UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 92-7655
Summary Calendar
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FREDDIE LEE WEBB,
Appellant,
VERSUS
JAMES A. COLLINS, Director,
Texas Department of Criminal Justice,
Institutional Division,
Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
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(August 31, 1993)
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:
Freddie Lee Webb, a Texas prisoner under a sentence of death,
appeals from the district court's denial of his petition for a writ
of habeas corpus. The district court granted a certificate of
probable cause and left its previously granted stay of execution in
effect pending appeal. Of the several issues argued to the
district court, Webb only raises one for our review: whether the
jury instructions given pursuant to article 37.071(2) of the Texas
Code of Criminal Procedure violated his rights under the Eighth and
Fourteenth Amendments. For the reasons stated below, we affirm the
district court's decision.
BACKGROUND
On December 8, 1985, Webb and an accomplice seized Leo Cantu
and his wife, Elizabeth, after she closed the Shrimp Ahoy
Restaurant in Corpus Christi, Texas, where she was the night
manager. Webb and his accomplice returned the Cantus to the
restaurant for purposes of opening the safe and stealing its
contents. Once at the restaurant, Webb instructed his accomplice
to remain with Leo Cantu in the car while he took Elizabeth Cantu
into the restaurant, forced her to open the safe, bound her, and
took the money. Webb and his accomplice then fled in the Cantus'
car with Leo Cantu as a prisoner. Although Elizabeth Cantu freed
herself and alerted the authorities, her husband was murdered in a
remote area of Corpus Christi. Several months later, Webb was
arrested with the murder weapon while fleeing the authorities from
the scene of another armed robbery.
In October 1986, a jury found Webb guilty for the capital
offense of murder of Leo Cantu in the course of committing and
attempting to commit kidnapping. In a separate proceeding, the
jury answered affirmatively the special questions submitted to it
pursuant to article 37.071(2) of the Texas Code of Criminal
Procedure, and Webb was sentenced to death. The Court of Criminal
Appeals affirmed the conviction and sentence. Webb v. State, 760
S.W.2d 263 (Tex. Crim. App. 1988) (en banc), cert. denied, 491 U.S.
910 (1989). The Supreme Court denied Webb's petition for
certiorari on June 19, 1989, rendering his conviction final. Webb
v. Texas, 491 U.S. 910 (1989).
Webb next filed an application for a writ of habeas corpus in
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the state trial court. The trial court entered findings of fact
and conclusions of law, but made no recommendation for disposition
of the case. The Court of Criminal Appeals found that the trial
court's findings and conclusions were supported by the record and
denied the relief.
Webb then filed a second application for a state writ of
habeas corpus, alleging that the jury in his case had been unable
to consider various types of mitigating evidence in determining his
punishment. The Court of Criminal Appeals, noting that none of the
evidence had been introduced at trial, denied relief. Finally,
Webb initiated the present habeas proceedings in federal district
court.
DISCUSSION
Webb argues that his rights under the Eighth and Fourteenth
Amendments were violated by a statutory prohibition against
informing jurors of the effect of the failure to agree on a
punishment phase issue. The Texas sentencing statute provides that
if the jury unanimously answers "yes" to each of the punishment
questions submitted, the defendant will be sentenced to death, but
if ten or more jurors answer one or more of the issues "no," or if
the jury is unable to agree on an answer to any issue, the
defendant will be sentenced to life imprisonment. Texas Crim.
Proc. Code Ann. art. 37.071(2) (West Supp. 1993). The statute,
however, prohibits the court or the attorneys for the state or the
defendant from informing the jury of the effect of the failure to
agree on an issue. Id. Webb argues that without knowledge of the
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effect of the failure to agree on an issue, a juror might be misled
into believing that he or she could not vote "no" without a
consensus of ten jurors and would feel compelled to vote "yes."
Webb's claim is based on the principles announced in Andres v.
United States, 333 U.S. 740 (1948) and Mills v. Maryland, 486 U.S.
367 (1988). Webb asks us, however, to create a "new rule" within
the meaning of Teague v. Lane, 489 U.S. 288 (1989). See Nethery v.
Collins, 993 F.2d 1154, 1162 (5th Cir. 1993). Under Teague, new
rules of constitutional criminal procedure will not be announced on
federal habeas review unless an exception applies. Teague, 489
U.S. at 316. "[A] case announces a new rule when it breaks new
ground or imposes a new obligation on the States or the Federal
Government. . . . To put it differently, a case announces a new
rule if the result was not dictated by precedent existing at the
time the defendant's conviction became final." Id. at 301; Penry
v. Lynaugh, 492 U.S. 302, 314 (1989) (quoting Teague). Although
Mills and Andres were decided prior to Webb's final conviction,
Webb's reliance on the principles announced in those cases is not
the same as saying his claim is dictated by precedent. See Wiley
v. Puckett, 969 F.2d 86, 96 (5th Cir. 1992).
Andres involved two federal statutes: one statute requiring
that a person found guilty of murder in the first degree be put to
death and another statute allowing the jury to qualify their
verdict with the words "without capital punishment," thereby
sentencing the defendant to life imprisonment. Andres, 333 U.S. at
746 & n.7. The Court first concluded that the statutes
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interpreted together required that the jury's decision be unanimous
as to both guilt and whether the punishment of death should be
imposed. Id. at 749. The district court instructed the jury,
however, that its decision to return a qualified verdict of murder
must be unanimous. Id. at 751. The Court held that the jury
instruction did not convey the correct interpretation of the
statutes. The Court explained that a reasonable juror might
conclude that if they all could not agree, the verdict of guilt
must stand unqualified. Id. at 752.
In Mills, the jury instructions under a Maryland statute
required the jury to answer "yes" to questions regarding mitigating
circumstances only if unanimous and otherwise to answer "no."
Mills, 486 U.S. at 378. If all the answers were marked "no," a
death sentence was imposed. Id. at 389. Nothing in the
instructions suggested that the jury could leave an answer blank
and proceed to the next stage of deliberation. Id. at 378. If the
jury did determine that there was at least one mitigating
circumstance, another section of the verdict form allowed the
jurors to consider only the mitigating circumstances marked "yes."
Id. at 380. The Court held that the jurors may have been led to
believe that they were precluded from considering mitigating
evidence without unanimity, even though precedent required that a
sentencer be permitted to consider all mitigating evidence. Id. at
384.
The Supreme Court's decisions in Andres and Mills may inform
the analysis of his claim but they do not dictate the
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constitutional rule urged by Webb. Both Andres and Mills involve
statutory schemes different from the Texas sentencing statute and
different legal standards. Thus, because Webb does not suggest
that his claim comes within an exception, Teague forecloses our
consideration of Webb's claim, and we therefore affirm the district
court's decision and lift the stay of execution granted by the
district court.
AFFIRMED, STAY LIFTED.
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