UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 93-8499
_______________________
WALTER KEY WILLIAMS,
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 Western District of Texas
_________________________________________________________________
(March 7, 1994)
Before DAVIS, JONES, and DUHÉ, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant Walter Williams was convicted of capital
murder in Bexar County, Texas and sentenced to death. The Texas
Court of Criminal Appeals affirmed his conviction. See Williams
v. State, 668 S.W.2d 692 (Tex. Crim. App. 1983), cert. denied,
466 U.S. 954 (1984). In 1986, Williams filed an application for
federal habeas relief. Williams's case was initially referred by
the district court to Magistrate Judge Jamie Boyd. Because of
Boyd's impending retirement from the bench, the case was
subsequently referred to Magistrate Judge Robert O'Connor.
Magistrate Judge O'Connor recommended denying relief; his
recommendations were adopted by order of then-District Judge
Emilio Garza. Williams filed a motion to alter or amend judgment
based upon then-recent decisions by the Supreme Court and the
Fifth Circuit which mandated a re-examination of the district
court's decision. Upon reconsideration, both the magistrate
judge and District Judge Edward Prado adhered to the earlier
decision, and a certificate of probable cause was issued.
Williams now appeals.
I. BACKGROUND
On the evening of February 9, 1981, Appellant Walter
Williams and a friend, Theodore Edwards, went to the home of
Williams's parents, where Williams was living at the time. While
there, the two men took a .38 revolver belonging to Williams's
mother and walked to a nearby gas station. Williams stayed in
the parking lot as Edwards proceeded to the store service window,
shot twice at the gas station attendant and killed him, reached
through the window, and took the money. After Edwards and
Williams left the scene, they split the money. At approximately
9:00 p.m. that same evening, the police responded to a call
reporting a robbery in progress. Upon their arrival at the gas
station, the police discovered the body of the clerk.
Later that same night, Williams and Edwards went for a
car ride. While driving around, the two men discussed the fact
that they were both short of cash, so they decided to rob a
nearby Circle K convenience store at which Williams had
previously worked. When they arrived at the Circle K, Williams
2
placed the revolver in the waistband of his trousers and entered
the store with Edwards. Williams knew Danny Liepold, the clerk
who was working that evening, because Williams had worked with
Liepold in that same store before. Williams and Edwards picked
up food items and took positions at opposite sides of the
counter. When Liepold turned his back to Williams in order to
wait on Edwards, Williams fatally shot Liepold in the back.
After Liepold fell to the floor, Edwards and Williams went behind
the counter to open the two cash registers located in the store.
Unable to open the register that he was working on, Williams ran
to the car, leaving Edwards inside the store. He yelled at
Edwards from the car that they should leave. At that point,
Williams saw someone drive by. Becoming scared, he left the
scene without Edwards. Williams went home and went to bed. He
had been asleep for a half hour before he was awakened by the
police.
At approximately 2:00 a.m. on February 10, 1981,
Roberto Gutierrez, a friend of Danny Liepold and fellow employee
of the Circle K who worked at a different location, drove to the
store to talk to Danny. After Gutierrez had visited with Danny
at the Circle K, he left to run a quick errand, planning to
return shortly. Upon returning approximately 20 minutes later,
Gutierrez noticed a car suspiciously parked parallel to the front
of the store and two men standing inside the store trying to open
the cash registers. Gutierrez recognized one of the men as
Walter, an employee of the store. Concerned for Danny, whom he
3
did not see, Gutierrez slowly drove by the store once and turned
around to look into the store a second time. Upon driving by the
second time, he noticed that one of the men was in the car
pulling away, leaving behind the other man who was walking toward
the car. Gutierrez followed the car for about 20 minutes and
managed to get a description and take down its license plate
number.
As Police Officer Thomas Estrada drove toward the
Circle K at approximately 2:30 a.m. to make a routine check, he
noticed a man walking away from the store. Unable to see the
clerk inside the store, Officer Estrada parked his car and
entered the store. He discovered Liepold lying beneath the
counter in a pool of blood. Estrada immediately notified the
dispatcher and described the man he had seen walking away just
moments before. Gutierrez then returned to the store with a
description of the car and its license plate number. Gutierrez
told the police that he saw two men and recognized one of the men
as an attendant named Walter who worked at that store on
weekends.
Shortly thereafter, Police Officer Heim arrested Ted
Edwards about a mile away. Following his arrest, Officer Estrada
and Gutierrez positively identified Edwards as the man they had
seen earlier at the store. After being advised of his rights,
Edwards denied having had anything to do with the robbery and
shooting. However, when it was discovered that he had a package
of cigarettes which, based on the stamp on the bottom of the
4
package, came from that Circle K, Edwards admitted his
involvement in the shooting and robbery.
Officer Roy Thomas arrived at the scene at
approximately 3:30 a.m. and read Edwards his rights again.
Edwards identified Williams as the other person involved in the
shooting and told Officer Thomas where Williams lived. Relying
on Edwards's directions, several officers drove to Williams's
house, where they discovered a car matching the description and
license plate number provided by Gutierrez. Lucian Williams,
Williams's father, answered the door and, after having the
situation explained to him, let the officers in to look for his
son.
As the officers entered Williams's bedroom, they saw
Williams asleep on the bed with a revolver in plain view on the
nightstand. The jury was not informed that the officers also saw
on the nightstand a birthday card given to Williams by Danny
Liepold, the man Williams had just killed. Officer Thomas woke
Williams and read him his rights. Williams was not under the
influence of drugs or alcohol at the time of his arrest. A .38
caliber copper-jacketed bullet recovered from Liepold's body was
positively identified as having been fired from the revolver
recovered from atop Williams's nightstand. An additional .38
caliber bullet was recovered from the car, parked in front of the
house, that matched the vehicle and license plate number that
Gutierrez had described.
5
Upon arrival at the police station, Williams was again
advised of his rights, and he made a written, signed voluntary
statement regarding the robbery. The following morning, Williams
asked that he be allowed to amend the written statement.
Detective Abel Juarez read him his rights for the third time, and
Williams gave a new statement, again indicating his involvement
in the robbery, but admitting, contrary to his first statement,
that it was he, not Edwards, who had shot the clerk in the Circle
K. Additionally, after being advised of his rights still one
more time, Williams told Officer Michael Akeroyd of his
involvement in the shooting at the gas station the night before.
Williams was convicted of capital murder for the robbery and
shooting at the Circle K.
II. DISCUSSION
A. Standard of Review
In reviewing requests for federal habeas corpus relief,
this court reviews the district court's findings of fact for
clear error, but reviews issues of law de novo. See Barnard v.
Collins, 958 F.2d 634, 636 (5th Cir. 1992), cert. denied, ___
U.S. ___, 113 S.Ct. 990 (1993). A finding of fact made by the
district court is clearly erroneous only when the reviewing
court, after reviewing the entire evidence, is left with the
definite and firm conviction that a mistake has been committed.
See Self v. Collins, 973 F.2d 1198, 1203 n.12 (5th Cir. 1992)
(citing Anderson v. City of Bessemer, 470 U.S. 564, 573, 105
6
S.Ct. 1504, 1511 (1985)), cert. denied, ___ U.S. ___, 113 S.Ct.
1613 (1993).
Williams complains that the federal district court
incorrectly presumed the state court factual findings to be
correct. Williams improperly relies on a footnote that appeared
in the original opinion of Spriggs v. Collins, 993 F.2d 85 (5th
Cir. 1993), and was deleted prior to publication. However, as it
was not part of the final published opinion, that footnote is of
no significance. Moreover, this court has held, in accordance
with the language of 28 U.S.C. § 2254(d) and Supreme Court
rulings, that a federal court is to accord a presumption of
correctness to findings of state court proceedings unless
particular statutory exceptions to § 2254(d) are implicated. See
Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769 (1981);
Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir. 1990). Williams has
not contended that any of the § 2254(d) exceptions are applicable
to his case, nor have we noticed any defects in the state
procedures. Consequently, the presumption of correctness was
properly invoked here.
B. Ineffective Assistance of Counsel Claim
1. Trial
Williams complains that he received ineffective
assistance of counsel in violation of the sixth amendment because
trial counsel failed (1) to prepare and investigate adequately in
preparation of his case in mitigation at the sentencing phase of
his trial, (2) to object during voir dire examination of
7
potential jurors when three venire members were stricken for
cause from the panel, (3) to request a psychiatric examination,
and (4) to object to the testimony of the victim's mother
regarding the victim's good character.
Under Strickland v. Washington, in order to establish a
sixth amendment ineffectiveness claim, Williams must demonstrate
that his counsel's performance (1) was seriously deficient and
(2) probably affected the outcome of the trial. See Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984);
King v. Puckett, 1 F.3d 280, 284-85 (5th Cir. 1993). Failure to
establish both deficient performance and prejudice defeats an
ineffectiveness claim. See Strickland, 466 U.S. at 700, 104
S.Ct. at 2071; King, 1 F.3d at 285.
This court must bear in mind that we review narrowly
professionally deficient conduct:
Judicial scrutiny of counsel's performance must be
highly deferential. . . . A fair assessment of attorney
performance requires that every effort be made to
eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time. . . . There are countless ways
to provide effective assistance in any given case.
Even the best criminal defense attorneys would not
defend a particular client in the same way.
. . .
Thus, a court deciding an actual ineffectiveness claim
must judge the reasonableness of counsel's challenged
conduct on the facts of the particular case, viewed as
of the time of counsel's conduct. . . . The court must
then determine whether, in light of all the
circumstances, the identified acts or omissions were
outside the wide range of professionally competent
assistance. . . . [T]he court should recognize that
counsel is strongly presumed to have rendered adequate
8
assistance and made all significant decisions in the
exercise of reasonable professional judgment.
Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66.
a. Lack of Preparation and
Investigation for Sentencing Phase
Williams asserts that his attorneys did not adequately
investigate and prepare for the sentencing phase of his trial
and, as a result, presented no evidence in mitigation of his
guilt of capital murder. Williams claims that trial counsel
should have put on various witnesses who could have testified to
positive aspects of Williams's character. Additionally, Williams
claims that his trial counsel "never made an independent
examination of the facts and circumstances involved." Williams's
contentions are not supported by the record.
At trial, Williams was represented by Allan Manka and
Michael Callahan, both of whom were experienced capital trial
counsel and both of whom testified at the state habeas
proceeding. Manka and Callahan were sensitive to the fact that
the state had an extremely strong case against Williams.
Consequently, after his indictment, both Manka and Callahan
encouraged Williams to accept the state's plea bargain, which he
refused to do.1 After interviewing Williams and family members
at length, counsel decided not to pursue defenses based upon
alibi, insanity, or self-defense because their investigation
provided no reasonable basis for doing so. They made a strategic
1
The state offered to drop all charges against Williams for the gas
station murder and give Williams a life sentence in exchange for a guilty plea
for the Circle K murder.
9
decision to direct their attention to the punishment phase of
Williams's case.
Both Manka and Callahan were aware of the use of
character witnesses to mitigate punishment. However, they were
also aware of Williams's juvenile crime record, drug and alcohol
abuse history, gang association, violence against his family,
and, as they put it, various other problems. They were
legitimately concerned that any mitigating testimony would have
been presented by witnesses whose knowledge would have opened the
door to more damaging evidence under cross-examination.
This court has upheld decisions of counsel not to put
on evidence in mitigation of culpability when the decision
results from a strategic choice. See King, 1 F.3d at 284. In
Williams's case, these decisions by counsel were well thought
through tactical decisions. A court might even disagree with
such a decision, viewing the case in hindsight, and still
determine that the decision was not so seriously inept as to have
been professionally unreasonable. In this case, we do not
gainsay the decision of Williams's attorneys. Their decision to
forego the presentation of mitigation witnesses cannot be said to
be professionally deficient performance. The first prong of the
Strickland analysis is not satisfied.
b. Failure to Object During Voir Dire
Regarding Strikes for Cause
Williams also claims that he received ineffective
assistance of counsel because venire members Salazar, Flores, and
Castillo were improperly excused for cause and counsel did not
10
object. During voir dire, venire member Salazar stated that she
was opposed to the death penalty and would be unable to set aside
her personal beliefs in order to answer the special issues based
on the evidence presented at Williams's trial.2 Venire member
Flores stated that she would not be able to inflict the death
penalty in any case.3 Similarly, venire member Castillo stated
2
Venire member Trinidad Salazar testified, in relevant part, under
voir dire examination as follows:
[Q. By Mr. Callahan,
defense attorney]: Now, my question to you is could you set aside your
opposition to the death penalty and answer these
questions just based on the evidence as you have
heard, and could you do that, or would you feel --
could you do that, answer those questions based just
on the evidence?
A: Well, I don't know. I don't think I will be able to do it.
The Court: You don't think you could answer yes?
Mrs. Salazar: No, sir.
SOF IX:18.
3
Venire member Juanita Flores testified, in relevant part, under
voir dire examination as follows:
The Court: [I]f a defendant is convicted of capital murder, he can be
punished by death or life imprisonment. Those are the two
punishments. Now, bearing that in mind, will that affect you in
your deliberations?
[A]: I don't think I could pass judgment. I would be nervous and
scared.
The Court: Are you conscientiously opposed to the death penalty?
[A]: Yes.
The Court: You are? Okay. Let me ask you this: Could you in a capital
case, capital murder case, could you ever inflict the death
penalty, no matter how cruel, how heinous, how awful, how terrible
the case may be? Could you ever vote to inflict the death
penalty?
[A]: I don't think I could. I don't think I could decide whether to
have a man's life on my hands.
The Court: Now, let me ask you if you will give me a yes or no answer. Could
you in any case, no matter how heinous, how terrible, how awful
11
that she would not be able to impose the death penalty under any
circumstances.4
the case might be, could you in any capital murder case inflict
the death penalty?
[A]: I don't think so, no.
SOF XII: 102-03.
4
Venire member Maria Castillo, in relevant part, under voir dire
examination testified as follows:
The Court: In a capital case there are two optional punishments. If the
Defendant is found guilty of capital murder, his punishment will
be life in prison or death. Do you understand that?
[A]: Right.
The Court: Knowing that, is that going to affect your deliberations when you
determine what the facts in the case are? Will that affect you?
[A]: Well, it will because I don't believe in the death penalty.
The Court: You don't believe in the death penalty?
[A]: Right.
The Court: You would not under any -- let me ask you this: would you
consider assessing the penalty of death in any case, no matter how
vicious or how bad it might be?
[A]: It would -- it would have to be very bad. I really don't think
so, no.
The Court: Well, you have answered it two different ways. First you said
that you would if it was bad enough, and then you said it would
depend.
[A]: It would take a lot out of me to do it.
The Court: Well, I want you in your own mind to imagine the worst possible
capital murder, the worst possible type of murder which was a
capital offense, say a murder committed during the course of the
commission of a robbery by the defendant, not this particular
case, but just imagine some terribly brutal, vicious murder. Now,
would you consider assessing a death penalty in the most brutal
type of murder that you can imagine?
[A]: No, I don't feel I could.
The Court: You would not?
[A]: No.
The Court: Not under any circumstances?
12
A venire member is properly excused for cause in a
capital case when his "views would prevent or substantially
impair the performance of his duties as a juror in accordance
with his instructions and his oath." Wicker v. McCotter, 783
F.2d 487, 493 (5th Cir.) (quotations and footnotes omitted)
(quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844,
852 (1985)), cert. denied, 478 U.S. 1010 (1986).5
It is a test to be applied primarily by the trial
court, for determinations of juror bias depend in great
degree on the trial judge's assessment of the potential
juror's demeanor and credibility, and on his
impressions about that venireman's state of mind. The
trial court's determination that a prospective juror
could not perform his statutory function faithfully and
impartially is accorded a presumption of correctness
under 28 U.S.C. § 2254(d).
Id.
It is not for this court to substitute its judgment for that of
the state trial court on this issue. See id. The record
supports the trial judge's decision to remove each of these
venire members for cause. Moreover, the fact that there were no
objections to the removal of these venire members for cause may
very well support the propriety of the court's decisions:
[N]o one in the courtroom questioned the fact that [the
venire members'] beliefs prevented [them] from sitting.
The reasons for this, although not crystal clear from
[A]: No, I don't think so.
SOF IV:125-27.
5
Williams claims that Wicker and Witt are not applicable to his
case because they were decided after his conviction. He argues that only
Adams and Witherspoon are applicable. However, Wicker and Witt serve only to
clarify Adams and Witherspoon; they do not create new law. See Riles v.
McCotter, 799 F.2d 947, 950 (5th Cir. 1986). Therefore, they are applicable
and useful in this discussion.
13
the printed record, may well have been readily apparent
to those viewing [the venire members] as [they]
answered the questions.
Wainwright v. Witt, 496 U.S. 412, 435, 105 S.Ct. 844, 857-58
(1985).
Counsel unsuccessfully attempted to rehabilitate venire
member Salazar and did not attempt to rehabilitate venire members
Flores and Castillo. The record suggests that any attempts at
rehabilitation would have been futile because these venire
members would not have been able to function properly as jurors
in this capital case. Accordingly, counsel's decision not to
rehabilitate these venire members or to object to their removal
for cause cannot be said to be deficient performance. See Bridge
v. Lynaugh, 838 F.2d 770, 776 (5th Cir. 1988); Moore v. Maggio,
740 F.2d 308, 317 (1984), cert. denied, 472 U.S. 1032 (1985).
Because counsel's performance was not deficient, Williams does
not satisfy the first requirement of Strickland on this issue and
his argument fails.6
6
Williams also claims that his due process and equal protection
rights were violated in the federal evidentiary hearing when the judge did not
permit him to secure the testimony of the state trial judge. Williams sought
to question Judge Butler regarding his reasons for dismissing venire member
Castillo for cause. This claim is without merit. A trial judge is not
required to write out in separate memorandum his specific findings on each
juror excused. See Witt, 469 U.S. at 430, 105 S.Ct. at 855. Neither is he
required to indicate for the record his reasoning for dismissing a venire
member for cause. See id. As discussed supra, the record clearly supports
Judge Butler's decision to remove venire member Castillo for cause. We find
no error.
14
c. Failure to Request Psychiatric Examination
Williams also complains that he was afforded
ineffective assistance of counsel because Manka and Callahan did
not request a psychiatric examination to aid in the presentation
of "mitigating evidence" of insanity, duress, and emotional
disturbance. Williams does not allege that he had any defense
against a guilty verdict based on these theories. Williams's
only professional "proof" that he lacked a dangerous character is
supplied in the inconclusive affidavit of Dr. Sparks, the Chief
Bexar County Psychiatrist at that time, who never examined
Williams and could only speculate about his condition from
records furnished by habeas counsel.
Counsel made a knowing, strategic decision not to seek
a psychiatric evaluation of Williams because they feared the
state would use rebuttal psychiatric testimony of Williams's
future dangerousness. This was not a frivolous concern. The
state properly criticizes Williams for simply second-guessing
counsel's performance without having any evidence to support
their criticism. The fact that his counsel did not request a
psychiatric examination does not constitute deficient
performance. Williams's Strickland argument fails on this issue.
d. Failure to Object or Limit
the Testimony of the Victim's Mother
Williams next complains that he received ineffective
assistance of counsel because his counsel did not object or try
to limit the testimony of the victim's mother. At trial, Danny
Liepold's mother testified for what amounted to three pages of
15
trial transcript. She identified her son as the victim and
testified emotionally but briefly about his trusting nature.
It is unlikely that counsel's passivity when confronted
with this witness represented a deficient performance because
counsel made a strategic choice not to object, recognizing the
"delicacy" of how to handle testimony of a victim's relative.
Counsel wanted Mrs. Liepold's testimony to conclude as quickly as
possible and without contentiousness. Moreover, her testimony
was probably admissible anyway for its explanation why Danny
trustingly turned his back on Williams, whom he knew, before
being shot. For all these reasons, the discussion whether to
object was a close call professionally.
But, in any event, Williams has not satisfied the
second prong of Strickland: he cannot establish prejudice. It
is clear from the record that the exclusion of Mrs. Liepold's
brief testimony would not have affected the outcome of Williams's
case. The evidence of guilt was overwhelming, and the testimony
at the punishment phase of his trial, which included evidence of
the gas station murder, was compelling. Williams has not
satisfied the prejudice prong of Strickland because of counsel's
failure to exclude the testimony of Mrs. Liepold.
2. Appeal
Williams also complains that he received ineffective
assistance on his appeal by Allan Manka, one of his trial
attorneys. In his brief to this court, Williams states that his
counsel "failed to raise important issues on appeal, including
16
but not limited to: ineffective assistance of counsel;
introduction of inflammatory and prejudicial evidence such as the
testimony of the victim's mother; introduction of the decedent's
high school yearbook photograph; prejudicial and inflammatory
remarks by the prosecutor during arguments at the punishment
phase of the trial; Witherspoon/Adams challenges [to the venire
members]; voluntariness of the confession; illegal arrest and
failure of the state to prove ownership of the property."
The due process clause of the fourteenth amendment
guarantees effective assistance of counsel for direct appeals as
of right. See McCrae v. Blackburn, 793 F.2d 684, 688 (5th Cir.)
(citing Hamilton v. McCotter, 772 F.2d 171, 182 (5th Cir. 1985)),
cert. denied, 479 U.S. 965 (1986). That right to effective
appellate counsel must pass the Strickland standards. See id.
Williams must demonstrate that (1) his appellate counsel's
performance was so deficient as to fall below objectively
reasonable conduct of appellate counsel and (2) his case was
prejudiced as a result.
As we have already determined that Williams's
ineffective assistance of trial counsel claim, including his
claim regarding the testimony of the victim's mother, is without
merit, Williams could not have prevailed on that issue on appeal.
Similarly, Williams's claims regarding strikes for cause of
venire members and the voluntariness of his confessions,
discussed infra, are without merit. Accordingly, on these
issues, Williams necessarily cannot satisfy the second prong of
17
Strickland, namely that he was prejudiced because these issues
were not raised on appeal.
Williams's remaining claims of appellate counsel's
failure are burdened either by lack of factual specificity or by
the inherent legal weakness of the claims of alleged error.
Appellant has not shown prejudice from the failure to pursue on
appeal any of the remaining issues.
C. Mitigating Instruction for Williams's Youth
Williams complains that the special issues that the
jury was required to answer during the punishment phase7 did not
enable the jury to give adequate mitigating effect to Williams's
youth at the time of the offense. Williams was nineteen years
old when he murdered Liepold.
The Supreme Court has recently concluded that the Texas
statutory scheme under which Williams was sentenced allows the
jury to give mitigating effect to the defendant's age. See
Johnson v. Texas, ___ U.S. ___, ___, 113 S.Ct. 2658, 2669-70
(1993). A failure to supplement the special issues, as Williams
urges, to give effect to the mitigating effect of age at the
7
The jury was required to answer the following special issues at
the sentencing phase of Williams's trial:
(1) 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; and,
(2) whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing
threat to society.
Tex. Code Crim. Proc. Ann. art. 37.071(b).
18
punishment phase does not amount to a constitutional defect.
Moreover, any ruling by this court to the contrary would require
the application on habeas review of a new rule of criminal law in
violation of Teague v. Lane, 489 U.S. 288, 109 S.Ct 1060 (1989)
(plurality). See Graham v. Collins, ___ U.S. ___, 113 S.Ct. 892
(1993). Williams was not entitled to an additional instruction
to the jury regarding the mitigating effect of his age.
D. Questioning During Voir Dire
Regarding Range of Punishment
Venire member Lindley was questioned during voir dire
by the prosecution regarding whether he could make a judgment as
to whether a person would commit acts of violence in the future.
Lindley testified that he could. Upon examination by Williams's
counsel, Lindley was asked, "[W]hat degree of probability or what
degree of reliability can you attach to, say, in your own
judgment the probability that a person will continue to act a
certain way in the future?" The prosecution objected to this
question, and the objection was sustained. Defense counsel then
asked, "How reliable would your determination be [regarding a
person's continuing to commit criminal acts of violence] in your
own mind?" The prosecution again objected, and the objection was
again sustained.
Williams now complains that he was denied due process,
equal protection, a fair trial, and effective assistance of
counsel because the trial court refused to allow him to question
this venire member regarding range of punishment, depriving
19
Williams of the opportunity intelligently to exercise his
peremptory strikes. This argument is without merit.
First, we agree with the district court that,
ordinarily, questioning a venire member regarding the range of
punishment raises only an issue of state criminal procedure that
does not present a federal constitutional claim. See Moreno v.
Estelle, 717 F.2d 171, 179 (5th Cir. 1983), cert. denied, 466
U.S. 975, (1984).
Second, it is difficult to see how the vague, open-
ended questions asked by defense counsel could have elicited any
enlightening response from this venire member. Manka went on to
question Lindley in detail regarding his duties as an educator
and the potential effect of education on future lifestyle. Manka
then accepted Lindley as a juror. Defense counsel's failure to
obtain two specific answers, moreover, given an otherwise
thorough voir dire examination, was not such a critical
deficiency in the trial as to deprive Williams of fundamental
fairness in the exercise of peremptory strikes. This error, if
it was one, is different from the judge's unkept promise on voir
dire in Knox v. Collins, 928 F.2d 657, 661-62 (5th Cir. 1991).
E. Testimony of Trial Jurors
at the Federal Evidentiary Hearing
Williams next complains that the federal district court
abused its discretion by not allowing testimony from trial jurors
at the evidentiary hearing. His counsel requested to have the
state jurors testify as to whether their deliberations would have
been different if they had been presented with the mitigating
20
evidence that was allegedly available, but not presented at
trial. This argument is without merit.
The post-verdict inquiry of jury members, as live
witnesses or by affidavit, is inappropriate and precluded by
Federal Rules of Evidence 606(b).8 See Byrne v. Butler, 845 F.2d
501, 509-10 n.8 (5th Cir.), cert. denied, 487 U.S. 1242 (1988);
McQueen v. Blackburn, 755 F.2d 1174, 1178-79 (5th Cir.), cert.
denied, 474 U.S. 852 (1985). The district court did not abuse
its discretion in disallowing this requested testimony.
F. Magistrate Judge's Alleged Conflict of Interest
Williams complains that Magistrate Judge Boyd, who
conducted the federal habeas evidentiary hearing, had a conflict of
interest because he went to work for the state district attorney's
office after the evidentiary hearing in January 1988. In March of
1988, Boyd recused himself from Williams's case because of his
impending retirement in June. Williams's case was then taken over
and actually decided by Magistrate Judge Robert O'Connor on two
separate occasions, by then-District Judge Emilio Garza, and by
District Judge Edward Prado.
8
Federal Rule of Evidence 606(b) provides:
Upon an inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement occurring during the
course of the jury's deliberations or to the effect of anything upon that or
any other juror's mind or emotions as influencing the juror to assent to or
dissent from the verdict or indictment or concerning the juror's mental
processes in connection therewith, except that a juror may testify on the
question whether extraneous prejudicial information was improperly brought to
the jury's attention or whether any outside influence was improperly brought
to bear upon any juror. Nor may a juror's affidavit or evidence of any
statement by the juror concerning a matter about which the juror would be
precluded from testifying be received for these purposes.
Fed. R. Evid 606(b).
21
Williams does not explain the ways in which Magistrate
Judge Boyd was biased against him or how this alleged conflict of
interest prejudiced Williams's case. From the record, there does
not appear to have been an appearance of impropriety which rose to
the level of a fundamental defect. See United States v. Couch, 896
F.2d 78, 81 (5th Cir. 1990). There was no harm to Williams's case
as a result of Magistrate Judge Boyd's participation in these
proceedings.
G. Statutory Maximum for Payment of Investigators
At the time of Williams's trial, the Texas Code of
Criminal Procedure placed a $500 limit for reimbursement for costs
of court-appointed investigators.9 Williams claims that he was
deprived of equal protection, due process, and effective
representation because this provision was unconstitutional on-its-
face and as applied to Williams.
It is well settled that the due process clause does not
require a state to pay for the same assistance that a wealthier
defendant might buy, see Ake v. Oklahoma, 470 U.S. 68, 77, 105
S.Ct. 1087, 1093 (1985), and the equal protection clause does not
require that indigent defendants have precisely the same advantages
as non-indigent defendants, see Ross v. Moffitt, 417 U.S. 600, 611-
12, 94 S.Ct. 2437, 2444-45 (1974). This statute was not
unconstitutional on its face.
9
This provision now allows for recovery for reasonable expenses.
See Tex. Code Crim. Proc. Ann. art. 26.05.
22
Moreover, the investigation in Williams's case exceeded
the $500 limit, as it cost over $900. Additionally, the trial
judge who presided over Williams's case stated in the state habeas
proceeding that in Williams's case, as in all capital cases, it is
his policy to furnish investigators with unlimited funds.
Williams's investigative costs of over $900 were reimbursed.
Williams has made no attempt to show that his defense was adversely
affected by the $500 limit, nor can he point to any specific
evidence that could have been obtained that was not obtained as a
result of this statutory cap. We reject this contention.
H. Alleged Variance Between
Indictment and Proof at Trial
Williams next complains that there was a fatal variance
between the indictment and the proof at trial. The indictment
charged Williams with causing the death of Danny Liepold "while in
the course of committing and attempting to commit the offense of
robbery upon the complainant." Williams argues that because the
proof at trial unequivocally established that Williams was robbing
the convenience store, not Danny Liepold, this creates a fatal
variance between the indictment and the proof at trial.
The sufficiency of a state indictment is appropriate for
federal habeas relief only when the indictment is so deficient that
the convicting court was without jurisdiction. See Yohey v.
Collins, 985 F.2d 222, 229 (5th Cir. 1993). State law dictates
whether a state indictment is sufficient to confer a court with
jurisdiction. See id. Texas law provides that it is the preferred
practice for an indictment to allege ownership in a natural person
23
acting for the corporation rather than in the corporation itself.
See Dingler v. State, 705 S.W.2d 144, 145 (Tex. Crim. App. 1984).
Williams's indictment did just that. Because the state court had
jurisdiction under the indictment, the federal court had no basis
for granting habeas relief.
I. Applicability of Stone v. Powell
Williams next complains that the federal magistrate judge
erred in finding that Williams's fourth amendment claims were
barred by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976).
Williams is wrong in his assertion. Powell provides:
where the State has provided an opportunity for full and
fair litigation of a Fourth Amendment claim, a state
prisoner may not be granted federal habeas corpus relief
on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his
trial.
Powell, 428 U.S. at 494, 96 S.Ct. at 3052 (footnotes omitted).
[A] federal court need not apply the exclusionary rule on
habeas review of a Fourth Amendment claim absent a
showing that the state prisoner was denied an opportunity
for a full and fair litigation of that claim at trial and
on direct review.
Id., 428 U.S. at 494 n.37, 96 S.Ct. at 3052-53 n. 37.
Williams does not argue that he was denied a full and
fair opportunity for litigation of his fourth amendment claim,
although he did not pursue it on direct appeal. Moreover, the
record indicates that Williams's motions to suppress were presented
to and addressed by the trial court. This claim is unfounded.
24
J. Voluntariness of the Confessions
Williams's final complaint is that the confessions with
which he provided the police were unconstitutionally obtained. He
complains that he was suffering from diminished capacity at the
time of the confessions and that he was forced into confessing by
coercive behavior exercised by the police. These claims are
without support in the record.
All of the police officers who spoke with Williams the
morning of his arrest were experienced in detecting drug or alcohol
usage, yet neither they nor Williams's father testified that he
appeared to be impaired in any way. Williams cites only one
instance of police duress, alleging that the arresting officer who
awoke Williams, "got on top of him," got him out of bed, and had
Williams sit on the bed and talk. The officer read Williams his
rights, and at that time, Williams denied any involvement in the
robbery. The record clearly supports the finding that Williams was
advised of his rights before he was permitted to give any of his
three confessions. Additionally, there is plenty of support in the
record for the finding that Williams's confessions were not the
product of duress. For these reasons, we agree with the state and
federal courts that the confessions were not obtained in violation
of Williams's constitutional rights.
III. CONCLUSION
For the foregoing reasons, this court AFFIRMS the denial
of Williams's petition for federal writ of habeas corpus.
25