IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-2747
_____________________
ROBERT NELSON DREW,
Petitioner,
v.
JAMES A. COLLINS, Director, Texas
Department of Criminal Justice,
Institutional Division,
Respondent.
_________________________________________________________________
On Application for a Certificate of
Probable Cause and Stay of Execution
_________________________________________________________________
(October 11, 1993)
Before KING, HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:
Robert Nelson Drew (Drew), currently confined on death row
in the Texas Department of Criminal Justice, Institutional
Division, instituted his second federal habeas corpus petition in
the United States District Court for the Southern District of
Texas on October 4, 1993, pursuant to 28 U.S.C. § 2254. He
requested that the district court stay his execution, order an
evidentiary hearing, and issue a writ of habeas corpus vacating
his death sentence. He is scheduled for execution on October 14,
1993. On October 7, 1993, the district court denied Drew all
relief and denied Drew a certificate of probable cause (CPC).
Drew appeals to this court for a CPC and for a stay of execution.
Because we find that there has been no substantial showing of the
denial of a federal right, we deny his application for a CPC.
Furthermore, because Drew does not demonstrate substantial
grounds upon which relief might be granted, we deny his motion
for a stay of execution.
I. BACKGROUND
Because the background facts of this case are set out in
full in our earlier opinion, Drew v. Collins, 964 F.2d 411, 413-
15 (5th Cir. 1992), cert. denied, 113 S. Ct. 3044 (1993), only a
brief recitation of the pertinent facts will be presented here.
On December 3, 1983, Drew was convicted in Texas state court of
capital murder and received a death sentence. His conviction and
sentence were affirmed by the Texas Court of Criminal Appeals on
September 30, 1987. Drew v. State, 743 S.W.2d 207 (Tex. Crim.
App. 1987).
The state trial court originally set Drew's execution date
for May 4, 1988, but postponed the execution until June 16, 1988,
by order dated April 28, 1988. It should be noted that the April
28 execution order was signed by the state trial judge with a
drawing of a smiling face by his signature. Drew also filed his
first habeas petition in state court on April 28, 1988, and in
response to the State's answer he filed an amended petition on
June 8, 1988. Drew made no complaint in either petition
regarding the drawing of the smiling face on the execution order.
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The state trial court recommended denial of the writ, and the
Court of Criminal Appeals adopted the trial court's
recommendation. On the same day the Court of Criminal Appeals
denied his petition, Drew filed a notice for stay of execution
and a habeas petition in federal district court. The district
court granted the stay of execution and subsequently denied
habeas relief on February 20, 1991. The district court granted
Drew a CPC on July 31, 1991. On June 18, 1992, a panel of this
court affirmed the district court's denial of relief. Drew, 964
F.2d at 423. The Supreme Court denied Drew's petition for writ
of certiorari on June 28, 1993.
On June 15, 1993, the same state trial court that had set
Drew's original execution date set Drew's execution date for
October 14, 1993. The state judge who set the execution date did
so by letter and order, again signing each with a drawing of a
smiling face next to his signature. Drew then filed a second
application for habeas corpus and request for stay of execution
in state court, alleging that the drawing violated his First and
Eighth Amendment rights. The Texas Court of Criminal Appeals
denied the application for habeas relief by written order on
September 30, 1993. Drew then filed his petition for habeas
relief in federal district court. The State responded to the
petition and moved to dismiss for abuse of the writ.
On October 7, 1993, the district judge denied Drew's request
for relief and refused to issue a CPC. The judge granted the
State's motion to dismiss for abuse of the writ because the state
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trial judge had used the same smiling face symbol after his
signature on the 1988 execution order as that used on the instant
execution order. Thus, "the same claim was available to
Petitioner to raise in his first habeas application after the
judge signed his initial execution order." The district court
also refused to grant Drew's request for a stay of execution
because it found no substantial ground for relief in this second
habeas petition.
II. STANDARD OF REVIEW
We will grant a CPC to appeal only if the applicant can make
a substantial showing of the denial of a federal right. Barefoot
v. Estelle, 463 U.S. 880, 893 (1983). This standard does not
require petitioner to show that he would prevail on the merits,
but does require him to show the issues presented are debatable
among jurists of reason. Id. at 893 n.4. If the district judge
denies the CPC, as in the instant case, we will review the
probable cause determination using the same "substantial showing
of the denial of a federal right" test. See Buxton v. Collins,
925 F.2d 816, 817, 819 (5th Cir.), cert. denied, 498 U.S. 1128
(1991); Celestine v. Butler, 823 F.2d 74, 76, 77 (5th Cir.),
cert. denied, 483 U.S. 1036 (1987). Essentially the same test
applies to an application for stay of execution. Delo v. Stokes,
110 S. Ct. 1880, 1881 (1990) ("A stay of execution pending
disposition of a second or successive federal habeas petition
should be granted only when there are 'substantial grounds upon
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which relief might be granted.'" (quoting Barefoot, 463 U.S. at
895)). The basic question posed in this case is whether this
second federal petition was properly dismissed as an abuse of the
writ.
III. ANALYSIS
Drew argues that the state trial judge's drawing of a
smiling face after the judge's signature on the letter and order
of execution (1) constitutes cruel and unusual punishment in
violation of the Eighth Amendment to the United States
Constitution and (2) constitutes a violation of the Establishment
Clause of the First Amendment to the United States Constitution.
We may review the merits of Drew's claims only if this second
petition does not constitute an abuse of the writ.1
Abuse of the Writ
A second or successive petition for writ of habeas corpus
may be dismissed if it fails to allege new or different grounds
for relief; further, even if new grounds are alleged, the
petition may be dismissed if the judge finds that the failure to
assert those grounds in a prior petition constituted an abuse of
the writ. Rule 9(b), Rules Governing Section 2254 Cases. The
Supreme Court addressed the standards for determining when a
1
Although, for the reasons noted, we do not address the
merits of Drew's constitutional claims, we note in passing that
not every instance of inappropriate behavior by a state actor
rises to the level of a constitutional violation.
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petitioner has abused the writ in McCleskey v. Zant, 111 S. Ct.
1454 (1991). In McCleskey, the Court held that "the same
standard used to determine whether to excuse state procedural
defaults should govern the determination of inexcusable neglect
in the abuse of the writ context," id. at 1468, i.e., a cause and
prejudice analysis. Id. at 1470.
The cause and prejudice standard applies to the abuse of the
writ inquiry in the following way. After the State raises the
issue of writ abuse, the petitioner bears the burden of showing
cause and prejudice. Id. The requirement of "cause" in the
abuse of the writ context is based on the petitioner's obligation
to conduct a reasonable and diligent investigation aimed at
including all relevant grounds for relief in his first federal
habeas petition. Id. at 1472. "If what the petitioner knows or
could discover upon reasonable investigation supports a claim for
relief in a federal habeas petition, what he does not know is
irrelevant." Id.
We applied the McCleskey analysis in the instructive case of
Jones v. Whitley, 938 F.2d 536 (5th Cir.), cert. denied, 112 S.
Ct. 8 (1991). The successive petitioner, Andrew Lee Jones,
alleged that, during his incarceration leading up to and through
his capital murder trial, the State had regularly administered
anti-psychotic and anti-depressant drugs to him. Id. at 541. He
argued that neither he nor his counsel were aware of this and
that the State's failure to disclose the evidence of the use of
psychotropic medication constituted an "objective factor" that
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interfered with his discovery of the claim. Id. We disagreed,
noting that his counsel were "at every stage of the proceedings
at least on notice of his mental problems." Id. Significantly,
we observed that "[g]iven [counsel's] background knowledge and
counsel's experience as public defenders, defense counsel knew or
with reasonable diligence could have found out that Jones was
under constant psychotropic medication at the jail." Id.
(emphasis added). There was no "external impediment" to the
discovery of the use of medication. Id. at 542 (quoting
McCleskey, 111 S. Ct. at 1472).
The instant case is similar to Jones in that there was no
external impediment to Drew's discovery of the constitutional
claims he now raises in this second petition. Indeed, the record
excerpts filed by his counsel in the course of his first federal
habeas petition contain two documents signed by the state trial
judge, each bearing the characteristic smiling face symbol. As
we have already noted, the April 28, 1988, execution order also
bore the smiling face symbol. It cannot be seriously argued that
petitioner and his counsel were not "at least on notice" of these
identical constitutional claims based on the state trial judge's
characteristic drawing on the 1988 execution order.
Drew's attempt to avoid McCleskey by challenging only the
1993 execution order cannot succeed. The smiling face drawing
now being challenged appeared on documents pertaining to Drew's
execution at least as early as 1988. His current constitutional
claims could have been discovered and raised in the exercise of
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reasonable diligence in his first federal habeas petition. Under
McCleskey, this fact alone is sufficient to bar Drew's current
petition as an abuse of the writ.
In short, Drew is unable to show that, at the time he filed
his first petition, he was not free to make the argument he
advances here.
IV.
For these reasons, Drew's second federal habeas petition
constitutes an abuse of the writ. He has failed to make a
substantial showing of the denial of a federal right. We
therefore do not reach the merits of his claims.
The request for Certificate of Probable Cause is DENIED; the
motion for stay of execution is DENIED.
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