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Justin Lee MAY

 
 
 
 
 

 

 

 

 
 
 
Classification: Spree killer
Characteristics: Robberies
Number of victims: 5
Date of murders: June 1978
Date of birth: April 26, 1946
Victims profile: Men and women
Method of murder: Shooting
Location: Brazoria County, Texas, USA
Status: Executed by lethal injection in Texas on May 7, 1992
 
 
 
 
 
 

 

Date of Execution:
May 7, 1992
Offender:
Justin Lee May #783
Last Statement:
Thanked his family.

 

904 F.2d 228

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

No. 89-6091

Federal Circuits, 5th Cir.

July, 16 1990

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

Before REAVLEY, KING and JOLLY, Circuit Judges.

PER CURIAM:

In February 1985 petitioner Justin Lee May was convicted of capital murder and sentenced to death. In the intervening five years he has pursued the usual direct appeal as well as habeas proceedings in state and federal courts, without success. The district court having granted certificate of probable cause, May's habeas appeal reaches us.

I. Background

A full review of the facts can be found in May v. State, 738 S.W.2d 261, 264-66 (Tex.Crim.App.), cert. denied, 484 U.S. 872 , 108 S.Ct. 206, 98 L.Ed.2d 158 (1987). The following summarizes the facts necessary to understand the issues addressed in this appeal.

Frank and Jeanetta Murdaugh were murdered June 27, 1978, while working at their Western Auto store in Freeport, Texas. The murders went unsolved for over five years. In the spring of 1984 Justin Lee May and Richard Miles were indicted for both murders. May ultimately was tried solely for the murder of Jeanetta Murdaugh. Miles was offered a plea bargain, pursuant to which he was allowed to plead guilty to nonaggravated, noncapital murder after he testified against May.

Miles testified that on June 26, 1978 he and May drove from Houston to Freeport. Miles carried a .32 caliber pistol in his glove compartment. After they registered at a hotel under an assumed name, Miles went to visit a friend. Upon returning, May outlined the plans to rob the Western Auto store the next day. May had gone to the store and stated that he was looking for a shotgun for a relative, who would come in later to pick it up. Miles was to enter the store first, posing as the relative, and May was to follow, armed with Miles' pistol. Miles was to select a shotgun and load it for additional security.

On June 27 Miles drove past the store and let May out at a corner. He parked the car and went into the store with May following just behind him. Jeanetta Murdaugh was behind the counter and Frank was arranging inventory on a shelf.

Miles selected a shotgun, which Frank handed to him. Miles then picked up some shells and began loading the gun. Frank told Miles that loading was prohibited on the premises and, when Frank reached for the gun, May shot him with the .32 revolver. Miles, startled by the shot, fired the shotgun into the ceiling, dropped the weapon, and then ran to the front door.

Miles then heard numerous shots and saw May shoot at Jeanetta Murdaugh. Miles went to his car and drove it into an alley behind the store. May later ran out of the store with an armload of guns, dropping one in the alley. May put the rest of the guns into the car, got in, and returned the .32 revolver to Miles. Miles' testimony was materially corroborated by other witnesses and by physical evidence at the store.

Miles further testified that May told him several months later that his mother had disposed of a rifle and that a friend, Jerry Barmore, would dispose of the rest of the guns. Additionally, Retha May, appellant's mother, identified a letter from her son directing her to dispose of a .308 rifle and a detective indicated that a .308 rifle that had been stolen from the store had not been recovered.

At the close of trial, May was convicted of capital murder for intentionally causing the death of Jeanetta Murdaugh during the course of a robbery. At the punishment phase, the State introduced evidence of May's six prior convictions: a 1969 conviction for robbery by assault, two 1976 convictions for unlawfully passing forged instruments, a 1976 conviction for aggravated assault, a 1978 conviction for aggravated assault, and a 1978 conviction for first degree murder.

The 1978 murder conviction was the result of a guilty plea and the original indictment was for three capital charges of murder in the course of robbery, the so-called Yale Street murders. In the 1978 aggravated assault charge, May had used a .38 caliber pistol that was later shown to have fired some of the fatal shots in the Yale Street murders. Miles was also a prime suspect in those killings.

As mitigating evidence Ralph Price, a work supervisor during a prior incarceration, testified that May's work attendance was good, that he was a good welder and followed instructions, and that no disciplinary violations kept him from working. May's sister, Betty Bevel, testified that in January 1984, she and her two children traveled to Houston to spend a week with May while he was on furlough from prison. According to Bevel, May played Atari, watched television, and visited with her children. During this week, May did not get into any altercations, did nothing violent, and displayed no flashes of temper.

The jury returned affirmative answers to the Texas special issues on deliberateness and future dangerousness and May accordingly was sentenced to death. Tex.Code Crim.Proc.Ann. art. 37.071(b)(1)-(2), (e) (Vernon 1989). On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and the sentence, May v. State, 738 S.W.2d 261, 274 (Tex.Crim.App.1987), and the United States Supreme Court denied certiorari, May v. Texas, 484 U.S. 872 , 108 S.Ct. 206, 98 L.Ed.2d 158 (1987).

After May's execution was set for February 10, 1988, he sought state habeas corpus relief. The warrant of execution was withdrawn, but on May 10, 1988 the trial court recommended denial of the writ and rescheduled the execution for June 15, 1988. The Texas Court of Criminal Appeals subsequently denied habeas relief and May's request for a stay of execution. Ex parte May, Writ No. 17,992-01 (Tex.Crim.App. June 3, 1988).

On June 9, 1988 May filed a petition for federal habeas relief and a stay of execution before the district court. The district court granted the stay of execution. The parties filed cross-motions for summary judgment and May additionally moved for discovery and appointment of experts. On August 21, 1989 the district court issued a Memorandum Opinion and Order, denying all habeas relief. May appeals, raising the following claims:

1) The state violated May's rights to a fair trial and due process by presenting a co-defendant's coached testimony and by interfering with cross-examination of that witness through intimidation.

2) May was improperly denied an instruction on the law governing parole.

3) May's jury was selected in a manner that lead to an underrepresentation of minorities in violation of his Sixth and Fourteenth Amendment rights.

4) May was improperly denied a jury instruction on the lesser included offense of robbery.

5) The state withheld material exculpatory evidence in violation of Brady v. Maryland.

6) May's Eighth Amendment rights were violated because the Texas sentencing procedures prevented full consideration of the mitigating value of May's good character evidence and inhibited the presentation of evidence regarding May's mental impairment and long history of child abuse.

In its Memorandum Opinion and Order, the district court considered each of these claims. After careful review of the record and the arguments of counsel both in their briefs and at oral argument, we are in substantial agreement with the court's analysis on points one through four. We therefore affirm the district court's denial of relief on those grounds. We also conclude that May is not entitled to relief on points five and six. However, some further discussion of those claims is warranted.

II. Analysis

A. Brady Material

Eight months prior to trial, May requested discovery of all exculpatory evidence, including the Yale Street and Murdaugh offense report files.1 The Yale Street file was not produced until requested by the federal district court. Although that court found that the Yale Street file did not contain Brady material, it did not consider one piece of evidence--the rifle May asked his mother to retrieve.

In closing argument, the State emphasized that May had written his mother and asked that she retrieve a rifle of the same caliber as the one that had been taken from the Western Auto store, claiming that it was additional evidence connecting May to the crime. However, the Yale Street file contains a statement by one Bob Burns describing the .308 caliber rifle that Retha May retrieved as a Montgomery Ward brand, while the one stolen from the Western Auto store was a Revelation brand rifle.

May claims that if he had had this information, he could have rebutted a crucial aspect of the State's case and exposed as irrelevant the only incriminating evidence that was in his own handwriting. He therefore claims that in failing to disclose the Yale Street murder report the State withheld material information in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). We regard this discrepancy as peripheral and harmless.

Furthermore, the government is not obligated to furnish information that is fully available to the defendant or that could be obtained through reasonable diligence. United States v. Newman, 849 F.2d 156, 161 (5th Cir.1988). Although the issue regarding the rifles was raised during rebuttal, May could reasonably have anticipated that the gun would become an issue in the case, since it was mentioned in Miles' pretrial statement.2 May had pawned the rifle to Burns and knew its brand, or how to ascertain the brand, if they were two different guns. The evidence therefore was not subject to due process disclosure requirements. Mattheson v. King, 751 F.2d 1432, 1444 (5th Cir.1985), cert. dismissed, 475 U.S. 1138 , 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986); see Newman, 849 F.2d at 161.

B. Texas Sentencing Scheme

In conjunction with his petition for state habeas relief and a claim of ineffective assistance of counsel, May submitted the affidavit of Dr. James Merikangas, a neurologist and psychiatrist, who had examined May on December 16, 1987.3 Discussions with May, his mother, and his sister revealed the following information: May's birth followed a complicated pregnancy, during which time his mother was extremely ill and was medicated for approximately six weeks. May was abused frequently as a child by his now-deceased father. From the time he was three or four years old, May was beaten with coat hangers, belts, and extension cords and on at least one occasion was beaten to unconsciousness. Other head injuries include a concussion sustained during a car accident and in 1975 he was hospitalized for confusion and unexplained loss of consciousness. May is also an alcoholic and has suffered numerous alcoholic blackouts.

Upon examination, Dr. Merikangas found "demonstrable and significant neurological brain damage" that "probably resulted from head injuries, malnutrition and other fetal damage, and [his] other medical problems." Dr. Merikangas concluded that "May's impulse control is substantially impaired by neurological brain damage" and that "[t]he trauma and injuries Mr. May suffered as a physically abused child may have caused impairment in his social functioning and emotional development, and have substantially impaired his ability to reflect on the appropriateness of his actions before manifesting them." Additionally, in Dr. Merikangas' opinion, May has the ability to function well socially and occupationally in a structured setting. He also stated that May is not currently psychotic and is not dangerous when alcohol is not available to him and therefore does not pose a significant threat of violence in prison.

May's trial counsel submitted an affidavit stating that at the time of trial he neither developed nor presented this evidence because it would only serve to bolster the State's case with respect to the future dangerousness question. May claims that, because he was given no assurance that an instruction regarding the effect of mitigating evidence would be given, he was effectively precluded from presenting evidence of his disadvantaged background and mental impairments.4 The district court rejected May's argument on the grounds (1) that any Penry claims were procedurally barred; and (2) that May was not entitled to relief for his deliberate failure to present Penry evidence.

We cannot agree with the conclusion that May's claim was procedurally barred. Federal review may be barred only if the last state court to consider the claim expressly and unambiguously based its denial of relief on a procedural default. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). The Texas Court of Criminal Appeals considered a challenge to the sentencing instructions. However, it did not mention any procedural error, but instead denied relief with an order expressly based on the merits.5 Ex Parte May, Writ No. 17,992-01.

We do agree, however, that May's Penry claim must fail. Had May offered evidence of his abusive childhood and his resultant neurological damage, it is quite clear that under Texas law that evidence would have been admissible. See Burns v. State, 761 S.W.2d 353, 356-59 (Tex.Crim.App.1988); Johnson v. State, 691 S.W.2d 619, 626 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865 , 106 S.Ct. 184, 88 L.Ed.2d 152 (1985); Cass v. State, 676 S.W.2d 589, 592 (Tex.Crim.App.1984). May, however, made a tactical decision to neither develop nor present this evidence at trial. We have previously ruled that a defendant's deliberate failure "to introduce mitigating evidence as a tactical decision ... does not come within the requirements announced in Penry." DeLuna v. Lynaugh, 890 F.2d 720, 722 (5th Cir.1989); see also Williams v. Lynaugh, 837 F.2d 1294, 1296-98 (5th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 3260, 106 L.Ed.2d 605 (1989); Bell v. Lynaugh, 699 F.Supp. 597, 600 (E.D.Tex.), aff'd on other grounds, 858 F.2d 978 (5th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 3262, 106 L.Ed.2d 607 (1989). Accordingly, the district court's order denying all habeas relief is AFFIRMED.

*****

REAVLEY, Circuit Judge, with whom KING, Circuit Judge, joins, specially concurring:

I join the court's affirmance of Justin Lee May's death sentence because I believe it mandated by controlling precedent. I write separately, however, to express my view of the injustice produced through the Texas sentencing scheme and the contradictory federal law that has upheld that scheme. May, through the efforts of his counsel, has been caught in a legal web, the beginnings of which can be traced to Jurek and its upholding of the facial constitutionality of the Texas statute. See Jurek v. Texas, 428 U.S. 262, 276-77, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976) (Stevens, J., plurality).

In the last fourteen years, the Supreme Court has consistently stated that a capital sentencing jury must be able to consider the circumstances of the crime as well as the background and character of the defendant before choosing between a life and a death sentence. See Penry v. Lynaugh, --- U.S. ----, 109 S.Ct. 2934, 2951, 106 L.Ed.2d 256 (1989); Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 1824, 95 L.Ed.2d 347 (1987); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 1672-73, 90 L.Ed.2d 1 (1986); Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2743-44, 77 L.Ed.2d 235 (1983); Eddings v. Oklahoma, 455 U.S. 104, 113-15, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982) (Powell, J., plurality); Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978) (Burger, C.J., plurality); Woodson v. North Carolina, 428 U.S. 280, 303-04, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (Stewart, J., plurality); Gregg v. Georgia, 428 U.S. 153, 197-98, 96 S.Ct. 2909, 2936-37, 49 L.Ed.2d 859 (1976) (Stewart, J., plurality).

When first analyzing the Texas statute for conformity with this requirement, the Court examined the three statutory questions--on deliberateness, future dangerousness, and the reasonableness of a response to provocation by the deceased--to determine "whether the enumerated questions allow[ed] consideration of particularized mitigating factors." Jurek, 428 U.S. at 272, 96 S.Ct. at 2956. Because the Texas Court of Criminal Appeals broadly interpreted the second question as permitting consideration of any mitigating evidence, the Jurek Court upheld the statute's constitutionality. Id.; see Estelle v. Smith, 451 U.S. 454, 472-73, 101 S.Ct. 1866, 1878, 68 L.Ed.2d 359 (1981); Lockett, 438 U.S. at 606-07, 98 S.Ct. at 2966. The Texas Court of Criminal Appeals has adhered to this interpretation, permitting the presentation of a wide range of mitigating evidence, see, e.g., Johnson v. State, 691 S.W.2d 619, 626 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865 , 106 S.Ct. 184, 88 L.Ed.2d 152 (1985), and reversing cases in which the trial court has excluded mitigating evidence, see Burns v. State, 761 S.W.2d 353, 358 (Tex.Crim.App.1988); Cass v. State, 676 S.W.2d 589, 592 (Tex.Crim.App.1984).

Accordingly, at least until 1988, when Franklin v. Lynaugh called into question the sentencing jury's ability to consider all mitigating evidence, 108 S.Ct. 2320, 2333 (O'Connor, J., concurring), the Fifth Circuit and the Texas Court of Criminal Appeals consistently held that additional instruction was not constitutionally mandated for consideration of any mitigating evidence, see, e.g., Penry v. Lynaugh, 832 F.2d 915, 926 (5th Cir.1987), reversed, --- U.S. ----, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Williams v. Lynaugh, 837 F.2d 1294, 1295-96 (5th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 3260, 106 L.Ed.2d 605 (1989); Riles v. McCotter, 799 F.2d 947, 952-53 (5th Cir.1986); Esquivel v. McCotter, 777 F.2d 956, 957-58 (5th Cir.1985), cert. denied, 475 U.S. 1132 , 106 S.Ct. 1662, 90 L.Ed.2d 204 (1986); Cordova v. State, 733 S.W.2d 175, 189-91 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1240 , 108 S.Ct. 2915, 101 L.Ed.2d 946 (1988); Gardner v. State, 730 S.W.2d 675, 702 (Tex.Crim.App.), cert. denied, 484 U.S. 905 , 108 S.Ct. 248, 98 L.Ed.2d 206 (1987); Clark v. State, 717 S.W.2d 910, 920 (Tex.Crim.App.1986), cert. denied, 481 U.S. 1059 , 107 S.Ct. 2202, 95 L.Ed.2d 857 (1987); Fierro v. State, 706 S.W.2d 310, 318 (Tex.Crim.App.1986); Anderson v. State, 701 S.W.2d 868, 873-74 (Tex.Crim.App.1985), cert. denied, 479 U.S. 870 , 107 S.Ct. 239, 93 L.Ed.2d 163 (1986).

However, as demonstrated by the Court's rendering of Penry, application of the Texas sentencing statute can be unconstitutional. 109 S.Ct. at 2952. The fact that the Supreme Court reached an opposite conclusion with regard to some mitigating evidence can be traced to an oversight in the original Jurek analysis. In considering the statute's constitutionality, the Jurek plurality focused primarily on the Texas Court of Criminal Appeals' broad interpretation of the statute, which permitted the presentation of a large array of evidence. Jurek, 428 U.S. at 272-73, 96 S.Ct. at 2956-57. Any restrictions imposed by the statutory questions were considered as merely guiding and focusing the jury's consideration of mitigating evidence. Id. at 273-74, 96 S.Ct. at 2957. The Justices, however, did not carefully consider the statutory questions from the perspective of an individual juror and the variety of evidence that could be relevant to the sentence, independent of the special issues. A juror who concludes that the evidence requires affirmative answers to questions on deliberateness and future dangerousness, but who also concludes that the defendant's character, moral culpability, or social worth mitigates against a death sentence, may not (and should not) feel at liberty to express her ultimate conclusion, since it requires nullification of one of the statutory questions. We can never be certain under this statutory scheme that a juror in this predicament will not be silenced by the need to comply with the law's facial requirements. Graham v. Collins, 896 F.2d 893, 896 n. 3 (5th Cir.) (petition for rehearing en banc granted, 903 F.2d 1014) (5th Cir. June 4, 1990); see Jurek, 428 U.S. at 279, 96 S.Ct. at 2959 (White, J., concurring) ("[I]t should not be assumed that juries will disobey or nullify their instructions."). In Penry, the Court found that without additional instruction this risk was too great with regard to evidence of mental retardation and child abuse. 109 S.Ct. at 2952.

However, at the time of May's trial, the state and federal courts consistently maintained that the Texas sentencing scheme is constitutionally applied without additional instruction. O'Bryan v. Estelle, 714 F.2d 365, 385 (5th Cir.1983), cert. denied, 465 U.S. 1013 , 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); Spivey v. Zant, 661 F.2d 464, 471 & n. 10 (5th Cir. Unit B Nov. 1981), cert. denied, 458 U.S. 1111 , 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982); Granviel v. Estelle, 655 F.2d 673, 675-77 (5th Cir.1981), cert. denied, 455 U.S. 1003 , 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982); Johnson, 691 S.W.2d at 626; Stewart v. State, 686 S.W.2d 118, 121 (Tex.Crim.App.1984), cert. denied, 474 U.S. 866 , 106 S.Ct. 190, 88 L.Ed.2d 159 (1985); Lackey v. State, 638 S.W.2d 439, 455 (Tex.Crim.App.1982); Quinones v. State, 592 S.W.2d 933, 947 (Tex.Crim.App.), cert. denied, 449 U.S. 893 , 101 S.Ct. 256, 66 L.Ed.2d 121 (1980); see Penry v. State, 691 S.W.2d 636, 654-55 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1073 , 106 S.Ct. 834, 88 L.Ed.2d 805 (1986).

This fixed state of the law left defense counsel representing victims of child abuse and mental impairment with a tactical dilemma: (1) either to present the mitigating evidence, which would do more harm than good by bolstering the state's case with regard to future dangerousness, and then to pursue a losing constitutional argument; or (2) to withhold that evidence and hope that other arguments would persuade the jury to impose a life sentence. Any capable defense attorney would pursue the latter course, as did May's counsel.

Counsel's tactical decision, wise and necessary at the time, may be considered imprudent today because of an unpredictable change in the law. The important reality is that May's jurors were prevented from hearing extremely probative evidence on his moral culpability and on the appropriateness of a death sentence. Consequently, May has been deprived of the sentencing jury's fully informed judgment of his crime and his character. He has been caught in a web spun of words and logic that, in the end, has deprived May of his constitutional rights, a deprivation that may cost him his life.

*****

1 Although May raised three Brady claims, we believe that the other claims were adequately considered by the district court

2 In his pretrial statement, Miles claimed that after his arrest he and May had "talked about the gun his mother threw in the river and [Justin] said he had told [investigators] it was an antique."

3 Although May raised an ineffective assistance of counsel claim before the district court, he has not pursued that claim on appeal

4 With regard to the evidence May actually introduced during the punishment phase, we agree with the district court's conclusion that the jury was able to give effect to that evidence through the special issue on future dangerousness. See Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 2333-34, 101 L.Ed.2d 155 (1988) (O'Connor, J., concurring); Tex.Code Crim.Proc.Ann. art. 37.071(b)(2) (Vernon 1989)

5 The question of whether Penry claims are subject to procedural bar rules under Texas law is currently pending before the Texas Court of Criminal Appeals. See Selvage v. Collins, 897 F.2d 745 (5th Cir.1990)

 
 

948 F.2d 162

Justin Lee May, Petitioner-appellant,
v
.
James A. Collins, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-appellee

United States Court of Appeals, Fifth Circuit.

Nov. 23, 1991.
Certiorari Denied Jan. 13, 1992

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

Before KING, JOLLY and SMITH, Circuit Judges.

KING, Circuit Judge:

Justin Lee May, a Texas prisoner, is scheduled to be executed before dawn on November 26, 1991. In this, his second federal habeas petition, he contends that the Texas capital sentencing statute, as applied at the time of his trial, deprived him of his Sixth Amendment right to counsel by forcing his counsel to make a tactical decision to withhold mitigating evidence of brain damage, mental impairment and physical abuse as a child. We agree with the district court that this claim amounts to no more than an attempt to relitigate an issue already decided against May, and, accordingly, we deny his application for a certificate of probable cause to appeal and deny a stay of execution.

In 1985, May was found guilty in a Texas court of the murder of Jeanetta Murdaugh and sentenced to death. A full recital of the facts may be found in the opinion of the Texas Court of Criminal Appeals affirming his conviction and sentence on direct appeal, May v. State, 738 S.W.2d 261 (Tex.Crim.App.), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 158 (1987), and in this court's denial of his first petition for habeas corpus, May v. Collins, 904 F.2d 228 (5th Cir.1990) (per curiam), cert. denied, --- U.S. ----, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991). The latter also contains a review of the procedural history to that point. We repeat here only as necessary for a full understanding of the issues presented in this appeal.

In the penalty phase of the trial, May introduced as mitigating evidence the testimony of Ralph Price, a work supervisor during a prior incarceration, and Betty Bevel, May's sister. Price testified to May's good work attendance, his ability to follow instructions, and his lack of disciplinary problems. Bevel testified that she visited May for a week in 1984 while May was on furlough from prison and that he displayed no violent tendencies during that time. The jury answered in the affirmative the Texas capital sentencing statute's special issues on deliberateness and future dangerousness, and sentenced May to death. Tex.Code Crim.Proc.Ann. art. 37.071(b)(1)-(2), (e) (Vernon 1991).

After the denial of relief on direct appeal and state habeas, May filed a petition for habeas corpus in federal court raising seven claims for relief. The district court denied all relief, and May pursued six of those claims on appeal.1 One claim was that

May's Eighth Amendment rights were violated because the Texas sentencing procedures prevented full consideration of the mitigating value of May's good character evidence and inhibited the presentation of evidence regarding May's mental impairment and long history of child abuse.

May, 904 F.2d at 230. In support of this claim, May presented the affidavit of Dr. James Merikangas, a neurologist and psychiatrist, who had examined May on December 16, 1987. Dr. Merikangas's affidavit indicated that May's birth followed a complicated pregnancy, during which his mother was extremely ill and medicated for approximately six weeks; that May was frequently abused as a child by his father, who beat him with coat hangers, belts and extension cords; that he had been beaten on at least one occasion to unconsciousness; that he received head injuries in a car accident in 1975; and that May is an alcoholic and has suffered alcoholic blackouts.

Dr. Merikangas concluded that May had suffered "demonstrable and significant brain neurological brain damage," that May's "impulse control is substantially impaired by neurological brain damage," and that the trauma and injuries he suffered as a child "may have caused impairment in his social functioning and emotional development, and have substantially impaired his ability to reflect on the appropriateness of his actions before manifesting them."2 In further support of this claim May's trial counsel submitted an affidavit stating that this evidence was withheld from the jury because of concerns that it would lead the jury to find adversely to May on the question of future dangerousness.

May's claim was that, because he could not be assured that the jury would be instructed that they could use evidence of mental impairment and child abuse for purposes not directly relevant to the special issues, he was precluded from developing evidence which would have detracted from his culpability for the crime. This claim anticipated, in part, the Supreme Court's holding in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), that the Texas capital sentencing scheme was applied unconstitutionally when, after evidence of a defendant's mental retardation was introduced, the jury was not instructed that they could consider the mitigating value of this evidence separate and apart from its connection to the special issues.

However, unlike the defendant in Penry, May never introduced the mitigating evidence he contended the jury should have had an opportunity to consider, but made a tactical decision to withhold it. Although the constitutional requirement of an instruction guiding the jury's consideration of the defendant's mitigating evidence was not established at the time of May's trial, it was clear that May could have introduced the mitigating evidence if he so chose. May, 904 F.2d at 232; see Jurek v. Texas, 428 U.S. 262, 272, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976) (upholding Texas death penalty statute as facially constitutional because it had been construed to permit introduction of "particularized mitigating factors"). Therefore, we rejected the Eighth Amendment claim.

May ... made a tactical decision to neither develop nor present this evidence at trial. We have previously ruled that a defendant's deliberate failure "to introduce mitigating evidence as a tactical decision ... does not come within the requirements announced in Penry." DeLuna v. Lynaugh, 890 F.2d 720, 722 (5th Cir.1989) ...

May, 904 F.2d at 232 (additional citations omitted).

Following our decision, May petitioned for rehearing and rehearing en banc, both of which were denied on July 16, 1990. The Supreme Court denied certiorari on January 14, 1991. May v. Collins, --- U.S. ----, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991). May's execution was then scheduled for April 30, 1991. May filed a second state habeas petition on April 18. On April 23, the trial court entered findings of fact and conclusions of law and recommended that relief be denied.

The Texas Court of Criminal Appeals stayed May's execution on April 25 pending consideration of the appeal. On October 15, the court denied relief on the basis of the trial court's findings and vacated the stay of execution. Ex parte May, No. 17,992-02 (Tex.Crim.App. Oct. 15, 1991). May's execution was rescheduled for November 26.

On November 15, May initiated the present action in federal court, alleging as the sole ground for relief the violation of his Sixth Amendment right to effective assistance of counsel as a result of the Texas capital sentencing scheme's failure to assure an instruction on the uses of mitigating evidence. May again submitted the affidavits of Dr. Merikangas and trial counsel in support of this claim.

On November 18, the district court issued an opinion in which it characterized May's claim as simply a recasting of the Eighth Amendment claim which had been denied in May's first federal habeas petition. The court considered itself "bound by the Supreme Court's decision in Penry, and by applicable Fifth Circuit case law, most notably its previous decision in May's first federal habeas proceeding." The court accordingly denied the writ, denied a stay of execution, and denied a certificate of probable cause to appeal.

Because the district court denied a certificate of probable cause to appeal, we have no jurisdiction to decide May's appeal unless we first decide to grant one. Fed.R.App.P. 22(b). To obtain a certificate of probable cause, May must "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) (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972)); Jones v. Whitley, 938 F.2d 536, 539 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 8, --- L.Ed.2d ---- (1991). That is, he "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4 (citations omitted); see Sawyer v. Whitley, 945 F.2d 812, 815 (5th Cir.1991) (granting CPC because case "presented a question which is debatable among jurists of reason"), cert. granted, --- U.S. ----, 112 S.Ct. 434, 116 L.Ed.2d 453 (1991).

Our analysis of May's present petition convinces us that May's attempt to advance a Sixth Amendment claim as a result of the operation of the Texas capital sentencing scheme at the time of May's trial amounts to no more than a reargument of the Eighth Amendment claim that was considered and rejected in his first round of federal habeas. Because May has presented the same claim which was earlier determined on the merits, the district court was correct to dismiss the petition. Rule 9(b) of the Rules Governing 2254 Cases.

B. Availability of a Sixth Amendment Claim Following Penry

May goes to great lengths to distinguish the Sixth Amendment claim presented in his present petition from the Eighth Amendment claim decided against him in his first federal petition.3 He relies on the principle, reiterated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that "government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense." Id. at 686, 104 S.Ct. at 2063. He argues that the Texas scheme affected counsel's decisionmaking ability in much the same fashion as the rule, struck down in Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), which required a defendant in a criminal trial to testify first or not at all. We find his attempt to invoke the Sixth Amendment unconvincing.

In Strickland and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Court discussed the two general ways in which a defendant can be denied the effective assistance of counsel. The first involves the actual or constructive denial of any counsel, and arises when counsel is either totally absent or is prevented by surrounding circumstances from providing the effective assistance the Sixth Amendment contemplates. Cronic, 466 U.S. at 659, 104 S.Ct. at 2047; Strickland, 466 U.S. at 692, 104 S.Ct. at 2067.

These denials of counsel are legally presumed to result in prejudice to the defendant. Id. The second involves a performance which is so far below the standard of attorney competence that the defendant can point to the actual prejudice caused by counsel's errors. Cronic, 466 U.S. at 659 n. 26, 104 S.Ct. at 2047 n. 26; Strickland, 466 U.S. at 693-96, 104 S.Ct. at 2067-68. May invokes the first kind of violation, arguing that the structure of the Texas sentencing statute so forced his attorney's tactical decision on whether to present mitigating evidence as to result in a constructive denial of the effective assistance the Sixth Amendment contemplates.

The Court has found constructive denials of counsel only under a few limited circumstances. In Brooks, the case on which May primarily relies, the Court struck down a Tennessee statute requiring that a criminal defendant testify before any other defense testimony was heard. The statute "restrict[ed] the defense--particularly counsel--in the planning of its case" and created as a penalty for not testifying first the inability to testify at all "even though as a matter of professional judgment [the] lawyer might want to call [the defendant] later in the trial." 406 U.S. at 612, 92 S.Ct. at 1895. Thus, the accused was deprived of the "guiding hand of counsel," Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), by a statute that explicitly dictated how the lawyer was to conduct the defense. Similarly, in Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), a statute allowing the judge in a bench trial to dispense with the defense's summation interfered with "a basic element of the adversary factfinding process in a criminal trial." Id. at 858, 95 S.Ct. at 2553.

The Court characterized the earlier holdings that formed the basis for Herring as standing for the principle that "[t]he right to the assistance of counsel has ... been given a meaning that ensures to the defense in a criminal trial the opportunity to participate fully and fairly in the adversary factfinding process." Id. (emphasis added). To effectuate this guarantee of full defense participation, the state may place "no restrictions upon the function of counsel in defending a criminal prosecution...." Id. (emphasis added).

We read these cases as pointing to a constructive denial of counsel only where a government rule affirmatively forces counsel to make a choice he or she might not otherwise make in the context of a particular case. The Court's restatement of the principle of constructive denial of counsel in Cronic and Strickland confirms this reading: in Cronic the Court characterized this branch of Sixth Amendment violations as arising when counsel is "prevented from assisting the accused during a critical stage of the proceeding," id. 466 U.S. at 659 n. 25, 104 S.Ct. at 2047 n. 25, while in Strickland the Court referred to government "interfere[nce] in certain ways with the ability of counsel to make independent decisions about how to conduct the defense." Id. at 686, 104 S.Ct. at 2063. We do not believe the Texas sentencing scheme interfered with counsel's decisions in the manner contemplated by these cases.

While the operation of the Texas capital sentencing scheme at the time of May's trial may have caused counsel to make tactical decisions that counsel might not otherwise have made, we do not think that this rose to the level of direct government interference with defense counsel's ability to conduct the defense that was involved in Brooks and Herring.

Every substantive criminal statute and death penalty statute contains certain elements the finding of which are required for a verdict of guilt or a sentence of death, as the case may be. Counsel's tactical decisions about what kind of evidence to present are always channelled by the requirements of the statute under which the state proceeds. Were we to conclude that the rule of Brooks and Herring is triggered by statutes that compel tactical decisions about what kind of evidence to present, that rule would be virtually unlimited and would convert every criminal statute and capital sentencing scheme into a predicate for a Sixth Amendment claim for ineffective assistance of counsel.

There is simply no indication that the kind of tactical decisions allegedly made by May's counsel in this case amount to the kind of government interference with counsel's conduct of the defense contemplated by Brooks, Herring, Strickland and Cronic. As distinguished from the situation in Brooks and Herring, the way in which May's counsel conducted the defense was not directly addressed by Texas law. Texas law did not prevent counsel from presenting mitigating evidence. See Burns v. State, 761 S.W.2d 353, 356-59 (Tex.Crim.App.1988); Johnson v. State, 691 S.W.2d 619, 626 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 152 (1985). Indeed, the facial validity of the Texas statute was upheld upon the express understanding that the special issues had been interpreted to allow the presentation of mitigating evidence. Jurek v. Texas, 428 U.S. 262, 272, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976); see also Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (plurality).

The focal point of May's present claim is his inability to present mitigating evidence to the jury. In the appeal from the denial of May's first federal habeas petition, we considered and rejected the possibility that this inability violated the Eighth Amendment. His present claim amounts to no more than his prior Eighth Amendment claim, driven by exactly the same concerns but dressed in Sixth Amendment garb.

We construe the present petition as merely repeating the Eighth Amendment claim May litigated and lost in the first round of federal habeas; our analysis indicates that May's presentation of a Sixth Amendment violation raises no legal question subject to debate. When a habeas petitioner raises a claim already determined in a previous petition, the court may dismiss under Rule 9(b) of the Rules Governing 2254 Cases4 if the prisoner cannot establish an adequate justification for filing a repetitive petition. Schouest v. Whitley, 927 F.2d 205, 207 (5th Cir.1991). May has not presented us with any justification for filing this repetitive petition.

Also pending before this court is a supplemental emergency motion for "appropriate relief" or, in the alternative, an original petition for a writ of habeas corpus to allow consideration of newly discovered evidence showing that May is innocent and that his execution would constitute a miscarriage of justice. Appended to the motion is an affidavit of Richard A. Miles, May's accomplice in the murder and robbery at issue in this case.

In his affidavit, Miles confirms that he was present at the offense and participated in it, but states that he did not shoot anyone. Miles states, however, that his testimony at trial concerning May's involvement in the offense was not true. According to Miles's affidavit, May "was not present, nor did he participate in the offense in any manner." Miles claims that he was induced to testify falsely at the trial because of improper pressure from the police.

The alleged constitutional violation which appears to underlie the late-filed motion is not the subject of any petition for habeas relief presently pending in the state courts or in the federal district court. The claim has not been exhausted nor is it a proper subject for the exercise of our appellate jurisdiction. Insofar as our original jurisdiction is invoked, Fed.R.App.P. 22(a) provides that if an application for a writ of habeas corpus is made to a circuit judge, the application ordinarily will be transferred to the appropriate district court. In this case, we think that a transfer of May's petition for habeas corpus relief to the federal district court would be unwise. We have been advised that May intends to file a petition for habeas relief in the state trial court shortly. Texas has developed a "rule of habeas abstention," that is,

whenever a petitioner seeks a writ of habeas corpus in state court, if the state court determines that a federal habeas proceeding concerning the "same matter" or seeking the same relief is presently pending, the state court may not consider the merits of the petition but must dismiss it.

Carter v. Estelle, 677 F.2d 427, 434-36 (5th Cir.1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). We do not have any basis for concluding that the rule of habeas abstention is not currently effective in the Texas courts. Under the circumstances, we conclude that the most prudent course of action is to dismiss, without prejudice, May's original petition for a writ of habeas corpus (rather than to transfer it to federal district court) and thereby allow May to pursue the course of action that his counsel proposes to initiate in the state trial court.

For the foregoing reasons, the application for a certificate of probable cause is DENIED; the motion and supplemental emergency motion of the petitioner for a stay of execution are DENIED; and the petitioner's original petition for a writ of habeas corpus is DISMISSED without prejudice.

*****

1

May abandoned an ineffective assistance of counsel claim on appeal. May, 904 F.2d at 231 n. 3

2

For a more complete account of Dr. Merikangas's affidavit and conclusions, see the panel opinion in May, 904 F.2d at 231

3

If the Sixth Amendment claim were indeed a separate claim, May would face the daunting problem of writ abuse as now defined in McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). However, because we do not conceive of this petition as presenting a new claim, but rather the same claim under a different name, we do not reach the McCleskey analysis

4

Rule 9(b) provides, in pertinent part:

Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits....

 

 

 
 
 
 
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