IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-20911
RAYMOND CARL KINNAMON,
Petitioner-Appellee,
versus
WAYNE SCOTT, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(December 11, 1994)
Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:
I.
Raymond Carl Kinnamon seeks a stay of execution from the
federal courts. We rejected his request in his first habeas
petition on September 15, 1994. Kinnamon v. Scott, 33 F.3d 462
(5th Cir. 1994). Kinnamon filed no petition for rehearing, but, on
November 30, 1994, requested recall of the mandate, alternatively,
relief under Rule 60(b)(6), Fed. R. Civ. Proc. We denied that
request on December 8, 1994. At approximately the same time on
December 8, 1994, state trial judge Ted Poe, presiding judge of the
228th District Court, Harris County, Texas, denied Kinnamon's
motion for stay of execution, modification of execution date, and
"reasonable" time to file a petition for post-conviction relief
under Art. 11.07, Tex. R. Crim. Proc. Judge Poe entered 17
findings of fact. Judge Poe found, among other things, that on
September 21, 1993, this court appointed Marsha Rutenbar to
represent Kinnamon in his appeal before the Fifth Circuit; his
brief was filed on April 19, 1994. Judge Poe also noted that on
October 4, 1994, he appointed Marsha Rutenbar "to represent the
defendant in any additional state habeas litigation . . ."; that he
set the execution date 67 days hence. The court also noted that
before the motion of December 6, Rutenbar had made no request for
funds or filed any other document or pleading including an 11.07
petition; that Rutenbar had 18 months to investigate and prepare an
11.07 petition. For these reasons, Judge Poe denied the petition.
Kinnamon, through Rutenbar, on December 9, 1994, filed his
petition for post-conviction relief pursuant to 11.07 Tex. Code
Crim. Proc., and application for stay of execution and evidentiary
hearing. Judge Poe denied that petition the afternoon of December
10, 1994 and proposed findings of fact and conclusions of law for
the Texas Court of Criminal Appeals. That court, in turn, relying
on the proposed findings and conclusions, denied relief. Kinnamon
then filed his second federal habeas petition before United States
District Court Judge Hoyt. Judge Hoyt granted the request for stay
of execution and granted a right to proceed in forma pauperis. The
state appeals and moves to vacate the stay of execution.
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II.
(claim one)
Kinnamon asserts that the state trial judge denied him due
process in defining the elements of intent in the jury
instructions. This was the sole reason specified by the district
court in its grant of a stay. We rejected this contention in
Kinnamon's first federal habeas. Kinnamon v. Scott, 33 F.3d 462,
465-66 (5th Cir. 1994). We are unpersuaded that we should again
examine this contention. Regardless, we remain unpersuaded of its
merit. The district court did not explain its other reasons for
granting a stay. We treat the claims seriatim.
We similarly rejected his claimed error in the prosecutor's
use of hypotheticals in voir dire. The claimed error rests upon
the related contention that the charge to the jury regarding intent
was erroneous. The state concluded that the issue had not been
properly preserved because Kinnamon's attorneys had failed to
exhaust their allotted peremptory challenges. We rejected this
contention in the first habeas petition because it was procedurally
barred. We also explained that any asserted ineffectiveness of
counsel in failing to meet the bar could not survive Strickland's
second prong; that the issue at trial was solely one of identity.
III.
(claim two)
Kinnamon next asserts constitutional error in his inability to
argue to the jury in sentencing that if spared the death penalty
Kinnamon would be required to serve a minimum of 20 calendar years
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without good time before becoming eligible for parole. Kinnamon
rests this claim upon Simmons v. South Carolina, ___ U.S. ___, 114
S.Ct. 2187 (1994). If we were to ignore the absence of a
contemporaneous objection and the bar of Teague v. Lane, 489 U.S.
288 (1989), we would not extend Simmons beyond cases in which the
sentencing alternative to death is life without parole.
IV.
(claims three through nine)
Kinnamon next brings claims of jury taint and prejudice. He
first contends that the state trial judge failed to conduct a
hearing regarding the jury's exposure to "extraneous considerations
concerning Kinnamon's access to the juror information sheets." The
contention is that juror Edwana Corley, after the court adjourned
for lunch, approached the bench. She expressed concern on her own
behalf and other jurors that defendant had access to the long-form
juror information sheets. Judge Poe immediately informed counsel
of her statement, but declined to conduct any further hearing
regarding the incident. According to the portions of the
transcript attached to the state petition for habeas corpus,
counsel had information recorded on legal size sheets regarding
members of the jury, information used in voir dire. Kinnamon was
examining papers of a legal size; the jurors thought they were the
information sheets used in voir dire. Judge Poe refused to then
conduct a hearing regarding any possible prejudice of jurors. The
trial judge observed to counsel "are you trying to tell me the jury
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is supposed to sit over there with their eyes shut and not observe
what is going on in the courtroom?"
That members of a jury in a capital murder case do not want
the defendant examining information concerning their home
addresses, phone numbers, etc. raises no concern of constitutional
magnitude. As we understand it, Kinnamon's contention is bottomed
on the assertion that this expression of concern signals some mid-
trial determination by the jury of guilt or perhaps its caution
about the defendant. We are unpersuaded. At that juncture,
Kinnamon was accused by the state of a violent capital crime. Such
a concern by a juror is consistent with an open mind regarding
guilt. Finally, the state trial heard the testimony of Corley in
a hearing on a motion for new trial. The juror denied that the
occurrence had any effect on deliberations.
Relatedly, we find no constitutional error in the asserted
"exparte contact with the juror Corley." The contact was in open
court, at side bar, and was immediately disclosed to counsel.
Regardless, she later testified in a hearing on the motion for new
trial. Similarly, the claim that counsel was ineffective in
pursuing the point is without basis.
Kinnamon next asserts a denial of due process from a claimed
incident in which the jury was exposed to an "emotional and
prejudicial outburst" by the victim's daughter. Relatedly,
Kinnamon contends that his trial counsel was ineffective in failing
to obtain limiting instructions, to move for mistrial or otherwise
to develop the incident for appeal.
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According to the affidavit of Kinnamon's sister, Sandra
Crisler, at some juncture of the guilt phase of the trial only the
jury, Kinnamon, and the prosecutor were in the courtroom.
According to Crisler, the teenage daughter of the decedent entered
the courtroom and began screaming that Kinnamon had killed her
father. An unsigned "affidavit" of one of the jurors stated that
during the guilt-innocence portion of the trial the daughter of the
victim was "crying loudly and was very emotional." This juror,
Katherine Duce, observed, "I do not remember whether or not she was
saying something, but I do know she was crying loudly. Someone
took her out of the courtroom. The incident was brief, but it was
loud enough for all the jurors to hear."
Again, we are unpersuaded that there was any prejudicial error
of constitutional magnitude. That the young girl was upset and
angry at the person accused by the state as the murderer of her
father communicated nothing new to the jury, if the incident
occurred. The state habeas judge was not persuaded that it
happened. The prosecutor, Doug Durham, swore that he had no
recollection of it, and that for the jury to have been seated in
the courtroom without the judge present would not have been
permitted and was contrary to court practice.
Kinnamon next contends that two jurors prejudged the case and
trial counsel was ineffective in not developing the matter earlier
or preserving the point for direct appeal. Kinnamon's sister,
Sandra Crisler, and his wife, Faye Valentine, claim to have
overheard two jurors discussing the case in the women's restroom.
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They claim by affidavit that one juror, unidentified, said to the
other that she could not hear what had been said in court, drawing
the response that it didn't matter because they already believed
the defendant was guilty. The affidavit of Faye Valentine states
that she "does not remember what Jerry Guernot [trial counsel] told
Sandra" when they reported the encounter. Stan Schneider, counsel
on direct appeal, swore in an affidavit that he spoke with trial
counsel and no mention of this was made. Finally, the state trial
judge in finding 42 stated:
The Court finds unpersuasive the eleventh-hour
affidavits of the applicant's sister, Sandra
Crisler, and his wife, Faye Valentine, which
state that, during the applicant's trial, they
overheard two unidentified women jurors saying
that they had already decided the applicant
was guilty.
We find the state trial court's rejection of this evidence to
be fairly supported by the record. There is no basis for
concluding that Schneider was ineffective in not pursuing a matter
that reasonable inquiry had not produced. Nor are we persuaded
that the affidavits of Crisler and Valentine demonstrate
fundamental unfairness in the trial.
V.
(claim ten)
Kinnamon contends that his trial counsel was ineffective.
This claim is prefaced by counsel's claim that she has had an
inadequate amount of time to investigate the issue of effective
assistance of counsel. Rutenbar dates the opportunity for
investigation from her appointment as state habeas counsel in
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October 1994, asserting that she was only the federal appellate
lawyer in the year preceding. She relatedly contends that she was
unable to draw on the Texas Resource Center, because the state
trial judge was hostile to the work of the Resource Center,
pointing to excerpts of a broadcast of 60 Minutes quoting Judge
Poe. The allegations of ineffectiveness are little more than
conclusions. She asserts, for example, that counsel's argument to
the jury that the sole issue was identity was constitutional error.
Why this is so we are not told. How investigation may support this
allegation we are not told. She points to the failure to offer
medical evidence of the decedent's blood-alcohol content.
Speculation continues that counsel failed to put Kinnamon's work
history into evidence in the punishment phase of the trial, arguing
that counsel was constitutionally ineffective in failing to point
out that defendant had managed to stay out of prison for the past
six years. The argument of ineffective trial counsel sums to a
claim that there may be something there, but she has not had time
to develop it.
VI.
(claim eleven)
She also asserts that Kinnamon was denied effective assistance
of counsel on appeal. Again, the argument is speculation that
something may have been developed had she had more time. We find
no basis for granting habeas relief on such assertions.
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VII
We end where we might well have begun--all of the allegations
in this successive petition were readily available to Kinnamon when
he first filed his federal petition. They are either matters of
record or issues readily developed with reasonable investigation.
McCleskey v. Zant, 111 S.Ct. 1454 (1991), contains no exceptions
available to Kinnamon, nor are his two justifications for omitting
these claims tenable. He first argues that he did not authorize
the filing of his first federal petition. We have earlier rejected
that contention. Second, he contends that under 21 U.S.C. §
848(q)(4)(B) he is entitled to appointment of counsel in federal
habeas. See McFarland v. Scott, 114 S.Ct. 2568 (1994). Kinnamon
at all meaningful times has had the benefit of counsel. It is by
no means clear that when federal counsel is appointed they have no
authority or responsibility to consider the development of new
issues in the event of a second habeas round. Because these issues
have not been fully developed, we have elected not to rest our
decision solely on McCleskey grounds.
The stay of execution granted by the district court is
vacated.
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