IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-20553
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ROBERT DREW,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director,
Texas Department of Criminal Justice,
Institutional Division
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
_________________________________________________________________
(August 2, 1994)
Before GARWOOD, JOLLY, and HIGGINBOTHAM, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
More than eleven years ago Robert Drew viciously and
sadistically beat and stabbed Jeffrey Mays to death on February 21,
1983. Jeffrey was a teenage boy from Alabama who had run away from
home with his high school friend, Bee Landrum. The boys picked up
John Sly, and later they picked up Robert Drew and Ernest
Puralewski. The group drove toward Houston, Texas. Suddenly,
violence erupted when Jeffrey decided that he wanted to turn the
car around and go home. Drew then threatened to cut Sly's throat,
but instead, he robbed Sly, forced Sly out of the car, and
abandoned him on the road. Drew then forced Jeffrey into the back
seat. Drew savagely beat Jeffrey, spattering Jeffrey's blood on
the door, the back seat, and on Drew's prized leather jacket.
Drew's hands were covered in Jeffrey's blood. Drew licked
Jeffrey's blood off of his hands and declared that Jeffrey must die
because "nobody gets blood on me for nothing . . . ." They stopped
the car, and then Drew and Puralewski pulled Jeffrey outside.
Ignoring Jeffrey's pleas for life, Drew and Puralewski repeatedly
plunged their knives into Jeffrey; gouging his chest; puncturing
his lung; piercing his heart. Drew snatched Jeffrey's head back
and slit his throat. Jeffrey's last breath hissed out of the gash
in his lung. Drew and Puralewski threw Jeffrey's butchered corpse
in a roadside ditch. As Drew, Puralewski, and Landrum drove off in
the car, Drew boasted, "I f___ing enjoyed it because it got blood
on my leather."1
II
In December 1983, a Texas jury convicted Drew of capital
murder and sentenced him to death. In September 1987, the Texas
Court of Criminal Appeals affirmed Drew's conviction and sentence.
Drew v. State, 743 S.W. 2d 207, 214 (Tex. Crim. App. 1987).
1
The trio went to a truck stop where a cashier noticed that
Drew was covered in blood. After leaving Puralewski at a bar in
Houston later that evening, Drew and Landrum were stopped for
speeding. Drew's arrest for capital murder followed.
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Drew first filed for habeas relief in 1988. The Texas courts
denied relief. The federal district court denied relief. Drew
asserted a plethora of claims to this court--including a factual
innocence claim that was rejected based on the wealth of
incriminating testimonial and forensic evidence. After thoroughly
addressing each of Drew's claims, we held that every one failed on
the merits. Drew v. Collins, 964 F.2d 411 (5th Cir. 1992). The
Supreme Court denied Drew's petition for certiorari.2 Drew v.
Collins, ___ U.S. ___, 113 S.Ct. 3044, 125 L.Ed.2d 730 (1993).
Drew filed his second round of habeas petitions in 1993. The
Texas courts denied relief for the second time. The federal
district court denied relief for the second time. Before this
court, Drew sought to escape execution on the basis that the state
trial judge's method of signing court documents, including drawing
a "smiling face" beneath his signature, insulted Drew's
constitutional rights. We denied Drew a certificate of probable
cause ("CPC") because Drew could have raised that claim in his
first habeas proceeding and, thus, abused the writ under Rule 9(b)
2
Drew also sought clemency from the Board of Pardons and
Paroles, and from the Governor of Texas on September 16, 1993.
The Board, in a 15-0 vote, denied Drew's request. Further, Drew
filed a civil suit seeking to force the Board to hold a hearing
in 1993. The Texas trial court denied relief, but the Texas
Court of Appeals enjoined Drew's scheduled October 14, 1993
execution. On June 15, 1994, the Texas Court of Criminal appeals
held that the Texas Court of Appeals was without jurisdiction and
ordered that court to vacate its injunction.
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of the Rules Governing Section 2254 Cases. Drew v. Collins, 5 F.3d
93 (5th Cir. 1993). The Supreme Court denied certiorari. Drew v.
Collins, ___ U.S. ___, 114 S.Ct. 1207, 127 L.Ed.2d 555 (1994).
Ever persistent, Drew has filed this third round of habeas
petitions in 1994. Again, the Texas courts denied habeas relief.
Again, the federal district court denied relief. Again, Drew
appeals to this court.
III
In his third trip to this court, Drew once again asserts that
he is factually innocent despite his failure on this very claim on
his first visit to our court. This claim is unpersuasive and
insufficient to survive our standard of review for the grant of CPC
or a stay of execution.
We have no jurisdiction to address the merits of Drew's appeal
from the district court's denial of habeas relief unless we grant
CPC. Black v. Collins, 962 F.2d 394, 398 (5th Cir.), cert. denied,
___ U.S. ___, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992). To obtain
CPC, Drew must make a substantial showing that he has been denied
a federal right. Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct.
3383, 3394, 77 L.Ed.2d 1090 (1983); Drew, 5 F.3d at 95. Similarly,
we will grant Drew a stay of execution only if he shows that there
are "substantial grounds upon which relief might be granted." Delo
v. Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325
(1990) (quoting Barefoot, 463 U.S. at 895, 103 S.Ct. at 3395);
Drew, 5 F.3d at 95. Drew's right to assert a federal habeas claim
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is limited by Rule 9(b), which provides for dismissal of previously
raised habeas claims as constituting an abuse of the writ. We will
assume that Drew may avoid dismissal of his successive claim,
however, if he makes a proper showing of factual innocence.
Herrera v. Collins, ___ U.S. ___, ___, 113 S.Ct. 853, 862, 122
L.Ed.2d. 203 (1993). Drew's reassertion of his stale factual
innocence claim fails to persuade us that his conviction or his
sentence was in any way constitutionally defective.
Once more, Drew attacks his conviction based on asserted
inconsistencies in Landrum's statements regarding his view of Drew
and Puralewski's murder of Jeffrey. Once more, Drew assaults the
unanimous jury verdict based on his codefendant's, Puralewski's,
postsentencing affidavit that he acted alone in murdering Jeffrey.
Once more, Drew offers the affidavits of prisoners who claim that
they heard Puralewski state that he alone murdered Jeffrey. This
time, Drew offers as "new evidence" the recently obtained statement
of a third prisoner. Drew asserts that this prisoner heard
Puralewski take sole credit for Jeffrey's murder before he pled
guilty to that murder.3 Drew contends that the Texas rule
requiring new trial motions to be made within thirty days of the
imposition of sentence has deprived him of his Eighth and
3
Alan Burns gave the most recent affidavit. We note that no
satisfactory reason for the belated timing of this "newly
discovered" evidence has been offered. Further, the affidavit is
unclear as to whether Burns allegedly heard Puralewski's
statement before Puralewski was convicted and sentenced.
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Fourteenth Amendment rights. Tex. Code Crim. Proc. Ann. art. 40.05
(Vernon 1981) (repealed effective September 1, 1986). In effect,
ten years after his trial and after a multitude of state and
federal habeas proceedings, Drew requests a new hearing to
redetermine his guilt.
The Texas district court has once again fully reviewed all the
affidavits and trial evidence, has made findings of fact, and has
concluded that Drew's proffered affidavits are not credible and do
not undermine the verdict or sentence.4 We continue to agree.
First, Landrum's basic account of the facts remains unshaken. He
consistently maintains that his testimony at trial was true and
that Drew murdered Jeffrey.5 Drew, 964 F.2d at 411.
Second, we still have little confidence in Puralewski's
postsentencing truth experience because he had nothing whatsoever
4
In appropriate circumstances, state courts may resolve
issues of fact based on affidavits instead of holding a "live
evidentiary hearing." May v. Collins, 955 F.2d 299, 314-15 (5th
Cir. 1992). We hold that the state court's findings in this case
are entitled to a presumption of correctness. Id.
5
At trial, Landrum demonstrated how Drew slit Jeffrey's
throat and testified, "They [, Drew and Puralewski,] stabbed
him." He also testified that he saw Drew and Puralewski's arms
making stabbing motions over Jeffrey's body. In 1988, Landrum
gave a sworn statement in which he averred that "All statements I
have given oral, written, or recorded about the death of Jeffrey
Mays are true." In 1993, Landrum gave another sworn statement in
which he averred, "I didn't turn around but I could see through
the rear view mirror and . . . I knew they were stabbing Jeff."
We denied Drew's Brady claim regarding a taped interview of
Landrum in Drew's first habeas petition. Drew, 964 F.2d at 419-
20.
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to lose by incriminating himself after receiving a 60-year
sentence. See Drew, 964 F.2d at 421-22 (citing United States v.
Vergara, 714 F.2d 21, 23 (5th Cir. 1983) (holding that the district
court may deny a new trial, even without an evidentiary hearing, if
it determines that a previously silent accomplice's postconviction
willingness to exculpate his codefendant is not credible or would
not be sufficient to produce a different result)); Drew, 743 S.W.
2d at 228 ("It is not unusual for one of two convicted accomplices
to assume the entire fault and thus exculpate his codefendant by
the filing of a recanting affidavit or other statement.").
Further, Puralewski's costless self-incrimination conflicts with
several of his pretrial statements in which he proclaimed that Drew
was the lone murderer.6
Third, the new prisoner affidavit is no more convincing than
the old prisoner affidavits regarding Puralewski's alleged
statements that he acted alone. Like Puralewski's own affidavit,
the affidavits of the prisoners do not dispute the evidence at
trial that: (1) Drew robbed Sly and threatened to cut his throat;7
6
On February 24, 1983, Puralewski gave a written statement
in which he generally corroborated Landrum's version of events,
except for his contention that Drew was the lone murderer. On
March 16, 1983, Puralewski gave a handwritten statement in which
he again generally corroborated Landrum's testimony, but
exculpated himself by stating the Drew was the lone murderer. On
March 3, 1984, Puralewski wrote a letter to a prospective female
juror in his case in which he stated, "`I'm Innocent'! And the
guy who did the Capital Murder [, Drew,] is on Death Row . . . ."
7
Sly testified to Drew's actions at trial.
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(2) Drew savagely beat Jeffrey, licked Jeffrey's blood off of his
hands, and told Jeffrey that he must die for getting blood on
Drew's leather; (3) Drew and Puralewski pulled Jeffrey out of the
car; (4) the Drew and Puralewski discarded Jeffrey's butchered
corpse in a roadside ditch; (5) Drew bragged that he "f___ing
enjoyed" murdering Jeffrey;8 (6) Drew was covered with blood when
he entered the truck stop after the murder; (7) Drew was left-
handed and the medical examiner determined that the cuts on
Jeffrey's throat were inflicted by a left-handed person; and (8)
Drew had Jeffrey's wallet and was wearing Jeffrey's jacket when he
was arrested.9 Consequently, even if the prisoners' affidavits
were true, i.e., Puralewski made the statements to the three
prisoners, these statements would not undermine our confidence in
the jury's verdict in the least. Drew, 964 F.2d at 421-22. See
Herrera, ___ U. S. at ___, 113 S.Ct. at 870 (stating that
8
We find particularly compelling the undisputed evidence of
Drew's specific expression of intent to kill Jeffrey immediately
before and immediately after the murder took place. Thus, Drew's
claim does not effectively diminish his guilt of capital murder,
which requires a deliberate intent or a wreckless indifference
mens rea. See TEX. CODE CRIM. PROC. art. 37.071(b)(1)(Vernon
1981); Sawyer v. Whitley, ___ U.S. ___, ___-___, 112 S.Ct. 2514,
2519-23, 120 L.Ed.2d 269 (1992); Tison v. Arizona, 481 U.S. 137,
107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).
9
We note that Drew, neither personally nor through his
counsel, asserted at trial that Puralewski acted alone in
murdering Jeffrey. Furthermore, except for his plea of not
guilty entered more than ten years ago at arraignment, the record
does not reflect any statement by Drew that he did not murder
Jeffrey.
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postconviction affidavits "must be considered in light of the proof
of petitioner's guilt at trial . . .").
In sum, the overwhelming trial evidence stands as an
unequivocal rejection of Drew's attempt to unseat the jury's
unanimous verdict of guilt and sentence of death. Thus, even under
the least stringent standard considered by the Herrera Court, and
which the dissenters argued for, Drew has failed to demonstrate
that he "probably is innocent." Herrera, ___ U.S. at ___, 113
S.Ct. at 882-83 (Blackmun, J., dissenting). The criminal justice
system has afforded Drew ample, and seemingly endless, process for
making his unpersuasive postconviction claim. The Texas Board of
Pardons considered and rejected Drew's claim by a 15-0 vote. See
id. at ___, 113 S.Ct. at 868-69 (indicating that executive clemency
provides a "fail safe" in our criminal justice system). The Texas
habeas courts have twice considered all the affidavits and evidence
of record and have rejected Drew's claim. The federal courts have
previously rejected Drew's claim. Drew has abused the writ, and
his application for CPC and his motion for stay of execution are
D E N I E D.
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