IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50485
JERRY McFADDEN
Petitioner-Appellant
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
Respondent-Appellee
Appeal from the United States District Court
For the Western District of Texas
January 29, 1999
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Jerry McFadden appeals the district court’s denial of his
petition for federal habeas. McFadden attacks his conviction of
capital murder and sentence of death by a Texas jury, contending
that the state trial judge applied an incorrect constitutional
standard in excluding two prospective jurors in the course of jury
selection without insisting on a focus upon the juror’s ability to
answer the sentencing questions. We are not persuaded the
exclusions were error, and we affirm the denial of the petition.
I
On July 14, 1987, a jury in Bell County, Texas, convicted
McFadden of murdering Suzanne Harrison in the course of an
aggravated sexual assault. On affirmative answers to the requisite
questions asked the jury in the sentencing phase, the state
district judge sentenced McFadden to death. The Texas Court of
Criminal Appeals affirmed the conviction and sentence in an
unpublished opinion on May 26, 1993, and denied rehearing on
November 3, 1993. McFadden filed his initial application for
habeas relief in the state trial court, which was overruled by
operation of law. The Texas Court of Criminal Appeals denied
relief on January 22, 1997, and a week later McFadden filed a
second application for habeas relief, which the Texas appellate
court dismissed for abuse of the writ on March 12, 1997. On April
11, 1997, McFadden petitioned the federal district court for habeas
relief, which was denied in 1998. The district court granted a
certificate of appealability and denied motions to amend its
judgment on June 15, 1998.
II
This appeal is controlled by the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996. AEDPA’s
compelled deference to decisions of state courts is now familiar.
Under 28 U.S.C. § 2254(d), a writ of habeas corpus shall not be
granted with respect to a claim that was adjudicated on the merits
in state court proceedings unless the adjudication of the claim:
2
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
As we will explain, McFadden has failed to demonstrate that
the determination by the Texas Courts of his claims of error,
sustaining the state’s challenges for cause to two members of the
venire, Segura and Locklear, were unreasonable in light of the
evidence or contrary to clearly established federal law as
determined by the Supreme Court of the United States.
III
For some time under the Witherspoon standard,1 we were
compelled to engage in a nigh de novo review of the jury selection
process in capital cases. The exercise was difficult for our court
and insulting to the state systems. Attempting a wholly fresh
review from so distant a point of the certainty of view expressed
in a voir dire examination of prospective jurors ignored the
realities of trial. It looked aside from the limited capture by a
transcript of courtroom exchanges, bereft as they are, of
inflection, pause, facial expression, and body language. What was
clear to all at trial can become clear to none with only the
transcript to read. This opaqueness is inherent in the
difficulties of probing for the views of a lay person about death
1
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770 (1968).
3
and crime in the unfamiliar and tense environment of a courtroom in
a capital case. Wainwright v. Witt, 469 U.S 412, 424-26 (1985),
confronted this difficulty:
This is because determinations of juror bias cannot be
reduced to question-and-answer sessions which obtain
results in the manner of a catechism. What common sense
should have realized experience has proved: many
veniremen simply cannot be asked enough questions to
reach the point where their bias has been made
“unmistakably clear”; these veniremen may not know how
they will react when faced with imposing the death
sentence, or may be unable to articulate, or may wish to
hide their true feelings. Despite this lack of clarity
in the printed record, however, there will be situations
where the trial judge is left with the definite
impression that a prospective juror would be unable to
faithfully and impartially apply the law.... [T]his is
why deference must be paid to the trial judge who sees
and hears the juror.
Justice Rehnquist’s opinion for the court also recognized that
a trial judge cannot be expected to dictate findings of fact and
conclusions of law with each ruling. Hence, under Witt the
sustaining of a challenge for cause for bias was held to be an
implicit finding of bias enjoying the statutory presumption of
correctness. See at 430. The laconic “sustained” or “granted”
carries that force.
McFadden urges that despite Witt, the decisions by the state
trial judge to sustain the state’s challenges for cause to Locklear
and Segura, prospective jurors, are not due deference. No
deference due because, McFadden contends, the voir dire did not
specifically exclude the possibility that the excluded prospects
could have answered the questions required by Texas in the
4
sentencing phase despite their expressed views regarding the death
penalty. We turn first to the relevant portions of the voir dire.
IV
Locklear quickly responded: To the prosecutor’s questions
about the death penalty, “I don’t believe in it.” The questioning
continued:
Q: That’s fine, if you don’t then I need to ask
you a few more questions, but let me just be
sure I understand and know where you stand on
it. If I’m understanding correctly, you
simply are opposed to the death penalty, is
that correct?
A: Yes sir.
Q: And that is regardless of how serious or
vicious the facts of the case might prove to
be, under no set of circumstances could you
sit on a jury and make decisions that would
result in a death verdict, is that correct?
A: Yes sir.
Q: Can I assume that your opposition to the death
penalty is based on feelings you have and
scruples you have that would just keep you
from ever voting death in a case regardless of
how vicious the fact situation was?
A: No sir, it’s just that the Lord says he will
take vengeance in his own hands.
Q: So it’s a religious feeling that you have, and
it’s your religious belief that keeps you, or
has you opposed to the death penalty, is that
right?
A: Yes sir.
Q: And I presume that nothing would change your
mind in that regard, is that correct?
A: Right.
5
Q: And that under no circumstances, because of
your religious belief against the death
penalty, that under no circumstances, under no
procedure would you ever be a part of a jury
that would make decisions that would result in
a death sentence, is that correct? (emphasis
supplied)
A: Yes sir.
8 Sr 1702-03. The state then challenged Locklear for cause. After
objections concerning the procedure for conducting the voir dire in
the case, McFadden’s counsel asked Locklear several questions,
including the following:
Q: Are you telling us that if that judge ordered
you in his instructions to the jury to
consider fairly and unbiased (sic) the penalty
range for an allegation of criminal misconduct
that included the death penalty that you would
ignore that instruction?
A: Yes, I would.
V
Segura’s opening response was:
A: I think if he committed it, for sure, I think
he should suffer in jail and be punished for
it instead of just terminating his life.
The questioning continued:
Q: Are you a person who because of strong
feelings that you have, religious feelings
perhaps, conscientious scruples, are you a
person who is opposed to the death penalty?
A: In a way. It just depends on what they did.
Like if he killed one person I think he should
suffer for it, but now if he killed three,
four, or five people, then he should die; but
for one person I don’t think he should die.
6
Q: Let me be sure that I understand you
correctly. He is charged with taking the life
one (sic) person, Suzanne Denise Harrison. Do
I understand you correctly to say that you
would be conscientiously opposed to the death
penalty in any case where the defendant only
killed one person?
A: Yes.
* * *
Q: ...[A]re you saying that regardless of how
aggravated the facts and circumstances of the
case, that if we convinced you that a
defendant committed capital murder, but only
killed one human being, as is charged in this
indictment, regardless of how aggravated the
facts and the circumstances, that you would
never vote the death penalty?
A: Right.
* * *
Q: And these feelings that you have, these
conscientious feelings that you have against
the death penalty in that kind of situation
[where the defendant killed only one person],
is it fair to say that you honestly could not
set those feelings aside and be a part of a
jury in a case in which the result of that
process would be the death penalty for a
person charged and convicted of killing one
person, is that correct? (emphasis supplied)
A: I believe that’s correct.
Q: So that in a situation where we convinced you
beyond a reasonable doubt that the defendant
was guilty of capital murder of one person,
you would automatically vote against the death
penalty, is that correct?
A: Yes.
Q: Regardless of the facts and circumstances of
the case?
7
A: Yes.
McFadden’s counsel did not examine Segura, and the
prosecution’s challenge for cause was sustained.
VI
Witt set the applicable constitutional rule: “[T]he quest is
for jurors who will conscientiously find the facts and apply the
law. That is what an ‘impartial’ jury consists of ....” Witt, 469
U.S. at 423. “[T]he proper standard for determining when a
prospective juror may be excluded for cause because of his or her
views on capital punishment ... is whether the juror’s views would
‘prevent or substantially impair the performance of his duties as
a juror in accordance with his instructions and his oath.’” Id.
at 424.
McFadden contends that the state trial judge applied an
incorrect standard in sustaining the prosecutor’s challenges for
cause of both Segura and Locklear. Of course, the trial judge did
not recite the standard he was employing, so the contention is that
in the absence of a recitation of the measure employed, we should
presume that the trial judge followed then applicable state law.
The argument continues that Texas law then set the measure as
whether the juror could consider the full range of punishment;
jurors could be excluded even though they could answer the
sentencing questions.
This contention is without merit. First, as the district
court pointed out in its thoughtful memorandum, we have rejected
8
the suggestion that Witt requires that veniremen be explicitly
asked if they could answer the sentencing questions despite their
other reservations. See Fuller v. Johnson, 114 F.3d 491, 500 (5th
Cir.), cert. denied, 118 S.Ct. 399 (1997). In any event, it was
reasonable for the trial judge to conclude that Locklear and Segura
would not be able to give an affirmative answer to the sentencing
questions.
The voir dire developed whether the jurors could be part of a
jury in which the result of that process would be the death
penalty. There is no uncertainty about the views of Segura and
Locklear. Both made plain that they were unable to apply the law
to the facts free of bias, a bias rooted in their opposition to the
death penalty, and that neither could participate in a process
producing a death sentence.
Witt eschewed any insistence that a state trial judge dictate
findings of fact or conclusions of law. It held that the simple
grant of a challenge for cause is an implied finding of bias, as we
have explained. But McFadden urges that the finding is not due
deference because Texas law did not then focus upon whether the
views of a prospective juror would allow an answer to the death
questions in the sentencing phase.
Putting aside that McFadden’s contention insists on legal
explanations by the trial judge that are not required, we are
pointed to no denial of McFadden’s constitutional rights. That
Texas courts may have after this trial expressed their preference
9
for this emphasis in voir dire upon the prospect’s ability to
answer the death questions does not suggest that at the time of
trial it employed a standard that contravened Witt.
In short, McFadden was free to turn the focus of the inquiry
to the death questions, but he points to no rule of constitutional
magnitude that compelled the prosecutor to do so. His effort to
attach consequences to the absence of explicit findings by the
trial judge -- to presume a standard he says was contrary to
Supreme Court authority (Witt) and to trigger de novo review -- is
in the teeth of Witt’s explicit freeing of trial judges from such
an impractical burden in presiding over jury selection in capital
cases. And the confusing path of McFadden’s argument, even if
located and followed to its destination of de novo review, is a
fruitless journey. It does not face the reality that even under a
de novo review the absence of ambiguity permits no conclusion but
that the requirements of Witt were met.
We expand on McFadden’s contentions only to expose their
emptiness. When all is said, McFadden cannot escape by a door
Congress has closed. Congress has narrowed our authority in habeas
review of state convictions to asking if the adjudication by the
state courts was an unreasonable application of clearly established
federal law, as determined by the Supreme Court of the United
States. We are persuaded that the decisions of the state trial
judge to exclude the two prospective jurors were based on a
reasonable determination of the facts in light of the evidence
10
presented in the state court proceedings, and we are pointed to no
violation of clearly established federal law as determined by the
Supreme Court.
McFadden’s federal petition for a writ of habeas corpus is
without merit.
We affirm.
11