UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41382
NAPOLEON BEAZLEY,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
February 9, 2001
Before SMITH, WIENER, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Included in the numerous issues before us, which primarily
challenge the Texas death-penalty system, are several that concern
whether Napoleon Beazley can be executed for committing a capital
murder when he was almost, but not yet, age 18. Such effect vel
non of Beazley’s age, however, is not included in the one issue
(standard of review) for which the district court granted a
certificate of appealability (COA). Restated, the certified issue
is the only one before us on the merits; for the specific age-
related issues, we must first decide whether a COA should be
granted for any of them.
The certified issue concerns the appropriate federal habeas
standard of review, under 28 U.S.C. § 2254(d)(1), for state court
judgments; fortunately, that standard was clarified recently in
Williams v. Taylor, 120 S. Ct. 1495 (2000). Beazley asks us to
grant a COA for each of numerous other issues, including whether
his execution is precluded by his age at the time of the murder.
The denial of habeas relief is AFFIRMED; each requested COA is
DENIED.
I.
In June 1994, Beazley and two others, Cedric and Donald
Coleman, were arrested for the April 1994 capital murder of John
Luttig. In March 1995, a jury found Beazley guilty of that
offense. After the punishment hearing, Beazley was sentenced to
death, because the jury answered the three statutory special
interrogatories as follows: “yes” for whether Beazley probably
would commit criminal acts of violence that would constitute a
continuing threat to society; “yes” for whether he actually caused
the death of John Luttig; and “no” for whether, taking into
consideration all the evidence, including the circumstances of the
offense, Beazley’s character, background, and personal moral
culpability, sufficient circumstances warranted a life, rather than
a death, sentence. TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2 (Vernon
Supp. 2001).
2
On direct appeal, the Texas Court of Criminal Appeals
affirmed, stating in part:
[Beazley] was thinking about stealing a car
for at least two weeks prior to the ...
[murder]. He even indicated to ... friends
that he might soon be driving a Mercedes to
school. On the evening of April 18, 1994, ...
[Beazley] told Cedric [Coleman] he wanted to
steal a car.... [Beazley] carried a gun with
him in order to facilitate the crime....
Cedric [Coleman] resisted the idea, ... [and]
managed to talk [Beazley] into waiting another
day.
The next night, April 19th, intent on
carrying out his plan, [Beazley] borrowed his
mother’s car and brought along a loaded .45-
caliber Haskell semi-automatic pistol which he
kept near his person and a sawed-off shotgun
which was accessible from the back seat. He
then picked up [Cedric and Donald Coleman],
and ... proceed[ed] toward Tyler[, Texas].
[After an unsuccessful attempt to carjack
a Mercedes at a restaurant in Tyler, Cedric
Coleman, who was driving, departed] Tyler for
home.... [Beazley] ordered Cedric [Coleman]
... to turn around and return to Tyler because
he ([Beazley]) wanted to steal a car and
“wanted to see what it [was] like to kill
somebody.” In “suggesting” that Cedric
[Coleman] turn the car around and return to
Tyler, [Beazley] commented, “You know, I guess
I’m going to have to shoot my driver.” Cedric
[Coleman] then ... told [Beazley] that, under
the circumstances [Beazley] would have to do
his own driving, which [Beazley] did....
[Beazley] followed [Mr. and Mrs. John]
Luttig[][, who were driving a ten-year-old
Mercedes,] to their home .... [He] got out of
the car and stripped off his shirt. Armed
with the .45-caliber pistol, [Beazley]
shouted, “the shit is on.” ... [Beazley], who
was a power lifter able to bench press 300
pounds, grabbed the 170 pound, 63-year-old
victim [John Luttig] and threw him to the
3
ground. [Beazley] then fired one round from
his pistol, hitting the victim in the side of
the head, leaving him alive, but stunned.
[Beazley] next ran around the car to where
Mrs. Luttig was getting out of the vehicle and
fired at her at very close range, but missed
her. She fell to the ground. Apparently
believing her to be dead, [Beazley] then
returned to the first victim, raised his gun,
took careful aim, and fired point blank into
John Luttig’s head. Standing in his victim’s
blood, [Beazley] then rifled Luttig’s pockets
looking for the keys to the Mercedes.
[Donald Coleman, carrying the shotgun,
had followed Beazley into the Luttigs’
garage.] As he searched for the keys,
[Beazley] asked Donald [Coleman] if Mrs.
Luttig was dead. When Donald [Coleman] said
she was still moving, [Beazley] shouted for
him to “shoot the bitch,” but Donald [Coleman]
refused. [Beazley] then moved to shoot her,
but Donald [Coleman] quickly recanted his
previous statement and said that she was
dead.... [As Beazley drove the Mercedes away,
he damaged it, so he and Donald Coleman were
forced to abandon it.] After he was back in
his mother’s [vehicle], [Beazley] stated that
“he would get rid of” anyone who said anything
about the incident....
[Beazley] later commented, in describing
his experience of the carjacking and murder,
that, “[it] was a trip.”...
These facts reveal both forethought in
committing this crime and a deliberate
execution thereof. Moreover, they reveal not
just the intention to commit an offense, but a
dangerous self-indulgent drive to kill for the
sake of killing; just to see how it felt.
[Beazley]’s self-indulgent motivation further
reveals a wanton disregard and disrespect for
human life. His remorseless comments and
behavior after the murder further show that
his desire to kill continued unabated....
While the facts of the offense alone
might well support the jury’s affirmative
4
finding that [Beazley] would be a continuing
threat to society, the State presented other
evidence ... that [Beazley] had developed a
morbid preoccupation with death and murder.
For instance, the jury was told about a
message [Beazley] deemed was appropriate for
his answering machine which stated:
“Napoleon’s Mortuary, you stab ‘em, we bag
‘em.” Cedric [Coleman] also testified that
when a person would call [Beazley]’s answering
machine he would first hear a lot of gunshots,
followed by a person screaming and getting
killed, and then [Beazley] would speak.
Additional evidence was presented concerning
[Beazley]’s expressed desire to enlist in the
Marine Corps in order to learn to be a
“trained killer.” Finally, on the afternoon
of April 18th, the first night [Beazley]
expressed to Cedric [Coleman] that he wanted
to steal a car, [Beazley] watched “Faces of
Death,” a movie depicting the deaths of real
people in real life situations.
Additionally, ... [Beazley] carried a
weapon, presumably in order to protect his
long-standing drug-dealing business....
Beazley v. Texas, No. 72,101 (Tex. Crim. App. 26 Feb. 1997)
(unpublished) (emphasis added; footnote omitted).
Subsequently, based on the trial court’s findings of fact and
conclusions of law, Ex parte Beazley, Writ Cause No. 4-94-226-A
(Smith County, Tex. 31 Oct. 1997) (unpublished), the Court of
Criminal Appeals denied Beazley’s state habeas application as well,
Ex parte Beazley, Writ No. 36,151-01 (Tex. Crim. App. 21 Jan. 1998)
(unpublished order).
In his federal habeas petition, Beazley raised 24 claims.
Although the district court found all but seven and a portion of
another procedurally barred, it also considered, and rejected, each
5
claim on the merits. Bea[z]ley v. Director, TDCJ-ID, No. 1:98-CV-
1601 (E.D. Tex. 30 Sept. 1999) (unpublished).
Pursuant to the Antiterrorism and Effective Death Penalty Act
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1217 (1996), a petitioner
must obtain a COA in order to appeal a denial of habeas relief.
See 28 U.S.C. § 2253(c)(1)(A). The district court denied Beazley
a COA for each of the numerous issues, except one: the appropriate
standard of review for 28 U.S.C. § 2254(d)(1) (bases upon which
federal habeas relief may be awarded a state prisoner), an issue
then pending before the Supreme Court in Williams. (As noted,
Williams was decided recently.) Notwithstanding its awarding a COA
for the standard of review, the district court observed: even
under “the more lenient standard ... [Beazley] propose[d], it would
not change [its] decision ... concerning the merits of the claims
presented”. Beazley v. Director, TDCJ-ID, No. 1:98-CV-1601 (E.D.
Tex. 28 Dec. 1997) (unpublished) (emphasis added).
II.
“In a habeas corpus appeal, we review the district court's
findings of fact for clear error and review its conclusions of law
de novo, applying the same standard of review to the state court's
decision as the district court.” Thompson v. Cain, 161 F.3d 802,
805 (5th Cir. 1998). The only certified issue is addressed first;
then those issues for which Beazley requests a COA; then those two
issues for which a hearing is requested.
6
A.
Federal habeas relief shall not be granted for
any claim that was adjudicated on the merits
in State court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was
based on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d) (emphasis added).
In Williams, the Court explained that independent meaning must
be given § 2254(d)(1)’s “contrary to” and “unreasonable
application” clauses. Williams, 120 S. Ct. at 1519. For the
“contrary to” clause:
A state-court decision will certainly be
contrary to our clearly established precedent
if the state court applies a rule that
contradicts the governing law set forth in our
cases ... [or] if the state court confronts a
set of facts that are materially
indistinguishable from a decision of this
Court and nevertheless arrives at a result
different from our precedent.
Id. at 1519-20 (emphasis added). A “run-of-the-mill state-court
decision applying the correct legal rule” would not fit within this
exception as “diametrically different” or “opposite in character or
nature” from Supreme Court precedent. Id. at 1520.
7
However, under the “unreasonable application” clause:
A state court decision that correctly
identifies the governing legal rule but
applies it unreasonably to the facts of a
particular prisoner’s case certainly would
qualify as a decision “involv[ing] an
unreasonable application of ... clearly
established Federal law.”
Id. at 1520 (emphasis added). It further explained:
Under § 2254(d)(1)’s “unreasonable
application” clause, then, a federal habeas
court may not issue the writ simply because
that court concludes in its independent
judgment that the relevant state-court
decision applied clearly established federal
law erroneously or incorrectly. Rather, that
application must also be unreasonable.
Id. at 1522 (emphasis added).
Of particular relevance for our court is the Supreme Court’s
definition of an “unreasonable application” of law. The Court
criticized our court’s application, in Drinkard v. Johnson, of an
apparently subjective “reasonable jurist” standard. See id.
(citing Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996),
cert. denied, 520 U.S. 1107 (1997)).
Stated simply, a federal habeas court making
the “unreasonable application” inquiry should
ask whether the state court’s application of
clearly established federal law was
objectively unreasonable. The federal habeas
court should not transform the inquiry into a
subjective one by resting its determination
instead on the simple fact that at least one
of the Nation’s jurists has applied the
relevant federal law in the same manner the
state court did in the habeas petitioner’s
case. The “all reasonable jurists” standard
8
would tend to mislead federal habeas courts by
focusing their attention on a subjective
inquiry rather than on an objective one.
Id. at 1521-22 (emphasis added).
Beazley requests that, in the light of the standard
articulated by Williams, we grant a COA or, in the alternative,
remand the exhausted issues to the district court for appraisal
under the new standard.
In noting the application of § 2254(d) to Beazley’s habeas
claims, the district court cited Drinkard; but, in ruling on those
claims, it did not discuss, or otherwise indicate it utilized, the
now-rejected Drinkard rule. While it appears that the district
court failed to give the now-requisite independent meaning to §
2254(d)(1)’s “contrary to” and “unreasonable application”
provisions, it does not appear that it applied a subjective, rather
than the proper objective, standard of unreasonableness. In any
event, any error in the district court’s application of the
standard of review was harmless because, as further discussed
below, it reached the correct outcome. Cf. Orellana v. Kyle, 65
F.3d 29, 33 (5th Cir. 1995) (application of incorrect legal
standard harmless if conclusion unchanged), cert. denied, 516 U.S.
1059 (1996).
The § 2254(d) standard of review applies only to claims
adjudicated by state courts on the merits. As discussed infra,
under § 2254(d)(1), as defined in Williams, the state court’s
9
rejection on the merits of seven of Beazley’s habeas claims (the
exhausted claims) was neither contrary to, nor an unreasonable
application of, clearly established federal law, as determined by
the Supreme Court. Therefore, for the one issue certified by the
district court, we affirm the denial of habeas relief.
1.
In his state habeas petition, Beazley asserted that his
appellate counsel’s failure to contest the admission of evidence of
John Luttig’s (the victim’s) good character constituted ineffective
assistance of counsel, in violation of the Sixth and Fourteenth
Amendments. The state court concluded: the testimony was not
direct evidence of the victim’s good character, but instead an
explanation of the impact on his family; and appellate counsel was
not ineffective for “failing” to assign error to a groundless issue
that might have injured the credibility of other issues raised on
direct appeal.
The admission of victim impact testimony at the punishment
phase does not violate the Constitution unless the remarks so
infect the sentencing proceedings as to render the result
fundamentally unfair. See Payne v. Tennessee, 501 U.S. 808, 825
(1991). The district court concluded: the guilt-phase testimony
related to how the witnesses knew John Luttig; the punishment-phase
testimony was proper victim impact testimony; and Beazley failed to
10
demonstrate a denial of due process. The district court held the
state court findings were not contrary to established law.
The trial judge was aware of the bar on victim good character
evidence, as demonstrated by its granting a motion in limine
requiring counsel to approach the bench before offering any
evidence of the victim’s character and sustaining an objection to
the form of a question asked John Luttig’s daughter. The subject
testimony at the guilt and punishment phases was not improper.
2.
Beazley raises several challenges to the constitutionality of
the Texas death penalty statute. The statute’s history is helpful
background both to the issues raised in state court (discussed here
in part II.A) and to those raised for the first time in federal
court (discussed in part II.B.1). The statute has come before the
Supreme Court on multiple occasions as the Court,
[i]n the years since Furman v. Georgia, 408
U.S. 238 (1972), has struggled to harmonize[]
two competing commandments of the Eighth
Amendment. On the one hand, as Furman itself
emphasized, the States must limit and channel
the discretion of judges and juries to ensure
that death sentences are not meted out
wantonly or freakishly. On the other, ...
States must confer on the sentencer sufficient
discretion to take account of the character
and record of the individual offender and the
circumstances of the particular offense to
ensure that death is the appropriate
punishment in a specific case.
Graham v. Collins, 506 U.S. 461, 468 (1993) (emphasis added;
internal quotations marks and citations omitted).
11
In 1976, in Jurek v. Texas, the Supreme Court upheld the
constitutionality of an earlier version of the Texas death penalty
statute. 428 U.S. 262, 269, 276 (1976) (plurality opinion) (citing
TEX. CODE CRIM. PROC. art. 37.071 (Vernon Supp. 1975-76)). Under that
statute, the jury considered: (1) whether the conduct of the
defendant was committed deliberately and with the reasonable
expectation death would result; (2) whether the probability of
future violence and a continuing threat to society existed (future
dangerousness); and (3) whether defendant was unreasonably
provoked. Id. at 269 (plurality opinion). The Court determined
that, although the statute did “not explicitly speak of mitigating
circumstances”, id. at 272 (plurality opinion) (emphasis added), it
assured that the jury had before it “all possible relevant
information about the individual defendant whose fate it must
determine”. Id. at 276 (plurality opinion).
In Franklin v. Lynaugh, the Court considered whether the Texas
special issues prevented adequate consideration of the defendant’s
clean prison disciplinary record. 487 U.S. 164 (1988). A
plurality rejected the challenge, finding: “In resolving the
second Texas Special Issue [future dangerousness] the jury was
surely free to weigh and evaluate petitioner’s disciplinary record
as it bore on his ‘character’ ... as measured by his likely future
behavior”. Id. at 178 (plurality opinion).
12
Then, in 1989, the Court in Penry v. Lynaugh overturned a
death sentence, concluding that Texas’ special issues failed to
provide the jury a genuine opportunity to give mitigating effect to
a defendant’s mental retardation and abused childhood. 492 U.S.
302, 328 (1989). It reasoned: this evidence had only aggravating
relevance to future dangerousness (special issue two), even though
it might diminish a defendant’s blameworthiness; it might not be
reflected in the first special issue (deliberate action); and it
could not be considered under the third (provocation). Id. at 322-
24. Therefore, the defendant was constitutionally entitled to
further instructions that would allow the jury to give effect to
his mitigating evidence. Id. at 328. The Court stated that,
because this holding was “dictated by” its capital-case precedent,
id. at 319, it was not making a new rule under Teague. Id. at 318-
19 (citing Teague v. Lane, 489 U.S. 288, 301 (1989)).
Later, in Graham, the Court observed: “We do not read Penry
as effecting a sea change in this Court’s view of the
constitutionality of the former Texas death penalty statute; it
does not broadly suggest the invalidity of the special issues
framework”. Graham, 506 U.S. at 474 (emphasis added). It
concluded that the focus remained on whether the sentencer had a
reliable means of giving mitigating effect to the evidence or if it
had been placed beyond the jury’s effective reach. Id. at 475.
Finally, in Johnson v. Texas, the Court held that the future
13
dangerousness special issue allowed adequate consideration of
youth. 509 U.S. 350, 368 (1993). It reaffirmed that “States are
free to structure and shape consideration of mitigating evidence in
an effort to achieve a more rational and equitable administration
of the death penalty”. Id. at 362 (internal quotation marks and
citations omitted).
In the wake of Penry, Texas amended its death sentencing
statute, effective 1991. See TEX. CODE CRIM. PROC. ANN. art. 37.071.
Under § (2)(b) of the amended statute, the jury considers future
dangerousness (previously issue 2); and, if the defendant has been
charged as a party, it considers whether the defendant actually
caused the death, or intended to cause or anticipated a death.
Under § (2)(e), the jury is instructed that, if it answers “yes” to
the previous issues, it must consider
[w]hether, taking into consideration all of
the evidence, including the circumstances of
the offense, the defendant’s character and
background, and the personal moral culpability
of the defendant, there is a sufficient
mitigating circumstance or circumstances to
warrant that a sentence of life imprisonment
rather than a death sentence be imposed.
Id. § 2(e)(1). Subsection (f) requires an instruction that
mitigating evidence is that which “a juror might regard as reducing
the defendant’s moral blameworthiness”. Id. § 2(f)(4) (emphasis
added).
The Texas Court of Criminal Appeals explained in McFarland v.
Texas, 928 S.W.2d 482, 520 (Tex. Crim. App. 1996) (en banc), cert.
14
denied, 519 U.S. 1119 (1997), that “[t]he inclusion of the
mitigation issue in the present Texas scheme is merely a
codification of the dictates of Penry”. Accord Cantu v. Texas, 939
S.W.2d 627, 645 (Tex. Crim. App.) (en banc) (“[O]ur statutory
scheme has not radically changed from the version upheld in Jurek
v. Texas except to incorporate the dictates of Penry”. (emphasis
added; citations omitted)), cert. denied, 522 U.S. 994 (1997).
On direct appeal, Beazley asserted that the death penalty, at
least as administered in Texas, was cruel and unusual punishment
under the Eighth and Fourteenth Amendments, especially in the light
of developments following the earlier-referenced Furman v. Georgia,
408 U.S. 238 (1972) (juror discretion made death penalty system
cruel and unusual punishment, violative of Eighth Amendment). The
Texas Court of Criminal Appeals held its recent decisions were to
the contrary, citing McFarland, 928 S.W.2d at 520-21, and Lawton v.
Texas, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995) (en banc), cert.
denied, 519 U.S. 826 (1996).
The district court observed that the Supreme Court has held
the Texas death penalty scheme does not violate the Eighth
Amendment and rejected the claim as without merit, citing Jurek.
Beazley contends that the state court decision regarding
whether the Texas death penalty constituted cruel and unusual
punishment was “contrary to” clearly established Supreme Court
precedent because it “mischaracterize[d] at best the appropriate
15
rule”. He fails, however, to elaborate on how this
mischaracterization occurred. In any event, under the standard of
review articulated by Williams, the state court ruling on this
issue does not run afoul of § 2254(d)(1).
3.
Along this same line, Beazley maintained on direct appeal that
the Texas statute’s definition of “mitigating evidence” is facially
unconstitutional because it limits “mitigation” to factors that
render a capital defendant less morally “blameworthy” for
commission of the capital murder. See TEX. CODE CRIM. PROC. ANN. art.
37.071 § 2(f). The Court of Criminal Appeals rejected Beazley’s
claim, stating it had recently decided the issue otherwise, again
citing McFarland, 928 S.W.2d at 518, and Lawton, 913 S.W.2d at 555-
56.
On state habeas, the court concluded that, in addition to the
claim’s not being subject to habeas relief because it had already
been rejected on direct appeal, the claim was procedurally barred
because it had not been raised in the trial court. In the
alternative, it rejected the claim on the merits, concluding: the
jury could consider evidence of prior good character when answering
the special issues; and the instructions did not preclude it.
The district court concluded: in Crank v. Collins, 19 F.3d
172, 175 (5th Cir.), cert. denied, 512 U.S. 1214 (1994), this claim
was held to be without merit because good character evidence is
16
within the effective reach of the jury under the future
dangerousness special issue; and, in addition, Crank held the issue
Teague-barred. See id.
Crank concerned the statute prior to its amendment in 1991.
Beazley asserts that, because the statute has been amended, Crank
does not control. He contends that the new mitigating evidence
special issue and definition of “mitigating evidence”, added in
1991 to subsection (f), preclude consideration of good character
and community approbation.
As quoted earlier, “[Texas’] statutory scheme has not
radically changed from the version upheld in Jurek v. Texas, except
to incorporate the dictates of Penry”. Cantu, 939 S.W.2d at 645
(emphasis added; citations omitted). In considering challenges to
the definition of mitigating evidence as that which makes the
defendant less morally blameworthy, the Texas court has repeatedly
stated that all mitigating evidence can be given effect under the
broad definition of mitigating evidence found in Texas Code of
Criminal Procedure article 37.071 § 2(e). See Prystash v. Texas,
3 S.W.3d 522, 534 (Tex. Crim. App. 1999) (en banc) (“[S]ection 2(e)
solves any potential narrowing problem in section 2(f)(4)[,
instructing the jury to consider mitigating evidence to be that
which reduces the defendant’s moral blameworthiness,] ... [because]
the trial court’s instructions pursuant to section 2(e) provide the
jury with a vehicle to respond to a broader range of mitigating
17
evidence”.), cert. denied, 120 S. Ct. 1840 (2000); see also Cantu,
939 S.W.2d at 648-49 (by requiring jury to take into account all
evidence, § 2(e) supports interpretation that § 2(f)(4) does not
unconstitutionally narrow definition).
Likewise, our reading of the statute leads us to conclude that
the amended statute does not unconstitutionally “preclude[] [the
jury] from considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less
than death”. Lockett v. Ohio, 438 U.S. 586, 604 (1978).
The definition of mitigating evidence does not limit the
evidence considered under the third special issue (whether
mitigating circumstances warrant a life, rather than a death,
sentence). “[V]irtually any mitigating evidence is capable of
being viewed as having some bearing on the defendant’s ‘moral
culpability’ apart from its relevance to the particular concerns
embodied in the Texas special issues”. Graham, 506 U.S. at 476
(emphasis added).
Furthermore, as noted, the future dangerousness special issue
remains in the amended Texas statute. Our court has repeatedly
concluded that, under that special issue, a jury could give effect
to good character evidence. See Nichols v. Scott, 69 F.3d 1255,
1278 (5th Cir. 1995) (“At the least, the ... special issue
concerning future dangerousness provide[s] an adequate vehicle for
18
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.” (emphasis added)), cert. denied,
518 U.S. 1022 (1996); see also Jacobs v. Scott, 31 F.3d 1319, 1327
(5th Cir. 1994) (holding that “[a]s for [a defendant’s] alleged
positive character traits, a jury wishing to give effect to such
traits could answer ‘no’ to the ... special issue regarding future
dangerousness”), cert. denied, 513 U.S. 1067 (1995); Black v.
Collins, 962 F.2d 394, 405 (5th Cir.) (denying certificate of
probable cause for claim that Texas did not allow mitigating weight
to be given good character evidence because jury could consider
such evidence under future dangerousness special issue), cert.
denied, 504 U.S. 992 (1992).
4.
On direct appeal, Beazley claimed that Texas’ denial of
appellate review of the third special issue (mitigating
circumstances) caused the sentencing statute to operate in an
unconstitutional manner. The Court of Criminal Appeals rejected
this claim. Colella v. Texas, 915 S.W.2d 834, 845 (Tex. Crim. App.
1995) (en banc), had held: “Because the weighing of ‘mitigating
evidence’ is a subjective determination undertaken by each
individual juror, we decline to review the evidence for
19
sufficiency”; and Beazley had not persuaded it to revisit that
holding.
On state habeas, the court concluded the claim was
procedurally barred from being raised as a state habeas issue
because it had been raised on direct appeal. In the alternative,
it held that meaningful appellate review of the sufficiency of
mitigating evidence was part of analyzing the first special issue
(future dangerousness).
In his federal habeas petition, Beazley focused on: the Texas
court’s interpretation of Texas Code of Criminal Procedure article
44.251(a) (instructing Court of Criminal Appeals to reform death
sentence if evidence insufficient to support jury’s answers to
questions under articles 37.071 and 37.0711); and its decision to
review the sufficiency of mitigating evidence under the future
dangerousness, rather than the mitigation, special issue. The
district court ruled: the Court of Criminal Appeals had applied a
reasoned approach; and an error in the application of a state law
does not assert a claim cognizable in federal habeas proceedings.
See Engle v. Isaac, 456 U.S. 107, 119 (1982) (“Insofar as
respondents simply challenge ... [the application of state] law,
they allege no deprivation of federal rights and may not obtain
habeas relief.” (emphasis added)).
Beazley asserts that the Texas courts applied the wrong
standard and decided contrary to clearly established federal law.
20
We agree with the district court that the proper interpretation of
state law is not cognizable in federal habeas proceedings. To the
extent Beazley raises a constitutional claim, we conclude that,
regardless of whether the Texas court reviews the jury verdict
under the mitigation special issue or the future dangerousness
special issue, “meaningful appellate review” has been afforded.
See McFarland, 928 S.W.2d at 498 (although court cannot conduct
meaningful review of normative decisions on mitigation, it conducts
meaningful review of objective evidence of future dangerousness).
5.
On direct appeal, Beazley asserted he was denied an impartial
jury in violation of the Sixth and Fourteenth Amendments due to the
exclusion of black jurors through peremptory challenges. The Court
of Criminal Appeals concluded: sufficient race-neutral
explanations existed for the exclusion; and the trial judge’s
decision was not clearly erroneous.
After setting out the standard under Batson v. Kentucky, 476
U.S. 79 (1986), and noting that the state court’s factual findings
are entitled to great deference, the district court summarized the
voir dire record and concluded, correctly, that the claim was
without merit.
6.
On state habeas, Beazley claimed another violation of the
Sixth and Fourteenth Amendments by the exclusion of jurors because
21
of their opposition to the death penalty. Here, only exclusion of
juror Shirley is raised.
The state court concluded: Shirley was a vacillating juror;
and the record supported her exclusion. Beazley maintains that
decision was an unreasonable application of federal law.
The district court rejected this claim, citing the standard
from Wainwright v. Witt, 469 U.S. 412, 424 (1985) (quoting Adams v.
Texas, 448 U.S. 38, 45 (1980)): “whether the juror’s views would
‘prevent or substantially impair the performance of his duties as
a juror in accordance with his instructions and his oath’”.
Beazley contends the district court erroneously placed the burden
upon him to prove Shirley would follow instructions without such
impairment.
“A trial judge’s finding of bias during voir dire is a
determination of fact, subject to a presumption of correctness on
collateral review.” Fuller v. Johnson, 114 F.3d 491, 500-01 (5th
Cir.), cert. denied, 522 U.S. 963 (1997). Therefore, Beazley had
the burden of refuting that finding.
For this claim, Beazley asserts that the state court decision
was also an unreasonable determination of the facts under §
2254(d)(2). Because this aspect of the claim falls outside the
issue certified by the district court, we reserve further
discussion for part II.B.2.
7.
22
On direct appeal, Beazley maintained that the Eighth and
Fourteenth Amendments, at the very least, required, at the
punishment phase, a limiting instruction to disregard unadjudicated
extraneous offenses unless proved beyond a reasonable doubt.
Citing McFarland, 928 S.W.2d at 512, the Court of Criminal Appeals
ruled it “has long held that unadjudicated offenses are admissible
during the punishment phase of a capital murder trial and their
admission does not violate an accused’s constitutional rights to
due process or equal protection”. (Emphasis added.)
The district court concluded that the Colemans’ testimony
concerned a sequence of events that led up to the crime and did not
reflect inadmissable prior bad acts. Beazley maintains the
district court misconstrued the record because the Colemans
testified about bad acts prior to and after the offense, including
alleged threats by Beazley against them and others.
Although the threats did not precede the offense, they were
part of the sequence of events surrounding the crime, relevant to
the questions of Beazley’s remorse and future dangerousness. See
Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir.) (“Evidence of ...
unadjudicated crimes is clearly relevant to the jury’s task of
determining whether there is a probability that [the defendant]
would continue to commit acts of violence as required by [the]
special [interrogatory].”), cert. denied, 484 U.S. 935 (1987).
“[T]he admission of unadjudicated offenses in the punishment phase
23
of a capital trial does not violate the eighth and fourteenth
amendments.” Id. (emphasis added).
The authorities do not support [petitioner’s]
claim that the Constitution requires that the
state prove unadjudicated offenses beyond a
reasonable doubt before they may be used
during the sentencing phase. Fully aware that
the due process clause clearly requires that
for conviction the state must prove the
elements of the offense charged beyond a
reasonable doubt, neither we nor the Supreme
Court has stated that a similar burden exists
regarding the admission of evidence of
unadjudicated offenses in a capital case
sentencing hearing.
Harris v. Johnson, 81 F.3d 535, 541 (5th Cir.) (emphasis added;
citations omitted), cert. denied, 517 U.S. 1227 (1996).
Beazley’s claim is also Teague-barred. See id. (challenge to
admission of unadjudicated extraneous offenses during punishment
phase as violation of Eighth Amendment, due process, and equal
protection is Teague-barred).
B.
The district court having granted a COA only for the issue
discussed supra (standard of review under § 2254(d)(1)), Beazley
requests we grant a COA for 13 claims, only four of which (included
in the above-discussed seven issues) have been exhausted. See 28
U.S.C. § 2253(c)(1)(A) (“circuit justice or judge” must grant COA
for appeal to court of appeals).
A COA will not be granted unless the petitioner makes “a
substantial showing of the denial of a constitutional right”. Id.
24
§ 2253(c)(2). This standard “includes showing that reasonable
jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to
proceed further”. Slack v. McDaniel, 120 S. Ct. 1595, 1603-04
(2000) (internal quotation marks and citation omitted). Restated,
the petitioner “must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims
debatable or wrong”. Id. at 1604.
On the other hand, Slack provides a two-prong test when the
denial of relief is based on procedural grounds (Slack two-prong
test): the petitioner must show not only that “jurists of reason
would find it debatable whether the petition states a valid claim
of the denial of a constitutional right”, but also that they “would
find it debatable whether the district court was correct in its
procedural ruling”. Id. (emphasis added); see Hernandez v.
Johnson, 213 F.3d 243, 248 (5th Cir.) (quoting Slack), cert.
denied, 121 S. Ct. 400 (2000).
In considering the claims for which Beazley requests a COA
from our court, we begin with those raised for the first time in
federal court (which therefore are procedurally barred) and then
consider those that procedurally are properly before us. Each COA
request is denied.
25
1.
The claims found procedurally barred are discussed in subparts
a. through i. of this part. For each, Beazley fails to satisfy the
Slack two-prong test.
Under 28 U.S.C. § 2254(b)(1)(A), a court shall not grant
habeas relief unless “the applicant has exhausted the remedies
available in the courts of the State”.
The requirements of the exhaustion concept are
simple: An applicant must fairly apprise the
highest court of his state of the federal
rights which were allegedly violated.
Further, the applicant must present his claims
in a procedurally correct manner. If, for
whatever reason, an applicant bypasses the
appellate processes of his state – whether
through procedural default or otherwise – he
will not be deemed to have met the exhaustion
requirement absent a showing of one of two
particulars. He must either demonstrate cause
and prejudice or show that the failure to
consider his claims will result in a
fundamental miscarriage of justice.
Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993) (emphasis
added; internal quotation marks and citations omitted).
Texas prohibits successive writs except in narrow
circumstances. TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5 (Vernon
Supp. 2001). Under § 5, unless Beazley presents a factual or legal
basis for a claim that was previously unavailable or shows by a
preponderance of the evidence that, but for a violation of the
United States Constitution, no rational juror would have found for
the State, Beazley is procedurally barred from returning to the
26
Texas courts to exhaust his claims, id., and therefore is also
procedurally barred in federal court.
a.
At the time of the murder, Beazley was three months short of
his eighteenth birthday. The International Covenant on Civil and
Political Rights (ICCPR) provides, inter alia: a “[s]entence of
death shall not be imposed for crimes committed by persons below
eighteen years of age”. International Covenant on Civil and
Political Rights, opened for signature 19 Dec. 1966, art. 6, para.
5, S. EXEC. DOC. E, 95-2, at 23 (1978), 999 U.N.T.S. 171, 175
[hereinafter ICCPR] (emphasis added). In 1992, the United States
Senate ratified the ICCPR with various reservations,
understandings, declarations, and a proviso, stating in pertinent
part:
[T]he United States reserves the right,
subject to its Constitutional constraints, to
impose capital punishment on any person (other
than a pregnant woman) duly convicted under
existing or future laws permitting the
imposition of capital punishment, including
such punishment for crimes committed by
persons below eighteen years of age.
....
[T]he United States declares that the
provisions of Articles 1 through 27 of the
[ICCPR] are not self-executing.
138 CONG. REC. S4783-84 (statement of presiding officer of
resolution of ratification) (emphasis added).
27
Beazley maintains that article 6(5) of the ICCPR voids §
8.07(d) of the Texas Penal Code. That section provides: if a
person was at least age 17 when he committed a capital offense, he
can receive the death penalty. TEX. PENAL CODE § 8.07 (Vernon 1994).
(1)
Beazley did not raise this issue in either his direct appeal
or his state habeas petition. Because Texas would preclude a
successive state habeas claim, the claim is procedurally barred for
failure to exhaust. See TEX. CODE CRIM. PROC. ANN. art. 11.071 §
5(a); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (State need
not explicitly apply procedural bar “if the petitioner failed to
exhaust state remedies and the court to which the petitioner would
be required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred”).
There is, however, a “cause and prejudice” exception to the
bar for failure to exhaust. “When the ground upon which the
petitioner relies for habeas relief was not exhausted in state
court and state procedural rules would bar subsequent presentation
of the argument, this court may not consider the claim absent
‘cause’ and ‘prejudice’”. Little v. Johnson, 162 F.3d 855, 859
(5th Cir. 1998) (emphasis added), cert. denied, 526 U.S. 1118
(1999). Beazley contends he has shown such cause and prejudice.
He asserts “cause” in that the novelty of the claim made it
reasonably unavailable to prior counsel; and he maintains prejudice
28
is “obvious” in that, but for this error, he would not have
received the death sentence. See Reed v. Ross, 468 U.S. 1, 16
(1984) (petitioner shows cause if claim “so novel that its legal
basis [was] not reasonably available to counsel” (emphasis added)).
The Senate ratified the ICCPR in 1992; Beazley’s trial was in
early 1995; and he filed for state habeas relief in June 1997.
Therefore, the claim was available to him throughout his state
court proceedings.
Notwithstanding the Senate’s 1992 ratification, Beazley
asserts the claim was “novel” at the time of his trial in 1995,
prior to the United Nations Human Rights Committee’s (HRC’s)
supposedly finding the reservation “void”. However, he cites no
specific ruling that the reservation was void, but apparently
piggybacks several HRC statements.
In April 1994, the HRC issued a General Comment on
reservations to the ICCPR:
The Covenant neither prohibits reservations
nor mentions any type of permitted
reservation.... [W]here a reservation is not
prohibited by the treaty or falls within the
specified permitted categories, a State may
make a reservation provided it is not
incompatible with the object and purpose of
the treaty.... Reservations that offend
peremptory norms would not be compatible with
the object and purpose of the Covenant....
Accordingly, a State may not reserve the right
... to execute ... children.... The normal
consequence of an unacceptable reservation is
not that the Covenant will not be in effect at
all for a reserving party. Rather, such a
reservation will generally be severable, in
29
the sense that the Covenant will be operative
for the reserving party without benefit of the
reservation.
See General Comment 24, General Comment on Issues Relating to
Reservations Made upon Ratification or Accession to the Covenant or
the Optional Protocols Thereto, or in Relation to Declarations
Under Article 41 of the Covenant, U.N. GAOR Human Rights Comm., 52d
Sess., ¶¶ 5, 6, 8, 18, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (Nov. 1994)
[hereinafter General Comment] (emphasis added).
In October 1995, the HRC expressed its “concern[]” that the
United States Senate’s reservation to article 6(5) was
“incompatible with the object and purpose of the Covenant”, and
“recommend[ed] ... withdrawing ... [that] reservation[]”. See
Annual General Assembly Report of the Human Rights Committee, U.N.
GAOR Human Rights Comm., 50th Sess., Supp. No. 40, ¶¶ 279, 292,
U.N. Doc. A/50/40 (3 Oct. 1995) (emphasis added) [hereinafter
Report of HRC].
Beazley’s assertion of novelty fails for several reasons.
First, even assuming arguendo the HRC’s post-conviction statements
in 1995 created a novel claim, state habeas counsel made no attempt
to present the claim to the state courts two years later or to
assert that the claim satisfied an exception to the procedural bar.
See TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5 (creating exception for
procedural bar if petitioner presents previously unavailable
factual or legal basis of claim or shows by preponderance of
30
evidence that, but for violation of United States Constitution, no
rational juror would have found for State). In fact, Beazley’s
federal petition suggested Texas courts probably would have heard
an ICCPR claim even though it had not been preserved through a
contemporaneous objection at trial.
Furthermore, the claim the United States was not in compliance
with article 6(5) was no more “available”, Reed, 468 U.S. at 16,
following the HRC’s statement in 1995 than it was in 1992, when the
Senate ratified the treaty and created the reservation.
Finally, perhaps it is arguable that an assertion that the
United States is not in compliance with the treaty (a claim
available in 1992) is distinct from a claim that the reservation is
void (a claim Beazley asserts became available late in 1995).
However, by simply “suggest[ing] and recommend[ing]” that the
Senate withdraw the reservation, the HRC declined to attempt either
to void or to sever the reservation. Therefore, we need not reach
the question of whether an HRC pronouncement that the reservation
was void would create a novel claim, and we certainly need not
address whether such a pronouncement would bind the United States.
In the light of the above, Beazley has failed to show cause
for the procedural default.
In the alternative, Beazley claims excuse from procedural
default under the first Teague exception, which allows retroactive
application of new rules when they prohibit “a certain category of
31
punishment for a class of defendants because of their status or
offense”. Penry, 492 U.S. at 330. The Teague exception is not an
exception to procedural default. Moreover, because Beazley did not
make this contention in district court, it is not properly before
us.
In the further alternative, Beazley asserts he is exonerated
from procedural default under the “miscarriage of justice”
exception, in that he is “innocent of the death penalty” because a
condition of eligibility (age) has not been satisfied. See Sawyer
v. Whitley, 505 U.S. 333, 345 & n.12 (1992). This exception
applies “if petitioner has shown by clear and convincing evidence
that but for constitutional error, no reasonable juror would find
him eligible for the death penalty”. Sawyer, 505 U.S. at 348
(emphasis added). Application of state law in conflict with a
valid treaty would violate the Supremacy Clause, creating a
constitutional error; but, as noted earlier and explained further
below, no constitutional error exists because the treaty
reservation expressly preserves capital punishment for a crime
committed when under age 18.
Beazley cites his brief in the district court as a further
explanation of his cause and prejudice contention. Because he did
not explicitly make these arguments on appeal, we decline to
consider them. See Conkling v. Turner, 18 F.3d 1285, 1299 n.14
(5th Cir. 1994) (“Attorneys cannot circumvent the ... page limit of
32
Federal Rule of Appellate Procedure 28(g) [now Rule 32] by
incorporating by reference a trial memorandum.”); see also Katz v.
King, 627 F.2d 568, 575 (1st Cir. 1980) (“If counsel desires our
consideration of a particular argument, the argument must appear
within the four corners of the brief filed in this court.”).
(2)
In his habeas petition, Beazley asserts that the Senate’s
ICCPR reservation is invalid and must be severed, based on his
contention that the HRC has found it “void” for the reservation’s
violation of ICCPR’s object and purpose. As discussed, the HRC has
not found the reservation void, and the claim is procedurally
barred; however, we address the question of the reservation’s
validity because it further supports our procedural-bar conclusion.
Two state supreme courts have addressed whether the ICCPR
supersedes state law allowing execution for a crime committed while
under age 18. Most recently, the Alabama Supreme Court concluded
that the Senate’s reservation had not been demonstrated illegal.
See Ex parte Pressley, 770 So. 2d 143, 148, 2000 WL 356347, at *5-7
(Ala.) (“We are not persuaded that [petitioner] has established
that the Senate’s express reservation of this nation’s right to
impose a penalty of death on juvenile offenders, in ratifying the
ICCPR, is illegal.”), cert. denied, 121 S. Ct. 313 (2000); see also
Ex parte Burgess, No. 1980810, 2000 WL 1006958, at *11 (Ala. 21
July 2000) (reaffirming reasoning and holding of Pressley). And,
33
in Domingues v. Nevada, the Supreme Court of Nevada concluded that
“the Senate’s express reservation of the United States’ right to
impose a penalty of death on juvenile offenders negate[d]
Domingues’ claim that he was illegally sentenced”. 114 Nev. 783,
785, 961 P.2d 1279, 1280 (1998), cert. denied, 528 U.S. 963
(1999).1 We agree.
Furthermore, our court has recognized the validity of Senate
reservations to the ICCPR. See White v. Johnson, 79 F.3d 432, 440
& n.2 (5th Cir.) (“[E]ven if we did consider the merits of this
claim, we would do so under the Senate’s reservation that the
treaties [among them the ICCPR] only prohibit cruel and unusual
punishment”.), cert. denied, 519 U.S. 911 (1996); cf. Austin v.
Hopper, 15 F. Supp. 2d 1210, 1260 n.222 (M.D. Ala. 1998)
(“[A]lthough international jurisprudence interpreting and applying
the ICCPR would appear to assist this court, two sources preclude
reliance on such precedent: the Supreme Court’s directive in
Stanford v. Kentucky[, 492 U.S. 361, 369 n.1 (1989) (American
conceptions of decency are dispositive)]; and the reservations
attached to the ICCPR.”).
1
Needless to say, the Supreme Court’s denial of certiorari is
not an expression of an opinion on the merits of the case. See,
e.g., Carpenter v. Gomez, 516 U.S. 981, 981 (1995) (opinion of
Stevens, J., respecting denial of certiorari). This
notwithstanding, it is at least noteworthy that, after requesting
a brief from the Solicitor General on Domingues’ petition for
certiorari, Domingues v. Nevada, 526 U.S. 1156 (mem.) (1999), the
Court denied certiorari, 528 U.S. 963 (1999).
34
In claiming that the reservation is invalid, Beazley cites a
declaration to the ICCPR:
[T]he United States declares that it accepts
the competence of the Human Rights Committee
to receive and consider communications under
Article 41 in which a State Party claims that
another State Party is not fulfilling its
obligations under the Covenant[.]
138 CONG. REC. S4784 (1992) (statement of presiding officer of
resolution of ratification) (emphasis added). But, this
declaration, while acknowledging the HRC, does not bind the United
States to its decisions.
Beazley asserts that other courts have found the HRC’s
interpretation of the ICCPR persuasive. See, e.g., United States
v. Duarte-Acero, 208 F.3d 1282, 1287 (11th Cir. 2000) (looking to
HRC’s guidance as “most important[]” component in interpreting
ICCPR claim (brackets omitted)); United States v. Benitez, 28 F.
Supp. 2d 1361, 1364 (S.D. Fla. 1998) (finding HRC’s interpretation
of ICCPR article 14(7) helpful). However, these courts looked to
the HRC only for guidance, not to void an action by the Senate.
See Duarte-Acero, 208 F.3d at 1285 (finding appellant’s contention
contradicted by plain language and legislative history and HRC’s
interpretation, all of which were in agreement).2
2
Dictum in United States v. Bakeas provides: “Although the
United States sought to ‘clarify’ that it would be bound by its own
understanding of discrimination [in the ICCPR], rather than that of
the international community, the [HRC] has the ultimate authority
to decide whether parties’ clarifications or reservations have any
effect”. 987 F. Supp. 44, 46 n.4 (D. Mass. 1997). In addition to
35
In the light of our analysis, the reservation is valid.
Accordingly, we could dispense with, as moot, Beazley’s contention
that the ICCPR is self-executing; however, we consider it briefly.
As quoted above, the Senate ratified the ICCPR with a declaration
that articles 1 to 27 were not self-executing. Beazley claims
this declaration is trumped by article 50 of the ICCPR, which
states: “The provisions of the present Covenant shall extend to
all parts of federal States without any limitations or exceptions”.
ICCPR, art. 50. He maintains also that various statutory
provisions constitute enabling statutes to allow private rights of
action.
The claim that the Senate, in ratifying the treaty, voided its
own attached declaration is nonsensical, to say the very least.
The Senate’s intent was clear — the treaty is not self-executing.
See Duarte-Acero, 208 F.3d at 1285 (“If the language of the treaty
is clear and unambiguous, as with any exercise in statutory
construction, our analysis ends there and we apply the words of the
treaty as written.”). “‘Non-selfexecuting’ means that absent any
further actions by the Congress to incorporate them into domestic
law, the courts may not enforce them.” Jama v. I.N.S., 22 F. Supp.
2d 353, 365 (D.N.J. 1998) (emphasis added).
this being dictum, Bakeas cites no authority other than a law
journal article.
36
Moreover, although Beazley cites no case law supporting the
proposition that the treaty is self-executing, many courts have
found it is not. See, e.g., Igartua De La Rosa v. United States,
32 F.3d 8, 10 n.1 (1st Cir. 1994) (“Articles 1 through 27 of the
Covenant were not self-executing, and could not therefore give rise
to privately enforceable rights under United States law”. (emphasis
added; citation omitted)), cert. denied, 514 U.S. 1049 (1995); Ralk
v. Lincoln County, 81 F. Supp. 2d 1372, 1380 (S.D. Ga. 2000)
(neither legislative nor executive branch intended ICCPR to be
self-executing); Jama, 22 F. Supp. 2d at 365 (ICCPR not self-
executing); White v. Paulsen, 997 F. Supp. 1380, 1387 (E.D. Wash.
1998) (ICCPR not self-executing treaty that gives rise to private
cause of action). The reservation is an express exception to
article 50; restated, article 50 does not void the Senate’s express
intent.
In sum, Beazley presents no legal basis of a claim that was
previously unavailable; nor does a preponderance of evidence show
that, but for violation of the United States Constitution, no
rational juror would have found for the State. Accordingly,
Beazley is procedurally barred from returning to the Texas courts
to exhaust his ICCPR claim. See TEX. CODE CRIM. PROC. ANN. art. 11.071
§ 5. Therefore, he is also procedurally barred in federal court.
Because he has failed to show either cause and prejudice for not
37
raising the claim in state court or a fundamental miscarriage of
justice, he is not excused from the default.
b.
Beazley asserts the denial of habeas relief on the grounds of
the peremptory norms of customary international law was “contrary
to” clearly established Supreme Court authority because it
“mischaracterize[d] at best the appropriate rule, made clear by
[the Supreme Court]”. However, he fails to explain why the
decision was incorrect or to cite a supporting Supreme Court rule;
furthermore, because the claim is procedurally barred, we need not
even reach the application of § 2254(d).
Beazley makes the same claim of cause and prejudice as he did
regarding the procedural default of his ICCPR claim, and he also
asserts miscarriage of justice. Just as he failed to establish an
exception to the procedural bar for that claim, he fails to do so
for this one.
As noted, the district court found the claim not only
procedurally barred but also without merit. Courts look to the
norms of international law “only where there is no treaty and no
controlling executive or legislative act or judicial decision”.
Gisbert v. U.S. Attorney Gen., 988 F.2d 1437, 1447 (5th Cir. 1993)
(emphasis added; internal quotation marks and citations omitted).
The district court held that, because the Senate placed
reservations on the ICCPR, and the Supreme Court has allowed the
38
execution of those who committed crimes at age 16, see Stanford,
492 U.S. at 370-73 (concluding that imposition of capital
punishment for crime committed at 16 or 17 years of age was not
cruel and unusual under Eighth Amendment), the norms of
international law are not controlling. The district court also
found that the norms Beazley referenced were not shown to be either
valid or reliable.
Beazley asserts that the district court abused its discretion
by refusing a hearing on whether the norms he referenced were
valid. Because we deny a COA, we do not reach the norms’
reliability.
c.
Beazley claims his sentence violates the Eighth and Fourteenth
Amendments because he was 17 at the time of the offense. The
district court found the claim procedurally barred, and also stated
it was bound by Supreme Court precedent.
Beazley again asserts: the novelty of the claim constitutes
“cause” for this procedural default and prejudice obviously
resulted; and, in the alternative, the miscarriage of justice
exception applies. But this claim is even more clearly barred than
the previous. He cannot suggest the claim was novel or that
refusing to hear it is a miscarriage of justice, because, as noted,
over ten years ago, long before Beazley’s trial in 1995, the
Supreme Court found constitutional laws authorizing the death
39
penalty for those under age 18. See Stanford, 492 U.S. at 370-73
(imposition of capital punishment for crime committed at age 16 or
17 not cruel and unusual); Graham v. Collins, 950 F.2d 1009, 1030
& n.25 (5th Cir.) (en banc) (citing Stanford), cert. granted, 504
U.S. 972 (1992), aff’d, 506 U.S. 461 (1993).
Beazley asserts that vast changes require revisiting this
issue. Obviously, we are bound by Supreme Court precedent.
d.
As explained earlier, Beazley maintains appellate counsel was
ineffective in failing to challenge the allowance of victim
character evidence. That claim was exhausted; and, in Part II.A.1,
we considered it on the merits and denied relief.
However, in a footnote in his appellate brief, Beazley
“separately seeks [a] COA ... [for the alleged] violation of
fundamental fairness by the prosecution’s use of the victim good
character testimony if this Court may find exhaustion excused”.
Beazley suggests no basis on which exhaustion could be excused.
e.
Beazley also claims that a longstanding pattern of
discrimination in Smith County, Texas, in the selection of grand
jury forepersons, violated his equal protection rights. The claim
is procedurally barred – it was not exhausted in state courts, or
even raised at trial, contrary to Texas’ contemporaneous objection
rule. See TEX. CODE CRIM. PROC. ANN. art. 19.27 (Vernon 1977);
40
Nichols, 69 F.3d at 1280 (finding unexhausted claims would be
barred by Texas’ contemporaneous objection rule, thus precluding
federal review).
Beazley asserts, however, that his claim was “exhausted ...
through other cases”, such as Rousseau v. Texas, 855 S.W.2d 666
(Tex. Crim. App. 1993), cert. denied, 510 U.S. 919 (1993), and
Texas v. Lewis, No. 71,887 (Tex. Crim. App. 16 June 1996)
(unpublished). He cites no authority for this vicarious exhaustion
proposition. Needless to say, the likelihood of failure of a claim
in state court is no excuse for not presenting it there. See
Engle, 456 U.S. at 130 (“If a defendant perceives a constitutional
claim and believes it may find favor in the federal courts, he may
not bypass the state courts simply because he thinks they will be
unsympathetic to the claim. Even a state court that has previously
rejected a constitutional argument may decide, upon reflection,
that the contention is valid.” (emphasis added; footnote and
citations omitted)).
Next, Beazley asserts the claim is not subject to procedural
default because it is a structural error for which a state court is
an inadequate forum, citing Rose v. Mitchell, 443 U.S. 545, 561
(1979). His citation to Rose is out of context; it provides:
[C]laims such as those pressed by respondents
in this case concern allegations that the
trial court itself violated the Fourteenth
Amendment in the operation of the grand jury
system. In most such cases, as in this one,
41
this same trial court will be the court that
initially must decide the merits of such a
claim, finding facts and applying the law to
those facts.... There is a need in such cases
to ensure that an independent means of
obtaining review by a federal court is
available on a broader basis than review only
by this Court will permit. A federal forum
must be available if a full and fair hearing
of such claims is to be had.
Id. The Court made that statement in declining to extend the
reasoning of Stone v. Powell, 428 U.S. 465 (1976), which forecloses
habeas review of Fourth Amendment claims raised in state court, not
in creating an exception for procedural default. See Rose, 443
U.S. at 560-51 (“a claim of discrimination in the selection of the
grand jury differs so fundamentally from application on habeas of
the Fourth Amendment exclusionary rule that the reasoning of Stone
v. Powell should not be extended to foreclose habeas review of such
claims in federal court” (emphasis added)). In Rose, the
petitioner had objected to the grand jury process prior to trial
and also on direct appeal, thereby exhausting the claim. Id. at
548-49. Therefore, procedural default is not excused.
In the alternative, Beazley seeks a remand for a hearing.
And, he requests a COA on whether trial counsel’s failure to
challenge the grand jury process denied him effective assistance of
counsel. Because both single-sentence requests were made in a
footnote, they are inadequately briefed and make no showing of the
denial of a constitutional right.
42
f.
Beazley asserts that at least one juror was motivated by
racial animus in sentencing him to death. The district court found
the claim procedurally barred by failure to exhaust it before the
state courts, as well as without merit, because conclusory
allegations are insufficient to raise a constitutional issue.
Concerning the merits, Beazley failed to meet his “burden of
proving the existence of purposeful discrimination ... [and] that
the purposeful discrimination had a discriminatory effect on him”.
McCleskey v. Kemp, 481 U.S. 279, 292 (1987) (internal quotation
marks and citations omitted).
g.
In another claim raised for the first time in federal court,
Beazley asserts the prosecutor knowingly presented false testimony
regarding plea bargains with the Colemans. The district court
found the claim both procedurally barred and without merit.
At Beazley’s guilt-innocence and punishment phases, Cedric and
Donald Coleman testified they did not receive any promises of a
plea bargain prior to their testimony. In their subsequent state
trials, they received life sentences consecutive to the federal
sentences they had received prior to Beazley’s state trial.
In affidavits submitted with Beazley’s habeas petition, both
Colemans refer to deals with the prosecution; but, the district
court found those affidavits did not reflect false testimony was
43
presented at trial. According to the district court, the Colemans’
attorneys gave affidavits stating that no plea offer or leniency
offer ever was made or accepted. And, the prosecutor in Beazley’s
case submitted a similar affidavit.
h.
Beazley refers to federal habeas claims of denial of due
process resulting from the prosecutor’s suppression of mitigating
evidence and from misleading testimony, concerning deals for
leniency made with the Colemans and Beazley’s remorse for the
offense. He did not raise this in the state courts; therefore, it
is procedurally barred.
The district court also concluded it was without merit,
finding no evidence of knowing suppression and that Beazley was in
the best position to provide testimony regarding his remorse,
citing Brady v. Maryland, 373 U.S. 83, 87 (1963); Edmond v.
Collins, 8 F.3d 290, 293 (5th Cir. 1993); United States v.
Stephens, 964 F.2d 424, 435 (5th Cir. 1992); and United States v.
Bagley, 473 U.S. 667, 682 (1985). Although Beazley maintains here
that the district court reached the wrong conclusion, he briefed
the claim primarily in a footnote and gives no basis for his
assertion of “intentional suppression”.
i.
In a final attempt to preclude procedural default, Beazley
suggests that the ineffectiveness of state process excused him from
44
exhausting claims in state court. Citing 28 U.S.C. §
2254(b)(1)(B)(ii) (exhaustion excused if “circumstances exist that
render such process ineffective to protect the rights of the
applicant”), he insists the district court erred in failing to
grant discovery and a hearing on the issue of ineffective process
and on claims presented for the first time in federal court.
In his brief to our court, Beazley claims meaningful post-
conviction review was rendered impossible by the Court of Criminal
Appeals’ giving Beazley’s habeas counsel and his partner five
capital habeas cases each, briefs in all of which were due in six
months. It is not clear that Beazley raised this ineffective state
process contention in district court, although he did maintain
ineffectiveness of habeas counsel was cause for his procedural
default. We will assume arguendo that ineffectiveness of habeas
counsel might be construed as raising ineffective process, if the
ineffectiveness is structural, as Beazley alleges. But, to the
extent Beazley now raises this claim for the first time, we cannot
consider it. E.g., United States v. Samuels, 59 F.3d 526, 529-30
(5th Cir. 1995) (“Short of a miscarriage of justice, we may not
consider an issue raised for the first time on appeal of a section
2255 motion.” (emphasis added)); United States v. Smith, 915 F.2d
959, 964 (5th Cir. 1990) (per curiam) (“If the defendant in habeas
proceedings did not raise his claims before the district court, we
do not consider them on appeal.” (emphasis added)).
45
Because the district court did reach the question of
ineffectiveness of habeas counsel, we first address it. However,
we easily conclude that the district court properly dismissed, as
without merit, any claim of ineffective assistance of habeas
counsel as “cause” for procedural default, citing Mackall v.
Angelone, 131 F.3d 442, 446 (4th Cir. 1997) (alleged ineffective
assistance of counsel in petitioner’s first state habeas proceeding
did not constitute cause for failure previously to raise claim),
cert. denied, 522 U.S. 1100 (1998). In addition, to the extent
Beazley asserts his attorney rendered ineffective assistance
because the state habeas system precluded effective representation,
his claim is barred by 28 U.S.C. § 2254(i): “The ineffectiveness or
incompetence of counsel during Federal or State collateral post-
conviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254”. (Emphasis added.)
Moreover, as reflected in the bar raised by § 2254(i), no
constitutional right to habeas counsel in state collateral
proceedings exists, so Beazley cannot claim a constitutional
violation. See Fairman v. Anderson, 188 F.3d 635, 643 (5th Cir.
1999) (“[B]ecause appointment of counsel on state habeas is not
constitutionally required, any error committed by an attorney in
such a proceeding ‘cannot be constitutionally ineffective’”.
(quoting Coleman, 501 U.S. at 752) (emphasis added)).
46
Turning to the broader issue of ineffective state process, and
assuming arguendo Beazley properly presented the claim to the
district court, “infirmities in state habeas proceedings do not
constitute grounds for relief in federal court”. Trevino v.
Johnson, 168 F.3d 173, 180 (5th Cir.) (emphasis added; internal
quotation marks and citations omitted) (citing Fifth Circuit and
other circuits), cert. denied, 527 U.S. 1056 (1999); Vail v.
Procunier, 747 F.2d 277, 277 (5th Cir. 1984).
Because Beazley has not made a substantial showing of the
denial of a constitutional right, his request for a hearing on the
issue is moot. In any event, he has not even attempted to show why
the claim is not barred by 28 U.S.C. § 2254(e)(2), discussed below,
for failure to develop the factual basis of the claim in state
court proceedings.
2.
Beazley requests a COA for four of the claims addressed by
(exhausted in) the state court: ineffective assistance of counsel
for failure to object to victim character evidence; violation of
the Eighth and Fourteenth Amendments by the jury instruction
regarding mitigating evidence; violation of the Sixth and
Fourteenth Amendments by exclusion of jurors for opposition to the
death penalty; and violation of the Eighth and Fourteenth
Amendments by admission of uncorroborated prior bad acts and
47
unadjudicated extraneous offenses during sentencing. As stated
earlier, we refuse to grant a COA for any of these claims.
Only one issue falls outside those discussed supra in part
II.A (applying standard of review for § 2254(d)(1)). As noted
earlier, Beazley asserts that the trial court’s exclusion of a
juror because of her opposition to the death penalty was, under 28
U.S.C. § 2254(d)(2), an unreasonable determination of the facts.
However, the district court concluded that the vacillating-juror
finding was not unreasonable.
Beazley fails to refute the state court’s finding. For this
reason and those stated in part II.A, he has failed to “demonstrate
that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong”. Slack, 120 S.
Ct. at 1604.
C.
Pursuant to (Michael) Williams v. Taylor, 120 S. Ct. 1479
(2000), Beazley seeks an evidentiary hearing on the impartiality
vel non of two jurors, claiming his state habeas counsel made the
reasonable attempt required by 28 U.S.C. § 2254(e)(2) to uncover
supporting facts. He maintains: juror Herbst knew the victim,
John Luttig, but the prosecutor’s questioning intentionally avoided
revealing this; and juror Jenkins was racially biased. (The
request to certify the racial-bias issue was denied supra. And,
Beazley does not request a COA for the acquaintance issue. In any
48
event, both claims are procedurally barred by the failure to raise
them in the state court.)
Section 2254(e)(2) precludes an evidentiary hearing in
district court “[i]f the applicant has failed to develop the
factual basis of a claim in State court proceedings,” unless the
applicant shows, inter alia:
(A) the claim relies on —
...
(ii) a factual predicate that could not have
been previously discovered through the
exercise of due diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and
convincing evidence that but for
constitutional error, no reasonable fact-
finder would have found the applicant guilty
of the underlying offense.
28 U.S.C. § 2254(e)(2) (emphasis added).
The district court concluded that Beazley was not entitled to
an evidentiary hearing. In so ruling, it did not have the benefit
of the recent (Michael) Williams decision. However, it did have
our decision in McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir.
1998), which (Michael) Williams notes had earlier reached the same
holding. 120 S. Ct. at 1488.
(Michael) Williams concerned Williams’ seeking evidentiary
hearings on three claims raised for the first time in his federal
habeas petition, including a claim, like Beazley’s, that seating a
49
juror who did not reveal possible sources of bias rendered his
trial unfair. 120 S. Ct. at 1486. Like Beazley, Williams
maintained § 2254(e)(2) did not apply because, through no fault of
his own, he was unaware of the underlying facts. Id. Williams
conceded that his case did not fall within the exception created by
§ 2254(e)(2)(B) (underlying facts would not “establish by clear and
convincing evidence that but for constitutional error”, petitioner
would not have been found guilty). He asserted, instead, that he
did not even come within the section’s first, preclusive condition
(opening clause): “failed to develop the factual basis of a
claim”. Id. at 1487 (emphasis added). As in Beazley, state post-
conviction relief was unavailable, but the Supreme Court found
cause for the default regarding juror bias. Id. at 1494.
After discussing the meaning of the word “failed” in §
2254(e)(2)’s opening clause, the Court concluded: “Under the
opening clause of § 2254(e)(2), a failure to develop the factual
basis of a claim is not established unless there is lack of
diligence, or some greater fault, attributable to the prisoner or
the prisoner’s counsel”. Id. at 1488 (emphasis added) (noting
agreement with our court’s holding in McDonald, 139 F.3d at 1059).
The Court observed that the fault requirement avoided creating
tension with § 2254(d):
If the opening clause of § 2254(e)(2) covers a
request for an evidentiary hearing on a claim
which was pursued with diligence but remained
50
undeveloped in state court because, for
instance, the prosecution concealed the facts,
a prisoner lacking clear and convincing
evidence of innocence could be barred from a
hearing on the claim even if he could satisfy
§ 2254(d).
Id. at 1489 (emphasis added). The Court further explained:
Diligence for purposes of the opening clause
depends upon whether the prisoner made a
reasonable attempt, in light of the
information available at the time, to
investigate and pursue claims in state
court.... Diligence will require in the usual
case that the prisoner, at a minimum, seek an
evidentiary hearing in state court in the
manner prescribed by state law.
Id. at 1490 (emphasis added).
Regarding Michael Williams’ Brady claim, the Court found state
habeas counsel knew “details that should have alerted counsel to a
possible ... claim”. Id. at 1491 (emphasis added). “Given
knowledge of the [facts and their] potential importance, a diligent
attorney would have done more. Counsel’s failure to investigate
these references in anything but a cursory manner triggers the
opening clause of § 2254(e)(2).” Id. at 1492 (emphasis added).
Michael Williams also claimed potential juror bias, as noted,
and prosecutorial misconduct because a juror remained silent about
her previous marriage to, and divorce from, a key witness, and
about the prosecutor’s representing her during that divorce
proceeding, and also because the prosecutor did not reveal the
information. Id. at 1492. The Supreme Court found no evidence in
51
the trial record that would have put a reasonable attorney on
notice. Id. at 1493. Counsel had requested funds to investigate
the jury because of suspicions about another juror, but the state
court denied the funding. Id.
The Court found the funding-denial understandable in the light
of petitioner’s vague allegations, but found the vagueness was not
Williams’ fault. Id. It stated: “We do not suggest the State has
an obligation to pay for investigation of as yet undeveloped
claims; but if the prisoner has made a reasonable effort to
discover the claims to commence or continue state proceedings, §
2254(e)(2) will not bar him from developing them in federal court”.
Id. at 1494 (emphasis added).
Beazley asserts that his state habeas counsel made a
“reasonable attempt” to develop the claims of juror racial bias and
juror acquaintance with John Luttig. State habeas counsel
requested funds to investigate juror and prosecutorial misconduct;
funds were granted; and the investigator contacted the two jurors
whose bias Beazley now asserts – Jenkins (alleged racial bias), and
Herbst (alleged acquaintance with John Luttig). Beazley states
that, although Herbst revealed nothing to the investigator, a basis
for the claim against Jenkins was established. Beazley’s state
habeas attorney sought an extension of time to file his petition
(the request did not specifically mention the racial-bias claim);
52
an extension was denied; and, in Beazley’s state habeas petition,
he failed to raise either claim.
We easily dispose of the racial-bias claim; Beazley admits his
state habeas counsel was aware of a basis for it. Just as counsel
to Michael Williams failed to raise a claim about which he had
factual knowledge, Beazley’s counsel knew of the possible racial
bias and failed to raise the issue in state court. This failure
does not evidence the requisite diligence necessary to avoid the
bar imposed by § 2254(e)(2)’s opening clause.
Regarding Herbst’s alleged acquaintance with John Luttig,
Herbst testified at voir dire that she worked for Robert and Lester
Henry. Beazley’s federal habeas counsel discovered Robert Henry
had a business relationship with John Luttig, as incorporators of
a corporation, and Henry’s son was a trustee for a portion of John
Luttig’s property. Beazley suggests the prosecutor attempted to
hide Herbst’s acquaintance with John Luttig because he did not ask
if she knew him. However, not only did the prosecutor not ask this
question, defense counsel failed to do so as well. Furthermore,
when asked by defense counsel if anything else came to mind that
Herbst might need to tell one of the parties if they had not asked
the right questions, Herbst answered “no”; and, when asked if she
could be a fair and impartial juror, she answered “yes”.
Beazley asserts: “The evidence suggests a great likelihood
that Herbst personally knew [John] Luttig”. This is speculation.
53
Therefore, we find it difficult to “fault” state habeas counsel for
not pursuing the claim further, after the investigator contacted
Herbst post-trial (as discussed supra).
However, Beazley’s “[c]urrent counsel [claims he] found the
information by searching Secretary of State records on Lexis to
ascertain whether there were any business relationships between the
victim and jurors that had been undisclosed”. This avenue of
research, or a similar one, was presumably available to state
habeas counsel. Moreover, Beazley has uncovered no evidence of
actual acquaintance between Herbst and John Luttig – he relies
solely on the business relationships evinced in the state records.
In (Michael) Williams, for the juror-bias issue the Court
found fell outside § 2254(e)(2)’s opening clause, and for which,
therefore, an evidentiary hearing was not barred in federal court,
the juror and prosecutor both admitted to knowing that the juror’s
former husband would be testifying; but both thought they were no
longer “related” after the divorce. Id. at 1492-93. Regarding the
prosecutor’s representation of the juror in the divorce proceeding,
the juror stated in an affidavit that, because the divorce was
uncontested, she did not think he had “represented” either party;
and the prosecutor stated in his affidavit that he had forgotten
it. Id.
In contrast, Beazley’s federal habeas counsel has produced no
similar evidence or affidavits that “could suggest to the finder of
54
fact an unwillingness to be forthcoming” or “failure to divulge
material information in response to [a] question [that] was
misleading as a matter of fact”. Id. at 1493. Therefore, we find
no abuse of discretion in the denial of an evidentiary hearing.
See McDonald, 139 F.3d at 1059 (“Denials of an evidentiary hearing
are reviewed for abuse of discretion”).
III.
For the foregoing reasons, for the issue for which the
district court granted a COA, we AFFIRM, based on our conclusion
that the denial of habeas relief was proper under the standard of
review subsequently articulated in Williams; and, a COA is DENIED
for each issue for which one is requested from our court.
Therefore, the judgment denying habeas relief is AFFIRMED.
55
Beazley v. Johnson
Court: Court of Appeals for the Fifth Circuit
Date filed: 2001-02-09
Citations: 242 F.3d 248
Copy CitationsCombined Opinion