Boggess v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-10717
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CLIFFORD HOLT BOGGESS,

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
Northern District of Texas
(7:03-CV-159-X)
_________________________________________________________________

November 18, 1997
Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

In this death penalty case, we hold that the district court

was correct to deny appellant Clifford Holt Boggess’s petition for

a writ of habeas corpus. On appeal, Boggess has three

interconnected arguments, all revolving around a jury sentencing

instruction that he contends was erroneous under state law. Even

assuming that this point is correct, Boggess’s arguments for habeas

relief are without merit.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
 Boggess contends that his sentencing instruction was erroneous

because it improperly informed the jury of his possibility for

parole under a life sentence, and exaggerated this possibility by

stating that any good conduct time he earned would be taken into

account in calculating the mandatory minimum. The jury instruction

does seem to have been incorrect in this latter respect, and

shortly after Boggess’s sentencing, the Texas Supreme Court ruled

that instructing the jury on parole law pursuant to statute in a

noncapital case violated the separation of powers clause of the

Texas Constitution. See Rose v. State, 752 S.W.2d 529 (Tex. 1987).

Although the effect of Rose on a capital case like Boggess’s is not

entirely clear, we will assume for purposes of argument that it

applies to Boggess and renders his jury instruction erroneous for

including the information about parole at all.

Boggess first complains that his trial counsel was inadequate

under the Sixth Amendment because he requested and accepted the

erroneous instruction. Under Strickland v. Washington, 466 U.S.

668, 687 (1984), Boggess must show (1) deficient performance by

counsel, which (2) resulted in actual prejudice, in order to

succeed in this claim. Even assuming that his counsel’s

performance was deficient for making a mistake about “good time”

and not predicting the outcome of Rose, we are unpersuaded that

Boggess has established prejudice under Strickland. To determine

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whether prejudice at sentencing has been shown for purposes of

Strickland, we must ask “whether there is a reasonable probability

that, absent the errors, the sentencer--including an appellate

court, to the extent that it independently reweighs the evidence--

would have concluded that the balance of aggravating and mitigating

circumstances did not warrant” the death penalty. Id. at 695.

In Boggess’s case, the imposition of the death sentence turned

on the jury’s finding that Boggess would pose “a continuing threat

to society,” so we must examine the evidence that bears on this

point. In this regard, the trial revealed that Boggess had

committed a calculated, brutal robbery and murder of an elderly

shopkeeper in Boggess’s own home town for $500. At sentencing, the

prosecution presented additional evidence that Boggess had pled

guilty to another similar robbery/murder of an elderly shopkeeper,

that he would serve a minimum of nineteen years for that crime,

that he had sent various threatening letters1 to acquaintances

1
As the district court found, a representative example is the
following:

But I’ll get you for what you have done to me. Lucifer--
my Lord Satan--He and I shall see your sole [sic] burn in
hell. As I sit at his right hand in the pit of eternal
flame-well (sic) burn your sole before your eyes and the
souls of all your children. Except Kim. And oh how the
screams will echo in my Kings palace of sin. HEE-HEE-
HEE. I can hardly wait. I’m not afraid of the pen and
i’m [sic] not afraid to die, for Lucifer awaits me. And
then, I shall come for you. Remember & remember well.
From now on your life will be filled with misery and bad

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demanding that they cooperate in his defense, that he had

threatened to “head[] for the judges [sic] throat” if he received

a death sentence, and that he had been violent and threatening

toward prison guards. As to this latter point, the prosecution

argued strenuously that Boggess would pose a future danger to both

guards and other inmates in prison.

In the light of this overwhelming evidence in favor of a

finding of future dangerousness, we agree with the district court

that there is no reasonable probability that Boggess’s sentence

would have come out any differently had the information about

parole been wholly excluded from the instruction. In this regard,

we note that the future dangerousness inquiry in Boggess’s case was

not limited to dangerousness to free society but included danger to

others in the prison milieu, including guards, that any

exaggeration caused by the “good time” error was nullified by the

nineteen year minimum sentence for the other robbery/murder, and

that the United States Supreme Court has recently indicated that

accurate information concerning parole is generally helpful to the

sentencing process. See Brown v. Texas, 1997 WL 333359 (opinion

respecting denial of writ of certiorari).

Boggess next complains that his appellate counsel (the same as

at trial) was inadequate for not raising the sentencing instruction

fortune.

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as error on direct appeal. This claim also fails under Strickland,

for the same lack of prejudice discussed above.

Finally, Boggess argues belatedly that, even if his Sixth

Amendment claims fail, he is nonetheless entitled to federal habeas

relief because the jury instruction itself violated his Eighth and

Fourteenth Amendment rights under Simmons v. South Carolina, 512

U.S. 154 (1994). In that case, the Supreme Court held that, where

a state bases a death sentence at least in part on the future

dangerousness of the defendant, and the alternative sentence to

death is life without parole, the state is required to reveal the

lack of eligibility for parole to the jury. Id. at 169-71. In

Aldridge v. Scott, 41 F.3d 213 (5th Cir. 1994), cert. denied, 514

U.S. 1108 (1995), however, this court specifically limited the

reach of Simmons to cases where “the state argues that the

defendant is a future danger to free society.” 41 F.3d at 222

n.12. “[W]hen the state argues that the defendant poses a future

danger to everybody, fellow inmates included, then Simmons is

inapplicable because whether the defendant is eligible for parole

is irrelevant.” Id. Because the prosecutor specifically argued

here that Boggess would pose a future danger to other inmates,

Simmons is inapplicable. Furthermore, Simmons is also inapplicable

because Boggess’s alternative sentence was not life without parole.

See Kinnamon v. Scott, 40 F.3d 731, 733 (5th Cir. 1994). Finally,

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we note in passing that this claim is also contradicted by the

Supreme Court’s generally positive treatment of parole information

in Brown.2

Although Boggess may not have received a perfect jury

instruction under the contemporary Texas law, the one that he did

get was certainly not unfairly prejudicial, and the sentence that

resulted was appropriate for his depraved and brutal crime.

Accordingly, the judgment of the district court is

A F F I R M E D.

2
To the extent that Boggess is arguing this claim solely on
the basis of the mistake about “good time,” we hold that this minor
error of state law is not sufficient to implicate his rights under
the Eighth or Fourteenth Amendments. As the Supreme Court noted in
Estelle v. McGuire, 502 U.S. 62, 72 (1991), for a jury instruction
erroneous under state law to become a constitutional due process
violation, it must “itself so infect[] the entire trial process
that the resulting conviction itself violates due process.” For
the same reasons noted with regard to prejudice under Strickland,
this was not the case here.

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