IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-50444
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VERNON LAMAR SATTIEWHITE,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
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Appeal from the United States District Court for the
Western District of Texas
(SA-91-CA-1152)
_________________________________________________________________
(April 20, 1995)
Before KING, JOLLY, and DeMOSS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
Vernon Lamar Sattiewhite appeals the district court's denial
of his application for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. For the reasons set out below, we affirm the
district court's judgment.
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
I
On the morning of June 19, 1986, Sattiewhite kidnapped and
murdered his former girlfriend, Sandra Sorrell.1 On December 11,
1986, a jury found him guilty of capital murder. In the separate
sentencing hearing the following day, the same jury answered
affirmatively the two special issues submitted pursuant to former
Article 37.071(b) of the Texas Code of Criminal Procedure, thereby
sentencing him to death.
Sattiewhite directly appealed to the Texas Court of Criminal
Appeals, which affirmed his conviction and sentence on October 25,
1989. Sattiewhite v. State, 786 S.W.2d 271 (Tex. Crim. App. 1989).
Sattiewhite's motion for rehearing was denied on March 28, 1990.
Id. at 271. The Supreme Court denied certiorari on October 1,
1990. Sattiewhite v. Texas, 111 S.Ct. 226 (1990).
Sattiewhite's execution was then scheduled for May 2, 1991.
On April 19, he initiated a state habeas proceeding. The state
court modified his execution date to November 12. After conducting
an evidentiary hearing, the state habeas court denied relief on
August 7. Based on the lower court's findings and conclusions, the
Court of Criminal Appeals denied state habeas relief on November 7.
On November 8, 1991, Sattiewhite filed a federal habeas
application and motion for stay of execution. Because this motion
was unopposed by the state, the district court granted a stay the
1
The facts and the procedure at the state court level are set
out at Sattiewhite v. State, 786 S.W.2d 271 (Tex. Crim. App. 1989).
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same day. The court thereafter referred Sattiewhite's case to a
magistrate judge for appropriate proceedings. Sattiewhite amended
his petition on December 13, which the state answered on April 6,
1992. After Sattiewhite had replied, the magistrate judge
recommended that habeas relief be denied. Sattiewhite objected,
and the district court recommitted the case to the magistrate judge
to address Sattiewhite's objections. On March 15, 1993, the
magistrate judge conducted an evidentiary hearing on Sattiewhite's
claim of juror misconduct, a claim that previously had not been
addressed by the state courts. On September 7, 1993, the
magistrate judge again recommended that all relief be denied.
Sattiewhite filed his objections to this ruling on December 27,
1993. On March 17, 1994, Sattiewhite's case was transferred to the
docket of a newly appointed federal district judge, the Honorable
Fred Biery. After conducting a de novo review of Sattiewhite's
claims, the court entered an order on May 5, 1994, denying his
petition, entered judgment in favor of the state, and vacated his
stay of execution. The court subsequently denied Sattiewhite's
request for post-judgment relief, but granted his request for a
certificate of probable cause to appeal.
II
Sattiewhite raises several issues on appeal, which we will
address in turn. He first requests that the district court's
judgment be reviewed de novo, reversed, and remanded for an
evidentiary hearing. Sattiewhite contends that his sentencing jury
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was precluded from considering constitutionally relevant mitigating
evidence. He further alleges that he was denied effective
assistance of counsel in violation of his rights under the Sixth,
Eighth, and Fourteenth Amendments. Sattiewhite contends that he is
presently incompetent to be executed under the Eighth and
Fourteenth Amendments. Moreover, he asserts that the operative
terms of the special issues of the Texas sentencing scheme are
unconstitutionally vague. He claims, furthermore, that he was
selectively prosecuted for capital murder. Sattiewhite also
contends that the jurors were unconstitutionally given irrelevant,
inaccurate, and misleading information concerning the effect of
their failure to agree on the special issues. He also argues that
the jury instructions precluded the jury from giving mitigating
effect to evidence. Sattiewhite contends that the Texas special
issues were unconstitutionally mandatory and denied him
individualized sentencing consideration. Sattiewhite, moreover,
argues that the trial court's charge on punishment failed to
instruct the jury to consider mitigating evidence in determining
the appropriate punishment. He asserts that the Texas capital
sentencing statute unconstitutionally misled the jury regarding its
responsibility for determining his sentence. Finally, he argues
that the death penalty impermissibly infringes on his right to
life.
We now direct our attention to these issues.
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III
Sattiewhite first argues that the district court did not
conduct a de novo review of the magistrate judge's decision because
the district judge rendered his judgment within two months of his
case's transfer to the district judge and because the same law
clerk assisted the judges in making their decisions. This
contention is without merit. De novo review refers to the
deference paid to the rulings of the lower court, not the mechanics
of the review. The district court, furthermore, clearly stated
that it conducted an independent review of the magistrate judge's
findings. None of Sattiewhite's objections to the magistrate
judge's report, moreover, was based on credibility determinations
or findings of relevant disputed facts. Any error, therefore,
would have been harmless because all of the issues are fully
reviewable by this court. Garcia v. Boldin, 691 F.2d 1172, 1180
(5th Cir. 1982). This allegation of error, therefore, is rejected.
Second, Sattiewhite argues that his sentencing jury was
precluded from considering constitutionally relevant mitigating
evidence because the jury had no adequate vehicle for expressing a
reasoned moral response to this evidence. We find that this
contention is without merit. In order for evidence to be
constitutionally mitigating, a defendant must demonstrate that his
crime was somehow attributable to the particular mitigating
evidence presented. Graham v. Collins, 950 F.2d 1009, 1025-30 (5th
Cir. 1992)(en banc), aff'd, 113 S.Ct. 892 (1993). Sattiewhite
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presented evidence that he was afflicted with certain personality
disorders at the time of the murder, but did not attribute his
crime to these disorders. Because Sattiewhite did not attempt to
rely on the evidence as constitutionally mitigating at trial, he is
not entitled to recharacterize the evidence in this habeas
proceeding. Delo v. Lashley, 113 S.Ct. 1222, 1225 (1994); Lackey
v. Scott, 28 F.3d 486, 490 (5th Cir. 1994). This contention,
therefore, is meritless.
Sattiewhite next argues that he was denied effective
assistance of counsel under the Sixth, Eighth, and Fourteenth
Amendments because his counsel did not adequately present
mitigating evidence and failed to pursue an insanity defense. To
prevail on this claim, Sattiewhite must demonstrate both (1)
deficient performance by counsel and (2) resulting prejudice.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064
(1984). Sattiewhite must prove these elements by a preponderance
of the evidence. Martin v. Maggio, 711 F.2d 1273 (5th Cir. 1983).
We evaluate attorney performance from the attorney's perspective at
the time of the trial. Ellis v. Lynaugh, 873 F.2d 830, 839 (5th
Cir. 1989). To satisfy the prejudice prong, Sattiewhite must show
a reasonable probability that, absent counsel's unprofessional
errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable
probability is one sufficient to undermine confidence in the
outcome. Id.
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Sattiewhite has failed to shoulder his burden on this claim.
The state habeas proceeding found that his trial counsel had
adequately represented him. "The state court's findings are
entitled to a presumption of correctness under 28 U.S.C. §
2254(d)." Garrett v. Collins, 951 F.2d 57, 59 (5th Cir. 1992).
His trial counsel reasonably investigated his mental condition and
background and abandoned the insanity defense as a matter of trial
strategy. Sattiewhite's counsel hired an independent psychiatrist
to examine him on the issues of sanity and competency. His
counsel, furthermore, interviewed Sattiewhite's family members and
provided these names to the psychiatrist. The conclusions of the
psychiatrists left trial counsel with no basis for pursuing an
insanity defense because they diagnosed Sattiewhite with mental
disorders, not mental defects, and stated that he was not insane at
the time of the offense or trial. Sattiewhite, therefore, has
failed to demonstrate both deficient performance by counsel and
resulting prejudice. Accordingly, this claim is denied.
Sattiewhite next argues that under the Eighth and Fourteenth
Amendments that he is presently incompetent to be executed. In
order to be adjudged competent to be executed, the prisoner must
understand (1) the nature of the proceedings against him, (2) that
the State is seeking to execute him, and (3) the reasons the State
is seeking this penalty. Garrett, 951 F.2d at 59. Although
Sattiewhite presented evidence regarding his mental state at the
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state habeas proceeding, he offered no evidence relevant to the
Garrett inquiry. We deny this claim.
Sattiewhite contends that the operative terms of the special
issues of the Texas sentencing scheme are unconstitutionally vague.
Specifically, he complains that the terms "deliberately,"
"probability," "criminal acts of violence," "continuing threat,"
and "society" are vague to such a degree that reasonable jurors are
likely to interpret and apply them very differently. He also
argues that in the light of Johnson v. Texas, 113 S.Ct. 2658
(1993), that the Texas sentencing scheme operates as a weighing
scheme, so that this court must ensure that the jurors are
adequately instructed regarding the limitations on the application
of aggravating circumstances. He asserts that these statutory
terms, combined with the court's refusal to impose a limiting
instruction, did not properly channel the sentencer's discretion.
This argument is without merit. In James v. Collins, 987 F.2d
1116 (5th Cir.), cert. denied, 114 S.Ct. 30 (1993), we rejected the
argument that these terms are unconstitutionally vague. Moreover,
the Texas sentencing scheme was upheld in Johnson because the
special issues generally allow the jury adequately to consider
mitigating evidence. Johnson, 113 S.Ct. at 2669. Moreover, the
Johnson Court did not indicate that Texas's scheme is a "weighing"
scheme. Id. at 2670. To the contrary, this contention was clearly
rejected in James. James, 987 F.2d at 1120. This claim is denied.
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Sattiewhite next argues that he was selectively prosecuted for
capital murder. He contends that the District Attorney's office
sought vindication for Sandra Sorrell's murder because on the day
before the murder it had failed to issue a protective order for
Sorrell against Sattiewhite. He also argues that the murder charge
was upgraded because of the perceived "innocence of the victim."
To establish a prima facie case of unconstitutional selective
prosecution, a defendant must show that (1) he has been singled out
for prosecution although others similarly situated who have
committed the same acts generally have not been prosecuted, and (2)
the selectivity is unconstitutionally invidious. United States v.
Ramirez, 765 F.2d 438, 439-40 (5th Cir. 1985), cert. denied sub
nom., Perpignand v. United States 474 U.S. 1063 (1986).
The magistrate judge found that these claims were unfounded.
Sattiewhite, furthermore, is foreclosed from objecting to these
findings because he did not specifically object to any of the
magistrate judge's findings of fact, conclusions of law, or
analysis on this point. Rodriguez v. Bowen, 857 F.2d 275, 277 (5th
Cir. 1988). Appellate review of the magistrate judge's findings is
foreclosed except in cases of plain error or manifest injustice,
id., neither of which we find in this case.
Sattiewhite contends that the jurors were unconstitutionally
given irrelevant, inaccurate, and misleading information concerning
the effect of their failure to agree on the special issues. There
is no doubt that the trial court misstated Texas law when, during
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voir dire, it stated that if the jury could not reach agreement on
the special issues, a mistrial would be declared.2 The Supreme
Court has reminded us, however, that "the fact that the instruction
was allegedly incorrect under state law is not a basis for habeas
relief." Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475,
482 (1991). Moreover, "the only question for us is 'whether the
ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.'" Id. (quoting Cupp v.
Naughten, 414 U.S. 141, 147 (1973)). The misstatement in this
case, made during voir dire, does not rise to the level of a
constitutional violation. This argument, therefore, is without
merit.
Sattiewhite next argues that the jury instructions precluded
the jurors from giving mitigating effect to his evidence, in
violation of his rights under the Sixth, Eighth, and Fourteenth
Amendments. Specifically, he finds fault with the manner in which
the trial court instructed the jurors to answer the special issues.
The trial court instructed the jurors that "[i]f ten or more jurors
vote "no" as to any special issue, then the answer of the jury is
"no" regarding that special issue." Sattiewhite contends that this
instruction on answering the special issues with "yes" or "no"
2
Article 37.071(g) of the Texas Code of Criminal Procedure
provides that neither the court nor any of the attorneys may inform
a "juror or prospective juror of the effect of failure of the jury
to agree on an issue submitted under this article." Furthermore,
article 37.071(e) provides that the jury's failure to agree on an
issue requires a life sentence, not a mistrial.
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precluded jurors from registering dissent against the death penalty
because any single juror who believed that Sattiewhite merited a
life sentence could not answer "no" to a special issue.
Sattiewhite fails to point out, however, that the court
clarified its instructions by stating that if less than twelve
jurors voted "yes" or less than ten jurors voted "no" to a special
issue, there would be no answer to that special issue. The special
issues, therefore, gave each of the jurors an opportunity to give
effect to Sattiewhite's evidence and, therefore, register a dissent
against the death penalty. Accordingly, Sattiewhite cannot
demonstrate a reasonable likelihood that the jury interpreted the
instruction in a manner that precluded consideration of mitigating
evidence. See Boyde v. California, 494 U.S. 370, 380-81, 110 S.Ct.
1190, 1198 (1990). This claim, therefore, is without merit.
Sattiewhite contends that the Texas special issues are
unconstitutionally mandatory, thereby denying him individualized
sentencing consideration because the death sentence was mandatory
when the jury affirmatively answered the two special issues. He
argues that the special issue questions failed to allow full jury
consideration of his particularized mitigating evidence, thereby
depriving him of an individualized sentencing proceeding.
Specifically, he contends that the jury could not give effect to
his evidence of mental illness, intoxication, emotional
instability, drug abuse, troubled childhood, remorse, and love of
family.
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The state argues that to the extent that Sattiewhite claims
that the Texas capital sentencing scheme is facially
unconstitutional, this claim is squarely foreclosed by Jurek v.
Texas, 428 U.S. 262, 267-69, 96 S.Ct. 2950, 2954-55 (1976). This
argument is correct. Accordingly, this aspect of his claim is
without merit.
Moreover, Texas's second special issue satisfies the Eighth
Amendment because the mitigating value of constitutionally relevant
evidence, as actually proffered at trial, was within "the effective
reach" of the jury because they could not have reasonably
considered themselves foreclosed from considering the mitigating
evidence. Johnson v. Texas, 113 S.Ct. 2658, 2669-70. Because this
mitigating evidence was within the effective reach of the jury
under the Texas special issues, this claim is without merit.
Sattiewhite next attacks his sentence by arguing that the
trial court never informed the jury that it was required by law to
consider his mitigating evidence, citing Blystone v. Pennsylvania,
494 U.S. 299, 110 S.Ct. 1078 (1990). He says that a trial court's
failure to give this instruction on mitigating evidence fails to
satisfy the Eighth Amendment. Id.; Spivey v. Zant, 661 F.2d 464,
474 (5th Cir. 1981), cert. denied, 458 U.S. 1111 (1982).
Sattiewhite misreads both Blystone and Spivey. Blystone does
not require that the trial court give a special instruction on
mitigating evidence. Blystone, 110 S.Ct. at 1083-84. Instead, it
states that the "requirement of individualized sentencing in
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capital cases is satisfied by allowing the jury to consider all
relevant mitigating evidence." Id. at 1083. Furthermore, the
court in Spivey specifically recognized that Texas's special issues
allow the jury to consider mitigating evidence without a special
instruction. Spivey, 661 F.2d at 471 & n.10. Because he could not
demonstrate that a "major mitigating thrust of the evidence
[proffered in mitigation of punishment] is substantially beyond the
scope of any issues," he is not entitled to additional instructions
on mitigating evidence. Graham v. Collins, 950 F.2d 1009, 1026-27
(5th Cir. 1992). This claim, therefore, is without merit.
Sattiewhite next contends that the structure of the special
issues eliminated from the sentencing process both the judge's and
the jury's sense of responsibility for sentencing him, in
contravention to Caldwell v. Mississippi, 472 U.S. 320 (1985).
Accordingly, he argues, the judge and jury never realized the
gravity of their actions.
This claim is evaluated by determining "whether under all the
facts and circumstances, including the entire trial record, the
state has misled the jury regarding its role under state law to
believe that the responsibility for determining the appropriateness
of the defendant's death rests elsewhere." Sawyer v. Butler, 881
F.2d 1273, 1286 (5th Cir. 1989). Sattiewhite made no specific
objections to the magistrate judge's findings on this issue.
Furthermore, the magistrate judge's finding that the state did not
mislead the jury is supported by the record. We find at least five
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instances in which the jury was reminded that their decision would
determine the sentence of death or life imprisonment.
Considering the record as a whole, it appears that the jury
could not have been mistaken as to the importance of its role in
determining Sattiewhite's fate. The jury clearly knew that
although the special issues did not explicitly impose the death
penalty, affirmative answers to the special issues would result in
a death sentence for Sattiewhite. As for the judge, it is
frivolous in the extreme to argue that he did not realize his
awesome responsibility in determining Sattiewhite's sentence when
he conducted the entire trial. This claim, therefore, is without
merit.
Finally, Sattiewhite argues that imposition of the death
penalty impermissibly violates his fundamental right to life as
guaranteed by the Fifth and Fourteenth Amendments. Moreover, he
asserts that this right to life cannot be infringed unless such
infringement withstands strict scrutiny. Sattiewhite does not
demonstrate how the death penalty per se violates either the Fifth
or the Fourteenth Amendments, and neither does he cite any
authority for this proposition. Likewise, the classification of
capital defendants as a suspect class cannot be regarded as a
serious contention. Gray v. Lucas, 677 F.2d 1086, 1104 (5th Cir.
1982), cert. denied, 461 U.S. 910, 103 S.Ct. 1886 (1983).
Criminal statutes are generally measured by a "rational relation"
standard. Arceneaux v. Treen, 671 F.2d 128, 131-32 (5th Cir.
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1982). Under this standard, the death penalty serves permissible
state goals. This claim, accordingly, is without merit.
IV
For the foregoing reasons, the judgment of the district court
is AFFIRMED. Sattiewhite's stay of execution is VACATED.
AFFIRMED and VACATED.
KING, Circuit Judge, specially concurring:
I concur in the judgment of this court.
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