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Robert Nelson DREW Sr.

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: After a fight - Robbery
Number of victims: 1
Date of murder: February 22, 1983
Date of birth: April 8, 1959
Victim profile: Jeffrey Leon Mays (male, 17)
Method of murder: Stabbing with knife
Location: Harris County, Texas, USA
Status: Executed by lethal injection in Texas on August 2, 1994
 
 

 
 

 

Date of Execution:
August 2, 1994
Offender:
Robert Nelson Drew #755
Last Statement:

(First two or three words not understood.) I don’t know why Marta Glass wasn’t allowed in here. I love you all. Keep the faith. Remember the death penalty is murder. They are taking the life of an innocent man. My attorney, Ron Kuley [illegible], will read my letter at a press conference after this is over. That is all I have to say. I love you all.



Robert Drew

Age: 35 (23)
Executed: Aug. 2, 1994
Education level: 10th grade

Drew's death sentence for stabbing runaway Jeffrey Mays, 17, after a fight on Feb. 22, 1983, launched a flurry of protests from his native state of Vermont.

At the time, Drew was the only Vermont native on any death row in the United States. Ernest Puralewski, another hitchhiker in Drew's car, was sentenced to 60 years in prison, though he recanted his earlier story that Drew had participated in Mays' murder.


 
Defendant's Name ROBERT NELSON DREW
Date of Birth April 8, 1959
Defendant's Race White
Criminal History None
Execution Date August 22, 1994
TDC Number 755
Age at the time of crime 24
Age at the time of execution 35
  THE CRIME
Date of Crime February 21,1983
County Harris County
Victim(s) Jeffrey Leon Mays
Race of Victim(s) White male
Relationship to Defendant (if any) Traveling acquaintance
Offense Alleged Capital murder
Factual summary of allegations In the course of committing robbery against Mays, Drew intentionally caused the death of Mays by stabbing him.

In the course of the kidnap of Landrum – stabbing Mays intentionally and knowingly caused death of Mays by stabbing him with a knife.

Intention to cause severe bodily injury to Mays, and caused death of Mays by intentionally and knowingly committing an act clearly dangerous to human life.

While traveling in a car Mays and Drew got into an argument. After beating Mays in the car, Drew and Puralewski (accomplice) ordered Mays out of the car and stabbed him to death.
  THE TRIAL
County where tried Harris County
Trial Judge (name, address and telephone) Hon. Charles Hearn, 263 District Court, Harris County, TX
Prosecutor(s) (name, address and telephone) Eric Hagstette, Assistant DA with DA office of Harris County, TX
Defense Attorney(s) (name, address, and telephone) Don Rogers and Richard Stephanow.
Plea Not Guilty
Racial Makeup of Jury  
Convicted of (statute) Capital Murder – TX PC s.19.03 (a)(2)
Confession? No
Accomplice(s) Ernest Puralewski, who later admitted that he committed the murder alone
Eyewitness(es) One (as well as Puralewski) – Bee Landrum, who later recanted his testimony and admitted that he did not, in fact, see what happened.
Scientific Evidence No psychiatric testimony presented.
Jail House Snitch?  
Defendant Testimony?  
Exculpatory Evidence Offered?  
Additional Punishment evidence by State  
Mitigating Evidence by Defense Drew's Uncle – Donald Martelle – testified as to Drew's broken and poverty stricken home background with a history of domestic problems and drinking problem.

Drew was average in school, had been married and divorced, had one child and was a drifter at the time of the murder.
Evidence of Mental Retardation, Mental Illness, and/or neurological damage? "Applicant's responses were consistent with counsel's personal observation of applicant and corroborated counsel's conclusions that neither insanity nor competency to stand trial were issues in applicant's case."
Sentencing Date: December 9, 1983
  DIRECT APPEAL TO COURT OF CRIMINAL APPEALS
State's appellate attorney  
Defendant's appellate attorney William Kunstler, Bradford E. Yock
Date appellate brief filed March 30, 1984
Grounds Raised Appellant raised 12 grounds of error, encompassing:

Trial court erred in denying appellants out-of-time motion for new trial on basis of a lack of jurisdiction because the "new available" evidence warranted a new trial and because the jury misconduct occurred when parole was discussed.

Challenges to the sufficiency of the evidence to prove that the murder was committed in the course of committing robbery of the deceased and the sufficiency of the evidence to support an affirmative finding of the 2nd special issue submitted – that appellant was a continuing threat to society.

Four points of error re: improper jury argument of prosecutor.

Two points of error re: trial court error in sustaining challenges for cause to venire men Grover Smith and Archie Cotton.
Date of opinion September 30,1987, conviction affirmed
Opinion citation (or attached) Drew v. State, 743 S.W. 2d 207 (Tex. Crim. App. 1987)
Cert to S. Ct? Denied June 28, 1993.
  STATE WRIT OF HABEAS CORPUS
Writ Attorney Ronald Kuby and William Kunstler

Rob Owen

Michael Jackson
Appointed, retained or volunteer? Indigent, so either appointed or volunteer
Grounds Alleged INNOCENCE:

Alternative murderer – Ernest Puralewski confessed in sworn affidavit fully exculpating Drew

Bee Landrum, only eyewitness, recanted

Tape with Landrum hours after killing in which he admitted he didn't see murder was suppressed until 5 years after Drew's trial

Execution of an innocent person violates 8th and 14th Amendment of US Constitution and Art 1 s. 13 of TX Constitution

AMMENDED APPL FOR POST-CON WRIT OF Habeas Corpus

Prosecutor repeatedly used a hypothesis at voir dire that fundamentally misstated TX Law, in violation of TX and federal constitutional guarantees and resulted in inability of jurors to determine guilt reliably and to consider and give effect to mitigating evidence.

Writ Judge Ruben Guerrero
Date of Decision July 28, 1994
Decision Denied
Cert to Supreme Ct.? Denied Feb. 28, 1994
  NEW EVIDENCE OF INNOCENCE
Developed by: writ attorneys
Presented to: TX Court of Criminal Appeals
Summary: Additional evidence that Puralewski had been claiming sole responsibility for the murder since his incarceration in Harris County Jail.

Alan Burns – inmate incarcerated with Puralewski sworn affidavit to above effect.

 

Robert Nelson DREW

Allegation

On August 22, 1994, the State of Texas, with the acquiescence of the federal government, executed Robert Nelson Drew. The state and federal governments failed to ensure Drew's right to a fair and impartial trial. The unfair trial resulted in Drew's execution.

Crime

On February 21, 1983, Jeffrey Mays was stabbed to death. He had been traveling with a friend and three hitchhikers they had picked up. Two of the hitchhikers, Robert Drew and Ernest Puralewski, were arrested, charged, and convicted of capital murder.

Salient Issues

  • Drew's co-defendant, Ernest Puralewski, pleaded guilty to the murder in exchange for a lesser sentence. He later confessed that he, alone, killed Jeffrey Mays.
     

  • Puralewski signed a sworn affidavit fully exculpating Drew.
     

  • The murder weapon was owned by and in the possession of Drew's co-defendant, Puralewski, when Puralewski was arrested.
     

  • Drew was convicted largely on the testimony of one eyewitness, Bee Landrum.
     

  • Landrum later admitted that he did not see what happened and recanted his original testimony.
     

  • Landrum took two polygraph tests; the first was inconclusive and the second showed "no deception."
     

  • The state withheld a tape-recorded interview with Landrum made hours after the killing in which he admitted not having seen the murder. The tape was suppressed for more than five years after the trial.
     

  • Both the prosecution and the defense acknowledged that Drew's knife was not the murder weapon and did not cause fatal wounds.
     

  • Puralewski pleaded guilty to one count of capital murder and was sentenced to 60 years.

Trial

Robert Drew was tried and convicted largely on the testimony of one man, Bee Landrum, who claimed to be an eyewitness to the murder. Landrum's testimony was extremely shocking, powerful, and graphic. He claimed he could see all the people at the crime scene and that he saw Drew pull the victim's head back and slash his throat. He even re-enacted the killing for the jury. A tape-recorded interview with Landrum, made several hours after the murder in which he admitted that he had not seen the killing, was not offered into evidence at trial. Drew's co-defendant, Ernest Puralewski, who was awaiting his own trial for capital murder, refused to testify at Drew's trial. Drew was sentenced to death.

Appeals

In March 1984 Drew filed a motion for a new trial based on Puralewski's confession and affidavit exonerating Drew. The motion was denied without opinion, a decision affirmed by the Texas Court of Criminal Appeals. According to the court, the motion, filed 101 days after sentencing, was 71 days too late and thus no court in Texas could hear the motion or grant relief. A petition for writ of habeas corpus was filed in state court based on new evidence of Drew's innocence, including evidence that had been suppressed by the state. It was denied. Drew filed a petition for writ of habeas corpus in federal district court on June 14, 1988. This court denied relief, and the Fifth Circuit Court of Criminal Appeals affirmed. Drew's execution was stayed November 25, 1992 by a timely filing of a writ of certiorari.

The U.S. Supreme Court denied review on June 28, 1993. Drew had another execution date for October 14, 1993, which was set aside by a new habeas application in state court. It went on to the Court of Criminal Appeals and was denied in an unpublished order, September 30, 1993. Drew filed a second petition for habeas challenging the bias of the state trial judge. Three days later the federal district court dismissed that petition. The Fifth Circuit affirmed on October 11, 1993. Drew filed a petition for certiorari in the U.S. Supreme Court, which denied review. He received a temporary injunction on October 13, 1993, just six hours before his execution, to resolve pending issues. Ultimately, all relief was denied, and he was executed.

Conclusion

Robert Nelson Drew was executed despite evidence that he did not receive a fair trial. Because of a strictly imposed time limit, Texas courts refused to grant Drew a new trial despite substantial evidence of his innocence that only became available after the trial. The state withheld evidence of Drew's innocence and discredited their sole eyewitness, whose testimony was essential in securing Drew's conviction. The withholding of evidence rendered Drew's trial unfair.


Robert Nelson Drew was sentenced to death by injection for the murder of Jeffrey Leon Mays, a 17-year-old runaway from Birmingham, Alabama.

Mays picked up a hitchhiking Drew in exchange for gas money.  Another hitchhiker, Ernest Puralewski, and Drew stabbed Mays during an argument and left him dead in a ditch east of Houston.

Much national attention was given to Drew’s execution starting with the District Judge Charles Hearn, who signed Drew’s execution order with a smiley face following his signature.

Also, 101 days after Drew’s death conviction, the accomplice, Puralewski, recanted his statements and confessed that Drew did not murder the boy.  However, Texas law states that new evidence must be presented within 30 days of the trial.

Many Vermont legislators were outraged over the 30-day limit, and they proposed economic sanctions and launched a letter writing campaign on behalf of the state’s native.

Drew’s initial Oct. 14, 1993 execution date was paused when the 3rd Court of Criminal Appeals in Austin issued a temporary injunction against the execution to review a state district court’s refusal to grant Drew a clemency hearing.

Attorney General Dan Morales and Harris County District Attorney John Holmes petitioned the Court of Criminal Appeals in Austin claiming that the 3rd Court of Criminal Appeals had no right to stop the execution since it was a Harris County case. States’ attorneys agreed and a new execution date of Aug. 2, 1994 was set.

Meanwhile Ronald Kuby, Drew’s attorney, was filing a series of appeals in federal courts.  Kuby stated that representing Drew was the most draining legal experience of his life.  Kuby was litigating against the clock and he had to win every time or Drew would die.

Kuby believes that Drew would not have been convicted of anything if the new evidence had been able to be introduced.  “There are new technologies that bring new information so it is ridiculous that new evidence can not be used after a certain time period,” Kuby said.  Along with Puralewski’s admitting to the murder, it was learned that the prosecution suppressed a witness who later admitted that he did not see anything.

As the day of execution approached, Drew’s future looked dim.  A convicted killer in Vermont, Doug S. Mason II, offered to switch places with Drew.  “I’m willing to go in his place and give them a show of death,” Mason said.

Despite the numerous efforts, from a series of appeals to an attempt to get a 30-day stay from Gov. Ann Richards, Drew’s execution was no longer postponed.

Kuby was there on execution day, his first and last time to witness the lethal injection and he believes hat Drew was killed innocently. Although Drew was a “wild, thoughtless, young man,” with a minor record of simple things like a bar fight, the 12 years on death row changed him into an entirely reformed man.

“The state refuses to admit they made a mistake…I’m ready if it comes to it.  As I’ve said before, I love Jesus Christ, but I’m in no hurry to meet him,” said Drew as his last words.

On Aug. 2, 1994, 35-year-old Robert Nelson Drew was the 79th convict put to death since resuming executions in Texas.


964 F.2d 411

Robert Nelson Drew, Petitioner-appellant,
v.
James A. Collins, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-appellee

United States Court of Appeals, Fifth Circuit.

June 18, 1992

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

Before KING, JOLLY, and HIGGINBOTHAM, Circuit Judges.

KING, Circuit Judge:

Robert Nelson Drew appeals the district court's denial of his petition for a writ of habeas corpus on several grounds. Finding no error, we affirm the district court's denial of the writ.

The recitation of facts is taken in large part from the opinion of the Texas Court of Criminal Appeals. Drew v. State, 743 S.W.2d 207 (Tex.Crim.App.1987).

In February 1983, seventeen-year-old Jeffrey Leon Mays, who was not getting along with his parents, decided to run away from home. He decided to leave his home in Praco, Alabama with his high school friend, Bee Landrum. Both young men had experienced family conflict because of their difficulties with alcohol and drugs. They left Alabama in Landrum's car with eight dollars, some food, and Landrum's buck knife.

Mays and Landrum picked up a number of hitchhikers to obtain gas money. At the suggestion of one, John Sly, they spent the night at the Salvation Army in Lafayette, Louisiana. There they met Drew, who was in the company of a man named Frank. Mays and Landrum agreed to give Drew and Frank a ride to Franklin, Louisiana, thirty miles east of Lafayette, in exchange for money and gas. When they arrived in Franklin, Frank bought pizza and beer for everyone, filled Landrum's car with gas, and gave Drew sixty-five dollars. Mays and Landrum agreed to take Drew to Houston in exchange for more gas money. Mays, Landrum, and Drew left Frank in Franklin and traveled back west toward Lafayette.

While passing through Lafayette, they saw John Sly hitchhiking and picked him up again. Shortly after leaving Lafayette, the group picked up another hitchhiker, Ernest Puralewski. Everyone was drinking beer except Mays, who was driving. At least one marijuana cigarette was passed around, which everyone smoked except Mays. Drew and Puralewski engaged in conversation. Puralewski stated that he was on the run and that he had been in prison with Charles Manson in California.

Mays, apparently unnerved by this conversation, told the group he wanted to stop and make a telephone call to his parents. After appearing to make the call, he returned to the car and stated that his father was gravely ill and that he had to return to Alabama. Drew was upset that Mays was not going to take him to Houston as planned. He believed that Mays had lied about his father in an attempt to abandon the hitchhikers. He punched Mays in the face and held a knife to Landrum's throat. Drew threatened Landrum and Sly that he ought to cut their throats. Drew then wrapped his arm around Mays' neck and, holding a knife to his neck, ordered him to stop the car.

Puralewski, armed with the buck knife he had borrowed from Landrum earlier, pulled Sly out of the car and robbed him. Drew prevented Landrum from leaving the car, telling him "if you try anything you are dead." Drew ordered Landrum to the front seat and moved Mays to the back seat. He began to punch Mays in the face while calling him a punk, accusing him of lying about the telephone call to his parents, and threatening Mays that he was going to die. Mays did not resist this attack.

According to Landrum, Puralewski told Drew to take Mays' watch and wallet if he planned to kill him, so that Mays would not have any identification. Drew took these items. Mays muttered something to the effect that Drew "would not get away with this." Both Drew and Puralewski decided to kill Mays. They ordered Landrum to pull the car to the side of an access road on I-10, where they pulled Mays out of the right side of the car. Watching through the rear-view mirror, Landrum saw Drew pull Mays' head back and make a slashing motion across his throat. Puralewski stabbed Mays at the same time. The two men rolled Mays' body into a ditch and ordered Landrum to continue the drive to Houston. After leaving Puralewski at a bar in Houston, Drew and Landrum were stopped by the police at 3:30 A.M. for speeding. After an investigation, Drew was charged with capital murder.

On December 3, 1983, Drew was convicted of capital murder and received a death sentence. On March 7, 1984, Puralewski pleaded guilty to one count of capital murder and was sentenced to a sixty-year term of imprisonment. On March 24, 1984, Drew moved for a new trial based on newly discovered evidence. This motion was based in part on an affidavit prepared by Puralewski, who declared that he acted alone in killing Mays. The state trial court denied this motion on April 13, 1984.

On May 9, 1984, Drew moved the Texas Court of Criminal Appeals for leave to file for a writ of mandamus or for abatement and requested a hearing. The Court of Criminal Appeals denied this motion on May 14, 1984. On September 30, 1987, the Court of Criminal Appeals affirmed Drew's conviction and sentence. Drew v. State, 743 S.W.2d 207 (Tex.Crim.App.1987).

Drew filed a state habeas petition on April 28, 1988. The state trial court recommended denial of the writ. The Court of Criminal Appeals adopted the trial court's findings of fact and conclusions of law and denied the writ. Ex parte Drew, No. 13,998-02 (Tex.Crim.App. June 14, 1988). On the same day the Court of Criminal Appeals denied his petition, Drew filed a motion for stay of execution and a habeas petition in federal district court.

The district court granted Drew a stay of execution on June 14, 1988. It denied Drew habeas relief on February 20, 1991. Drew appealed this decision and requested the issuance of a Certificate of Probable Cause (CPC). The district court granted CPC on July 31, 1991.

Drew argues that he should receive habeas relief because (1) the jury's consideration of the possibility of parole violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the Constitution; (2) the wrongful dismissal of two prospective jurors violated his Sixth and Fourteenth Amendment rights; (3) prosecutorial misconduct during trial violated his Fourteenth Amendment rights; (4) the application of the Texas capital sentencing statute in his case unconstitutionally prevented the jury from giving full mitigating effect to the evidence of his troubled childhood, his drinking problem, and the fact that he had consumed drugs and alcohol at the time of the crime; (5) Texas' thirty-day limit for new trial motions precluded the consideration of newly discovered evidence showing Drew's innocence in violation of his Eighth and Fourteenth Amendment rights; and (6) he received ineffective assistance of counsel. We address each of these claims separately below.

A. Jury's Consideration of the Possibility of Parole

During the jury's deliberations at the punishment phase of trial, Drew contends, jurors speculated that a life sentence would probably result in parole for Drew and agreed that Drew should never be paroled. Drew submitted an affidavit to the state habeas court in support of this claim. The affidavit, executed by Peter Fleury, a private investigator assisting Drew's attorney, related the content of a telephone conversation Fleury had with Alvin Eisenberg, the foreman of the jury. Fleury averred that Eisenberg told him that the jury felt that Drew should never be paroled and agreed that they did not want Drew "roaming our streets."

Drew argues that his sentence violated his Sixth, Eighth, and Fourteenth Amendment rights because jurors discussed whether Drew would be eligible for parole should they sentence him to life imprisonment. Drew asserts that had the jurors not made this impermissible consideration, they would have returned a sentence of life imprisonment rather than death.

We directly considered whether a Texas jury improperly considered parole law during capital sentencing deliberations in De La Rosa v. Texas, 743 F.2d 299 (5th Cir.1984), cert. denied, 470 U.S. 1065, 105 S.Ct. 1781, 84 L.Ed.2d 840 (1985). We indicated that while the mention of parole law amounts to misconduct, "[o]nly jury misconduct that deprives the defendant of a fair and impartial trial warrants granting of a new trial." Id. at 306, cited in Monroe v. Collins, 951 F.2d 49, 52 (5th Cir.1992). In Monroe, we relied on California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), to hold that,

[b]ecause it is not repugnant to the federal constitution for a state to accurately instruct the jury on parole procedures, it follows that a state trial juror's accurate comments about parole law do not offend the federal constitutional rights of the defendant.

Id. at 53. Furthermore,

we have distinguished between jury panels tainted by outside influence, such as publicity or direct appeals from third parties, and panels on which one or more of the jurors themselves have violated an instruction of the court. In the former case, "a presumption of prejudice arises when the outside influence is brought to the attention of the trial court, and it is incumbent upon the Government to rebut that presumption at a hearing."

United States v. Webster, 750 F.2d 307, 338 (5th Cir.1984) (citations omitted) (quoting United States v. Chiantese, 582 F.2d 974, 978 (5th Cir.1978), cert. denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979)), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985). In the latter case, however, no such presumption arises, and the defendant must demonstrate that jury misconduct prejudiced his constitutional right to a fair trial.1 See id. at 338-39. Since Drew does not allege any outside influence on the jury, he cannot avail himself of the presumption of prejudice.

In response to Fleury's affidavit, the State furnished the state habeas court with an affidavit executed personally by Eisenberg. In his affidavit, Eisenberg stated that "[t]he fact that Drew might or might not one day receive parole if he received a life sentence did not influence our answers." Based on this evidence and the record, the state habeas court found that "[a]lthough the jury was generally aware that a life sentence might result in eventual parole for [Drew], the jury's answers to the special issues were based solely on the evidence and the jury's belief that there was, beyond a reasonable doubt, a probability that [Drew] would commit criminal acts of violence that would constitute a continuing threat to society." Ex parte Drew, No. 13,998-02, at 411. The court also found that "[t]he evidence presented does not demonstrate that there was a misstatement of law, asserted as a fact by one professing to know the law that was relied upon by other jurors who, for that reason, changed their vote to a harsher punishment for [Drew]." Id.2 Because the record fairly supports these findings, we accord them a presumption of correctness pursuant to 28 U.S.C. § 2254(d). See Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 849-50, 74 L.Ed.2d 646 (1983); Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir.1990). Drew does not present evidence to support his allegation of jury prejudice. As such, he fails to show a constitutional violation on this ground.

Drew asserts that the trial court improperly excused for cause prospective jurors Grover Smith and Archie Cotton. This error, he contends, violated his Sixth and Fourteenth Amendment rights as recognized in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

In a capital case, a prospective juror may not be excluded for cause unless the juror's views "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath." Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); accord Witt, 469 U.S. at 424, 105 S.Ct. at 852. Witt also explained that the presumption of correctness conditionally required under § 2254(d) applies to the trial court's determination of a challenge for bias. 469 U.S. at 430, 105 S.Ct. at 855. "[S]uch a finding is based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province." Id. at 428, 105 S.Ct. at 854 (footnote omitted). The trial court need not detail its reasoning or explicitly conclude that a prospective juror is biased, so long as it is evident from the record. Id. at 430, 105 S.Ct. at 855.

A review of Grover Smith's voir dire examination reveals that he stated on several occasions that he would hold the State to a higher burden of proof than the "reasonable doubt" standard in a capital case. Drew portrays Smith's statements as indicating not that he would hold the state to a higher burden of proof, but that Smith would permit the capital nature of the case to influence his perception of what constitutes proof beyond a reasonable doubt. Drew contends that Adams prohibits dismissal of a prospective juror on this ground. In Adams, the Court held that the Constitution did not permit exclusion of jurors

from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond a reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law.

448 U.S. at 50, 100 S.Ct. at 2529. Here, however, prospective juror Smith did not merely state that he might apply the reasonable doubt standard differently in a capital case. He stated on numerous occasions during voir dire questioning that he would apply a standard higher than what he understood as the reasonable doubt standard. The trial court could correctly determine that Smith's insistence on such a high burden of proof would substantially impair his performance as a juror.

Archie Cotton's definition of "continuing threat to society" under the second special issue3 prompted the trial court to dismiss him for cause. Cotton explained that he understood this question as requiring the State to prove the probability that the defendant would commit future murders. He indicated that he would answer the question affirmatively only if the evidence convinced him that the defendant was likely to murder again. Based on Smith's responses, the trial court could correctly conclude that this restrictive definition of "future acts of violence" would prevent or substantially impair the performance of Cotton's duties as a juror by requiring a more stringent burden of proof than the law requires. Because the record supports the conclusions of the trial court concerning prospective jurors Smith and Cotton, we presume that it is correct. Drew's arguments fail to overcome this presumption. Accordingly, we conclude that this claim lacks merit.

Drew argues that the prosecution engaged in persistent and repeated acts of misconduct, depriving him of the right to a fair trial under the Fourteenth Amendment. Drew specifically objects to the prosecution's (1) appeal for swift return of the verdict to avoid insulting the victim's family; (2) what Drew characterizes as its misstatement of the law of capital murder as allowing conviction if the jury finds an ongoing robbery, including robbery of an individual other than the victim; (3) improper reference to the trial judge; (4) bolstering and personally vouching for witnesses; and (5) inflammatory language referring to Drew. In addressing this claim, "[t]he relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)); accord Bell v. Lynaugh, 828 F.2d 1085, 1095 (5th Cir.), cert. denied, 484 U.S. 933, 108 S.Ct. 310, 98 L.Ed.2d 268 (1987). The district court concluded that the prosecutor's actions "did not rise to the dimension of constitutional error necessary to sustain Drew's petition for writ of habeas corpus."

After reviewing the argument in the context of the trial as a whole, we agree with the district court's assessment. First, although the prosecutor's request for a swift verdict on behalf of the victim's family was improper, it was brief.4 In view of the strength of the evidence pointing toward Drew's guilt, we conclude that this remark did not leave an unconstitutional taint on the proceeding. See United States v. Ellender, 947 F.2d 748, 758 (5th Cir.1991) (analysis of whether a prosecutor's argument deprived a defendant of a fair trial involves consideration of (1) the magnitude of the prejudicial effect of the statements; (2) the efficacy of any cautionary instruction; and (3) the strength of the evidence of the defendant's guilt); see also United States v. De La Rosa, 911 F.2d 985, 991 (5th Cir.1991) (same test employed in plain error analysis), cert. denied, --- U.S. ----, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991).

Second, we disagree with Drew that the record clearly reflects that the prosecutor misstated the law of capital murder in Drew's case. In context, the prosecutor's statements can be read to remind the jury of its ability to draw reasonable inferences from the evidence.5 The record does not show that the prosecutor argued that the jury could convict Drew for capital murder if it found that he robbed someone other than the victim. We do not find that this portion of the prosecutor's argument resulted in a denial of Drew's right to due process. See Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 1200, 108 L.Ed.2d 316 (1990).

Third, Drew contends that the prosecutor improperly argued that the trial judge was telling the jury that it had to find Drew guilty of capital murder.6 The thrust of the prosecutor's argument was that the definitions contained in the charge required the jury to find Drew guilty. We "should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations." Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974), quoted in Boyde, 110 S.Ct. at 1200. We therefore hold that this remark did not violate Drew's due process rights.

Fourth, Drew argues that the prosecutor improperly vouched for the credibility of Landrum and Sly. The prosecutor told the jury that he had not told Landrum or any other witness what to say, stated that he thought "Landrum was trying to do what was right," and declared that Sly was credible because Mays' killing "shocks his conscience, too." The Court of Criminal Appeals rejected Drew's argument on direct appeal, finding that the argument in rehabilitation of these witnesses, in response to the defense's attack during its closing argument, was a reasonable deduction from the evidence. Drew v. State, 743 S.W.2d at 218.

Prosecutors "may not assert [their] own credibility as a foundation for that of [their] witnesses." United States v. Garza, 608 F.2d 659, 664 (5th Cir.1985). Here, while the phrasing may have been improper, the prosecutor's comments did not bolster the credibility of the witnesses based solely on the prosecutor's own credibility. The prosecutor's comments were grounded in evidence presented to the jury and did not infect the trial with unfairness so as to violate Drew's due process rights.

Finally, Drew argues that the prosecutor engaged in verbal abuse and inflammatory rhetoric, referring to Drew as a "sadistic killer," a "macho man," and referring to the trip from Louisiana to Texas as a "rolling torture chamber" and a "chamber of execution." Although we agree that the prosecutor used inflammatory language, his comments referred to specific evidence in the record. In this context, we do not find that these arguable errors resulted in a violation of Drew's due process rights.

Drew also argues that the prosecution's failure to reveal the existence of a taped police interview with Bee Landrum, in which Landrum stated he did not see the murder, amounted to a violation of his due process rights. He asserts that the oral statement would have provided significantly more effective impeachment evidence against Landrum than the written statement provided, which was prepared based on an interview conducted approximately six hours later.7

The state habeas court found that Landrum's recorded statement was generally consistent with his later written statement, and that "defense counsel was able to effectively cross-examine Bee Landrum concerning his observations of the stabbing utilizing Landrum's written statement." The district court also concluded that the prosecutor's inadvertent failure to provide Drew's counsel with the recorded statement did not amount to a Brady violation.

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requires that the prosecutor produce evidence that is useful for impeachment, as well as exculpatory material. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). To prevail on a Brady claim, a defendant must show (1) the prosecution suppressed evidence that was (2) favorable to the accused and (3) material to either guilt or punishment. Cordova v. Collins, 953 F.2d 167, 171 (5th Cir.1992). The prosecutor's failure to respond fully to a specific request for evidence favorable to the accused amounts to a constitutional violation "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.

We agree with the district court that Drew does not establish a Brady claim. Drew argues that had he been given the recorded statement, the prosecutor could not have rehabilitated Landrum by arguing that Landrum was more fatigued when he prepared the written statement, or that the typist transcribing Landrum's statement could have written it down inaccurately. We defer to the state court finding that these statements were generally consistent with each other. While the prosecutor failed to provide Drew with Landrum's recorded statement, any incremental impeachment value Drew would receive from the minor inconsistencies between the statements does not raise a reasonable probability that, had the statement been disclosed to Drew's counsel, the outcome of the proceeding would have been different. Drew therefore cannot prevail on this claim.

Drew asserts that the Texas sentencing statute precluded the jury from fully considering and giving effect to relevant mitigating evidence. As a result, he contends, his sentence violates the Sixth, Eighth, and Fourteenth Amendments as recognized in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Drew's uncle, Donald Martelle, testified during the punishment phase of trial that Drew had a troubled childhood and a severe drinking problem. Other evidence in the record included Drew's comparative youth at the time the crime was committed, the fact that he did not strike the blow that killed May, and the fact that Drew had consumed alcohol and marijuana before becoming involved in the crime.

The district court concluded that this claim was procedurally barred because Drew did not present it to the trial court by objecting to the statute, objecting to the charge, or requesting a special jury instruction. Since the district court's decision, the Court of Criminal Appeals has held that failure to object does not waive a petitioner's right to assert a Penry claim. See Selvage v. Collins, 816 S.W.2d 390, 392 (Tex.Crim.App.1991). Therefore, we consider the merits of this claim.

In Penry, the Supreme Court held that when certain mitigation evidence is presented, the Texas capital sentencing scheme must be supplemented with special instructions so that Texas juries can give full mitigating effect to this evidence. 492 U.S. at 328, 109 S.Ct. at 2951-52. This court recently addressed the scope of Penry in Graham v. Collins, 950 F.2d 1009 (5th Cir.1992), cert. granted, --- U.S. ----, 112 S.Ct. 2937, 119 L.Ed.2d 563 (1992). We concluded that special jury instructions are required only when the "major mitigating thrust of the evidence is beyond the scope of all of the special issues." Id. at 1027. Penry disability evidence "can reduce culpability where it is inferred that the crime is attributable to the disability." Id. at 1033.

Drew maintains that the jury could not give full effect to (1) evidence of his troubled childhood,8 (2) evidence of his drinking problem, (3) evidence that Drew was under the influence of alcohol and marijuana at the time he committed the crime, (4) his comparative youth at the time of the killing (Drew was twenty-three years old when he committed the crime), and (5) evidence that Drew did not strike the fatal blow.

In Graham, we noted that evidence of the adverse effects of a troubled childhood might well raise a Penry claim. Id. Like Graham, however, Drew presented "no evidence of any effect this had on [him], or of any reaction on his part to it, and no attempt was made even to explore the subject." Id. As a result, we conclude, as we did in Graham, that the Texas special issues adequately addressed the evidence of Drew's childhood problems.

With regard to Drew's drinking problem, the state habeas court found that "[a]lthough counsel placed evidence of [Drew's] drinking problem before the jury, counsel refrained from giving that issue too much evidence since (1) the evidence clearly did not support a temporary insanity defense; and (2) counsel reasonably believed that such evidence would not be perceived by the jury as mitigating evidence." In view of the meager evidence in the record of Drew's drinking problem, we conclude, under Graham, that its major mitigating thrust was substantially within the scope of the Texas special issues.

Whatever the point at which age can no longer be considered as youth for mitigation purposes, Graham expressly forecloses Drew's argument on this ground:

[W]hatever is mitigating about youth tends to lend support to a "no" answer to the second special issue, and its tendency to do so is essentially proportional to the degree to which the jury concludes such factors were influential in the defendant's criminal conduct. The greater the role such attributes of youth are found to have played in the defendant's criminal conduct, the stronger the inference that, as his youth passes, he will no longer be a danger to society.

950 F.2d at 1031. The Texas capital sentencing scheme allowed the jury sufficiently to consider youth as a mitigating circumstance. Furthermore, as to Drew's evidence that he was under the influence of alcohol and marijuana at the time of the crime, we rejected a nearly identical contention in Cordova, concluding that "voluntary intoxication is not the kind of 'uniquely severe permanent handicap[ ] with which the defendant was burdened through no fault of his own' that requires a special instruction to ensure that the mitigating effect of such evidence finds expression in the jury's sentencing decision." Cordova, 953 F.2d at 170 (quoting Graham, 950 F.2d at 1029). Finally, the first special issue9 squarely addresses the evidence that Drew did not actually kill the deceased. See Johnson v. McCotter, 804 F.2d 300, 302 (5th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1988, 95 L.Ed.2d 827 (1987). Accordingly, this claim is without merit.

Several months after Drew was sentenced, Puralewski recanted his earlier statements faulting Drew for Mays' killing. On March 28, 1984, Puralewski executed an affidavit taking sole responsibility for Mays' death. Based in part on Puralewski's recantation, Drew moved the trial court for a new trial. The trial court rejected the motion on the ground that it lacked jurisdiction to consider claims filed after the thirty-day time limit imposed by Texas Code of Criminal Procedure Article 40.05. On direct appeal, the Court of Criminal Appeals held that Article 40.05 created a jurisdictional bar to Drew's untimely motion. Drew argues that the version of Article 40.05 in effect at the time of his trial10 precluded the consideration of crucial evidence of his innocence of the capital crime in violation of his Eighth and Fourteenth Amendment rights.

In addition to its jurisdictional holding, the Court of Criminal Appeals thoroughly considered the factual allegations supporting Drew's motion for new trial.11 See Drew v. State, 743 S.W.2d at 226-29. The Court of Criminal Appeals observed that Puralewski's recantation was totally inconsistent with the bulk of the testimony presented at Drew's trial. The Court of Criminal Appeals found, moreover, that Puralewski's recantation contradicted "his previous statements given which implicate the appellant in the murder and which are generally consistent with the trial testimony." Id. at 228. The Court of Criminal Appeals further noted that the statement was not contrary to Puralewski's penal interest, since he had already been sentenced to sixty years' imprisonment based on his guilty plea when he made the statement. Based on these findings, the Court of Criminal Appeals implicitly determined that Puralewski's recantation lacked credibility and concluded that the trial court did not abuse its discretion in determining that Drew's newly discovered evidence was not "such as would probably bring about different results upon a new trial." Id. at 229 (citing United States v. Vergara, 714 F.2d 21, 23 (5th Cir.1983) (district court may deny new trial, even without an evidentiary hearing, if it determines that a previously silent accomplice's willingness after conviction to exculpate his convicted co-conspirator is not credible or would not be sufficient to produce a different result)).

Drew contends that he was entitled to have the merits of his motion for a new trial considered and that his constitutional rights were violated because the state did not provide a procedural vehicle for such a consideration. We will assume, arguendo, that Drew's contention is cognizable under § 2254. In view of the extensive state court findings, Drew's claim is distinguishable from that raised in Herrera v. Collins, --- U.S. ----, 112 S.Ct. 1074, 117 L.Ed.2d 279 (1992). In Herrera, no state court confronted the petitioner's evidence of innocence. See Herrera v. Collins, 954 F.2d 1029, 1034 (5th Cir.1992). Here, in contrast, the Court of Criminal Appeals made specific findings relating to the evidence supporting Drew's motion for new trial and rejected the motion on the merits. Whatever the ultimate determination in Herrera may be, the statutory thirty-day deadline on motions for new trial did not foreclose consideration of Drew's newly discovered evidence. Therefore, we conclude that this claim lacks merit.

Drew cites several instances to demonstrate that his trial counsel rendered constitutionally ineffective assistance. We review ineffective assistance of counsel claims under the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Wilkerson v. Collins, 950 F.2d 1054 (5th Cir.1992). To meet this standard, a defendant must show:

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 adversarial process that renders the result unreliable.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Courts must evaluate attorney performance from the circumstances of the challenged conduct and from counsel's perspective at the time to assess whether the representation "fell below an objective standard of reasonableness." Id. at 688-89, 104 S.Ct. at 2065. Further, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). A defendant demonstrates prejudice by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. 466 U.S. at 694, 104 S.Ct. at 2068. In the capital sentencing context, courts inquire into "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.

Drew first contends that he was deprived of his Sixth Amendment rights because his trial counsel failed to interview and subpoena witnesses who could provide valuable mitigating evidence. "[F]ailure to present mitigating evidence 'if based on an informed and reasoned practical judgment, is well within the range of practical choices not to be second-guessed' " under Strickland. Wilkerson, 950 F.2d at 1065 (quoting Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir.1985)). The state habeas court found that Drew either failed to inform counsel of the existence of the three witnesses or Drew personally contacted them and they would not testify. This finding is amply supported by the record, and thus is entitled to a presumption of correctness pursuant to § 2254(d).12

Second, Drew asserts his counsel was ineffective for failing to request a psychiatric interview even though counsel knew that Drew had a serious drinking problem and a troubled childhood. The state habeas court found that counsel made reasonable inquiries into Drew's mental state, inquiring into whether Drew had any past psychological problems or mental illness, and whether he had ever been admitted to a mental hospital or drug/alcohol rehabilitation center. Counsel also observed that Drew appeared to understand the charges against him and assisted in the preparation of his own defense. The record shows that counsel was not unreasonable for failing to conduct further investigation concerning Drew's psychological status. We find no merit to Drew's claim.

Third, Drew argues that his counsel misunderstood and misstated the law of capital murder. The state habeas court found that "the final argument made by defense counsel demonstrates that counsel had more than an adequate understanding of the law of capital murder." Although counsel may have made ambiguous statements about the law, the record as a whole supports the finding of the state habeas court. We therefore reject this contention.

Fourth, Drew maintains that counsel's failure to object to the prosecutor's inflammatory closing argument constituted ineffective assistance. A decision not to object to a closing argument is a matter of trial strategy. We will not disturb the state habeas court's conclusion that defense counsel's failure to object at closing "did not deny [Drew] reasonably effective assistance of counsel as guaranteed by the Sixth Amendment...."

Fifth, Drew contends that his counsel's failure to use due diligence in obtaining the testimony of Puralewski deprived him of his right to effective assistance of counsel. The state habeas court found that counsel made efforts to speak with Puralewski, but that Puralewski refused to speak with him, and informed Drew's counsel that he would invoke his Fifth Amendment privilege against self-incrimination if he were called to testify at Drew's trial. The habeas court also found that Puralewski had given statements to law authorities denying any involvement in the crime. Drew concedes that Puralewski would have invoked the Fifth Amendment if he had been called to testify at Drew's trial. We agree with the district court that Drew does not demonstrate that he received ineffective assistance of counsel on this ground.

Finally, Drew argues that his counsel provided ineffective assistance by failing to conduct post-trial interviews with the jurors. The district court observed that while defense counsel did not conduct extensive interviews, the record shows that counsel did interview the jurors after trial and failed to discover any misconduct. We agree with the district court that counsel's actions did not fall below an objective standard of reasonableness. Nor, for reasons explained above, does Drew demonstrate any prejudice resulting from counsel's failure to discover that the jurors had discussed parole law. As a result, we conclude that this claim lacks merit.

For the foregoing reasons, we AFFIRM the district court's denial of Drew's petition for a writ of habeas corpus.

*****

1

Drew's contention falls into this category. For this reason, United States v. Luffred, 911 F.2d 1011 (5th Cir.1990), which Drew urges us to apply, is inapposite. In Luffred, we addressed the jury's consideration of a chart used by the Government as a trial aid during its closing argument but excluded from evidence by the district court. Under those circumstances, we held that a presumption of prejudice arose. Id. at 1014

2

This finding tracks the five-part test employed by Texas courts to determine whether a jury's discussion of parole law requires reversal. See Monroe v. Collins, 951 F.2d 49, 52 n. 7 (citing Sneed v. State, 670 S.W.2d 262, 266 (Tex.Crim.App.1984)) (defendant must show "(1) a misstatement of law, (2) asserted as a fact, (3) by one professing to know the law, (4) which is relied upon by other jurors, (5) who for that reason changed their vote to a harsher punishment")

3

Tex.Code Crim.Proc. art. 37.071(b)(2) asks the jury to determine "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society."

4

The prosecutor argued:

The only question is was a robbery going on and was the defendant the one who did it. That doesn't take long. To take a long time is unfair. It's an insult to what this has been about. It is an insult to people here--to the victim's family and to Bee.

The trial court overruled defense counsel's objection to this comment. In closing, the prosecutor concluded:

I am going to sit down and ask that you come to a swift verdict and the only verdict that is applicable under the law that of [sic] this defendant being guilty of capital murder.

5

The thrust of the prosecutor's argument was that the evidence showed that there was an ongoing robbery. Based on this showing, the prosecutor argued, the jury could infer that Drew killed Mays in the course of committing a robbery

6

At one point, the prosecutor stated:

I ask you to look at the facts and realize that based upon those facts that there is no other conclusion than that there was a robbery going on, an all day robbery. You had a rolling chamber of torture, a chamber of execution in that car. That's what that rolling party became that this defendant--guilty, guilty, more guilty than Mike [Puralewski] of this offense. And I think you can see that the only way to come to this conclusion safely is by looking at the charge. The Judge needs you to do that. Realize that most of its definitions you have heard before and the Judge is telling you that you have to find him guilty.

At another point, the prosecutor argued to the jury:

"Keep in mind what that evidence is and keep in mind the Court is not telling you what to do. The Court cannot do that."

7

Drew refers to the following exchange in the taped interview:

[Landrum] I don't know. OK, so we pulled over and they took the keys out of the car. Lock my door and says if I move I am a dead man. They take Jeff outside and hear them hit him a few times and then I hear him cutting him. You know, stabbing him.

[Interviewer] Did you look over and see them stabbing him?

[Landrum] I'd seen them throwing him on the ground and I seen them bending over and then when I heard the sounds I shut my eyes and turned away.

8

Martelle testified that Drew's early childhood was marred by repeated fights between his parents. Drew's parents divorced and abandoned him when he was very young, leaving him to be raised by his grandparents

9

The first special issue asks the jury: "Was the conduct of the defendant that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased would result?" Tex.Code Crim.Proc.Ann. art. 37.071(b)(1)

10

Tex.Code Crim.Proc.Ann. art. 40.05 (Vernon 1981) (repealed effective September 1, 1986)

11

The court made this inquiry in response to Drew's alternative argument on direct appeal that state law required the trial court to consider his motion because "where an accused's constitutional rights are in conflict with a valid procedural rule of law the procedural rule must yield to the superior constitutional right." Drew v. State, 743 S.W.2d at 224 (citing Whitmore v. State, 570 S.W.2d 889, 898 (Tex.Crim.App.1977) )

12

"Although the ultimate question of whether or not counsel's performance was deficient is a mixed question of law and fact, state court findings made in the course of deciding an ineffectiveness claim are subject to the deference requirement of section 2254(d)." Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir.1990). A state court need not conduct a live evidentiary hearing to be entitled to this presumption; it can evaluate an ineffective assistance of counsel claim based on the affidavits of the petitioner and the attorney. Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir.1990)


5 F.3d 93

Robert Nelson Drew, Petitioner-appellant,
v.
James A. Collins, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-appellee

United States Court of Appeals, Fifth Circuit.

Oct. 11, 1993

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

Before KING, HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:

Robert Nelson Drew (Drew), 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 October 4, 1993, 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 death sentence. He is scheduled for execution on October 14, 1993. On October 7, 1993, the district court denied Drew all relief and denied Drew a certificate of probable cause (CPC). Drew appeals to this court for a CPC 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 CPC. Furthermore, because Drew does not demonstrate substantial grounds upon which relief might be granted, we deny his motion for a stay of execution.

Because the background facts of this case are set out in full in our earlier opinion, Drew v. Collins, 964 F.2d 411, 413-15 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 3044, 125 L.Ed.2d 730 (1993), only a brief recitation of the pertinent facts will be presented here. On December 3, 1983, Drew was convicted in Texas state court of capital murder and received a death sentence. His conviction and sentence were affirmed by the Texas Court of Criminal Appeals on September 30, 1987. Drew v. State, 743 S.W.2d 207 (Tex.Crim.App.1987).

The state trial court originally set Drew's execution date for May 4, 1988, but postponed the execution until June 16, 1988, by order dated April 28, 1988. It should be noted that the April 28 execution order was signed by the state trial judge with a drawing of a smiling face by his signature. Drew also filed his first habeas petition in state court on April 28, 1988, and in response to the State's answer he filed an amended petition on June 8, 1988. Drew made no complaint in either petition regarding the drawing of the smiling face on the execution order. The state trial court recommended denial of the writ, and the Court of Criminal Appeals adopted the trial court's recommendation. On the same day the Court of Criminal Appeals denied his petition, Drew filed a notice for stay of execution and a habeas petition in federal district court. The district court granted the stay of execution and subsequently denied habeas relief on February 20, 1991. The district court granted Drew a CPC on July 31, 1991. On June 18, 1992, a panel of this court affirmed the district court's denial of relief. Drew, 964 F.2d at 423. The Supreme Court denied Drew's petition for writ of certiorari on June 28, 1993.

On June 15, 1993, the same state trial court that had set Drew's original execution date set Drew's execution date for October 14, 1993. The state judge who set the execution date did so by letter and order, again signing each with a drawing of a smiling face next to his signature. Drew then filed a second application for habeas corpus and request for stay of execution in state court, alleging that the drawing violated his First and Eighth Amendment rights. The Texas Court of Criminal Appeals denied the application for habeas relief by written order on September 30, 1993. Drew then filed his petition for habeas relief in federal district court. The State responded to the petition and moved to dismiss for abuse of the writ.

On October 7, 1993, the district judge denied Drew's request for relief and refused to issue a CPC. The judge granted the State's motion to dismiss for abuse of the writ because the state trial judge had used the same smiling face symbol after his signature on the 1988 execution order as that used on the instant execution order. Thus, "the same claim was available to Petitioner to raise in his first habeas application after the judge signed his initial execution order." The district court also refused to grant Drew's request for a stay of execution because it found no substantial ground for relief in this second habeas petition.

We will grant a CPC to appeal only if the applicant can make a substantial showing of the denial of a federal right. Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). This standard does not require petitioner to show that he would prevail on the merits, but does require him to show the issues presented are debatable among jurists of reason. Id. at 893 n. 4, 103 S.Ct. at 3395 n. 4. If the district judge denies the CPC, as in the instant case, we will review the probable cause determination using the same "substantial showing of the denial of a federal right" test. See Buxton v. Collins, 925 F.2d 816, 817, 819 (5th Cir.), cert. denied, 498 U.S. 1128, 111 S.Ct. 1095, 112 L.Ed.2d 1197 (1991); Celestine v. Butler, 823 F.2d 74, 76, 77 (5th Cir.), cert. denied, 483 U.S. 1036, 108 S.Ct. 6, 97 L.Ed.2d 796 (1987). Essentially the same test applies to an application for stay of execution. Delo v. Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325 (1990) ("A stay of execution pending disposition of a second or successive federal habeas petition should be granted only when there are 'substantial grounds upon which relief might be granted.' " (quoting Barefoot, 463 U.S. at 895, 103 S.Ct. at 3395)). The basic question posed in this case is whether this second federal petition was properly dismissed as an abuse of the writ.

Drew argues that the state trial judge's drawing of a smiling face after the judge's signature on the letter and order of execution (1) constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and (2) constitutes a violation of the Establishment Clause of the First Amendment to the United States Constitution. We may review the merits of Drew's claims only if this second petition does not constitute an abuse of the writ.1

Abuse of the Writ

A second or successive petition for writ of habeas corpus may be dismissed if it fails to allege new or different grounds for relief; further, even if new grounds are alleged, the petition may be dismissed if the judge finds that the failure to assert those grounds in a prior petition constituted an abuse of the writ. Rule 9(b), Rules Governing Section 2254 Cases. The Supreme Court addressed the standards for determining when a petitioner has abused the writ in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In McCleskey, the Court held that "the same standard used to determine whether to excuse state procedural defaults should govern the determination of inexcusable neglect in the abuse of the writ context," id. at ----, 111 S.Ct. at 1468, i.e., a cause and prejudice analysis. Id. at ----, 111 S.Ct. at 1470.

The cause and prejudice standard applies to the abuse of the writ inquiry in the following way. After the State raises the issue of writ abuse, the petitioner bears the burden of showing cause and prejudice. Id. The requirement of "cause" in the abuse of the writ context is based on the petitioner's obligation to conduct a reasonable and diligent investigation aimed at including all relevant grounds for relief in his first federal habeas petition. Id. at ----, 111 S.Ct. at 1472. "If what the petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant." Id.

We applied the McCleskey analysis in the instructive case of Jones v. Whitley, 938 F.2d 536 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 8, 115 L.Ed.2d 1093 (1991). The successive petitioner, Andrew Lee Jones, alleged that, during his incarceration leading up to and through his capital murder trial, the State had regularly administered anti-psychotic and anti-depressant drugs to him. Id. at 541. He argued that neither he nor his counsel were aware of this and that the State's failure to disclose the evidence of the use of psychotropic medication constituted an "objective factor" that interfered with his discovery of the claim. Id. We disagreed, noting that his counsel were "at every stage of the proceedings at least on notice of his mental problems." Id. Significantly, we observed that "[g]iven [counsel's] background knowledge and counsel's experience as public defenders, defense counsel knew or with reasonable diligence could have found out that Jones was under constant psychotropic medication at the jail." Id. (emphasis added). There was no "external impediment" to the discovery of the use of medication. Id. at 542 (quoting McCleskey, 499 U.S. at ----, 111 S.Ct. at 1472).

The instant case is similar to Jones in that there was no external impediment to Drew's discovery of the constitutional claims he now raises in this second petition. Indeed, the record excerpts filed by his counsel in the course of his first federal habeas petition contain two documents signed by the state trial judge, each bearing the characteristic smiling face symbol. As we have already noted, the April 28, 1988, execution order also bore the smiling face symbol. It cannot be seriously argued that petitioner and his counsel were not "at least on notice" of these identical constitutional claims based on the state trial judge's characteristic drawing on the 1988 execution order.

Drew's attempt to avoid McCleskey by challenging only the 1993 execution order cannot succeed. The smiling face drawing now being challenged appeared on documents pertaining to Drew's execution at least as early as 1988. His current constitutional claims could have been discovered and raised in the exercise of reasonable diligence in his first federal habeas petition. Under McCleskey, this fact alone is sufficient to bar Drew's current petition as an abuse of the writ.

In short, Drew is unable to show that, at the time he filed his first petition, he was not free to make the argument he advances here.

For these reasons, Drew's second federal habeas petition constitutes an abuse of the writ. He has failed to make a substantial showing of the denial of a federal right. We therefore do not reach the merits of his claims.

The request for Certificate of Probable Cause is DENIED; the motion for stay of execution is DENIED.

*****

1

Although, for the reasons noted, we do not address the merits of Drew's constitutional claims, we note in passing that not every instance of inappropriate behavior by a state actor rises to the level of a constitutional violation

 

 

 
 
 
 
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