IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20445
EUGENE ALVIN BROXTON,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
January 2, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:
This is an application for certificate of appealability from
a judgment of a federal district court refusing to set aside a
state conviction of capital murder.
I
Eugene Alvin Broxton in April 1992 was convicted by a Texas
jury in Harris County, Texas, of capital murder and shortly
thereafter sentenced to death. The Texas Court of Criminal Appeals
confirmed the conviction and sentence. Broxton v. State, 909
S.W.2d 912 (Tex. Crim. App. 1995). Broxton did not file a petition
for writ of certiorari in the United States Supreme Court.
In 1997, Broxton filed an application for state writ of habeas
corpus, and, after an evidentiary hearing, the state habeas trial
court filed findings of fact and conclusions of law together with
a recommendation that relief be denied. In October, 1999, the
Texas Court of Criminal Appeals adopted those findings and
conclusions and denied relief. Ex Parte Broxton, Application No.
42,781-01 (Texas Crim. App. October 27, 1999).
In November 1999, the United States District Court for the
Southern District of Texas, granted Broxton’s request for
appointment of counsel pursuant to 21 U.S.C. § 848(q), and in March
of 2000 Broxton filed his petition for writ of habeas corpus in
that court, supplementing that petition in June. Broxton raised
four claims in his petition before the federal trial court: (1)
trial counsel rendered ineffective assistance by failing to
preserve error when the trial court limited the cross-examination
of witness Waylon Dockens; (2) appellate counsel rendered
ineffective assistance by (a) failing to raise on appeal alleged
trial court error in refusing to allow a lesser-included offense
instruction and (b) failing to raise the allegedly improper denial
of a challenge for cause against prospective juror James Smith; (3)
his rights were violated when the trial court failed to instruct
the jurors on the definition of “life sentence;” and (4) the Texas
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death penalty scheme is administered in violation of the Eighth
Amendment. By his supplement to his petition he asserted that his
sentencing proceedings were tainted by the State’s expert whose
opinion considered race as a relevant circumstance for the jury’s
sentencing decision.
The federal district court sustained the claim that
constitutional error tainted the punishment phase of the trial and
vacated the death sentence. At the same time, it rejected all
claims aimed at the guilt finding, declining to upset the verdict
and judgment finding Broxton guilty of capital murder. The
district court ordered the State of Texas to release Broxton from
custody unless within 180 days the State either imposed a sentence
of life imprisonment or conducted a new sentencing hearing. It
further provided that the 180-day time period did not commence
until “the conclusion of any appeal in the portion of this order
that denies federal habeas relief.” Finally, the district court
refused to grant Broxton a certificate of appealability.
II
Broxton seeks to appeal the denial of relief from the finding
of guilt and petitions this court for a certificate of
appealability. The set-aside of the death sentence is not before
us. Broxton argues that his trial counsel rendered ineffective
assistance by not preserving an asserted error of the trial court
in limiting the cross-examination of witness Waylon Dockens and in
not raising on appeal the refusal of the state trial judge to
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instruct on the lesser included offense of felony murder.
We are persuaded that these claims lack sufficient merit to
warrant a certificate of appealability, and that application is
denied. We do so for essentially the same reasons recited by the
United States District Court in its order filed March 28, 2001.
III
As the federal district court described in its order, Waylon
and Sheila Dockens were guests at the Magnolia Hotel in 1991.
Broxton pushed his way into their hotel room and proceeded to rob
them, using a .44 magnum pistol belonging to Waylon. He struck
both with the pistol and then shot them. Waylon was shot in the
face and Sheila died of a gunshot wound that entered her upper left
arm, striking vital organs before exiting her body.
-1-
The first claim, the limitation of the cross-examination of
Waylon Dockens, is meritless. The state trial judge allowed
defense counsel to elicit from Waylon at trial that he was thinking
of filing suit against the hotel, but refused to allow counsel to
pursue the matter further, concluding that it was not relevant.
The state habeas court and the federal district court found that
the ruling was not prejudicial, even if error, because the jury
plainly had before it an even larger interest of Waylon Dockens in
the outcome of the prosecution – he was beaten and shot by Broxton
and his wife was slain by him. Not allowing the defense to further
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develop facts surrounding a possible lawsuit against the hotel did
not constitutionally curtail the cross-examination of the witness.
-2-
The second contention, attacking the effectiveness of his
appellate counsel in not raising on appeal the absence of an
instruction on a lesser included offense, is equally meritless.
Given the circumstances of this crime, the lesser included offense
of felony murder was not in the case, as explained by the courts
below. It follows that the first prong of Strickland was not met.
Strickland v. Washington, 466 U.S. 697 (1984).
IV
The application for certificate of appealability is denied.
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