UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-50312
____________________
LEOPOLDO NARVAIZ, JR.,
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 Western District of Texas
_________________________________________________________________
January 30, 1998
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Leopoldo Narvaiz, Jr., in 1988 convicted in Texas state court
of capital murder and sentenced to death, appeals the denial of
federal habeas relief, claiming two errors in sentencing: (1) the
voluntary intoxication jury instruction, pursuant to TEX. PENAL CODE
§ 8.04(b), is unconstitutional, facially and as applied, because it
prohibits the jury from considering mitigating evidence of
voluntary intoxication unless the intoxication rises to the level
of temporary insanity; and (2) TEX. CODE CRIM. PROC. ART. 37.071(f) is
unconstitutional as applied because it prevents the jury from
weighing the mitigating evidence of provocation by a victim other
than the first person named in the indictment. We AFFIRM and
VACATE the stay of execution.
I.
Narvaiz was convicted by jury in 1988 of the offense of
capital murder for stabbing and bludgeoning to death Ernest Mann,
Jr., age 11, while also murdering Ernest Mann’s three older
sisters, Martha, Shannon, and Jennifer Mann, ages 15, 17, and 19,
respectively, in their home in Bexar County, Texas. The horrific
evidence presented in the state criminal trial is accurately
detailed in the opinion of the Texas Court of Criminal Appeals on
direct appeal. See Narvaiz v. State, 840 S.W.2d 415, 420-23 (Tex.
Crim. App. 1992), cert. denied, 507 U.S. 975 (1993).
Briefly restated, Narvaiz had dated Shannon Mann for several
years until she broke off the relationship in February 1988. The
next month, Narvaiz approached Shannon Mann and her boyfriend,
Ricky Moore, with a knife and a pipe, smashed the windows of
Moore’s truck, and stated to Shannon’s mother that “if he wasn’t
going to be able to have [Shannon], nobody else was going to”. Id.
at 420-21.
In the early morning hours of 15 April 1988, the police
received and recorded a “911” telephone call in which the caller,
later identified as Shannon Mann, stated: “My boyfriend just beat
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us up. He’s killed my little sister”. Id. at 421. When the
police arrived at the Mann residence, they found all four of the
Mann siblings stabbed to death. Ernest Mann, Jr., had been stabbed
63 times. Id. A knife containing Narvaiz’ thumbprint was found in
the yard of the residence and the police soon arrested Narvaiz at
a friend’s house.
Two days after the arrest, Narvaiz signed a written confession
in which he admitted the killings, but asserted that he was under
the control of cocaine at the time and that Jennifer Mann first
stabbed him in the leg, after which he “just went crazy”. Id. at
422-23.
The day following conviction, the jury affirmatively answered
two Texas capital sentencing special issues as to: (1)
deliberateness and expectation of death; and (2) continuing threat
to society. As a result, Narvaiz was sentenced by the trial court
to death by lethal injection.
In 1992, the Texas Court of Criminal Appeals affirmed the
conviction and sentence; and, in 1993, the Supreme Court of the
United States denied certiorari. Id. The trial court scheduled
execution for 23 April 1993.
Narvaiz, with the assistance of the Texas Resource Center,
filed in district court a motion for appointment of counsel, a
motion for stay of execution, and an abbreviated habeas petition.
That court stayed execution and appointed counsel. Narvaiz filed
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his amended federal habeas petition in late 1993. The district
court, in early 1994, granted the State’s motion to dismiss the
petition, without prejudice, for failure to exhaust state remedies.
Narvaiz v. Collins, No. SA-93-CA-0311 (W.D. Tex. Feb. 8, 1994).
The trial court scheduled execution for 6 June 1994.
On 1 June 1994, Narvaiz filed a pro se state habeas
application, incorporating by reference the grounds for relief
raised in federal court. Following appointment of counsel and a
new execution date of 12 October 1994, Narvaiz’ counsel filed an
amended application, but refused to present supporting evidence,
seeking instead the appointment of a private investigator to assist
in developing claimed newly-discovered grounds for relief. On 3
October 1994, the Texas Court of Criminal Appeals denied Narvaiz’
state habeas claim. Ex parte Narvaiz, No. 27,215-01, at 161 et
seq. (Tex. Crim. App. Oct. 3, 1994).
Three days later, the same district court that had been
presented with Narvaiz’ first federal habeas application appointed
the same counsel who had represented Narvaiz in the previous
federal habeas proceeding, granted a stay of execution, and set a
deadline for filing a federal habeas petition. In January 1995
Narvaiz filed a “corrected” petition, listing 22 grounds for
relief. Two months later, the district court denied the State’s
motion to dismiss for failure to exhaust state remedies, stating
among its reasons the need to prevent Narvaiz from manipulating the
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system through intentionally filing non-exhausted claims in
district court, thus postponing in perpetuity a determination on
the merits by the district court and, as a result, execution of
sentence.
In mid-March 1997, the district court, after considering all
22 grounds for relief and reviewing more than 6000 pages of record,
filed an 190-page opinion, denying habeas relief and lifting the
stay of execution. Narvaiz v. Johnson, Civil No. SA-94-CA-839, at
12-13 (W.D. Tex. Mar. 17, 1997). Narvaiz filed a notice of appeal,
which was deemed timely filed. The state court set execution for
15 October 1997.
On 21 August 1997, our court issued an administrative
directive to the district court to determine whether Narvaiz was
entitled to a certificate of probable cause to appeal (CPC). That
court determined that only one of Narvaiz’ claims satisfied that
standard. However, it denied Narvaiz’ motion for stay of
execution, in part because “there is no reasonable likelihood that
the Fifth Circuit will rule favorably to petitioner on [the claim
which was granted CPC]”. We granted a stay of execution, denied
counsel’s motion to withdraw, and set an expedited briefing
schedule.
II.
Narvaiz presents two issues. Both issues attack the
constitutionality of the jury instructions at the sentencing phase:
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the first, contends that the jury charge was unconstitutional due
to an instruction that was included; the second, that an
instruction was excluded.
The first contention is based on the voluntary intoxication
jury instruction given to the jury, pursuant to TEX. PENAL CODE §
8.04(b), which included the following: “Evidence of temporary
insanity caused by intoxication should be considered in mitigation
of the penalty attached to the offense”. Narvaiz contends that
this instruction was unconstitutional because it prohibited the
jury from considering mitigating evidence of voluntary intoxication
that did not rise to the level of such temporary insanity.
The second contention is based on the trial court’s refusing
an instruction on provocation by a victim other than the first
named in the indictment. This contention involves TEX CODE CRIM.
PROC. ART. 37.071, which provides that a provocation instruction
shall be submitted “only with regard to the conduct of the
defendant in murdering the deceased individual first named in the
indictment”. Narvaiz contends that this statute is
unconstitutional as applied because it prevents the jury from
weighing the mitigating effect of the alleged provocation by
Jennifer Mann, noted supra.
The first issue, concerning voluntary intoxication, was the
sole issue found by the district court to satisfy the standards for
CPC. The second issue, concerning provocation, was not mentioned
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as satisfying those standards. But, unlike the certificate of
appealability under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. § 2253(c) (as amended), a grant of
CPC on a single issue allows Narvaiz to raise other issues on
appeal. 28 U.S.C. § 2253 (prior to 1996 amendment); see Sherman v.
Scott, 62 F.3d 136, 138-39 (5th Cir. 1995).
A.
During the sentencing phase, the trial court, pursuant to TEX.
PENAL CODE § 8.04(b), directed the jury to consider evidence of
Narvaiz’ voluntary intoxication as mitigating evidence only if it
determined that the intoxication amounted to temporary insanity.
That section provides: “Evidence of temporary insanity caused by
intoxication may be introduced by the actor in mitigation of the
penalty attached to the offense for which he is being tried”. TEX.
PENAL CODE § 8.04(b).
The sentencing charge contained, in pertinent part, the
following:
You are instructed that under our law
neither intoxication nor temporary insanity of
mind caused by intoxication shall constitute
any defense to the commission of crime.
Evidence of temporary insanity caused by
intoxication should be considered in
mitigation of the penalty attached to the
offense.
By the term “intoxication” as used
herein, is meant disturbance of mental or
physical capacity resulting from the
introduction of any substance into the body.
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By the term “insanity” as used herein, is
meant that as a result of intoxication the
defendant did not know that his conduct was
wrong.
Now if you find from the evidence that
the defendant, Leopoldo Narvaiz, Jr., at the
time of the commission of the offense for
which he is on trial, if you find from the
evidence beyond a reasonable doubt that he did
commit such offense, was laboring under
temporary insanity as defined in this charge,
produced by voluntary intoxication, then you
may take such temporary insanity into
consideration in mitigation of the penalty
which you attach to the offense.
(Emphasis added.)
But, that charge also stated:
You are further instructed that in
determining each of these [two] special issues
[as to deliberateness and continuing threat to
society] you may take into consideration all
of the evidence submitted to you in the full
trial of the case, that is, all of the
evidence submitted to you in the trial of the
first part of this case wherein you were
called upon to determine the guilt or
innocence of the defendant, and all of the
evidence, if any, admitted before you in the
second part of the trial wherein you are
called upon to determine the special issues
hereby submitted to you. Evidence to be
considered shall include but not be limited to
aspects of the defendant’s character and
background and the facts and circumstances of
the offense.
(Emphasis added.)
At trial, Narvaiz did not object to the § 804(b) instruction;
nor did he raise it as an issue in his direct appeal. On the other
hand, he did raise this issue in his state habeas proceeding. In
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that regard, the state court did not apply a procedural bar and the
State does not urge that bar here. Accordingly, because the State
does not raise the issue of a procedural bar, we address the
merits, as did the district court.1 See Trest v. Cain, ___ U.S.
___, 118 S. Ct. 478, 480 (1997) (“A court of appeals is not
‘required’ to raise the issue of procedural default sua sponte.”).
1
Moreover, the State does not contend that the district
court erred in its decision not to dismiss for lack of exhaustion
of state remedies. In denying the motion to dismiss for lack of
exhaustion, the district court held:
[T]he dismissal of this federal habeas
corpus proceeding based on petitioner’s
inclusion of unexhausted claims in this, his
second, federal habeas corpus petition not
only sets a bad precedent but also does
nothing to preclude petitioner from
effectively preventing the State of Texas from
ever carrying out petitioner’s sentence.
Unless and until this or some other federal
court addresses the merits of petitioner’s
claims for federal habeas relief, there is
absolutely nothing to prevent petitioner from
continuing to file requests for stays of
execution and for appointment of counsel and
to then file a federal habeas petition
containing unexhausted claims for relief,
waiting for the court to dismiss same without
prejudice, and then start the process all over
again.
Order and Advisory, at 9-10 (filed Mar. 10, 1995).
Of course, exhaustion is not a jurisdictional requirement, but
rather a matter of comity. Rose v. Lundy, 455 U.S. 509, 515
(1982). Therefore, the State may waive the exhaustion issue by not
asserting it as a defense. McGee v. Estelle, 722 F.2d 1206, 1211-
14 (5th Cir. 1984) (en banc). In the instant case, the State moved
to dismiss for lack of exhaustion in the district court but does
not urge here that the district court erred in denying that motion.
Accordingly, we need not address the decision to deny that motion.
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And, although federal courts generally defer to state court
findings in habeas proceedings, the district court, “out of an
abundance of respect for petitioner’s constitutional rights” and as
a result of cursory analysis in the state court habeas decisions,
declined to defer to those findings and conducted a de novo review
of Narvaiz’ grounds for relief. Narvaiz, Civil No. SA-94-CA-839,
at 56-57 n.128.
“The proper standard for reviewing a challenged jury
instruction in the capital sentencing context is ‘whether there is
a reasonable likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of
constitutionally relevant evidence.’” Drinkard v. Johnson, 97 F.3d
751, 757 (5th Cir. 1996) (quoting Boyde v. California, 494 U.S.
370, 380 (1990)), cert. denied, ___ U.S. ___, 117 S. Ct. 1114
(1997). “This ‘reasonable likelihood’ standard does not require
the petitioner to prove that the jury ‘more likely than not’
interpreted the challenged instruction in an impermissible way;
however, the petitioner must demonstrate more than ‘only a
possibility’ of an impermissible interpretation.” Id. Of course,
the challenged instructions must be analyzed within the context of
the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47
(1973). “In evaluating the instructions, we do not engage in a
technical parsing of this language of the instructions, but instead
approach the instructions in the same way that the jury would —
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with a ‘commonsense understanding of the instructions in the light
of all that has taken place at the trial.’” Johnson v. Texas, 509
U.S. 350, 368 (1993) (quoting Boyde, 494 U.S. at 381).
Narvaiz concedes that his contentions concerning this issue
are directly in conflict with Drinkard, 97 F.3d at 751, and Lauti
v. Johnson, 102 F.3d 166, 169 (5th Cir. 1996), cert. denied, ___
U.S. ___, 117 S. Ct. 2525 (1997). The pertinent facts and
sentencing-phase charge in the instant case are essentially
identical to those in Drinkard and Lauti, in which our court held
that the § 8.04(b) instruction did not deprive the defendant of his
constitutional rights. Both Drinkard and Lauti concluded that the
general instruction, quoted above, to consider “all of the
evidence” admitted at trial negates any inference that the §
8.04(b) instruction precluded consideration of evidence of non-
insane, voluntary intoxication. Drinkard, 97 F.3d at 764; Lauti,
102 F.3d at 169-70.
The State relies on Drinkard and Lauti, contending, inter
alia, that, even if the jury inferred that the § 8.04(b)
instruction prohibited considering non-insane, voluntary
intoxication as a mitigating factor, the general instruction
provided it with an opportunity to consider any relevant mitigating
evidence; and that the § 8.04(b) instruction is logically relevant
only to the first special issue (deliberateness), not the second
(continuing threat to society), see Drinkard, 97 F. 3d at 761.
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Narvaiz seeks shelter, inter alia, under the dissent in Drinkard,
which noted that a permissible general instruction does not cure
specific language in an instruction that is otherwise
unconstitutional. 97 F.3d at 774 (Emilio M. Garza, J. dissenting)
(citing Francis v. Franklin, 471 U.S. 307 (1985)). And, he
analogizes to Eddings v. Oklahoma, 455 U.S. 104 (1982), in which
the Court held that the sentencer in a capital murder case cannot
be precluded, as a matter of law, from considering mitigating
evidence. Narvaiz distinguishes the Court’s holding in Johnson v.
Texas, 509 U.S. 350 (1993), that the defendant’s youth was
implicitly considered by the jury in the answers to the Texas
special instructions, on the basis that, in the instant case, the
jury was expressly instructed not to consider a mitigating factor.
Drinkard and Lauti control. It is more than well-established
that, “[i]n this circuit, one panel may not overrule the decision,
right or wrong, of a prior panel in the absence of en banc
reconsideration or superseding decision of the Supreme Court.”
Batts v. Tow-Motor Forklift Co., 978 F.2d 1386, 1393 n.15 (5th Cir.
1992) (quoting Burlington N. R.R. v. Brotherhood of Maintenance of
Way Employees, 961 F.2d 86, 89 (5th Cir. 1992), cert. denied, 506
U.S. 1071 (1993)) (citations and internal quotations omitted).
Accordingly, this claim is foreclosed by circuit precedent.
B.
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Narvaiz maintains that TEX. CODE CRIM. PROC. ART. 37.071(f) is
unconstitutional as applied, asserting that it prevents the jury
from weighing the mitigating evidence of provocation by a victim
other than the first person named in the indictment. At the time
of Narvaiz’ trial, TEX. CODE CRIM. PROC. ART. 37.071 provided in
relevant part:
(b) On conclusion of the presentation of
the evidence, the court shall submit the
following issues to the jury:
(1) whether the conduct of the defendant
that caused the death of the deceased was
committed deliberately and with the reasonable
expectations that the death of the deceased or
another would result;
(2) whether there is a probability that
the defendant would commit criminal acts of
violence that would constitute a continuing
threat to society; and
(3) if raised by the evidence, whether
the conduct of the defendant in killing the
deceased was unreasonable in response to the
provocation, if any, by the deceased.
* * *
(f) If a defendant is convicted of an
offense under section 19.03(a)(6), Penal Code,
the court shall submit the three issues under
Subsection (b) of this article only with
regard to the conduct of the defendant in
murdering the deceased individual first named
in the indictment.
As noted, and pursuant to this provision, the district court
gave the following instruction at the sentencing phase, invoking
the first two special issues:
SPECIAL ISSUE NO. I
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Was the conduct of the defendant that
caused the death of the deceased committed
deliberately and with the reasonable
expectation that the death of Ernest Mann,
Jr., would result?
SPECIAL ISSUE NO. II
Is there a probability that the defendant
would commit criminal acts of violence that
would constitute a continuing threat to
society?
Narvaiz’ written confession, introduced at trial by the State,
included the following: “[Jennifer Mann] got a knife and stabbed me
in the leg. She tried to stab me again and I tried to stop her
when she stabbed my hand. Then I just lost it.... I just went
crazy.” As arguable support of this statement, the trousers
Narvaiz was wearing at the time of the incident were cut in a
location corresponding to a wound on his leg.
Accordingly, Narvaiz requested that the trial court submit the
third special issue, concerning whether the defendant’s conduct was
in response to provocation by the victim. The court refused,
following the State’s contention that, inter alia, the special
issue was inapplicable because it applied only with respect to the
victim first named in the indictment, Ernest Mann, Jr., and no
evidence had been produced that he had provoked Narvaiz.
The provocation instruction, as provided in TEX. CODE CRIM. PROC.
ART. 37.071, is invoked only “if raised by the evidence”. Narvaiz
does not dispute the State’s contention that there is no evidence
of provocation by Ernest Mann, Jr. Instead, Narvaiz contends that
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the evidence produced at trial, such as his written confession,
provide sufficient evidence of provocation by Jennifer Mann, who is
not first named in the indictment.
Narvaiz did not raise this issue on direct appeal. See
Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992). However,
he did raise it in his state habeas proceedings. As was the case
for the other issue in this appeal, the state court did not apply
a bar, and the State does not urge one here. For the reason stated
supra, we find no procedural bar. Trest, 118 S. Ct. at 480.
Narvaiz contends that the trial court’s failure to provide the
provocation instruction constituted various constitutional
violations. Although these claims are somewhat convoluted, they
can be grouped roughly as the following: (1) violation of the
Separation-of-Powers Clause of the Texas Constitution; (2)
violation of the Eighth and Fourteenth Amendments, because the jury
was not allowed to consider constitutionally relevant mitigating
evidence and the jury’s verdict is incomplete; (3) violation of the
Eighth and Fourteenth Amendments, because Narvaiz did not have the
benefit of the narrowing scheme created by the Texas legislature;
and (4) violation of the Ex Post Facto Clause, because the trial
court failed to comply with a statute in effect at the time he
committed the crime. The State maintains that all but one of these
sub-issues were not presented to the district court. After
reviewing Narvaiz’ “corrected” petition before the district court,
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we conclude, although dubitante, that all of them were adequately
presented.
1.
As for the claim that the refusal to give the third special
issue violated the Texas Constitution, and as stated in the
district court opinion, claims that the trial court improperly
applied state law do not constitute an independent basis for
federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (“We have stated many times that ‘federal habeas corpus
relief does not lie for errors of state law’”) (quoting Lewis v.
Jeffers, 497 U.S. 764, 780 (1990)). Needless to say, a 28 U.S.C.
§ 2254 applicant must claim violation of a federal constitutional
right. Id.; West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996),
cert. denied, ___ U.S. ___, 117 S. Ct. 1847 (1997).
2.
Next, Narvaiz contends that the refusal to submit the
provocation special issue violated his Eighth and Fourteenth
Amendment rights because it denied the jury the opportunity to
consider relevant mitigating evidence that Jennifer Mann, who is
not first named in the indictment, provoked him. Narvaiz relies
upon First v. State, 846 S.W.2d 836 (Tex. Crim. App. 1992), which
held ART. 37.071(f) unconstitutional as applied, because the court
failed to submit an instruction on provocation by a victim other
than the one first named in the indictment. The State points out
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that the holding in First is distinguishable from the immediate
case because First is premised upon, inter alia, an instruction
that contained “an inclusive list of mitigating circumstances”,
which excluded provocation by one of the victims. Id. at 841.
Narvaiz asserts that, per First, the provocation special issue
is “the sole vehicle within the death-sentencing scheme for the
jury’s consideration of mitigating evidence of provocation by the
decedents”, and that he has “an automatic entitlement under the
Eighth Amendment” to have it presented to the jury.
But, as stated in Narvaiz’ brief, the construction of the
third special issue in First “is a matter of state law”. As such,
it does not constitute an independent basis for federal habeas
relief. Estelle, 502 U.S. at 67-68; West v. Johnson, 92 F.3d at
1404.
The State asserts also that Narvaiz’ claim concerning the
failure to submit the provocation issue is foreclosed by circuit
precedent. Vuong v. Scott, 62 F.3d 673, 676 (5th Cir.), cert.
denied, ___ U.S. ___, 116 S. Ct. 557 (1995). In Vuong, our court
denied relief on a claim essentially identical to Narvaiz’ because
it would have constituted a retroactive application of a new rule
of constitutional law in contravention of Teague v. Lane, 489 U.S.
288 (1989). Vuong, 62 F.3d at 676-82. Moreover, our court held
that the first two special issues under ART. 37.071 allowed the
jury to consider evidence of provocation by a victim other than the
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first named in the indictment. Id. at 682. We find persuasive the
State’s contention that Vuong precludes this issue; but, out of an
abundance of caution, we address the merits of Narvaiz’
contentions.
Obviously, the Eighth and Fourteenth Amendments do not require
that a defendant’s mitigating evidence be given effect in the
manner and extent the defendant wishes. White v. Collins, 959 F.2d
1319, 1322 (5th Cir.), cert. denied, 503 U.S. 1001 (1992). All
that is required is that the jury be afforded one adequate vehicle
to consider the mitigating evidence. Id. at 1322-23. The State
may “structure” the way a jury considers such evidence. Rogers v.
Scott, 70 F.3d 340, 343 (5th Cir. 1995) (citation omitted).
Under the two special issues presented at the sentencing
phase, the jury was afforded an opportunity to consider the
mitigating evidence that Jennifer Mann’s alleged attack provoked
Narvaiz. For example, it could have decided that an attack, if
any, by Jennifer Mann had caused a violent response by Narvaiz that
was not deliberate, thus affecting the finding under the first
special sentencing issue. Similarly, the jury, when considering
the second special sentencing issue, could have found that Narvaiz’
murders of the four Mann children resulted because he was attacked
and stabbed by Jennifer Mann and not because he has a propensity
for violence that poses a continuing threat to society.
Accordingly, we agree with the district court that there was no
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Eighth Amendment violation because the two special issues provided
an adequate vehicle for the jury to consider the mitigating effects
of Narvaiz’ evidence of the claimed provocation by Jennifer Mann.
Narvaiz contends also that these constitutional rights have
been violated because “the jury’s sentencing verdict to date
remains incomplete” and, therefore, we must reverse his sentence as
well as his capital murder conviction. Although Narvaiz appears to
state this as a separate argument, the analysis is essentially
indistinguishable from that in the above unsuccessful contention.
3.
In a similar vein, Narvaiz contends that his Eighth and
Fourteenth Amendment rights were violated by the refusal to give
the provocation special issue because the jury was precluded from
determining whether Narvaiz belonged in the class of capital
murderers who were ineligible for the death penalty under the
statutory “narrowing” scheme created by the Texas legislature. He
asserts that the trial court violated his “constitutionally-
protected ‘liberty interest’ in the submission of the third
statutory special issue” in violation of the Due Process Clause.
Narvaiz bases this contention on Hicks v. Oklahoma, 447 U.S.
343, 346-47 (1980), which found a due process violation when a
state appellate court re-imposed the defendant’s original 40-year
sentence, even though the sentence was premised upon a state
statute that later had been declared unconstitutional and, without
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which, the sentence would have been ten years. Aside from the
obvious factual differences between Hicks and the instant case, see
Narvaiz v. State, Civil No. SA-94-CA-839, at 109 (W.D. Tex. Mar.
17, 1997), Narvaiz’ claim does not satisfy the Hicks standard. A
defendant claiming a due process violation under Hicks must
establish: (1) the sentencing authority either (a) did not make the
sentencing decision or (b) lacked knowledge of the available range
of sentencing discretion under state law, and (2) a “substantial
possibility” of resulting prejudice to the defendant. Dupuy v.
Butler, 837 F.2d 699, 703 (5th Cir. 1988).
The jury was instructed on the range of sentencing under state
law and Narvaiz’ sentence was properly based on its answers to the
two special issues. Narvaiz has failed to demonstrate a violation
under Hicks.
4.
Finally, Narvaiz contends that the refusal to submit the
provocation special issue violated the Ex Post Facto Clause of the
United States Constitution because it deprived him of a viable
defense available at the time of the crime.
A violation of that clause occurs when a statute retroactively
affects a criminal defendant by: (1) criminalizing conduct that
was not criminal at the time of the conduct; (2) increasing the
punishment for a crime already committed; or (3) depriving a
defendant of a viable defense available at the time that the crime
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was committed. Wilson v. Lensing, 943 F.2d 9, 10-11 (5th Cir.
1991). The well-settled state law prior to the commission of
Narvaiz’ crime was that the provocation special issue should be
presented only if there is evidence of provocation by the victim
first named in the indictment. Marquez v. Collins, 11 F.3d 1241,
1248 (5th Cir. 1994). As stated supra, the two special issues
permitted the jury to consider provocation, if any, by Jennifer
Mann. The Ex Post Facto Clause was not violated.
III.
For the foregoing reasons, we AFFIRM the denial of habeas
relief and VACATE our order staying execution.
AFFIRMED; STAY VACATED
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