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Lawrence Lee BUXTON

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Grocery store robbery
Number of victims: 1
Date of murder: September 19, 1980
Date of birth: September 16, 1952
Victim profile: Joel Slotnik, 40 (customer)
Method of murder: Shooting
Location: Harris County, Texas, USA
Status: Executed by lethal injection in Texas on February 26, 1991
 
 
 
 
 
 

 

Date of Execution:
February 26, 1991
Offender:
Lawrence Lee Buxton #743
Last Statement:
Iím ready, Warden.



Lawrence Lee Buxton

Age: 38 (28)
Executed: Feb. 26, 1991
Education level: 10th grade

Buxton and two masked accomplices robbed a west Houston supermarket on Sept. 19, 1980. When Joel Slotnik and his 5-year-old son entered the store, they were ordered to lie on the floor. The child started screaming and Buxton told Slotnik to "shut that kid up." On his way out, he shot Slotnik, 40, in the neck.

 
 

Texas Executes Inmate for Supermarket Slaying

The New York Times

February 26, 1991

A man convicted of killing a supermarket customer during a robbery in 1980 was put to death by lethal injection early today hours after the Supreme Court refused to halt the execution.

The inmate, Lawrence Lee Buxton, 38 years old, became the 144th person to be executed in the United States since the Supreme Court allowed the death penalty to resume in 1976. Texas has conducted 37 executions since then, the most of any state.

The United States Court of Appeals for the Fifth Circuit refused Monday to halt the execution, sending the case tothe Supreme Court, which denied the petition late Monday.

The Justices denied two applications for stays and two petitions for review, said a court spokeswoman, Kathy Arberg. The ruling came less than two hours before the execution.

Justice Thurgood Marshall, who opposes the death penalty under any circumstances, dissented on all the rulings, while Justices Harry A. Blackmun and John Paul Stevens said they would have granted one application for a stay, Ms. Arberg said.

Mr. Buxton was convicted of shooting Joel Slotnik to death during a robbery at a suburban Houston supermarket after Mr. Slotnik's 5-year-old son refused to follow the orders of the robbers. Mr. Slotnik had stopped by the store after Yom Kippur services to buy some bread and milk.

The Slotnik family moved to Ohio shortly after the slaying.

Mr. Buxton's lawyers argued in their appeals that jurors had not been given mitigating evidence, specifically of his impoverished youth in the care of a drunken father.

The lawyers said the information could have persuaded jurors to impose a life sentence rather than the death penalty.

Bob Walt, the state assistant attorney general, said, "Neither justice nor jurisprudence would be served by granting a stay of execution in this case."

Mr. Buxton was charged with capital murder while serving 35 years in prison for six robberies of savings and loan offices after investigators discovered a similarity between those robberies and the supermarket holdup.

Mr. Slotnik's wife and an older son identified Mr. Buxton as the man who fired the shot. Mr. Buxton, a former meat cutter and Federal meat inspector, had removed a ski mask as he was leaving the store.

Mr. Buxton, a 10th-grade dropout, was described by prosecutors as a ringleader of a gang recruited from the ghettos of Houston.

 
 

879 F.2d 140

Lawrence Lee Buxton, Petitioner-Appellant,
v.
James A. Lynaugh, Director, Texas Department of Corrections, Respondent-Appellee.

No. 88-2156

Federal Circuits, 5th Cir.

August 17, 1989

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN, KING and HIGGINBOTHAM, Circuit Judges.

KING, Circuit Judge:

After the district court denied his petition for habeas corpus and his application for a certificate of probable cause to appeal, petitioner Lawrence Lee Buxton applied to this court for a certificate of probable cause. We granted the certificate and we now address the merits of Buxton's petition. Because we find no violation of the Constitution or laws or treaties of the United States, 28 U.S.C. Sec . 2241(c)(3) (1971), we affirm the judgment of the district court denying Buxton's application for habeas relief.

I.

A Texas state district court convicted Buxton of the capital offense of murder in the course of a robbery and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction. Buxton v. State, 699 S.W.2d 212 (Tex.Crim.App.1985), cert. denied, 476 U.S. 1189 , 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986). The trial court set Buxton's execution date for September 30, 1986. Buxton filed a petition for a writ of habeas corpus pursuant to Tex.Code Crim. Proc. Ann. Art. 11.07 in the court which had convicted and sentenced him. That court entered factfindings and conclusions based on affidavits filed with the habeas petition and the state's brief in opposition and on the court record without holding a live evidentiary hearing, and it denied the requested relief. On appeal, the Texas Court of Criminal Appeals denied relief.

Buxton immediately filed an application for a writ of habeas corpus in the United States District Court for the Southern District of Texas. He simultaneously filed an application for a stay of execution which was unopposed by the state and granted by the district court on September 29, 1986. Subsequently, the state moved for summary judgment on the habeas petition. The district court granted the state's summary judgment motion and vacated the stay it had previously granted, entering the order on December 18, 1987. On February 24, 1988, the district court denied Buxton's motion for a certificate of probable cause to appeal. We granted a certificate of probable cause and heard oral argument on the petition for writ of habeas corpus. Buxton also requests a stay of execution, although no execution date has been set.

In his petition before this court, Buxton has focused on two claims. The first asserts both that his counsel provided him with ineffective assistance by failing to move for a new trial after sentencing because of juror misconduct and that the district court applied the wrong standard in reviewing the state court's disposition of this question. The second argument is somewhat amorphous; it attacks the Texas capital murder sentencing scheme as unconstitutional on the ground that the scheme allows intentional discrimination against blacks whose victims were white, and at the same time attacks the scheme's constitutionality on the ground that it fails to allow for the consideration of mitigating evidence. In this petition, Buxton has not addressed a number of issues he raised before the district court, and we therefore do not consider them.

II. INEFFECTIVE ASSISTANCE

Buxton contends that his trial counsel failed to provide him with effective assistance by failing to make a motion for new trial on the ground of juror misconduct even though counsel was aware of the alleged misconduct.1 Under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in order to show that counsel's assistance was so ineffective as to require that his conviction or sentence be overturned, the petitioner must show both that counsel's performance did not amount to "reasonably effective assistance," and that the "deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064.

The first prong of the standard inquires into whether counsel's failures were so egregious as to amount to the denial of counsel guaranteed the defendant by the sixth amendment. The second criterion evaluates whether the defendant has shown "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068 (citations omitted); Earvin v. Lynaugh, 860 F.2d 623, 625-27 (5th Cir.1988). Strickland allows the habeas court to look at either prong first; if either one is found dispositive, it is not necessary to address the other. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. See also Murray v. Maggio, 736 F.2d 279, 282 (5th Cir.1984).

Buxton contends that his trial counsel's failure to move for a new trial meets the requirements of both of these prongs. He argues that counsel knew of the juror misconduct and yet failed to act, thereby falling below the standard of reasonably effective assistance, and that action would have resulted in a new trial. Buxton asserts secondarily that the district court applied the incorrect standard of review to the state court's factfindings, given that the findings were based on the affidavits submitted with the pleadings and the paper record. We deal with the second of these contentions first.

A. The Presumption of Correctness

With his original state court habeas petition, Buxton filed the affidavit of Sybil Carr-Fitzgerald, one of his court-appointed lawyers at trial. Carr-Fitzgerald averred that she inadvertently overheard the jury's conversation during its deliberations. She stated she "overheard a juror loudly state that he had conceded (paraphrase) his vote during the guilt phase of the trial when he did not feel the defendant was guilty contingent on the agreement by the other jurors that the death penalty would not be imposed by their vote." In her affidavit, Carr-Fitzgerald went on to state that every effort was made to obtain an affidavit from the juror involved and that questionnaires were sent to all members of the jury panel, but the attempts to substantiate further the claim of juror misconduct failed.

Attached to its response to the petitioner's original state court habeas petition, the state filed the affidavit of Buxton's other trial counsel, John Emmett Crow. Crow's version of the episode of alleged juror misconduct was that Carr-Fitzgerald had overheard the jury deliberations and at the time had reported the content of what she overheard: " 'Hell, I didn't even believe he was guilty and now you want me to kill him?' " Crow also asserted that his efforts to obtain an affidavit from the juror who had made the statement were fruitless.

In its findings of fact and conclusions of law on the habeas petition, the state trial court--the same Texas state district court that convicted Buxton--found expressly that the facts asserted in Crow's affidavit were true and served to demonstrate that petitioner received reasonably effective assistance of counsel. It made no explicit finding with respect to the Carr-Fitzgerald affidavit, although it implicitly rejected those portions of it which are inconsistent with Crow's affidavit.2

The federal district court, in its findings, reviewed the state court's factfindings with a presumption of correctness, citing 28 U.S.C. Sec . 2254(d) (1977) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), and held them to be correct. The district court went on to deny Buxton's ineffective assistance claim, holding that the facts alleged in Crow's affidavit would not have supported a motion for new trial, even if one had been made on this ground.3

Buxton argues that the district court was incorrect in its deferential review--i.e., with a presumption of correctness--of the state court's factfinding, given that there had been no live hearing in state court. He cites Smith v. Estelle, 711 F.2d 677 (5th Cir.1983), cert. denied, 466 U.S. 906 , 104 S.Ct. 1685, 80 L.Ed.2d 159 (1984), to support his position that when no live hearing is held in the state court, and the motion is instead determined on the basis of affidavits, a presumption of correctness will not arise under 28 U.S.C. Sec . 2254 unless--as in Smith--the affidavits are "uncontradicted in their particulars." 711 F.2d at 682. Buxton argues that because in this case the affidavits were contradictory, the absence of a live evidentiary hearing in the state court should force the district court to review the findings more critically.

Buxton's argument must be analyzed within the framework of the federal habeas statute.4 The general requirements set forth in the statute--that a state court after a hearing made a determination in a proceeding to which the petitioner and the state were parties, and the determination is evidenced by a written finding--are clearly met here. However, the statute also sets forth eight circumstances under which a state court's factfinding which otherwise comports with the statute will not enjoy a presumption of correctness. Among these the pertinent exception is "(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing." 28 U.S.C. Sec . 2254(d)(2). That is, if the federal district court determines that the state court's procedure did not provide for a "full and fair hearing," the district court would be forced to hold an evidentiary hearing of its own.5

The state court's procedure we are scrutinizing here was, as we noted above, conducted by the court which had originally convicted and sentenced Buxton. That court entered written factfindings on the habeas petition, without holding a live evidentiary hearing. The court stated that it had "considered the application for writ of habeas corpus, the additional pleadings filed herein and official court records in the ... case." After that consideration, the court concluded that there was no need for a live hearing, and it entered its findings. In factfinding number 9 the court stated: "The Court finds that the facts asserted in Mr. Crow's affidavit are true...."

Thus, the state court clearly made a credibility choice between the Crow and the Carr-Fitzgerald affidavits, at least to the extent that those affidavits were contradictory. Therefore, the issue presented here is whether the state trial court provided Buxton with a hearing to determine the validity of his ineffective assistance of counsel claim, based on his counsel's failure to move for a new trial because of jury misconduct, which was adequate to satisfy the requirements of section 2254(d)(2). We conclude that the state court factfinding procedure here was adequate under the circumstances to provide for a full and fair hearing within the meaning of section 2254(d)(2).

We begin our consideration of this question with an examination of Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). In Sumner, Mata appealed his state court conviction to the California Court of Appeal, alleging for the first time on appeal that the pretrial photographic identification used by the state police was violative of his due process right.

The state court of appeal rejected his contention after a review of the record, stating in its findings with respect to the identification procedures that there had been no showing of undue influence on the witnesses by the police, that the witnesses had had adequate opportunity to view the crime, and that their descriptions had been accurate. Mata subsequently filed a petition for a writ of habeas corpus in the state court, resulting in a denial of relief by the trial court, the court of appeal, and the California Supreme Court. Mata then turned to the federal district court for habeas relief.

The district court denied the writ, and Mata appealed. The Ninth Circuit reversed. Without mentioning section 2254(d), the circuit court found that there had been considerable pressure exerted on the witnesses by prison officials, that the witnesses' observation of the crime was such that there was a serious likelihood of misidentification, and that the witnesses' descriptions had not been adequately detailed. 449 U.S. at 541-43, 101 S.Ct. at 766-67.

The Supreme Court vacated the Ninth Circuit's opinion. The Court held that the Ninth Circuit's failure to indicate which of the circumstances enumerated in section 2254(d) was present that allowed it to disregard the presumption of correctness ordinarily granted state court factfindings was fatal. It remanded the case for consideration of section 2254(d).

The Supreme Court makes clear in its opinion that although the factfinding at issue was made by an appellate court, on the basis of the record, that court "clearly held a 'hearing' within the meaning of Sec. 2254(d)." 449 U.S. at 546, 101 S.Ct. at 768. It goes on to say:

Section 2254(d) applies to cases in which a state court of competent jurisdiction has made "a determination after a hearing on the merits of a factual issue." ... [It does not] specify any procedural requirements that must be satisfied for there to be a "hearing on the merits of a factual issue," other than that the habeas applicant and the State or its agent be parties to the state proceeding and that the state-court determination be evidenced by "a written finding, written opinion, or other reliable and adequate written indicia."

Id. at 546-47, 101 S.Ct. at 768-69 (quoting 28 U.S.C. Sec . 2254(d)). Thus, Sumner teaches that "hearing" as it is used in section 2254(d) does not necessarily require an evidentiary hearing and that factfinding based on a record can in some circumstances be adequate.

In Smith v. Estelle, 711 F.2d 677 (5th Cir.1983), cert. denied, 466 U.S. 906 , 104 S.Ct. 1685, 80 L.Ed.2d 159 (1984), we considered a similar contention that a hearing by affidavit was not adequate under section 2254(d). In Smith, the petitioner filed an affidavit with his state court habeas petition alleging mostly "broad and general" facts indicating that his attorney had failed to provide him with effective assistance. Id. at 682. Smith's attorney also filed an affidavit setting forth facts, "for the most part ... uncontradicted in their particulars by Smith's affidavit," indicating the actions he had taken in representing Smith. Id. The state habeas court entered written factfindings, clearly making credibility determinations in favor of Smith's attorney and adverse to Smith. Id. at 681.

We deferred to the state court's factfindings, holding that "the term 'hearing' is not necessarily equal to the term 'evidentiary hearing.' " Id. (quoting Camarillo v. Estelle, 670 F.2d 473, 475 (5th Cir.1981)). We pointed out that the requirements enumerated in Sumner for a hearing--that the habeas applicant and the state be parties to the proceeding and that a written finding be entered--were satisfied, and we rejected Smith's contention that the required hearing must necessarily include an opportunity to present live testimony or be subject to cross examination.6

In Evans v. McCotter, 805 F.2d 1210 (5th Cir.1986), we reaffirmed the concept that a hearing by affidavit may be adequate under section 2254(d)(2). The fact issue asserted in Evans was the insanity of the petitioner, and the affidavits submitted by the petitioner and the state directly contradicted one another. The affidavit submitted by the petitioner was sworn to by his sister and simply asserted her opinion that the petitioner was "insane and incompetent." In its response, the state filed four more detailed affidavits of personnel of the Texas Department of Corrections, each of which asserted that petitioner was not insane.

Additionally, the state submitted a psychological evaluation of the petitioner which concluded that he was sane. We held first that the affidavit submitted by the petitioner was too conclusory and thus not adequate to raise a fact question as to his sanity. Id. at 1214. As an alternate ground for our decision, we held that the factfinding procedure--a hearing by affidavit--had been adequate and "there [was] no necessity or warrant for an evidentiary hearing in the federal district court." We reasoned, citing Sumner and Smith v. Estelle, that the state court's procedure for determining the petitioner's sanity was adequate under the circumstances and section 2254(d). Id.

Uresti v. Lynaugh, 821 F.2d 1099 (5th Cir.1987), also considers the question of when factfindings are the product of a full and fair hearing and therefore entitled to a presumption of correctness under section 2254(d). In Uresti, the petitioner pleaded facts tending to show that he received ineffective assistance of counsel on his guilty plea. In response, the state filed an affidavit of Uresti's trial counsel concerning the facts of his representation of Uresti. The state court entered findings of fact based in part on this affidavit, rejecting many of petitioner's contentions. Again citing Sumner and Smith v. Estelle, we held that the "state court's hearing by affidavit was sufficient to invoke the presumption [of correctness]." Id. at 1101.

We recognize that there are cases which hold that a state factfinding was inadequate to invoke the presumption of correctness in certain situations when that factfinding was based on affidavits alone. For example, in Campbell v. Minnesota, the Eighth Circuit held that the district court had erred in relying on affidavits submitted to the state appellate court to resolve a factual dispute, 487 F.2d 1, 4 (8th Cir.1973). In his state criminal proceedings, Campbell disputed the legality of the search which produced evidence on which his conviction was obtained.

The Minnesota Supreme Court held that the search had been legal, based on its conclusion that there had been probable cause to issue the warrant. That conclusion was, in turn, based in part on an affidavit submitted by a police department detective. On habeas review, the federal district court held that the evidence had been legally obtained. The Eighth Circuit reversed, holding that where there is a substantially disputed question of fact, a factfinding procedure based on affidavits alone does not afford the petitioner a full and fair hearing. The court therefore remanded for an evidentiary hearing on the question.

Further, in Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), overruled in part on other grounds, Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 1922 n. 7, 95 L.Ed.2d 439 (1987), the Supreme Court noted that there could be circumstances under which a state appellate court could not make factfindings adequate to satisfy section 2254(d)(2) based on a paper record. 474 U.S. at 388 n. 5, 106 S.Ct. at 698 n. 5. The court discusses the possibility that an appellate court might be forced to make an Enmund7 determination of whether a particular defendant killed, attempted to kill, or intended to kill on the basis of a paper record alone:

There might be instances, however, in which the presumption would not apply to appellate factfinding regarding the Enmund criteria because appellate factfinding procedures were not "adequate," see 28 U.S.C. Sec . 2254(d)(2). For example, the question whether the defendant killed, attempted to kill, or intended to kill might in a given case turn on credibility determinations that could not be accurately made by an appellate court on the basis of a paper record.

Id. (citations omitted). The Court in Cabana was concerned with, inter alia, whether a jury was the only factfinder competent to make the Enmund determination. The Court held that it was not, and that a habeas court, when faced with an Enmund claim, must examine all of the state court proceedings, not simply the jury instructions and verdict, to determine if an Enmund finding had been made at any point. The footnote, then, discusses when a state appellate court factfinding made on the basis of a paper record, might not merit a presumption of correctness in the federal habeas court.8

This footnote in Cabana guides our inquiry into when factfinding procedures will not be adequate to merit the presumption of correctness, but it does not change our disposition. Unlike the hypothetical situation posited in the footnote, we are not reviewing a factfinding made by a state appellate court on the basis of a paper record. Rather, this is a decision made by the trial court that conducted Buxton's trial and sentenced him. The judge before whom Buxton was tried was in a different and better position to make determinations regarding the facts and circumstances surrounding that trial than other courts on direct or collateral review.

The trial judge had the opportunity to watch the trial as it progressed, he saw both Crow and Carr-Fitzgerald in action, and he was familiar with the jury. He had knowledge of the configuration of the courthouse, of where the jury room was, and of whether a comment made by a juror in that room could be inadvertently overheard. Further, the trial judge may have developed a respect for Carr-Fitzgerald's competence that would give him pause to wonder why she failed to move for a mistrial on the ground of jury misconduct at the time, if the evidence she gives now is true. As a federal court in collateral review, we are far removed from the trial proceedings and therefore defer to the trial court's determination of the facts surrounding that trial.

Moreover, in cases of federal review of state trial proceedings, there are considerations of comity that militate against federal courts reviewing factfindings with a less deferential standard. As the Supreme Court in Sumner stated,

Federal habeas has been a source of friction between state and federal courts, and Congress obviously meant to alleviate some of that friction when it enacted subsection (d) in 1966 as an amendment to the original Federal Habeas Act of 1867. Accordingly, some content must be given to the provisions of the subsection if the will of Congress be not frustrated.... A writ issued at the behest of a petitioner under 28 U.S.C. Sec . 2254 is in effect overturning either the factual or legal conclusions reached by the state-court system under the judgment of which the petitioner stands convicted, and friction is a likely result.

Sumner, 449 U.S. at 550, 101 S.Ct. at 770. While we are mindful of our obligation to protect a state prisoner against violations of his federal constitutional rights through habeas corpus, we must also keep federalism in mind, and maintain a high level of caution when reviewing the proceedings of a state court. Therefore, we agree with the district court's application of the presumption of correctness, and we find no evidence to rebut that presumption here. We therefore conclude that the statements in the Crow affidavit are true.

B. The Legal Conclusions

The application of the presumption of correctness to the state court factfindings has, of course, no effect on our review of the legal conclusions reached on the basis of those facts--we, as always, subject the legal conclusions to de novo review. After such a review, we agree with the conclusion that, according to Texas law, juror misconduct cannot be found on the facts as found here.

Under Texas law, to make a showing of juror misconduct, the petitioner must show "(1) juror misconduct that (2) deprived him of a fair and impartial trial." Vorwerk v. State, 735 S.W.2d 672, 673 (Tex.App.--Austin 1987). When, as here, the alleged misconduct consists of improper consideration of punishment during deliberation on guilt/innocence, under Texas law the petitioner must show not simply that punishment was discussed in the guilt/innocence phase, but also that "members of the jury [made] an agreement to render a guilty verdict in exchange for a lighter punishment." Id. at 674 (emphasis in original). Even in the event the jurors concede that leniency was discussed during guilt/innocence deliberations, in the absence of a resulting agreement, juror misconduct has not been found. Daniels v. State, 600 S.W.2d 813, 816 (Tex.Cr.App.1980).

The most that we can conclude from the facts found here is that a juror may have had some doubt about Buxton's guilt during the course of the proceedings. This would certainly not suffice to support a successful motion for new trial, nor would it even require that the court grant an evidentiary hearing on the question. See McIntire v. State, 698 S.W.2d 652, 658 & n. 12 (Tex.Cr.App.1985).9 Thus, the second prong of the Strickland standard for ineffective assistance, which requires the petitioner to show that the failure of his counsel caused the petitioner to suffer prejudice, has not been met.

III. McCLESKEY CLAIM

Buxton's second argument is that the Texas capital sentencing scheme is unconstitutional.10 His argument was originally framed to raise a McCleskey issue: Buxton is black, his victim was white, and the Texas scheme is insufficient, according to statistical studies, to prevent racially discriminatory results. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). However, since Buxton's original petition was filed, the Supreme Court has decided McCleskey in a way, Buxton concedes, unfavorable to his claim.11

Buxton argues, nevertheless, that he raised, "however inartfully," the issue of whether mitigating evidence can be considered under the Texas scheme of capital sentencing, one of the issues addressed by the Supreme Court in Penry v. Lynaugh, --- U.S. ----, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1988). His reasoning for this hinges on two points. The first is that his original habeas petition generally questioned the constitutionality of the Texas sentencing statute. The second is that in his original habeas petition, he cited Hitchcock v. Wainwright, 770 F.2d 1514 (11th Cir.1985) (en banc), a case in which the Supreme Court has since held that the jury at the sentencing phase of a capital case must be allowed to consider all relevant mitigating evidence. Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).

However, the Supreme Court noted in its opinion in Hitchcock that it had granted certiorari on the "petitioner's claim that the Florida death penalty statute discriminates against capital defendants who murder whites and against black capital defendants, in violation of the Eighth and Fourteenth Amendments." Id. at 394 n. 1, 107 S.Ct. at 1822 n. 1. Buxton's citation to Hitchcock in his original habeas petition merely states: "[t]his case raises the issue of the effect on Texas death penalty convictions of the United States Supreme Court's grant of certiorari in Hitchcock v. Wainwright...."

Thus, it is evident from Buxton's petition, as well as from the district court's findings of fact and conclusions of law on that petition,12 that the flaw in the capital sentencing scheme Buxton presented and argued was racially discriminatory results, not failure to provide an opportunity to consider mitigating evidence. The only fair reading of Buxton's citation of Hitchcock, then, is in further support of his McCleskey claim, not as raising a claim regarding mitigating evidence. Thus, we find that the Penry claim was not raised in the court below, and we will therefore not address it for the first time on appeal. Earvin v. Lynaugh, 860 F.2d 623, 627 (5th Cir.1988) (refusal to consider Penry claim made for first time on appeal), cert. denied, --- U.S. ----, 109 S.Ct. 1558, 103 L.Ed.2d 861 (1989); Fransaw v. Lynaugh, 810 F.2d 518, 523 (5th Cir.), cert. denied, 483 U.S. 1008 , 107 S.Ct. 3237, 97 L.Ed.2d 742 (1987).

IV.

For the above reasons, the district court's order denying the petition for a writ of habeas corpus is AFFIRMED, and Buxton's petition for a stay of execution is DENIED.

*****

ALVIN B. RUBIN, Circuit Judge, dissenting:

A state judge, confronted with the mutually contradictory affidavits of two witnesses concerning a crucial fact, decided that one witness was credible and the other was not without hearing either witness' testimony or affording counsel the opportunity to confront and cross-examine them. The majority concludes that this decision, on the basis of which the state judge denied the petitioner relief from a death sentence, was made after a "full and fair hearing."1

In a simple tort case involving only damages, let alone a case in which a man's life is at stake, controverted material facts would not be decided in such a truncated fashion. Because the judge's reading of the affidavits, without appearance by the witnesses or examination by counsel, does not provide the full and fair hearing that the habeas corpus statute commands as a prerequisite to crediting the state court's judgment, I respectfully dissent from Part II of the opinion and from the judgment.

It is undisputed that Carr-Fitzgerald and Crow, Buxton's trial co-counsel, submitted affidavits to the state court containing contradictory factual accounts. Carr-Fitzgerald swore in her affidavit that a juror had "conceded (paraphrase) his vote during the guilt phase of the trial when he did not feel the defendant was guilty contingent on the agreement by the other jurors that the death penalty would not be imposed by their vote." Crow swore that Carr-Fitzgerald later told him that she had overheard one juror tell another: " 'Hell, I didn't even believe he was guilty and now you want me to kill him?' "

Without hearing the testimony of either witness, the state court credited Crow's affidavit, and found that no juror misconduct had occurred under the facts Crow asserted. The federal district court presumed that the state court's accreditation of Crow's affidavit was correct, pursuant to 28 U.S.C. Sec . 2254(d), and affirmed the state court's denial of Buxton's claim for ineffective assistance of counsel for failure to challenge the juror misconduct. Were the state court to have credited Carr-Fitzgerald's affidavit, the majority acknowledges, "there is a strong possibility that a Texas court would have granted an evidentiary hearing on the question of juror misconduct," since members of the jury would have violated Texas law by "mak[ing] an agreement to render a guilty verdict in exchange for a lighter punishment."2

When reviewing the application of a habeas petitioner convicted in state court, a federal court presumes that the state court's determination of a factual issue after a hearing on its merits is correct "unless the applicant shall establish ... that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing."3 If the district court determines that the state court's procedure did not provide for a full and fair hearing, the district court holds its own evidentiary hearing.4

The majority correctly holds that "factfinding based [solely] on a record can in some circumstances be adequate" (emphasis supplied). In cases in which the historical facts are not in dispute and there are no conflicting affidavits, both the Supreme Court5 and this court6 have held that a state court's fact-finding procedures may afford a full and fair hearing without personal testimony and examination of witnesses.

When affiants have sworn to conflicting affidavits placing historical facts in dispute, however, a trial judge is unable to make an informed judgment that one affiant is more credible than the other solely on the basis of the contradictory affidavits. Every practitioner knows that it is easy to obtain a witness' signature on an affidavit prepared by a lawyer: how facilely the lawyer's narrative spills from the word processor; how readily the affiant puts pen to paper. Every practitioner also knows how often the lawyer's version of events crumbles when the witness is called to testify and is cross-examined on his personal knowledge of events.

A judge, like a juror, determines facts from contradictory witnesses by assessing each witness' credibility. This determination is based not only on each witness' testimony in court before the judge, which may differ substantially from the affiant's statement on a piece of paper, but is informed by the judge's observation of the witness' demeanor on direct and cross-examination.

The rigors of a "live" evidentiary hearing thus not only enhance the likelihood that a witness testifies truthfully, but enable a fact-finder to conclude from personal observation of each witness' behavior that one witness is truthful and the other mendacious. Because Buxton was not afforded the opportunity to "present relevant evidence and rebut the evidence of the opposition,"7 and the judge did not have a chance to assess either witness' credibility during direct and cross-examination, the state court's fact-finding procedures were inadequate and failed to provide Buxton with a "full and fair" hearing under Sec. 2254(d)(2).8 It is, indeed, ironic that the state court credited Crow's affidavit which contained only second-hand hearsay--what Carr-Fitzgerald allegedly told him--over Carr-Fitzgerald's first-hand account.

To support its conclusion that the state court's fact-finding procedure was adequate, the majority relies on our decision in Evans v. McCotter.9 In Evans, we "assum[ed] arguendo " that a state trial court's determination of fact from conflicting affidavits was sufficient under [Sec. 2254(d)(2) ]. See, e.g., Sumner v. Mata, ... Smith v. Estelle, ... Camarillo v. Estelle.10

In addition to the obvious fact that this portion of Evans is obiter dicta, not precedent, the three cases Evans cites do not support the conclusion reached by the Evans court and the majority in this case. In Mata and Smith, no historical facts were in dispute;11 neither case, therefore, addresses whether a hearing may be considered full and fair when a court determines controverted facts on the basis of conflicting affidavits. In Camarillo, we actually "remanded for an evidentiary hearing" because the "prisoner's right to relief turn[ed] on facts which [we]re in dispute."12

Having no precedential support, the majority ultimately roots its opinion on the ground that the state trial judge who credited Crow's affidavit was the judge who had tried Buxton and, therefore, "saw both Crow and Carr-Fitzgerald in action" and "may have developed" more "respect" for one attorney than the other. A judge's familiarity with attorneys practicing before him does not, however, establish his ability to ascertain their credibility as affiants, and takes no account of the effect of direct and cross-examination on testimony.

The credibility of a lawyer retained to represent an individual in court, qua counsel, is vastly different from the trustworthiness of an individual testifying about historical facts. The lawyer is an agent, an adversary, an attorney at law, and, except for unusual circumstances, may not be a witness in a cause in which he is counsel.13 A witness, in contrast, speaks on his own behalf, swears that his testimony is true, and his factual averments are subject to the scrutiny of a presiding judge, counsel, and other witnesses.

Rather than presuming that the state court's finding of fact was correct, the district court should have held its own evidentiary hearing to determine which affiant's account of events was more accurate.14 Because the fact-finding procedure employed by the state court was not adequate to afford Buxton a full and fair hearing, I would remand the case to the district court so that it may conduct a real evidentiary hearing to determine whether the facts recited in Carr-Fitzgerald's or in Crow's affidavit are true.

*****

1 In his state court habeas petition, Buxton framed the argument as follows:

Applicant was denied his right to the effective assistance of counsel at trial in the following respects:

3 ) Counsel failed to attempt to prove an instance of jury misconduct by means of a motion for new trial

2 See note 9, infra, for a discussion of the effect this choice had on the resolution of Buxton's habeas claim

3 Buxton's counsel did make a motion for new trial, but did not assert this ground in support of the motion

4 28 U.S.C. Sec . 2254(d) reads as follows:

  (d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit--

  (1) that the merits of the factual dispute were not resolved in the State court hearing;

  (2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

  (3) that the material facts were not adequately developed at the State court hearing;

  (4) that the State court lacked jurisdiction of the subject matter or the person of the applicant in the State court proceeding;

  (5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

  (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

  (7) that the applicant was otherwise denied due process of law in the State court proceeding;

  (8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:

And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.

5 See advisory committee note to Rules Governing Sec. 2254 cases, rule 8, 28 foll. Sec. 2254 (1977)

6 In Smith, we went on to examine the trial court record for evidence of ineffective assistance, and we found that it also supported our holding that the state court factfinding should be presumed correct. This was made necessary by section 2254(d)(8) which provides an exception to the presumption of correctness if the factual determination "is not fairly supported by the record."

7 Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (eighth amendment forbids the imposition of the death penalty on "one ... who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.") Id. at 797, 102 S.Ct. at 3376

8 The hypothetical situation proposed in this footnote has at least once been realized. In Hyman v. Aiken, 824 F.2d 1405 (4th Cir.1987), the Fourth Circuit followed the footnote to hold that neither the state appellate court's, nor the state post-conviction court's Enmund findings merited a presumption of correctness given that they were based on credibility determinations made on the basis of the record

9 If, however, the facts as alleged in the Carr-Fitzgerald affidavit had been believed, there is a strong possibility that a Texas court would have granted an evidentiary hearing on the question of jury misconduct. McIntire, 698 S.W.2d at 658-59; Dugard v. State, 688 S.W.2d 524, 528-29 (Tex.Cr.App.1985)

10 Buxton first raised this argument in his Amended Application for a Writ of Habeas Corpus in the state trial court. He framed the claim as follows:

The Texas capital murder scheme is unconstitutional as written and as applied because it operates in such a way as to allow intentional racial discrimination against a defendant who is a member of a racial minority accused of killing a person who is a member of the racial majority. The arbitrary functioning of the system violates due process and equal protection guarantees of the federal and state constitutions and constitutes cruel and unusual punishment in violation of federal and state constitutions.

11 The Supreme Court held in McCleskey, inter alia, that statistical evidence alone--i.e., without evidence specific to the case at hand--of racially discriminatory purpose will not suffice to support an inference that the decision makers acted with discriminatory purpose

12 The district court restated Buxton's constitutional challenge to the Texas sentencing scheme as urging: "The Texas capital murder scheme is unconstitutional because of its disproportionate effects." It at no point in its findings and conclusions mentions mitigating evidence

*****

1 28 U.S.C. Sec . 2254(d)(2) (1977)

2 Vorwerk v. State, 735 S.W.2d 672, 674 (Tex.App.--Austin 1987) (emphasis in original); see Daniels v. State, 600 S.W.2d 813, 816 (Tex.Cr.App.1980)

3 28 U.S.C. Sec . 2254(d)(2) (1977)

4 See Advisory Committee Note to Rules Governing 28 U.S.C. Sec . 2254 cases, Rule 8, 28 foll. Sec. 2254 (1977)

5 See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); cf. Cabana v. Bullock, 474 U.S. 376, 388 n. 5, 106 S.Ct. 689, 698 n. 5, 88 L.Ed.2d 704 (1986), overruled in part on other grounds, Pope v. Illinois, 481 U.S. 497, 503 n. 7, 107 S.Ct. 1918, 1922 n. 7, 95 L.Ed.2d 439 (1987)

6 See Uresti v. Lynaugh, 821 F.2d 1099 (5th Cir.1987); Smith v. Estelle, 711 F.2d 677 (5th Cir.1983), cert. denied, 466 U.S. 906 , 104 S.Ct. 1685, 80 L.Ed.2d 159 (1984); cf. Camarillo v. Estelle, 670 F.2d 473 (5th Cir.1981)

7 Campbell v. Minnesota, 487 F.2d 1, 4 (8th Cir.1973) (footnote omitted)

8 Ibid

9 805 F.2d 1210 (5th Cir.1986)

10 Id. at 1214

11 See Mata, 449 U.S. at 543, 101 S.Ct. at 767; Smith, 711 F.2d at 682; see also Uresti, 821 F.2d at 1101

12 Camarillo, 670 F.2d at 474

13 See e.g., ABA Model Rules of Professional Responsibility 3.7

14 See Campbell, 487 F.2d at 4 & n. 3

 
 

925 F.2d 816

Lawrence Lee Buxton, Petitioner-Appellant,
v.
James A. Collins, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.

No. 91-2172

Federal Circuits, 5th Cir.

February 25, 1991

Appeal from the United States District Court for the Southern District of Texas.

On Application for a Certificate of Probable Cause and Stay of Execution.

Before KING, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

KING, Circuit Judge:

Lawrence Lee Buxton (Buxton), currently confined on death row in the Texas Department of Criminal Justice, Institutional Division, instituted his second federal habeas corpus petition in the United States District Court for the Southern District of Texas on February 22, 1991, pursuant to 28 U.S.C. Sec . 2254. He requested that the district court stay his execution, order an evidentiary hearing, and issue a writ of habeas corpus vacating his conviction for capital murder. He is scheduled for execution on February 26, 1991 after 12:01 a.m.

On February 23, 1991, the district court denied Buxton all relief, and denied Buxton a certificate of probable cause for appeal (CPC). Buxton applies to this court for a certificate of probable cause for appeal and for a stay of execution. Because we find that there has been no substantial showing of the denial of a federal right, we deny his application for a certificate of probable cause. Furthermore, because Buxton demonstrates neither a substantial case on the merits, nor that the balance of the equities weighs in his favor, we deny his motion for a stay of execution.

I. FACTS AND PROCEDURAL HISTORY.

As they were returning home from Yom Kippur services on the evening of September 19, 1980, the Slotnik and Sternberg families stopped at a Safeway grocery store. Mrs. Sternberg, Joel Slotnik, and his five-year-old son Aaron entered the store. Sternberg testified that a man with a stocking mask over his face yelled "Hit the deck" as they entered. She observed three masked men, two of whom were brandishing guns.

One of the masked men forced Patricia Jackson, an assistant store manager, to give him the contents of her cash register at gun point. Mrs. Sternberg heard a robber tell Slotnik "You better get that kid down." The gunman took his aim off Patricia Jackson and aimed the gun at Slotnik, who was seated with his arm around his son. After taking aim with both hands for seven to eight seconds, the gunman shot Slotnik in the neck. Slotnik died from the wound four days later.

Two robbers exited the store, followed by the third robber. Sternberg subsequently identified the third robber as the killer. Several members of Slotnik's family were seated in a car parked in front of the store. Linda Slotnik, Joel's wife, testified that she heard a noise and looked toward the doors of the store. She observed two masked men walking rapidly, followed by a third man. The third man pulled off his mask as he left the store. Mrs. Slotnik identified Buxton in court as the man who pulled off his mask. Lee Slotnik, Joel's fourteen-year-old son, testified that he heard the sound of a shot coming from inside the store. He also identified Buxton as the third robber to leave the store.

John Larry Foster testified that he had a conversation with Buxton while he was in Houston sometime in late January or the first part of February, 1981. Buxton told him that "he went out and pulled a robbery" at a grocery store and "this guy seen him when he was coming out and he hollered for the guy to stop and he didn't so he shot." Buxton also told Foster that he used "38 slugs" because they were "hard to be traced." Buxton reportedly laughed about the incident.

A Texas state district court convicted Buxton of capital murder in the course of a robbery. After a separate punishment hearing, the jury affirmatively answered the two Texas special issues and sentenced Buxton to death. Buxton's conviction automatically was appealed to the Texas Court of Criminal Appeals, which affirmed the conviction. Buxton v. State, 699 S.W.2d 212 (Tex.Crim.App.1985), cert. denied, 476 U.S. 1189 , 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986). The United States Supreme Court denied Buxton's petition for a writ of certiorari. The trial court set Buxton's execution date for September 30, 1986. Buxton applied for a state writ of habeas corpus, which was denied.

Buxton immediately filed an application for a writ of habeas corpus in the United States District Court for the Southern District of Texas. He simultaneously filed an application for a stay of execution which was unopposed by the State and granted by the district court on September 29, 1986. Subsequently, the State moved for summary judgment on the habeas petition. The district court granted the State's summary judgment motion and vacated the stay, and denied Buxton's request for a certificate of probable cause to appeal. We granted a certificate of probable cause and heard Buxton's appeal. We denied relief on July 21, 1989. Buxton v. Lynaugh, 879 F.2d 140 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990). Buxton's petition for a writ of certiorari to the United States Supreme Court was denied.

On October 16, 1990, Buxton filed a second application for a state writ of habeas corpus. On January 17, 1991, the State district court set Buxton's execution date for February 26, 1991. On February 8, 1991, the trial court entered findings of fact and conclusions of law and recommended to the Texas Court of Criminal Appeals denial of Buxton's application for a writ of habeas corpus. On February 20, 1991, the Texas Court of Criminal Appeals denied relief based upon those findings, and Buxton promptly sought a stay of execution in the Court of Criminal Appeals.

On February 19, 1991, Buxton filed a supplemental habeas application in the trial court and the Court of Criminal Appeals. On February 21, 1991, the trial court entered findings of fact and conclusions of law on Buxton's supplemental application for writ of habeas corpus, and again recommended that relief be denied. On February 21, 1991, the Texas Court of Criminal Appeals denied Buxton's supplemental habeas application based on the trial court's findings of fact and conclusions of law.

On February 22, 1991, Buxton instituted his second federal habeas corpus petition in the United States District Court for the Southern District of Texas. He requested that the district court stay his execution, order an evidentiary hearing, and issue a writ of habeas corpus ordering that his conviction for capital murder and his death sentence be vacated. On February 23, 1991, the district court denied relief. On February 25, 1991, Buxton applied to this court for a certificate of probable cause for appeal (CPC) and for a stay of execution.

II. STANDARD OF REVIEW.

In deciding whether to issue a stay of execution, we are required to consider four factors:

  (1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest.

Byrne v. Roemer, 847 F.2d 1130, 1133 (5th Cir.1988) (quoting Streetman v. Lynaugh, 835 F.2d 1521, 1524 (5th Cir.1988)). Although the " 'movant need not always show a probability of success on the merits, he must present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in the favor of granting the stay.' " Celestine v. Butler, 823 F.2d 74, 77 (5th Cir.), cert. denied, 483 U.S. 1036 , 108 S.Ct. 6, 97 L.Ed.2d 796 (1987) (quoting O'Bryan v. McKaskle, 729 F.2d 991, 993 (5th Cir.1984)).

We will grant a certificate of probable cause to appeal pursuant to Fed.R.App.P. 22(b) if the applicant can make a substantial showing of the denial of a federal right. Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971) (quoting Harris v. Ellis, 204 F.2d 685 (5th Cir.1953)). A "substantial showing" of a denial of a federal right means that "the issues are debatable among jurists of reason, that a court could resolve the issues [in a different manner]; or that the questions are 'adequate to deserve encouragement to proceed further.' " Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1982) (quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980)). The severity of the penalty in a death penalty case "is a proper consideration in determining whether to issue a certificate of probable cause, but the severity of the penalty does not in itself suffice to warrant the automatic issuing of a certificate." Id. at 893, 103 S.Ct. at 3395.

The Supreme Court has reasoned that although "[i]t is natural that counsel for the condemned in a capital case should lay hold of every ground which, in their judgment, might tend to the advantage of their client, ... the administration of justice ought not to be interfered with on mere pretexts." Id. at 888, 103 S.Ct. at 3392. (quoting Lambert v. Barrett, 159 U.S. 660, 662, 16 S.Ct. 135, 135, 40 L.Ed. 296 (1895)). The Court acknowledged, however, that "a death sentence cannot ... be carried out by the State while substantial legal issues remain outstanding" and the courts should not "fail to give non-frivolous claims of constitutional error the attention they deserve." Id. at 888, 103 S.Ct. at 3392. Consistent with the Court's admonition, we have warned that any doubts whether CPC should be issued are to be resolved in favor of the petitioner. Jones v. Warden, La. State Penitentiary, 402 F.2d 776 (5th Cir.1968).

We now proceed to consider the issues Buxton raised in his second federal habeas petition in order to determine whether substantial questions remain concerning Buxton's conviction.

III. ANALYSIS.

Buxton raised the following issues in his federal habeas petition:

  (1) The trial court violated his Sixth, Eighth, and Fourteenth Amendment rights because the jury was unable to give mitigating effect to the possibility that Buxton was not the triggerman in Joel Slotnik's murder;(2) The Texas death sentencing scheme prevented Buxton's attorney from investigating and presenting mitigating evidence concerning Buxton's deprived childhood and abusive father in violation of Buxton's Sixth, Eighth, and Fourteenth Amendment rights;

  (3) Buxton received ineffective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights because trial counsel failed to object to improper hypotheticals during jury selection, improper jury arguments, and an improper jury charge;

  (4) Buxton was denied due process of law under the Fourteenth Amendment because the jury charge authorized conviction under a theory not amounting to capital murder;

  (5) Buxton received ineffective assistance of appellate counsel in violation of his Sixth and Fourteenth Amendment rights because appellate counsel did not argue that the jury charge was fundamentally defective;

  (6) Buxton was denied due process of law under the Fourteenth Amendment because a state "fundamental error" doctrine relating to jury charges was not applied to Buxton on appeal;

  (7) Buxton was subjected to an ex post facto law because of the application of an "egregious harm" standard of review relating to jury charges rather than a "fundamental error" standard.

The State concedes that Buxton exhausted his state court remedies.

A. Did The Trial Court Violate Buxton's Sixth, Eighth, And Fourteenth Amendment Rights Because The Jury Was Unable To Give Mitigating Effect To The Possibility That Buxton Was Not The Triggerman In Joel Slotnik's Murder?

At trial, Buxton contended that the identification evidence was inconclusive and that he was not the person who committed the murder. Although the jury's guilty verdict at the guilt-innocence phase indicated that they believed that Buxton was present at the scene of the crime, Buxton argues that the jury could have found him guilty although they did not believe that he pulled the trigger because the trial court provided a law of parties instruction. Buxton argues that the jury may also have believed that he deserved a sentence of less than death because he did not pull the trigger but felt constrained to answer the deliberateness prong of the Texas special issues in the affirmative because of the law of parties instruction at the guilt phase.

At the sentencing phase of his capital trial, the court submitted the following issues to the jury pursuant to Tex.Code Crim.P. art. 37.071(b):

SPECIAL ISSUE NO. 1

Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant, Lawrence Lee Buxton, that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result?

SPECIAL ISSUE NO. 2

Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, Lawrence Lee Buxton, would commit criminal acts of violence that would constitute a continuing threat to society?

Buxton contends that a jury could have felt constrained to answer the first special issue in the affirmative because they believed that he acted deliberately in participating in the robbery and with the reasonable expectation that the death of another would occur. He claims that under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), his conviction was constitutionally infirm because the jury had no vehicle by which to give effect to a belief that he deserved a sentence less than death because he was not the triggerman.

Both the Texas Court of Criminal Appeals and the district court found Buxton's claim to be procedurally barred because his trial attorneys failed to object to the absence of an "anti-parties" charge at punishment phase of the trial and failed to request that such a charge be given. In its findings of fact and conclusions of law, on which the Court of Criminal Appeals based its order denying his application for a writ of habeas corpus, the state trial court noted that Buxton's trial attorneys:

failed to object to the Texas death penalty scheme on the basis that the jury was precluded from considering evidence, i.e. that the applicant was allegedly a non-triggerman, which allegedly counseled in favor of a sentence less than death. As a result, the applicant is procedurally barred from complaining that the Texas death penalty scheme unconstitutionally precluded the jury from considering as mitigating evidence his alleged status as a non-triggerman.

The district court agreed that Buxton's claims were procedurally barred, although both courts also considered the merits of Buxton's claims as an alternative ground for their rulings.

In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court concluded that, absent a showing of cause and prejudice, we may not reach the merits of a habeas corpus petitioner's challenge to a state court conviction if that conviction rests on a state-law procedural ground that is both "independent" of the federal claim's merits and an "adequate basis for the court's decision." Under Texas law, if a defendant does not properly preserve error at the trial court level by timely objecting to the error or omission, the defendant waives his right to raise the point on direct appeal and in post-conviction applications for a writ of habeas corpus. Ex parte Dutchover, 779 S.W.2d 76 (Tex.Cr.App.1989).

A federal habeas court, however, cannot refuse to consider the merits of a petitioner's claim on the basis of a state procedural default unless the last court rendering a judgment in the case clearly relied on that procedural default to deny relief. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) ("[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar.").

The Texas Court of Criminal Appeals based its order denying Buxton's application for a writ of habeas corpus on the state trial court's findings of fact and conclusions of law. Although the state trial court also considered and rejected Buxton's claim on the merits, it stated clearly that its consideration of the merits of Buxton's claim was strictly in the alternative. The Supreme Court in Harris noted that

a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law. Thus, by applying this doctrine to habeas cases, Sykes curtails reconsideration of the federal issue on federal habeas as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision. In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.

Harris, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 (emphasis in original) (citation omitted). In these circumstances, the state procedural bar was an adequate and independent state law ground, and the Supreme Court's decision in Sykes requires that we review Buxton's claim only if Buxton can demonstrate cause and prejudice for his failure to comply with the procedural rule.

Addressing this requirement, Buxton observes that the application of Texas default law to Penry claims is, and will continue to be, unsettled until the Court of Criminal Appeals answers the certified question in Selvage v. Collins, 897 F.2d 745 (5th Cir.1990). In Selvage, we asked the Texas Court of Criminal Appeals to rule on the question whether Selvage's failure to object to the jury charge or request special instructions at the punishment phase of his trial barred him under Texas law from asserting that the Texas death sentencing statute prevented the jury's consideration of his mitigating evidence. Id.

The Texas Court of Criminal Appeals has not yet answered the certified question in Selvage. Nevertheless, in the instant case the Texas Court of Criminal Appeals, in adopting the trial court's findings of fact and conclusions of law, has stated clearly that Buxton's failure to request an anti-parties charge at the punishment phase and failure to object to the Texas death penalty scheme on the basis that it precluded the jury from considering evidence that Buxton was allegedly a non-triggerman, which allegedly counseled in favor of a sentence less than death, prevent review of Buxton's claim that the jury could not give mitigating effect to the possibility that he was not the triggerman. Furthermore, Buxton's triggerman argument is factually distinguishable from Selvage and will not be controlled by the Texas Court of Criminal Appeals answer to the certified question in Selvage.

In Selvage, we asked the Texas Court of Criminal Appeals to decide whether Texas would find a claim that the jury was unable to give mitigating effect to the defendant's evidence procedurally barred because the defendant failed to request a special instruction on mitigation or to object to the jury's charge. In the instant case, however, Buxton did not have to anticipate the Supreme Court's decision in Penry in order to realize that an anti-parties charge or an objection to the failure to give such a charge was appropriate.

Any confusion that may have arisen at the sentencing phase as a result of the trial court's law of parties instruction at the guilt phase should have been apparent to Buxton's attorney at trial and did not depend on the Supreme Court's decision in Penry. If Buxton believed that the jury could not give effect to the possibility that he was not the triggerman under either the deliberateness or the future dangerousness prong of the Texas special issues, he should have objected on that ground at trial and his failure to do so procedurally bars our consideration of his claim at this late date.

B. Did The Texas Death Sentencing Scheme Prevent Buxton's Attorneys From Investigating And Presenting Mitigating Evidence Concerning Buxton's Deprived Childhood And Abusive Father In Violation Of Buxton's Sixth, Eighth, And Fourteenth Amendment Rights?

Buxton argues that his trial counsel failed to investigate and present evidence concerning his deprived childhood and abusive father because the Texas special issues, as interpreted before the Supreme Court's decision in Penry, did not permit the jury to give mitigating effect to such evidence, and increased the possibility that the jury would return an affirmative answer to the continuing dangerousness prong of the Texas special issues. In its findings of fact and conclusions of law, the state trial court found:

12. The applicant made no objection to the Texas death penalty scheme on the basis of its alleged chilling effect on counsels' investigation and presentation of mitigating evidence. The applicant also submit [sic] any request instruction concerning mitigation and the Texas death penalty scheme.

13. Counsel were aware that the applicant came from a poor family and had a limited education. Further, counsel were aware of the alleged limitations of the Texas death penalty scheme and its impact on their investigation and presentation of evidence. Counsel made a tactical decision to neither develop nor present evidence of applicant's background and education at the applicant's 1983 trial.

In its conclusions of law, the trial court found:

5. As a result of the applicant's failure to object to the alleged chilling effect of the Texas death penalty scheme or to submit any requested instruction concerning mitigation and the death penalty scheme, the applicant is procedurally barred from advancing his claim that counsels' reliance on the Court of Criminal Appeals' consistent interpretation of the Texas death penalty scheme prevented counsel from investigating, developing and presented [sic] allegedly relevant mitigating evidence in support of a life sentence. Moreover, any alleged futility perceived by trial counsel does not obviate his duty to preserve his complainant [sic] for later state and federal habeas review if he perceived that the Texas death penalty scheme was unconstitutional as applied to him.

The trial court also noted that:

9. There is no evidence to support the applicant's claim that counsel felt precluded from investigating and presenting the applicant's background, in light of the fact that lead trial counsel, John Emmett Crow, did investigate, develop and present mitigating background evidence in the 1979 [capital murder] trial of John Henry Selvage, four years prior to the applicant's trial.

The trial court reached and rejected the merits of Buxton's claim, but strictly as an alternative holding.

Whatever the Texas Court of Criminal Appeals' final answer to the certified question in Selvage, that court, in adopting the trial court's findings and conclusion set forth above, clearly has found Buxton's "chilling effect" argument procedurally barred. Furthermore, the state court's findings of fact indicate that Buxton cannot demonstrate cause for his failure to object to the Texas death penalty scheme because "counsel were aware of the alleged limitations of the Texas death penalty scheme and its impact on their investigation and presentation of evidence."

Buxton notes, however, that in two recent cases in which the petitioner raised a Penry claim that the State contends was procedurally barred, we granted the applicant a stay pending the Texas Court of Criminal Appeals' answer to our certified question in Selvage. See Fierro v. Collins, No. 90-8336 (5th Cir. June 13, 1990) (successor petition) (refusing to vacate stay pending resolution of procedural bar question certified to Texas court in Selvage); Harris v. Collins, unpublished order No. 90-6022 (5th Cir. December 18, 1990) (granting stay and certificate of probable cause and holding Penry claim pending resolution of Selvage question).

In both cases, however, the finding of a procedural bar predated our certified question in Selvage and some doubt existed whether the Texas Court of Criminal Appeals would find the applicant's claim procedurally barred post-Selvage. In the instant case, however, the Texas Court of Criminal Appeals has stated clearly that a procedural bar prevents Buxton's claim.

Furthermore, unlike the petitioners in Selvage, Fierro, and Harris, Buxton argues not that the jury was unable to give mitigating effect to the evidence that he presented--he presented none--but that he was chilled from ever pursuing such evidence. Whether Texas considers such a "chilling effect" argument procedurally barred will not be answered in Selvage.

In Selvage, we asked the Texas Court of Criminal Appeals to decide whether Texas requires a contemporaneous objection when a defendant argues that the jury, prior to Penry, was unable to give effect to mitigating evidence under the Texas special issues. In each of Selvage, Fierro, and Harris, the defendant arguably had no reason to suspect that the Texas death sentencing scheme was constitutionally infirm absent an instruction allowing the jury to give mitigating weight to evidence concerning the defendant's background or character.

However, according to Buxton's trial counsel's affidavit, submitted to the Texas trial court in connection with his last state habeas petition, the constraints placed upon the investigation and presentation of mitigating evidence occasioned by the Texas special issues were apparent to Buxton's counsel prior to the Supreme Court's decision in Penry. Because the Texas Court of Criminal Appeals clearly answered the procedural bar question in the instant case, and because Buxton's chilling effect argument will not be controlled by the Texas Court of Criminal Appeals' answer to the certified question in Selvage, neither logic nor precedent constrains us to await the Texas Court of Criminal Appeals' answer to the certified question in Selvage.

C. Did Buxton Receive Ineffective Assistance Of Trial Counsel In Violation Of His Sixth And Fourteenth Amendment Rights?

Buxton argues that his trial counsel were ineffective because they did not object to the State's use of certain hypotheticals during voir dire, failed to object to a statement made by the prosecutor during closing argument, and failed to object to a jury charge that Buxton argues allowed the jury to convict him in circumstances that do not constitute capital murder under Texas law. Buxton argues that his trial counsel lacked familiarity "with the most basic law--the elements of the offense for which his client faced the ultimate punishment," and as a result, the jury may have convicted him on facts that amounted to non-capital murder.

We review claims of ineffective assistance of counsel under the two-prong standard articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet this standard, a criminal defendant must demonstrate:

First ... that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. at 2064. In reviewing such claims "judicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. at 2065. Courts must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and a defendant must overcome the presumption that the "challenged action 'might be considered sound trial strategy.' " Id.

To demonstrate prejudice, "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. When a defendant challenges the death sentence, the question is "whether there is a reasonable probability that, absent the errors, the sentencer--including the appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695, 104 S.Ct. at 2069.

It is not sufficient that the habeas petitioner merely allege a deficiency on the part of counsel; he must affirmatively plead prejudice in his petition. Hill v. Lockhart, 474 U.S. 52 , 60, 106 S.Ct. 366, 371, 88 L.Ed.2d 203 (1986). Absent such a pleading, a habeas petitioner is not entitled to a federal evidentiary hearing on his claim. Id. The claim may be disposed of for either reasonable performance of counsel or lack of prejudice, and if one is found dispositive, it is not necessary that the court address the other.

1. The jury charge

At the guilt-innocence phase of the trial, the trial court charged the jury that:

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

Now, if you find from the evidence beyond a reasonable doubt that on or about September 19, 1980, in Harris County, Texas, the defendant, Lawrence Lee Buxton, did then and there unlawfully, while in the course of committing or attempting to commit the robbery of Patricia Jackson, intentionally cause the death of Joel Slotnik, by shooting Joel Slotnik with a gun, then you will find the defendant guilty of capital murder.

Buxton's attorneys did not object to this charge, the first section of which tracked verbatim the definition of "intentionally" found in Sec. 6.03(a) of the Texas Penal Code Ann. (Vernon 1974).

The Texas statute states that a person commits a murder if that person "intentionally or knowingly causes the death of an individual;" or "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual;" or in the course of committing or attempting to commit a felony or in the flight from it, he commits a dangerous act that results in death. Tex.Pen.Code Ann. Sec. 19.02(a)(1), (2) & (3). A murder becomes a capital murder if the defendant caused the death "intentionally or knowingly" and if the defendant committed the murder in one of six situations, including a murder committed in the course of a robbery.

Buxton observes that in Hogue v. State, 711 S.W.2d 9, 13 (Tex.Crim.App.1986), the court held that to prove a Tex.Penal Code Sec. 19.03(a)(3) capital murder, the State must show both an intent to commit the underlying felony and an intent to kill the victim. The State must prove that the defendant intentionally committed the murder, and that the intentional killing occurred in the course of committing or attempting to commit one of the predicate offenses.

The jury charge in the instant case, however, was not defective under Texas law. As the state trial court found in its findings of fact and conclusions of law, the Court of Criminal Appeals in Kinnamon v. State, 791 S.W.2d 84 (Tex.Crim.App.1990), held that it was not error to instruct a jury in a capital murder case as to the verbatim definition of "intentionally" found in Sec. 6.03(a) of the Texas Penal Code. Although Sec. 6.03(a) contains the phrase "to engage in the conduct," the application portion of the charge restricts the definition of "intentionally" to its factual context. Read as a whole, therefore, the jury charge required the jury to convict Buxton not because he "engaged in the conduct" of firing a gun, but because he intended to cause Joel Slotnik's death during the course of the robbery. Buxton's attorney was not ineffective for failing to object to an instruction that was not erroneous.

2. The prosecutor's closing argument

During the State's opening argument at the guilt-innocence stage of the trial, the prosecutor made the following unobjected to statements:

That there was an intentional cause that they intention--that the Defendant intentionally caused the death of Joel Slotnik by shooting Slotnik with a gun. Well, if there was any doubt that there was an intentional act of shooting with a gun, that when there was testimony that the Defendant in this case, Lawrence Buxton, held a gun like this (indicating) for seven to eight seconds and then shot. If that's not an intentional act, I don't know what is.

This argument was not objectionable. The prosecutor's argument properly summarized the evidence and drew the reasonable inference from Buxton's careful aim that Buxton intended to cause Slotnik's death. See Darden v. State, 629 S.W.2d 46, 52 (Tex.Crim.App.1982) (four proper areas of jury argument are summation of evidence, reasonable inference from evidence, answers to opposing counsel's argument, and pleas for law enforcement); see also, Flanagan v. State, 675 S.W.2d 734, 744 (Tex.Crim.App.1984) (specific intent to kill may be inferred from the use of a deadly weapon). Furthermore, shortly after the challenged statement, the prosecutor argued to the jury:

I think it's clear beyond any doubt whatsoever that not only was he a party to the robbery but that he knowingly and intentionally killed Joel Slotnik on that day in question.

The prosecutor would not have made this clarifying statement if he was arguing that the jury should find Buxton guilty of capital murder because he engaged in the conduct of robbing the grocery rather than because he intended to cause the death of Joel Slotnik.

3. The voir dire hypotheticals

The State asked juror Robbie Dunlap during voir dire:

Q: As far as reasonable expectation, again, I think you can see that it is also--uh--showing you that you might not have a reasonable expectation.

I'm giving you another example: Supposing in that bank the triggerman who goes in, while he pulls out his gun and deliberately asks for the money--they're not really fast enough--fires it off in the area and it ricochets off something and he strikes a person that he didn't even know was in the background and killed 'em.

You know he's deliberately pulled the gun, deliberately pulled the trigger, but when he shot in the air, he didn't have a reasonable expectation that it would ricochet just right and kill somebody in the back room. And so you see that reasonably, even though he did an intentional act, it may not be considered that he would cause the death.

Both sides accepted Dunlap as a juror.

The State asked juror Vada Kalisek during voir dire:

Now, let's take the same situation, puts everybody on the floor--puts everybody on the floor, got one teller taking the money and he says, "If you don't give me the money in three seconds, I'm gonna shoot somebody," and he really don't mean it and she's going as fast as she can but he thinks, "She can do it a little faster," so he says, "I'll scare her, get her moving," and he fires up in the air. He didn't expect it to go all the way through the ceiling but it does. But, by his misfortune, or somebody else's, it hits a steel beam and ricochets off and hits a person he's got laying on the floor and kills 'em.

* * * * * *

He's guilty of capital murder but he--you might be able to answer that question no because you see that he didn't deliberately--he didn't have that reasonable expectation that death would result from that deliberate act.

Vada Kalisek was sworn in as a juror. The State used a similar hypothetical during the voir dire of juror Gerald R. Mitchell, and again used the bank robbery-ricochet hypothetical during juror Joan E. Spradlin's voir dire. These hypothetical questions provide situations in which the defendant may have been guilty of murder but not capital murder. Although the state habeas court found that the four hypotheticals of which Buxton complains were similar to those found erroneous in Lane v. State, 743 S.W.2d 617 (Tex.Crim.App.1987), it also noted that prior to giving those examples, the prosecutor properly described a deliberate act done by the triggerman with a reasonable expectation that a death would result during a capital murder.

Thus, the jury had before it a correct explanation of what constituted deliberate conduct. Considered in light of the trial as a whole, this error does not raise the "reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69.

D. Did Buxton Receive Ineffective Assistance Of Appellate Counsel, In Violation Of The Sixth And Fourteenth Amendments, Because Appellate Counsel Failed To Argue That The Jury Charge Was Fundamentally Defective?

E. Was Buxton Denied Due Process Of Law Under The Fourteenth Amendment Because A State "Fundamental Error" Doctrine Relating To Jury Charges Was Not Applied To Buxton On Appeal?

F. Was Buxton Subjected To An Ex Post Facto Law By The Application Of An "Egregious Harm" Standard Of Review Relating To Jury Charges Rather Than A "Fundamental Error" Standard?

Buxton contends that he received ineffective assistance of appellate counsel because counsel did not object to the jury charge on appeal as fundamentally defective for the reason referred to in Part E above. In related arguments, he contends that he was denied due process under the Fourteenth Amendment of the United States Constitution and due course of law under the Texas Constitution because of the erroneous jury instructions. Finally, he asserts that he was subjected to an ex post facto law because his appeal was examined under a standard adopted after his crime.

Because we have found that the charge complained of was not objectionable, appellate counsel cannot be faulted for failing to raise the charge as a point of error on appeal. Because these constitutional issues were not raised on appeal, the new fundamental error rule was not applied to them; and because the new rule was not applied, no ex post facto question exists. We conclude, therefore, that Buxton's additional claims do not demonstrate that substantial legal issues remain outstanding.

IV. CONCLUSION.

Because we find that there has been no substantial showing of the denial of a federal right, we deny Buxton's application for a certificate of probable cause to appeal. Furthermore, because Buxton demonstrates neither a substantial case on the merits nor that the balance of the equities weighs in his favor, we deny his motion for a stay of execution.

CERTIFICATE OF PROBABLE CAUSE TO APPEAL DENIED.

STAY OF EXECUTION DENIED.

 

 

 
 
 
 
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