statement lasted 3 minutes. He thanked everybody that fought
against his sentence. He spoke to his family and said he
would carry their love with him.
Growing up, James “Sugarman” Russell
was charming, charismatic and well liked by his peers, but the man
who earned his nickname because he was “so sweet” also had a dark
“If you looked in Webster’s Dictionary under
sociopath, it had his picture,” said Brian W. Wice, a criminal
defense attorney in Houston.
Russell, 42, was executed on Sept. 19, 1991 for
the 1974 abduction and murder of Thomas Stearns in Houston. Stearns
was scheduled to testify as a witness against Russell in the robbery
case, but a day before the trial began, 24-year-old Stearns was
kidnapped by Russell and his accomplice Lloyd “Sonny” Harris.
“The level of brutality in the murder was
disgusting,” said Randy Schaffer, a defense attorney in the robbery
case tried after the murder. “They locked Stearns in a car trunk,
sexually assaulted him and urinated in his mouth. He was executed
with a gunshot to his head at point-blank range with a .38 caliber
Stearns’ body was found 22 days after his
abduction in a deserted field in Arcola, about 20 miles south of
Houston. Stearns, a University of Houston student trying to work his
way through college, left behind a wife and an 18-month-old daughter.
“Russell began breaking into machines and
stealing quarters until his rap sheet grew to robbery, rape and
finally murder,” said Earnest Taylor, former director of the Fort
Bend County major crimes task force. “He started out wrong in the
early years,” said Taylor, adding that Russell’s grandmother would
often bail him out of trouble.
“James Russell was a victim of love,” said
Taylor, who knew the family well. “She (his grandmother) loved that
boy with all her heart and did everything she could do for that boy
including getting him out of trouble. She taught him there was no
consequence for his behavior and finally he killed Tom Stearns and
she couldn’t get him out of that one.”
The murder investigation went on for three years.
In the meantime, prosecutors wanted to lock up the man who
retaliated against a witness in the robbery case. Jurors convicted
Russell of robbery and gave him a 50-year jail sentence. It was
later reversed on appeal, but it bought enough time for
investigators to build a strong murder case against Russell.
The jury took less than three hours to find
Russell guilty of capital murder and only 23 minutes to sentence him
to death. “He (Russell) said he didn’t do it and that he hung out
with some bad people and that’s why he was being executed,” said
Wice, who interviewed Russell for an in-depth investigative article.
The case stayed in the court system for about 16
years before Russell, who had been in an out of prison since he was
18, was put to death. Russell was executed by lethal injection in
the middle of September 1991, and he spent his last minutes talking
about all the people he had met in his life.
“He didn’t spend a second talking about the
victim or their family,” said Wice, a witness of the execution.
His grandmother died a few months after Russell’s
sentence was carried out. Taylor, now chief of police in Sugar Land,
believes it was from a broken heart. “She went to her grave
believing he was framed on this murder case.”
944 F.2d 202
James A. COLLINS, Director, Texas Department of Criminal
Justice, Institutional Division, Respondent-Appellee.
United States Court of Appeals,
Sept. 18, 1991.
Appeal from the United States
District Court for the Southern District of Texas.
Before CLARK, Chief Judge, GARWOOD
and JOLLY, Circuit Judges.
James Russell appeals the
denial of his motions related to his second petition for a writ
of habeas corpus by the United States District Court for the
Southern District of Texas. He was convicted by a jury of
capital murder and sentenced to death in 1977. He is scheduled
to be executed on September 19, 1991. This court has reviewed
the pleadings, memoranda, and exhibits filed before it and in
the actions both in the state court and in the district court
below. For the reasons set forth, the motions are denied and the
appeal is dismissed.
* This court heard Russell's
first habeas appeal in Russell v. Lynaugh, 892 F.2d 1205 (5th
Cir.1989). The procedural history to that time may be found in
that opinion. Following this court's denial of his appeal and
the denial of reconsideration of that ruling, the United States
Supreme Court denied his petition for a writ of certiorari.
Russell v. Collins, --- U.S. ----, 111 S.Ct. 2909, 115 L.Ed.2d
1073 (1991), reh'g denied Russell v. Collins, --- U.S. ----, 112
S.Ct. 27, 115 L.Ed.2d 1109.
Russell filed a second
petition in the state trial and appellate courts on September 9,
1991. The 268th Judicial Court for Fort Bend County, Texas,
issued findings of fact and conclusions of law and an order
denying the motion to stay execution on September 16. The Texas
Court of Criminal Appeals denied his appeal on September 17.
The petition before us was
filed before the United States District Court for the Southern
District of Texas on September 17. Simultaneously, Russell asked
for an evidentiary hearing and the opening of discovery. The
district court denied relief today, on September 18, and
petitioner has appealed.
The facts of the case have
been often recited and are only tangentially relevant here.
Russell was indicted for kidnapping and murdering Thomas Stearns.
Stearns was the manager of a store that Russell allegedly robbed,
and Russell was accused of killing him in order to avoid
prosecution for the robbery. There was evidence that Russell
grossly abused Stearns before killing him. The state's case
largely relied upon the testimony of accomplices, particularly
Sonny Harris and Ann Smallwood. Russell defended on the basis of
In his first petition, Russell
raised several claims, notably that a venireman named Hoover was
challenged for his views on the death penalty and wrongly
excused under Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844,
83 L.Ed.2d 841 (1985) and Adams v. Texas, 448 U.S. 38, 100 S.Ct.
2521, 65 L.Ed.2d 581 (1980), and that he received ineffective
assistance of counsel. The Witt claim was denied by two judges
of this court, respectively, because of the procedural bar, 892
F.2d at 1211, and on the merits, 892 F.2d at 1216.
assistance claim was based on a failure of his counsel
adequately to discover alibi witnesses and character witnesses,
on a claim of conflict of interest, and on claims that his
counsel wrote shoddy briefs on appeal and that he was drunk in
court. Each of these bases were reviewed and the claim was
denied. 892 F.2d at 1214, 1215.
Russell raises a variety of
grounds in his second petition. He again claims that he received
ineffective assistance of counsel, now because of his trial
counsel's failure adequately to cross-examine key state
witnesses, to object to the prosecutor's improper racially-based
argument, and to seek impeachment of a state witness through the
introduction of polygraph evidence. Russell contends that the
state impermissibly refused (and continues to refuse) to produce
tape recordings of Harris' and Smallwood's interviews with the
police, and that his Adams claim relating to venireman Hoover
persists. He also claims that the state prejudiced the jury by "race-baiting"
and by introducing evidence of victim character and impact in
the guilt phase of trial and by general prosecutorial misconduct.
The state moved in the
district court to dismiss Russell's claims in his second
petition as an abuse of the writ under rule 9(b) of the Rules
Governing Section 2254 Cases. Rule 9(b) provides thatA second or
succeeding 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, or if new and different
grounds are alleged, the judge finds that the failure of the
petitioner to assert those grounds in a written petition
constituted an abuse of the writ.
In McCleskey v. Zant, --- U.S.
----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) reh'g denied, ---
U.S. ----, 111 S.Ct. 2841, 115 L.Ed.2d 1010, the Supreme Court
clarified the abuse of the writ. The state has the burden to
plead abuse. This burden is satisfied if the state notes the
petitioner's prior writ history with clarity and particularity,
identifies claims which appear for the first time in the later
petition, and alleges abuse by the petitioner.
For the petitioner to disprove
the claim of abuse, he must show cause why the claim was not
raised in the first petition. This would include claims that he
was impeded by some objective factor external to his defense,
such as by government interference or the reasonable
unavailability of the factual basis of the claim.
The petitioner must also show
that he was actually prejudiced by the errors of which he
complains. If he cannot satisfy both the cause and prejudice
requirements, he is not entitled to an evidentiary hearing to
develop the claim. Even so, the court will excuse his failure
timely to raise the claim if he can show that a fundamental
miscarriage of justice--the conviction of an innocent person--will
result by failure to entertain the claim. --- U.S. at ----,111
S.Ct. at 1470.
The State of Texas moved in
the United States District Court to dismiss pursuant to rule
9(b), alleging the claims of the petitioner with specificity and
arguing that the petition constitutes a blatant abuse of the
writ. In Russell's reply to the motion to dismiss, he asserted
that a miscarriage of justice would result from the conviction
here because of the racial remarks that were made to the jury.
Russell did not suggest that
there is any new evidence or any new theory that was not
available to him at the time of his first petition. Nor did he
suggest that there is any evidence that would prove he is
innocent. At most, he suggested that there may be tape
recordings in the state's possession that might have permitted
additional cross-examination of state witnesses, which might
have reduced the already weakened credibility of Russell's
accomplices' testimony. The district court applied the McCleskey
standard to the state's assertion of abuse of the writ, in the
light of the petitioner's reply, and denied relief.
We have found no claim in the
petition now before us that could not have been raised by the
petitioner at the time of his first application for the writ. We
iterate that the issues raised on this habeas appeal are that he
received ineffective assistance of counsel, that the state may
have impermissibly refused to produce tape recordings by Harris
and Smallwood, that he still has a viable Adams claim relating
to venireman Hoover, and that the jury was prejudiced by "race-baiting"
and by the introduction of evidence of victim character and
impact in the guilt phase of trial and by general prosecutorial
misconduct. All of these claims were apparent on the face of the
record at the time of the petitioner's conviction in 1977; each
could have been raised then. Russell does not proffer any cause
for having failed to have raised them earlier.
The sole exception that is
raised to escape the rule 9(b) bar of these claims is that
manifest injustice might result because, it is suggested,
Russell was convicted on the unreliable testimony of Harris. But
no argument that Russell makes in this habeas petition is based
upon an assertion that he is innocent of the crimes of which he
was convicted. Each argument is collateral to such an assertion.
His offers of proof and the evidence sought for the impeachment
of Harris would serve only to destroy Harris' credibility as a
witness, not to prove that Harris is in fact the murderer, or
that Russell is in fact innocent. Indeed, the evidence
establishing Russell's guilt of this murder leaves no room to
doubt the jury verdict.
In any event, his claim of
ineffective assistance of counsel based on counsel's cross-examination
of Harris is meritless. Harris' credibility as a witness was
impeached before the jury in substantial measure by the defense
counsel. The petitioner has not shown that further impeachment
would have altered the jury's verdict of guilt. Moreover, it is
not credible in fact (as this court has previously found) that
counsel was unconstitutionally ineffective, and there is no
reason to depart from our earlier ruling for the reasons now
Thus because there is no basis
for innocence in this record, there is no basis for Russell's
argument that manifest injustice will result from a finding of
abuse of the writ. The suggestion that manifest injustice would
result because of ineffective assistance without some evidence
that the man was in fact innocent is a mistaken application of
that principle as described in McCleskey.
We have, despite our finding
of abuse of the writ, examined Russell's claims of "race-baiting"
and victim impact statements by the prosecutor in detail.
We have also examined his claims of suppressed evidence and the
newly made bases for his claim of ineffective assistance of
counsel. None of the facts that underlie these arguments, all of
which were known to Russell at the time of his first petition,
demonstrate a manifest injustice, i.e., innocence, as required
in McCleskey. Indeed, in the light of the state trial court's
findings of fact, which rejected most of Russell's allegations
of fact and which we presume to be correct under section
2254(d), there remains little support for these untimely
Finally, Russell claims that
Rule 9(b) does not apply to bar his Adams claims related to
venireman Hoover since the earlier panel applied a procedural
bar to this claim and did not decide it on its merits. Because
the majority of this court has already denied that claim in its
previous opinion, it may not be raised in the same form. In any
event, in Russell's second state habeas petition, the trial
court, on whose findings the state appellate court based its
denial of relief, plainly and unequivocally applied the
procedural bar, which serves now to bar our review of the merits
once again. Thus, Russell's claim with regard to venireman
Hoover is meritless.
For the reasons stated herein:
The motion to proceed in forma pauperis on appeal is GRANTED.
The application for a certificate of probable cause is DENIED.
The motion of the petitioner for stay of execution is DENIED.
The appeal is