Appeal from the
United States District Court for the Northern
District of Texas.
Before KING, SMITH, and WIENER,
WIENER, Circuit Judge.
In this petition for writ of
habeas corpus pursuant to 28 U.S.C. 2241, 2254,
Petitioner-Appellant Clifton Charles Russell appeals
the district court's denial of his habeas petition.
On appeal, Russell challenges the constitutionality
of his sentencing proceeding which culminated in
imposition of the death penalty. After careful
consideration of the issues raised by Russell, we
discern no reversible error and affirm.
* FACTS AND PROCEEDINGS
Russell was convicted of the
capital murder of Hubert Otha Tobey, killed in the
course of a robbery. After Russell and a companion
robbed Tobey of his money and his automobile,
Russell struck him over the head with a large piece
of concrete and inflicted numerous knife wounds as
well, including one to the jugular vein. Russell and
two other men, Michael Wicker and William Battee,
Jr. subsequently were arrested outside a mall for
Police traced the car and
connected it to Tobey, whose body had been
discovered by then. The police then seized Battee's
tennis shoes and Russell's pants, underwear, shirt,
and shoes, all of which had blood on them. The car's
interior also contained blood stains.
Russell was tried and convicted
for capital murder. During the sentencing phase of
the trial, the state introduced evidence regarding
Russell's poor reputation in the community, his
tendency towards violence making him dangerous to
society, and opinion testimony suggesting that he
was not a likely candidate for rehabilitation.
In response, Russell presented
five witnesses, four of whom were members of various
church organizations that opposed the death penalty
per se. In addition, Russell's mother, Jo Ann Lacy,
testified to Russell's troubled childhood and
incidents of violence against him. Specifically, she
recounted an incident during which Russell's
stepfather beat him severely with a baseball bat in
response to Russell's allegations that the shooting
of his mother nine months earlier by his stepfather
had not been accidental.
Russell required surgery to mend
his broken facial bones. Mrs. Lacy also testified
that Russell did not meet his biological father
until he was seven and never had a real father
figure. Finally, she stated that Russell had
suffered as a child because of his mixed racial
Despite the testimony of Mrs.
Lacy, the jury affirmatively answered the first two
special issues submitted pursuant to Texas law:
whether the defendant acted deliberately, and
whether he posed a future danger to the community.
Accordingly, the judge sentenced Russell to death.
Russell's conviction and sentence were automatically
appealed to the Texas Court of Criminal Appeals,
which affirmed the conviction and sentence, 665 S.W.2d
Russell next pursued his state
habeas remedy, which was denied. Finally, Russell
filed a petition for writ of habeas corpus in the
United States District Court for the Northern
District of Texas and received an evidentiary
hearing. Russell's proceedings were stayed, however,
pending the Supreme Court's consideration of Penry
This stay was eventually lifted and the magistrate
judge entered his findings, conclusions, and
recommendation, followed by supplemental findings.
The district court adopted the report, dismissing
the petition and withdrawing the stay of execution.
Russell timely appealed.
A. Standard of Review
"In considering a federal habeas
corpus petition presented by a petitioner in state
custody, federal courts must accord a presumption of
correctness to any state court factual findings....
We review the district court's findings of fact for
clear error, but decide any issues of law de novo."
Evaluation of a petitioner's constitutional
challenge to the Texas special issues as applied to
him is, of course, an issue of law.
B. Penry Claim
In his first challenge to the
sentencing proceedings, Russell relies on the
Supreme Court's decision in Penry. In that case, the
Court ruled that the Texas special interrogatories
did not allow the jury to consider relevant
mitigating evidence of mental retardation and
childhood abuse and therefore failed to give an
"individual assessment of the appropriateness of the
Penry, Russell claims, dictates that the district
court erred in not granting a special instruction
for his mitigating evidence of his youth and
The state insists, to the
contrary, that Russell's claim must fail because
Penry clearly states that a special instruction is
required "upon request." Yet, the state urges,
Russell never sought a special instruction, and
therefore he cannot now complain of the district
This argument ignores our holding
in Mayo v. Lynaugh,
in which we explained that Penry provides little
support for the proposition that a defendant must
contemporaneously object to or request additional
"Although the Court's description of the rule sought
by Penry involved the request for jury instructions,
discussion of the important limitations to the
holding left unmentioned the role of the objections
or requests for instructions, and several statements
of the holding likewise omitted any such
The opinion in Mayo also noted,
however, that this did not preclude the failure to
object or request additional instructions from
operating as a procedural bar under state law.
Since the decision in Mayo, however, we have
certified to the Texas Court of Criminal Appeals the
question "whether [a] petitioner['s] ... claim under
Penry v. Lynaugh ... is presently procedurally
barred under Texas law."
The court answered the question
in the negative, holding that failure to object
contemporaneously in pre-Penry cases does not create
a state procedural bar as the decision in Penry " 'constituted
a substantial change in the law ... and there being
abundant Texas precedent demonstrating that the
holding amounts to a right not previously recognized.'
In any event, the state does not
argue that Russell's claim is procedurally barred
under state law, but insists that it is barred under
Penry, which the state interprets erroneously as
requiring a request for instructions. Based on Mayo,
we reject the government's claim that Penry imposes
a procedural bar when a pre-Penry defendant fails to
request a specialized instruction.
As Russell is not procedurally
barred from asserting the alleged error, we proceed
to the merits of his Penry claim. In that case, the
Supreme Court reiterated its holding in Jurek v.
that the constitutionality of the Texas statute "turns
on whether the enumerated questions allow
consideration of particularized mitigating factors."
Consideration of relevant mitigating evidence is
required because " 'the sentence imposed at the
penalty stage should reflect a reasoned moral
response to the defendant's background, character,
and crime.' "
Therefore, the sentencer must "make
an individualized assessment of the appropriateness
of the death penalty" and treat the defendant as a "
'uniquely individual human bein[g].' "
In making this individualized assessment, the
sentencer must consider evidence about the
defendant's background and character " 'because of
the belief, long held by this society, that
defendants who commit criminal acts that are
attributable to a disadvantaged background, or to
emotional and mental problems, may be less culpable
than defendants who have no such excuse.' "
Penry stands apart from the cases
and followed it
because of its ultimate conclusion: the Texas
special issues did not give effect to petitioner's
compelling evidence of mental retardation and abused
childhood that mitigated his moral culpability for
his crime. Penry did not invalidate the Texas
sentencing scheme, and subsequent Supreme Court
cases have refused to extend Penry to cover less
serious mitigating evidence.
Russell points to three types of
mitigating evidence in support of his Penry claim:
(1) his youth (he was age 18 at the time of the
homicide); (2) his troubled childhood; and (3) a
beating he suffered in his late teens at the hands
of his stepfather. We address each type of evidence
1. In Johnson v. Texas,
the Supreme Court made clear that the mitigating
factor of a defendant's age is within the "effective
reach" of the second special issue. Thus, such
evidence is not problematic under Penry.
2. Russell's argument that his
jury was unable to give proper mitigating weight to
evidence of his troubled childhood is barred under
the non-retroactivity doctrine announced by the
Supreme Court in Teague v. Lane.
In Graham v. Collins,
the Supreme Court was presented with an essentially
identical claim raised by a habeas petitioner--a
Penry-type claim based on evidence of a non-abusive
but turbulent childhood--and held that the
petitioner's claim proposed a "new rule" under
Russell has presented no evidence that his troubled
childhood rose to the required level of abusiveness.
3. The final type of evidence
that Russell offered during the punishment phase
described a single episode of violence--a severe
beating in the face with a baseball bat by a
stepfather who then attempted unsuccessfully to
shoot Russell. Both incidents occurred on the same
day when Russell was in his late teens.
Russell attempts to characterize this occurrence as
"child abuse" similar to the type introduced by the
capital defendant in Penry. We disagree.
Russell's beating occurred when
he was in his late teens, possibly when he was
legally an adult. But child-abuse, as it is
generally understood, occurs when a juvenile is of
such tender years that a violent beating--or, more
commonly, repeated beatings--by an adult would have
the tendency to affect the child's moral capacity by
predisposing him or her toward committing violence.
As the evidence here is significantly
distinguishable from that offered in Penry, the
Supreme Court's holding in Penry regarding
mitigating evidence of child abuse is not implicated.
More to the point, whether
evidence of the violence inflicted on Russell by his
stepfather was in the "effective reach" of jurors
under the special issues is not relevant;
the Eighth Amendment is not implicated in the first
place. The Supreme Court has repeatedly held that
there are three basic categories of constitutionally
relevant mitigating evidence--that which is relevant
to a defendant's "background," "character," or the "circumstances
of the crime."
Russell's evidence of the violence inflicted by his
father does not fall under any one of these three
rubrics. Russell necessarily argues that his
evidence falls under the "background" rubric. We
Under precedent in this circuit,
evidence of a defendant's background is
constitutionally relevant mitigating evidence only
if the crime committed by the defendant is in some
sense "attributable" to that background.
While "attribution" does not require a precise nexus
between such background evidence and the crime, at a
minimum the evidence must permit a rational jury to
"infer that the crime is attributable," at least in
part, to the defendant's background.
Albeit a close call, the evidence
of the isolated episode of violence inflicted by
Russell's stepfather does not permit such an
inference. As noted, that incident did not occur
during Russell's youth and was not indicative of a
pattern or history of child abuse--at least
according to the evidence offered during the
punishment phase of Russell's trial.
Neither did Russell offer any
evidence that the act of violence left him mentally
or emotionally impaired in a manner that would
permit a rational jury to infer that this single
incident somehow made Russell more predisposed to
commit a murder.
While, as a general proposition, a rational jury may
infer that child abuse renders one less morally
culpable for a violent crime,
the same cannot be said for a single episode of
physical abuse inflicted upon an adult. Thus, we
reject Russell's Penry claim predicated on this
In sum, we conclude that there
was no Eighth Amendment violation in this case.
First, Russell's age at the time of the crime was
cognizable under the second special issue. Second,
his Penry-type claim based on mitigating evidence of
a troubled childhood is barred under the Teague
doctrine. Finally, evidence of a single episode of
severe violence inflicted by an adult on an adult,
without more, does not qualify as constitutionally
relevant mitigating evidence.
C. Undefined use of "deliberately"
Russell again relies on Penry to
make his argument that the state court erred by not
defining the word "deliberately" in the first
special issue, which asks whether the defendant so
acted. Russell recites the Court's reasoning that,
[a]ssuming ... that the jurors in
this case understood "deliberately" to mean
something more than that Penry was guilty of "intentionally"
committing murder, those jurors may still have been
unable to give effect to Penry's mitigating evidence
in answering the first special issue.
This quotation from Penry,
however, rests on the understanding that the
defendant had introduced mitigating evidence beyond
the scope of the special issues. In the instant
case, however, we have concluded that Russell did
not present any mitigating evidence that was outside
of the scope of the first special issue. Thus, the
quoted language from Penry does not advance his
D. Exclusion of Juror
Russell next asserts that the
district court erred in applying a presumption of
correctness to the state court's finding that
prospective juror Norman B. Scott was properly
excluded from the jury. The transcript of the voir
dire examination of Scott, reproduced in its
entirety in Ex Parte Russell,
demonstrates that Scott strongly opposed the death
penalty, that he "did not believe in" the death
penalty, and that he "could take the law and the
evidence, but when it come to imposing the death
penalty, I don't think I could do it."
When asked whether there were any circumstances
under which he could assign the death penalty, he
replied possibly so if the murder victim was a small
child, but he was not certain.
Applying the test set forth in
Witherspoon v. Illinois,
as clarified in Adams v. Texas
and Wainwright v. Witt,
the Texas Court of Criminal Appeals held that Scott
had properly been discharged for cause as his
testimony indicated that "his views on the death
penalty would have prevented or substantially
impaired [his] performance as [a] juror[ ] in
accordance with [the] instructions."
The Court of Criminal Appeals' factual finding of
juror bias is entitled to a presumption of
correctness under 28 U.S.C. 2254(d), and we find no
reason why this presumption should not apply.
E. Eighth Amendment
Russell's final assertion attacks
the constitutional sufficiency of the evidence at
the guilt-innocence stage of trial. He insists that
there was no evidence to prove whether the murder
was committed by him or by his co-defendant Battee (who
received a sixty year sentence following a guilty
plea), or by both of them acting together. Absent
this evidence, he insists, imposition of the death
penalty violates his due process rights and the
Eighth Amendment's proscription against cruel and
In addition, he argues that the
disparity between his death sentence and Battee's
sentence of sixty years for the same offense is "an
invidious discrimination" in violation of the Equal
Protection Clause and violates the Eighth Amendment
as a disproportionate sentence.
Enmund v. Florida
construed the Eighth Amendment as prohibiting the
imposition of the death penalty against "one who
neither took life, attempted to take life, nor
intended to take life."
Thus, it is impermissible to sentence a person to
death solely on the basis of the acts of an
accomplice; there must be evidence from which a jury
could determine the petitioner's individual
The state insists that the first
special instruction, which asks "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" allowed the jury
to judge the evidence submitted against Russell.
The evidence submitted to the
jury included Russell's possession of the car and
the presence of a large amount of blood (compatible
with the victim's) on Russell's clothing, consistent
with someone who had brutally stabbed and beaten
another. In contrast, the state notes that Battee
had blood only on his shoes. Moreover, the state
emphasizes that, in Russell's trial, it did not
focus on Battee's intent to commit the crime, but on
Russell's. Thus, the state concludes, a reasonable
jury could have inferred Russell's individual
culpability for the murder; and the jury here had
the opportunity to consider that question under the
first special issue. We agree.
In Jones v. Thigpen,
we remanded for resentencing a case in which the
only evidence was involvement in the robbery and
blood splattered shoes. In the instant case, however,
there are two important distinctions. First, the
jury was properly instructed to consider the
individual culpability of the defendant sentenced to
Second, the evidence--particularly the fact that
Russell's clothes (including his underwear) were
soaked with blood--is very probative, as it is
consistent with his inflicting the knife wounds
himself. Consequently, we agree with the state's
argument that the jury had the opportunity to
consider Russell's individual involvement in the
crime and, based on the evidence, reasonably could
have determined his guilt.
Finally, we address Russell's
claims involving the disparity of sentences, which
are especially common when one defendant pleads
guilty pursuant to a plea bargain and another
defendant is tried by jury. It is well established
that a prosecutor has discretion to enter into plea
bargains with some defendants and not with others.
Absent a showing of vindictiveness or use of an
arbitrary standard--neither of which Russell
demonstrates--the prosecutor's decision is not
subject to constitutional scrutiny.
In this petition for a writ of
habeas corpus, Russell challenges the imposition of
the death penalty without a Penry-type instruction.
As he fails to demonstrate mitigating evidence
outside the scope of the special issues, he does not
qualify for the additional instruction. Consequently,
his second claim--that the absence of a jury
instruction defining the word "deliberately" in the
first special issue precluded the jury from
considering his mitigating evidence--must also fail.
We reject Russell's challenge to
the exclusion of a potential juror on voir dire for
his views on the death penalty. Affording a
presumption of correctness to the state court's
finding that this exclusion was correct, we discern
no reason why this presumption should not preclude
Russell's claim. Finally, we hold that the jury
properly considered Russell's own individual
culpability for the murder, permissibly inferring
his guilt from the evidence presented, and we reject
his claim that the disparity in the sentences
imposed on him and on his accomplice violated the
Due Process Clause, the Equal Protection Clause, or
the Eighth Amendment.
For the foregoing reasons, the
decision of the district court in refusing to grant
the writ of habeas corpus is