Webb v. Collins

UNITED STATES COURT OF APPEALS
for the Fifth Circuit

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No. 92-7655
Summary Calendar
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FREDDIE LEE WEBB,

Appellant,

VERSUS

JAMES A. COLLINS, Director,
Texas Department of Criminal Justice,
Institutional Division,

Appellee.

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Appeal from the United States District Court
for the Southern District of Texas
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(August 31, 1993)

Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:

Freddie Lee Webb, a Texas prisoner under a sentence of death,

appeals from the district court's denial of his petition for a writ

of habeas corpus. The district court granted a certificate of

probable cause and left its previously granted stay of execution in

effect pending appeal. Of the several issues argued to the

district court, Webb only raises one for our review: whether the

jury instructions given pursuant to article 37.071(2) of the Texas

Code of Criminal Procedure violated his rights under the Eighth and

Fourteenth Amendments. For the reasons stated below, we affirm the

district court's decision.

BACKGROUND
 On December 8, 1985, Webb and an accomplice seized Leo Cantu

and his wife, Elizabeth, after she closed the Shrimp Ahoy

Restaurant in Corpus Christi, Texas, where she was the night

manager. Webb and his accomplice returned the Cantus to the

restaurant for purposes of opening the safe and stealing its

contents. Once at the restaurant, Webb instructed his accomplice

to remain with Leo Cantu in the car while he took Elizabeth Cantu

into the restaurant, forced her to open the safe, bound her, and

took the money. Webb and his accomplice then fled in the Cantus'

car with Leo Cantu as a prisoner. Although Elizabeth Cantu freed

herself and alerted the authorities, her husband was murdered in a

remote area of Corpus Christi. Several months later, Webb was

arrested with the murder weapon while fleeing the authorities from

the scene of another armed robbery.

In October 1986, a jury found Webb guilty for the capital

offense of murder of Leo Cantu in the course of committing and

attempting to commit kidnapping. In a separate proceeding, the

jury answered affirmatively the special questions submitted to it

pursuant to article 37.071(2) of the Texas Code of Criminal

Procedure, and Webb was sentenced to death. The Court of Criminal

Appeals affirmed the conviction and sentence. Webb v. State, 760

S.W.2d 263 (Tex. Crim. App. 1988) (en banc), cert. denied, 491 U.S.

910 (1989). The Supreme Court denied Webb's petition for

certiorari on June 19, 1989, rendering his conviction final. Webb

v. Texas, 491 U.S. 910 (1989).

Webb next filed an application for a writ of habeas corpus in

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the state trial court. The trial court entered findings of fact

and conclusions of law, but made no recommendation for disposition

of the case. The Court of Criminal Appeals found that the trial

court's findings and conclusions were supported by the record and

denied the relief.

Webb then filed a second application for a state writ of

habeas corpus, alleging that the jury in his case had been unable

to consider various types of mitigating evidence in determining his

punishment. The Court of Criminal Appeals, noting that none of the

evidence had been introduced at trial, denied relief. Finally,

Webb initiated the present habeas proceedings in federal district

court.

DISCUSSION

Webb argues that his rights under the Eighth and Fourteenth

Amendments were violated by a statutory prohibition against

informing jurors of the effect of the failure to agree on a

punishment phase issue. The Texas sentencing statute provides that

if the jury unanimously answers "yes" to each of the punishment

questions submitted, the defendant will be sentenced to death, but

if ten or more jurors answer one or more of the issues "no," or if

the jury is unable to agree on an answer to any issue, the

defendant will be sentenced to life imprisonment. Texas Crim.

Proc. Code Ann. art. 37.071(2) (West Supp. 1993). The statute,

however, prohibits the court or the attorneys for the state or the

defendant from informing the jury of the effect of the failure to

agree on an issue. Id. Webb argues that without knowledge of the

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effect of the failure to agree on an issue, a juror might be misled

into believing that he or she could not vote "no" without a

consensus of ten jurors and would feel compelled to vote "yes."

Webb's claim is based on the principles announced in Andres v.

United States, 333 U.S. 740 (1948) and Mills v. Maryland, 486 U.S.

367 (1988). Webb asks us, however, to create a "new rule" within

the meaning of Teague v. Lane, 489 U.S. 288 (1989). See Nethery v.

Collins, 993 F.2d 1154, 1162 (5th Cir. 1993). Under Teague, new

rules of constitutional criminal procedure will not be announced on

federal habeas review unless an exception applies. Teague, 489

U.S. at 316. "[A] case announces a new rule when it breaks new

ground or imposes a new obligation on the States or the Federal

Government. . . . To put it differently, a case announces a new

rule if the result was not dictated by precedent existing at the

time the defendant's conviction became final." Id. at 301; Penry

v. Lynaugh, 492 U.S. 302, 314 (1989) (quoting Teague). Although

Mills and Andres were decided prior to Webb's final conviction,

Webb's reliance on the principles announced in those cases is not

the same as saying his claim is dictated by precedent. See Wiley

v. Puckett, 969 F.2d 86, 96 (5th Cir. 1992).

Andres involved two federal statutes: one statute requiring

that a person found guilty of murder in the first degree be put to

death and another statute allowing the jury to qualify their

verdict with the words "without capital punishment," thereby

sentencing the defendant to life imprisonment. Andres, 333 U.S. at

746 & n.7. The Court first concluded that the statutes

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interpreted together required that the jury's decision be unanimous

as to both guilt and whether the punishment of death should be

imposed. Id. at 749. The district court instructed the jury,

however, that its decision to return a qualified verdict of murder

must be unanimous. Id. at 751. The Court held that the jury

instruction did not convey the correct interpretation of the

statutes. The Court explained that a reasonable juror might

conclude that if they all could not agree, the verdict of guilt

must stand unqualified. Id. at 752.

In Mills, the jury instructions under a Maryland statute

required the jury to answer "yes" to questions regarding mitigating

circumstances only if unanimous and otherwise to answer "no."

Mills, 486 U.S. at 378. If all the answers were marked "no," a

death sentence was imposed. Id. at 389. Nothing in the

instructions suggested that the jury could leave an answer blank

and proceed to the next stage of deliberation. Id. at 378. If the

jury did determine that there was at least one mitigating

circumstance, another section of the verdict form allowed the

jurors to consider only the mitigating circumstances marked "yes."

Id. at 380. The Court held that the jurors may have been led to

believe that they were precluded from considering mitigating

evidence without unanimity, even though precedent required that a

sentencer be permitted to consider all mitigating evidence. Id. at

384.

The Supreme Court's decisions in Andres and Mills may inform

the analysis of his claim but they do not dictate the

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constitutional rule urged by Webb. Both Andres and Mills involve

statutory schemes different from the Texas sentencing statute and

different legal standards. Thus, because Webb does not suggest

that his claim comes within an exception, Teague forecloses our

consideration of Webb's claim, and we therefore affirm the district

court's decision and lift the stay of execution granted by the

district court.

AFFIRMED, STAY LIFTED.

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