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Michael Wayne EVANS





Classification: Murderer
Characteristics: Robbery
Number of victims: 2
Date of murders: June 26, 1987
Date of arrest: July 11, 1987
Date of birth: November 13, 1956
Victim profile: Elvira Guerrero, 36, and her fiancé, Mario Alvarado Garza, a Mexican national
Method of murder: Shooting (.22 caliber pistol)
Location: Dallas County, Texas, USA
Status: Executed by lethal injection in Texas on December 4, 1986


Date of Execution:
December 4, 1986
Michael Wayne Evans #608
Last Statement:
I want to say I’m sorry for the things I’ve done and I hope I’m forgiven. I don’t hold nothing against no one – Everyone has treated me well and I know it’s not easy for them – That’s all, I’m sorry.

Michael Wayne EVANS

Elvira Guerrero loved the piano and children.  She dedicated her life to her church; church is also where she met her fiancé, Mario Garza, a Mexican national. 

Life could not seem to be more perfect for Guerrero until she and Garza walked through a park one Sunday after dropping off the last child after church.  June 26 was supposed to be a joyful time with celebrating Garza’s baptism, but instead it turned cheerless as the attackers mugged and murdered the couple. 

Guerrero was shot twice with a .22 caliber, and Garza five times.  Guerrero reached out to her killer, and said he would be forgiven.  The killer, Michael Wayne Evans, retaliated by gouging her eyes out and slashing her face “to get her to quit talking.”  Evans and his accomplice, Earl Stanley Smith, loaded the lifeless bodies into Guerrero’s car and drove them to a hay field in Oak Cliff on Tracy and Givendale Streets to dump the bodies. 

Evans and Smith took a total amount of $52.00 from the couple, a watch, and the car.  Evans gave the watch to his girlfriend, and kept the car for his personal transportation.  The bodies of Guerrera and Garza were not found until four days later. 

No one was suspected for the crime until Guerrero’s brother-in-law spotted the stolen car on a Dallas freeway two weeks after the murders.  He pursued the car in a high-speed chase, and then flagged down a police officer after the car had vanished into an apartment complex.  The car lead them to Evans.

Evans confessed, but later claimed that the police had beaten him, and that his companion, Smith, was the one responsible for the murders.  Evans also claimed that he was promised a five-year sentence if he signed the confession, and that he wasn’t read his rights correctly.  There were no apparent motives for the murders.

Guerrero’s sister had only seen Evans once, at the trial.  She described him as “young, black, and thin.  He didn’t look sorry or scared.  Expressionless.”

Defense raised arguments saying that jury selection was not fair due to lack of representation of African and Mexican-Americans. All motions were overruled.  However, the Texas Court of Criminal Appeals, in May 1981, threw out the conviction and death sentence because of errors in jury selection. 

Evans was convicted and sentenced again, however, at the retrial, and Smith received a life sentence for his role in the murders.  A rehearing was denied at the May 1983 appeal.  Defense argued that Evans was insane and unjustly accused because he was black. Both arguments were once again rejected by the courts. District Judge Barefoot Sanders in Dallas, the 5th U.S. Circuit Court of Appeals in New Orleans and the U.S. Supreme Court denied Evans’ appeals.

Evans’ last words seem to mirror that of his victims.  “I want to say that I’m sorry for the things I’ve done, and I hope I’m forgiven.”  He didn’t ask for any visitors and declined his last meal.  He was pronounced dead at 12:21 a.m.


790 F.2d 1232

Michael Wayne Evans, Petitioner-Appellant,
O.L. Mccotter, Director, Texas Department of Corrections, Respondent-Appellee.

No. 85-1665. Summary Calendar.

Federal Circuits, 5th Cir.

June 4, 1986

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

Before GEE, RANDALL and DAVIS, Circuit Judges.

RANDALL, Circuit Judge:

Michael Wayne Evans, a state prisoner sentenced to death, appeals from the dismissal of his petition for a writ of habeas corpus, 28 U.S.C. §§ 2241, 2254. The district court granted a certificate of probable cause. Upon consideration of the arguments raised, in the context of the entire record, we are convinced that Evans has not proved that his trial suffered from federal constitutional infirmities. Accordingly, we affirm.

For the purposes of this proceeding, the facts are as follows. 28 U.S.C. § 2254(d). The decomposed bodies of a man and a woman were found on June 30, 1977, covered with bushes and leaves in a field in south Dallas. Both bodies had been shot several times. Police found near the bodies a cylinder pin or ejection rod from a .22 caliber pistol. The woman's body subsequently was identified by her clothing as Elvira Guerrero, who had last been seen leaving evening church services in her car on June 26, with $40 in church offering money. A .22 caliber bullet was removed from her body. The man's body was determined to be Mario Alvarado Garza, who accompanied Guerrero to the church services.

On July 11, 1977, police noticed Guerrero's automobile parked in an apartment complex area in Dallas. Police asked residents of the complex questions concerning its ownership, and were told that it may have belonged to Belinda Key, whose apartment was about 15 feet from where the car was parked. Police entered the apartment with Key's consent, but Evans, who was living in the apartment, fled unnoticed out a back window. They recovered, from a dresser drawer in a bedroom, a .22 caliber revolver (of a type commonly called a "Saturday Night Special") with its ejection rod missing. Key stated that the pistol belonged to Evans. Questioning of Key convinced officers that Evans was a suspect in Guerrero's slaying. Officers took a palm print from Guerrero's car, which was subsequently identified as belonging to Evans.

Evans returned to the apartment within a few hours, and he was arrested at 4:30 p.m. on July 11. A Dallas police officer gave Evans Miranda warnings immediately. Evans was removed to Dallas police headquarters where, before questioning, he was again administered Miranda warnings. Evans stated that he understood the warnings, and that he wanted to talk. In fact, he talked with the police officers for about two hours. He implicated another individual, Stanley Earl Smith, in the slayings.

Police went with Evans to the housing project where Smith lived, then intended to drive to the home of a justice of the peace for arraignment. While driving to the justice of the peace's home, and in response to further police questioning by different officers than had questioned him previously, Evans told police that he would show them where the keys to Guerrero's car had been thrown, in shrubs near a school.[fn1]

Police searched the area, but did not find the keys. Police then took Evans to the justice of the peace, who, for a third time in less than six hours, administered Miranda warnings. Evans was brought back to the police station at 10:15 p.m., where police asked if he remembered the warnings. After a little over one hour of further questioning, Evans made a written statement admitting having robbed Guerrero and Garza, but assigning primary responsibility for the slayings to Smith.[fn2]

The next day, July 12, police again searched for the car keys where Evans said he had thrown them. Although they were unsuccessful, a member of a maintenance crew trimming the shrubs found a set of keys, and turned them over to police. The keys fit Guerrero's car. Later on July 12, police resumed questioning Evans, after again giving him Miranda warnings. Evans admitted to having participated in the robbery and murder of an individual named David Lee Potts about two weeks before the killing of Guerrero, but stated that Smith had actually killed Potts.

On July 14, 1977, three days after his arrest, police removed Evans from the jail and transferred him to the police station. While driving to the station, one officer told Evans his July 11 statement was not believable. Evans responded that officers should "give him some time and he would think about it."

Later that day, while at the jail, Evans initiated a conversation with police, and said that he wanted to make another statement. Police twice more provided Miranda warnings, after which Evans confessed to having killed Potts in a robbery on June 15, 1977. After another Miranda warning - the seventh within three days - Evans confessed in a written statement to having killed Guerrero.[fn3] At no point in the interrogation process, from the time he was arrested, did Evans request an attorney.

At the trial of Evans, the State introduced evidence that at about midnight on June 27, Evans returned to Key's apartment with blood on his hands and clothing. On June 27, a companion of Key helped Evans clean "blood and flesh" from the inside of Guerrero's car, and brought it back to Key's apartment complex. Key asked Evans where he got the car, and he responded that he and Smith "had jacked[fn4] some people and hit them in the head and tied them up and covered them with bushes." Evans' girlfriend, Juanita Ingram, was also at the apartment when Evans returned in the early morning hours of June 27. Evans told Ingram that he killed some Mexicans, and gave her a watch from "the Mexican lady that he had killed." Finally, Evans told his cousin, Stanley Robinson, in response to a question concerning how he obtained the car in which he was riding, that he took it from a couple that he had killed.

The jury returned a verdict of capital murder and sentenced Evans to death. The Texas Court of Criminal Appeals reversed the judgment and remanded for a new trial because certain prospective jurors were improperly excused in light of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Evans v. State, 614 S.W.2d 414 (Tex.Crim.App. 1980) (en banc). The jury again convicted Evans and, after a hearing at which the state and the defense presented witnesses, sentenced him to death. The conviction was affirmed on direct appeal. Evans v. State, 656 S.W.2d 65 (Tex.Crim.App. 1983) (en banc), cert. denied, 465 U.S. 1109 , 104 S.Ct. 1616, 80 L.Ed.2d 145 (1984).

Evans filed a petition for writ of habeas corpus in the state convicting court, which was denied in August 1984. He filed a second petition in state court immediately thereafter, which also was denied.

The instant federal petition, prepared with the assistance of counsel who represented Evans at trial, was filed on October 10, 1984. The magistrate in a written opinion recommended that the petition be dismissed without a hearing. The district judge adopted that recommendation, but granted Evans a certificate of probable cause to appeal.

Evans raises numerous grounds for relief in his petition, which may be divided into six general categories: (A) Miranda violations in connection with the statement that allowed police to recover the keys to Guerrero's car; (B) flaws in the grand jury and petit jury selection process; (C) various evidentiary rulings at the guilt/innocence and punishment phases of the trial; (D) insufficiency of the evidence to support the death sentence; (E) disproportionality of the death sentence to the offense; and (F) a wholesale attack on the Texas death penalty statute.

A. Miranda Claims.

Evans was arrested at 4:30 p.m. on July 11, taken to police headquarters, then to jail. At about 7:30 p.m., after having been removed from the jail, and apparently in response to police questioning, he told police where he had thrown the keys to Guerrero's car. Although within this three-hour period Evans was twice given Miranda warnings, before going to jail, he was not so warned upon being picked up from the jail. The trial court admitted evidence of this oral statement over Evans' objection. Evans appears to contend that when police re-initiated interrogation at about 8:00 p.m., they should again have warned him of his rights, although they had twice done so in the preceeding three hours, and Evans had not indicated a lack of willingness to talk and had not requested an attorney.[fn5]

As the Supreme Court has stated repeatedly, "custodial interrogations, by their very nature, generate `compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.'" Moran v. Burbine, ___ U.S. ___, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410 (1986) (quoting Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966)). The Supreme Court recently summarized the rationale of Miranda, as well as its limits:

To combat this inherent compulsion, and thereby protect the Fifth Amendment privilege against self incrimination, Miranda imposed on the police an obligation to follow certain procedures in their dealing with the accused. In particular, prior to the initiation of questioning, they must fully apprise the suspect of the state's intention to use his statements to secure a conviction, and must inform him of his rights to remain silent and to "have counsel present . . . if [he] so desires." Id. at 468-70, 86 S.Ct. at 1624-26. Beyond this duty to inform, Miranda requires that the police respect the accused's decision to exercise the rights outlined in the warnings. "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, [or if he] states that he wants an attorney, the interrogation must cease."

Burbine, 106 S.Ct. at 1140-41.

The question we face is whether Evans validly waived the rights conveyed by Miranda warnings when the interrogation was reinitiated by police without a repeated warning. The Court in Burbine reviewed the standard to determine whether a waiver of fifth amendment rights was valid:

Echoing the standard first articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), Miranda holds that "[t]he defendants may waive effectuation" of the rights conveyed in the warnings "provided the waiver is made voluntarily, knowingly and intelligently." 384 U.S., at 444, 475, 86 S.Ct., at 1612, 1628. The inquiry has two distinct dimensions. Edwards v. Arizona, supra, 451 U.S., at [477] 482, 101 S.Ct. at [1880] 1883; Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977). First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

106 S.Ct. at 1141.

The issue raised by Evans appears to concern the second aspect of the test set forth in Burbine, namely the "awareness of the right being abandoned and the consequences of the decision to abandon it." It is incomprehensible how, under the facts of this case, Evans admittedly was aware of his rights, voluntarily and expressly waived them, and conversed with police from about 4:30 to 6:30 p.m. on July 11, then forgot his rights at about 7:30 or 8:00 p.m. when police re-initiated questioning. Upon an independent federal examination of voluntariness, Miller v. Fenton, ___ U.S. ___, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1986), Evans' statement to police concerning the location of the keys to Guerrero's car was, under the "totality of the circumstances," an uncoerced choice made with the requisite level of comprehension, made following an express oral waiver of the rights protected by Miranda warnings. See Burbine, 106 S.Ct. at 1141.[fn6]

B. Jury Issues.

Evans' second group of arguments concerns the composition of the grand jury and petit jury. First, as to the grand jury, Evans contends that "the jury selection system operated to exclude from service as grand jurors an identifiable class of citizens of eligible jurors in the community, Negroes, Mexican-Americans, and Eighteen-to-Twenty One Year Olds," assertedly in violation of the due process and equal protection clauses. The state trial court held a hearing on this issue at which testimony concerning the grand jury selection process in general and in Evans' case in particular was taken. One of the five grand jury commissioners who selected the term grand jury which ultimately indicted Evans was black. Of the twelve members of the July 1977 term grand jury, two were black. Accordingly, 20% of the commissioners and 16% of the grand jury members were members of Evans' race. Review of the facts adduced must be considered in light of the principles set forth in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), and Enriquez v. Procunier, 752 F.2d 111 (5th Cir. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 2658, 86 L.Ed.2d 274 (1985):

In order to secure federal habeas relief on this ground [petitioner] must: (1) establish that the group against whom discrimination is asserted is a recognizable, distinct class, singled out for different treatment; (2) prove that the group has been underrepresented over a significant period of time; and (3) support the presumption thus created by showing that the selection procedure is susceptible of abuse or is not racially neutral.

Id. at 115.

At no point in the state proceedings did Evans introduce evidence tending to show that the representation of minorities on his or any other grand jury was a "significant underrepresentation," Castaneda v. Partida, 430 U.S. at 494, 97 S.Ct. at 1280, in light of the actual racial composition of Dallas County. Evans did not prove, "by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors," id., that minorities are in fact underrepresented, therefore he did not prove a prima facie case of unconstitutional exclusion of blacks or Hispanics. Even assuming that a claim of "systematic exclusion" of individuals between 18 and 21 years old may state a claim cognizable under Partida, which would require us to accept the proposition that such a class is a "recognizable, distinct class, singled out for different treatment under the laws, as written or applied," 430 U.S. at 494, 97 S.Ct. at 1280, the claim fails for the same reasons. There is no record evidence of the degree of underrepresentation of the "class." Accordingly, the challenge to the makeup of the grand jury commissioners and the July 1977 term grand jury must fail. See also Guice v. Fortenberry, 661 F.2d 496, 499-500 (5th Cir. 1981) (en banc).

Second, Evans contends that the composition of the jury that convicted him was flawed, in that the trial court wrongfully excluded five veniremen for cause, in violation of the principles set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The state contends that review of the claim is barred by the procedural default doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Trial counsel did not object to the exclusions, and the Texas Court of Criminal Appeals expressly refused review of the claims for failure to make a contemporaneous objection. Evans v. State, 656 S.W.2d at 67. The federal district court declined to review the claim in light of Sykes. Nevertheless, Evans makes no attempt to fit the claim into an exception to Sykes, see generally Johnson, 778 F.2d at 1047.

Accordingly, we must conclude that we are barred from reviewing the merits of the Witherspoon claim.[fn7] Even if Sykes did not bar review of the claim, however, there would be little question that the five prospective jurors who were excused for cause were properly excluded. First, it should be noted that the determination by the trial judge that a potential juror's views might substantially impair his performance as a juror is a finding of fact entitled to a presumption of correctness. 28 U.S.C. § 2254(d); Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844, 853-55, 83 L.Ed.2d 841 (1985). See also Wicker v. McCotter, 783 F.2d 487, 493 (5th Cir. 1986) (Witt test is "to be applied primarily by the trial court, for determinations of juror bias depend in great degree on the trial judge's assessment of the potential juror's demeanor and credibility, and on his impressions about that venireman's state of mind"). Second, each of the five stated that they would automatically answer "no" to one of the three questions in Tex.Code Crim.P. Ann. art. 37.071(b) that all must be answered affirmatively in order to sentence Evans to death.[fn8] Under these circumstances, there is substantial record evidence to support the conclusion that the "juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Witt, 105 S.Ct. at 852 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)).

C. Evidentiary Rulings.

1. Impeachment of Evans' Witness.

Evans called his confederate, Earl Stanley Smith, as a witness during the defense's case-in-chief at the guilt/innocence phase of the trial, against the sound advice of his counsel. The trial judge warned Evans at length that Smith "may give testimony injurious to the defendant's case." On cross-examination, Smith testified that Evans shot both Guerrero and Garza and cut Guerrero's throat, and that Evans had tried to convince him to testify falsely.

Defense counsel attempted to impeach Smith through evidence that he had already pled guilty to the Guerrero, Garza and Potts murders and received a life sentence, and through evidence of eight prior unrelated convictions of Smith. Evans did not allege that Smith's plea bargain gave him a motive to falsify his testimony. The trial court had already granted the State's motion in limine to prevent such impeachment, finding that under Tex.Code Crim.P. Ann. art. 38.28, a party may not impeach his own witness "merely by offering evidence of the witness' bad character."

Again, we do not review this evidentiary ruling as if we were a state appeals court. Only if the refusal to allow the impeachment, if incorrect, rendered the trial "fundamentally unfair" or violated a specific constitutional right would federal collateral relief be appropriate. Johnson, 778 F.2d at 1050. In order for a trial to be rendered fundamentally unfair due to an evidentiary error, the evidence admitted must be "crucial" or "devastating." Id.

We simply cannot conclude that Smith's testimony was "crucial" or "devastating." Evans' graphic written statements to police, his oral statements to witnesses who testified against him at trial, as well as substantial physical evidence, identified him as the killer of Guerrero. Indeed, the prosecution did not call Smith in its case-in-chief. Smith's testimony was essentially cumulative; thus it was not "crucial." Id. at 1051. As the district court concluded, in "the context of the issue of guilt or innocence the credibility of Smith was irrelevant."

As to whether the ruling violated a specific constitutional right, namely the confrontation clause, cross-examination must be permitted into any incentive the witness may have to falsify his testimony. Davis v. Alaska, 415 U.S. 308, 317, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974).[fn9] However, Evans did not contend at trial and does not contend now that Smith's testimony was falsified as a result of his plea arrangement. Rather, he contends simply that the evidence would show Smith's bad character. The confrontation clause does not require the admission of "all character evidence of whatever relevance and probative value." Cloud v. Thomas, 627 F.2d 742, 744 (5th Cir. 1980), cert. denied, 450 U.S. 1041 , 101 S.Ct. 1760, 68 L.Ed.2d 239 (1981).

Aside from the limited inference that a convicted felon has a propensity to lie, the evidence Evans sought to offer had no relevance to the issue of Smith's truthfulness. The refusal to admit evidence of such limited value did not violate the confrontation clause. Id. at 745. Moreover, even if the refusal to allow the impeachment offended the confrontation clause, in light of the relative unimportance of Smith's testimony to the prosecutor's case, its cumulative nature, the weighty evidence corroborating Smith's testimony, and the overall strength of the prosecutor's case, the error was harmless beyond a reasonable doubt. Delaware v. Van Arsdall, ___ U.S. ___, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986).

2. Evidence of Mitigating Circumstances.

Evans next challenges the refusal of the trial court to allow him to present "mitigating evidence" at the punishment phase. The scope of evidence of mitigating factors that may be presented at a presentence hearing is wide, because "it is desirable to have as much information before [the jury] as possible when it makes the sentencing decision." Gregg v. Georgia, 428 U.S. 153, 203-04, 96 S.Ct. 2909, 2939-40, 49 L.Ed.2d 859 (1976) (plurality opinion), quoted with approval in Zant v. Stephens, 462 U.S. 862, 886-87, 103 S.Ct. 2733, 2747-48, 77 L.Ed.2d 235 (1983).

The jury "must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed." Jurek v. Texas, 428 U.S. 262 , 271, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976) (joint opinion). Insofar as the likelihood or unlikelihood of a defendant's committing future crimes is a constitutionally acceptable factor to be considered before imposing the death penalty, which it is, O'Bryan, 714 F.2d at 386, the jury should be presented with "all of the relevant information" on the issue, Barefoot v. Estelle, 463 U.S. 880, 897, 103 S.Ct. 3383, 3396, 77 L.Ed.2d 1090 (1983).

Evans attempted to introduce evidence that he had earlier pled guilty to the killing of Potts, and received a life sentence. The relevance of that evidence is not immediately apparent. There is no explanation, in either the petition or Evans' brief on appeal, of the relevance of that evidence to the sentencing decision. Indeed, the Court of Criminal Appeals rejected Evans' contention that the evidence should have been admitted because, in part, "he gives no reasons" to explain its relevance. Absent some indication of the relevance of the evidence, Evans' conclusory, one-sentence allegation that "the Court should take into consideration that the Appellant [has] already been Sentenced to Life Imprisonment" must fail.[fn10]

Further, Evans contends, without citation to authority, that he should have been allowed to introduce evidence at the punishment phase that Smith received a life sentence for his role in the killings. That evidence, however, has no bearing on Evans' culpability or likelihood of future dangerousness. As the Texas Court of Criminal Appeals stated, "[e]ach defendant should be judged by his own conduct and participation and by his own circumstances." Evans, 656 S.W.2d at 66-67.

D. Sufficiency of the Evidence.

Evans further challenges the sufficiency of the evidence to support a death sentence: in light of "numerous circumstances," the death penalty is inappropriate, such as "extenuating circumstances" that led to the crime, and his "remorse." Evans did not attempt to introduce to the jury evidence on many of these points; but he was not foreclosed by the trial judge from so doing. In fact, he did introduce evidence of his conversion to Christianity. Moreover, Evans' counsel argued to the jury that there was no evidence that Evans had committed any criminal acts while in prison, therefore he was not a continuing threat to society.

The state, on the other hand, introduced evidence of aggravating circumstances, namely Evans' killing of Potts less than two weeks before Guerrero's slaying, the heinous nature of the killings, an extensive violent criminal record, and Evans' apparent lack of remorse after the killings. That evidence was sufficient to support the jury's findings that Evans acted deliberately, that he would be a continuing threat to society, and that the killing was not reasonable in light of provocation, if any, under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979), and O'Bryan, 714 F.2d at 386.

E. Proportionality.

Evans next asks this court to conduct a proportionality review, arguing that "death is a disproportionately severe and therefore excessive punishment in appellant's case in view of the circumstances of the offense." Evans does not have a federal constitutional right to any type of proportionality review, so long as the state's capital punishment scheme protects against arbitrary and capricious imposition of the death penalty. Mattheson v. King, 751 F.2d 1432, 1446 (5th Cir. 1985), cert. dismissed, ___ U.S. ___, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986). The Supreme Court in Jurek specifically upheld the Texas system against an eighth amendment challenge, because Texas narrowed its definition of capital murder, required proof of at least one statutory aggravating circumstance, and allowed the defense to introduce evidence of mitigating circumstances.

F. Facial Validity of Statute.

As general attacks on the Texas death penalty statute, Evans contends that the statute impermissibly bars introduction of evidence of mitigating factors, such as mental distrubances, a "history of deprivation and misfortune," and the possibility that Evans "will not commit future acts of criminal violence." This argument is squarely foreclosed by Jurek v. Texas, 428 U.S. 262 , 273, 96 S.Ct. 2950, 2957, 49 L.Ed.2d 929 (1976) (joint opinion) (under Texas death penalty statute "the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it"); id. at 279, 96 S.Ct. at 2959 (White, J., concurring in the judgment), and our recent decision in Esquivel v. McCotter, 777 F.2d 956, 957 (5th Cir. 1985) (Texas statute provides jurors with sufficient guidance in considering evidence of mitigating factors). Cf. Pulley v. Harris, 465 U.S. 37, 48, 104 S.Ct. 871, 878, 79 L.Ed.2d 29 (1984) (Texas statute authorizes defense "to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced," quoting Jurek).

Evans also states that the Texas death penalty statute, even if facially constitutional, has been applied unconstitutionally in the past, because death sentences have been more frequently imposed on blacks who kill whites. Further, he contends that the penalty is applied more frequently to ethnic minorities. These conclusory assertions, without an allegation that the state engaged in intentional discrimination against Evans in particular, provide no basis for collateral relief. Prejean v. Maggio, 765 F.2d 482, 484 (5th Cir. 1985); Moore v. Maggio, 740 F.2d 308, 321-22 (5th Cir. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985); see also McCleskey v. Kemp, 753 F.2d 877, 890 (11th Cir. 1985) (en banc).

Finally, Evans contends that the death penalty is "unjustified as a means for achieving any legitimate governmental end." To the extent that this states a constitutional claim, it is settled that the death penalty may, as a general rule, be imposed on individuals for capital murder who themselves killed, attempted to kill, or intended that a killing take place. Cabana v. Bullock, ___ U.S. ___, 106 S.Ct. 689, 697, 88 L.Ed.2d 704 (1986); Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3376, 73 L.Ed.2d 1140 (1982). Evans' claim to the contrary is without merit. Pulley v. Harris, 465 U.S. at 43, 104 S.Ct. at 875 ("death penalty is not in all cases a disproportionate penalty").[fn11]

For the foregoing reasons, the district court's dismissal of the petition for a writ of habeas corpus if AFFIRMED. The stay of execution previously entered in this case is VACATED.


[fn1] Evans contended before the state court that police coerced him into making this statement, and he testified at a pre-trial suppression hearing that he would not have made the statement, except for coercion and threats by the police, such as officers' pulling Evans' hair and slapping him in the head. The trial court, after hearing testimony to the contrary from police, found that police did not coerce Evans and that his statement was voluntary. While the latter conclusion is a question of law subject to independent federal determination, Miller v. Fenton, ___ U.S. ___, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985), the "subsidiary factual question" of "whether in fact the police engaged in the intimidation tactics alleged by the defendant" is entitled to a presumption of correctness. Id. at 451 (citing LaVallee v. Delle Rose, 410 U.S. 690, 693-95, 93 S.Ct. 1203, 1205-06, 35 L.Ed.2d 637 (1973)). For the purposes of this proceeding, in light of the record evidence at the suppression hearing, we must presume to be correct the state court's finding that "there was no coercion or mistreatment or any physical force used against the defendant to cause him to make said statements." Ruling of Trial Court on Defendant's Motion to Suppress, State Trial Record v. VIII, at 686 (Oct. 1, 1981).

[fn2] The July 11, 1977 statement said in its entirety:

On 6/26/77, Earl Smith Picked me up on N. Bennett. I was at school shooting a basketball. Earl said "Mickey I've got a hustle for us." There was a man and a woman in the back seat. Earl was holding a pistol on them. I got in the front seat and drove where Earl told me to. I parked by a little Church on the corner. Earl told them to get out. He took them a short distance and shot them. I heard about five shots. Earl got back in the car and gave me two $10 bills. I drove off. We went to Belinda Key's apt on Bennett Street. Earl told me not to say anything or he would have something done to me. I drove the car around until the brakes went out. One day about a week ago I was driving the car with Earl and my girl friend Juanita. Earl had a friend with him. He noticed somebody following us. He told me to let him get out. They got out but the Mexican kept following me. I drove S. on the highway to Houston and lost him in South Dallas. Then I drove back to N. Dallas and let Juanita out at her house.

While I was driving where Earl told me to I knew he was going to rob them.

[fn3] The July 14 statement regarding the Guerrero slaying read in its entirety:

On June 26, 1977 at about 6:00 p.m., I was at Belinda's house at 1612 N. Bennett St. Earl Smith came over and wanted me to go with him to get some money. I told him I would go and I got my pistol out of the dresser drawer. I checked the pistol and it was loaded with six .22 bullets. I've had this pistol about two months. I stole the pistol out of the Cole Apartments where I saw a couple of people moving. I waited for them to drive off with a load of furniture, then I went inside the apartment and got the pistol off of a shelf in a bedroom. I also took some champagne glasses from the apartment. Earl and I started walking toward a park near Ross Avenue. When we got to the park, we saw a brown and black Pontiac Firebird parked on the side street by the park. A Mexican woman was sitting in the driver's seat and a Mexican man was sitting in the front seat next to her. They were just talking. We walked by the car and looked it over. Earl had my pistol and I had a hook-blade knife. We walked back to the car and Earl stuck the pistol in the lady's face and I pulled the knife on the dude. Earl told the lady that we wanted to get out of this part of the town. The lady offered to take us and Earl told her that we'd take ourselves. Earl told the lady to get into the back seat and I got into the back seat with her. Earl started driving the car and the dude was in the front seat. The dude started jabbering in Spanish and Earl told him to shut up. The lady asked us if we wanted their money. Earl told her that all we wanted was a ride across town. The lady handed me an envelope with about $40.00 in it. I took the money and put it in my pocket. The dude handed Earl his wallet and Earl put the money out of the wallet into his (Earl's) pocket. I think it was about $12.00. Earl drove across town to a big field. Earl parked the car by a big tree. Earl gave me the gun. As soon as the car stopped moving, the Mexican lady said, "you don't have to kill us, we won't tell anybody." Earl looked back at me and said, "you know what it is." I then shot the Mexican lady two or three times. The woman fell over in the seat and the dude jumped out of the car and started running. I handed Earl the pistol and Earl started running after the dude. Earl shot one time at the dude but I think he missed. A few seconds passed and I heard two more shots. I couldn't see Earl or the dude. About this time, the lady took my hand in hers and I realized she was still alive. She was holding my hand and looking into my eyes. Then she said, "God help him, God, help him." I took my hook-blade knife out of my pocket. I cut the lady from the bottom of her chin to her hairline above her forehead. Then the lady said, "God forgive him." I cut the lady two more times in the face. I think I cut her eyes. I was trying to get her to quit talking. All of a sudden the lady turned loose of my hand and quit breathing. I sat there in the car looking at the woman until Earl opened the car door. Earl told me to help him drag the lady out of the car. We dragged the woman over in some bushes. We covered the lady up with some bushes. Then Earl went over to the dude who was laying on the ground dead. Earl took the dude's shoes off. Earl had already covered the man up. Earl got the knife from me and went back to the man. I think Earl was cutting the man. We tried to straighten the grass up so it wouldn't look like a car had been there. We started driving up to a church and Earl said the rod was missing out of the pistol. We parked the car and started looking for it but couldn't find it. Earl said it must have fallen out of the pistol when he shot the dude. We drove the car back to Belinda's house and went inside and got some rags to clean the blood out of the car. Joseph, a boyfriend of Belinda's, helped Earl and I clean the blood out of the car. The next day Belinda gave me some pills. I took four of the pills and got high. I told Belinda that Earl and I had killed the Mexicans and that we had their car. Earl was in the bedroom laying across the bed. My girlfriend and I went to the store and got some beer. When we got back, Belinda and Earl were in bed making love. Juanita and I sat on the sofa and drank beer and smoked weed until about midnight. Then Juanita went home and I went to sleep. I drove the car everyday and I took Earl to work in the car. We kept the car until the police came and got it.

[fn4] Testimony indicated that "jacked" means robbed.

[fn5] Evans does not challenge admission of the two subsequent written statements in which he actually confessed to the killings, supra notes 2-3. If he had, our analysis would be controlled by Oregon v. Elstad, ___ U.S. ___, 105 S.Ct. 1285, 1298, 84 L.Ed.2d 222 (1985) ("a suspect who has once responded to unwarned yet uncoerced questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings").

[fn6] Evans argues further that admission of the oral statement violated Tex.Code Crim.P.Ann. art. 38.22, § 3(a) (Vernon 1979), which states in part that such a statement is admissible "for the purpose of impeachment only," and only if the statement is recorded. The Texas Court of Criminal Appeals rejected this claim, holding that current art. 38.22, § 3 was not in force at the time of Evans' statement in 1977, and that its predecessor, which did not require recording of oral statements, apparently was not offended. 656 S.W.2d at 66. Regardless of whether the statement was properly admitted as a matter of the Texas law of evidence; the alleged error must violate the federal constitution or federal laws in order for the writ to be granted. 28 U.S.C. § 2254(a); Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th Cir. 1985). "As a general rule, admissibility of evidence is a matter of state law, and only a contention that the [improper] admission of the evidence rendered the trial fundamentally unfair or violated a specific constitutional right will be considered in a federal collateral proceeding." Id. (citing Meyer v. Estelle, 621 F.2d 769, 771 (5th Cir. 1980)). As noted above, the admission of Evans' oral statement did not violate a specific federal constitutional right. As to whether the admission of the testimony was improper as a matter of state law, the Texas Court of Criminal Appeals ruled that it was not, and "[w]e will take the word of the highest court on criminal matters of Texas as to the interpretation of its law, and we do not sit to review that state's interpretation of its own law." Seaton v. Procunier, 750 F.2d 366, 368 (5th Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 110, 88 L.Ed.2d 90 (1985).

[fn7] In Catz, Federal Habeas Corpus and the Death Penalty: Need for a Preclusion Doctrine Exception, 18 U. Cal.-Davis L.Rev. 1177 (1985), the author contends that the Sykes preclusion doctrine should be inapplicable in death penalty cases. Id. at 1196-1210. However, as the author notes, that proposal has not been adopted in this circuit. O'Bryan v. Estelle, 714 F.2d 365, 383 (5th Cir. 1983), cert. denied, 465 U.S. 1013 , 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); Gray v. Lucas, 677 F.2d 1086, 1109 (5th Cir. 1982), cert. denied, 461 U.S. 910 , 103 S.Ct. 1886, 76 L.Ed.2d 815 (1983). See Catz, supra, 18 U. Cal.-Davis L.Rev. at 1207 n. 175.

[fn8] Tex.Code Crim.P.Ann. art. 37.071(b) states:

  (b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:

  (1) whether the conduct of the defendant 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;

  (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

  (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

Prospective Juror No. 23 stated "I would have to vote `no' on one of them." Prospective Juror No. 7 said one answer "would have to be `no'" because "I don't believe in death." Prospective Juror No. 74 answered "yes, sir" in response to defense counsel's question that "one of those questions you would answer `no' automatically?" Prospective Juror No. 75, stated that "I am firm" that he would automatically answer one question "no" because "I just couldn't do it myself." Finally, Prospective Juror No. 81 stated that he was "firm" that he would "answer `no'" to at least one question because "I don't really feel that the State has the right to take a life."

[fn9] Evans' confrontation clause right is not lessened by the fact that he, rather than the State, called Smith: "[t]he right of confrontation does not depend upon whether the witness was put on the stand by the accused or the prosecution." United States v. Morgan, 757 F.2d 1074, 1077 (10th Cir. 1985) (citing Chambers v. Mississippi, 410 U.S. 284, 298, 93 S.Ct. 1038, 1047, 35 L.Ed.2d 297 (1973)).

[fn10] It is crucial to note that the proffered evidence concerned only the fact that Evans received a life sentence for the murder of Potts. See Transcript of State Trial, vol. X, at 1259-61. He was not barred from introducing evidence that he had been peaceful and well-adjusted while in prison awaiting trial for either Potts' or Guerrero's killings. In fact, he introduced evidence of his conversion to Christianity while in prison. See infra at D. Sufficiency of the Evidence. Accordingly, the exclusion of evidence of Evans' life sentence for Potts' slaying was not improper in light of the Supreme Court's recent decision in Skipper v. South Carolina, 39 Crim. L.Rep. (BNA) 3041 (U.S. Apr. 29, 1986). In Skipper, the Court determined that the defendant should have been allowed to introduce evidence that, while he was in prison awaiting trial, he "had been a well-behaved and well-adjusted prisoner," because of the possible "favorable inferences from this testimony regarding petitioner's character and his probable future conduct if sentenced to life in prison." Id. at 3042. The Court held that "evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating." Id. The critical difference between the ruling of the trial court in Skipper and the ruling of the trial court in this case is that the prisoner in Skipper was prevented from introducing evidence on his peacefulness in prison (in the form of the testimony of two jailers and one "`regular visitor' to the jail to the effect that petitioner had `made a good adjustment' during his time spent in jail," id.), and Evans was not. The evidence concerning Evans' sentence for Potts' murder simply did not go to that, or any other, relevant issue. Skipper is of no help to Evans.

[fn11] Evans contended in the petition that death by injection of a substance unapproved for such use by the federal government violated federal food and drug laws. But see Heckler v. Chaney, ___ U.S. ___, 105 S.Ct. 1649, 1659, 84 L.Ed.2d 714 (1985). He has not briefed this issue on appeal, therefore we consider it waived.


805 F.2d 1210

Michael Wayne Evans, Petitioner-Appellant,
O.L. Mccotter, Director, Texas Department of Corrections, Respondent-Appellee.

No. 86-1849

Federal Circuits, 5th Cir.

December 3, 1986

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

Before GEE, RANDALL and DAVIS, Circuit Judges.

RANDALL, Circuit Judge:

Michael Wayne Evans was convicted by a Texas jury of capital murder and was sentenced to death.1 The Texas Court of Criminal Appeals reversed the judgment and remanded for a new trial because certain prospective jurors were improperly excused in light of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Evans v. State, 614 S.W.2d 414 (Tex.Crim.App.1980) (en banc). On retrial, Evans was again convicted and, after a hearing at which the State of Texas and the defense presented witnesses, sentenced to death. The conviction was affirmed on direct appeal. Evans v. State, 656 S.W.2d 65 (Tex.Crim.App.1983) (en banc), cert. denied, 465 U.S. 1109 , 104 S.Ct. 1616, 80 L.Ed.2d 145 (1984).2

Evans filed a petition for writ of habeas corpus in the state trial court and the petition was denied in August, 1984. Immediately thereafter, Evans filed a second petition in the state trial court and that petition was also denied. The denial of habeas relief was affirmed by the Texas Court of Criminal Appeals. Thereafter, on October 10, 1984, Evans petitioned the federal district court for habeas relief and for a stay of execution. The United States magistrate, in a written opinion, recommended that the petition be dismissed without a hearing. The district judge adopted the magistrate's recommendation but granted Evans a certificate of probable cause to appeal to this court. The district court granted the stay request.

Evans appealed to this court, raising the following grounds for relief: (1) Miranda violations; (2) flaws in the grand jury and petit jury selection process; (3) various evidentiary rulings at the guilt/innocence and punishment phases of the trial; (4) insufficiency of the evidence to support the death sentence; (5) disproportionality of the death sentence to the offense; and (6) a wholesale attack on the Texas death penalty statute, including the claim that the Texas death penalty statute has been applied unconstitutionally in the past, because death sentences have been more frequently imposed on blacks who kill whites.3

In an opinion dated June 4, 1986, we affirmed the district court's dismissal of Evans' petition for a writ of habeas corpus, finding upon consideration of the arguments raised, in the context of the entire record, that we were convinced that Evans had not proved that his trial suffered from federal constitutional infirmities. We also vacated the stay of execution that had previously been entered in the case. 790 F.2d 1232 (5th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 327, 93 L.Ed.2d 300 (1986). Evans filed a petition for a writ of certiorari in the United States Supreme Court on July 26, 1986. The Supreme Court denied the petition for certiorari on October 20, 1986. Thereafter, Evans' execution was set for December 4, 1986, at a time before sunrise.

On November 24, 1986, Evans filed his second application for habeas relief in the state trial court. He also moved that court for a stay of execution. In this second habeas petition, Evans raises two grounds for relief. First, he claims that he is presently insane and unable to comprehend the nature of the penalty that is imposed against him, and therefore, that his execution at this time would violate the eighth amendment and the principle enunciated in the Supreme Court's recent opinions in Ford v. Wainwright, --- U.S. ----, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). Second, he claims that the "capital murder laws" of the State of Texas are being administered in an unconstitutionally discriminatory manner. With regard to the "discriminatory application" claim, the petition notes that the Supreme Court has granted certiorari in McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985), cert. granted, --- U.S. ----, 106 S.Ct. 3331, 92 L.Ed.2d 737 (1986), and Hitchcock v. Wainwright, 770 F.2d 1514 (11th Cir.1985), cert. granted, --- U.S. ----, 106 S.Ct. 2888, 90 L.Ed.2d 976 (1986), involving the same issue and that therefore, Evans should not be executed while the issue is pending before the Supreme Court. As for his evidentiary proffer, he states only that he "is prepared to offer evidence supporting his claim."

In support of his claim of present insanity, an affidavit ("Andy affidavit") sworn to by Evans' sister, Algerita Andy, is attached to the habeas petition. In her affidavit, Andy states that she has visited Evans several times on death row and while he was confined in the Dallas County Jail and that "[h]is mental condition has become worse and based on my personal observation, I have formed the opinion that, at the present time, Michael is insane and incompetent." Attached to the State's response to the application for writ of habeas corpus are four affidavits sworn to by personnel at the Texas Department of Corrections, all of whom take the position in their affidavits that Evans does not appear to be insane. Additionally, the State submitted a psychological evaluation of Evans in which a correctional psychologist concluded that he sees "no indication of current significant mental disorder" and "no evidence of psychopathology that would limit Mr. Evans' ability to understand his present situation."

In an order dated November 26, 1986, the state trial court denied Evans' request for habeas relief and his application for a stay of execution. In so doing, the court adopted the proposed findings of fact and conclusions of law set forth in the State's response to the application for writ of habeas corpus. Among the findings and conclusions were that "there has been no evidence offered to support his claim of insanity or to require an evidentiary hearing" and that, based on the State's affidavits, "this Court is of the opinion that Applicant has no defects in his faculties; he understands what he was tried for; he understands the purpose of his punishment and the impending fate which awaits him. He has sufficient understanding to know any facts which would make his punishment unjust and he has the requisite intelligence to convey such information to his attorneys."

Further, with regard to the McCleskey issue, the finding adopted by the trial court was that "the victim in this case was an Hispanic woman, not a white female as alleged. There is no evidence offered that this statute has been applied in an unconstitutional manner. Further, the Court will note that this allegation was raised and rejected in the Court of Appeals for the Fifth Circuit. Applicant chose not to present this issue to the Supreme Court in his Writ of Certiorari."

On the basis of the written findings of the trial court, the Texas Court of Criminal Appeals, on December 2, 1986, denied all relief requested in the application for a writ of habeas corpus and also denied Evans' request for a stay of execution. The Court of Criminal Appeals held that:

The Honorable Thomas B. Thorpe, Judge of the said 203rd Judicial District Court, entered findings of fact in a written order on November 26, 1986, on the application for writ of habeas corpus filed in the trial court and, inter alia, finding that applicant to be presently sane and finding no controverted, previously unresolved facts material to this cause, and recommending that all relief be denied.

This Court is of the opinion that said motion for stay of execution should be denied and that all relief requested in said application for writ of habeas corpus, which is returnable to this Court under Article 11.07, V.A.C.C.P., should be denied based upon the written findings of the trial court.

Ex parte Evans, No. 14.216-03, slip op. at 1 (Tex.Crim.App. Dec. 2, 1986) (order denying motion for stay of execution and application for writ of habeas corpus).

On December 2, 1986, Evans filed a second petition for federal habeas relief, and moved for a stay of execution, in the federal district court. Therein Evans reasserts the grounds for relief set forth in his second state habeas petition--his present insanity and the McCleskey issue. Additionally, Evans challenges the fact-findings of the state trial court on the matter of his sanity and argues that an evidentiary hearing should have been held by that court to resolve the fact issues which he alleges were created by the various affidavits filed with the state trial court. Finally, his federal petition now contains two pages of raw correlations in support of his claim that the death penalty is discriminatorily applied in Texas, e.g. 99.1 percent of the persons executed in Texas to date were convicted of killing white victims.

In response to Evans' second petition for federal habeas relief and his application for a stay of execution, the district court, in a considered opinion, denied the stay of execution, dismissed the petition for writ of habeas corpus, and denied a certificate of probable cause to appeal that it deemed to have been sought. Evans v. McCotter, No. 3-86-2983-H, slip op. at 4 (N.D.Tex. Dec. 3, 1986).

With respect to the present insanity claim, the district court noted that the only evidentiary support for the claim was the affidavit filed by Evans' sister, an affidavit that the court characterizes as "general and conclusory" and as "not rais[ing] a legitimate question of Petitioner's present sanity." Id. at 3.4 The court stated that in opposition to that conclusory affidavit were the affidavits of four corrections officials and a psychologist "who have observed Evans during his lengthy stay in death row." Id. at 2. The court noted that the state trial court determined that the State's affidavits were true and correct and held that the state court's finding was fully supported in the record. Id. Further, the district court stated that its own review of the affidavits led it to the same conclusion that the state trial court had reached. Id. at 2-3.

With regard to the McCleskey claim, the district court found that it was bound by the rulings of this court that the grants of certiorari in McCleskey and Hitchcock are not grounds for a stay of execution. Id. at 3 (citing Johnson v. McCotter, 804 F.2d 300 (5th Cir.1986); Watson v. Blackburn, 798 F.2d 872 (5th Cir.), stay of execution granted pending disposition of writ of cert., --- U.S. ----, 107 S.Ct. 25, 92 L.Ed.2d 775 (1986); Wicker v. McCotter, 798 F.2d 155 (5th Cir.1986)).5

On December 3, 1986, Evans filed a notice of appeal of the district court's denial of federal habeas relief and filed with this court an application for a stay of execution. We treat the notice of appeal as an application for a certificate of probable cause to appeal. We conclude that Evans has not made a substantial showing of the denial of a federal right, such as to entitle him to a certificate of probable cause to appeal. See Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983).

Turning first to the issue of Evans' alleged present insanity, we agree with the conclusion of the district court that the Andy affidavit submitted by Evans does not create a fact question about whether Evans is insane within the meaning of Ford v. Wainwright. As the district court aptly noted, the affidavit is general and conclusory.

But even assuming arguendo that the Andy affidavit is sufficient to create a fact issue as to whether Evans is insane, the state trial court, after reviewing the affidavits submitted by the State as well as the Andy affidavit, made a finding of fact that Evans is presently sane. Contrary to Evans' assertion that he has been denied "a factfinding procedure 'adequate to afford a full and fair hearing' on the critical issue" and that he is entitled to an evidentiary hearing in federal district court on the issue of his present sanity, the finding of fact by the state trial court is entitled to a "presumption of correctness" under 28 U.S.C. Sec . 2254(d), and there is no necessity or warrant for an evidentiary hearing in the federal district court. The state trial court's procedure for making its fact determination on the issue of Evans' sanity (as that issue was presented to it) is sufficient under the statute. See, e.g., Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981); Smith v. Estelle, 711 F.2d 677, 681-82 (5th Cir.), cert. denied, 466 U.S. 906 , 104 S.Ct. 1685, 80 L.Ed.2d 159 (1983); Camarillo v. Estelle, 670 F.2d 473, 475-76 (5th Cir.1981).

Turning to what has been called the McCleskey issue, this court has generally dealt with that issue in one of two ways, although there are some exceptions. When the issue was raised by a white petitioner, we have held that a McCleskey claim does not state a claim for relief because it fails to allege racial discrimination against the petitioner. See, e.g., Berry v. Phelps, 795 F.2d 504, 506 (5th Cir.1986), stay of execution granted pending disposition of writ of cert., --- U.S. ----, 107 S.Ct. 10, 92 L.Ed.2d 765 (1986). When the issue is raised by a black petitioner, we have thus far found that the statistical proffers have been inadequate to justify relief, and indeed, have not even justified a hearing. See, e.g., Prejean v. Maggio, 765 F.2d 482, 486 (5th Cir.1985); Moore v. Maggio, 740 F.2d 308, 321-22 (5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985).

We turn then, in this application filed by a black petitioner, to a consideration of the statistical proffer. As noted above, petitioner's second federal habeas petition contains two pages of raw correlations allegedly evincing discriminatory application of the death penalty. The statistical evidence upon which Evans relies remains inadequate under current Fifth Circuit law to show that he has been the victim of discrimination or to entitle him to an evidentiary hearing. See, e.g., Wicker v. McCotter, 798 F.2d 155, 157 (5th Cir.1986), and cases cited therein.

Alternatively, we note that Evans' McCleskey claim was raised in his first petition for federal habeas relief and was there rejected. Assuming, without deciding, that an intervening change in the law would qualify under the "ends of justice" exception to the successive petitions rule, Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts, but see Kuhlmann v. Wilson, --- U.S. ----, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (plurality), we hold that the grant of certiorari in McCleskey does not qualify.

Accordingly, Evans' applications for a certificate of probable cause and for a stay of execution are DENIED.


1 In our earlier published opinion in this case, reported at 790 F.2d 1232 (5th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 327, 93 L.Ed.2d 300 (1986), we set forth in detail the factual background of this case and we do not repeat that description here

2 We note that Evans was represented at both trials and direct appeals, as well as in all subsequent post-conviction proceedings, by the same counsel who are representing him on this application

3 We note that Evans is black and his victim was an Hispanic female

4 Additionally, the court noted that "Ms. Andy does not state when and for how long she last observed her brother," and that the State claims that Andy last visited her brother on March 31, 1986. Id. at 2

5 Additionally, the district court noted that the McCleskey claim was raised by Evans in his first habeas petition and rejected by this court in Evans v. McCotter, 790 F.2d 1232, 1243 (5th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 327, 93 L.Ed.2d 300 (1986)



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