees who
testified to Busby’s good behavior in jail, two medical experts,
and ministers, friends, and family who spoke of Busby’s non-
violent character.
Busby was sentenced to death on July 27, 1996. The
conviction was automatically appealed to the Texas Court of
Criminal Appeals. His direct appeal asserted eleven points of
error, but the state’s use of the letters was not among them.
The Court of Criminal Appeals affirmed Busby’s conviction and
sentence on March 31, 1999. Busby v. Texas, 990 S.W.2d 263 (Tex.
Crim. App. 1999). Busby unsuccessfully sought certiorari from
the United States Supreme Court. Busby v. Texas, 528 U.S. 1081
(2000).
7
On November 20, 1998, Busby filed an application for
post-conviction relief in state court. Following an evidentiary
hearing, the trial court entered findings of fact and conclusions
of law and recommended that Busby’s request for habeas relief be
denied.2 In a brief order, the Texas Court of Criminal Appeals
adopted the lower court’s findings, conclusions, and
recommendation without further comment. Ex parte Busby, No.
28,761-01 (Tex. Crim. App. Sept. 13, 2000).
On September 12, 2001, Busby filed a petition for federal
habeas corpus relief in the United States District Court for the
Eastern District of Texas. The district court granted the
state’s motion for summary judgment in an unpublished order and
accompanying memorandum opinion. Busby v. Cockrell, No.
5:02cv264 (E.D. Tex. Mar. 31, 2003). The district court did,
however, grant a COA on the following issues:
1. Whether Busby’s appellate attorney’s decision not
to appeal the trial court’s denial of Busby’s
motion to exclude the letters constituted
ineffective assistance of counsel?
2. Whether the trial court’s denial of Busby’s motion
to suppress the letters violated the First
Amendment?
3. Whether the trial court’s denial of Busby’s motion
for a change of venue deprived him of a fair trial?
2
Both sides submitted proposed findings and conclusions
to the court. The findings and conclusions issued by the court
are in all material respects the same as those proposed by the
state.
8
4. Whether the change of venue/fair trial issue was
exhausted?3
As we have already denied Busby’s request for a COA on additional
issues, Busby v. Cockrell, No. 03-40492, 2003 WL 21954211 (5th
Cir. Aug. 15, 2003), today’s decision considers only the three
issues listed above.
II. DISCUSSION
A. Standard for Granting Relief
In a habeas corpus appeal, we review the district court’s
findings of fact for clear error and its conclusions of law de
novo, applying the same standards to the state court’s decision
as did the district court. Martinez v. Johnson, 255 F.3d 229,
237 (5th Cir. 2001). Busby’s habeas petition is governed by the
standards established by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214
(1996).
Under AEDPA, we may not grant relief on a claim that the
state courts have adjudicated on the merits “unless the
adjudication of the claim . . . resulted in a decision that was
3
Busby’s habeas petition, and his brief here, phrase the
issues somewhat differently, as we explain later. We recognize
that the question whether Busby’s change of venue claim was
properly exhausted is not itself a ground for relief; it is not
an issue that raises “a substantial showing of the denial of a
constitutional right.” See 28 U.S.C. § 2253(c)(2) (2000). But
the lack of exhaustion can be a barrier to relief on the
underlying substantive claim, and so our opinion must address
exhaustion in that context.
9
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1) (2000). A state
court’s decision is deemed “contrary to” clearly established
federal law if it relies on legal rules that directly conflict
with prior holdings of the Supreme Court or if it reaches a
different conclusion than the Supreme Court on materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-
06 (2000). A state court’s decision runs afoul of the
“unreasonable application” prong of § 2254(d)(1) “if the state
court correctly identifies the governing legal principle from our
decisions but unreasonably applies it to the facts of the
particular case.” Bell v. Cone, 535 U.S. 685, 694 (2002). The
Supreme Court has made it clear that an unreasonable application
is different from an incorrect application. Id. Finally, we
presume that the state court’s factual determinations are
correct, and we may grant relief only if a factual determination
is unreasonable based on the evidence presented to the state
court. 28 U.S.C. § 2254(d)(2), (e)(1).
B. Ineffective Assistance of Appellate Counsel
Busby claims that the attorney appointed to represent him in
his direct appeal was constitutionally ineffective for failing to
argue that the trial court erred in admitting the jailhouse
10
letters into evidence, over Busby’s objection, in both the guilt
phase and the punishment phase of the trial.
The state habeas court, after holding an evidentiary
hearing, rejected Busby’s ineffective assistance of counsel
claim. The court did not set forth its reasoning in a formal
opinion but instead produced a list of numbered findings of fact
and conclusions of law. This does not mean that § 2254(d)’s
deferential standard of review is inapplicable, however: as we
have made clear in past cases, this court “review[s] only a state
court’s ‘decision,’ and not the written opinion explaining that
decision.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002)
(en banc) (per curiam), cert. denied sub nom. Neal v. Epps, 537
U.S. 1104 (2003); see also Early v. Packer, 537 U.S. 3, 8 (2002)
(per curiam) (holding that AEDPA standards apply to state court
decisions even when the state court does not cite governing
Supreme Court cases).
To make out a claim of ineffective assistance of counsel,
Busby must show both that his counsel’s performance was deficient
(i.e., that it “fell below an objective standard of
reasonableness”) and that he was prejudiced by his counsel’s
deficient performance. Strickland v. Washington, 466 U.S. 668,
687-88 (1984). Regarding the first prong, we must be “highly
deferential” when evaluating counsel’s performance; “the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
11
trial strategy.” Id. at 689 (internal quotation marks omitted).
Regarding the second prong, Busby “must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
The familiar Strickland framework applies to a prisoner’s
claim that his appellate counsel was ineffective for failing to
raise a certain issue on appeal. See Smith v. Robbins, 528 U.S.
259, 285 (2000); Smith v. Murray, 477 U.S. 527, 535-36 (1986).
Regarding the operation of the deficient performance prong in
this context, we have stated that “[c]ounsel does not need to
raise every nonfrivolous ground of appeal available.
Nonetheless, a reasonable attorney has an obligation to research
relevant facts and law, or make an informed decision that certain
avenues will not prove fruitful.” United States v. Williamson,
183 F.3d 458, 462 (5th Cir. 1999) (citations, footnotes, and
internal quotation marks omitted).
At the evidentiary hearing, the state habeas court received
testimony from Busby and from the attorney appointed to represent
Busby in the direct appeal, Forrest Phifer. Busby testified that
he asked Phifer to raise the issue regarding the admission of the
letters in his appellate brief. According to Busby, Phifer said
that including the issue would detract from other, more promising
12
grounds for reversal. Phifer himself took the stand at the
hearing and said that as he was formulating his issues for
appeal, he received a slip opinion from the Court of Criminal
Appeals regarding a pretrial detainee’s privacy rights, in
particular whether a drawing could be seized from the detainee’s
cell and admitted against him. He could not remember the style
of the case but, when given the name Soria v. State, it was
familiar; Phifer said that Soria was “probably” the slip opinion
that deterred him from appealing the use of the letters, though
he could not be sure.
In Soria, the state’s presentation to the jury in the
punishment phase of the defendant’s trial included a self-
portrait, seized from the defendant’s cell, in which the
defendant drew himself holding a bloody knife. 933 S.W.2d 46, 50
(Tex. Crim. App. 1996). The Court of Criminal Appeals cited the
United States Supreme Court’s decision in Hudson v. Palmer, 468
U.S. 517 (1984), for the proposition that an inmate has no Fourth
Amendment expectation of privacy in his cell, and it cited the
decision in Block v. Rutherford, 468 U.S. 576 (1984), for the
proposition that a shakedown search of a pretrial detainee’s cell
does not violate the Fourth Amendment or due process. Soria, 933
S.W.2d at 60. The Court of Criminal Appeals therefore rejected
the defendant’s Fourth Amendment challenge to the admission of
the drawing. Id.
13
At the evidentiary hearing, Phifer testified to the
“disappointment” he felt when he saw the Soria slip opinion. He
continued:
I mean, [the slip opinion] was talking specifically on
right of privacy of an inmate and it talked about some
kind of writing, I don’t know if it was pictures or
letters, it was something in writing that was objected to
on the grounds of privacy, invasion of privacy. And I
said, well, this point would go in front of [the] same
Court, in front of the same judges, fairly soon after
this opinion and I have no reason to believe that the
Court would look at it differently. I said if I did this
it would be futile, that it would simply diminish my
other points and I wanted to go with the strongest points
I had.
Phifer testified that since he already had ten or eleven points
of error, he feared that adding this issue would give the appeal
a “shot gun” character. He therefore made the “strategical [sic]
decision” not to include this point of error.
Strategic decisions of the sort to which Phifer testified
can rarely constitute ineffective assistance of counsel, so long
as they are based on reasonable investigations of the applicable
law and facts. Strickland, 466 U.S. at 691. Phifer was
apparently well aware of the facts regarding the letters, but
Soria dissuaded him from raising a legal challenge to their use.
Soria itself cited two United States Supreme Court cases, Hudson
v. Palmer and Block v. Rutherford, that, while not directly on
all fours with Busby’s case, further tended to show that Busby’s
privacy claims lacked merit. It is true, as Busby now argues in
this appeal, that Phifer might have tried to distinguish the
14
above cases on the grounds that they involved intrusions into an
inmate’s cell, rather than reading a prisoner’s mail. But any
Fourth Amendment argument would be hampered by the need to
establish that Busby had a legitimate expectation of privacy in
the unsealed letters that he gave to prison officials, a
difficult argument to make.4 Indeed, if Phifer had investigated
this particular matter further, he would have found that the
leading case on the use of inculpatory jailhouse letters is still
Stroud v. United States, 251 U.S. 15 (1919). In Stroud, the
Supreme Court held that there was no violation of the Fourth
Amendment when an inmate’s letters, read by jailers pursuant to
jail practice, were introduced against him at trial. Id. at 21-
22.5
4
The Seventh Circuit has rejected a similar Fourth
Amendment challenge to the use of jailhouse letters, observing as
follows:
The record affirmatively shows that the prison requires
inmates to leave their letters unsealed and that [the
defendant] had left unsealed the two letters at issue in
this case. It is therefore clear that he had no
expectation of privacy with respect to their contents.
Because [the defendant] demonstrated an expectation that
his mail was being inspected, we have no difficulty
agreeing with the district court’s refusal to suppress
[the defendant’s] letters.
United States v. Whalen, 940 F.2d 1027, 1035 (7th Cir. 1991).
5
Later cases involving the same fact pattern——prisoners’
or pretrial detainees’ letters being read by jailers and then
used against them——generally reach the same result, though the
more recent cases sometimes require that the jail at least
present a justification for its mail policy. See, e.g., Whalen,
940 F.2d at 1034-35; United States v. Kelton, 791 F.2d 101, 102-
03 (8th Cir. 1986). See generally Gary D. Spivey, Annotation,
Censorship and Evidentiary Use of Unconvicted Prisoners’ Mail, 52
15
Although any appellate challenge to the admission of the
letters would have been difficult and almost certainly
unsuccessful, it would not have been a frivolous issue for
counsel to raise.6 A point of error involving the letters,
despite its weakness, might have been a stronger issue than some,
but by no means all, of the issues that Phifer did raise on
appeal. And given that the issue could be barred on later
collateral review if not raised on direct appeal,7 a reasonable
appellate advocate could certainly have decided to pursue the
issue despite its low likelihood of success. But, at the same
time, we do not believe that Phifer’s decision not to pursue the
A.L.R.3d 548 (1973 & Supp. 2003).
6
Although the prevailing view is to the contrary, see
supra note 5, challenges like Busby’s have in some cases
prevailed. In State v. Ellefson, 224 S.E.2d 666 (S.C. 1976), the
South Carolina Supreme Court found that the exclusionary rule
barred the use of a pretrial detainee’s outgoing letters that
were read by a jailer and then turned over to a detective. A
Texas appellate court, in an unpublished disposition, has
distinguished Ellefson on the ground that the activities in
Ellefson were “unrelated to jail security and . . . done at the
request of a detective who was not connected with jail operations
and whose efforts were ‘entirely investigatory,’ ‘exploratory,’
and ‘indiscriminate.’” Miller v. State, No. 01-94-01040-CR, 1995
WL 632066, at *1 (Tex. App.—Houston [1st Dist.] Oct. 26, 1995)
(quoting Ellefson, 224 S.E.2d at 668, 670), denying motion for
reh’g in 1995 WL 569670 (Tex. App.—Houston [1st Dist.] Sept. 28,
1995, pet. ref’d).
7
Indeed, in the federal habeas proceedings the state has
asserted that any challenge to the letters is barred from federal
review because Busby defaulted the issue in the state courts.
The district court did not apply the procedural default, however.
As explained later in this opinion, we do not rely on the default
either. See infra II.C.1.
16
issue was “outside the wide range of professionally competent
assistance,” Strickland, 466 U.S. at 690, to which a criminal
defendant is entitled. Soria was similar enough to be persuasive
authority in the Court of Criminal Appeals against Busby’s
position, and Phifer simply cannot be said to have failed to
discover controlling authority that would have shown that the
letters should have been suppressed; on the contrary, as we have
observed, the prevailing view is that there is no constitutional
violation in cases like this one. Whether or not Phifer’s choice
of issues on appeal was the best decision, we believe it was
within the range of decisions that a reasonably informed attorney
could make.
Even more to the point, given that AEDPA governs this case,
Busby’s ineffective assistance of counsel claim cannot satisfy
§ 2254(d)’s exacting standards for granting habeas relief. As we
stated in a previous case,
It bears repeating that the test for federal habeas
purposes is not whether [the petitioner made the showing
required under Strickland]. Instead, the test is whether
the state court’s decision——that [the petitioner] did not
make the Strickland-showing——was contrary to, or an
unreasonable application of, the standards, provided by
the clearly established federal law (Strickland), for
succeeding on his [ineffective assistance of counsel]
claim.
Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003), cert.
denied sub nom. Schaetzle v. Dretke, No. 03-7511, 2004 WL 76777
(Jan. 20, 2004). Here, the state habeas court’s findings of fact
and conclusions of law stated, inter alia, that Busby had no
17
legitimate expectation of privacy in unsealed non-privileged
mail, that Phifer was not deficient for failing to raise the
issue of the letters, and that a point of error on the issue
would not have resulted in reversal. This last finding is
especially difficult for us to assail given that the Texas state
courts, in a decision rendered shortly after Busby filed his
briefs in the direct appeal, rejected an effort to suppress an
inculpatory outgoing letter read by jailers pursuant to the
state’s inmate mail policy. See Merritt v. State, 982 S.W.2d
634, 635 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d,
untimely filed).8
While an objection to the use of the letters would most
naturally be framed as a Fourth Amendment claim, Busby also
claims in this appeal that the jail’s policy violated the First
Amendment. It is true, as Busby argues, that neither Soria nor
the cases it cites involved a First Amendment challenge to
reading and using an inmate’s mail. We do not believe, however,
that Busby’s attorney can be deemed constitutionally deficient
for failing to raise such a challenge. As we explain in greater
8
The decision in Merritt appears to rest in part on the
fact that the inmate handbook notified inmates that non-
privileged mail could be opened and read. See 982 S.W.2d at 635.
It is unclear from the opinion what exactly the handbook said; in
this case, as described earlier, the handbook given to Busby did
not explicitly say that mail would be read, but it did tell
inmates to leave their non-privileged mail unsealed or else it
would not be accepted. Merritt also relied on the broader
principle that “numerous court cases have allowed prison mail to
be censored.” Id.
18
detail below, the jail’s policy did not violate the First
Amendment under prevailing standards and, even if it did, Busby
would need to explain why material so obtained must be suppressed
at trial. Busby’s appellate attorney was not constitutionally
deficient in this particular case for failing to ask the Court of
Criminal Appeals to reject the weight of established authority.
Cf. Lucas v. Johnson, 132 F.3d 1069, 1078-79 (5th Cir. 1998)
(stating that the habeas petitioner “failed to demonstrate
deficient performance because counsel is not required to
anticipate subsequent developments in the law”). A fortiori, the
state court’s decision that counsel’s performance was not
deficient is not an unreasonable application of the governing
law.
We conclude that Busby is not entitled to relief on his
ineffective assistance of counsel claim.
C. First Amendment
In his state habeas application, and again in his federal
petition, Busby claimed that the jailhouse letters were obtained
in violation of the First Amendment and therefore that the trial
court denied him his constitutional rights in admitting the
letters into evidence over his objection. In ruling on the First
Amendment issue, the state habeas court noted in one of its
findings of fact that Busby failed to raise the issue on direct
appeal, and it stated in one of its conclusions of law that Busby
19
was therefore “procedurally barred from raising it by writ of
habeas corpus.” The state urges us to dispose of Busby’s First
Amendment claim on the ground that it has been procedurally
defaulted in the state courts. We therefore first address this
threshold issue.
1. Procedural default
The general rule is that the federal habeas court will not
consider a claim that the last state court rejected on the basis
of an adequate and independent state procedural ground. Coleman
v. Thompson, 501 U.S. 722, 729-32 (1991); Fisher v. Texas, 169
F.3d 295, 300 (5th Cir. 1999). In this case, the state habeas
court expressly stated that Busby’s claim was procedurally barred
because he did not raise it on direct appeal. The court then
went on to make several further conclusions of law to the effect
that the claim was substantively meritless. That the court
reached these additional conclusions does not undermine the
explicit invocation of the procedural bar. See Harris v. Reed,
489 U.S. 255, 264 n.10 (1989); Fisher, 169 F.3d at 300 (“A state
court expressly and unambiguously bases its denial of relief on a
state procedural default even if it alternatively reaches the
merits of a defendant’s claim.”).
The general rule that we will not consider claims that were
ruled procedurally barred in the state courts is subject to a
number of limitations. A procedural default will be excused, for
instance, if “the prisoner can demonstrate cause for the default
20
and actual prejudice as a result of the alleged violation of
federal law” or if the default would work “a fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750; see also
Haley v. Cockrell, 306 F.3d 257, 263 (5th Cir. 2002).
Ineffective assistance of counsel is sufficient “cause” for a
procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986).
As we have already seen, Busby does in fact argue that his
counsel in his direct appeal was constitutionally ineffective for
failing to pursue the issue regarding the letters. We rejected
that contention above, and so this method of excusing a default
is unavailable.9
To produce a federally cognizable default, the state
procedural rule “must have been ‘firmly established and regularly
followed’ by the time as of which it is to be applied.” Ford v.
Georgia, 498 U.S. 411, 424 (1991); see also Stokes v. Anderson,
9
Busby also argues that there was cause for any default
because his First Amendment claim is novel. “[W]here a
constitutional claim is so novel that its legal basis is not
reasonably available to counsel, a defendant has cause for his
failure to raise the claim in accordance with applicable state
procedures.” Reed v. Ross, 468 U.S. 1, 16 (1984). But Busby’s
First Amendment claim, while admittedly unusual, is not “novel”
in the requisite sense; that is, its legal building blocks were
not unavailable to counsel at the time of the direct appeal. On
the contrary, Busby’s First Amendment argument relies on decades-
old Supreme Court cases, as will appear below. The “novelty”
argument for excusing a procedural default is not available in
such circumstances. See id. at 19-20 (citing Engle v. Isaac, 456
U.S. 107, 131-32 (1982)); Landry v. Lynaugh, 844 F.2d 1117, 1120
(5th Cir. 1988) (rejecting novelty as an excuse for default when
the habeas petitioner relied on constitutional standards “that
were already in place at the time of his trial”).
21
123 F.3d 858, 860 (5th Cir. 1997). In this case, the district
court found that the state procedural rule——that record-based
claims not raised on direct appeal will not be considered in
habeas proceedings——was not yet regularly applied at the relevant
time. For the district court, the relevant time was apparently
April 1998, when Busby filed his brief in his direct appeal.
According to the state, the state procedural rule relied
upon herein was firmly established by the Texas courts in the
case of Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App.
1996, clarified on reh’g Feb. 4, 1998). See Rojas v. State, 981
S.W.2d 690, 691 (Tex. Crim. App. 1998) (Baird, J., concurring)
(“In my opinion, based on Gardner, the Court now bars every
record claim not raised on direct appeal as procedurally
defaulted.”). Although Gardner was originally issued in 1996, it
is the opinion on rehearing, issued in February 1998, that
purportedly firmly entrenched the procedural rule upon which the
state relies.10 In March 2000, we issued a decision in which we
held, though with little comment, that the Gardner rule set forth
an adequate state ground capable of barring federal habeas
review. See Soria v. Johnson, 207 F.3d 232, 249 (5th Cir. 2000);
10
Gardner called the rule “well-settled” and cited
previous cases that had invoked it. 959 S.W.2d at 199. Other
pre-Gardner cases of fairly recent vintage did not invoke the
rule, however. See, e.g., Ex parte Goodman, 816 S.W.2d 383, 385
(Tex. Crim. App. 1991). Since the state does not contend that
the rule was regularly followed before Gardner, we need not look
into the pre-Gardner history of the rule.
22
see also Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001)
(likewise invoking Gardner). The state habeas court, which
invoked the bar, rendered its decision in April 2000.
Although the state procedural rule was apparently firmly
established and regularly followed by the time the state habeas
court invoked it to bar Busby’s new claims in April 2000, the
district court evidently believed that the legally relevant time
period came earlier, namely in the months leading up to April
1998, when Busby’s attorney was completing and filing Busby’s
brief in the direct appeal. Moreover, although the opinion on
rehearing in Gardner was issued in February 1998, shortly before
Busby’s main brief in his direct appeal was filed, the district
court did not think that the rule was sufficiently entrenched
until Judge Baird’s concurring opinion in Rojas, issued in
December 1998. Since the district court decided that the rule
was not being consistently applied when Busby’s appellate counsel
was preparing and filing his briefs, the court concluded that it
would be unfair to invoke the procedural default.
As stated above, a state procedural rule “must have been
‘firmly established and regularly followed’ by the time as of
which it is to be applied.” Ford, 498 U.S. at 424. This court
has not yet decided whether the relevant date for application of
the Gardner rule is the time at which the state habeas court
imposes the bar (here, April 2000) or instead the time at which
the litigant engages in the conduct that produces the bar (here,
23
April 1998 and perhaps a few months before). We have held, in
the related context of the Texas abuse of the writ doctrine, that
the controlling date for purposes of that procedural bar is the
date on which the state court dismisses the application as an
abuse of the writ, not the date on which the prior application
(which triggers the doctrine) is filed. See Barrientes v.
Johnson, 221 F.3d 741, 759-61 (5th Cir. 2000). But when faced
with the same question that is before us today——i.e., the
triggering date for a state procedural rule that bars state
habeas review of claims that could have been raised on direct
appeal——the Ninth Circuit has squarely held that the relevant
time is the date of the direct appeal, which is when the claims
should have been raised. See Fields v. Calderon, 125 F.3d 757,
760-61 (9th Cir. 1997). The court reasoned that “the procedural
default, though announced by the [state court] when the habeas
petition is denied, technically occurs at the moment the direct
appeal did not include those claims that should have been
included for review.” Id. at 761. The court stated, moreover,
that using the date of the direct appeal as the trigger date
served the purpose of ensuring that counsel in the direct appeal
had notice that failure to raise an issue would forfeit it. Id.
Although the question of procedural default “should
ordinarily be considered first,” we need not do so “invariably,”
especially when it turns on difficult questions of state law.
Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997); see also
24
Glover v. Hargett, 56 F.3d 682, 684 (5th Cir. 1995). In order to
determine whether Busby’s claim is procedurally defaulted, we
would have to decide (1) when precisely the state procedural rule
became firmly entrenched and (2) when the rule was triggered. In
this case, we believe that Busby’s First Amendment claim can be
resolved more easily by looking past any procedural default.
Accordingly, we shall assume that the claim is not defaulted.
2. Whether Busby is entitled to relief
There is some confusion over the precise nature of Busby’s
First Amendment claim.11 The district court’s decision granting
the COA described the issue as “[w]hether the trial court’s
denying [Busby’s] motion to suppress the letters violated his
rights under the First Amendment.” It may be that the district
court was merely making a shorthand reference to the somewhat
longer version of the claim set forth in Busby’s petition.
Busby’s habeas petition and his brief here both cast the claim as
whether Busby was denied his fundamental due process, due course
11
In part, this is because Busby’s claim would more
naturally be thought of as essentially involving a violation of
the Fourth Amendment’s exclusionary rule, applicable against the
states under Mapp v. Ohio, 367 U.S. 643 (1961). Indeed, Busby’s
habeas petition filed in the district court asserted not only the
First Amendment claim at issue here but also, inter alia, a claim
that the letters should have been excluded because they were
obtained in violation of the Fourth Amendment’s limitations on
search and seizure. The district court properly denied this
claim under the rule of Stone v. Powell, 428 U.S. 465 (1976). As
we will note later, the state contends that Busby’s First
Amendment claim is really no more than a Fourth Amendment claim
in disguise and should likewise be barred under Stone.
25
of law, and fair trial rights under the Fourteenth Amendment when
the trial court admitted into evidence, over his objection,
copies of personal letters obtained in violation of the First
Amendment. That is, as Busby describes it, the claim essentially
involves a Fourteenth Amendment due process violation predicated
upon the use of evidence obtained in violation of the First
Amendment.
Whatever the precise manner of phrasing the claim, its
necessary predicate is that the jailers’ actions somehow violated
the First Amendment. This court has addressed this issue before.
In Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978), Texas
inmates brought a comprehensive challenge to the state
correctional system’s policies regarding inmates’ mail
privileges. We recognized that inmates’ correspondence with the
media and with attorneys carried special constitutional weight;
we therefore held that inmates’ letters to reporters and
attorneys should be mailed out without being opened and read by
prison officials and that inmates should have a right to be
present when incoming mail from such persons was opened and
inspected for contraband. Id. at 758-59.12 But we found that
inmates’ other correspondence could properly be subjected to much
greater control. In particular, we decided that legitimate
12
Our more recent cases have responded to subsequent
Supreme Court decisions by overruling some of Guajardo’s
protections. See Brewer v. Wilkinson, 3 F.3d 816, 824-25 (5th
Cir. 1993).
26
penological concerns regarding security, order, and
rehabilitation permitted prison officials to read all incoming
and outgoing general correspondence. Id. at 755 n.4, 756-57.
The Cherokee County Jail’s mail policies, as gleaned from the
policy manual introduced in evidence at Busby’s trial, track
quite closely the rules laid out in Guajardo. The state habeas
court’s findings of fact and conclusions of law stated that the
jailers’ actions served a valid penological purpose and complied
with state regulations.13
Given that jail officials could legitimately read Busby’s
mail, we do not think that the First Amendment would bar them
from turning letters over to the prosecutors if the jailers
happened to find valuable evidence during their routine
monitoring. See Gassler v. Wood, 14 F.3d 406, 408-10 (8th Cir.
1994). What has happened here is essentially that agents of the
state “overheard” a damaging admission during the course of their
duties. Whatever other legal challenges may exist regarding the
13
We can assume that the prisoners in Guajardo were aware
that their mail was being read, but Busby’s assertion that he was
never explicitly told about this practice does not lead to a
different result. (The inmate handbook given to Busby did advise
him that non-privileged mail should be turned over to jailers
unsealed.) The principal harm in reading inmates’ outgoing mail,
from the point of view of the First Amendment, is presumably that
it chills inmates’ speech and impairs their ability to convey
their true thoughts to outsiders. See Procunier v. Martinez, 416
U.S. 396, 423 (1974) (Marshall, J., concurring). If Busby were
truly unaware that jailers were reading his mail, that might
strengthen claims rooted in the Fourth Amendment or Miranda, but
it would weaken Busby’s First Amendment claim.
27
jailers informing investigators of what they learned, we do not
see how the First Amendment would prevent them from passing that
information along. The state officials are not punishing Busby
for his speech, and while it is true that his speech had damaging
consequences, that is true of all admissions and confessions.
Even if we were able to reach a different result on the
merits of the First Amendment question, the more important point
in a habeas case governed by AEDPA is that we may not grant
relief unless the state’s adjudication of Busby’s claim “resulted
in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
In this case, the state habeas court concluded that the jail’s
policy of reading outgoing non-privileged correspondence served
valid penological purposes and that “the reading and copying of a
county jail inmate’s outgoing non-privileged mail does not
violate the First and Fourteenth Amendments to the United States
Constitution.”14
14
That the state habeas court also invoked a procedural
bar as an alternative basis to deny relief does not deprive the
state of the benefit of AEDPA’s deferential standard. Based on
the state court record, it is clear that the state courts have
rejected the substance of Busby’s claim; the rejection of his
First Amendment claim is therefore “an adjudication on the
merits” within the meaning of § 2254(d). See Mercadel v. Cain,
179 F.3d 271, 274 (5th Cir. 1999); see also Johnson v. McKune,
288 F.3d 1187, 1192 (10th Cir. 2002).
28
The state’s determination is not contrary to or an
unreasonable application of Supreme Court precedent. The Supreme
Court has never held that reading inmate mail violates the First
Amendment. The primary case relied upon by Busby is Procunier v.
Martinez, 416 U.S. 396 (1974), a § 1983 case involving First
Amendment limitations on censorship of inmate mail. The Martinez
Court held that jailers could censor (i.e., redact or reject) an
inmate’s outgoing and incoming mail only if the jail policies
furthered a substantial governmental interest and limited First
Amendment freedoms no more than necessary to protect that
governmental interest. Id. at 413. Later Supreme Court cases
have given authorities greater leeway in restricting inmates’
rights regarding mail, and Martinez has been overruled at least
in part. See Brewer, 3 F.3d at 822-25 (tracing the impact of
Wolff v. McDonnell, 418 U.S. 539 (1974), Turner v. Safley, 482
U.S. 78 (1987), and Thornburgh v. Abbott, 490 U.S. 401 (1989)).
Even without those later cases, Martinez on its own terms does
not hold that reading an inmate’s mail violates the First
Amendment. As the Court observed in a case decided shortly after
Martinez, “freedom from censorship is not equivalent to freedom
from inspection or perusal.” McDonnell, 418 U.S. at 576.15
15
The McDonnell Court concluded that a policy whereby
prison officials could open mail from the inmate’s attorney in
the inmate’s presence passed constitutional muster. 418 U.S. at
577. This court has subsequently determined that opening and
inspecting an inmate’s incoming legal mail outside of his
presence does not violate the Constitution. See Brewer, 3 F.3d
29
Highlighting the contrast, Justice Marshall’s concurring opinion
in Martinez noted that the Court had reserved the issue of the
First Amendment implications of reading inmate mail; he would
have gone further and held that prison officials do not have a
general right to open and read inmate mail. 396 U.S. at 422
(Marshall, J., concurring). Indeed, as one of our sister
circuits has stated, Martinez’s holding that certain types of
mail can be censored implies that mail can be read. Altizer v.
Deeds, 191 F.3d 540, 548 (4th Cir. 1999) (“Otherwise, a prison
official would never know that a letter contained the very type
of material that, according to the Supreme Court, could
rightfully be censored . . . .”). Finally, the only Supreme
Court case that actually addresses the evidentiary use of
inculpatory jailhouse letters is Stroud, which, while not
addressing the First Amendment, found that there was no violation
of the Fourth or Fifth Amendments in such a situation. 251 U.S.
at 21-22. The state court’s decision is thus not contrary to
Supreme Court precedent, nor does it apply the governing law to
the facts of this case unreasonably.
Even if the jailers’ actions were improper under the First
Amendment, Busby would still need to explain why items so
obtained must be suppressed. The state argues that such a “First
Amendment exclusionary rule” would be a new rule of criminal
at 825.
30
procedure, which we may not announce on habeas review. See
Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion).
Additionally, the state contends that Busby’s argument——though
nominally invoking the First Amendment——is at bottom essentially
a Fourth Amendment claim in that it seeks the exclusion of
improperly obtained evidence. Although Busby’s complaint about
the letters is probably strongest as a Fourth Amendment argument,
such claims are of course not cognizable in federal habeas corpus
proceedings. See Stone v. Powell, 428 U.S. 465, 494-95 (1976).
Given our conclusion above, we need not address these arguments
further.
D. Pretrial Publicity
Busby’s habeas petition also claims that media coverage of
his case poisoned the atmosphere, depriving him of the right to
an impartial jury and due process of law.
The district court concluded that this claim had not been
exhausted in the state courts. Rather than dismissing the
petition, as is generally required under Rose v. Lundy, 455 U.S.
509 (1982), the district court recognized that it has the
authority to retain jurisdiction and instead deny the claim on
the merits, which it did. See 28 U.S.C. § 2254(b)(2) (2000);
Mercadel, 179 F.3d at 276.
Habeas petitioners must exhaust state remedies by pursuing
their claims through one complete cycle of either state direct
31
appeal or post-conviction collateral proceedings. See Orman v.
Cain, 228 F.3d 616, 620 & n.6 (5th Cir. 2000); Bledsue v.
Johnson, 188 F.3d 250, 254 n.8 (5th Cir. 1999). The exhaustion
requirement means that a habeas petitioner “must fairly present
the substance of his claim to the state courts.” Finley, 243
F.3d at 219 (citing Picard v. Connor, 404 U.S. 270, 275-76
(1971)).
Before trial, Busby moved for a change of venue. His motion
was supported by affidavits from two people who stated that Busby
could not receive a fair trial in Cherokee County. The state
opposed the motion with two affidavits that controverted Busby’s.
Busby’s legal arguments in support of the motion focused largely
on the technical requirements of the state statute providing for
changes of venue, but Busby also invoked Sixth Amendment fair
trial rights and Fourteenth Amendment due process considerations
when the motion was orally argued to the trial judge. On direct
appeal, Busby did not raise the federal constitutional claim he
is now raising in his federal habeas petition. He instead
argued, in his third point of error, that the trial court should
have granted his motion to change venue as a matter of law under
the state statute because the state’s affidavits were (Busby
argued) legally insufficient to controvert his supporting
affidavits. In his fourth point of error, he did raise federal
and state constitutional challenges to the trial court’s denial
of the motion, but the legal arguments were very different from
32
those asserted here. The argument of the fourth point of error
was that the trial court violated due process and equal
protection by permitting the state to controvert Busby’s
affidavits with affidavits that were patently not credible. That
is, the challenge went to the constitutionality of the court’s
recognition of the state’s controverting affidavits, not to the
merits of the underlying motion or to the pretrial atmosphere
itself. The brief accordingly did not cite any of the evidence
of prejudicial media coverage developed in the hearing in the
trial court. Therefore, since Busby’s claim here involves a
wholly different legal claim, and a factual basis not argued to
the state appellate court, he did not fairly present the
substance of his claims to the state courts as generally required
under the exhaustion doctrine. Nor did Busby raise his pretrial
publicity claim in his state habeas case.16
Nonetheless, a habeas petitioner who has failed to properly
present his federal constitutional claims to the state courts can
still be considered to have exhausted his state remedies if the
state courts are no longer open to his claim because of a
16
At oral argument in this court, Busby’s counsel
conceded that the venue-related claims raised in the state courts
differed from the claim being raised here. He stated that he
would prefer to abandon this claim rather than have the habeas
petition dismissed as partially unexhausted. As we explain in
the next paragraphs in the text, the claim is technically
exhausted because the state courts are no longer available to
Busby; the failure to raise the claim in the state courts is thus
a basis for holding the claim procedurally defaulted, as the
state urges.
33
procedural bar. “A habeas petitioner who has defaulted his
federal claims in state court meets the technical requirements
for exhaustion; there are no state remedies any longer
‘available’ to him.” Coleman, 501 U.S. at 732. However, the
same procedural bar that satisfies the exhaustion requirement at
the same time provides an adequate and independent state
procedural ground to support the state judgment “and thus
prevents federal habeas corpus review of the defaulted claim,
unless the petitioner can demonstrate cause and prejudice for the
default.” Gray v. Netherland, 518 U.S. 152, 162 (1996); see also
Coleman, 501 U.S. at 735 n.*.
The state asserts that if Busby tried to return to the state
courts to present his claim in a habeas application, his
application would be dismissed as an abuse of the writ. This
court has previously held that the Texas abuse of the writ
doctrine is an adequate ground for considering a claim
procedurally defaulted. Nobles v. Johnson, 127 F.3d 409, 422-23
(5th Cir. 1997); Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.
1995). As the doctrine is currently codified for capital cases,
it provides as follows:
If a subsequent application for a writ of habeas
corpus is filed after filing an initial application, a
court may not consider the merits of or grant relief
based on the subsequent application unless the
application contains sufficient specific facts
establishing that:
(1) the current claims and issues have not been and
could not have been presented previously in a timely
34
initial application or in a previously considered
application [for habeas relief] because the factual or
legal basis for the claim was unavailable on the date the
applicant filed the previous application;
(2) by a preponderance of the evidence, but for a
violation of the United States Constitution no rational
juror could have found the applicant guilty beyond a
reasonable doubt; or
(3) by clear and convincing evidence, but for a
violation of the United States Constitution no rational
juror would have answered in the state’s favor one or
more of the special issues that were submitted to the
jury in the [penalty phase of the trial].
TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5(a) (Vernon Supp. 2004).
There is no indication that the factual or legal basis for
Busby’s claim was previously unavailable, as required under
paragraph (1). On the contrary, the issue was raised at Busby’s
trial. Nor can Busby show that he could satisfy the tests in
paragraphs (2) and (3). Given the strong evidence of both guilt
and future dangerousness, rational jurors who were totally
unaffected by pretrial publicity certainly could have found Busby
guilty and answered the special issues as they did. When the
result of filing a second habeas application in the state courts
is so clear, it is appropriate to consider the petitioner’s claim
barred rather than first requiring the state court to deny a
successive writ. See Teague, 489 U.S. at 297-98; Horsley v.
Johnson, 197 F.3d 134, 136-37 (5th Cir. 1999); Nobles, 127 F.3d
at 422-23.
When a habeas petitioner’s claims are procedurally
defaulted, we may excuse the default only if the petitioner shows
35
cause for the default and prejudice resulting therefrom, or if
the default would work a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750; Finley, 243 F.3d at 220. Busby has not
attempted to establish any cause for the default, nor does he
assert the miscarriage of justice exception, such as by claiming
that he is innocent. We are therefore unable to grant relief as
Busby’s claim is defaulted.
Moreover, if we were to reach the merits, we would find that
Busby’s claim fails. Busby does not attempt to show that the
particular jurors selected for service in his case were biased
against him, as one usually must do. See Mayola v. Alabama, 623
F.2d 992, 996 (5th Cir. 1980). His argument, and the evidence
adduced at the pretrial hearing, instead refers to the general
environment in Cherokee County. That is, he would have us
presume that the jury was prejudiced against him by virtue of the
press coverage described earlier in this opinion. The Supreme
Court addressed a similar argument in Dobbert v. Florida, 432
U.S. 282, 303 (1977), where it said the following:
Petitioner’s argument that the extensive coverage by
the media denied him a fair trial rests almost entirely
upon the quantum of publicity which the events received.
He has directed us to no specific portions of the record,
in particular the voir dire examination of the jurors,
which would require a finding of constitutional
unfairness as to the method of jury selection or as to
the character of the jurors actually selected. But under
[Murphy v. Florida, 421 U.S. 794 (1975)], extensive
knowledge in the community of either the crimes or the
putative criminal is not sufficient by itself to render
a trial constitutionally unfair. Petitioner in this case
has simply shown that the community was made well aware
36
of the charges against him and asks us on that basis to
presume unfairness of constitutional magnitude at his
trial. This we will not do in the absence of a “trial
atmosphere . . . utterly corrupted by press coverage,”
Murphy[, 421 U.S. at 798].
The leading case in which the Supreme Court found that a
change of venue was necessary without any showing as to the
jurors’ biases is Rideau v. Louisiana, 373 U.S. 723 (1963).
There, a local television station broadcast on three straight
days a twenty-minute film of the defendant’s jailhouse
interrogation, in which he admitted in detail to the bank
robbery, kidnapping, and murder with which he was charged. The
parish had a population of 150,000, and the three broadcasts were
seen by 24,000, 53,000, and 29,000 of the parish’s residents,
respectively. Id. at 724.17 Under those circumstances, the
Court reversed the conviction “without pausing to examine a
particularized transcript of the voir dire examination of the
members of the jury.” Id. at 727.
As should be clear from the lengthy quotation from Dobbert
set out above, Rideau’s rule of presumed prejudice is applicable
only in the most unusual cases. “[T]he Rideau principle of
presumptive prejudice is only rarely applicable and is confined
to those instances where the petitioner can demonstrate an
extreme situation of inflammatory pretrial publicity that
17
As the dissent in Rideau pointed out, it was unclear to
what extent the viewership on these three occasions overlapped.
373 U.S. at 731-32 (Clark, J., dissenting).
37
literally saturated the community in which his trial was held.”
Mayola, 623 F.2d at 997 (citations and internal quotation marks
omitted). Busby’s case does not satisfy that standard. Though
Cherokee County is small, with a population of around 42,000
according to the record, it was not saturated with inflammatory
coverage. The Jacksonville Daily Progress, which ran at least a
dozen articles on the case, had a paid circulation of
approximately 5,500; the local weekly paper, which gave the case
much less prominent coverage, had a circulation of around 3,500.
The two local papers’ coverage of the killings was “largely
factual in nature,” Murphy, 421 U.S. at 802, tracing developments
in the case rather than engaging in sensationalism.18 It is also
relevant that the coverage of the case, heaviest right after the
killings, tailed off markedly in the months preceding trial.
Most of the articles admitted into evidence were from April and
early May 1995. Only three appeared after July 1995. Voir dire
did not begin until May 1996 and the opening statements were not
18
This characterization is true even of the article that
mentioned an allegation that Busby was a Satanist. The article,
which ran in the Daily Progress on May 3, 1995, under the
headline “Defense enters appeal for evidence,” ticked off a list
of revelations from a pretrial hearing at which Kelley identified
Busby as the shooter. The list included a sentence that referred
to “[t]he allegation the defendant was a Satanic worshiper.”
Later in the story, the reader finds a sentence reporting that
Kelley testified at the hearing that three days before the
shootings Busby said that he had sold his soul to the devil.
These types of allegations certainly present a great potential
for prejudice, but here the allegation simply was not given the
prominent, recurring attention that could irretrievably poison
the jury pool.
38
heard until July 1996. Cf. id. at 802-03 (holding that pretrial
publicity did not prejudice the defendant and observing that most
of the newspaper articles at issue were run seven months before
the jury was selected).
The testimony at the hearing on the change of venue motion
confirms that the atmosphere in Cherokee County was not “utterly
corrupted” by unfavorable publicity. While several of the
defense’s witnesses said that the case had been a major topic of
conversation and opined that Busby could not get a fair trial in
Cherokee County, the state showed on cross-examination that some
of these witnesses had connections to Busby’s family. Most of
the witnesses who testified at the trial, including most of those
called by the defense, said that the case had not provoked a
great deal of discussion in the community, at least not since the
period immediately following the killings. Several witnesses
testified that they did not read the Daily Progress but instead
read newspapers from Tyler or Lufkin, which newspapers were
apparently more popular than the Daily Progress in parts of
Cherokee County. In sum, we do not believe that the atmosphere
was so biased against Busby that we can presume that voir dire
would be incapable of producing a proper jury. As we have
already said, there is no contention here that the actual jurors
selected for the case were biased.
III. CONCLUSION
39
For the foregoing reasons, the district court’s judgment
denying habeas relief is AFFIRMED.
40