IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 88-6108
ROBERT WALLACE WEST, JR.,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Respondent-Appellee.
Appeal from the United States District Court for the
Southern District of Texas
August 19, 1996
Before POLITZ, Chief Judge, GARWOOD and JONES, Circuit Judges.
GARWOOD, Circuit Judge:
Robert Wallace West, Jr. (West) appeals the district court’s
denial of his petition under 28 U.S.C. § 2254 challenging his
February 1983 Texas conviction and death sentence for the August
1982 intentional murder of Deanna Klaus while in the course of
committing or attempting to commit burglary of her motel room,
contrary to Texas Penal Code § 19.03(a)(2). We previously granted
a certificate of probable cause. We now affirm.
Procedural Background
West’s conviction and sentence were affirmed on direct appeal
by the Texas Court of Criminal Appeals, West v. State, 720 S.W.2d
511 (Tex. Crim. App. 1986) (en banc), and the United States Supreme
Court denied certiorari. West v. Texas, 107 S.Ct. 2470 (1987).
West, represented by new counsel, filed state habeas proceedings.
The state trial court, the same judge who had presided at West’s
1983 trial, on August 25, 1987, entered findings and conclusions,
based on the record and affidavits of West’s trial and direct
appeal counsel, and recommended that the Court of Criminal Appeals
deny all relief. The latter court on August 31, 1987, denied
relief in a written order not stating reasons. West, through the
same counsel who represented him in the state habeas proceedings,
instituted the instant section 2254 proceedings in the district
court below. Several months after West’s counsel filed his amended
petition,1 the state filed its answer and motion for summary
judgment. West never replied to the motion and some ten weeks
after it was filed the magistrate judge issued a memorandum opinion
recommending that the state’s motion be granted. After being
granted several extensions, West filed an unverified “response to
magistrate’s memorandum and recommendation.”2 On review of the
1
The amended habeas petition states that it amends the
original petition “by deleting the same in its entirety and
substituting in lieu thereof the following.” The amended petition
asserts that the original petition had been “mistakenly filed.”
The amended petition is not verified (and is signed only by
counsel); it is supported by an affidavit of clinical psychologist
Brown concerning his July 1987 examination of West (and of certain
records pertaining to him), but by no other affidavit or similar
document.
2
This response was supported only by a copy of West’s
unverified motion for evidentiary hearing and for funds for expert
assistance filed in the state habeas proceedings and by a
transcript of certain of West’s counsel’s oral arguments or
statements to the state habeas court on August 25, 1987.
2
record, the magistrate judge’s memorandum, and West’s response, the
district court entered an order accepting the magistrate judge’s
memorandum and recommendation, granting the state’s motion for
summary judgment, and dismissing the petition. West filed a timely
notice of appeal.
Factual Background
The state’s evidence showed that the victim, Deanna Klaus,
lived alone in room 312 at the Memorial Park Motel in Houston,
Texas, and worked as a waitress at the motel’s restaurant.
Shortly after midnight on August 24, 1982, Vickie Stolz and
two other residents of the motel were sitting in the motel’s
breezeway and heard a commotion emanating from motel room 312. A
fourth companion shortly joined these three. A few minutes later,
West was observed exiting room 312; he walked within four to six
feet of Stolz and her companions, then turned and walked up a
flight of the motel’s stairs; the blue jeans he was wearing
appeared to be soaked with blood.3 Stolz and her companions then
looked into room 312, which was in total disarray, and observed the
nude body of Deanna Klaus, bloody and bound, lying face down on the
bed.
Police officers arrived on the scene shortly thereafter, and
one of the witnesses directed them to room 447 in the motel on the
floor above room 312. Room 447 was occupied by West and a male
transvestite companion, Gonzalo Tagle. The police asked both to
3
West was the only person seen to leave room 312; no one was
seen to enter.
3
step outside, and West was arrested when he did so. Tagle advised
that the room was his and gave permission to search. The police
observed a pair of wet, bloodstained blue jeans lying over a chair
in the room. Stolz and her companions identified West as the
individual they had observed leaving room 312.
Police officers promptly examined room 312. Detective Lott
testified that based on his examination of the door to room 312, in
his opinion it had been forced open. Officer Richardson testified
that the door “was separated from the seams as if broken into.”
There was other similar testimony. There was police officer
testimony that room 312 “was ransacked,” there was “stuff scattered
around the floor” and “drawers have been pulled out, dumped on the
floor.” Other testimony concerning the room was that there were
“items on the floor” and it appeared “like somebody went through
everything.”
The pathologist testified that Klaus’ wrists and ankles were
bound by cloth so tightly as to leave visible pressure grooves on
her; her mouth and nose were gagged with a towel tied by a cloth
binding that likewise left pressure grooves. Her head was covered
by a bloody sheet tied by a leather belt wrapped twice around her
neck. There was a stab wound in her neck and two on her left arm.
A six-inch piece of wood protruded two inches from her back, being
stuck four inches into her body. There was evidence of
strangulation by hand, reflected by her broken hyoid bone. Death
resulted from asphyxiation, caused by the belt and cloth ligatures
around the neck and mouth as well as by manual strangulation, in
4
combination with the wound from the stick penetrating four inches
into her chest cavity.
West, following repeated warnings as called for by Miranda v.
Arizona, 86 S.Ct. 1602 (1966), gave a full written confession to
the police in which he admitted killing Klaus. He said he forced
his way into her room, pushing the door open with his shoulder. He
disrobed Klaus, tied her up, and gagged her and put a belt around
her neck. He thereafter beat her in the face with a “club” he
found in the room; it broke, and he stabbed her with it. He hit
her with a bottle, which broke, and then “gigged her in the neck
with it.” Then, “[w]hen I got up she was still making noises, she
was still alive. I knew that since I went that far that I couldn’t
leave her like that. I grabbed the sheet and wrapped it around her
neck and I strangled her. I pulled it until she didn’t move
anymore.” West further stated that he took a gold necklace that he
saw in her room, and when he returned to room 447 put the necklace
in Tagle’s purse. West said that when he left room 312 “the door
was hard to open because of when I had broke in” and “[t]here were
two dudes and a girl outside when I came out and went to my room”
and “I had blood all over me.”
At the punishment stage of the trial, previously redacted
portions of West’s confession were admitted in evidence. This
portion of the confession reflected that West and Tagle——a “drag
queen” female impersonator who used the first name Roxanne——had
begun living together in Houston in April 1982. Roxanne had a job,
and Roxanne and West “also made money by hustling tricks in the
5
Montrose area of town.” One evening in May they went to the
Montrose area “to make money any way we could.” Roxanne attracted
a “trick”——whom West stated later turned out to be one William
Longfellow whom West understood worked as a security guard——and West
asked Roxanne “if she wanted me to roll him and she said yes.”
West and Roxanne devised a plan whereby Longfellow would give West,
as well as Roxanne, a ride home in Longfellow’s car and “I would do
the rolling.” In the Montrose area, in front of the Chicken Coop
Bar there, Longfellow, at the requests of Roxanne and West, agreed
to give West a ride to his apartment, and all three got in the
front seat of Longfellow’s red Mercury Zephyr and drove to the
general vicinity of the apartments on Sage Street where Roxanne and
West lived. Then Longfellow, at Roxanne’s request, stopped and let
Roxanne out to urinate, and Longfellow followed her. West followed
both of them. As they walked back to the car, West was behind
Longfellow. West’s confession goes on to state:
“. . . I pulled out my knife and grabbed him by his hair
and lifted him up off the ground and I stabbed him in the
jugler vain [sic]. I stabbed him about six or seven
times. As I was stabbing him I asked him where his money
was. He told me that his money was in the trunk of his
car. After he told me where his money was at I hit his
head up against a tree and left him for dead. He wasn’t
moving and he wasn’t saying anything and there was a lot
of blood and I had blood all over my hands. I thought he
was dead.
As soon as I grabbed the guy and started stabbing him,
Roxanne ran from there and ran to the apartments. The
apartments are about two blocks away. After I stabbed
him I got into his car and drove back to the apartments
on Sage. I parked the car behind the WINDSOR PLAZA
SHOPPING CENTER. I opened the trunk of the car and I
found the guys money in a brown paper bag. I got the
money and went to the apartment. . . .
6
I thought I had killed the guy so the next morning we
checked the newspapers to see if there was a story about
him being found. We never seen nothing about the man
being found. After a few weeks we just forgot about it.
A couple of weeks later ROXANNE called me from the jail
and she told me that she had been busted for
prostitution. I went to the police station and found out
that there was a hold on her for the stabbing. That’s
when I found out that the man wasn’t dead. . . .
Roxanne was in jail for about two weeks and she tried to
call me several times but I was never there. . . . When
Roxanne got out she told me that she had given Brett’s
name as her lover and the police let her go. . . .
A couple of weeks after Roxanne got out of jail we drove
to McALLEN, TEXAS to her fathers ranch. . . .”
This portion of the confession also reflects that West and Tagle
had returned to Houston and checked into the Memorial Park Motel on
August 21.4
4
There were still other redacted parts of West’s confession
that were never put before the jury or offered in evidence, by
either side at either the guilt-innocence stage or the punishment
stage. These portions reflect that while Roxanne was in jail, West
and “a friend,” Brett Barstow, and Barstow’s homosexual lover
“Stephanie,” stayed at Roxanne’s apartment. Roxanne told West
“she” had called from the jail and, West being out, spoke to Brett,
telling Brett the police were looking for “her” “lover” in
connection with the Longfellow stabbing; Roxanne told West that, at
Brett’s suggestion, Roxanne had given the police Brett’s name as
“her” “lover.” While Roxanne and West were in McAllen, a mutual
friend called and advised that Brett had been killed “over drugs”;
West did not believe the “over drugs” explanation as he had known
Brett since he met him hitchhiking in Kentucky in 1979, and Brett
“could get money any time he wanted.” When he returned to Houston,
West was told by a Montrose area drug dealer that a “drag queen”
had told the drug dealer that several weeks previously (which would
be about a week before Brett’s death) “Longfellow was wanting to
put out some money to find out who Roxanne’s lover was.” West also
saw the victim, Deanna Klaus, whom he eventually recognized as
someone he had known in Florida, talking to Longfellow; later,
another “drag queen”told West that Brett “had been seen all over
with” Klaus. West saw Deanna at the motel restaurant the morning
of the killing, and stated that he went to her room that night to
question her about Brett’s death. After tying her up——and having
voluntary sex with her [although Klaus’ body was found nude, the
autopsy revealed no evidence of sexual intercourse]——Klaus
7
William Longfellow, a private security officer, testified at
the punishment phase. His testimony related the May 15, 1982,
brutal attack on him by West described in West’s confession,
including taking Roxanne (Tagle) and West in his red Mercury Zephyr
from the Chicken Coop Bar to an area near Sage Street, all three in
the front seat, where they stopped so Roxanne could urinate, and
West coming up behind Longfellow and knocking him down, slashing
his throat with a knife several times. Longfellow told West his
money was in a paper sack in the trunk of his car. West hit
Longfellow’s head several times against a tree stump, wound a roll
of white cloth or gauze around his head and mouth several times,
and held his head under water in a ditch. He took Longfellow’s car
keys and driver’s license and other identification papers. After
West and Tagle left, Longfellow managed to get help. He was taken
to a hospital, underwent five and a half hours of surgery, and
remained hospitalized for eight days.5
eventually admitted to West that she had identified Brett to
Longfellow. West stated “I blew up when she said that.”
This redacted portion of West’s confession also states that
Roxanne “knew that I was going down to Deanna’s room to kill her.
I had told her that I was.”
As outlined in the text, infra, Longfellow testified at the
punishment phase. There is no suggestion anywhere in the record
that he knew Deanna Klaus, or Brett Barstow, or had made any
attempt to find out who Roxanne’s “lover” was.
5
Longfellow identified Tagle in court as Roxanne, but was not
asked to make any identification of West before the jury.
Longfellow had bad eyesight. He described his attacker as the male
to whom he gave a ride in his car with Roxanne at Roxanne’s
request, and as being white, “approximately” five foot ten inches
tall, and having long brown hair, a description fitting West (who
is white and five foot nine inches tall). On voir dire by defense
counsel, Longfellow had said that he “believed” he saw his
assailant in the courtroom, but “I’m not a hundred percent
8
The state also introduced documentary evidence of West’s 1981
Florida conviction for felony grand theft.
West introduced no evidence at the guilt-innocence or
punishment stages of the trial. The main thrust of the defense, at
trial and on direct appeal, was to attack the admissibility of
West’s confession, as being the result of a warrantless arrest that
was illegal under article 14.04 of the Texas Code of Criminal
Procedure,6 and as having been taken in violation of his Miranda
rights and his rights under the Fifth and Fourteenth Amendments and
analogous provisions of Texas law. The state trial court held a
Jackson v. Denno, 84 S.Ct. 1774 (1964), hearing out of the jury’s
presence on the admissibility of the confession and found it
admissible, and also instructed the jury not to consider the
confession if it were not found to have been given freely and
voluntarily after proper warnings.7
certain.” Of course, West’s confession——the many details of which
so closely matched Longfellow’s testimony (e.g., Roxanne, Chicken
Coop Bar, red Mercury Zephyr, all three in front seat,
etc.)——renders it clear beyond doubt that West was Longfellow’s
assailant, a matter that at no stage of these proceedings has ever
been questioned.
6
Article 14.04 provides “Where it is shown by satisfactory
proof to a peace officer, upon the representation of a credible
person, that a felony has been committed, and that the offender is
about to escape, so that there is no time to procure a warrant,
such peace officer may, without warrant, pursue and arrest the
accused.” On West’s direct appeal, two of the Texas Court of
Criminal Appeals judges dissented from affirmance, agreeing with
West’s argument based on article 14.04. West, 720 S.W.2d at 520-
523. West also contended on direct appeal his arrest was without
probable cause.
7
The defense further contended, at trial and on direct appeal,
that the Florida conviction was inadmissible because the “pen pack”
by which it was proved did not affirmatively show West (convicted
9
Discussion
We turn now to the issues raised by West on this appeal.
I. Sufficiency of the Evidence and Related Ineffective Assistance
of Counsel
West contends that the evidence is insufficient to support his
capital murder conviction. His argument is that his confession as
to the theft of the necklace was not corroborated, so accordingly
there was no proof of the underlying felony of burglary that made
the murder in question capital murder under Texas Penal Code §
19.03(a)(2).8 We reject this contention.
on his “nolo contendere” plea) had waived or been informed of his
right to a jury trial, and that certain jurors had been excluded
contrary to Witherspoon v. Illinois, 88 S.Ct. 1770 (1968). It was
further claimed at trial and on direct appeal that the evidence,
particularly if the confession were excluded, did not support the
jury’s affirmative answer to the second punishment special issue
concerning future dangerousness.
8
Section 19.03(a)(2), defining “capital murder,” as then in
effect provided:
“(a) A person commits an offense if he commits murder as
defined under Section 19.02(a)(1) of this code and:
(1) . . . ;
(2) the person intentionally commits the
murder in the course of committing or
attempting to commit kidnaping, burglary,
robbery, aggravated rape, or arson;
(3) . . . .”
Texas Penal Code § 19.02(a)(1), defining “murder,” as then in
effect provided:
“(a) A person commits an offense if he:
(1) intentionally or knowingly causes the
death of an individual;
(2) . . . .”
10
Habeas relief under section 2254 on a claim of insufficient
evidence is appropriate only “if it is found that upon the record
evidence adduced at the trial no rational trier of fact could have
found proof of guilt beyond a reasonable doubt.” Jackson v.
Virginia, 99 S.Ct. 2781, 2791-92 (1979). Even if we were to accept
West’s premise that proof of theft was necessary to establish that
the murder was committed “in the course of committing or attempting
to commit . . . burglary,”9 it is evident to us that, based on all
the circumstances taken together with West’s confession, a rational
trier of fact could have found theft proved beyond reasonable
doubt. West’s confession was amply corroborated, and there was no
evidence the theft did not occur.
West relies on the “Corpus Delicti” rule. However, he cites
no authority for the proposition that application of that rule is
Texas Penal Code § 30.02(a) as then in effect defined burglary
as follows:
Ҥ 30.02. Burglary
(a) A person commits an offense if, without the
effective consent of the owner, he:
(1) enters a habitation, or a building (or any
portion of a building) not then open to the
public, with intent to commit a felony or
theft; or
(2) remains concealed, with intent to commit a
felony or theft, in a building or habitation;
or
(3) enters a building or habitation and
commits or attempts to commit a felony or
theft.”
9
And, we do not accept that premise, for the reasons stated in
the text infra.
11
constitutionally mandated in a Jackson v. Virginia analysis,
particularly as to an underlying felony in a felony murder or
capital murder context.10 In any event, this Court, relying on,
among other decisions, Smith v. United States, 75 S.Ct. 194 (1954),
and Opper v. United States, 75 S.Ct. 158 (1954), long ago held that
“corroborative evidence need not be sufficient, independent of a
confession or admission of an accused, to establish all elements of
a crime allegedly committed. Indeed, the Government fulfills its
duty when it introduces substantial independent evidence which
tends to establish the trustworthiness of an accused’s admissions.”
United States v. Seckler, 431 F.2d 642, 643 (5th Cir. 1970). See
also id. at 644 n.2; United States v. Abigando, 439 F.2d 827, 833
(5th Cir. 1971) (“a confession can be corroborated by bolstering
parts of it to show trustworthiness. Some elements can be proved
by the confession alone”; footnote omitted); United States v.
Gresham, 585 F.2d 103, 107 (5th Cir. 1978) (same). Here it is
plain that West’s confession was adequately corroborated——by
evidence aliunde the confession——by bolstering parts of it to show
its trustworthiness, and that the theft “element” of burglary could
be adequately proved by the confession itself. West contends, at
10
For example, several state courts of last resort have held
that in a felony murder prosecution, the corpus delicti rule does
not require that there be corroboration (apart from the confession)
of the portions of the confession establishing the predicate
felony. See, e.g., Gentry v. State, 416 So.2d 650, 652-53 (Miss.
1982); People v. Daley, 47 N.Y.2d 916, 393 N.E.2d 479 (N.Y. 1979);
People v. Davis, 46 N.Y.2d 780, 386 N.E.2d 823 (N.Y. 1978);
Harrison v. State, 269 Ind. 677, 382 N.E.2d 920, 924-925 (Ind.
1978); People v. Cantrell, 8 Cal.3d 672, 504 P.2d 1256, 1261-1262
(Cal. 1973).
12
least implicitly, that the corroboration rule in Texas is
otherwise. However, as we held in Schrader v. Whitley, 904 F.2d
282, 284 (5th Cir.), cert. denied, 111 S.Ct. 265 (1990), “in
challenges to state convictions under 28 U.S.C. § 2254, only
Jackson [v. Virginia] need be satisfied, even if state law would
impose a more demanding standard of proof.” Accord Pemberton v.
Collins, 991 F.2d 1218, 1227 (5th Cir. 1993); Jones v. Butler, 864
F.2d 348, 361 (5th Cir. 1988), cert. denied, 109 S.Ct. 2090 (1989);
Llewellyn v. Stynchombe, 609 F.2d 194, 196 (5th Cir. 1980). See
also White v. Estelle, 669 F.2d 973, 978-79 (5th Cir. 1982).
West also claims ineffective assistance of counsel on the
basis, inter alia, of counsel’s failure to raise the issue of
alleged evidential insufficiency on direct appeal. For this
purpose, the applicable state law standard is relevant. See Summit
v. Blackburn, 795 F.2d 1237, 1244-45 (5th Cir. 1986).
We accordingly turn to Texas law. The most relevant authority
at the time of West’s trial and appeal was reviewed in Wooldridge
v. State, 653 S.W.2d 811 (Tex. Crim. App. 1983), where the Court of
Criminal Appeals affirmed a conviction for capital murder committed
in the course of aggravated rape. Apart from the appellant’s
confession, there was no evidence that the victim had been sexually
molested, although there was ample corroboration of other parts of
the confession. In rejecting appellant’s corpus delicti argument,
the Court of Criminal Appeals wrote:
“It is well settled that if there is some evidence
corroborative of a confession, the confession may be used
to establish the ‘corpus delecti [sic].’ White v. State,
591 S.W.2d 851 (Tex. Cr. App. 1979); Thomas v. State, 108
13
Tex. Cr. R. 131, 299 S.W. 408 (Tex. Cr. App. 1927). In
White, supra, the appellant admitted he participated in
murders which occurred during the course of robbery. No
independent evidence established a robbery had been
committed. The Court held the confession was
sufficiently corroborated by circumstances which
coincided with details of the confession.
In Thomas, supra, it was stated:
‘A confession is sufficient, if there be such
extrinsic corroborative circumstances as will,
taken in connection with the confession,
produce conviction of the defendant’s guilt in
the minds of the jury beyond a reasonable
doubt. Such suppletory evidence need not be
conclusive in its character. When a
confession is made, and the circumstances
therein related correspond in some points with
those proven to have existed, this may be
evidence sufficient to satisfy a jury in
rendering a verdict asserting the guilt of the
accused. Full proof of the body of the crime,
the corpus delecti [sic], independently of the
confession is not required by any of the
cases. . . . [citations omitted].’
299 S.W. at 410.
Viewed in a light most favorable to the verdict, the
evidence is ample to support it.” Id. at 816-817
(emphasis added).
Under Wooldridge and White v. State, 591 S.W.2d 851 (Tex. Crim.
App. 1979), it is clear that the evidence of theft here is
sufficient.11 Accordingly, the failure to argue the sufficiency
of the evidence in this respect was not prejudicial and did not
amount to constitutionally defective performance by counsel.
Several years after West’s conviction was affirmed, the Court
of Criminal Appeals handed down Gribble v. State, 808 S.W.2d 65
11
Cf. Anderson v. State, 717 S.W.2d 622, 631 (Tex. Crim. App.
1986) (“the testimony of an accomplice witness in a capital murder
need not be corroborated on the element which elevated the murder
to capital murder”).
14
(Tex. Crim. App. 1990), cert. denied, 111 S.Ct. 2856 (1991). The
Court held the appellant was properly convicted for capital murder
under § 19.03(a)(2) by murdering the victim in the course of
kidnaping her, and rejected his twelfth point of error contending
that the evidence was insufficient because, apart from his
confession, there was insufficient evidence the victim had been
kidnaped. Id. at 69-74 (the Court held, however, that a Penry v.
Lynaugh, 109 S.Ct. 2934 (1989) error at the punishment stage
mandated reversal of the conviction and sentence, id. at 75-76).
There was no majority opinion. The opinion announcing the result in
Gribble was written by Judge Teague and concurred in by two other
judges.12 Although Judge Teague’s Gribble opinion states that
“evidence independent of appellant’s confession was required to
show that his victim had been kidnaped”, id. at 71 (emphasis
omitted), it goes on to say that “[s]o long as there is some
evidence which renders the corpus delicti more probable than it
would be without the evidence, we believe that the essential
purposes of the rule have been served”, id. at 72 [citing Woolridge
and White], and “the evidence required for corroboration of an
extrajudicial confession need only render the corpus delicti more
probable than it would be without the evidence”, id. at 73
(emphasis omitted). For this limited purpose, “circumstances . .
. ambiguous in some respects and far from adequate to support the
12
Three judges dissented without opinion; one judge concurred
in the result without opinion; the remaining two judges stated,
without elaboration, that “in the treatment of appellant’s point of
error # 12, they concur in the result only”. Id. at 76.
15
conclusions they imply” provided the requisite corroboration. Id.
These aspects of Jude Teague’s Gribble opinion were confirmed in
Emery v. State, 881 S.W.2d 702 (Tex. Crim. App. 1994), where the
court sustained a conviction for capital murder committed in the
course of a burglary, rejecting the contention that there was
insufficient evidence aliunde the appellant’s confession to show
there had been a burglary. In Emery there was “no sign of a forced
entry or of anything missing from the apartment” the victim shared
with a roommate and where her body, with its multiple stab wounds,
was found. Id. at 704. In support of its affirmance, Emery noted
that evidence aliunde the confession “need not be sufficient by
itself to prove the [predicate] offense; it need only be ‘some
evidence which renders the corpus delicti more probable than it
would be without the evidence.’” Id. at 705 (quoting Gribble).
Under this Gribble-Emery test there is sufficient
corroboration here: the evidence of forced entry in the middle of
the night into a single woman’s room which was then ransacked, with
drawers pulled out and dumped on the floor, appearing as if
somebody went through everything, certainly makes theft more
probable than it would be without such evidence.13
Since the Gribble-Emery test was met in respect to theft,
13
We note that Texas courts have long been willing to infer
burglary from circumstantial evidence of forced night time entry
into another’s habitation. See Alvarado v. State, 596 S.W.2d 904,
906 (Tex. Crim. App. 1980)(evidence showing only that defendant
forcibly entered another’s habitation at night supports burglary
conviction). See also, e.g., Ellis v. State, 726 S.W.2d 39, 40-41
(Tex. Crim. App. 1986); Mauldin v. State, 628 S.W.2d 793, 795 (Tex.
Crim. App. 1982); Garcia v. State, 502 S.W.2d 718 (Tex. Crim. App.
1973).
16
counsel’s failure to argue insufficiency of the evidence on appeal
was neither defective performance nor prejudicial. But, even were
the evidence insufficient in this respect under Gribble-Emery, we
could not find that failure to raise that issue constituted
defective performance, given that the evidence was clearly
sufficient under the then current Texas case law exemplified by
White v. Scott and Woolridge. Counsel was not bound to foresee
Gribble, much less Emery. Counsel is not obligated to urge on
appeal every nonfrivolous issue that might be raised (not even
those requested by defendant). Jones v. Barnes, 103 S.Ct. 3308,
3313-14 (1983); Smith v. Murray, 106 S.Ct. 2661, 2667 (1986); Mayo
v. Lynaugh, 882 F.2d 134, 139 (5th Cir. 1989), modified on other
gr’ds, 893 F.2d 683 (5th Cir. 1990); Wicker v. McCotter, 783 F.2d
487, 497 (5th Cir.), cert. denied, 106 S.Ct. 3310 (1986). Nor is
counsel obligated to anticipate changes in state appellate court
rulings. Smith v. Murray, 106 S.Ct. at 2667. Review of the record
and of counsel’s Court of Criminal Appeals brief demonstrate a
sound grasp of the case and reflect wholly competent and adequate
representation.14
14
We again observe that the Court of Criminal Appeals’
affirmance was over three dissents, one without opinion and two on
the basis of counsel’s arguments concerning article 14.04.
Appellate counsel’s affidavit, which in these respects has never
been controverted, explains that in preparing the brief he reviewed
and outlined the entire record and he specifically reviewed the
evidence with respect to whether or not West’s confession was
sufficiently corroborated by other evidence and concluded that it
was both as to his commission of the murder and of the underlying
offense of burglary, mentioning the evidence in detail, including
“the evidence showed that the entry occurred at night (Texas law
permits an inference of intent to commit theft in a nonconsensual
night time entry into a habitation), the apartment was described as
17
Our discussion of the sufficiency of the evidence——and of the
related ineffective assistance of appellate counsel claim——has thus
far proceeded on the arguendo assumption that proof of theft was
necessary for proof of burglary and hence for capital murder.
Actually, that is not so. Under section 30.02 of the Texas Penal
Code burglary includes nonconsensual entry of a habitation either
“with intent to commit a felony or theft,” or if the accused after
such entry “commits or attempts to commit a felony or theft”
(emphasis added). See note 8, supra. Here, not only theft, but
attempted theft and also entry with intent to commit theft, would
have been burglary. Moreover, burglary would be made out by murder
after the nonconsensual entry, as indisputably occurred here. The
indictment here charged that West did “while in the course of
committing and attempting to commit burglary of a habitation owned
by DEANN KLAUS, intentionally cause the death of DEANN KLAUS” by
being in disarray, and drawers had been pulled out and dumped on
the floor,” “it appeared . . . that some one had ‘went through
everything,’” and testimony as to the condition of the door
indicated forced entry. Having so concluded, he decided not to
raise any issue in that respect, as he felt it would not be
successful and “would detract from the potential merit of some of
the other issues I chose to raise on appeal”; some of which, “in
particular the issues attacking the admissibility of the
confession” he felt “had significant merit and might well result in
reversal” and accordingly he deemed “that it was advisable not to
clutter the brief” with nonmeritorious arguments “which might
obscure the issues in the brief which actually had merit.” There
is no reason not to credit this uncontroverted explanation.
We further note that counsel had been in practice more than
ten years, had been an assistant district attorney for nine years,
three of which as Chief of the Appellate Division of the Harris
County District Attorney’s Office, and had personally prepared or
supervised preparation of the appellate brief “in dozens of capital
murder trials.” He was assisted on appeal by lead trial counsel.
18
hitting, stabbing and strangling her.15 The jury instructions here
likewise allowed a finding of burglary on any of the theories
authorized by section 30.02, including the commission of murder
after unlawful entry into the room.16 The Texas Court of Criminal
15
West argues that the indictment is void under Texas law
because it does not allege the particular elements of burglary, but
simply alleges “burglary of a habitation.” He also seems to urge
that the indictment provides insufficient notice under the Sixth
Amendment.
We decline to reverse on either of these claims because
neither was ever in any way raised in the district court below.
Moreover, even if we addressed these claims we would find them
without merit. Texas law is settled that an indictment under §
19.03(a)(2), see note 8 supra, need not allege the particular
elements of the underlying felony, but that it suffices to name the
felony, i.e. “robbery,” “burglary,” “arson,” etc. See Beathard v.
State, 767 S.W.2d 423, 431 (indictment not insufficient “because it
failed to allege the elements of the burglary which was used to
bring this murder under § 19.03 . . . this Court has repeatedly
held that an indictment need not allege the constituent elements of
the aggravating feature which elevates a murder to capital
murder”); Ramirez v. State, 815 S.W.2d 636, 640, 642 (Tex. Crim.
App. 1991)(murder in the course of burglary); Trevino v. State, 815
S.W.2d 592, 619 (Tex. Crim. App. 1991)(murder in the course of
rape, robbery, and burglary), rev’d on other grds, Trevino v.
Texas, 112 S.Ct. 1547 (1992). Moreover we think the indictment
gives ample notice.
16
The charge included the following:
“ 1.
A person commits the offense of capital murder if he
intentionally causes the death of an individual in the course
of committing or attempting to commit burglary.
2.
So that you may better understand the nature of the
offense with which the defendant is charged, I now define
certain terms and words.
. . .
‘Habitation’ means a structure . . . that is adapted for
the overnight accommodation of persons, and includes: each
separately secured or occupied portion of the structure . . .
‘Building’ means, . . .
A person commits ‘burglary’ if, without the effective
consent of the owner, he: enters a habitation, or a building
19
(or any portion of a building) not then open to the public,
with intent to commit a felony or theft; or remains concealed,
with intent to commit a felony or theft, in a building or
habitation; or enters a building or habitation and commits or
attempts to commit a felony or theft.
‘Enter’ means . . .
‘Effective Consent’ includes consent by a person legally
authorized to act for the owner. Consent is not effective if:
induced by force, threat, or fraud; . . .
‘Felony’ means an offense so designated by law or
punishable by death or confinement in a penitentiary.
‘Attempt’ means to commit an act with specific intent to
commit an offense where the act committed amounts to more than
mere preparation that tends but fails to effect the commission
of the offense intended.
A person commits ‘theft’ if he unlawfully appropriates
property with the intent to deprive the owner of the property.
Appropriation of property is unlawful if: it is without the
owner’s effective consent . . .
‘Owner’ means a person who has title to the property,
possession of the property, whether lawful or not, or a
greater right to possession of the property than the actor.
‘Appropriate’ means . . . to acquire or otherwise
exercise control over property . . .
‘Property’ means: . . .
‘Deprive’ means: . . .
‘Possession’ means . . .
A person commits the offense of murder if he
intentionally causes the death of an individual.
3.
Now therefore, if you find from the evidence beyond a
reasonable doubt that the Defendant, Robert Wallace West, Jr.
on or about August 24, 1982, in Harris County, Texas, did
while in the course of committing or attempting to commit
burglary of a habitation owned by Deanna Klaus, intentionally
cause the death of Deanna Klaus by strangling Deanna Klaus
with his hands, or by strangling Deanna Klaus with a belt, or
by strangling Deanna Klaus with a sheet, or by suffocating
Deanna Klaus with a hand towel, or by stabbing Deanna Klaus
with a piece of wood, you will find the defendant guilty of
capital murder.
If you do not so believe, or if you have a reasonable
doubt thereof, you will find the defendant not guilty of
capital murder”
In the next paragraph (“4") of the charge, the court instructed on
the lesser included offense of murder.
There was no objection to the charge on the ground that it
20
Appeals has several times upheld capital murder convictions on the
basis of a burglary where the burglary was established by the
murder of the victim following unlawful entry into his or her
habitation. Fearance v. State, 771 S.W.2d 486, 492-494 (Tex. Crim.
App. 1988), cert. denied, 109 S.Ct. 3266 (1989); Beathard v. State,
767 S.W.2d 423, 427 & n.6, 431 (Tex. Crim. App. 1989)(under
general burglary allegation); Matamoros v. State, 901 S.W.2d 470,
473, 474 (Tex. Crim. App. 1995)(under general burglary allegation).
The evidence here is plainly sufficient to show burglary by West’s
forced entry into the victim’s room followed by his murder of her
therein.17 Accordingly, for this reason also, West’s claim of
allowed burglary (or attempted burglary) to be found on a basis
other than committing theft after entry (or on the ground that it
did not require the jury to be unanimous as to which particular
method of committing burglary was proved), cf. Schad v. Arizona,
111 S.Ct. 2491 (1991); Griffin v. United States, 112 S.Ct. 466
(1991), or on the ground that any of the methods of committing
burglary as mentioned in the charge were not adequately defined or
explained. Nor was any such complaint respecting the charge ever
raised at any time in the state courts or in the district court
below. Accordingly, any such complaints made for the first time on
this appeal will not be considered.
17
West argues that using the murder to establish an element of
the burglary would render his capital sentence invalid because
section 19.03(a)(2) would not then adequately narrow the class of
murders eligible for the death penalty. This particular
contention, however, was not raised below (or in the state courts)
and hence does not afford a basis for reversal. Even if we were to
reach it, however, we could not sustain it, as we have held that
the identical claim of John Fearance, Jr., whose conviction became
final well after West’s conviction became final, see Fearance v.
State, 771 S.W.2d 486 (Tex. Crim. App. 1988), cert. denied, 109
S.Ct. 3266 (1989), was barred by Teague v. Lane, 109 S.Ct. 1060
(1989), because not all reasonable jurists would then have deemed
themselves compelled to accept that claim. Fearance v. Scott, No.
94-10686 (5th Circuit, March 21, 1995) (unpublished). Moreover,
this same contention was presented to and rejected by the Court of
Criminal Appeals in Fearance v. State, supra. We also note that
the “Practice Commentary” to the 1973 Texas Penal Code by Searcy
21
insufficiency of the evidence and his related claim of ineffective
assistance of counsel for failure to argue otherwise are both
without merit.18
and Patterson——a work published in Vernon’s Annotated Texas Penal
Code with the 1973 Penal Code volumes and frequently cited by the
Texas Court of Criminal Appeals (see, e.g., Hogue v. State, 711
S.W.2d 9, 13 (Tex. Crim. App. 1986), cert. denied, 107 S.Ct. 329
(1986))——observes concerning section 30.02: “A separate burglary
offense, however, does perform an important criminological function
in addition to its trespassory and attempt functions: it protects
against intrusion in places where people, because of the special
nature of the place, expect to be free from intrusion. The
provision of this protection is the rationale underlying Section
30.02." Certainly this “important criminological function” would
appear to rationally justify special treatment for murders
committed in the course of such a nonconsensual intrusion into
another’s habitation. See also Lowenfield v. Phelps, 108 S.Ct. 546
(1988); Perry v. Lockhart, 871 F.2d 1384 (8th Cir.), cert. denied,
493 U.S. 959 (1989). And, further narrowing is provided by the
sentencing special issues.
18
The state argues, as it did below (and in the state habeas
proceeding), that West’s claim of insufficiency of the evidence is
barred under the procedural default doctrine by his failure to
raise it on direct appeal. The state habeas trial court expressly
found procedural bar on this basis. Although the Court of Criminal
Appeal’s denial of habeas relief stated no reasons, that court, as
we have held, has long held that the sufficiency of the evidence
may only be raised on direct appeal, and may not be raised in state
habeas. See Clark v. Texas, 788 F.2d 309, 310 (5th Cir. 1986); Ex
parte McWilliams, 634 S.W.2d 815, 818 (Tex. Crim. App. 1982); Ex
parte Easter, 615 S.W.2d 719, 721 (Tex. Crim. App. 1981); Ex parte
Smith, 571 S.W.2d 22, 23 (Tex. Crim. App. 1978). In these
circumstances, reliance on the procedural default is adequately
established. See Ylst v. Nunnemaker, 111 S.Ct. 2590, 2594-96
(1991); Teague v. Lane, 109 S.Ct. 1080, 1068-69 (1989); Young v.
Herring, 938 F.2d 543, 549 n.6 (5th Cir. 1991); Preston v. Maggio,
705 F.2d 113, 116 (5th Cir. 1983). Of course, the procedural
default does not bar the related ineffective assistance of counsel
claim and constitutionally ineffective assistance generally
constitutes “cause” for a default; but, we have held that counsel
was not defective (and that there was no prejudice). As to “actual
innocence” and “innocent of the death penalty” exceptions to the
bar, we hold that they are inapplicable because the evidence
clearly shows that West was guilty of entry without consent into
the victim’s habitation and of then murdering her there. Thus, the
procedural bar is yet another reason to deny West’s claim that the
evidence was insufficient.
22
II. Brady and Related Ineffective Assistance of Counsel
West argues that the prosecution suppressed evidence that his
confession that he stole a necklace from Klaus’ room was fabricated
and thus violated his rights under Brady v. Maryland, 83 S.Ct. 1194
(1963). Relatedly, West argues, though in only the most
conclusory manner, that counsel “failed to undertake reasonable
investigation at guilt-innocence and to present evidence indicating
that Mr. West was not guilty of the underlying felony of burglary.”
The only thing in the record even arguably supporting these claims
are the conclusory allegations of West’s federal and state habeas
petitions.19 We reject these contentions.
Brady proscribes “the suppression by the prosecution of
evidence favorable to an accused.” Id. at 1196. Certainly West
19
West’s amended section 2254 petition alleges in its paragraph
58B:
“Counsel failed to investigate, prepare, and
present evidence which would have proven that a burglary
had not, in fact, taken place. Reasonable investigation
would have discovered that West fabricated the theft of
the gold necklace and credible, relevant evidence proving
the fabrication could have been presented to the jury.”
There is absolutely no indication in the petition (or elsewhere in
the record) of what the claimed “evidence” is or consisted of or of
how it might have been found. There is no allegation that West
ever informed his counsel, or anyone else, that he did not take the
necklace.
Paragraph 59A of this petition alleges, “The prosecution
failed to divulge Brady material to the defense including evidence
which indicated that the burglary did not, in fact, happen in
violation of Robert West’s . . . rights.” Again, there is
absolutely no indication in the petition (or elsewhere in the
record) of what the claimed “evidence” is or consisted of; nor is
there any allegation or indication of record that West ever
informed the prosecution or the police, or anyone else, that he did
not take the necklace, or that the prosecution or the police were
aware that he did not or of evidence indicating that he did not.
23
knew whether or not he had taken the necklace, and necessarily knew
that better than the prosecution could have. As we said in
Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994): “Brady
claims involve ‘the discovery, after trial of information which had
been known to the prosecution but unknown to the defense.’ United
States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d
342 (1976).” And, in Lawrence we also quoted with approval the
following passage from United States v. Jackson, 6 F.3d 911, 918
(2d Cir. 1993): “Evidence is not ‘suppressed’ if the defendant
either knew, or should have known, of the essential facts
permitting him to take advantage of any exculpatory evidence.”
Lawrence at 257 (citation and internal quotation marks omitted).
See also, e.g., Williams v. Scott, 35 F.3d 159, 163 (5th Cir.
1994), cert. denied, 115 S.Ct. 959 (1995)(“A Brady violation does
not arise if the defendant, using reasonable diligence, could have
obtained the information”); Blackmon v. Scott, 22 F.3d 560, 564-65
(5th Cir.), cert. denied, 115 S.Ct. 671 (1994)(“The state is not
required to furnish a defendant with exculpatory evidence that is
fully available to the defendant or that could be obtained through
reasonable diligence”); Duff-Smith v. Collins, 973 F.2d 1175, 1181
(5th Cir. 1992), cert. denied, 113 S.Ct. 1958 (1993); May v.
Collins, 904 F.2d 228, 231 (5th Cir. 1990), cert. denied, 111 S.Ct.
770 (1991); United States v. Marrero, 904 F.2d 251, 261 (5th Cir.
1990), cert. denied, 111 S.Ct. 561 (1990). Moreover, West cites no
authority, and we have found none, supporting the conclusion that
a Brady violation could be found in these circumstances.
24
Accordingly, West would have to extend Brady beyond what is
compelled by existing precedent, and relief is hence barred by
Teague v. Lane, 109 S.Ct. 1060 (1989).
Moreover, as the magistrate judge correctly observed in
recommending that the state’s unopposed motion for summary judgment
be granted, “[t]here is no evidence that the prosecution had any
evidence relating to the fact that a burglary [by theft] never
occurred.”20 The allegations of West’s amended section 2254
petition are wholly conclusory in this respect and do not assert
that West ever informed (or even suggested to) anyone that he did
not take the necklace. See note 19, supra. Such allegations do
not suffice to entitle West to an evidentiary hearing. “The
[habeas] petitioner must set forth specific allegations of fact,
not mere conclusory allegations,” Johnson v. Scott, 68 F.3d 106,
112 (5th Cir. 1995), and “[t]he court need not blindly accept
speculative and inconcrete claims as the basis upon which to order
a hearing,” Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert.
denied, 110 S.Ct. 419 (1989)(internal quotation marks omitted).
“Conclusory allegations are not enough to warrant discovery under
Rule 6 of the Federal Rules Governing Section 2254 Petitions; the
petitioner must set forth specific allegations of fact; Rule 6,
20
Nor was any such evidence provided in West’s unsworn
objections to the magistrate judge’s report; nor did the objections
provide any specificity in this respect. Indeed, the objections
make plain that what West wants is discovery as to whether the
prosecution had such evidence, and these objections allege that
West “continues to be prejudiced by the prosecutor’s intentional
conduct or failure to investigate” in this respect (emphasis
added).
25
which permits the district court to order discovery on good cause
shown, does not authorize fishing expeditions.” Ward v. Whitley,
21 F.3d 1355, 1367 (5th Cir. 1994), cert. denied, 115 S.Ct. 1257
(1995).21
West’s claim of ineffective assistance of counsel in this
respect fails for similar reasons. It, too, is wholly conclusory.
West’s confession states that he took the necklace, and he has
never alleged that he ever informed his counsel that he had not
done so, or ever gave counsel any reason to so believe (nor does
West’s petition allege any facts that would have put counsel on
notice under these circumstances, or specify any particular
evidence that investigation in this respect would have revealed).22
There is simply no basis on which to conclude that counsel’s
performance was constitutionally deficient in this respect. “We
21
We also observe that at the end of the guilt-innocence stage
the prosecutor testified under oath, outside of the presence of the
jury, that he had furnished defense counsel all information
requested in counsel’s numerous and broad discovery motions and
that defense counsel had been afforded full access to the
prosecution’s file. There was no contrary evidence or claim.
Also, at a pretrial hearing defense counsel acknowledged he had
been given access to the prosecutor’s file, including information
and an offense report respecting the assault on Longfellow and,
apparently, two statements by Tagle.
22
West’s trial counsel’s affidavit, which is uncontradicted,
states that in the course of his preparation he and his associate
counsel “visited with Mr. West on numerous occasions,” reviewed the
state’s file “in its entirety,” and retained an investigator. The
record reflects that counsel filed and pursued, among many other
motions, motions for “Discovery and Inspection,” for “Production
and Inspection of Evidence and Information Which May Lead to
Evidence,” and to “Discover any Concessions or Agreements with
Third Parties,” all of which motions were granted by the trial
court, which ordered, inter alia, that any and all exculpatory
material be promptly turned over to the defense. Defense counsel
had full access to the prosecution file (see note 21, supra).
26
must strongly presume that trial counsel rendered adequate
assistance and that the challenged conduct was the product of
reasoned trial strategy,” Wilkerson v. Collins, 950 F.2d 1054, 1065
(5th Cir. 1992), cert. denied, 113 S.Ct. 3035 (1993), and “[w]hen
a defendant has given counsel reason to believe that pursuing
certain investigations would be fruitless . . . counsel’s failure
to pursue those investigations may not later be challenged as
unreasonable.” Id. (quoting Burger v. Kemp, 107 S.Ct. 3114, 3126
(1987) [quoting Strickland v. Washington, 104 S.Ct. 2052, 2066
(1984)]; internal quotation marks omitted). West’s petition simply
does not allege facts showing that counsel’s performance in this
respect was constitutionally deficient.
Finally, we note that neither the Brady claim concerning the
theft23 nor the related ineffective assistance of counsel claim
demonstrate the requisite “‘reasonable probability’ of a different
result” such as “‘undermines confidence in the result’” under Kyles
v. Whitley, 115 S.Ct. 1555, 1566 (1995), and Strickland v.
Washington, 104 S.Ct. 2052, 2068 (1984). The entire claimed
importance of the necklace theft is based on the theory that
without it there could be no burglary and hence no capital murder.
As demonstrated above, this is simply not so. It is uncontested
and beyond dispute that West forced his way into Klaus’ motel room
where Klaus lived and then and there murdered her. This
constitutes burglary and establishes West’s guilt of capital
23
Other purported Brady claims were asserted below but have not
been raised on this appeal. They are hence abandoned.
27
murder.
We reject the Brady claim and related claim of ineffective
assistance of counsel.
III. Admissibility of Confession
West argues that the admission in evidence of his written
confession violated his rights under the Fifth Amendment in that
his Miranda right to cut off questioning was not scrupulously
honored, relying on Charles v. Smith, 894 F.2d 718 (5th Cir. 1990).
The evidence shows that when West was arrested and placed in
a patrol car at the motel Officer Rogers read him his Miranda
rights.24 He did not appear to be intoxicated or on drugs. After
being read his rights West told Officer Rogers that “he already
knew his rights anyway”. West was thereafter taken to the police
station about 3:30 A.M. and was there interviewed by detective Kent
after Kent had again read West his Miranda rights.25 West advised
Kent that he understood those rights. West did not appear
intoxicated or under the influence of drugs. West talked to Kent
about 30 to 45 minutes, and gave no indication that he wished to
24
West was advised:
“You have the right to remain silent and not make any
statement at all. Any statement you make may be used
against you, probably will be used against you in your
trial. You have the right to have a lawyer present to
advise you prior to and during any questioning. If you
are unable to employ a lawyer you have the right to have
a lawyer appointed to advise you prior to and during any
questions. You have the right to terminate the interview
at any time.”
25
Kent’s reading of the rights was essentially verbatim as
earlier read to West by Officer Rogers (note 24, supra).
28
exercise or invoke any of the rights read to him, nor did he
discuss those rights. Kent made no promises or threats to West,
and there was no coercion. At the end of this interview Kent took
West to the jail to be booked in. Kent talked to West again from
about 9:20 to 10:40 A.M. Kent testified that West was “coherent,”
“in control of his faculties,” and “seemed calm, was responsive to
my questions and talked freely.” Kent testified that no promises
or threats were made and there was no coercion. West did not
indicate he wished to invoke any of the rights previously read to
him. He was taken back to the jail about 10:40 A.M. About noon
that day murder charges were filed. Slightly over thirteen hours
later, at about 11:50 P.M. that night, West was again questioned by
Kent. Kent read West his rights, and told him he had been charged
with murder and could get the death penalty. During the
questioning Kent informed West that Tagle had implicated him by
saying West had returned to their motel room with his clothes
bloody and then washed them off. West responded that “he didn’t
believe Tagle would say that” and said he wanted to talk with
Tagle. Officer Rogers was sent to get Tagle, who Kent mistakenly
thought was at the police station. About an hour later Rogers
returned without Tagle. Kent at that time, approximately 1:00 A.M.
August 25, decided to terminate the interview with West and take
him back to the jail, which had called advising they wanted West
back so he could be transferred to the county. Kent so advised
West. Up until that time, West in all discussions with Kent had
denied any involvement in the murder. Kent testified “I was
29
getting ready to put him in jail. He decided to start telling me
the story.” West was not intoxicated, he “was alert,” and he
“talked freely” and was “responsive to” questions. West never
stated he did not want to talk and never asked for a lawyer or
otherwise sought to invoke his Miranda rights. No threats or
promises were made, and there was no coercion. After telling his
story, West indicated that he would make a written statement. Kent
then again read West the warnings printed on a statement form
(identical to those on West’s written statement, see note 27,
infra)and again asked him if he understood them and if he wanted to
make a written statement. West said he understood his rights and
would give a written statement. Kent then proceeded to type on the
statement form what West told him. Kent would from time to time
ask questions and type what West said in response.26 The statement
is seven pages long, Kent was a slow typist, and several coffee
breaks were taken. The entire process took several hours. When
the statement was finished, Kent handed it to West who read it, the
first sentence aloud, and made several corrections. West then read
silently the printed warnings, said he understood them, and
initialed them.27 He then signed each page of the statement. The
26
Kent testified “If I recall something or another he mentioned
in the oral interview that he hadn’t related as I was typing, I
would ask him about that and he would tell me and I would
incorporate that in the statement,” using “his [West’s] words.”
27
The top of each page of the statement contains the following
printed legend (with “Robert Wallace West” and “C. W. Kent” typed
in the blanks), just after which the body of the statement is
typed, viz:
“Statement of Robert Wallace West taken in Harris
30
entire process was completed at about 7:45 A.M., and West was then
returned to the jail.
Summarizing his three separate interviews with West, detective
Kent testified there were never any promises or threats made to
West, nor any coercion applied. He further testified that on each
of these three occasions West had never sought to exercise or raise
a question about any of the rights he had been read. Kent also
testified: “He never once at all stated that he didn’t want to
talk to me” or “that he wanted a lawyer,” and “he continued to talk
with me. He would answer my questions. He would talk freely with
me.”28
County, Texas.
Prior to making this statement I have been warned by
C. W. Kent, the person to whom this statement is made,
that:
1) I have the right to remain silent and not make any
statement at all and any statement I make may and
probably will be used against me at my trial;
2) Any statement I make may be used as evidence against
me in court;
3) I have the right to have a lawyer present to advise
me prior to and during any questioning;
4) If I am unable to employ a lawyer, I have right to
have a lawyer appointed to advise me prior to and during
any questioning and;
5) I have the right to terminate the interview at any
time.
Prior to and during the making of this statement I
knowingly, intelligently and voluntarily waive the rights
set out above and make the following voluntary
statement:”
West initialed each of the above paragraphs 1 through 5.
28
Kent later repeated this testimony saying, with reference to
the three occasions he interviewed West, “he never one time said he
did not want to talk to me. No, sir. He never said that,” and “he
never asked for a lawyer,” and “he at no time exercised any of his
31
West did not testify at the Jackson v. Denno hearing, and no
evidence was presented contradicting the testimony of the police
officers called by the prosecution.
The trial court entered detailed written findings that the
confession was in all respects voluntary and properly warned. The
court found, inter alia, that the warnings as testified to were
given West, that he never advised the officers that he wanted an
attorney present, that “at no time . . . did the defendant request
police officers to cease interrogating him,” that “defendant, after
repeated warnings, knowingly, intelligently and voluntarily waived
his rights under Article 38.22, V.A.C.C.P., including his right to
assistance of counsel,”29 and that “the defendant’s confession was
not the product of force, threats, persuasion, intimidation or
promises, but was freely and voluntarily given.” On direct appeal,
the Court of Criminal Appeals rejected challenges to the
confession, holding that the trial court’s “findings of fact are
rights” that he had been read.
29
The rights provided in Texas Code of Criminal Procedure
Article 38.22 include all those of Miranda and are as follows:
“(1) he has the right to remain silent and not make any
statement at all and that any statement he makes may be used
against him at his trial;
(2) any statement he makes may be used as evidence
against him in court;
(3) he has the right to have a lawyer present to
advise him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the
right to have a lawyer appointed to advise him prior to
and during any questioning; and
(5) he has the right to terminate the interview at
any time:”
Art. 38.22 sec. 2(a).
32
supported by the record” and “we find ample support for the finding
that appellant never requested the interrogation cease.” West, 720
S.W.2d at 518.
Where the question presented in a section 2254 proceeding is
whether a confession admitted at trial was voluntary and in
compliance with Miranda, with respect to issues of underlying or
historic facts, the state court findings, if fairly supported in
the record, are conclusive, but there is independent federal
determination of the ultimate question whether, under the totality
of the circumstances, the challenged confession was obtained in a
manner compatible with the requirements of the Constitution.
Miller v. Fenton, 106 S.Ct. 445, 450-51, 453 (1985).
West challenges the finding of the state courts that he never
invoked his right to remain silent, relying on the testimony of
detective St. John that between 9:00 and 10:00 A.M. on August 24
West told the officers he “didn’t want to tell us anything about
it.” This testimony is best understood, however, as saying not
that West refused to talk or exercised his right to silence, but
rather that, denying any involvement in the murder, he refused to
talk about what he would only know if he were involved. This
construction is consistent with St. John’s testimony that during
this interview West was “very arrogant in that interview. He was
denying his involvement in the episode” and that West never
indicated in his presence any desire to invoke the rights of which
he had been advised. Moreover, Kent was doing the interviewing,
and St. John was in and out of the room. Kent likewise testified
33
that at this interview he discussed the case with West and West
“still denied having anything to do with it,” but “was responsive
to my questions and talked freely.” And, as noted, Kent testified
that West did not invoke his rights at this meeting, or any other,
never said he did not want to talk with Kent, and always “would
talk freely with me.” The construction West now seeks to place on
St. John’s testimony would make it contradictory to that of Kent.
The record fairly supports the underlying factual determination of
the Texas courts that West did not invoke his right to silence.
Even if West had invoked his right to silence at the 9:20-
10:00 A.M. interview, this would not render his resumed questioning
more than thirteen hours later a failure to scrupulously honor his
right to silence. In Charles v. Smith, supra, the resumed
questioning took place “just a few minutes after” the defendant had
exercised his right to silence. Id. at 726. Similarly, we found
a Miranda violation where questioning was resumed thirty or forty-
five minutes after invocation of the right to silence. United
States v. Hernandez, 574 F.2d 1362 (5th Cir. 1978). Here,
questioning was not resumed until after a lapse of thirteen hours.
Thus, the present case is controlled by Kelly v. Lynaugh, 862 F.2d
1126 (5th Cir. 1988), cert. denied, 109 S.Ct. 3263 (1984), likewise
a capital case in which we affirmed a summary judgment denial of
habeas relief. There, Kelly, about 11:00 A.M. the day of his
arrest, having been advised of his Miranda rights, was asked if he
wanted to talk, and he responded “no,” and was taken to the jail.
About 4:00 P.M. the same day, he was taken out of the jail and
34
given his Miranda warnings, but he again refused to answer
questions, and was returned to the jail. He was yet again removed
from the jail for questioning some four and a half to six hours
later (at some time between 8:30 and 10:00 P.M. the same day), and
then, after being shown a co-defendant’s statement and “without new
Miranda warnings, Kelly orally confessed. When the confession was
reduced to writing [and signed by Kelly], the Miranda warnings were
stated at the top of the first page” and were followed by a
statement that the signer had read, understood, and voluntarily
waived those rights. Kelly at 1130. Reviewing Michigan v. Mosley,
96 S.Ct. 321 (1975), and other relevant authorities, we held that
the written confession was admissible, that Miranda had been
complied with, and “Kelly’s right to cut off questioning was
scrupulously honored.” Kelly at 1130-1131. Our thorough
examination of the record here leads to the same conclusion.30 We
reject West’s contentions to the contrary.
We likewise reject West’s claim that the confession was taken
in violation of his Sixth Amendment right to counsel. Although
West’s Sixth Amendment rights attached when charges were filed,
West had never requested (or retained) counsel and none had been
appointed for him. In those circumstances, his waiver of counsel
pursuant to his Miranda warnings waived his Sixth Amendment right
30
See also Wilcher v. Hargett, 978 F.2d 872, 876-77 (5th Cir.
1992); United States v. Corral-Franco, 592 F.2d 263, 267 (5th Cir.
1979); Jackson v. Wyrick, 730 F.2d 1177, 1180 (8th Cir.), cert.
denied, 105 S.Ct. 167 (1984); United States v. Udry, 748 F.2d 1231
(8th Cir. 1984), cert. denied, 105 S.Ct. 3477 (1985). Cf. Evans v.
McCotter, 790 F.2d 1232, 1238 (5th Cir.), cert. denied, 107 S.Ct.
327 (1986).
35
not to be interrogated or give a statement without the presence or
guidance of counsel. This is made clear by Patterson v. Illinois,
108 S.Ct. 2389 (1989), and its progeny. See United States v.
Gayton, 74 F.3d 545, 555 (5th Cir. 1996) (“As long as the defendant
is given Miranda warnings, his voluntary decision to answer
questions without invoking the right to counsel constitutes waiver
[of the Sixth Amendment right]”); Wilcher v. Hargett, 978 F.2d 872,
876 (5th Cir. 1992); Montoya v. Collins, 955 F.2d 279, 282 (5th
Cir.), cert. denied, 113 S.Ct. 820 (1992) (“As long as the police
administer Miranda warnings before proceeding, a defendant’s
voluntary decision to answer questions without claiming his right
to have a lawyer present to advise him constitutes a ‘knowing and
intelligent,’ and therefore valid, waiver of his Sixth Amendment
right”; citing Patterson).
Finally, West complains of violation of his rights under Tex.
Code. Crim. Proc. art. 15.17, requiring that a person arrested be
taken before a magistrate “without unnecessary delay.” However,
asserted violations of state law do not constitute a basis for
federal habeas relief. West’s written confession was completed
approximately thirty hours after his arrest, and there is no
showing that he was not taken before a magistrate well before the
forty-eight hour presumptive maximum delay of County of Riverside
v. McLaughlin, 111 S.Ct. 1661 (1991).31 “Even assuming that the
time gap between arrest and initial appearance was unreasonable,
31
West does not argue to us that his arrest was illegal or
without probable cause (which was plainly present).
36
the claim does not rise to constitutional significance.” De La
Rosa v. State of Texas, 743 F.2d 299, 303 (5th Cir. 1984), cert.
denied, 105 S.Ct. 1781 (1985). “The rule in McNabb v. United
States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) [which]
prohibits the use in [federal] criminal cases of confessions . . .
where there was a failure to bring the accused before a committing
magistrate without unnecessary delay . . . has not been extended to
state prosecutions as a requirement of the Fourteenth Amendment.”
Smith v. Heard, 315 F.2d 692, 694 (5th Cir.), cert. denied, 84
S.Ct. 154 (1963), citing Brown v. Allen, 73 S.Ct. 397 (1953), and
Gallegos v. Nebraska, 72 S.Ct. 141 (1951). “Failure to [timely]
take an accused before a magistrate . . . bear[s] only upon the
issue of voluntariness” of the confession, and is only one of
several factors to be considered in that respect. Smith v. Heard
at 694 (emphasis added), citing Colombe v. Connecticut, 81 S.Ct.
1860 (1961).32
32
In Colombe, it is stated: “we have not extended its
[McNabb’s] rule to state prosecutions as a requirement of the
Fourteenth Amendment,” id. at 1878, under which “[t]he ultimate
test [of the admissibility of a confession] remains” what it has
been “for two hundred years: the test of voluntariness. Is the
confession the product of an essentially free and unconstrained
choice by its maker.” Id. at 1879. Undue delay in taking an
accused before a magistrate is merely one of several factors
relevant to the ultimate test of voluntariness. Id. at 1878-79.
See also id. at 1900.
Brown states: “If the delay in the arraignment of petitioner
was greater than that which might be tolerated in a federal
criminal proceeding, due process was not violated. . . . The Court
has repeatedly refused to convert this [the McNabb]rule of evidence
for federal courts into a constitutional limitation on the states
. . . . Mere detention and police examination in private of one in
official state custody do not render involuntary the statements or
confessions made by the person so detained.” Id. at 417.
37
In De La Rosa, relying on Colombe; Brown; Gallegos; and Smith
v. Heard, we upheld the admissibility of the confession, despite
its having been given before the arrested accused was taken to a
magistrate and following what we assumed was an unreasonable delay
in doing so, because “[i]n our reading of the record we find
nothing to indicate that De La Rosa’s confession was anything other
than the product of his free and voluntary choice.” De La Rosa at
303.33 Our review of the entire record here leads to the same
conclusion as to West’s confession. Notwithstanding the delay
between arrest and arraignment, under all the circumstances
reflected by the record here, West’s confession is shown to be the
product of his free and voluntary choice.
We reject all the contentions West raised on appeal in respect
to the admissibility of his confession.
IV. Penry Claim, and Challenges to Texas Capital Sentencing
Scheme
West argues that his rights under Penry v. Lynaugh, 109 S.Ct.
2934 (1989), were violated because under the Texas sentencing
special issues the jury could not give full effect to the allegedly
mitigating circumstances of his case.34 Insofar as West relies on
33
We also observed that the state trial court “found that De
La Rosa confessed of his own free will, unaffected by any threat or
coercion.” Id. at 303.
Read in the context of this entire portion of the De La Rosa
opinion, and in the light of the authorities there relied on, it is
evident that our “causally related” language (id. at 303), relied
on by West, is merely directed to whether the delay in arraignment
caused the confession to be other than the product of the accused’s
free and voluntary choice. Here it did not.
34
The state argues that a Penry claim was not properly raised
below. While we are inclined to agree, we need not reach that
38
allegedly mitigating circumstances not reflected by evidence
introduced or tendered at his trial, his claim is without merit as
we have repeatedly held that a Penry claim may be based only on
evidence introduced or offered at trial. Briddle v. Scott, 63 F.3d
364, 377 (5th Cir.), cert. denied, 116 S.Ct. 687 (1995); Anderson
v. Collins, 18 F.3d 1208, 1214-15 (5th Cir. 1994); Allridge v.
Scott, 41 F.3d 213, 223 (5th Cir.), cert. denied, 115 S.Ct. 1959
(1995); Crank v. Collins, 19 F.3d 172, 176 (5th Cir.), cert.
denied, 114 S.Ct. 2699 (1994); Callins v. Collins, 998 F.2d 269,
275 (5th Cir. 1993), cert. denied, 114 S.Ct. 1127 (1994). The only
evidence actually introduced (or offered, conditionally or
otherwise) at trial that West claims is mitigating evidence that
could not adequately be taken into account under the sentencing
special issue, consists of statements in his confession that he had
been drinking heavily the afternoon and evening of the murder and
that he “boiled up” or “blew up” at things the victim said to him
after he had forced his way into her room and attacked her.35 As
question as we determine West’s Penry claim is in any event without
merit.
35
The portion of the confession not introduced at either the
guilt-innocence stage or the punishment stage (see note 4, supra)
reflected that this “blow up” resulted from the victim’s admission
to West (after he had forced his way into her room and assaulted
her) that she had identified West’s “friend” Barstow to Longfellow
as Roxanne’s “lover”; West assertedly believed (without any
evidence) that Barstow had been killed by Longfellow (or at his
direction) because Longfellow (presumably as a result of Roxanne’s
having told the police Barstow was “her lover”) mistakenly thought
Barstow (not West) was the person who had assaulted him when he was
with Roxanne in May 1982. However, as previously observed, this
portion of the confession also states Roxanne “knew that I was
going down to Deanna’s room to kill her. I had told her that I
was.”
39
to the drinking and inference of intoxication, we have many times
held that this may be adequately taken into account under both the
first and second punishment issues (deliberateness and future
dangerousness). Briddle at 377; Anderson at 1214-15 n.5; Nethery
v. Collins, 993 F.2d 1154, 1161 (5th Cir. 1993), cert. denied, 114
S.Ct. 1416 (1994); James v. Collins, 987 F.2d 1116, 1121 (5th Cir.
1993); Cordova v. Collins, 953 F.2d 167, 170 )(5th Cir.), cert.
denied, 112 S.Ct. 959 (1992). See also Lackey v. Scott, 28 F.3d
486, 487 (5th Cir. 1994), cert. denied, 115 S.Ct. 743 (1995). As
to West’s having “blown up” or the like, any mitigating quality of
this evidence could be adequately taken into account under both the
punishment issues.36 Blackmon at 564; Marquez v. Collins 11 F.3d
1241, 1248 (5th Cir. 1994).
West also makes what appears to be both an as applied and a
facial challenge to the Texas sentencing scheme on the basis that
it chills counsels’ presentation and/or development of mitigating
evidence.37 We have repeatedly rejected such claims. Briddle at
36
And this is likewise true as to the fuller “blow up” account
given in portions of the confession not introduced at either stage.
See notes 4 and 35, supra.
37
We note that in this case, tried in February 1983, years
before Penry was handed down, defense counsel (not surprisingly)
did not request (or object to the absence of) any special
instruction of the kind Penry indicated would be required in the
face of certain kinds of mitigating evidence that might also tend
to support an affirmative answer to either of the punishment
issues, nor was any evidence offered conditionally on the court’s
agreeing to give such an instruction. That is not to say, however,
that Texas applied a procedural bar (in a case tried before Penry)
to raising a Penry claim on the basis of evidence actually admitted
(or offered by the defense but excluded). See Selvage v. Collins,
816 S.W.2d 390 (Tex. Crim. App. 1991).
40
378; Lackey at 490; Crank at 176; Black v. Collins, 962 F.2d 394,
407 (5th Cir.), cert. denied, 112 S.Ct. 2983 (1992).
West advances a further facial challenge to the Texas
sentencing scheme on the basis that the second special issue
improperly functions as an aggravating circumstance and is invalid
in the absence of appropriate narrowing definitions or
instructions.38 We rejected essentially the same contention in
James at 1119-20, and, more recently, in Woods v. Johnson, 75 F.2d
1017, 1033-34 (5th Cir. 1996). See also Nethery at 1162; Thompson
v. Lynaugh, 821 F.2d 1054, 1059-60 (5th Cir.), cert. denied, 108
S.Ct. 5 (1987); Milton v. Procunier, 744 F.2d 1091, 1095-96 (5th
Cir. 1984), cert. denied, 105 S.Ct. 2050 (1985). In Jurek v.
Texas, 96 S.Ct. 2950 (1926), the facial validity of the Texas
capital sentencing scheme was sustained. There the Court held that
the constitutionally required narrowing function was performed at
the guilt-innocence stage, and further narrowing at the sentencing
stage was not required. Id. at 2955-57. This was confirmed by
Lowenfield v. Phelps, 108 S.Ct. 546, 554-555 (1988). Jurek
likewise expressly rejects the contention that the second
punishment issue is impermissibly vague. Id. at 2957-58. See also
Pulley v. Harris, 104 S.Ct. 871, 879 n.10 (1984) (Texas punishment
issues not impermissibly vague).39
38
At trial, there were no requests for special instructions or
definitions regarding the wording or meaning of the punishment
special issues or the terms used therein, nor any objection to the
absence of such instructions or definitions.
39
Moreover, to sustain West’s facial challenge would plainly
be to adopt a new rule not compelled by precedent existing in 1987
41
We reject West’s claims based on Penry, as well as his
challenges to the Texas capital sentencing scheme.
V. Ineffective Assistance of Counsel at Sentencing
West claims counsel was ineffective in failing to present
mitigating evidence at sentencing and in failing to adequately
investigate in that respect.40
West’s amended federal petition alleged in general terms that
his counsel was ineffective because he failed to adequately
investigate West’s “social, educational, health, and medical
background and failed to discover facts which, if provided to a
psychologist or psychiatrist, would have rendered relevant and
significant evidence regarding the defendant’s responsibility for
the crime as well as his deliberateness and future dangerousness.”
It is alleged that West’s mother abandoned him to her parents
when West’s conviction became final, contrary to Teague. See
Graham v. Collins, 113 S.Ct. 892 (1993).
40
We have already considered and rejected West’s claims of
ineffective assistance of counsel (and for an evidentiary hearing
thereon) in respect to the sufficiency of the evidence of burglary
and the taking of the necklace.
In one footnote in his one hundred page appellant’s
brief——filed on his behalf by the same counsel who represented him
below and on his state habeas——West lists various grounds of
ineffective assistance of counsel that he assertedly alleged in the
district court. Except for those elsewhere addressed in this
opinion, none of these claims is briefed or argued, and hence no
ruling as to those claims is preserved for appellate review. See
Complaint of Port Arthur Towing v. M/V Miss Carolyn, 42 F.3d 312,
319 (5th Cir. 1995); Green v. State Bar of Texas, 27 F.3d 1083,
1089 (5th Cir. 1994); Randall v. Chevron U.S.A., Inc., 13 F.3d 888,
911 (5th Cir. 1994), mod. in other respects, 22 F.3d 568 (5th Cir.
1994); United States v. Ballard, 779 F.2d 287, 295 (5th Cir.),
cert. denied, 106 S.Ct. 1518 (1986). See also, e.g., United States
v. Hoster, 988 F.2d 1374, 1383 n.25 (5th Cir. 1993); United States
v. Collins, 972 F.2d 1385, 1393 n.5 (5th Cir. 1992).
42
shortly after his birth, and his grandparents (described as “very
good people” whom West “loved” and was “close to”) raised West, who
believed they were his real parents until he was approximately
twelve years old. He did well in school until he was twelve, and
then began having problems, including alcohol and drug abuse. He
suffered a head injury of a wholly unspecified sort. After his
grandfather died when West was fifteen, West was placed in various
juvenile facilities. Attached to West’s amended federal habeas
petition was an affidavit by psychologist Dr. Brown, who examined
West in July 1987 and performed three psychological tests on him.
Brown also examined West’s school and juvenile facility records, as
well as his records after his conviction at the Texas Department of
Corrections.41 This affidavit states that West’s “social,
educational and athletic development were excellent until the age
of twelve.” Some time thereafter he was involved in a series of
juvenile offenses and was eventually placed in the Illinois
Department of Corrections, where he remained until age eighteen.
He received some psychological testing there, which reflected an
I.Q. of 100. It was also “regularly noted that he had anger and
hostility within and poor impulse control” but “seemed typically to
respond well to supervision.” After release he “continued his drug
use as an adult, primarily using angel dust, often combining it
with alcohol.” In Houston, West and his friends “spent most of
their time in bars and on the streets hustling for their money.”
41
No part of any of the referenced records is attached to (or
quoted in) Brown’s affidavit or otherwise of record.
43
Brown reports West “has long suffered from headaches” which “are
getting worse now” so he “now takes aspirin by the handful”; he
“currently suffers from blurred vision and, on at least one
occasion, passed out and fell without explanation.” Brown did not
make any diagnosis of insanity, incompetence, psychosis, or any
particular psychological malady. However, he did opine that “some
type of organic brain syndrome” “may exist,” confirmation of which
would require “a complete neurological examination, CAT scan, and
EEG sleep tracing.” In support of his “may exist” opinion, Brown
stated that the drugs West had been abusing “when taken in
significant dosages over a period of years, can be causative to
brain tissue pathology” and also referred to West’s “history of
headaches, flashbacks, blurred vision, multiple head injuries . .
. one episode of passing out without explanation and . . . rocking
himself prior to sleep.”42 Brown opined that West’s murder of Klaus
Was “a singular event” and it was “highly unlikely” West would
“commit such an offense again.” In support of this opinion, Brown
principally stressed West’s “history of drug abuse and excessive
consumption of alcohol the day of the crime”; that the victim was
a woman and West, who “experienced problematic relationships with
women” harbored “deep-seated anger at women”; that “the killing was
done out of loyalty to a friend rather than other criminal behavior
like robbery or burglary”; and that West “did not enter the
victim’s room with the idea of killing her, but did so afterwards
42
No reference is made in this connection to the three tests
Brown administered (nor is any documentation concerning these tests
or their results of record).
44
in an unusual rage state which was out of character for him.”
The affidavit of West’s trial counsel, which is wholly
uncontradicted on this record, states in part as follows:
“On August 22, 1982, Mr. West was present in the
courtroom of the 182nd District Court and Roy Ashe and I
had an opportunity to talk with him. Mr. West appeared
lucid and coherent; he was able to and did respond
appropriately to the questions that we asked.
During the course of our case preparation, both Roy
Ashe [co-counsel] and I visited with Mr. West on numerous
occasions. At no time during the course of the
investigation, trial preparation, or trial itself did Mr.
West give any indication that he was anything other than
sane at the time he committed the offense and competent
to stand trial. He was able to relate details of the
offense and justified the killing on the basis that the
victim was at least partially responsible for his friend
Brett getting killed. Mr. West communicated freely with
Roy Ashe and me during the course of the trial, often
asking pertinent questions or providing additional
information. In the course of my preparation I asked Mr.
West whether he had ever had any
psychiatric/psychological problems. While I do not
recall his exact response, I feel certain that his
response, coupled with my personal observations of Mr.
West, foreclosed any potential insanity defense. In my
professional opinion I saw no need to have Mr. West
undergo a psychiatric examination.
* * * * * *
In preparation for trial, including the punishment
phase, I had Mr. West prepare a background summary of his
work history and school history. Unfortunately for the
defense, the information provided by Mr. West was not at
all helpful and generally damaging. Neither
conversations with Mr. West nor his summary provided us
with names of people (employers, roommates, schoolmates)
who might testify in his behalf at punishment. I
personally contacted the grandmother who had raised Mr.
West. She refused to testify for him and did not tell me
anything that compelled me to subpoena her in spite of
her refusal.”43
43
Defense counsel also retained an investigator, and ultimately
“formed the opinion that our strongest defense would be a legal
defense rather than a factual defense.” Counsel considered the
45
As we have many times held, “[t]he failure to present a case
in mitigation during the sentencing phase of a capital murder trial
is not, per se, ineffective assistance of counsel.” Stringer v.
Jackson, 862 F.2d 1108, 1116 (5th Cir. 1988), vacated and remanded
on other grounds, 112 S.Ct. 1130 (1992), following remand, 979 F.2d
38 (5th Cir. 1992) (modifying original opinion in other respects).
See also, e.g., Woods at 1034-35; Andrews v. Collins, 21 F.3d 612,
623-25 (5th Cir. 1994); Duff-Smith at 1183; Lincecum v. Collins,
958 F.2d 1271, 1278-80 (5th Cir.), cert. denied, 506 U.S. 957
(1992); Wilkerson at 1065; DeLuna v. Lynaugh, 873 F.2d 757, 758-60
(5th Cir.), cert. denied, 110 S.Ct. 259 (1989).
West’s counsel, from his observations of and discussions with
West, and his inquiry of him as to whether “he had ever had any
psychiatric/psychological problems,” was given no reason to suspect
anything significant in that regard, much less any organic brain
syndrome. Nothing in Dr. Brown’s affidavit even suggests
otherwise. There is no allegation——much less any affidavit or other
evidence——that West had ever been hospitalized for a head injury or
for a mental condition or had ever been diagnosed as having any
sort of brain damage or psychosis, or that West ever gave counsel
any reason to believe that he had ever suffered a head injury or
suffered from any psychiatric or psychological problems. Counsel
likewise talked to West’s grandmother, who refused to testify for
West and provided no useful information. West provided no names of
possibility of other defenses, including “a diminished capacity
argument” but concluded it would not be “particularly viable.”
46
potential witnesses for the punishment hearing, and the information
he did provide “was not at all helpful and generally damaging.”
West has not even alleged——much less provided any affidavit or other
evidence of——anything tending to contradict these statements.44
Accordingly, counsel was not ineffective for failing to further
investigate in these respects. See, e.g., Andrews at 623 (“Because
counsel had no reason to believe that pursuing further
investigation into Andrews’ mental capacity or his background would
44
West’s response to the magistrate judge’s report and
recommendation has attached to it a copy of a Motion for
Evidentiary Hearing and For Funds For Expert Assistance filed in
the state habeas proceeding. The motion is signed by habeas
counsel, not by West, and is not verified or supported by
affidavit. It alleges that if West were granted a hearing he would
call his mother and grandmother. There is no allegation that the
grandmother did not talk to West’s trial counsel, did not then
refuse to testify, or ever provided West’s trial counsel with any
helpful information; it is merely said that “she will catalogue
Robert’s excellent record until his twelfth birthday and his
subsequent juvenile difficulties.” As to the mother, it is alleged
she did not see West until nineteen years after she left him with
her parents when he was six months old, and will testify to “her
son’s good qualities and worth” (there is no statement as to the
nature or extent of her contact with him after seeing him again,
but the record as a whole makes clear it could have only been
minimal). This motion also states that West would call “Various
[unspecified] Walsh Elementary School counselors and St. Charles
Juvenile Home Counselors who worked with Robert [West] and believed
he had strong qualities and only required time to mature.” No
letter, report, affidavit, statement, or other document from the
mother, grandmother, or any of the referenced counselors is
attached to (or even mentioned in) the motion or otherwise of
record. The motion also asserts that West is indigent and requests
funds to retain a Dr. Merikangus of Yale University Medical School
to perform neuropsychiatric testing, including CAT scan, NMR scan,
and EEG testing to show organic brain syndrome affecting “his
[West’s] ability to control his impulses and behavior”; it is
stated that “Dr. Merikangus charges $1,000 a day plus expenses, and
estimates that the testing will cost in excess of $5,000"; no
report, letter, affidavit, statement, or other document from Dr.
Merikangus is attached to (or even mentioned in) the motion or
otherwise of record.
47
be useful, ‘counsel’s failure to pursue those investigations may
not . . . be challenged as unreasonable’” ) (quoting Burger-Kemp,
107 S.Ct. 3114, 3126 (1987)); Wilkerson at 1065. See also Cantu v.
Collins, 967 F.2d 1006, 1016 (5th Cir. 1992), cert. denied, 113
S.Ct. 3045 (1993).
Moreover, “[w]e must ‘indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance’ and that the ‘challenged action might be
considered sound trial strategy.’” Belye v. Scott, 67 F.2d 535,
538 (5th Cir. 1995) (emphasis added; quoting Strickland, 104 S.Ct.
at 2065), cert. denied, 116 S.Ct. 1438 (1996). See also Wilkerson
at 1065. “The defendant must overcome the presumption that, under
the circumstances, the ‘challenged action might be considered sound
trial strategy.’” Strickland, 104 S.Ct. at 2065. In light of the
record as a whole, West has neither alleged nor tendered evidence
of concrete facts sufficient to overcome those presumptions.
Evidence of West’s drinking on the afternoon and evening of the
offense was before the jury, and evidence that he customarily
abused alcohol or drugs or had a juvenile record would
be——especially in the pre-Penry setting of this trial——at best a
two-edged sword.45 See Woods at 1034; King v. Lynaugh, 868 F.2d
1400, 1405 (5th Cir.) (“‘jurors are generally unsympathetic toward
drug abusers’”), cert. denied, 109 S.Ct. 1576 (1989); DeLuna v.
45
In cases tried prior to Penry, counsel is not defective for
failing to anticipate that decision. See Woods at 1034-35; May v.
Collins, 904 F.2d 228, 234 (5th Cir. 1990), cert. denied, 111 S.Ct.
770 (1991).
48
Lynaugh, 873 F.2d 757, 759 (5th Cir.), cert. denied, 110 S.Ct. 259
(1989). We observed in Smith v. Black, 904 F.2d 950, 977 (5th Cir.
1990), vacated and remanded on other grounds, 112 S.Ct. 1463
(1992), aff’d in relevant part, 970 F.2d 1383 (5th Cir. 1992), that
although certain “mitigating evidence might have been presented”
but was not, nevertheless “it is equally possible that Smith’s
trial counsel had sound strategic reasons for not presenting it,
and we cannot speculate that Smith was unconstitutionally impaired
by any ineffective assistance on such an allegation.”46
West has not shown that his counsel was constitutionally
defective.
Moreover, not only has West failed to show that his counsel’s
performance was defective, he has also failed to show the requisite
Strickland prejudice. Even if Dr. Brown had testified as stated in
46
We have held that counsel was not ineffective for
insufficiently investigating as to whether West suffered from some
sort of organic brain syndrome or significant mental illness
because there was nothing to factually put counsel on notice of any
reasonable likelihood that any such condition existed. We further
note that in this pre-Penry case there was nothing to put counsel
on notice that such an investigation might be legally fruitful,
i.e., that if there were such a condition it would be helpful to
West to introduce evidence of it. See Andrews at 625 (failure to
introduce evidence of defendant’s “‘brain damage would have been a
reasonable strategic decision; after all, such evidence is double-
edged’”); Motley v. Collins, 18 F.3d 1223, 1228 (5th Cir. 1994)
(same). And, evidence of “anger and hostility within,” “poor
impulse control,” and “deep-seated anger at women” also plainly
fall within this category. Indeed, in West’s response to the
magistrate judge’s report and recommendation, it is stated that
“the overwhelming inference” is that trial counsel’s failure to
present mitigating evidence “was a direct result of trial counsel’s
judgment that he was precluded from presenting the mitigating
evidence available to him because it would prejudice his client
given the Texas [capital sentencing] scheme,” particularly the
second (future dangerousness) issue.
49
his affidavit, and even if it were shown that West had a history of
drug and alcohol abuse, and had some character of organic brain
syndrome that diminished his “ability to control his impulses and
behavior,” and even if his grandmother and counselors were to have
testified to his good behavior in grade school (see note 43,
supra), we are convinced that there is no reasonable probability——no
probability sufficient to undermine our confidence in the
sentencing (or the guilty) verdict——that the outcome would have been
different. Strickland, 104 S.Ct. at 2068. West forced his way
into the room of the victim——a woman he barely knew——in the middle
of the night, and admitted that he had gone there with intent to
kill her. He did so in a most brutal and savage manner, but only
after putting her through a horrifying and degrading series of
assaults that must have produced the most exquisite mental anguish.
His asserted reason for doing so——that he believed she had
identified Barstow to Longfellow, resulting in Barstow’s death——was
most unlikely to favorably impress any reasonable jury. Among
other things, there is absolutely nothing to suggest that West even
believed that Klaus’ asserted identification of Barstow was other
than wholly innocent and without knowledge of the supposed danger
to which it exposed Barstow. Moreover, there is nothing to suggest
that West had any real reason, beyond pure speculation, to believe
that Longfellow killed Barstow or had him killed. Finally, all
this simply makes matters worse for West as it was he who committed
the premeditated, unprovoked, vicious, and almost fatal stabbing
and robbery of Longfellow. And, it is simply ludicrous to imagine
50
that a jury considering Klaus’ murder would be favorably inclined
to West even if it believed Dr. Brown’s theory that he acted from
“deep-seated anger at women.” Nor would such a theory, or Dr.
Brown’s related theory that West was not otherwise violent or
inclined to criminal violence such as robbery, likely be given any
significance and weight by a jury that heard the undisputed
evidence of West’s wholly premeditated and unprovoked robbery and
almost fatal vicious knifing and assault of Longfellow. This
premeditated Longfellow offense also undermines any theory that
West was violent only because of lack of impulse control.
Strickland prejudice is not shown. See, e.g., Glass v. Blackburn,
791 F.2d 1165, 1170-71 (5th Cir. 1986). See also, e.g., Woods at
1035; Andrews at 624-25; Duhamel v. Collins, 955 F.2d 962, 966 (5th
Cir. 1992); Wilkerson at 1065.
West asserts he was entitled to a federal evidentiary hearing.
We disagree. “‘[I]f the record is clearly adequate to fairly
dispose of the claims of inadequate representation, further inquiry
is unnecessary.’” DeLuna at 760 (quoting Byrne v. Butler, 845 F.2d
501, 512 (5th Cir.), cert. denied, 108 S.Ct. 2918 (1988)). “[N]o
hearing is necessary because the state court record contains
adequate, relevant evidence on the factual basis for an
ineffectiveness claim.” Lincecum v. Collins, 958 F.2d 1271, 1280
(5th Cir.), cert. denied, 506 U.S. 957 (1992). West makes no
concrete or specific factual allegations, much less submits any
affidavits or other evidence, disputing the statements in trial
counsel’s affidavit filed in the state habeas proceedings or
51
otherwise tending to show an entitlement to habeas relief. He was
thus not entitled to an evidentiary hearing. Russell v. Lynaugh,
892 F.2d 1205, 1212-1214 (5th Cir. 1989), cert. denied, 111 S.Ct.
2909 (1991). Moreover, the state properly moved for summary
judgment, and the full state record (before the district court
below) prima facie entitled it to judgment, but West, who had the
burden of proof, filed no opposing summary judgment evidence other
than the affidavit of Dr. Brown, which does not establish either
the deficient performance or the prejudice prong of Strickland.
Summary judgment was thus proper. See, e.g., Little v. Liquid Air
Corp., 37 F.3d 1069, 1075-76 (5th Cir. 1994) (en banc).
West also argues that the district court should not have
accorded the presumption of correctness to the state trial habeas
court’s findings because the state court did not afford West a
“live” evidentiary hearing but instead relied on affidavits, and
because the state trial court was biased against him. These
contentions do not entitle West to relief. To begin with, the
record before the district court below, wholly apart from the state
habeas trial court’s findings and conclusions, failed to
demonstrate any genuine dispute as to any material fact that, if
resolved in West’s favor, would entitle him to habeas relief. As
noted, the affidavits of West’s counsel are undisputed. Indeed,
West does not even allege concrete, specific facts that, in light
of the state record (exclusive of the state trial habeas court’s
findings and conclusions), dispute such affidavits or otherwise
would entitle West to relief. Any defect in the state trial
52
court’s habeas proceedings is immaterial.47
47
Moreover, we disagree with West’s claims that the state
habeas court’s findings were not entitled to the presumption of
correctness under 28 U.S.C. § 2254(d). The fact that a “live”
hearing was not held is not controlling, and the state habeas court
can generally even resolve conflicts in affidavits, where the judge
who presided at trial also presides at the habeas hearing, as was
the case here. See May v. Collins, 955 F.2d 299, 311-314 (5th
Cir.), cert. denied, 112 S.Ct. 1925 (1992); Carter v. Collins, 918
F.2d 1198, 1202 (5th Cir. 1990). See also Perrillo v. Johnson, 79
F.3d 441, 446-47 (5th Cir. 1996). Moreover, as we said in
Lincecum, “here the state [habeas] court was not even faced with
competing affidavits,” id. at 1279, and so there was thus nothing
to have a “live” hearing about.
West’s claim of bias on the part of the state trial habeas
court does not change the result. With his unverified opposition
to the magistrate judge’s report, West filed a transcript of the
August 25, 1987, proceedings before the state habeas court, which
reflects an unsworn argument by West’s habeas counsel on an
asserted August 24, 1987, oral motion to recuse the state trial
judge (which motion to recuse does not appear of record); the oral
motion was allegedly based on the state trial court’s having
indicated to West’s habeas counsel in chambers on June 12, 1987,
the day West’s execution date was set for July 15, 1987, that the
court had “a relationship” with West’s trial counsel and thought
highly of him and that he had done a good job representing West,
and that “the only action this Court would like to be involved in
in the future with regard to Mr. West would be to see the
motherfucker fried.” On July 9, 1987, West (represented by the
same habeas counsel throughout) filed his state habeas petition in
the state trial court (on July 13, 1987, the state trial court
reset West’s execution date for September 2, 1987) and he filed an
amended state habeas petition on August 23, 1987, and on August 24,
1987, a state habeas motion for evidentiary hearing and for funds
for expert assistance; in none of these filings does West seek
recusal of the state trial judge, though he had known of the
alleged grounds since June 12; nor did West ever raise any such
matter in the Court of Criminal Appeals) (whose decision was
entered August 31), which is the only court empowered to finally
act on the writ. Briddle at 375 & n.18. No valid reason for not
raising the matter earlier has been suggested. Any denial of
West’s alleged oral motion was not improper, due to its lateness
and obvious delaying purpose. Since the motion, if any, was
untimely and not in writing (or verified), under Texas law it did
not have to be acted on by another judge. See DeBlanc v. State,
799 S.W.2d 701, 705 (Tex. Crim. App. 1990). Moreover, the alleged
comment about West (even if the state court were required to trust
an unverified statement as to an unrecorded remark made more than
two months previously, which it was not) was obviously based on
matters learned at trial and, though inappropriate, does not reveal
53
We reject West’s contentions on appeal respecting ineffective
assistance of counsel and the denial of an evidentiary hearing.
Conclusion
For the reasons stated, we affirm the district court’s denial
of habeas relief.48
AFFIRMED.
“such a high degree of favoritism or antagonism as to make fair
judgment impossible.” Liteky v. United States, 114 S.Ct. 1147,
1157 (1994). This is particularly so where there were no conflicts
in the evidence to resolve and no need for a hearing. Cf. Lincecum
at 1279, 1280.
48
After West’s appeal was lodged in this Court, West, through
counsel, moved in this Court “to Enlarge the Record” to include an
affidavit of counsel, likewise executed by counsel after this
appeal was filed, concerning matters allegedly known to counsel
well prior to the filing of the state’s motion for summary judgment
below. The state has opposed the motion. We deny it. None of
what is sought to be included was filed or tendered to the district
court below (or to the state courts) and no good reason appears why
it was not. All other pending undisposed of motions are denied.
All stays of execution heretofore entered herein are vacated.
54
West v. Johnson
Court: Court of Appeals for the Fifth Circuit
Date filed: 1996-08-21
Citations: 92 F.3d 1385
Copy CitationsCombined Opinion