Callins v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

No. 95-11049
_______________

BRUCE EDWIN CALLINS,

Petitioner-Appellant,

VERSUS

GARY JOHNSON,
Director, Texas Department of Criminal Justice,
Institutional Division,

Respondent-Appellee.

_________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________

July 12, 1996

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Bruce Callins appeals the denial of his petition for a writ of

habeas corpus. Finding no error, we affirm.

I.

In 1980, Callins went to a nude dancing establishment named

Norma’s Lounge, told the bartender to put the club’s receipts in a

bag, and ordered the patrons to empty their pockets. “Allen

Huckleberry, who was sitting at the bar, did not surrender his

wallet quickly enough to suit [Callins], and [Callins] shot him in
the neck, causing him to bleed to death.” Callins v. State, 780

S.W.2d 176, 180 (Tex. Crim. App. 1986), cert. denied, 497 U.S. 1011

(1990). Callins then rifled through Huckleberry’s pockets, took

the other victims’ property, and fled.

After convicting Callins of one count of capital murder and

two counts of aggravated robbery, a jury imposed the death penalty.

The Texas Court of Criminal Appeals affirmed Callins’s murder

conviction and death sentence but vacated his robbery convictions.

Callins unsuccessfully sought post-conviction relief, first in

the Texas state courts and then in the federal courts. He later

filed another state habeas petition, which the state courts denied.

Callins then filed this petition, contending that the Texas

Court of Criminal Appeals had violated his due process rights, his

attorney was ineffective on direct appeal, and his capital murder

conviction violated Texas’s carving doctrine.

The district court denied Callins’s petition, finding that his

appellate counsel was not ineffective and that Callins abused the

writ in bringing the other claims. Callins appeals only the

district court’s rejection of his ex post facto and due process

arguments arising from the state’s asserted misapplication of his

carving claim.

II.

Callins contends that his murder conviction violated Texas’s

erstwhile carving doctrine, which prohibited the state from

“carving out” and prosecuting more than one crime arising from any

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single transaction. See, e.g., Douthit v. State, 482 S.W.2d 155,

161 (Tex. Crim. App. 1971). Callins argues that his actions at

Norma’s Lounge constituted a single transaction, and further

asserts that his jury returned final verdicts on the robbery

convictions before completing its consideration of the murder

charge. Thus, concludes Callins, the robbery convictions precluded

the state from continuing the murder prosecution.

The Court of Criminal Appeals abolished the carving doctrine

on the first day of Callins’s trial, but Callins insists that the

trial court’s refusal to apply that doctrine infringed upon his due

process rights and the “principles embodied in the Ex Post Facto

Clause.”

The district court found Callins’s carving doctrine challenge

to be an abuse of the writ. Federal courts will consider a claim

presented in a second habeas petition only if the petitioner shows

that (1) he had cause for failing to raise the alleged error

earlier and suffered prejudice therefrom, or (2) failure to do so

would result in a fundamental miscarriage of justice. McCleskey v.

Zant, 499 U.S. 467, 493-94 (1991); see also 28 U.S.C. § 2254

Rule 9(b) (1994) (permitting dismissal if failure to assert claim

in earlier petition constituted an abuse of the writ).

Callins concedes that he could have presented his carving

doctrine challenge in his first petition. Nonetheless, he contends

that we should entertain that claim at this late date because

(1) his first habeas attorney’s failure to raise the argument

amounted to ineffective assistance of counsel; (2) he is actually

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innocent of both capital murder and the death penalty; and (3) the

Texas Court of Criminal Appeals waived the state’s interests in

finality and federalism.

A.

Callins contends that his habeas attorney’s alleged ineffec-

tiveness constitutes cause. We have already rejected that

argument. “[C]ounsel’s ineffectiveness will constitute cause only

if it is an independent constitutional violation,” Coleman v.

Thompson, 501 U.S. 722, 755 (1991) (emphasis added), and there is

no constitutional right to counsel in habeas proceedings, Pennsyl-

vania v. Finley, 481 U.S. 551, 555 (1987). Thus, no error by

habeas counsel can ever constitute cause for abusing the writ. See

Irving v. Hargett, 59 F.3d 23, 26 (5th Cir. 1995), cert. denied,

116 S. Ct. 929 (1996); Johnson v. Hargett, 978 F.2d 855, 859 (5th

Cir. 1992), cert. denied, 507 U.S. 1007 (1993).

Callins insists that Coleman is distinguishable because it

addresses only the Sixth Amendment right to counsel, not statutory

rights to counsel. Congress recently endowed prisoners with a

right to counsel in capital habeas proceedings, see 21 U.S.C.

§ 848(q)(4)(B) (1994); McFarland v. Scott, 114 S. Ct. 2568, 2571

(1994), and Callins asserts that § 848(q)(4) contains an implied

right to counsel who are effective within the meaning of the Sixth

Amendment. Callins further argues that he should not be held

responsible for the actions of an attorney who failed to satisfy

that standard.

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 Coleman is not distinguishable. Cause “must be something

external to the petitioner.” Coleman, 501 U.S. at 753 (emphasis in

original). Attorney errors are not external, “because the attorney

is the petitioner’s agent when acting, or failing to act, in

furtherance of the litigation, and the petitioner must ‘bear the

risk of attorney error.’” Id. (quoting Murray v. Carrier, 477 U.S.

478, 488 (1986)). The Sixth Amendment imposes an exception to this

rule, in that it forbids the state from making an accused defend

himself without effective assistance of counsel. See id. at 754;

Carrier, 477 U.S. at 488. Absent a failure by the state to perform

its constitutional obligations, however, an attorney’s error is

imputed to his client. See Coleman, 501 U.S. at 755.

The § 848(q)(4) right to counsel supplements the Sixth

Amendment right to counsel; it does not impose a constitutional

obligation upon the state. In fact, § 848(q)(4) imposes a burden

only on the federal government, not the state governments. Thus,

even assuming arguendo that § 848(q)(4) contains an implied

effectiveness requirement and that Callins’s first habeas counsel

did not meet that standard, Coleman dictates that such a shortcom-

ing does not constitute cause.1

1
The Eighth Circuit arguably has found that prisoners are not responsible
for petitions filed by counsel who failed to satisfy an implied effectiveness
requirement of § 848(q)(4). See Murray v. Delo, 34 F.3d 1367, 1373-74 (8th Cir.
1994) (enunciating exception to McCleskey for cases in which counsel files
petition without client’s knowledge), cert. denied, 115 S. Ct. 2567 (1995);
Holmes v. Norris, 32 F.3d 1240, 1241 (8th Cir.) (holding that habeas attorney’s
conflict-of-interest is cause for failure to raise ineffective assistance of
counsel claim), vacated, 32 F.3d 1244 (en banc), cert. dismissed, 115 S. Ct. 379
(1994). The Eighth Circuit cases do not attempt to distinguish Coleman, however,
and to the extent that they hold the state responsible for statutorily-inadequate
counsel, they are inconsistent with that case.

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 B.

Callins argues that failure to consider his carving doctrine

claim would result in a fundamental miscarriage of justice because

he is “actually innocent” of both capital murder and the death

penalty. Callins explains that the carving doctrine limits his

criminal liability to only one of the offenses he committed at

Norma’s Lounge, rendering him actually innocent of all but one

robbery conviction. Similarly, Callins contends that as his

capital conviction was void ab initio, he is ineligible for the

death penalty and is therefore actually innocent of that sentence.

1.

Callins is not actually innocent of capital murder. Federal

courts may excuse abuses of the writ only in “extraordinary

instances when a constitutional violation probably has caused the

conviction of one innocent of the crime.” McCleskey, 499 U.S. at

494. This “miscarriage of justice” exception “is concerned with

actual as compared to legal innocence,” Sawyer v. Whitley, 505 U.S.

333, 339 (1992), and “[t]he term ‘actual innocence’ means factual,

as opposed to legal, innocence,” Johnson, 978 F.2d at 859 (emphasis

in original). Thus, “a petitioner [must] supplement[] a constitu-

tional claim with a ‘colorable showing of factual innocence.’”

McCleskey, 499 U.S. at 495 (quoting Kuhlmann v. Wilson, 477 U.S.

436, 454 (1986)) (emphasis added).

Callins does not attempt to show that he is factually innocent

of capital murder; in fact, he concedes that he “engaged in the

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acts that resulted in the death of Allen Huckleberry” and is

“morally” guilty of capital murder.

Nonetheless, Callins contends that under substantive penal

law, he is liable for only one offense. Assuming arguendo that the

carving doctrine limits Callins’s criminal liability to one

offense, however, that doctrine does not determine for which

offense he is liable. In fact, even accepting Callins’s allega-

tions, that one offense would be capital murder if (1) the

prosecution had chosen not to pursue the robbery counts or (2) the

jury had returned a completed verdict on capital murder before

finishing its deliberations on robbery.

In short, Callins has not supplemented his constitutional

claim with a factual showing that he did not commit capital murder;

instead, he contends only that his constitutional claim establishes

his innocence, i.e., that he is legally innocent. Thus, Callins

has not shown that he is actually innocent. Cf. Ward v. Cain,

53 F.3d 106, 108 (5th Cir. 1995) (holding that petitioner must show

“as a factual matter, that he did not commit the crime of convic-

tion”), petition for cert. filed (May 15, 1995) (No. 94-9266);

Johnson, 978 F.2d at 860 n.18 (stating that “actual innocence

requires more than showing of constitutional error, even when

verdict would have been different absent error”).

2.

Callins contends that he is ineligible for the death penalty

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because his underlying capital conviction is void. At least in

capital cases, the “actual innocence” exception to the cause-and-

prejudice test encompasses not only innocence of the underlying

offense, but also innocence of the sentence. See Sawyer, 505 U.S.

at 340-41. To invoke this exception, a petitioner must “show by

clear and convincing evidence that but for constitutional error at

his sentencing hearing, no reasonable juror would have found him

eligible for the death penalty.” Id. at 350 (emphasis added).

Callins does not contend that the state trial court erred

during the sentencing phase of his trial; instead, he attacks only

his underlying conviction. As we have already held, however,

“[t]he special Sawyer-version of the ‘miscarriage of justice’

exception is limited to assertions of errors of constitutional

magnitude occurring at sentencing.” Fearance v. Scott, 56 F.3d

633, 637-38 (5th Cir.), cert. denied, 115 S. Ct. 2603 (1995).

Callins contends that Fearance is distinguishable because it

involves a claim that arose after trial. The Fearance court

squarely held that Sawyer applies only to errors occurring at

sentencing; it in no way relied upon the timing of the alleged

error. See id. at 638. In addition, the Sawyer exception

“focus[es] on those elements that render a defendant eligible for

the death penalty.” Sawyer, 505 U.S. at 347. As such, it does not

logically extend to errors that arose outside of the sentencing

phase of a defendant’s trial. See Fearance, 56 F.3d at 638.2

2
Callins contends that two of our cases, Sones v. Hargett, 61 F.3d 410
(5th Cir. 1995); Smith v. Collins, 977 F.2d 951 (5th Cir. 1992), cert. denied,
(continued...)

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 Finally, Callins draws an unlikely analogy to Teague v. Lane,

489 U.S. 288 (1989), arguing that we should interpret Sawyer’s

“ineligibility” exception in light of Teague’s exception for new

rules rendering an entire class of persons ineligible for

execution. Teague holds that habeas petitioners generally do not

benefit from “new rules” announced after direct review of their

convictions. See id. at 310. The exception invoked by Callins

covers “rules prohibiting a certain category of punishment for a

class of defendants because of their status or offense.” Penry v.

Lynaugh, 492 U.S. 302, 330 (1989).

Callins’s constitutional challenge would not prohibit the

execution of a specific “class of defendants” based upon their

offense or status: The government may punish murder with death,

and those who kill while committing other crimes do not necessarily

share an “innate characteristic such as insanity or mental

retardation which precludes imposition of the death penalty.” See

White v. Johnson, 79 F.3d 432, 438 (5th Cir. 1996), petition for

cert. filed (Apr. 29, 1996) (No. 95-8790). Thus, Callins’s claim

does not fall within the Penry exception to Teague.

In addition, we fail to understand the relevance of Penry.

Sawyer and Fearance are explicit, stating that we should consider

only whether a petitioner is factually innocent of either an

element of the crime or a mandatory sentencing criterion. We

(...continued)
114 S. Ct. 97 (1993), suggest that Sawyer applies to any constitutional defect
if, but for the defect, the defendant would have been “ineligible” for the
sentence. Each case involves an allegation of error relating only to sentencing,
not conviction, and neither questions the square holding of Fearance.

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previously likened the “actual innocence” standard to a different

Teague exceptionSSone that permits reliance on new procedures that

are “implicit in the concept of ordered liberty”SSbut we did so

because those procedures are so fundamental that they “implicat[e]

factual innocence.” See Sawyer v. Butler, 881 F.2d 1273, 1293 (5th

Cir. 1989) (en banc) (emphasis added), aff’d, 497 U.S. 227 (1990).

To conclude, Sawyer does not hold that anyone who is legally

ineligible for a particular punishment is “actually innocent.”

Sawyer merely likens sentencing criteria to the elements of a

crime, focusing on the factual, not legal, basis for the verdict.

C.

Finally, Callins contends that the Texas Court of Criminal

Appeals “effectively waived the State of Texas’[s] interests in

federalism and finality regarding ex post facto claims” in Ieppert

v. State, 908 S.W.2d 217 (Tex. Crim. App. 1995). Ieppert holds

that ex post facto claims are not subject to Texas’s procedural

default rules because they are based upon a categorical prohibition

against government behavior, not an individual right. See id. at

220.

Though the legal basis for Callins’s claim is not entirely

plain, we divine two possible contentions. First, he might argue

that the state actually waived the protection of Rule 9(b).

Assuming arguendo that the state may waive that defense, but cf.

United States v. Flores, 981 F.2d 231, 236 n.9 (5th Cir. 1993)

(holding that district courts may raise abuse of the writ sua

10
sponte), the state has vigorously pressed it in this case.

Second, and more likely, Callins might contend that we should

determine whether consideration of this particular petition would

intrude significantly on the interests of the state in federalism

and finality, taking into account the views of the Texas Court of

Criminal Appeals as to whether a particular type of claim should be

subject to forfeiture. While the Supreme Court could have mandated

such a case-by-case analysis, it did not; instead, it held that we

may consider a second petition only if the petitioner shows cause

and prejudice or actual innocence.3 As Ieppert is not relevant to

either inquiry, we are foreclosed from holding that the state court

impliedly waived its government’s right to plead abuse of the

writ.4

III.

While this appeal was pending, Congress enacted the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.

104-132, 110 Stat. 1214. That act would require us to dismiss a

claim presented for the first time in a second habeas petition

unless it relies upon a legal theory or factual predicate that was

previously unavailable to the petitioner.

3
See Schlup v. Delo, 115 S. Ct. 851, 861 (1995) (stating that if a
petitioner fails to show cause and prejudice, a federal court may review his
claims only if failure to do so would result in a miscarriage of justice);
Fearance, 56 F.3d at 637 (same).
4
Even if we had equitable discretion, Ieppert would hardly end our
inquiry. Rule 9(b) protects not only the states’ interests in finality and
federalism, but also the federal courts’ interest in not expending resources on
unnecessarily repetitive litigation. See McCleskey, 499 U.S. at 491-92.

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 A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in
a prior application shall be dismissed unlessSS

(A) the applicant shows that the claim relies on a
new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or

(B)(i) the factual predicate for the claim could not
have been discovered previously through the exercise of
due diligence; and

(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the
underlying offense.

Id. § 106(b)(2) (to be codified at 28 U.S.C. § 2244(b)(2))

(emphasis added).

Callins concedes that he could have presented his carving

doctrine claim in his first petition. In fact, he contends that

his counsel was ineffective for failing to do so. Thus, § 106(b)

would bar us from considering that claim if that subsection is

applicable to cases pending on appeal at the time of its enactment.

Congress did not specify an effective date for § 106 as it did

for § 107 of the Act. Because we lack discretion to consider

Callins’s challenge under either McCleskey or the antiterrorism

act, however, we need not decide whether § 106 applies to this

appeal, and the foregoing analysis is based on our understanding of

McCleskey.

Finding this petition to be an abuse of the writ, we AFFIRM.

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