IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-2720
JOSEPH BENNARD NICHOLS,
Petitioner-Appellee,
Cross-Appellant,
versus
WAYNE SCOTT, Director, Texas
Department of Criminal Justice,
Institutional Division,
Respondent-Appellant,
Cross-Appellee.
Appeals from the United States District Court for the
Southern District of Texas
November 20, 1995
Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.
GARWOOD, Circuit Judge:
Petitioner-appellee, cross-appellant Joseph Bennard Nichols
(Nichols) was convicted of capital murder and sentenced to death.
After exhausting his Texas state court remedies, Nichols sought a
writ of habeas corpus in the district court below and the court
granted relief. Respondent-appellant (Respondent), the director of
the Texas Department of Criminal Justice, now appeals to this
Court. Nichols cross-appeals the district court’s denial of
certain of the remainder of his claims. We affirm in part and
reverse the district court’s grant of habeas corpus relief.
Facts and Proceedings Below
About 9:00 a.m. on the morning of October 13, 1980, Nichols,
Willie Ray Williams (Williams), Charlotte Parker (Parker), and
Evelyn Harvey (Harvey) drove to a spot in front of an apartment
building near Joseph’s Delicatessen and Grocery in Houston, Texas.
Nichols and Williams mutually intended to rob this establishment,
Nichols having suggested it as a target. Williams was armed with
a .380 semi-automatic pistol; Nichols had a snub-nosed .38
revolver. Parker parked the car and Nichols and Williams got out
and entered the deli. After entering, Nichols and Williams first
went to the back of the store, and then approached the counter.
Nichols got a corndog. Williams set a quart of beer on the counter
near the cash register. Behind the counter was deli employee
Claude Shaffer, Jr. (Shaffer). Nichols, and then Williams, each
drew their respective pistols and pointed them at Shaffer.
When Shaffer saw the guns he began to bend over or squat down.
Nichols then said something to the effect of “don’t go for the gun”
or “don’t be doing it.” Nichols then shot at Shaffer, and
immediately thereafter Williams pulled the trigger on his gun, but
it is unclear whether it then discharged.1 Shaffer then either
1
Nichols’ statement (Nichols did not testify) says “we”—he and
Williams—then shot at Shaffer. Nichols’ and Williams’ statements
were given October 17, 1980, after their arrests earlier that day.
Williams’ statement mentions only Nichols shooting at this time.
Williams’ testimony at Nichols’ trial is that Nichols drew his gun
first, that Williams then drew his, each pointing them at Shaffer;
that Nichols fired his gun; that Williams then pulled the trigger
2
fell or squatted down behind the counter. Nichols and Williams ran
to the door. Nichols exited. Williams either exited or partially
exited and then, according to his testimony at Nichols’ trial,
on his gun, but nothing happened and it did not discharge
(Williams’ testimony at his own trial does not mention his pulling
the trigger on his gun at this time). Williams testified at
Nichols’ trial that Nichols fired only once and that “he [Nichols]
was aiming at the man [Shaffer]” and “wasn’t aiming it behind him
or somewhere else or aiming it at the floor or anything” but “was
aiming at that man.” However, Williams testified that he thought
Nichols missed Shaffer because Shaffer, who was squatting, did not
go down and Williams saw no blood.
Cindy Johnson (Johnson), one of the two other deli employees
then on duty, testified that at this time Nichols shot first, but
that Williams also then shot, and that in all three, or possibly
two, shots were fired at that time. She said that after these
shots Shaffer collapsed and there was blood on his head.
James Rivera (Rivera), standing at a nearby bus stop, saw
Nichols and Williams enter the deli, shortly thereafter heard two
or three noises like “backfires,” turned, and then saw Nichols and
Williams run out of the deli.
Nichols’ statement says “We pulled our guns on the dude behind
the cash register and told him to put the money in the sak [sic].
The man behind the counter started bending over behind the counter
. . . and then he came up with a pistol . . . so we reacted and
shot.” Williams’ testimony at Nichols’ trial was that after
Nichols and he pulled their guns on Shaffer, Shaffer bent down and
came up with a gun from under the counter, pointed it at Williams,
whereupon Nichols fired; Shaffer, according to Williams’ testimony,
never fired (and there is no evidence that he did). At his own
trial, Williams testified that “before he [Shaffer] got it [the
gun] all the way up, Joe [Nichols] fired” and then Shaffer “went
down” in “a squatting position.” Johnson testified that she was
watching Shaffer, who was looking at her, after Nichols and
Williams had pointed their guns at him and that Shaffer never
touched a gun and did not reach for a gun; she admitted, however,
that in an earlier sworn statement she had said that after “one of
the men pulled a gun” Shaffer, who kept a gun under the counter,
“reached for his gun and both of the black men shot Claude.” Other
evidence showed that the gun, a .45 semi-automatic pistol, belonged
to another deli employee, and was found just after the robbery in
its accustomed place on a shelf under the counter, with a fully-
loaded clip in the handle but no shell in the chamber; there were
no fingerprints on it (Williams testified that when he went back in
and got the cash box, he looked for Shaffer’s gun but did not see
it). No .45 caliber fired bullets or empty shell casings were
found.
3
turned and fired once at Shaffer, who was still squatting behind
the counter. Williams testified that Shaffer fell back, that he
(Williams) went behind the counter to Shaffer, turned him over,
grabbed the deli’s cash box, and ran out of the deli, carrying his
gun and the cash box.2 He was picked up by Parker and Harvey, got
into the car with them, and they drove around the side of the deli
building where they saw Nichols, who then got in the car with them.
Harvey testified that Nichols told them “he had shot the man” and
“he thought he shot him in the chest,” and that Williams said he
had run back into the deli and shot the man. Parker testified that
Nichols said “I think I hit him in the chest,” and that Williams
said “he [Williams] shot the man in the shoulder.”3 A few days
later, Williams, Nichols, Parker, and Harvey were arrested.
The testimony of the Harris County Medical Examiner, Dr.
Espinola, established without contradiction that Shaffer died from
a single gunshot wound that entered his “left upper back about
seven and three fourths [inches] to the left of the midline and
three and one half inches below the top of the shoulder” and
2
At his trial Williams testified that when he and Nichols ran
into each other exiting the deli: “I attempted to go out the door,
coming behind Joe [Nichols], and he [Nichols] turned to me and said
shoot—shoot.” Williams, being then asked “And what did you do,
sir?”, replied “I just turned and shot.”
3
Rivera (see note 1, supra) testified that after he saw
Nichols and Williams run out of the deli, Williams then, gun in
hand, just in front of the deli door, “looked like he raised his
hand and aimed the gun at me”; Rivera turned away in fright, and
when he looked back both Nichols and Williams were gone; he then
heard another shot and saw Williams run out of the deli with “a
strong box” in his hand; Williams dropped the box, picked it up,
and ran off.
4
exitedSQwithout hitting any bones or “hard objects” within the
bodySQ"on the right side of the chest, 18 and one half inches from
the right of the midline and 11 inches below the top of the
shoulder.” The wound would have caused “almost immediate
disability” or “collapse.” Shaffer also had a superficial two and
a quarter inch slanting laceration on the right side of his head,
which was “consistent with a grazing type of gunshot wound” and
“could also be consistent with a person that hit their head on the
corner of an object or anything like that in a fall.” The head
wound was not disabling. No bullet or bullet fragment was found in
or on Shaffer’s body. Two empty .380 cartridge cases—ejected from
Williams’ pistol—were found in the deli, as was also a whole .380
brass-jacketed projectile or bullet, which had been fired from
Williams’ weapon. A whole, unfired .380 brass-jacketed bullet and
cartridge (with firing pin indentation on the cartridge rim) was
found just outside the deli door. Lead bullet fragments were found
on the inside of the deli door and near there on the floor along
with brass jacket fragments. Also found in the deli—in a stack of
comic books behind the counter—was a whole lead bullet that had
been fired from a .38-caliber weapon. This was a revolver-type
bullet that had never been jacketed.4
In January 1981, Williams pleaded guilty to a charge of
4
Nichols’ gun was apparently never recovered. His statement
says that after the robbery and before his arrest he had given it
back to the individual—neither whose name nor address he knew—from
whom he had borrowed it.
5
capital murder of Shaffer,5 and, accordingly, the trial court
directed the jury to return a verdict of guilty at the
guilt/innocence phase of his trial. As evidence of his guilt, the
state presented Williams’ written confession, as well as the
testimony of several witnesses including Dr. Espinola. Pursuant to
the court’s direction, the jury returned a verdict of guilty. At
the subsequent punishment phase of Williams’ trial, the defense
presented Williams’ testimony and the testimony of five witnesses
concerning Williams’ nonviolent character. The defense also called
Nichols during the punishment phase, but Nichols asserted his Fifth
Amendment privilege and declined to testify. The punishment charge
included no instruction respecting the law of parties. The jury
returned a verdict at the punishment phase of Williams’ trial
answering in the affirmative each of the three special issues then
provided for by Tex. Code Crim. Proc. art. 37.071(b).6 Pursuant to
5
The indictment alleged that Williams “did while in the course
of committing and attempting to commit the robbery of Claude
Shaffer, Jr., hereafter styled the Complainant, intentionally cause
the death of the Complainant by shooting the Complainant with a
gun.”
6
Article 37.071(b) then provided:
“(b) On conclusion of the presentation of the
evidence, the court shall submit the following issues to
the jury:
(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;
(2) whether there is a probability that the
defendant would commit criminal acts of violence that
would constitute a continuing threat to society; and
6
art. 37.071(e), Williams was accordingly sentenced to death. His
conviction and sentence were affirmed on appeal. Williams v.
State, 674 S.W.2d 315 (Tex. Crim. App. 1984).
Nichols was also indicted for the capital murder of Shaffer.7
In July 1981, Nichols was tried before a jury on his plea of not
guilty. Williams testified as a defense witness at the
guilt/innocence stage of this trial, and his testimony was
generally consistent with his prior testimony and statement.8 The
jury charge at the guilt/innocence stage included instructions on
the Texas law of parties.9 Based in large part on Williams’
(3) if raised by the evidence, whether the conduct
of the defendant in killing the deceased was unreasonable
in response to the provocation, if any, by the deceased.”
7
The indictment alleged that Nichols “did while in the course
of committing and attempting to commit robbery, intentionally cause
the death of Claude Shaffer, Jr., hereafter styled the Complainant,
by shooting the Complainant with a gun.”
8
Williams' testimony at Nichols' first trial did not, however,
include that referenced in note 2, supra. Nichols did not testify
during either phase of the July 1981 trial.
9
Texas Penal Code art. 7.01 provides:
Ҥ 7.01. Parties to Offenses
(a) A person is criminally responsible as a party to
an offense if the offense is committed by his own
conduct, by the conduct of another for which he is
criminal responsible, or by both.
(b) Each party to an offense may be charged with
commission of the offense.
(c) All traditional distinctions between accomplices
and principals are abolished by this section, and each
party to an offense may be charged and convicted without
alleging that he acted as a principal or accomplice.”
Tex. Penal Code art. 7.02 provides:
7
testimony, the defense argued that the fatal shot was fired by
Williams from the deli door when he came back in and got the cash
box, and that Nichols was not guilty under the law of parties
because the planned robbery was over and Williams was acting
independently. The state argued that Williams’ testimony that he
shot Shaffer from the door when he came back in was not worthy of
belief “because he’s got to shoot through the cash register and all
Ҥ 7.02. Criminal Responsibility for Conduct of Another
(a) A person is criminally responsible for an
offense committed by the conduct of another if:
. . .
(2) acting with intent to promote or assist the
commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to
commit the offense;
. . .
(b) If, in the attempt to carry out a conspiracy to
commit one felony, another felony is committed by one of
the conspirators, all conspirators are guilty of the
felony actually committed, though having no intent to
commit it, if the offense was committed in furtherance of
the unlawful purpose and was one that should have been
anticipated as a result of the carrying out of the
conspiracy.”
Texas law has long recognized that the law of parties is
applicable to a case and may be properly charged on if raised by
the evidence even if not alleged in the indictment. Pitts v.
State, 569 S.W.2d 898, 900 (Tex. Crim. App. 1978); Crank v. State,
761 S.W.2d 328, 351 (Tex. Crim. App. 1988); Montoya v. State, 810
S.W.2d 160, 165 (Tex. Crim. App.), cert. denied, 112 S.Ct. 426
(1991). Indeed, this was the Texas law well prior to the enactment
(in 1973) of arts. 7.01 and 7.02. See Pitts at 900; Frias v.
State, 376 S.W.2d 764, 765 (Tex. Crim. App. 1964) (“‘The acts which
make the defendant a principal need not be alleged in the
indictment. A principal offender may be charged directly with the
commission of the offense although it may not have actually been
committed by him . . .’”).
8
that junk to get here.” The state also argued that Nichols told
Harvey that “he shot first, that he shot the man in the chest, in
the chest area, the body, not in the head, not in the leg, not in
the arm, but in the chest area, the body. That’s what the
defendant did.” However, the main thrust of the state’s argument
was that regardless of who fired the fatal shot, and regardless of
whether Williams’ testimony was credited, Nichols was guilty under
the law of parties. The jury returned a verdict finding Nichols
guilty of capital murder. The punishment stage of the trial then
ensued, testimony was presented by the state and the defense, and
the case was submitted to the jury on the three statutory special
issues (see note 6, supra). The punishment charge included no
instruction on the law of parties. After considerable
deliberation, the jury foreman announced that the jury had arrived
at a verdict on two of the special issues, and tendered to the
court a verdict form in which the first and third special issues
were each answered “yes,” and the second special issue (future
dangerousness) was not answered. The court ruled the verdict was
incomplete, refused to accept it, and returned the jury for further
deliberations. The jury eventually sent a note stating “the jury
is still unable to reach a verdict on the remaining special issue.”
Thereafter, defense counsel moved for a mistrial because the jury
could not reach a verdict. The court explained to Nichols
personally that if a mistrial were declared then the matter would
be retried before another jury. After ascertaining that Nichols
understood and that he personally requested and moved for a
9
mistrial, the court, on July 31, 1981, called the jury back in,
announced that a mistrial had been declared, and formally
discharged the jury.
The assistant district attorney trying the case thereafter
interviewed some of the jurors and, as the district court below
found, “learned from those jurors that whether or not Nichols was
the ‘triggerman’ had caused problems for the jury in considering
the death penalty.” Nichols v. Collins, 802 F.Supp. 66, 75 (S.D.
Tex. 1992).
In February 1982, Nichols was tried before another jury on the
same indictment. Generally the same evidence was presented as at
his first trial in July 1981. The prosecutor was the same as in
that first trial. In the guilt/innocence phase, Williams was
called as a defense witness but claimed his Fifth Amendment
privilege and refused to testify. The defense then put in evidence
Williams’ testimony as given at Nichols’ first trial.10 At the
close of the evidence on the guilt/innocence stage of the trial,
the trial court extensively instructed the jury on the Texas law of
parties (see note 9, supra) such that the jury could, depending on
what else it found, find Nichols guilty as charged either for
personally having fired the fatal shot or for the fatal shot fired
by Williams, if that was done pursuant to and in furtherance of
their conspiracy to rob the deli and should have been anticipated
10
Nichols did not testify at either stage of his February 1982
trial.
10
by Nichols as a result of carrying out the conspiracy.11 The
defense argued, as it had at Nichols’ first trial, that Williams
fired the fatal shot from the deli door as he exited and came back
in, and that this was, in the words of the charge, “the separate
act of Willie Ray Williams, acting independently,” for which
Nichols would not be responsible. The state primarily argued that
Nichols fired the fatal shot. But, it also argued extensively, in
the alternative, that even if Williams had fired the fatal shot,
Nichols was guilty of capital murder under the law of parties.12
11
The charge also submitted the lesser included offense of
murder.
12
Thus, for example, the prosecutor argued:
“This lawsuit, if you really boil it down, concerns
itself with parties, the law of parties given to you in
number five and number six of this charge. Note that in
parties to be guilty of capital murder as a party to it,
a defendant does not have to fire the fatal shot that
killed somebody.” (Emphasis added).
The prosecutor further argued:
“The Judge has instructed you to find the defendant
guilty of capital murder if you believe from the
evidence, number one, that he’s involved in a conspiracy
to rob, number two, that at the time of the robbery he
was doing something to help or make that robbery
successful, that there was a murder and that somebody had
the specific intent to kill somebody, either Jojo had it
or Willie had it, either one. It doesn’t matter. That
the murder was done in furtherance of the original plan
of the robbery, to help it in some way or to get away,
immediate flight therefrom. And you must believe that
this murder was an offense that the defendant should have
anticipated.
If you believe those five things from the evidence
it will be your duty to find that man guilty of capital
murder.” (Emphasis added).
Additionally, the prosecutor argued:
11
The jury returned its verdict finding Nichols guilty of capital
murder.
At the subsequent punishment phase the state submitted
evidence that Nichols had been convicted of theft in 1979, and had
pleaded guilty in May 1980 to an April 1980 robbery for which he
was sentenced in July 1980 to nine years' felony probation, which
he was serving when he committed the instant offense.
Additionally, it was shown that on August 13, 1980, Nichols
committed an armed robbery of a convenience store, shooting the
clerk in the shoulder when he did not respond speedily enough to
Nichols' demand for more money. Nichols continued to demand more
money as the clerk was bleeding from his wound. Further, on
October 11, 1980, two days before the present offense, Nichols
committed another robbery of a convenience store, aiming his pistol
“The defense is saying that what you really have
here is a situation where there are cracks in the law and
we want you to let Jojo Nichols slip through these cracks
and get away. Well, the legislature thought about that.
They’re not completely dumb up there. Somebody told them
what to do. And they have the law of parties. It fills
in the cracks. It’s like the mortar in a brick wall.
You guys are all responsible when you go in there with
loaded guns under certain conditions. Was there a
conspiracy to rob, rob them of anything, money, guns,
anything else. Was there a conspiracy to rob. The
defense admits that, yes, there was. When the robbery
occurred, was Jojo doing anything to promote or assist
that robbery? The defense admits, yes, he was pointing
a gun, telling you to put money in the sack and fired a
gun. The defense admits it. He fired a gun before he
ran out that door.
Was there a murder? You bet. And it doesn’t matter
who killed him under our law, under this rule of parties.
Was it reasonable to expect that this could happen? Of
course.” (Emphasis added).
12
at the clerks. There was also evidence that when booked into jail
following his arrest for the instant offense, Nichols had stated he
would "shoot any deputy that got in his way." Finally, there was
evidence that in June 1981, while in jail awaiting trial, Nichols
conspired with others to engage in an escape involving the use of
a firearm and other weapons. The defense called fifteen witnesses.
Many testified they thought Nichols could be rehabilitated, that he
was nineteen at the time of the offense, and that at school he had
had average grades, had been an excellent athlete, and had
presented no disciplinary problems. His parents divorced when he
was seven, but both maintained a good relationship with him. He
married, and dropped out of school, at about age seventeen to
support his young child. His parents thought he had gotten into
trouble due to the pressure he was under to support his young child
and because he got in with a bad crowd.
The court submitted the three punishment special issues to the
jury (see note 6, supra). No instruction was given respecting the
law of parties. The defense argued, among other things, that the
fatal shot was fired by Williams, and that any shooting was in
reaction to Shaffer’s having grabbed his gun. Emphasis was put on
Nichols’ youth, his family, his character witnesses, and his
potential for rehabilitation. The state argued that Nichols fired
the fatal shot, but did not argue any of the special issues solely
on that theory.13 It stressed Nichols’ prior offenses and conduct
13
For example, in respect to the first special issue, dealing
with deliberateness, the prosecutor argued:
13
in jail. Neither side argued that the verdict of guilty
established or meant that Nichols fired the fatal shot, or that any
of the special issues were to be answered by reference to
Williams’, rather than Nichols’, state of mind or conduct or the
like. On February 26, 1982, the jury returned its verdict
answering all three special issues in the affirmative, and the
court sentenced Nichols to death.
One of Nichols’ trial attorneys, E. Neil Lane (Lane), was
appointed to represent Nichols on direct appeal. After receiving
leave from the court, attorney Brian Wice was allowed to substitute
as Nichols' appellate counsel. Wice filed a supplemental brief
that raised twenty points of error. After considering each of the
issues raised in the original brief filed by Lane and each of the
issues raised in the Wice supplemental brief, the Texas Court of
Criminal Appeals affirmed the conviction and sentence. Nichols’
conviction became final on January 9, 1989, when the United States
Supreme Court denied certiorari. See Nichols v. State, 754 S.W.2d
185 (Tex. Crim. App. 1988), cert. denied, 109 S.Ct. 819 (1989).14
“Was his conduct deliberate. He doesn’t have to fire the
fatal shot. But was his conduct deliberate. You bet it
was deliberate. It was even more than that. He planned
that robbery. He picked that store. It was a
premeditated robbery. He thought about the fact that
he’s going to need a gun when he went in there. You know
that he meant to use it because it was loaded and you
know he fired that gun into an innocent man.” (Emphasis
added).
14
Affirmance by the Court of Criminal Appeals was unanimous
except for one judge who noted, without elaboration, that he would
have sustained Lane’s point of error concerning the trial court’s
sua sponte excuse of a prospective juror; two judges concurred in
the result without opinion.
14
In May 1989, Nichols, now represented by new counsel, two
attorneys of a leading Houston law firm, filed an 86-page
application for habeas corpus in the Texas trial court. Amended
applications were filed on June 9, 1989, January 8, 1990, and June
6, 1990, the latter being some 123 pages long. The state filed an
answer and amended answer supported by affidavits. On October 19
and November 2, 1990, the Texas trial court conducted an
evidentiary hearing on Nichols’ claims of ineffective assistance of
counsel and his statistical challenge to the Texas death penalty
statute as unconstitutional in its application. The trial court on
June 28, 1991, entered an order recommending denial of all relief
and adopting verbatim the state’s amended proposed findings of fact
and conclusions of law. On December 12, 1991, the Texas Court of
Criminal Appeals denied all relief in an order stating in relevant
part: “The trial court, after holding an evidentiary hearing, has
entered findings of fact and conclusions of law and recommended the
relief sought be denied. This Court has reviewed the record with
respect to the allegations now made by applicant and finds that the
findings and conclusions entered by the trial court are supported
by the record. The relief sought is denied.”
Nichols, represented by the same counsel who represented him
in his state habeas proceedings, in January 1992 filed the instant
petition under 28 U.S.C. § 2254 in the district court below.
Nichols asserted numerous claims before the district court,
including (1) that the punishment special issues precluded the jury
from considering or giving effect to mitigating character evidence
15
and to evidence that Nichols did not kill Shaffer; (2) that the
prosecutor’s use of contradictory theories at the trials of
Williams and Nichols violated the doctrines of judicial estoppel,
collateral estoppel, due process, and the duty to seek justice; (3)
that Williams should have been compelled by the court to testify
for the defense because he waived his right to remain silent when
he testified at the first Nichols trial; (4) that retrial of
Nichols constituted double jeopardy; (5) that the prosecutor
knowingly failed to correct perjured testimony given by Parker
about her cooperation agreement with the state and created the
false impression in his summation that she was unaware of a promise
of leniency that her attorney received in exchange for her
testimony; (6) that the Texas death penalty statute and its
consistent interpretation by the Court of Criminal Appeals operated
to deny Nichols his rights under the Sixth, Eighth, and Fourteenth
Amendments; (7) that Nichols was denied effective assistance of
both trial and appellate counsel; (8) that Nichols was denied a
meaningful direct appeal; and (9) that various instances of claimed
prosecutorial misconduct occurred. The state answered and moved
for summary judgment.
The district court held an evidentiary hearing in March 1992.15
On August 31, 1992, the district court granted habeas relief and
15
On February 3, 1992, the district court had denied the
state’s motion to dismiss on the basis that the scheduled
evidentiary hearing embraced unexhausted claims.
16
ordered Nichols released or retried within 120 days.16 The district
court based its decision to grant relief on its conclusions that
(1) the major mitigating thrust of Nichols’ claimed nontriggerman
role in the offense was beyond the scope of any of the punishment
special issues; (2) by arguing that Nichols fired the shot that
killed Shaffer after obtaining a death sentence against Williams
for killing Shaffer, the state violated principles of
constitutional collateral estoppel; and (3) the foregoing two
conclusions, taken in combination with certain aspects of the state
habeas proceedings, resulted in denial of Nichols’ due process
rights. Nichols, 802 F.Supp. at 71-79. The district court
determined, however, that the referenced aspects of the state
habeas proceeding did not preclude the state habeas court’s
findings from being accorded the presumption of correctness called
for by 28 U.S.C. § 2254(d), id. at 70, except the district court
declined to accord that presumption to the finding that “‘[t]he
jury was presented with overwhelming evidence that both applicant
[Nichols] and Williams shot Shaffer,’” “because the record, as a
whole, does not fairly support such factual determination” in that
“the only conclusion which the record supports is that both
Williams and Nichols shot at Shaffer but that either Williams or
Nichols actually shot Shaffer.” Id. at 75 (original emphasis).17
16
We subsequently stayed the district court's order pending
this appeal.
17
We would agree with this latter conclusion of the district
court had it said that “either Williams or Nichols actually fired
the shot that killed Shaffer.” The record not only clearly shows,
without contradiction, that both Nichols and Williams fired at
17
The district court denied the remainder of Nichols’ claims,18
except a claim, raised for the first time in briefing following the
March 1992 federal evidentiary hearing,19 concerning the state’s
alleged suppression of exculpatory evidence contrary to Brady v.
Maryland, 373 U.S. 83 (1963), which Brady claim the district court
found unexhausted and “denied without prejudice to refiling after
ShafferSQindeed, the instant habeas petition avers that "it was
undisputed that all of the shots were fired with intent to
kill"SQbut also allows the reasonable inference that both hit him
(though only one bullet, that which went through Shaffer's body,
was fatal, while the other, the superficial, glancing wound on the
side of his head, was neither fatal nor disabling).
18
The district court denied all the claims concerning: (1)
improper prosecutorial voir dire and other statements and argument
(apart from the argument that Nichols, rather than Williams, fired
the fatal shot, which, as above noted, the court found improperly
inconsistent with the prosecution position in Williams’ trial); (2)
the prosecutor’s failure to correct Parker’s testimony about the
agreement concerning her testimony and creating the false
impression in argument that she was unaware of this; (3) Nichols’
denial of counsel at two line-ups; (4) all claims of denial of
effective assistance of counsel, in preparation, at
guilt/innocence, at sentencing, and on appeal; (5) the state court
erroneously failing to compel Williams to testify at Nichols’
second trial; (6) that Nichols’ second trial violated double
jeopardy, particularly as had the first trial concluded on or after
August 31, 1981 (instead of July 31, 1981) the amended version of
Tex. Code Crim. Proc. art. 37.071(e) would have been in effect
under which the inability of the jury to answer any of the three
punishment issues would have resulted in a sentence of life
imprisonment; (7) the unconstitutionality of the Texas capital
sentencing statutory provisions, both facially and as applied in
this case (including the alleged inability of the jury to give
mitigating effect to Nichols’ youth and character evidence and
potential, but unpresented, evidence of drug and/or alcohol use,
the failure to define both reasonable doubt and certain terms in
the special issues, and the failure to adequately narrow the class
of those exposed to the death penalty); and (8) excusing of certain
potential jurors. Id. at 69-70, 75, 76-78.
19
The mentioned post-hearing briefing referred to the allegedly
exculpatory information contained in “documents obtained just prior
to the [March 1992] hearing.” Id. at 79.
18
exhausting state remedies.” Id. at 79.20
Respondent now appeals the district court’s grant of habeas
relief. Nichols cross-appeals the court’s denial of some (but not
all) of his other claims.
Discussion
I. Respondent's Appeal
A. Mitigating Effect of Nichols' Role in the Offense Beyond
Scope of Special Issues
Respondent argues that the district court erred in concluding
that the mitigating effect of Nichols' claimed nontriggerman status
was beyond the scope of the special issues. Respondent asserts
that the district court's conclusion is contrary to Fifth Circuit
precedent and that, even if it were not, the court ignored a state
procedural bar based on Nichols' failure to object to the charge on
this basis or to request an anti-parties instruction at the
sentencing phase of his state trial.
The Court of Criminal Appeals on direct appeal rejected
Nichols' point of error complaining of the failure to give an
"anti-parties" charge at the punishment phase of the trial because
Nichols failed to request or object to the absence of such a
20
The district court for the same reason denied Nichols' motion
“to expand the record in this cause or to reconvene the evidentiary
hearing in order to consider evidence relating to this [Brady]
issue.” Id. The motion to expand the record referred, inter alia,
to an April 9, 1992, affidavit of Johnson stating, among other
things, that just after Nichols shot at Shaffer she "saw the taller
guy (Williams) lean across over the counter, and shoot his gun down
at Mr. Shaffer. This is the shot that went through Mr. Shaffer's
chest and killed him," that "I just stood there frozen until the
men left the store," and that she then hid in the restroom and
while there "heard someone come back into the store and then
immediately leave again after firing another shot."
19
charge. Nichols, 754 S.W.2d at 198-199. The Court recognized that
the law of parties did not apply at the punishment stage, but held
that the punishment special issues adequately covered the
requirements of Enmund v. Florida, 102 S.Ct. 3368 (1982),21 and
Green v. State, 682 S.W.2d 271 (Tex. Crim. App. 1984), cert.
denied, 105 S.Ct. 1407 (1985).22 The Court found that
". . . appellant was not egregiously harmed by the lack
of such a charge. Although the jury was charged on the
law of parties at the guilt stage, it cannot be presumed
that they considered the same during punishment. To the
contrary, the careful trial court, while not having the
benefit of the Green decision at the time of trial, voir
dired the jury on the fact that the law of parties, while
applicable at guilt, was not applicable to the punishment
21
In Enmund, the Court held that the Eighth Amendment prohibits
imposition of the death penalty on one "who aids and abets a felony
in the course of which a murder is committed by others but who does
not himself kill, attempt to kill, or intend that a killing take
place or that lethal force will be employed." Id. at 3376
(emphasis added). In Tison v. Arizona, 107 S.Ct. 1676, 1688
(1987), the Court held that "major participation in the felony
committed, combined with reckless indifference to human life, is
sufficient to satisfy the Enmund culpability requirement." See
also Schad v. Arizona, 111 S.Ct. 2491 (1991).
22
In Green, the Court of Criminal Appeals affirmed the death
sentence of a nontriggerman, but stated that the law of parties did
not apply at sentencing to authorize affirmative answers to the
special issues based on the state of mind or conduct of others, and
overruled Wilder and Armour v. State, 583 S.W.2d 349 (Tex. Crim.
App. 1979), "as far as it is inconsistent with this opinion."
Green at 287. Green further states that "[u]pon request by a
capital murder defendant or the State, the jury is to be instructed
at the punishment phase that only the conduct of the defendant can
be considered at the punishment phase, and that the instructions
pertaining to the law of parties given at the guilt stage cannot be
considered. Appellant did not request any such charge in this
case." Id. at 287 n.4.
Wilder and Armour arguably, though neither expressly nor
clearly, held that the law of parties could be applied in reviewing
the sufficiency of the evidence to sustain affirmative answers to
the punishment special issues (it did not involve or consider any
instructional issue, and there is no indication that there was any
instruction at the punishment phase concerning the law of parties).
20
special issues. Moreover, the special issues themselves
incorporate the Enmund-Green requirements by directly
focusing upon solely the defendant's culpability.
. . .
While a prophylactic 'anti-parties' instruction should be
given at punishment, upon request, the absence of such an
instruction in the instant case did not constitute
egregious error or harm." Nichols at 199 (footnote
omitted).
The state habeas court specifically rejected Nichols' claim
that the punishment special issues, combined with the failure to
give an "anti-parties" instruction at the punishment phase,
unconstitutionally prevented the jury from adequately considering
and giving favorable effect to his claimed nontriggerman status, on
the basis that such claim was procedurally barred by Nichols'
failure to object to the punishment charge on that basis or to
request an "anti-parties" or other special punishment instruction
in that respect.23 The Court of Criminal Appeals determined that
the state habeas court's findings were proper and denied relief on
that basis.
We conclude that Nichols has not shown cause for his
procedural default in this respect, and further has not
demonstrated prejudice, so his claim in this regard is procedurally
barred, as respondent asserted below. This holding is plainly
mandated by our holding in Buxton v. Collins, 925 F.2d 816, 820-822
(5th Cir.), cert. denied, 111 S.Ct. 1095 (1991), as well as by the
23
Alternatively, the court held that the jury was not precluded
by the special issues and the absence of an anti-parties
instruction from considering and giving favorable effect to
Nichols' asserted nontriggerman status.
21
principles of Wainwright v. Sykes, 97 S.Ct. 2497 (1977), and Engle
v. Isaac, 102 S.Ct. 1558 (1982), and their progeny.24
Moreover, and apart from any procedural bar, Nichols' claim
fails on the merits. In Harris v. Collins, 990 F.2d 185, 189 (5th
Cir.), cert. denied, 113 S.Ct. 3069 (1993), a case where a capital
defendant's conviction may have rested on the law of parties, we
specifically held that if the jury believed the defendant did not
strike the fatal blow this was a matter they could consider as
favorable to a negative answer to both the first and second
punishment issues. See also Bridge v. Collins, 963 F.2d 767, 770
(5th Cir. 1992), and Drew v. Collins, 964 F.2d 411, 421 (5th Cir.
1992).25 Further, in Stewart v. Collins, 978 F.2d 199, 201 (5th
24
The district court did not address the procedural bar issue.
Nichols argues that Selvage v. Collins, 816 S.W.2d 390 (Tex. Crim.
App. 1991), and Black v. State, 816 S.W.2d 350, 364, 374 (Tex.
Crim. App. 1991), demonstrate that Texas does not apply the
procedural bar to certain Penry v. Lynaugh, 109 S.Ct. 2924 (1989),
claims in cases tried before the Supreme Court's decision in Penry.
However, the Court of Criminal Appeals decisions in Selvage and
Black were handed down May 29, 1991, and the habeas procedural bar
ruling by the state trial court in Nichols' case was rendered June
28, 1991, and that of the Court of Criminal Appeals applying the
procedural bar was rendered December 12, 1991. Moreover, in Buxton
we expressly declined to withhold decision awaiting the Court of
Criminal Appeals decision in Selvage, noting the differences
between the "nontriggerman" issue there and the type of Penry issue
involved in Selvage. See Buxton at 821-822.
That "cause" is not established as a matter of federal habeas
law is also clear from Selvage v. Collins, 975 F.2d 131 (5th Cir.
1992), cert. denied, 113 S.Ct. 2445 (1993).
25
In Bridge we stated: "If the jury members believed that
Bridge's accomplice killed the victim, then they could have
answered 'no' to the first question . . . . If the jury members
believed that Bridge did not shoot the victim, then they could have
concluded that Bridge would not be a future threat." Id. at 770.
We quoted the above language with approval in Harris and likewise
there pointed out that in both Bridge and Drew a law of parties
charge had been given at the guilt/innocence stage. Harris at 189.
22
Cir. 1992), cert. denied, 113 S.Ct. 1951 (1993), we held that the
jury at the punishment stage could adequately consider the
defendant's asserted "nontriggerman" role in the capital murder and
his lack of intent to kill as supportive of negative answers to
each of the first and second punishment special issues. More
recently, in Jacobs v. Scott, 31 F.3d 1319, 1326 & n.13 (5th Cir.
1994), cert. denied, 115 S.Ct. 771 (1995), we again held that the
first and second punishment special issues adequately allowed the
jury to give mitigating effect to claimed "nontriggerman" status,
notwithstanding the absence of an "anti-parties" instruction at
sentencing.26 See also, e.g., Skillern v. Estelle, 720 F.2d 839,
843 (5th Cir. 1983), cert. denied, 105 S.Ct. 224 (1984); Johnson v.
McCotter, 804 F.2d 300 (5th Cir. 1986), cert. denied, 107 S.Ct.
1262 (1987); Andrews v. Collins, 21 F.3d 612, 630-31 (5th Cir.
1994).
We further note that no law of parties instruction was given
at the punishment phase, and that neither the prosecution nor the
defense ever argued or asserted that the law of parties applied at
the punishment phase or that the finding of guilty meant that the
jury in answering any of the punishment issues had to assume that
Nichols fired the fatal shot or that Williams' conduct and state of
There is nothing to suggest that an "anti-parties" instruction was
given at sentencing in either Bridge or Drew. An "anti-parties"
charge was not given at sentencing in Harris.
26
We likewise held that this was so despite the failure to
define "deliberately" in the first special issue. Id. at 1326
n.13. See also Nethery v. Collins, 993 F.3d 1154, 1162 & n.28 (5th
Cir. 1993), cert. denied, 114 S.Ct. 1416 (1994).
23
mind, rather than Nichols', was the relevant consideration in
answering any of the punishment issues. The defense stressed in
argument at the punishment phase that Williams, not Nichols, fired
the fatal shot. It is apparent, considering the entire record,
from voir dire through sentencing, that all concerned operated on
the assumption that the law of parties did not apply at sentencing.
Moreover, as the court below found, some jurors in Nichols' first
trial did take into account in voting for a negative answer to the
second special issue their belief that Nichols was not the
triggerman, notwithstanding that the law of parties was instructed
on at the guilt/innocence stage and no "anti-parties" instruction
was given at the punishment phase. We are convinced that there is
no "reasonable likelihood," Estelle v. McGuire, 112 S.Ct. 475, 482
(1991); Johnson v. Texas, 113 S.Ct. 2658, 2669 (1993), that the
punishment phase jury in Nichols' February 1982 trial applied or
understood the punishment phase instructions or special issues as
other than allowing them to consider Nichols' claimed
"nontriggerman" status as a factor that could favor a negative
answer to the first and second sentencing issues. The mitigating
aspect of the evidence of Nichols' claimed "nontriggerman" status
was "within 'the effective reach of the sentencer.'" Johnson at
2669 (quoting Graham v. Collins, 113 S.Ct. 892, 901 (1993)).
We hold that Nichols is entitled to no relief on his claim
that the instructions and special issues at the punishment phase
precluded the jury from adequately considering or giving mitigating
effect to his claimed nontriggerman status, and that the district
24
court erred in holding to the contrary.
B. EstoppelSQDue Process
Respondent next argues that the district court improperly
granted relief on the basis of its conclusion that the prosecutor
violated principles of estoppel and due process by arguing for and
obtaining a conviction and death sentence against two men for
firing a single bullet. Respondent contends that the district
court in this respect granted Nichols the benefit of a new rule not
compelled by existing precedent when Nichols' conviction became
final, contrary to Teague v. Lane, 109 S.Ct. 1060 (1989), and that
in any event the district court erred because collateral estoppel
is not applicable in criminal cases lacking common defendants, and
even if it were, the question of who fired the fatal bullet is not
an issue to which estoppel would apply.
The district court concluded that "the due process boundary
upon prosecutorial conduct and the appearance of basic fairness
derived from that boundary command[s] a determination that, in a
criminal prosecution, the State is constitutionally estopped from
obtaining a fact finding in one trial and seeking and obtaining an
inconsistent fact finding in another trial." Nichols, 802 F.Supp.
at 74 (emphasis added). The court also noted that while "Williams
and Nichols can both be guilty of capital murder because the state
of Texas has determined, by law, that both are equally culpable
without regard to who fired the bullet which killed Shaffer. . . .
William and Nichols cannot both be guilty of firing the same bullet
25
because physics will not permit it." Id. (emphasis in original).
The district court did not conclude that Williams had in fact fired
the fatal bullet, or that any of the prosecutor's evidence and
argument in Nichols' trial was factually false. With respect to
the state's arguments in Nichols' second trial that Nichols fired
the fatal shot and its arguments in Williams' case that Williams
did, the court stated "this Court acknowledges the State's argument
that the above are merely different interpretations of the same
evidence," id. at 74, and the court never suggested that this
characterization was factually inaccurate. Nor did the district
court with respect to what the evidence showed at any of the three
trials ever state anything in this respect more definite or precise
than "the only conclusion which the record supports is that both
Williams and Nichols shot at Shaffer but that either Williams or
Nichols actually shot Shaffer." Id. at 73 (original emphasis).27
What the district court did determine was that, regardless of what
the actual facts were or what the evidence showed, the Williams
trial legally or judicially established that Williams, not Nichols,
fired the fatal shot. Thus, the district court stated:
". . . the State argued, the jury found, and the court
accepted the determination in the Williams trial that
Williams was the triggerman, not just a party to the
offense. That fact was established as the truth. This
Court has also concluded that the prosecutor in charge of
27
As previously observed, we would agree with this assessment
if "actually shot Shaffer" read "actually fired the shot that
killed Shaffer" (see note 17, supra).
The Court of Criminal Appeals was essentially correct in its
statementSQnever disputed by the district courtSQthat "[i]t is
factually unknowable and evidentiarily improvable who fired the
fatal shot." Nichols v. State at 202, n.18.
26
Nichols II offered evidence and argued to the jury and
court that Nichols was the triggerman. By prior judicial
determination, the evidence submitted was necessarily
false. Accordingly, this Court finds that the prosecutor
in charge of Nichols II knowingly used false evidence to
obtain the conviction and sentence in Nichols II." Id.
at 75.
The district court, citing Rogers v. Lynaugh, 848 F.2d 606
(5th Cir. 1988), noted that due process violations could either be
specific, where particular protections of the Bill of Rights
incorporated into the Fourteenth Amendment were transgressed, or
"generic." Nichols, 802 F.Supp. at 72. As no particular Bill of
Rights provision was cited by the district court, it appears to
have relied on the concept of a "generic" due process violation.
But such a concept generally focuses on the reliability or fairness
of the fact finding process in the particular trial the result of
which is being challenged. Cf. Rogers at 610 (noting that
prosecutor's injecting into the challenged trial "issues broader
than the guilt or innocence of the accused under the controlling
law" could constitute a generic due process violation). What
happened in Williams' trialSQwhich the Nichols defense team was
clearly aware ofSQdid not affect the reliability or fairness of the
fact finding process in either of Nichols' trials.
What the district court in substance did here was to hold that
the state was collaterally estopped from taking in Nichols' case a
different position as to who fired the fatal bullet than that which
it took in Williams' prosecution. As the Supreme Court observed in
Schiro v. Farley, 114 S.Ct. 783, 790 (1994):
"In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25
L.Ed.2d 469 (1970), we held that the Double Jeopardy
27
Clause incorporates the doctrine of collateral estoppel
in criminal proceedings. . . . Collateral estoppel, or,
in modern usage, issue preclusion, 'means simply that
when an issue of ultimate fact has once been determined
by a valid and final judgment, that issue cannot again be
litigated between the same parties in any future
lawsuit.' Ashe, 397 U.S., at 443, 90 S.Ct., at 1194."
(Emphasis added).
It is apparent from this that Ashe, which was a state prosecution,
rests not on "generic" due process, but rather on the double
jeopardy clause of the Fifth Amendment, which Benton v. Maryland,
89 S.Ct. 2056 (1960), had previously held was incorporated into the
Fourteenth Amendment's due process clause. We have rejected
"attempts to erect a due process basis, independent of the double
jeopardy clause, for the application of collateral estoppel."
Showery v. Samaniego, 814 F.2d 200, 203 (5th Cir. 1987).28
Because Nichols was not in jeopardy in Williams' trial, the
results of that trial do not bind the state in its prosecution of
Nichols. Moreover, the rule of "collateral estoppel" described in
Ashe as having been applied in federal criminal cases for "more
than 50 years"SQand which it ultimately held mandated by the double
jeopardy clauseSQrequired that the two actions be between "the same
parties." Ashe, 90 S.Ct. at 1194. Thus, because Nichols was not
a party in Williams' trial, the result in that trial could not
collaterally estop the state in its prosecution of Nichols even
28
As we also stated in Showery, "Ashe thus makes it clear that
collateral estoppel applies insofar as it is necessary to safeguard
against the risk of double jeopardy." Id.
Showery further points out that prior to Benton the Court in
Hoag v. New Jersey, 78 S.Ct. 831 (1958), in a factual setting
almost identical to that of Ashe, had rejected a due process
challenge to the defendant's second trial. Showery at 203.
28
under the federal common law rule of collateral estoppel in
criminal cases. We have declined to apply collateral estoppel
against the United States in a criminal prosecution on the basis of
an earlier determination in the United States' criminal prosecution
of a different defendant. United States v. Mollier, 853 F.2d 1169,
1176 (5th Cir. 1988) (where defendants are different "collateral
estoppel has no application in criminal cases"); United States v.
Montes, 976 F.2d 235, 239 (5th Cir. 1992) (same), cert. denied, 113
S.Ct. 1831 (1993).
We recognize, as we did in Mollier and Montes, that in civil
cases collateral estoppel is now applied even where the parties are
not the same, so that if a suitor has fully and fairly litigated an
issue and it is determined against him in an action against one
party, then third parties unrelated to the original action can
generally bar that suitor from relitigating that same issue in a
subsequent action again them. See Mollier at 1175 n.7; Montes at
239. However, as we pointed out in Mollier, citing Standefer v.
United States, 100 S.Ct. 1999 (1980), the "efficiency concerns that
drive the collateral estoppel policy on the civil side are not
nearly so important in criminal cases." Mollier at 1176. We also
observe that even in the civil context the modern broad rule of
collateral estoppel is frequently not applied against the
government acting in its sovereign capacity. See United States v.
Mendoza, 104 S.Ct. 568 (1984) (holding in an immigration context
that the government could not be collaterally estopped from
litigating a constitutional issue concerning its administration of
29
the Nationality Act, adjudicated against it in a prior action
brought by a different party). Moreover, we observe that "[u]ntil
relatively recently, however, the scope of collateral estoppel was
limited by the doctrine of mutuality of parties." Parklane Hosiery
Co., Inc. v. Shore, 99 S.Ct. 645, 649 (1979). See also Restatement
of Judgments § 93 (1942) ("[A] person who is not a party . . . is
not bound by or entitled to claim the benefits of an
adjudication"). Consequently, allowing persons to claim collateral
estoppel benefits of an adjudication to which they were strangers
can hardly be considered as mandated by historic concepts of
fundamental fairness or due process.
Moreover, the district court clearly erred in its conclusion
that in the Williams trial the jury found that Williams fired the
fatal shot. The jury made no such finding. Williams pleaded
guilty and the jury was instructed to return a verdict of guilty.
It did so, merely signing and returning the verdict form finding
Williams "guilty of the offense of capital murder, as charged in
the indictment." The jury charge said nothing about the elements
of the offense or about whether Williams fired the fatal bullet (or
personally killed Shaffer) or whether the jury had to so find.29
29
The court charged the Williams jury:
"The Defendant, WILLIE RAY WILLIAMS, stands charged
by indictment with the offense of capital murder, alleged
to have been committed in Harris County, Texas on or
about the 13th day of October, 1980.
To this charge the defendant has pleaded 'guilty',
and he has persisted in entering such plea,
notwithstanding the Court, as required by law, has
admonished him of the consequences of the same; and it
30
Nor is it relevant that the indictment (see note 5, supra) alleged
that Williams killed Shaffer by shooting him, for under Texas law
the indictment was clearly sufficient to support a conviction based
on the law of parties with the fatal shot being fired by Nichols
(see cases cited in the last paragraph of note 9, supra).
Moreover, the evidence at the guilt/innocence stage of Williams'
trial showed that both Williams and Nichols were acting together to
commit armed robbery of Shaffer, that both fired at Shaffer, and
that one of these shots was fatal, but it was not clearly
established which. While the evidence would support the conclusion
that Williams fired the fatal shot, a jury could have had a
reasonable doubt of this and still found Williams guilty as charged
under the law of parties. In any event, under Texas law when a
defendant pleads guilty before the jury, as Williams did, the plea
itself establishes his guilt and the evidence is unnecessary and
immaterial unless it affirmatively demonstrates his innocence.
Williams, 674 S.W. 2d at 318, 320.30 And, the punishment phase
plainly appearing to the Court that the defendant is
sane, and that he is not influenced to make this plea by
any consideration of fear, nor by any persuasive or
delusive hope of pardon prompting him to confess his
guilt, said plea is by the Court received, and the jury
are instructed to find the defendant guilty as charged in
the indictment." (Emphasis added).
After the charge was read, the court instructed the jury:
"You unanimously sign this verdict as I have instructed you and
come back out, and we will receive the verdict."
30
See also, e.g., Darden v. State, 430 S.W.2d 494, 495 (Tex.
Crim. App. 1968) ("a plea of guilty to a felony charge before a
jury admits the existence of all facts necessary to establish
guilt"); Miller v. State, 412 S.W.2d 650, 651 (Tex. Crim. App.
1967) (same); Anderson v. State, 42 S.W.2d 1012 (Tex. Crim. App.
31
verdict contained no finding that Williams fired the fatal shot.
Further, neither the form of the punishment issues, nor the court's
charge, nor the evidence, required such a finding in order to
return an affirmative answer to the three punishment special
issues.31 Although the Court of Criminal Appeals in reciting the
evidence on Williams' direct appeal stated that he fired the fatal
shot, Williams at 317, nothing in its opinion suggests that this
was a necessary predicate for its affirmance of the sentence (or
the conviction). In finding the evidence sufficient to support the
affirmative answers to the punishment special issues, the Court of
1931) ("the entry of the plea, after due admonition, is conclusive
of guilt, unless the evidence introduced upon the trial makes
manifest the innocence of the accused").
31
We note that Williams was twenty-four years old; during the
three months prior to his arrest, he had committed five other
robberies, two of which were after the instant offense.
At sentencing, Williams' counsel argued that the evidence did
not clearly show whether the fatal shot was that fired by Williams
or that fired by Nichols:
"You had JoJo [Nichols], a man who suggested the place we
are going to rob. The man who went up to the cash
register first. The man who fired the first shot. And
possibly, the fatal shot. We don't know. The District
Attorney is going to come up with a lot of conjecture
about where the casings and so forth were found. That's
merely conjecture. We don't know which shot did it.
They were both a party to it. You heard JoJo sit there
and plead the Fifth Amendment."
However, defense counsel never argued that any of the issues could
not be answered affirmatively unless the jury concluded that
Williams fired the fatal shot. The main thrust of defense
counsel's argument was that Williams shot without reflection in a
frightened reaction to Shaffer's pointing a gun at him, so all
three issues should be answered in the negative. The prosection
argued that Williams' shot was the fatal shot, but never conceded
that such a conclusion was necessary to answer any of the issues
affirmatively.
32
Criminal Appeals in Williams relied on Smith v. State, 540 S.W.2d
693 (1976), a case in which it sustained a death sentence for a
nontriggerman (there, the defendant's "gun misfired. The co-
defendant shot and killed the attendant"). Williams at 321. In
Nichols' case, the Court of Criminal Appeals held the evidence
sufficient to support the affirmative answers to the three special
issues although it concluded it was "factually unknown and
evidentiarily improvable who fired the fatal shot." Nichols, 754
S.W.2d at 202 n.18.32
In Dowling v. United States, 110 S.Ct. 668, 672 (1990), the
Court noted that the rule of Ashe was that "'when an issue of
ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same
parties in any future lawsuit.'" Id. (quoting Ashe at 1194).
Dowling refused to give the defendant's prior acquittal in another
case preclusive effect because "the prior acquittal did not
determine an ultimate issue in the present case." Dowling at 672.
In Schiro, the Court rejected a claim of double jeopardy based on
the jury verdict in the defendant's first trial, because the
defendant "has not met his burden of establishing . . . that an
'issue of ultimate fact has once been determined' in his favor."
Id., 114 S.Ct. at 790. Here Nichols has failed to demonstrate that
32
Nor is there any basis on which to conclude that the jury in
the second Nichols trial, either in its verdict of guilty or in its
answer to the punishment special issues, found that Nichols, rather
than Williams, fired the fatal shot. See text accompanying note
11, supra, and notes 12 and 13, supra, and accompanying text.
The verdicts and the judgments of conviction and sentences in
Williams' and Nichols' cases are not inconsistent.
33
Williams' trial determined that Williams, rather than Nichols,
fired the fatal shot. Nichols has likewise failed to demonstrate
that whether Williams, rather than Nichols, fired the fatal shot
was an "ultimate issue" in either his own trial or in Williams'
trial. Hence Nichols fails to meet the requirements of collateral
estoppel on these additional bases, as well as because he was not
a party to the Williams case.
Nichols also contends in this connection that the state was
barred by the doctrine of judicial estoppel from taking a position
in his trial inconsistent with that it had taken in Williams', a
view which the district court appears to likewise have adopted.
Common law judicial estoppel has been referred to as an
"obscure doctrine," United States v. McCaskey, 9 F.3d 368, 378 (5th
Cir. 1993), cert. denied, 114 S.Ct. 1565 (1994); United States v.
Kattar, 840 F.2d 118, 129-130 n.7 (1st Cir. 1988), lacking "defined
principles" and subject to criticism as "basically an 'ad hoc'
decision in each case." Jackson Jordan, Inc. v. Plasser American
Corp., 747 F.2d 1567, 1579 (Fed. Cir. 1984). See also Morris v.
State of California, 966 F.2d 448, 453 (9th Cir. 1991) ("the
doctrine of judicial estoppel 'is an equitable doctrine invoked by
the court at its discretion'"), cert. denied, 113 S.Ct. 96 (1992).
"The doctrine has not been uniformly adopted by federal courts."
Bates v. Long Island Ry. Co., 997 F.2d 1028, 1037 (2d Cir.), cert.
denied, 114 S.Ct. 550 (1993). "The Tenth Circuit, however, has
rejected the doctrine of judicial estoppel." United States v.
49.01 Acres of Land, 802 F.2d 387, 390 (10th Cir. 1986). In
34
Konstantindis v. Chen, 626 F.2d 933, 938 (D.C. Cir. 1980), the
court held that "the judicial estoppel doctrine has no validity in
this jurisdiction," referring to local District of Columbia law,
and stated that "judicial estoppel has not been followed by
anything approaching a majority of jurisdictions, nor is there a
discernible modern trend in that direction." In UMWA 1974 Pension
v. Pittston Co., 984 F.2d 469 (D.C. Cir.), cert. denied, 113 S.Ct.
3069 (1993), the Court observed "we have not previously embraced
the doctrine of judicial estoppel in this circuit and we decline to
do so in this case." Id. at 477 (footnote omitted). In Bates the
Second Circuit stated that judicial estoppel's "elements have never
been clearly defined in this Circuit." Id. at 1037 (footnote
omitted). See also Morris at 452 ("Although this circuit has
adopted the doctrine of judicial estoppel, we have not yet
determined the circumstances under which it will be applied").
Two things, however, may be said about the rather amorphous
doctrine of judicial estoppel. First, there is no indication in
the authorities that it is constitutionally mandated. Second, it
has apparently never been applied against the government in a
criminal case. See McCaskey at 378 ("an obscure doctrine that has
apparently never been applied in a criminal case"); Kattar at 129-
30 n.7 ("as far as we can tell, this obscure doctrine has never
been applied against the government in a criminal proceeding").
See also, e.g., State v. Abbott, 64 N.J. Super. 191, 165 A.2d 537,
543 (App. Div. 1960) ("the application of estoppel against the
State is particularly inappropriate in areas such as criminal
35
prosecution"), rev'd on other grounds, aff'd in this respect, 36
N.J. 63, 174 A.2d 881, 889 (N.J. 1961); 28 Am.Jur.2d, Estoppel and
Waiver, § 126 at 788 (same). Cf. Office of Personnel Management v.
Richmond, 110 S.Ct. 2465, 2470 ("we have reversed every finding of
estoppel [against the government] that we have reviewed"), 2471
("[w]e leave for another day whether an estoppel claim could ever
succeed against the Government") (1990).33
33
There is considerable authority that judicial estoppel does
not apply in favor of one who was not a party to the prior
proceeding in which the inconsistent position was taken. See,
e.g., Colonial Refrigerated Transportation, Inc. v. Mitchell, 403
F.2d 541, 550 (5th Cir. 1968) (Rubin, J.) ("judicial estoppel may
be invoked only by a party to the prior litigation or someone privy
to a party"); Jackson Jordan, Inc. at 1579 ("No case is cited where
the doctrine was applied in favor of a total stranger to the first
phase of the dispute"); Reno v. Beckett, 555 F.2d 747, 770 (10th
Cir. 1977) ("Kansas law is clear that a position taken by a party
in one suit cannot be claimed as working an estoppel in another
suit in favor of a party who was a stranger to the first suit").
See also Sinclair Refining Co. v. Jenkins Petroleum Process Co., 99
F.2d 9, 13 (5th Cir. 1938), cert. denied, 59 S.Ct. 362 (1939) ("The
general rule is that one may not to the prejudice of the other deny
any position taken in a prior judicial proceeding between the same
parties or their privies involving the same subject matter, if
successfully maintained"); Scarano v. Central Ry. Co. of New
Jersey, 203 F.2d 510, 513 (3d Cir. 1953) ("A plaintiff who has
obtained relief from an adversary by asserting and offering proof
to support one position may not be heard later in the same court to
contradict himself in an effort to establish against the same
adversary a second claim inconsistent with his earlier
contention"); Chemical Bank v. Aetna Insurance Company, 99 Misc.2d
803, 417 N.Y.S.2d 382, 384-85 (N.Y. Sup. Ct. 1979) ("Defendant in
this action, being a legal 'stranger' to the prior action, it may
not avail itself of the defense of judicial estoppel based upon
plaintiff's alleged inconsistent legal position in that action");
28 Am. Jur. 2d, Estoppel and Waiver, § 70 at 698. Cf. Guidry v.
Sheet Metal Workers, 10 F.3d 700, 716 (10th Cir. 1993) ("judicial
estoppel . . . recognized by some circuits, prevents a party from
relying on inconsistent arguments in successive stages of
litigation when the party was victorious on the point in a prior
phase of the case"); In re Double D Drilling Company, 467 F.2d 468,
469 (5th Cir. 1972) (Brown, C.J.) ("Our research discloses no case
in this Circuit in which pleadings in identifiably separate actions
were made the basis of such an estoppel. The consolidation order
36
In the present circumstances, to hold that the state was
constitutionally barred by any form of estoppelSQwhether under the
rubric of collateral estoppel or some variety of judicial or other
estoppelSQfrom taking the position in Nichols' case that the shot
he fired was the fatal shot because it had previously taken the
position in Williams' case, in which Williams received the death
sentence, that the fatal shot was the one fired by Williams, would
be to apply "a new rule" of constitutional law "not dictated by
precedent existing at the time" Nichols' "conviction became
final"SQJanuary 9, 1989SQcontrary to Teague v. Lane, 109 S.Ct. 1061,
1070 (1989) (original emphasis). The two Teague exceptions are
inapplicable. The rule contended for by Nichols plainly is not one
which "places 'certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to
proscribe.'" Teague at 1075. Certainly, Nichols was properly
eligible for the death penalty whether or not the shot he fired at
ShafferSQas opposed to that fired by his co-actor WilliamsSQwas the
of the District Court, however, created what is in essence a single
lawsuit . . . and we hold that when identity of parties and a
single transaction encompass both actions a party making such an
allegation is bound by it"). There is also, however, authority
that the party invoking the estoppel need not have been a party to
the prior proceeding. See Allen v. Zurich Ins. Co., 667 F.2d 1162,
1166-68 (4th Cir. 1982); 1B Moore's Federal Practice ¶ 0.405[8] at
III-57 ("it is not always essential that the party asserting the
estoppel have been a party to the litigation in which the first
position was asserted").
Moreover, most courts refuse to invoke judicial estoppel where
it is not shown that the prior inconsistent position was
successfully maintained. See U.S. for Use of American Bank v.
C.I.T. Const., 944 F.2d 253, 258-59 (5th Cir. 1991) (described as
"majority" position); Merrill Lynch v. Georgiadis, 903 F.2d 109,
114 (2d Cir. 1990); Sinclair Refining Co. at 13; Guidry at 716; 28
Am. Jur. 2d, Estoppel and Waiver, § 70 at 698.
37
cause of Shaffer's death. Nor is the other Teague exception
available here, as it applies only to rules "those new procedures
without which the likelihood of an accurate conviction is seriously
diminished." Id. at 1077 (emphasis added). What the prosecution
argued in the Williams case, and the result there, has nothing to
do with the likely accuracy of any determinations made in the
subsequent Nichols case.
As noted, a rule is "new" for Teague purposes unless
"dictated" by prior precedent. Id. at 1070 (original emphasis);
Butler v. McKellar, 110 S.Ct. 1212, 1216 (1990). The prior
precedent must be such that it would have "compelled" the result;
Saffle v. Parks, 110 S.Ct. 1257, 1260 (1990), and it is not enough
that the contended for rule merely "is within the 'logical compass'
of an earlier decision, or indeed that it is 'controlled' by a
prior decision." Butler at 1217. The authority relied on by
Nichols does not come even close to meeting this standard.34 Nor
34
Nichols cites no supporting Supreme Court or Fifth Circuit
authority. He relies primarily on the concurring opinion of Judge
T. Clark in Drake v. Kemp, 762 F.2d 1449, 1470-1479 (11th Cir.
1985) (en banc). No other judge of the en banc Eleventh Circuit
joined that opinion. We do not view it as compelling authority.
Nichols also relies on Troedel v. Wainwright, 667 F.Supp. 1456,
1458-60 (S.D. Fla. 1986), aff'd 828 F.2d 670 (11th Cir. 1987). In
Troedel, the district court granted habeas corpus on several
grounds, including that the prosecutor had put in evidence
testimony by an expert "that, based upon the test analyses coupled
with his education, training and experience, in his opinion,
Troedel had fired the murder weapon," id. at 1458, but "the opinion
Troedel had fired the weapon was known by the prosecution not to be
based on the results of the neutron activation analysis tests, or
on any scientific certainty or even probability. Thus, the subject
testimony was not only misleading, but also was used by the State
knowing it to be misleading." Id. at 1460. While the Troedel
district court looked to the expert's testimony at a prior trial,
it also relied on the expert's testimony at the federal habeas, in
38
can this result be avoided by invoking longstanding judicial
pronouncements that due process concerns itself with fundamental
fairness and similar concepts. Such "a level of generality . . .
is far too great to provide any meaningful guidance for purpose of
our Teague inquiry." Gilmore v. Taylor, 113 S.Ct. 2112, 2119
(1993). See also Sawyer v. Smith, 110 S.Ct. 2822, 2828 (1990)
(Teague "test would be meaningless if applied at this level of
generality").
In Jacobs v. Scott, 31 F.2d 1319, 1326 (5th Cir. 1994), cert.
denied, 115 S.Ct. 711 (1995), we held that a similar contention to
that advanced by Nichols here was barred by Teague.
We accordingly hold that the district court erred in granting
concluding that his testimony at Troedel's trial was factually
misleading (and known by the prosecutor to be so). No form of
estoppel or "constructive" falsity was involved. Troedel is
plainly distinguishable and is in any event not controlling
authority. Nichols also relies on Pettaway v. Plummer, 943 F.2d
1041 (9th Cir. 1991), cert. denied, 113 S.Ct. 296 (1992). But
Pettaway was decided after Nichols' conviction became final. It is
not on point in any event. It held that an express jury special
verdictSQmandated by state statuteSQthat the defendant did not
personally fire the fatal shot prevented the state, on retrial of
the same defendant, from taking the position that the defendant did
personally fire the fatal shot. Pettaway relied on Ashe and Grady
v. Corbin, 110 S.Ct. 2084 (1990SQsince overruled by United States
v. Dixon, 113 S.Ct. 2849 (1993)SQand the panel there noted "[w]e
must, however, emphasize the limits of our holding." Pettaway at
1048.
Nichols' invocation of Miller v. Pate, 386 U.S. 1 (1967), is
wholly wide of the mark. Miller condemned a prosecutor's use of
evidence and argument that stains on the defendant's undershorts
were blood when they were in fact paint, as the prosecutor then
well knew. That was a case of factual, actual falsity, not
"constructive" falsity or falsity by estoppel as contended for
here. To rely on Miller as an escape from Teague requires
compelling pre-1989 authority both that falsity by estoppel is
constitutionally the same as actual, factual falsity and also that
constitutionally mandated estoppel applies here. There simply is
no such authority in either respect.
39
Nichols relief on the basis that the state was in some manner
estopped or barred by its arguments and the result in the Williams
trial from taking the position in the subsequent Nichols trial that
the shot fired by Nichols was the fatal shot. Relief on any such
basis was barred by Teague.
C. Cumulative Due Process
The district court, relying on the panel opinion in Derden v.
McNeel, 938 F.2d 605 (5th Cir. 1991),35 held that the combination
of the two above-noted grounds on which it granted reliefSQthat the
punishment issues did not allow mitigating consideration of
Nichols' alleged non-triggerman status and that the state was
estopped to argue that the shot fired by Nichols was the fatal
shotSQplus certain aspects of the state trial court's habeas
proceedings,36 amounted to "cumulative error" which "resulted in a
35
At the time of the district court's opinion, the panel
opinion in Derden had been vacated for nearly a year and the case
ordered reheard en banc. Derden v. McNeel, 947 F.2d 147 (5th Cir.
1991). The en banc court subsequently reversed the panel decision
and adopted a significantly narrower articulation of the habeas
cumulative error doctrine. Derden v. McNeel, 978 F.2d 1453 (5th
Cir. 1992), cert. denied, 113 S.Ct. 2928 (1993).
36
The district court made the following findings regarding
Judge William Harmon, the state court judge to whom Nichols' habeas
petition was assigned:
"1. The state judge to which Nichols' state habeas
corpus petition was assigned, Judge William Harmon, was
a state prosecutor before becoming a district judge.
2. Judge Harmon was, while a state prosecutor, in
charge of prosecuting at least one offense against
Nichols.
3. The offense which Judge Harmon prosecuted
against Nichols was one of the extraneous offenses
offered in connection with his conviction in the instant
case.
4. Judge Harmon did not sua sponte recuse himself
40
denial of due process." Nichols, 802 F.Supp. at 78-79. Our en
banc opinion in Derden states:
"federal habeas corpus relief may only be granted for
cumulative errors in the conduct of a state trial where
(1) the individual errors involved matters of
constitutional dimension rather than mere violations of
state law; (2) the errors were not procedurally defaulted
for habeas purposes; and (3) the errors 'so infected the
entire trial that the resulting conviction violates due
process.'" Derden v. McNeel, 978 F.2d 1453, 1454 (5th
Cir. 1992) (en banc) (quoting Cupp v. Naughten, 94 S.Ct.
396, 400-01 (1973)), cert. denied, 113 S.Ct. 2928
(1993).37
from Nichols['] state habeas corpus case.
5. Judge Harmon made certain remarks on the record
after hearing evidence and argument during Nichols' state
habeas corpus hearing. In response to a witness'
suggestion that Nichols' counsel could obtain statistical
data regarding habeas corpus cases by issuing a bench
warrant to bring each Harris County inmate in for a
hearing, Judge Harmon responded 'Could we arrange for a
van to blow up the bus on the way down here?'
6. On June 28, 1991, Judge Harmon signed thirty-
five pages of findings of fact and conclusions of law
(hereinafter 'Court findings') which resolved the merits
of Nichols' state habeas corpus petition.
7. Those 'Court findings,' actually entitled
'Respondent's Amended Proposed Findings of Fact,
Conclusions of Law and Order,' are a verbatim adoption of
the State's proposed findings and reflect no independent
input from the state district judge." Nichols, 802
F.Supp. at 78-79.
Judge Harmon did not preside over any part of either of
Nichols' trials for Shaffer's murder, nor over Williams' trial.
The district court concluded that notwithstanding his above
findings, the state court's habeas findings were (with one
exception unrelated to those district court findings) entitled to
the presumption of correctness. Nichols, 802 F.Supp. at 70. We
agree with this conclusion for the reasons stated in the text infra
in our discussion of Nichols' cross-appeal claim that the district
court erred in this respect.
37
The en banc court further stated in Derden that "[t]he
conduct of a trial judge can violate due process only if the judge
so favors the prosecution that he appears to predispose the jury
toward a finding of guilt or to take over the prosecutorial role."
Id. at 1459 (citing United States v. Middlebrooks, 618 F.2d 273,
41
Since, as we have held, the jury was not unconstitutionally
prevented from taking into account Nichols' claimed non-triggerman
status in answering the punishment special issues, and the state
was not constitutionally barred or estopped from arguing that the
shot fired by Nichols was the fatal shot, therefore neither of
these matters can form the basis for a proper claim of
constitutional cumulative error. That leaves only the matter of
the state habeas proceedings. However, errors in a state habeas
proceeding cannot serve as a basis for setting aside a valid
original conviction. An attack on a state habeas proceeding does
not entitle the petitioner to habeas relief in respect to his
conviction, as it "is an attack on a proceeding collateral to the
detention and not the detention itself." Millard v. Lynaugh, 810
F.2d 1403, 1410 (5th Cir.), cert. denied, 108 S.Ct. 122 (1987);
Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992)
("infirmities in state habeas proceedings do not constitute grounds
for federal habeas relief"), cert. denied, 113 S.Ct. 1958 (1993);
Vail v. Procunier, 747 F.2d 277 (5th Cir. 1984) (same). See also
Frazen v. Brinkman, 877 F.2d 26 (9th Cir. 1989); Hopkinson v.
Shillinger, 866 F.2d 1185, 1218-1220 (10th Cir. 1989); Bryant v.
State of Md., 848 F.2d 492 (4th Cir. 1988); Kirby v. Dutton, 794
F.2d 245, 247 (6th Cir. 1986); Williams v. Missouri, 640 F.2d 140,
143 (8th Cir.), cert. denied, 101 S.Ct. 2328 (1981).
Accordingly, the district court erred in its holding that
277 (5th Cir.), cert. denied, 101 S.Ct. 401 (1980), and United
States v. Sheldon, 544 F.2d 213, 219 (5th Cir. 1976)).
42
Nichols was entitled to relief on the court's cumulative error
theory.
Having rejected each of the bases on which the district court
granted habeas relief, we sustain the state's appeal and reverse
the judgment of the district court insofar as it granted Nichols
habeas relief. We turn now to consider Nichols' cross-appeal.
II. Nichols' Cross-Appeal
A. Presumption of Correctness of State Court Findings
Nichols complains that the district court erred in affording
the section 2254(d) presumption of correctness to the state habeas
court fact findings, contending that the following three
circumstances precluded application of the presumption, namely:
(1) the failure of the state habeas trial judgeSQJudge Harmon (who
did not preside at either of Nichols' trials)SQto sua sponte recuse
himself on account of having been the prosecuting attorney in
Nichols' May 1980 guilty plea conviction for robbery, which
conviction had been put in evidence by the state at the punishment
stage of Nichols' trial; (2) an inappropriate remark made by Judge
Harmon at the state habeas evidentiary hearing; (3) Judge Harmon's
having adopted verbatim the state's proposed findings of fact and
conclusions of law on the state habeas proceeding. While the
district court found that these matters had occurred (see note 36,
supra), it concluded that they did not justify denying the
presumption of correctness to the state court findings, and further
concluded that it would evaluate each state finding individually in
the light of the entire record, including that of the federal
43
habeas proceedings. Nichols, 802 F.Supp. at 70.38 The only state
habeas fact finding which the district court ultimately determined
not to be entitled to the presumption of correctness was the
finding that "[t]he jury was presented with overwhelming evidence
that both the applicant and Williams shot Shaffer,"39 the district
court instead determining "that the only conclusion which the
record supports is that both Williams and Nichols shot at Shaffer
but that either Williams or Nichols actually shot Shaffer." Id. at
75 (original emphasis).40
Nichols has not demonstrated error in the district court's
failing to reject the other state court habeas factfindings. We
conclude that the above-mentioned three circumstances relied on by
Nichols do not, singly or collectively, mandate a contrary
determination. We consider these seriatim.
With respect to Judge Harmon's having been prosecutor in
38
The district court stated:
"This Court determines that the irregularities [cited by
Nichols] neither fall within the statutory provisions
which authorize this Court to disregard fact findings nor
do they amount to convincing evidence that all fact
findings were erroneous. Therefore, upon a review of the
entire record, along with this Court's supplemental
evidentiary hearing, the Court will evaluate each finding
of fact individually to determine the proper application
of the presumption of correctness." Id.
39
The district court rejected this finding "because the record,
as a whole, does not fairly support such factual determination and
because Nichols has established by convincing evidence that . . .
[it] was erroneous." Id. at 75.
40
As previously observed (see note 17, supra), we conclude that
the record allows the reasonable inference that bullets fired by
both Williams and Nichols struck Shaffer, although only one was
fatal (or disabling).
44
Nichols' May 1980 guilty plea to robbery, which prior conviction
had been put in evidence at the punishment stage of Nichols' trial,
we observe that neither the validity of that conviction (and the
related sentence) nor its use at Nichols' sentencing was in any way
at issue in either Nichols' trial (or direct appeal) or in his
state habeas proceeding (which commenced in 1989), or in this
federal habeas. As a matter of Texas law, Judge Harmon clearly was
not disqualified from serving as the habeas trial judge. See,
e.g., Hathorne v. State, 459 S.W.2d 826, 829, 833 (Tex. Crim. App.
1970), cert. denied, 91 S.Ct. 1398 (1971).41 We have previously
indicated that in a comparable position, a federal judge would not
be disqualified under 28 U.S.C. § 455. United States v. Outler,
659 F.2d 1306, 1312-13 (5th Cir. 1981), cert. denied, 102 S.Ct.
1453 (1982). See also Adams v. United States, 302 F.2d 307 (5th
Cir. 1962). And, it is settled that "section 455 establishes a
statutory disqualification standard more demanding than that
required by the Due Process Clause." United States v. Crouch, 896
F.2d 78, 81 (5th Cir. 1990).
The complained of remark of Judge Harmon came at a portion of
the state habeas evidentiary hearing dealing with Nichols' effort
to mount a statistical challenge to the Texas capital sentencing
scheme, when "in response to a witness' suggestion that Nichols'
41
Construing Tex. Const. Art. V, § 11 ("No judge shall sit in
any case wherein . . . he shall have been counsel in the case") and
Tex. Code Crim. Proc. Art. 30.01 ("No judge . . . shall sit in any
case . . . where he has been of counsel for the State or the
accused"). See also Ex parte Miller, 696 S.W.2d 908, 909 (Tex.
Crim. App. 1985) (these provisions not violated unless "the judge
actually acted as counsel in the very case before him").
45
counsel could obtain statistical data regarding habeas corpus cases
by issuing a bench warrant to bring each Harris County inmate in
for a hearing, Judge Harmon responded 'Could we arrange for a van
to blow up the bus on the way down here?'" Nichols, 802 F.Supp. at
79. We are unable to conclude that this clearly inappropriate
remark was anything more than an ill-considered, off-the-cuff
attempt to inject humor into the proceeding. Though the remark was
plainly tasteless and out of place, it does not establish bias and
prejudice. Certainly, there is no indication that Nichols or
either of his counsel so understood the remark at the time. Cf.
Lowenfield v. Phelps, 108 S.Ct. 546, 552 (1988). Moreover, these
remarks were made near the conclusion of a full evidentiary hearing
fairly and impartially conducted with due regard for Nichols'
rights. Cf. United States v. Wade, 931 F.2d 300, 302-305 (5th
Cir.), cert. denied, 112 S.Ct. 247 (1991); Pomeroy v. Merit Plaza
Nursing Home, 760 F.2d 654, 657-659 (5th Cir. 1985). "[J]udicial
remarks during the course of a trial that are . . . disapproving
of, or even hostile to, . . . the parties, or their cases,
ordinarily do not support a bias or partiality challenge" unless
"they reveal such a high degree of favoritism or antagonism as to
make fair judgment impossible." Liteky v. United States, 114 S.Ct.
1147, 1157 (1994). No such showing is even approached here.
As for the complaint that Judge Harmon adopted the state's
proposed findings and conclusions, that is fully answered by
Anderson v. City of Bessemer City, N.C., 105 S.Ct. 1504, 1511
(1985) ("even when the trial judge adopts proposed findings
46
verbatim, the findings . . . may be reversed only if clearly
erroneous").
Section 2254(d) requires that state court findings be afforded
a presumption of correctness unless it is shown that one or more of
eight specified exceptions are applicable. The three circumstances
relied on by Nichols are potentially relevant only to the sixth and
seventh exceptions: "(6) that the applicant did not receive a
full, fair, and adequate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in
the State court proceedings; . . . ." The state habeas court
afforded NicholsSQrepresented by two competent lawyersSQevery
opportunity to present his contentions, allowing the filing of an
original and three amended habeas petitions over a period of more
than a year, and conducting an evidentiary hearing with full
opportunity to present evidence, even continuing the hearing in
order for Nichols' counsel to locate an additional witness.
Nichols clearly had a "fair" hearing,42 and was not denied due
process in connection with the state court habeas proceedings.43
We reject Nichols' contention that the district court erred by
42
The three matters Nichols points to have no meaningful
relevance to whether the hearing was "full" or "adequate," as
distinguished from "fair." In any event, we also conclude that the
hearing was "full" and "adequate."
43
We also observe that the Court of Criminal Appeals on
December 12, 1991, based on its own review of the record,
determined that the habeas trial court's June 28, 1991, findings
and conclusions were appropriate and denied relief on the basis
thereof. No challenge has been made to the Court of Criminal
Appeals habeas proceedings. Cf. Briddle v. Scott, 63 F.3d 364, 375
(5th Cir. 1995).
47
according the section 2254(d) presumption of correctness to the
state habeas factfindings.
B. Mitigating Effect of Nichols' Character Evidence Beyond
Scope of Special Issues
Nichols argues that the district court erred by failing to
find that the punishment phase special issues (see note 6, supra)
did not allow the jury to give effect to Nichols' mitigating
character evidence. We reject this contention. At the least, the
second special issue concerning future dangerousness provided an
adequate vehicle for the jury to give effect to this mitigating
evidence, placing it within the effective reach of the sentencer,
and there is no reasonable likelihood that the jury would have
found itself foreclosed from thus considering it. The Supreme
Court and this Court have many times so held. See Johnson, 113
S.Ct. at 2669; Crank v. Collins, 19 F.3d 172, 175 (5th Cir.), cert.
denied, 114 S.Ct. 2699 (1994); James v. Collins, 987 F.2d 1116,
1122 (5th Cir.), cert. denied, 113 S.Ct. 990 (1993); Barnard v.
Collins, 958 F.2d 634, 640 (5th Cir. 1992), cert. denied, 113 S.Ct.
990 (1993); Graham v. Collins, 950 F.2d 1009, 1030-1033 (5th Cir.
1992) (en banc), aff'd on other grounds, 113 S.Ct. 2658 (1993).
Cf. Jurek v. Texas, 96 S.Ct. 2950, 2954 (1976). No Penry-type
evidence was presented. See Penry v. Lynaugh, 109 S.Ct. 2934
(1989).
C. Complaints of the Prosecutor's Jury Argument
Nichols complains of various instances of allegedly improper
argument by the prosecution, mostly at sentencing, asserting that
he was thereby denied a fair trial and deprived of due process of
48
law. We reject this contention, and find no error in the district
court's denial of relief in this connection.
Where improper prosecutorial argument is asserted as a basis
for habeas relief, "'it is not enough that the prosecutors' remarks
were undesirable or even universally condemned,'" rather "[t]he
relevant question is whether the prosecutors' comments 'so infected
the trial with unfairness as to make the resulting conviction a
denial of due process.'" Darden v. Wainwright, 106 S.Ct. 2464,
2471 (1986). In order to constitute a denial of due process "'the
acts complained of must be of such quality as necessarily prevent
a fair trial,'" Derden, 978 F.2d at 1457. Moreover, the burden is
on the habeas petitioner to also show a reasonable probability
"that but for these remarks" the result would have been different.
See Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir. 1986).
Further, failure to object to an argumentSQwholly apart from
questions of procedural barSQis an indication that it was not
perceived as having a substantial adverse effect, Derden at 1458,
or would not naturally and necessarily be understood as advancing
improper considerations. Milton v. Procunier, 744 F.2d 1091, 1095
(5th Cir. 1984), cert. denied, 471 U.S. 1030 (1985). See also
Lowenfield, 108 S.Ct. at 552.
We now turn to the specific instances complained of by
Nichols.
(i) Nichols initially complains that in argument at the
punishment stage the prosecutor improperly injected religion. No
objection was made to this argument, and on direct appeal the Court
49
of Criminal Appeals held that complaint in this respect was
accordingly waived. Nichols, 754 S.W.2d at 199-200. The same
holding was made on the state habeas (together with the alternative
holding that on the merits relief was not warranted). No cause
being shown for the failure to object, the claim is procedurally
barred under the principles of Wainwright v. Sykes and Engle v.
Isaac and their progeny. See Andrews v. Collins, 21 F.2d 612, 628
(5th Cir. 1994), cert. denied, 113 S.Ct. 2405 (1993).44
Moreover, the claim is lacking in merit even if it were not
barred. At the punishment stage the defense introduced testimony
of a priest who, at Nichols' request, visited him several times
while he was in jail awaiting trial. The priest testified on
direct that he had "first met" Nichols ten years earlier, but had
never visited in his home or seen him at church, that while in jail
Nichols' attitude changed from one of depression to remorse and
contrition, and that if given a chance Nichols could become a
constructive citizen. On cross, he admitted that he did not know
what Nichols was doing in the some ten years after he first met him
and when he saw him in jail. The defense, near the end of its
punishment argument, called attention to the priest's testimony.
The now complained of prosecution argument45 was in response. The
44
As we have recognized many times, most recently in Amos v.
Scott, 61 F.3d 333, 339-345 (5th Cir. 1995), the Texas
contemporaneous objection rule is an adequate state procedural
ground on which to base denial of federal habeas review of a claim
denied under Texas law for failure to object.
45
"Well, better roll out the priest. A man he
had not seen in ten years. All of a sudden we
have a jailhouse Christian. I submit to you
50
natural understanding of the thrust of this argument is that the
jury could reasonably infer that the priest did not really know
Nichols and that Nichols' supposed change to remorse and contrition
was not genuine. Such a contention is essentially proper. There
is absolutely no reasonable likelihood that these brief passages of
argument (or anything else in the trial) created a meaningful risk
that the jury verdict was to any extent based on Nichols' religious
beliefs (or lack thereof, or on any inference in that regard from
the priest's failure to testify in regard thereto).
(ii) Complaint is also made of prosecution arguments at
sentencing concerning the victim's character, which are also
asserted to have been outside the record. Again, there was no
objection to these arguments, and the state habeas court held them
for that reason barred (and, alternatively, not to justify relief
on the merits). This claim is hence foreclosed by the procedural
bar.
It also fails on the merits. The prosecutor's reference to
the grief and loss of the victim's family and his asking the jury
to consider the victim were essentially within the range of
argument held not to offend the Eighth Amendment in Payne v.
Tennessee, 111 S.Ct. 2597 (1991). This is also the case with
that this Harris County jail has converted
more sinners than all of the churches in
Houston, Texas, right up until just after
their trials. It's interesting for you to
note that the priest never said one word to
you about the sacrament of confession. He
said not one word to you about conversion to
Christianity."
51
respect to the brief reference to Shaffer's employment and being
killed while at work. There was no argument (or evidence) as to
"opinions of the victim's family about the crime, the defendant,
and the appropriate sentence." Id. at 2612 (O'Connor, J.,
concurring). There was nothing so inflammatory about the argument
as to render the entire sentencing proceeding unfair. Id. at 2612
(O'Connor, J., concurring), 2614 (Souter, J., concurring).
MoreoverSQand also dispositive of the contention that the argument
went beyond the evidence46SQdefense counsel in his argument had
already raised these matters, arguing that "my heart goes out to
his [Shaffer's] family" and "[t]hey [Shaffer's family] have had a
terrible tragedy in their family."47 Defense counsel further argued
"I doubt very seriously if the Shaffer family would get any
satisfaction from" imposition of the death sentence on Nichols, and
stated "I feel for them but taking Joe's life is not going to help
them a bit" but could "hurt a lot of other folks." Defense counsel
46
The part of the argument now so challenged was:
"You ought to be thankful that the State did not choose
to show you the grief or misery of the other family
involved in this. The Schaeffer [sic] family. We could
have put Mrs. Schaeffer [sic] right there on the stand
and let you watch her cry. We could have ask [sic] her
what JoJo Nichols has done to her life forever . . . I
could have asked . . . who is going to take care of you
in your old age. Surely it's not going to be Joseph
Nichols."
This was immediately followed by the statement "We chose to
spare you that because it is our duty and your duty to look solely
at the evidence and not cry for either side."
47
Similarly, a defense sentencing witness testified on direct
"my heart goes out to the Shaffer family."
52
also referred in this connection to the testimony of a defense
sentencing witness who stated he was willing to do "whatever it
takes" (or "whatever needs to be done") for Shaffer. Suffering by
the Shaffer family was a premise the defense had already explicitly
raised and accepted in its sentencing phase argument. The
prosecutor reminded the jury "to look solely at the evidence and
not cry for either side." There was no deprivation of due process
or fundamental unfairness in the prosecution's response.48
(iii) Nichols next complains of two prosecutorial arguments
48
Complaint is also made that the following two sentencing
arguments were not supported by the evidence: "And he'll gun you
down if he gets the slightest opportunity," and "That's a
lifestyle. Ever since the man has been able to walk he's been
stealing and running wild."
We note to begin with that no objection was made to either
argument. No complaint was made on direct appeal or in the state
habeas in regard thereto. It is clear that the Texas
contemporaneous objection rule would bar relief on these claims, as
it did on all Nichols' claims respecting unobjected to arguments
which were raised in state court. Accordingly, these claims are
subject to procedural bar in federal habeas. Teague, 109 S.Ct. at
1068-69. We also note that these claims were not raised in the
federal habeas petition below, and, although the arguments were
quoted in Nichols' post-evidentiary hearing brief below, Nichols
never sought to amend his petition and these particular claims were
not addressed by the district court. In any event, the claims are
without merit. The first statement is a reasonable deduction from
the evidence, which showed that Nichols shot at Shaffer, less than
two months previously had shot a convenience store clerk who did
not respond fast enough to his demand for money (which he then
continued to demand as the clerk bled), and on being jailed for the
present offense threatened to "shoot any deputy that got in his
way." The second statementSQfacially obvious hyperbole not
intended to be taken literallySQwas preceded by references to
Nichols' February 1979 theft, his April 1980 robbery, his August
1980 robbery where he shot the clerk, his October 11, 1980, armed
robbery, his instant October 13, 1980, offense, and his June 1981
planned armed jail break. The sentences immediately following the
"since the man has been able to walk" comment are as follows:
"That's almost three years [1979-1981]. It's not just a few bad
months." It was clear what was intended, and that was entirely
proper.
53
at the guilt/innocence stage of the trial which he contends were
"incorrect statements of the legal principles applicable." No
objection was made to either argument at trial, on direct appeal,
or in the state habeas proceedings. It is clear that the Texas
contemporaneous objection rule would bar relief in state court, and
the claims are accordingly procedurally barred on federal habeas.
Teague, 109 S.Ct. at 1068-69. See also Weaver v. McKaskle, 733
F.2d 1103, 1104-5 (5th Cir. 1984); Marks v. Estelle, 691 F.2d 730,
734-35 (5th Cir. 1982). Cf. Bates v. Blackburn, 805 F.2d 569, 574-
75 (5th Cir. 1986); Webb v. Blackburn, 773 F.2d 646, 650-651 (5th
Cir. 1985). We also note that these claims were not raised in the
federal habeas petition below, and, although the arguments were
quoted in Nichols' post-evidentiary hearing brief below, Nichols
never sought to amend his petition and these particular claims were
not addressed by the district court. See United States v. Smith,
915 F.2d 959, 964 (5th Cir. 1990).
In any event, these claims have no merit. The first
complained of argument49was a proper plea to the jury to use its
common sense in evaluating the defense's contentions as to what had
actually happened. See Williams v. Florida, 399 U.S. 78, 100
(1970) (jury trial calls for "the commonsense judgment of a group
of laymen"). Nichols' appellant's brief does not explain why he
49
This now complained of argument was:
"In our duty to answer the arguments of the defense
attorney, I ask you, if you will, just take one step back
from their defense and look at it, apply the law of
common sense that you brought into this courtroom, that's
why juries are chosen."
54
thinks this argument was improper nor cite any supporting
authority. We note that the prosecutor had explained at length to
the jury that they were obligated to follow the court's charge, as
did the charge itself. This contention is frivolous. The second
challenged argument50 was in substance a correct statement of the
law that, under the charge, Nichols could only be found guilty of
capital murder or of murder, or found not guilty. Moreover,
defense counsel did not request a charge on any form of robbery as
a lesser included offense, and no such charge was given. Yet
defense counsel had argued that Nichols was guilty of aggravated
robbery.51 The state's argument was a proper response and a correct
50
This now challenged argument was:
"Under our law he is either guilty of capital murder, he
is guilty of murder, or he is not guilty of anything. He
walks right out that door. We can never convict him of
robbery or anything else . . . . The defense is saying
that what you really have here is a situation where there
are cracks in the law and we want you to let JoJo Nichols
slip through these cracks and get away."
51
Defense counsel argued:
"You know, I'm going to say something that I very,
very seldom say as a defense attorney. Joseph Bernard
Nichols . . . . He's guilty of an aggravated robbery.
And had the State charged him with aggravated robbery,
you could have retired to the jury room based upon the
facts that you heard from the witness stand and in about
two minutes found him guilty of a first degree felony.
But they elected to do something other than that. You
know, they already had their pound of flesh.
. . . .
. . . So Joseph Bernard [sic] Nichols is guilty of
aggravated robbery.
But when you look at this charge, you're not
authorized to find him guilty of aggravated robbery
55
statement of the law. Nichols cites no authority in support of his
contention. We reject it as frivolous.
(iv) The next complained of argument is the state's reference
at sentencing to Nichols' having been indicted for the
unadjudicated offenses, evidence of which had been put before the
jury.52 On direct appeal this argument was challenged as being
outside the record (here it is challenged only as an improper
inference of guilt from an indictment), and the Court of Criminal
Appeals held that the contention was barred because no trial
objection to the argument had been made. Nichols, 754 S.W.2d at
199-200. Hence this claim is procedurally barred. Moreover,
although this argument of the prosecutor was presented in Nichols'
post-evidentiary hearing brief below,53 it was never included in his
federal habeas petition or addressed by the district court.
In any event, the claim is without merit. The argument was in
response to defense counsel's argument criticizing the state for
not having taken action on the unadjudicated offenses, arguing
"there has been no action taken by any other group of individuals
or by the state."54 The state responded that another group of
because he is not charged with aggravated robbery. He is
charged with capital murder. And in my estimation, the
State misjudged . . . ."
52
The argument was: "Now they want you to pretend that all his
other crimes are just fantasies, those really didn't happen. Grand
juries have indicted them just as he was indicted in this case."
53
There Nichols contended that the argument went beyond the law
and the facts and was hence improper under Texas law.
54
Defense counsel had argued:
56
individuals had acted, by indictment. Moreover, defense counsel
had previously expressly acknowledged in argument that Nichols had
been charged with attempted escape. The evidence as to the other
unadjudicated offensesSQthe August 13 and October 11, 1980, armed
robberiesSQwas undisputed, and substantial evidence was presented
as to the planned escape. There is no reasonable likelihood that
the jury was improperly influenced by this passing rebuttal remark
of the prosecution.55
(v) Three other prosecutorial arguments, two at the
guilt/innocence stage and one at sentencing, are attacked as having
"improperly struck at Nichols over the shoulders of his trial
counsel."56 Apart from this general and uninformative
". . . there was at some time later a robbery that he
entered a plea of guilty on and was given probation. You
know that fact. From that point on though, the only
additional thing that you now know is that he is guilty
of this offense because a jury has not had the
opportunity to pass on those other issues even though
those cases have been pending as the record shows for a
long time. There has been no action taken by any other
group of individuals or by the State that would help you
resolve those issues. Never a motion to revoke been
executed on him. It's never been revoked for that
matter. None of the other cases have been brought to
trial . . . ."
55
We also observe that defense counsel had argued at sentencing
that under the law indictments were not evidence. At the
guilt/innocence stage the court had instructed the jury, "A grand
jury indictment is the means whereby a defendant is brought to
trial in a felony prosecution. It is not evidence of guilt . . .
."
56
The complained of arguments at the guilt/innocence stage are:
"If the defense wanted to play this game and would have been
clever, they would have said this is the bullet that got him. But,
no, they want to play the door game." And, "The defense wants you
to believe Willie ejected that bullet right here in the front door.
Uh huh. Physical evidence caught them again." The challenged
57
characterization, Nichols' appellant's brief does not explain the
basis for the challenge and contains no supporting argument. The
complaint is not adequately presented for review. Fed. R. App. P.
28(a)(6); United States v. Beaumont, 972 F.2d 553, 563 (5th Cir.
1992). Nor was it in the district court.57 In any event, the
complaints present no basis for relief. To begin with, no
objection was made at trial (or on appeal) to these arguments (and
they were not a grounds of complaint in the state habeas). They
are hence procedurally barred. Even if they were not, the present
no basis for relief. The brief references at the guilt/innocence
stage to "the door game" and "physical evidence caught them" are
nothing more than argument that the inferences as to what happened
urged by defense counsel were not consistent with the physical
evidence. The sentencing argument referred to the fact that at the
guilt/innocence stage defense counsel argued that Williams fired
sentencing argument is:
"You recall on the question of guilt he sincerely argued
to you that the bullet came from the door. They had
themselves twisted sideways just to where it would come
from the door. Now they have shifted gears that you
don't believe that and now they want the shot to come
over here from the counter from Willie Ray Williams.
Aren't you offended by that? Wouldn't you be offended
for a State's attorney to stand up here and shift and
twist and blatantly change the proof around? There is
something very wrong with that. I submit to you that you
should be offended by that. Does it ever end?"
57
The referenced guilt/innocence arguments were not complained
of in the federal habeas petition, and the referenced sentencing
argument was mentioned only in the portion of the petition dealing
with the claim that the Williams trial estopped the state from
arguing that Nichols fired the fatal shot. None of the challenged
arguments were addressed by the district court.
58
the fatal shot from the door as he went back in, while at
sentencing defense counsel appeared to argue that Williams fired
the fatal shot from "in front of the counter." And, the
prosecution's argument was in response to defense counsel's
criticism of the prosecution for its asserted inconsistency in the
Williams and Nichols cases.58 These unobjected to prosecution
arguments did not deprive Nichols of due process or deny him a fair
trial or sentencing, and there is no reasonable likelihood that
they caused the verdict to be to any extent improperly based.
(vi) Quoting a single sentence from the state's argument at
each phase of his trial, Nichols asserts that each "improperly
injected the personal beliefs of the prosecutor into its argument."
Nichols' appellant's brief makes no argument in support of
this assertion, and the complained of sentences are not mentioned
in his federal habeas petition or in the district court's opinion.
Assuming the matter is properly before us, it is procedurally
barred as no objection was made at trial (or on appeal) to either
argument (and neither was raised as a ground for relief in the
state habeas proceeding).
In any event, neither argument presents a basis for relief on
58
Defense counsel had argued, among other things:
"You've obviously got the testimony of Willie Ray
Williams. I think Willie Ray would have liked to have
heard the testimony in this case before he was in the
posture he was earlier where he got death for this same
transaction because according to the argument in this
case earlier, Willie didn't do anything. Willie couldn't
have killed the man even though he said he did and even
though his testimony was consistent with the injuries to
the man."
59
the merits. The first statement Nichols challenges was made by the
prosecutor during the punishment phase of the trial. Referring to
James Paul Martin, an inmate at the Harris County Jail who
testified that he and Nichols had been involved in an escape plot
while in jail, the prosecutor stated: "I wouldn't come to court to
you and say convict a man on the word of a criminal without
corroboration." Although a prosecutor "may not express his
personal opinion as to the credibility of witnesses, or his own
belief regarding a defendant's guilt," United States v. Walker, 613
F.2d 1349, 1355 (5th Cir.), cert. denied, 100 S.Ct. 2172 (1980), he
may properly comment on the weight of the evidence. See Casel, 995
F.2d at 1309. Here, it is clear from the context in which the
statement was made that the prosecutor was not expressing his
personal opinion about the credibility of Martin. Rather, he was
directing the jury to look to other evidence that supported
Martin's testimony, which, because it was the testimony of a
convicted felon, would be suspect standing alone.59 This type of
argument "is permissible to the extent that it draws a conclusion
59
The now challenged statement closely followed the
prosecutor's statements that at the guilt/innocence stage the jury
had been instructed to require corroboration of accomplice
testimony but had not been so instructed as to the punishment
phase, and that the prosecutor nevertheless would not ask the jury
to believe Martin absent corroboration, which the prosecutor urged
was afforded by the testimony of the guard Garrett and the hidden
gun and knife found in the area of Nichols' cell and Martin's prior
statement. The prosecutor was also responding to defense counsel's
argument that only Nichols and one other were charged in the
escape, though more were involved. The prosecutor stated: "we
only have corroboration as to two others. I wouldn't come to court
to you and say convict a man on the word of a criminal without
corroboration. We had corroboration as to two others."
60
based solely on the evidence presented." Id. (citing United States
v. Enstam, 622 F.2d 857, 869 (5th Cir. 1980), cert. denied, 101
S.Ct. 1351 (1981); United States v. Bright, 630 F.2d 804, 824 (5th
Cir. 1980), and United States v. Binker, 795 F.2d 1218, 1223 (5th
Cir. 1986)). Such is the case here.
The second statement which Nichols objects to was made during
the state's argument at the close of the guilt/innocence phase of
the trial. In arguing that Nichols fired the shot that killed
Shaffer, the prosecutor stated: "And I'll tell you it was his hand
that did the killing." Once again, however, Nichols gives an
incomplete picture. Immediately after the prosecutor made the
above-quoted statement, he asked "How do you know that?" and then
proceeded to summarize the evidence presented at trial which would
tend to support the theory that Nichols fired the fatal shot. In
United States v. Morris, 568 F.2d 396 (5th Cir. 1978), this Court
explained that a prosecutor may state his own opinion or knowledge
of the case as long as he makes it clear that "the conclusions he
is urging are conclusions to be drawn from the evidence." Id. at
401. Here, the prosecutor argued the admitted evidence in support
of the challenged statement. Hence, in the context of the
prosecution's argument the statement was not improper.
(vii) Lastly, Nichols asserts that at sentencing the
prosecution "improperly commented on Nichols' failure to call
witnesses or present evidence." Again, without citation to
authority or meaningful argument, Nichols quotes four sentences
which he contends are thus improper. First, during the state's
61
argument at the end of the punishment phase of the trial, the
prosecutor stated:
"Why is it that not one, not one employer except a family
friend, Mr. Creal, came and sat here and told you what a
nice worker he was. Not one. Not even a co-worker came
here to verify to you that he actually worked or that he
was a good worker, not one."
Later, the prosecutor commented that "Not one employer, not one co-
worker, not one school mate, not one neighbor has come here."
Again, these portions of the argument were not complained of
in Nichols' federal habeas petition. Moreover, they are
procedurally barred. No objection was made at trial (or on appeal)
to the first argument (and it was not raised as a ground for relief
in the state habeas proceedings). The second argument was objected
to at trial on the ground it was "not a correct statement of the
evidence."60 On direct appeal, Nichols complained that the
statement was improper as "comment on his failure to call
punishment witnesses," and the Court of Criminal Appeals held that
"[b]ecause the challenge on appeal does not comport with the
objection at trial, nothing is presented for review." Nichols, 754
S.W.2d at 200.61
At all events, the claims lack merit. As a matter of Texas
law, the prosecutor may comment on "the defendant's failure to call
a material witness, and he may draw an inference from that failure
60
The trial court then ruled: "The jury will use their own
recollection concerning the evidence. The objection is overruled."
61
The Court of Criminal Appeals also stated, "Further, any
possible error raised by the trial objection was cured by the
[trial] court's admonishment." Id.
62
that the testimony would have been unfavorable." O'Bryan v.
Estelle, 714 F.2d 365, 388 (5th Cir. 1983), cert. denied, 104 S.Ct.
1015 (1984); see also O'Bryan v. State, 591 S.W.2d 464, 479 (Tex.
Crim. App. 1979) (en banc), cert. denied, 100 S.Ct. 2975 (1980).
Moreover, in federal trials, although a party's failure to call a
witness equally available to both sides may not be properly
commented on, if the defendant fails to call a witness peculiarly
within his control, the prosecutor may properly comment on that
failure. United States v. MMR Corp., 907 F.2d 489, 501-02 (5th
Cir. 1990), cert. denied, 111 S.Ct. 1388 (1991). "That the
potential witness is . . . accessible to service of subpoena by the
court does not make the witness equally available to both parties."
Id. at 502. The relationship of the witness to a party may make
him or her more available to that party. Id. Such is the case sub
judice. Here, the prosecutor was commenting on Nichols' failure to
call certain types of witnesses during the punishment phase to
establish mitigating circumstances. These types of witnesses are
generally more available to the defense. And, because "the option
of producing and coming forward with mitigating circumstances is
upon the capital defendant," O'Bryan, 591 S.W.2d at 479, they are
more likely to be called by the defense. The prosecutor's brief
comment on Nichols' failure to call certain types of good
character witnesses was not clearly improper; certainly it did not
render the sentencing fundamentally unfair or deprive Nichols of
due process.
Nichols asks that we view all the complained of prosecution
63
arguments together. However, even when all are viewed
cumulativelySQand even without considering that counsel did not
think the vast majority of them worth complaining of at trial, or
on appeal, or in any of the lengthy and frequently amended state
habeas petitions, or, for the most part, in the federal
petitionSQit is entirely clear to us that they did not operate to
deprive Nichols of a fundamentally fair trial at any stage of the
proceedings or to deny him due process, and that there is no
reasonable likelihood that the jury's verdict at either stage was
improperly affected thereby.
D. Ineffective Assistance of Counsel
Nichols complains of ineffective assistance of trial counsel,
listing in three pages of his brief nine different claims in this
respect. After evidentiary hearings in both the state habeas court
and the district court below, all claims of ineffective assistance
of counsel were rejected by the state habeas trial court, the Court
of Criminal Appeals, and the district court below.
Under Strickland v. Washington, 104 S.Ct. 2052 (1984), a
habeas petitioner claiming ineffective assistance of counsel has
the burden to demonstrate both deficient performance and prejudice.
Id. at 2064. As to the former, judicial scrutiny of counsel's
conduct "must be highly deferential," id. at 2065, "the distorting
effect of hindsight" is to be avoided, id. at 2065-66, and courts
must "indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance." Id.
"It is not enough to show that some, or even most, defense lawyers
64
would have handled the case differently." Green v. Lynaugh, 868
F.2d 176, 178 (5th Cir.), cert. denied, 110 S.Ct. 102 (1989). To
establish prejudice, "[i]t is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the
proceeding," Strickland at 2067; rather, he must demonstrate a
"reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Id. at 2068. "A reasonable probability is a probability sufficient
to undermine confidence in the outcome." Id.
Our examination of the record, including that of the habeas
proceedings, reflects that Nichols was represented vigorously and
effectively at trial by his two counsel Lane and Scott, each of
whom had likewise so represented him throughout his first trial.
These attorneys were familiar with the facts of the case, made and
procured hearings and rulings on appropriate pretrial motions and
motions to suppress, investigated and presented testimony, made
objections, presented appropriate jury arguments, and subjected the
state's case to rigorous adversarial testing and opposition at
trial. Many of the instances of alleged ineffectiveness which
Nichols raises on appeal were not adequately raised below, and
hence are not properly before us. United States v. Smith, 915 F.2d
959, 964 (5th Cir. 1990). But even considering all the claims of
ineffective assistance of counsel raised on appeal, we are
convinced that Nichols has neither overcome the strong presumption
that counsel's conduct fell within the wide range of reasonable
professional assistance nor demonstrated any reasonable probability
65
that but for the claimed deficiencies the result of the proceedings
would have been different. No such probability sufficient to
undermine confidence in the outcome has been shown. We now briefly
address the particular assertions of ineffectiveness raised by
Nichols on this appeal.
(i) Complaint is made that Nichols' attorneys failed to
attempt to delay entry of the July 31, 1981, mistrial order in
Nichols' first trial until August 31, 1981, when the 1981 amendment
to Tex. Code Crim. Proc. art. 37.071(e) came into effect providing
that if the jury is unable to answer any punishment special issue
the defendant shall be sentenced to life imprisonment. This
contention materially differs from the only claim made below
respecting this subject, which was that counsel was ineffective for
failing to ask the trial court "to set aside the interlocutory
order of mistrial and to sentence" Nichols to life imprisonment "in
accordance with" amended article 37.071(e). In any event, the
present contention, as well as that made below, is without merit,
and under neither theory has either deficient performance or
prejudice been demonstrated. On direct appeal, the Court of
Criminal Appeals specifically rejected Nichols' attempt to invoke
amended article 37.071(e), stating "[b]ecause appellant's first
trial was held prior to the effective date of the amendment to
subsection (e), the amendment has no application." Nichols, 754
S.W.2d at 204. Nichols cites no authority and makes no meaningful
66
argument, in support of his contention on appeal.62 Nor are we
aware of any such authority. So far as we are able to ascertain,
nothing in Texas law would authorize the trial court to discharge
the jury without declaring a mistrial. And, it would be patently
unreasonable for defense counsel to have urged, or for the trial
court to have ordered, that the jury continue bound to the case for
another month.63 Moreover, continued deliberations would risk a
"yes" answer to the single special issue which the jury had not
then unanimously answered in the affirmative.
(ii) Nichols next complains that his counsel failed to
present Williams' testimony as given at his own trialSQinstead of
that given at Nichols' first trialSQand failed to utilize the
transcript of Williams' trial on cross-examination of Williams'
prosecutor to force the latter "to admit that Williams was
62
In support of his contention made in the district court,
Nichols cited Rodriguez v. State, 852 S.W.2d 516, 520 (1993), which
held that a trial court had authority to withdraw an order of
mistrial. But that decisionSQrendered more than a decade after
Nichols' second trialSQwas expressly predicated on the fact that
the mistrial (which was declared out of the presence of the jury
during the course of trial and before the case had been submitted
to the jury) was promptly withdrawn before the jury was discharged
and without the jury's ever having been informed of it. Here the
jury was expressly informed of the mistrial and was completely
discharged by the court on July 31, 1981. The state habeas court
determinedSQand the Court of Criminal Appeals implicitly
agreedSQthat "the trial court's declaration of a mistrial in the
applicant's first trial is not an interlocutory order which the
trial court could later withdraw in order to apply the subsequent
amendment to Article 37.071(3)." Nothing presented suggests any
basis for us to find this an incorrect statement of Texas law.
63
And, in light of the opinion of the Court of Criminal Appeals
on direct appeal, it is at the best highly doubtful that amended
article 37.071(e) would have applied even if the jury had not been
discharged until September 1, 1981.
67
convicted as the lone triggerman." These contentions were not
raised below and are not properly before us. In any event, they
are wholly without merit. Williams' testimony at his own trial was
not more favorable to Nichols then his testimony at Nichols' first
trial. Indeed, Williams' testimony at his own trial indicated that
when he shot (or shot at) Shaffer from the door, he did so in
response to Nichols telling him "shoot-shoot" (see note 2, supra).
Williams did not mention this in his testimony at Nichols' first
trial. Had this testimony been before the jury, it would have
wholly undercut Nichols' defensive theory that he was not guilty
even under the law of parties because when Williams fired what the
defense contended was the fatal shot, Nichols had already
completely left and Williams' shot was "the separate act of Willie
Ray Williams, acting independently" for which, under the wording of
the court's jury charge, Nichols would not be responsible. As to
the cross-examination of Williams' prosecutor, what Williams was
convicted of was determinable from, and only from, the record in
that case. We have held that that does not reflect a determination
that Williams was "the lone triggerman." Nor is there any showing
that Williams' prosecutor could possibly shed any other light on
the matter. The jury had before it the undisputed fact of
Williams' conviction for Shaffer's murder, as well as his testimony
that he shot Shaffer from the door, causing him to fall back.
Nichols makes no showing of deficient performance or prejudice in
regard to these matters.
(iii) On the basis of April 1992 affidavits submitted after
68
the evidentiary hearing below to the district court with Nichols'
motion to expand the record, which the district court denied,
Nichols contends that defense counsel failed to interview witness
Teresa Ishman, a deli employee, and failed to examine deli employee
Johnson "on the 'triggerman' issue." This issue is not properly
before us. The affidavits are not a part of the record (and no
complaint has been made of the ruling denying the motion to expand
the record); and they were tendered to the district court in
respect to a Brady claim. Further, the issue was not adequately
raised below. The habeas petition only alleged in the most
conclusional form that "Counsel's overall performance, including
the general lack of any investigation, denied petitioner effective
assistance of counsel at both stages of the trial. Counsel's trial
strategy was unreasonable and it was not based on an adequate
investigation." There was no allegation concerning Johnson or
Ishman or the subject matter to which their affidavits are now
alleged to be relevant. These allegations in the petition are
plainly inadequate to raise a constitutional issue in the respect
now asserted on appeal. See Ross v. Estelle, 694 F.2d 1008, 1111-
1112 (5th Cir. 1983); Alexander v. McCotter, 775 F.2d 595, 602-603
(5th Cir. 1985). The allegations may not be supplemented on
appeal. Alexander at 603.
Moreover, there is no adequate showing or allegation that
counsel was deficient in this respect. Present counsel, who had
been representing Nichols since sometime before May 1989, took the
position below that they did not find out the information in the
69
affidavits until early 1992. Nichols suggests no basis on which
trial counsel can be faulted for not producing this information
while excusing habeas counsel for not producing it in the state
habeas or earlier in the federal habeas. Cf. Keeney v. Tamayos-
Reyes, 112 S.Ct. 1715 (1992). Further, the Ishman affidavit states
that she initially told the police that she saw nothing.64 This was
consistent with Johnson's testimony that when Nichols and Williams
shot at Shaffer, the other deli employee thereSQIshman (then known
as McGee, which was not her true name)SQwas back in the kitchen or
bathroom and did not come out. As to Johnson, defense counsel had
already reviewedSQand at trial succeeded in getting before the
jurySQher written, sworn statement to the police, and there was
nothing to indicate that she had ever said anything else, much less
anything favorable to the defense. Nor do the April 1992
affidavits show a probability of a different result sufficient to
undermine confidence in the outcome. Johnson's affidavit reflects
that just after Nichols shot, and before either Nichols or Williams
left, she saw Williams "leaning across the counter and firing the
shot that killed Mr. Shaeffer (sic)." This entirely contradicts
the defense theory that the fatal shot was fired by Williams from
the door after Nichols left and was thus "the separate act of"
Williams "acting independently" for which under the charge Nichols
64
Her affidavit states that several days later she was
interviewed by "someone from the district attorney's office" and
told him what she did see and he took notes, but apparently no
statement was presented to her to review or sign. She had been "in
trouble with the law in Louisiana." Her affidavit indicates that
not long after the offense she moved back to Louisiana, where she
apparently had no telephone.
70
would not be responsible. Ishman's affidavit mentions only an
initial set of shots fired from the counter area (after which she
ran into the restroom, where Johnson "was already locked in").
Ishman does state Shaffer "went down and reached under the counter
for his gun," but this is just what Johnson's October 13, 1980,
statementSQwhich was before the jury without limitationSQsaid. In
Johnson's trial testimony, she admitted making the October 13,
1980, statement, but said that although Shaffer "went down in a
squat position" she "didn't see him reach for anything."65 Nichols'
statement and Williams' testimony, both before the jury, were that
Shaffer came up with a gun in his hand.
(iv) Nichols next complains of counsel's failure to object to
the trial court's grant to juror Pearson of an exemption from jury
service for child care under Tex. Govt. Code Ann. § 62.106(2).
Nichols does not explain why the exclusion was erroneous, but it
may possibly have been in that although Pearson had custody of her
two-year-old child, the statute speaks to exclusion for those
having custody of children under ten where the jury service
"requires leaving the child or children without adequate
supervision," and Pearson had said she had "a sitter." It is
questionable that constitutionally deficient performance is shown.
Whether a juror is desirable is inherently a matter of judgment,
particularly when, as in Pearson's case, a strong antipathy to
65
There is nothing to suggest that defense counsel knew or
should have known that Johnson's testimony would (or would likely)
deviate from this aspect of her statement.
71
service is expressed.66 In any event, prejudice is not
demonstrated. Although the state did not request or suggest
Pearson's exclusion, and Pearson clearly said she wanted the
exemption, Nichols asserts prejudice because Pearson had indicated
reluctance to impose the death penalty and the state eventually
used all its peremptory challenges. However, at the time Pearson
was excused, the state had used only two of its peremptory
challenges. It cannot be shown that but for her exclusion Pearson
would have served. And, nothing in the record tends to establish
"that, in the absence of defense counsel's errors, a different
factfinder . . . would have been reasonably likely to arrive at a
different outcome." Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir.)
(original emphasis), cert. denied, 110 S.Ct. 102 (1989). Moreover,
in United States v. Prati, 861 F.2d 82 (5th Cir. 1988), we
concluded that the Supreme Court, in Ross v. Oklahoma, 108 S.Ct.
2273 (1988), "rejected 'the notion that the loss of a peremptory
challenge constitutes a violation of a constitutional right to an
impartial jury.'" Id. at 87 (quoting Ross, 108 S.Ct. at 2278).
Instead, "the pertinent inquiry is whether the jurors that actually
sat were impartial as required by the sixth amendment." Id.
Because Nichols does not assert that his jury was not impartial, he
has failed to demonstrate that his counsel's failure to object to
the exclusion of Pearson was prejudicial.67
66
Pearson had stated "I really don't want to do this" (serve
on the jury).
67
In a single sentence of his appellant's brief, Nichols also
conclusorily asserts that defense counsel inadequately attempted to
72
(v) Complaint is next made of defense counsel's failure to
object to an allegedly "improper" shuffle of three venire members.
Nichols does not explain why or in what respect the "shuffle" was
improper and cites no authority indicating that it was. Hence,
nothing is presented for review. Fed. R. App. P. 28(a)(6);
Beaumont at 563. In any event, neither deficient performance nor
prejudice has been shown. Nichols claims that absent the shuffle
rehabilitate and failed to specifically object to limitations on
voir dire and exclusion of veniremen Day and Joseph Lewis. No
explanation, argument, or citation of authority is given, so
nothing is presented for review.
As to Lewis, counsel objected to his exclusion and to not
being allowed to attempt to rehabilitate (as to which nothing
suggests possible success), and the Court of Criminal Appeals on
direct appeal fully reviewed Lewis's exclusion and found it proper,
noting that "Lewis repeatedly stated that he could not follow the
law of parties and find a nontriggerman guilty of capital murder,
regardless of the evidence" and that after some interim confusion,
which proper explanation by the trial court cleared up, "Lewis
consistently stated that he could not find guilt in any case where
the defendant did not pull the trigger." Nichols, 754 S.W.2d at
196, 197. Plainly, no constitutional error is presented by this
ruling. See Wainwright v. Witt, 105 S.Ct. 844 (1988). More to the
point, however, there is no challenge to the underlying rulings and
it is plain there was no failure on the part of trial counsel to
preserve any claim of error in this respect.
As to Day, no complaint was made on appeal regarding her
exclusion, and the state habeas court held that was a procedural
bar. Trial counsel "excepted" to the exclusionSQwhich was
sufficient to preserve review as to LewisSQbut the state habeas
trial court stated that was also insufficient. However, the state
habeas court further held Day was properly excluded. We agree.
Questioning by the state and then by the careful trial court
clearly reflected that she unequivocally would not under any
circumstances, and regardless of the evidence, consider the death
penalty for a non-triggerman. Wainwright v. Witt. Neither
deficient performance nor prejudice is established by defense
counsel's not attempting rehabilitation. Nothing suggests
rehabilitation would have had any reasonable likelihood of success.
As to Lewis and Day, Nichols has not preserved in this Court
any complaint and in any event has not shown either deficient
performance or that but for the claimed deficiency there is a
reasonable probability the outcome would have been different.
73
alternate juror Walker, "who would have been reluctant to impose
capital punishment," would have been the twelfth juror.68 However,
when the three jurors were shuffled, none of them, including
Walker, had been voir-dired, so the record reflects no basis on
which to conclude that defense counsel should have known or
believed that Walker would be favorable to the defense (or more so
than any other of the three). Additionally, Nichols' assertion
that, absent the shuffle, Walker would serve as the twelfth juror
rather than as an alternate is purely speculative and is
insufficient to establish prejudice.
(vi) Nichols next contends that trial counsel was inadequate
for failing to request an "anti-parties" instruction at the
punishment stage of trial. We reject this contention. At the time
of trial, it was not clearly established Texas or federal law that
such an instruction, if requested, was required.69 While the law
was not so clear that a request for such a charge could be said to
be plainly futile, this does not mean that counsel was
constitutionally deficient for failing to request such a charge.
See Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992), cert.
denied, 114 S.Ct. 97 (1993); Selvage v. Collins, 975 F.2d 131 (5th
68
Nichols says nothing about the actual twelfth juror. We also
note that at the time of the shuffle the state still had one
peremptory strike left.
69
See notes 21 and 22, supra, and accompanying text. Trial
here was completed in February 1982. Enmund v. Florida was not
handed down until July 1982. Green v. State was decided in 1984.
Indeed, Nichols argues that requesting an anti-parties instruction
"would have been futile at the March [sic] 1982 Nichols II
proceedings."
74
Cir. 1992), cert. denied, 113 S.Ct. 2445 (1993); Buxton. Moreover,
a law of parties instruction was not given at sentencing, and it
appears clear that all concerned operated on the assumption that
the law of parties did not apply at sentencing. We conclude that
under the circumstances counsel was not constitutionally deficient
for failing to request an affirmative "anti-parties" instruction at
sentencing. Further, for the reasons and authorities previously
recited in connection with the state's appeal (see Part IA, supra),
we also conclude that Nichols has failed to demonstrate prejudice
from the failure to give an anti-parties instruction. There is no
reasonable probability that the giving of such an instruction would
have altered the outcome. See also, e.g., Belyeu v. Scott,
F.3d , No. 94-50805, slip op. at 391 (5th Cir. Oct. 11, 1995).
Finally, this asserted ground of ineffective assistance of counsel
was not raised below.
(vii) Nichols next complains that counsel was deficient for
failing to request a "Penry-type" instruction concerning mitigating
evidence. This contention was not raised below. Moreover, it is
wholly without merit. The case was tried seven years before Penry.
In any event, the state habeas court did not apply the procedural
bar to this claim, but rather rejected it on the merits. And, we
have held that federal law did not entitle Nichols to such an
instruction (see part IIB, supra). Consequently, neither a
deficiency on the part of counsel nor prejudice is shown.
(viii) Complaint is made in general terms that "counsel
failed to object to repeated improper jury argument by the state,"
75
but the arguments in question are not identified other than by a
general reference to the section of Nichols' brief complaining of
improper argument, and which particular arguments were not objected
to is not identified. No authorities are cited and no explanation
or meaningful argument is made in the three brief sentences dealing
with this complaint. It is not properly presented to us.
Moreover, it was not raised below except as to those few instances
of prosecutorial argument as to which complaint was made below (see
Part IIC, supra). The other instances are not properly before us.
In any event, for the reasons stated in Part IIC above, the
arguments in question, singly and collectively, were not so
improper and prejudicial that the failure to object to any or all
of them can properly be characterized as constitutionally deficient
performance by counsel, or as rendering Nichols' trial as a whole
fundamentally unfair, or as giving rise to any reasonable
probability that had objections been made the result would have
been different. Nothing in connection with these complaints serves
to undermine confidence in the trial's outcome.
(ix) Lastly, Nichols makes the conclusory assertion that
trial counsel were ineffective in failing to move for a new trial
on the grounds of their own ineffectiveness at trial. This
contention is frivolous. No procedural bar has been prevented
Nichols from raising ineffectiveness of trial counsel. Moreover,
we have held, as did the district court and the state habeas court,
that Nichols was not denied the effective assistance of counsel at
trial.
76
In sum, we reject all Nichols' claims on appeal that the
district court erred in denying him relief on his claim of
ineffective assistance of trial counsel.
E. Cumulative Error
Nichols' sole remaining claim on appeal is a three-sentence
argument that the matters of which he complains on appeal (Part
IIA-D), plus those on which the district court granted him relief
and which are the subject of the state's appeal (Part IA-C), amount
to cumulative error under our decisions in Derden and Kirkpatrick
v. Whitley, 992 F.2d 491 (5th Cir. 1993),70 and denied Nichols a
fair trial. For the reasons previously noted in addressing these
contentions severally, we find no merit in Nichols' argument.
Reviewing the entire record, we conclude that Nichols has not made
out a case of cumulative error under Derden, and that the matters
complained of did not, singly or in combination, operate to deny
him a fundamentally fair trial, deprive him of due process, or
undermine confidence in the outcome. We accordingly reject
Nichols' contention in this respect.
Having specifically addressed and rejected all of Nichols'
points in his cross-appeal, we reject Nichols' cross-appeal and
affirm so much of the district court's judgment as denies Nichols
habeas relief.
Conclusion
So far as it denied Nichols habeas relief, the district
70
We note that Kirkpatrick is wholly inapposite to this case.
77
court's judgment is affirmed. So far as the judgment below granted
Nichols habeas relief, it is reversed and the case is remanded with
instructions to enter judgment denying relief.
AFFIRMED in part; REVERSED in part.
78