IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 91-1354
_____________________________
CLIFTON CHARLES RUSSELL,
Petitioner-Appellant,
versus
JAMES A. COLLINS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________
(August 13, 1993)
BEFORE KING, SMITH, and WIENER, Circuit Judges.
WIENER, Circuit Judge.
In this petition for writ of habeas corpus pursuant to 28
U.S.C. §§ 2241, 2245, Petitioner-Appellant Clifton Charles Russell
appeals the district court's denial of his habeas petition. On
appeal, Russell challenges the constitutionality of his sentencing
proceeding which culminated in imposition of the death penalty.
After careful consideration of the issues raised by Russell, we
discern no reversible error and affirm.
I
FACTS AND PROCEEDINGS
Russell was convicted of the capital murder of Hubert Otha
Tobey, killed in the course of a robbery. After Russell and a
companion robbed Tobey of his money and his automobile, Russell
struck him over the head with a large piece of concrete and
inflicted numerous knife wounds as well, including one to the
jugular vein. Russell and two other men, Michael Wicker and
William Battee, Jr. subsequently were arrested outside a mall for
public intoxication. Police traced the car and connected it to
Tobey, whose body had been discovered by then. The police then
seized Battee's tennis shoes and Russell's pants, underwear, shirt,
and shoes, all of which had blood on them. The car's interior also
contained blood stains.
Russell was tried and convicted for capital murder. During
the sentencing phase of the trial, the state introduced evidence
regarding Russell's poor reputation in the community, his tendency
towards violence making him dangerous to society, and opinion
testimony suggesting that he was not a likely candidate for
rehabilitation.
In response, Russell presented five witnesses, four of whom
were members of various church organizations that opposed the death
penalty per se. In addition, Russell's mother, Jo Ann Lacy,
testified to Russell's troubled childhood and incidents of violence
against him. Specifically, she recounted an incident during which
Russell's stepfather beat him severely with a baseball bat in
response to Russell's allegations that the shooting of his mother
nine months earlier by his stepfather had not been accidental.
Russell required surgery to mend his broken facial bones. Mrs.
Lacy also testified that Russell did not meet his biological father
2
until he was seven and never had a real father figure. Finally,
she stated that Russell had suffered as a child because of his
mixed racial parentage.
Despite the testimony of Mrs. Lacy, the jury affirmatively
answered the first two special issues submitted pursuant to Texas
law: whether the defendant acted deliberately, and whether he posed
a future danger to the community. Accordingly, the judge sentenced
Russell to death. Russell's conviction and sentence were
automatically appealed to the Texas Court of Criminal Appeals,
which affirmed the conviction and sentence. Russell next pursued
his state habeas remedy, which was denied. Finally, Russell filed
a petition for writ of habeas corpus in the United States District
Court for the Northern District of Texas and received an
evidentiary hearing. Russell's proceedings were stayed, however,
pending the Supreme Court's consideration of Penry v. Lynaugh.1
This stay was eventually lifted and the magistrate judge entered
his findings, conclusions, and recommendation, followed by
supplemental findings. The district court adopted the report,
dismissing the petition and withdrawing the stay of execution.
Russell timely appealed.
II
ANALYSIS
A. Standard of Review
"In considering a federal habeas corpus petition presented by
a petitioner in state custody, federal courts must accord a
1
492 U.S. 302 (1989).
3
presumption of correctness to any state court factual findings. .
. . We review the district court's findings of fact for clear
error, but decide any issues of law de novo."2 Evaluation of a
petitioner's constitutional challenge to the Texas special issues
as applied to him is, of course, an issue of law.
B. Penry Claim
In his first challenge to the sentencing proceedings, Russell
relies on the Supreme Court's decision in Penry. In that case, the
Court ruled that the Texas special interrogatories did not allow
the jury to consider relevant mitigating evidence of mental
retardation and childhood abuse and therefore failed to give an
"individual assessment of the appropriateness of the death
penalty."3 Penry, Russell claims, dictates that the district court
erred in not granting a special instruction for his mitigating
evidence of his youth and troubled childhood.
The state insists, to the contrary, that Russell's claim must
fail because Penry clearly states that a special instruction is
required "upon request." Yet, the state urges, Russell never
sought a special instruction, and therefore he cannot now complain
of the district court's error. This argument ignores our holding
in Mayo v. Lynaugh,4 in which we explained that Penry provides
little support for the proposition that a defendant must
2
Barnard v. Collins, 958 F.2d 634, 636 (5th Cir.
1992)(citations omitted); see 28 U.S.C. § 2254(d).
3
Penry, 492 U.S. at 319.
4
893 F.2d 683 (5th Cir. 1990).
4
contemporaneously object to or request additional jury
instructions.5 "Although the Court's description of the rule
sought by Penry involved the request for jury instructions,
discussion of the important limitations to the holding left
unmentioned the role of the objections or requests for
instructions, and several statements of the holding likewise
omitted any such qualification."6
The opinion in Mayo also noted, however, that this did not
preclude the failure to object or request additional instructions
from operating as a procedural bar under state law.7 Since the
decision in Mayo, however, we have certified to the Texas Court of
Criminal Appeals the question "whether [a] petitioner['s] . . .
claim under Penry v. Lynaugh . . . is presently procedurally barred
under Texas law."8 The court answered the question in the
negative, holding that failure to object contemporaneously in pre-
Penry cases does not create a state procedural bar as the decision
in Penry "`constituted a substantial change in the law . . . and
there being abundant Texas precedent demonstrating that the holding
amounts to a right not previously recognized.'"9
5
Id. at 689.
6
Id. (citations omitted).
7
Id. at 690 (citing Fierro v. Lynaugh, 879 F.2d 1276, 1281-
82 (5th Cir. 1989)).
8
Selvage v. Collins, 897 F.2d 745, 745 (5th Cir. 1990).
9
Selvage v. Collins, 816 S.W.2d 390, 392 (Tex. Crim. App.
1991)(quoting Black v. State, 816 S.W.2d 350, 374 (Tex. Crim.
App. 1991)).
5
In any event, the state does not argue that Russell's claim is
procedurally barred under state law, but insists that it is barred
under Penry, which the state interprets erroneously as requiring
a request for instructions. Based on Mayo, we reject the
government's claim that Penry imposes a procedural bar when a pre-
Penry defendant fails to request a specialized instruction.
As Russell is not procedurally barred from asserting the
alleged error, we proceed to the merits of his Penry claim. In that
case, the Supreme Court reiterated its holding in Jurek v. Texas10
that the constitutionality of the Texas statute "turns on whether
the enumerated questions allow consideration of particularized
mitigating factors."11 Consideration of relevant mitigating
evidence is required because "`the sentence imposed at the penalty
stage should reflect a reasoned moral response to the defendant's
background, character, and crime.'"12 Therefore, the sentencer must
"make an individualized assessment of the appropriateness of the
death penalty" and treat the defendant as a "`uniquely individual
human bein[g].'"13 In making this individualized assessment, the
sentencer must consider evidence about the defendant's background
and character "`because of the belief, long held by this society,
that defendants who commit criminal acts that are attributable to
10
428 U.S. 262 (1976).
11
Id. at 272.
12
Penry, 492 U.S. at 319 (quoting California v. Brown, 479
U.S. 538, 545 (1987)(emphasis in the original)).
13
Id.
6
a disadvantaged background, or to emotional and mental problems,
may be less culpable than defendants who have no such excuse.'"14
Penry stands apart from the cases that preceded15 and followed
it16 because of its ultimate conclusion: the Texas special issues
did not give effect to petitioner's compelling evidence of mental
retardation and abused childhood that mitigated his moral
culpability for his crime. Penry did not invalidate the Texas
sentencing scheme, and subsequent Supreme Court cases have refused
to extend Penry to cover less serious mitigating evidence.17
Russell points to three types of mitigating evidence in
support of his Penry claim: (1) his youth (he was age 18 at the
time of the homicide); (2) his troubled childhood; and (3) a
beating he suffered in his late teens at the hands of his step-
father. We address each type of evidence in turn.
1. In Johnson v. Texas,18 the Supreme Court made clear that
the mitigating factor of a defendant's age is within the "effective
reach" of the second special issue. Thus, such evidence is not
14
Id.
15
Franklin v. Lynaugh, 487 U.S. 164 (1988)(plurality
opinion); Jurek, 428 U.S. at 262.
16
Graham v. Collins, 506 U.S. ___, 113 S.Ct. 892, 122 L.
Ed. 2d 260 (1993); Johnson v. Texas, 61 U.S.L.W. 4738 (U.S. June
24, 1993)(No. 92-5653); Graham v. Collins, 950 F.2d 1009 (5th
Cir. 1992)(en banc).
17
See, e.g., Johnson, 61 U.S.L.W. 4738.
18
61 U.S.L.W. 4738.
7
problematic under Penry.19
2. Russell's argument that his jury was unable to give proper
mitigating weight to evidence of his troubled childhood is barred
under the non-retroactivity doctrine announced by the Supreme Court
in Teague v. Lane.20 In Graham v. Collins,21 the Supreme Court was
presented with an essentially identical claim raised by a habeas
petitioner--a Penry-type claim based on evidence of a non-abusive
but turbulent childhood--and held that the petitioner's claim
proposed a "new rule" under Teague.22 Russell has presented no
evidence that his troubled childhood rose to the required level of
abusiveness.
3. The final type of evidence that Russell offered during the
punishment phase described a single episode of violenceSQa severe
beating in the face with a baseball bat by a stepfather who then
attempted unsuccessfully to shoot Russell. Both incidents occurred
on the same day when Russell was in his late teens.23 Russell
19
Although in Graham, 113 S. Ct. at 892, the Supreme Court
held that a habeas petitioner's Penry-type claim based on his
youth was barred under the non-retroactivity doctrine announced
by the Court in Teague v. Lane, 489 U.S. 288 (1989), the Court
has subsequently held, in a direct appeal case, in which Teague
was not applicable, that such a claim has no merit. See Johnson,
61 U.S.L.W. 4738. Thus, we see little need to invoke the Teague
doctrine when the merits of a "new rule" have been reached and
squarely rejected by the Court.
20
489 U.S. at 288.
21
113 S. Ct. at 892.
22
See Graham, 113 S. Ct. at 902; but see id. at 917, 920
n.2 (Souter, J., joined by Blackmun, Stevens & O'Connor,
dissenting).
23
The record is not clear whether Russell was 17 or 18.
8
attempts to characterize this occurrence as "child abuse" similar
to the type introduced by the capital defendant in Penry. We
disagree. Russell's beating occurred when he was in his late
teens, possibly when he was legally an adult. But child-abuse, as
it is generally understood, occurs when a juvenile is of such
tender years that a violent beatingSQor, more commonly, repeated
beatingsSQby an adult would have the tendency to affect the child's
moral capacity by predisposing him or her toward committing
violence. As the evidence here is significantly distinguishable
from that offered in Penry, the Supreme Court's holding in Penry
regarding mitigating evidence of child abuse is not implicated.
More to the point, whether evidence of the violence inflicted
on Russell by his stepfather was in the "effective reach" of jurors
under the special issues is not relevant;24 the Eighth Amendment is
not implicated in the first place. The Supreme Court has
repeatedly held that there are three basic categories of
constitutionally relevant mitigating evidence--that which is
relevant to a defendant's "background," "character," or the
"circumstances of the crime."25 Russell's evidence of the violence
inflicted by his father does not fall under any one of these three
rubrics. Russell necessarily argues that his evidence falls under
the "background" rubric. We disagree.
Under precedent in this circuit, evidence of a defendant's
background is constitutionally relevant mitigating evidence only if
24
See Graham, 113 S. Ct. at 902.
25
Penry, 492 U.S. at 328.
9
the crime committed by the defendant is in some sense
"attributable" to that background.26 While "attribution" does not
require a precise nexus between such background evidence and the
crime, at a minimum the evidence must permit a rational jury to
"infer that the crime is attributable," at least in part, to the
defendant's background.27 Albeit a close call, the evidence of the
isolated episode of violence inflicted by Russell's stepfather does
not permit such an inference. As noted, that incident did not
occur during Russell's youth and was not indicative of a pattern or
history of child abuse--at least according to the evidence offered
during the punishment phase of Russell's trial.28 Neither did
Russell offer any evidence that the act of violence left him
mentally or emotionally impaired in a manner that would permit a
rational jury to infer that this single incident somehow made
Russell more predisposed to commit a murder.29 While, as a general
proposition, a rational jury may infer that child abuse renders one
less morally culpable for a violent crime,30 the same cannot be said
26
Graham, 950 F.2d at 1033 (citing Penry, 492 U.S. at 319).
27
Barnard, 958 F.2d at 638 (quoting Graham, 950 F.2d at
1033).
28
As noted, Russell's evidence of a troubled childhood did
not include any evidence that he was physically abused. Rather,
according to the evidence offered during the punishment phase,
Russell never suffered any abuse until his late teens.
29
Cf. Barnard, 958 F.2d at 638 (holding that a single head-
beating suffered by an adult capital defendant, with no other
evidence of any adverse effects, was not constitutionally
sufficient to support a Penry claim).
30
See Penry, 492 U.S. at 322; see also Santosky v. Kramer,
455 U.S. 745, 789 (1982) (Rehnquist, J., dissenting) ("It
10
for a single episode of physical abuse inflicted upon an adult.
Thus, we reject Russell's Penry claim predicated on this evidence.
In sum, we conclude that there was no Eighth Amendment
violation in this case. First, Russell's age at the time of the
crime was cognizable under the second special issue. Second, his
Penry-type claim based on mitigating evidence troubled childhood is
barred under the Teague doctrine. Finally, evidence of a single
episode of severe violence inflicted by an adult on an adult,
without more, does not qualify as constitutionally relevant
mitigating evidence.
B. Undefined use of "deliberately"
Russell again relies on Penry to make his argument that the
state court erred by not defining the word "deliberately" in the
first special issue, which asks whether the defendant so acted.
Russell recites the Court's reasoning that,
[a]ssuming . . . that the jurors in this case understood
"deliberately" to mean something more than that Penry was
guilty of "intentionally" committing murder, those jurors
may still have been unable to give effect to Penry's
mitigating evidence in answering the first special
issue.31
This quotation from Penry, however, rests on the understanding that
the defendant had introduced mitigating evidence beyond the scope
of the special issues. In the instant case, however, we have
concluded that Russell did not present any mitigating evidence that
requires no citation of authority to assert that children who are
abused in their youth generally face extraordinary problems
developing into responsible, productive citizens.")
31
Penry, 492 U.S. at 322.
11
was outside of the scope of the first special issue. Thus, the
quoted language from Penry does not advance his claim.32
C. Exclusion of Juror
Russell next asserts that the district court erred in applying
a presumption of correctness to the state court's finding that
prospective juror Norman B. Scott was properly excluded from the
jury. The transcript of the voir dire examination of Scott,
reproduced in its entirety in Ex Parte Russell,33 demonstrates that
Scott strongly opposed the death penalty, that he "did not believe
in" the death penalty, and that he "could take the law and the
evidence, but when it come to imposing the death penalty, I don't
think I could do it."34 When asked whether there were any
circumstances under which he could assign the death penalty, he
replied possibly so if the murder victim was a small child, but he
was not certain.35
Applying the test set forth in Witherspoon v. Illinois,36 as
clarified in Adams v. Texas37 and Wainwright v. Witt,38 the Texas
Court of Criminal Appeals held that Scott had properly been
discharged for cause as his testimony indicated that "his views on
32
Barnard, 958 F.2d at 641.
33
720 S.W.2d 477, 477-81 (Tex. Crim. App. 1986).
34
Id. at 479.
35
Id. at 480-81.
36
391 U.S. 510 (1968).
37
448 U.S. 38 (1980).
38
469 U.S. 412 (1985).
12
the death penalty would have prevented or substantially impaired
[his] performance as [a] juror[] in accordance with [the]
instructions."39 The Court of Criminal Appeals' factual finding
of juror bias is entitled to a presumption of correctness under 28
U.S.C. § 2254(d), and we find no reason why this presumption should
not apply.40
D. Eighth Amendment
Russell's final assertion attacks the constitutional
sufficiency of the evidence at the guilt-innocence stage of trial.
He insists that there was no evidence to prove whether the murder
was committed by him or by his co-defendant Battee (who received a
sixty year sentence following a guilty plea), or by both of them
acting together. Absent this evidence, he insists, imposition of
the death penalty violates his due process rights and the Eighth
Amendment's proscription against cruel and unusual punishment. In
addition, he argues that the disparity between his death sentence
and Battee's sentence of sixty years for the same offense is "an
invidious discrimination" in violation of the Equal Protection
Clause and violates the Eighth Amendment as a disproportionate
sentence.
Enmund v. Florida41 construed the Eighth Amendment as
39
Ex Parte Russell, 720 S.W.2d at 484.
40
In fact, the standard expressed in Wainwright "does not
require that a juror's bias be proved with `unmistakable
clarity.'" Wainwright, 469 U.S. at 426. Rather, the
determination is one best left to the trial judge. Id. at 426.
41
458 U.S. 782 (1982).
13
prohibiting the imposition of the death penalty against "one who
neither took life, attempted to take life, nor intended to take
life."42 Thus, it is impermissible to sentence a person to death
solely on the basis of the acts of an accomplice; there must be
evidence from which a jury could determine the petitioner's
individual culpability. The state insists that the first special
instruction, which asks "whether the conduct of the defendant that
caused the death of the deceased was committed deliberately and
with the reasonable expectation that the death of the deceased or
another would result" allowed the jury to judge the evidence
submitted against Russell. The evidence submitted to the jury
included Russell's possession of the car and the presence of a
large amount of blood (compatible with the victim's) on Russell's
clothing, consistent with someone who had brutally stabbed and
beaten another. In contrast, the state notes that Battee had blood
only on his shoes. Moreover, the state emphasizes that, in
Russell's trial, it did not focus on Battee's intent to commit the
crime, but on Russell's. Thus, the state concludes, a reasonable
jury could have inferred Russell's individual culpability for the
murder; and the jury here had the opportunity to consider that
question under the first special issue. We agree.
In Jones v. Thigpen,43 we remanded for resentencing a case in
which the only evidence was involvement in the robbery and blood
splattered shoes. In the instant case, however, there are two
42
Id. at 786.
43
741 F.2d 805 (5th Cir. 1984)
14
important distinctions. First, the jury was properly instructed to
consider the individual culpability of the defendant sentenced to
death.44 Second, the evidenceSQparticularly the fact that Russell's
clothes (including his underwear) were soaked with bloodSQis very
probative, as it is consistent with his inflicting the knife wounds
himself. Consequently, we agree with the state's argument that the
jury had the opportunity to consider Russell's individual
involvement in the crime and, based on the evidence, reasonably
could have determined his guilt.
Finally, we address Russell's claims involving the disparity
of sentences, which are especially common when one defendant pleads
guilty pursuant to a plea bargain and another defendant is tried by
jury. It is well established that a prosecutor has discretion to
enter into plea bargains with some defendants and not with others.
Absent a showing of vindictiveness or use of an arbitrary
standardSQneither of which Russell demonstratesSQthe prosecutor's
decision is not subject to constitutional scrutiny.45
III
CONCLUSION
In this petition for a writ of habeas corpus, Russell
challenges the imposition of the death penalty without a Penry-type
44
See Skillern v. Estelle, 720 F.2d 839, 847-48 (5th Cir.
1983)(finding the same jury instruction cured an Enmund defect.).
45
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
15
instruction. As he fails to demonstrate mitigating evidence
outside the scope of the special issues, he does not qualify for
the additional instruction. Consequently, his second claimSQthat
the absence of a jury instruction defining the word "deliberately"
in the first special issue precluded the jury from considering his
mitigating evidenceSQmust also fail. We reject Russell's challenge
to the exclusion of a potential juror on voir dire for his views on
the death penalty. Affording a presumption of correctness to the
state court's finding that this exclusion was correct, we discern
no reason why this presumption should not preclude Russell's claim.
Finally, we hold that the jury properly considered Russell's own
individual culpability for the murder, permissibly inferring his
guilt from the evidence presented, and we reject his claim that the
disparity in the sentences imposed on him and on his accomplice
violated the Due Process Clause, the Equal Protection Clause, or
the Eighth Amendment.
For the foregoing reasons, the decision of the district court
in refusing to grant the writ of habeas corpus is
AFFIRMED.
16