Johnny Taylor, Jr.,
was executed on February 29, 1984. Taylor was convicted of stabbing
to death David Vogler, Jr., on February 8, 1980, to steal a car.
attempting to sell his wife's car, left in a Kenner parking lot with
a "For Sale" sign in the window. Taylor called to arrange a meeting
with Vogler in the parking lot. Vogler's body was found in the
trunk of his own car the next day. Taylor was found driving Mrs.
Vogler's car in Alabama four months later.
Taylor's last words
"I've done a lot of
wrong, caused a lot of hurt. I guess this is the price I pay for it.
"I found God in
Christ. I made a commitment with him. I'm ready to see this
through. There are those out there who need help. I wish in some
way you could all contribute to helping them. Living has been hard
for me and its (sic) time for me to die, for whatever reason . . .
. I hope you will not leave with the sense this is going to deter
"That's it, let's
Jr. was a convicted
murderer who was executed by electrocution at the
Louisiana State Penitentiary at Angola on February
On February 8, 1980 the victim,
David Vogler, received a telephone call around 8:45
p.m. from a black male about an automobile which
Vogler had placed for sale in the parking lot of
Barker's in Kenner, Louisiana.
Vogler left his home in his
Cadillac to show the red 1976 Buick Regal to the
inquirer. He was not seen alive again by Mrs. Vogler.
Around 12:45 a.m. Mrs. Vogler went to the parking
lot in search of her husband along with her sister
and her sister's boyfriend. The red Buick was
missing; the Cadillac was parked in the lot.
Mrs. Vogler looked in the
Cadillac window and saw her husband's coat on the
front seat. She saw two police cars stopped in the
lot and asked the officers if they had seen the
Buick. They assured her that they would be on the
look out for it.
Mrs. Vogler then returned to her
mother's house where she spent the night. At 9:00
o'clock the next morning she returned to the parking
lot with her brother-in-law, Larry Huesman. Huesman
looked inside the Cadillac and saw blood on the
upholstery. Fearing foul play, Huesman dropped Mrs.
Vogler off and called the police. He met Officer
Averett back at the parking lot and gave the officer
Mrs. Vogler's extra set of keys. When Officer
Averett opened the trunk, he saw the body of David
Vogler. An autopsy revealed that David Vogler died
from multiple stab wounds.
Detectives William Fayard and
Nick Congemi of the Kenner Police Department
conducted an investigation. Customers and employees
of the nearby businesses were interviewed with no
success. Due to the rainy weather on the night of
February 8 and the morning of the 9th, the car was
towed to a security garage to dry out.
On February 10 technician Joseph
Deidrich dusted the car for latent fingerprints.
Black hairs were recovered from the ceiling of the
automobile, the sun visors and the inside trunk
ledge. Deidrich also vacuumed the vehicle to collect
On June 14, 1980 Chief Jimmy
Acton stopped the accused in Millry, Alabama for a
traffic violation. He was driving the Buick Regal.
His cousin, Samuel Young, and his girl friend, Linda
Pugh, were with him. A check on the automobile
indicated that it was stolen and that the occupants
might have been involved in a murder in Kenner,
Louisiana. Defendant fled from the officer under the
pretext of needing to urinate; his companions were
arrested for possession of a stolen vehicle.
On June 15, 1980 Detectives
Fayard and Congemi drove to Millry and interviewed
Young and Pugh. They compared the “vin” number on
the automobile to the number of the vehicle
registration form to determine that this vehicle was
the one stolen from the Voglers.
The detectives opened the trunk
and found receipts dated March 16, 1980 and May 3,
1980 bearing the name “James Taylor” for body work
done on the Buick at Terry's Body Shop. Congemi and
Fayard drove to Pritchard, Alabama and questioned
Terry Webb, the owner of the repair garage. Webb
gave them his copy of an estimate sheet dated
February 9, 1980 which itemized repairs to be done
to the car and a paint job requested by Taylor. The
Buick was driven back to Kenner, Louisiana.
Taylor was subsequently arrested
on June 17, 1980 for an unrelated auto theft and
incarcerated in Butler, Alabama. Detectives Fayard
and Congemi drove to Butler on June 18 to question
Taylor. Two statements were given by Taylor; neither
statement satisfactorily explained how the accused
came into possession of the Buick Regal. Eddie
Slayton of the Alabama Bureau of Investigation took
defendant's finger and palm prints and gave them to
These prints, along with those
taken from the Cadillac, were sent to the FBI by
registered mail on June 23, 1980. Ronald Young, a
latent fingerprint specialist with the FBI, compared
the two sets of prints and concluded that Taylor's
left palm print matched the partial palm print from
the outside trunk lid based on forty points of
identification. Samples of head hair taken from
defendant during the interview showed similar
characteristics to the hairs found in the Cadillac.
A warrant for defendant's arrest
was executed on June 17, 1980. A copy of the warrant
was given to the authorities in Alabama. Taylor was
indicted on August 28, 1980 and subsequently
extradited to Louisiana.
Taylor was found guilty as
charged by a jury. The jury unanimously recommended
the death penalty finding two aggravating
circumstances: (1) the accused was engaged in the
perpetration or attempted perpetration of armed
robbery at the time he killed the victim; (2) the
offense was committed in an especially heinous,
atrocious or cruel manner.
Taylor was executed on February
29, 1984. He last words were "I've done a lot of
wrong, caused a lot of hurt. I guess this is the
price I pay for it. I found God in Christ. I made a
commitment with him. I'm ready to see this through.
There are those out there who need help. I wish in
some way you could all contribute to helping them.
Living has been hard for me and its (sic) time for
me to die, for whatever reason . . . . I hope you
will not leave with the sense this is going to deter
crime. That's it, let's go."
727 F.2d 341
Johnny TAYLOR, Jr.,
Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary,
Angola, Louisiana, and Harry Lee, Sheriff,
Nos. 84-3108, 84-3141.
United States Court of Appeals,
Feb. 27, 1984.
On Application for Certificate of
Probable Cause and for Stay of Execution Pending Appeal.
Before RUBIN, JOLLY and DAVIS,
E. GRADY JOLLY, Circuit Judge.
David Vogler left his home in
Kenner, Louisiana around 8:45 p.m., on February 8, 1980. He told
his wife that a black man had called him and requested to see a
1976 Buick the Voglers had displayed for sale in a nearby
parking lot. The next morning Mr. Vogler was found, stabbed some
twenty times, stuffed in the trunk of his car, where he had been
left by his murderer to bleed to death. His car, a 1979 Cadillac,
was parked in the lot where the Buick had been. The Buick was
On June 14, 1980, Johnny
Taylor, Jr. was stopped for a traffic violation in Millry,
Alabama while driving the Buick. While a check of the Buick's
registration was being conducted by the Millry police, Taylor
fled. His companions, Linda Pugh and Samuel Young, were arrested
when the registration check revealed that the Buick had been
stolen and its owner murdered.
The next day, detectives
Fayard and Congemi of the Kenner police department drove to
Millry, Alabama. They interviewed Young and Pugh. They
ascertained that the Buick was in fact the one stolen from the
Voglers. In the trunk of the Buick they found receipts for body
work done at a local garage. The garage owner gave them a copy
of a repair estimate he had given Taylor on February 9, 1980,
for body work and a paint job.
Taylor was soon arrested, on
June 17, 1980, for an unrelated auto theft in Butler, Alabama.
Detectives Fayard and Congemi questioned Taylor there on June
18, 1980. Taylor signed a written statement indicating he had
not come into possession of the Buick until March 1980. When the
detectives confronted Taylor with their knowledge that he had
taken the car to a garage on February 9, 1980, Taylor stated
that he had purchased the Buick on that date from Allen Thomas,
a white male known to him, and a black man.
At trial, Taylor testified
that he identified the black man in his oral statement as "Charlie
Robertson's brother-in-law." Fayard and Congemi did not recall
hearing a name other than Thomas. The detectives did not reduce
the second statement to writing because they were convinced that
Taylor was lying.
Taylor's fingerprints and
palmprints, as well as hair samples, were taken in Alabama and
later sent by the Kenner police to the Federal Bureau of
Investigation for comparison with latent prints lifted from the
Cadillac in which Vogler's body was found. The FBI reported that
Taylor's left palmprint matched a partial print found on the
trunk lid of the Cadillac. Taylor's hair was also found to be
similar to and indistinguishable from hairs found in the visor
of the Cadillac. Taylor was indicted on June 28, 1980, and later
extradited to Louisiana.
Taylor was tried for first
degree murder in March 1981. He was represented by two
experienced attorneys, James Manning and Maurice Bell. Bell,
from Alabama, previously had represented Taylor and was retained.
Manning was court-appointed. The state relied on Taylor's
possession of the Buick almost immediately after its theft and
Vogler's murder, Taylor's unsatisfactory explanations of how he
came into possession of the Buick, and two pieces of evidence
connecting Taylor to the crime scene: the partial palmprint and
Taylor testified that he had
not even been in the state of Louisiana since 1978, and that his
palmprint and hairs could not possibly have been lifted from the
victim's Cadillac. Taylor's alibi witnesses, however, were not
persuasive, and the jury found him guilty of first degree murder.
During the sentencing phase of
Taylor's bifurcated trial, the state relied on evidence
previously adduced to show the presence of two "aggravating
factors" under the Louisiana death penalty statute.
Taylor was engaged in armed robbery when he murdered Vogler, and
the murder was committed "in an especially heinous, atrocious,
or cruel manner".
Taylor's attorney presented no
new evidence at the sentencing stage. He began to argue that the
unreliability of the evidence against Taylor was a factor which
the jury should consider in deciding whether to recommend the
death penalty. The trial judge forbade this line of argument
because it went to the issue of guilt rather than to the
appropriateness of capital punishment. Taylor's attorney made no
other argument on Taylor's behalf. The jury recommended that
Taylor be sentenced to die, and the trial judge later entered
the death sentence.
Taylor appealed his conviction
and sentence to the Louisiana Supreme Court, which affirmed them
both. 422 So.2d 109. On direct appeal, he raised several claims
not relevant here. He did, however, argue claims relating to the
fingerprint evidence gathered at the crime scene. Taylor's
defense at the trial was that his latent palmprint was somehow
collected after his arrest in June 1980 (perhaps from the Buick)
and placed in the files of the Jefferson Parish Crime Lab.
On direct appeal, Taylor's
attorney charged that the state had violated Taylor's due
by discarding some fingerprints collected from the crime scene
and misplacing others. The Louisiana Supreme Court rejected
these arguments, discussing their merits at length. 422 So.2d at
After his conviction was
affirmed on direct appeal, Taylor sought a writ of mandamus in
Louisiana state court for the purpose of obtaining the police
records of the investigation of Vogler's murder, which were made
available to him on April 27, 1983. These records included the
one additional piece of evidence on which Manning based his
collateral attacks on Taylor's conviction. That piece of
evidence is a fingerprint log book maintained by the Jefferson
Parish Crime Lab division.
The entries relating to the
prints lifted from Vogler's Cadillac are " 1/2 palm" in the "Good
and filed" column and in the "No good" column, the numerals 4
and 1. It is Manning's contention that the entry of five "no
good" prints, compared with the fact that five fingerprint lifts
were taken from the Cadillac, proves that as of February 10,
1980, the state had no usable fingerprints from the crime scene.
Manning argues, without evidentiary support, that the " 1/2 palm"
entry must have been added after Taylor's arrest.
Using as exhibits the copies
of the fingerprint log book entries obtained through his
mandamus action, Taylor filed a petition for post-conviction
relief in state court on May 22, 1983. He argued that his due
process rights were violated by the use of manufactured evidence
against him at trial and by the failure of the state to produce
the fingerprint log book when he requested any exculpatory
material in its possession.
The claims were rejected,
without a hearing, by the state district court on January 11,
1984, and by the Louisiana Supreme Court on February 3, 1984. On
January 17, 1984, the state trial judge ordered Taylor to be put
to death on February 29, 1984, between midnight and 3:00 a.m.
Taylor filed a petition for a
writ of habeas corpus and an application for a stay of execution
with the United States District Court for the Eastern District
of Louisiana. The district court considered and rejected without
a hearing the two claims Taylor had presented in his state court
petitions for post-conviction relief.
The district judge, finding
the manufactured-evidence claim "palpably incredible" and
rejecting the Brady claim on the ground that the fingerprint log
book was not exculpatory material, denied the petition for
habeas corpus and the application for a stay of execution. He
also refused to issue a certificate of probable cause, a
prerequisite for appeal.
The district court's seventeen-page memorandum opinion was filed
on February 15, 1984, 581 F.Supp. 359.
On that same date, Taylor
retained a new attorney, Frank Sloan, and discharged Manning,
who had represented him at trial, on direct appeal, and
throughout his post-conviction proceedings. Sloan reviewed the
trial record and, on February 20, 1984, filed with this court an
application for a stay of execution and for a certificate of
probable cause. Sloan's application requested an order staying
Taylor's execution pending appeal from the district court's
order of February 15. In addition, Sloan requested that this
court consider two additional claims, which had not been
presented previously to any court, under Fifth Circuit Local
The new claims were that
Taylor had been deprived of effective assistance of counsel
during both the guilt and sentencing phases of his trial.
Because a member of this panel expressed concern that Sloan had
not demonstrated cause for failing to present the new claims to
either state courts or the federal district court, and because
Sloan indicated to the Clerk of this Court that he would make an
effort to exhaust state post-conviction remedies and to file a
federal habeas petition with the district court, we have not
previously acted on Taylor's application for a stay and for a
certificate of probable cause.
Taylor immediately presented
these new claims to the Louisiana Courts, and on February 24 the
Louisiana Supreme Court denied his motions for relief, including
the request for stay of execution. A second habeas petition was
filed the next day, Saturday, February 25, with the federal
Earlier today, after hearing
arguments from counsel, the federal district court denied
Taylor's second habeas petition and the accompanying stay
application. The district judge refused to issue a certificate
of probable cause. He dictated the reasons for these orders into
the hearing transcript which we now have before us. Taylor
immediately filed a notice of appeal and application for a
certificate of probable cause with this court.
Taylor's stay application and
request for a certificate of probable cause with respect to the
district court's order of February 15 are properly before this
court. We have granted James Manning's request for amicus curiae
status solely for the purpose of submitting a brief regarding
Taylor's request for leave to
present new issues to this Court pursuant to Local Rule 8.1.3
has been mooted by his exhaustion of state remedies and the
district court's action on his second habeas petition.
Finally, there is also before
this court Taylor's request for a certificate of probable cause
and for a stay of execution pending appeal of the order of the
district court, entered this morning, denying his second habeas
We first consider Taylor's
request for a certificate of probable cause in conjunction with
the denial of his first habeas petition. A petitioner must make
a "substantial showing of the denial of a federal right" in
order to obtain such a certificate, without which this court has
no jurisdiction over the appeal of the denial of a state
prisoner's habeas petition. Fabian v. Reed, 714 F.2d 39, 40 (5th
Taylor raised two grounds for
habeas relief before the district court, both contingent on
inferences drawn from a single piece of documentary evidence,
the fingerprint log book. After examining the log book, the
district court determined that Taylor's allegation that the
latent palmprint was not lifted from the crime scene was so "palpably
incredible" as to warrant summary dismissal, citing Blackledge
v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).
The district court in its
memorandum opinion explains in detail the reasons why the
documentary evidence does not support the inference Taylor
attempts to draw from it. The log book entries refer to
individual prints, five of which were "no good" for
identification purposes. The envelope in which the prints were
stored refers to five lifts taken at the crime scene. The
district court correctly points out that "prints" and "lifts"
are not the same thing.
The crime lab fingerprint
technician testified at trial that lifts are pieces of plastic
tape on which prints are collected, and that they may contain
more than one print. In fact, the evidence presented in this
case revealed that two of the lifts taken from the crime scene
did contain multiple prints. The entry of " 1/2 palm" in the "good"
column clearly refers to a single print; this fact is
inconsistent with Taylor's argument that the numbers in the
second column mean that five lifts were "no good."
On the basis of the district
court's well-reasoned treatment of the manufactured evidence
claim and our independent examination of the state trial record
and the new exhibits, we hold that summary dismissal of the
first habeas petition was appropriate.
The existence of the described
entries in the fingerprint log book does not create a genuine
factual dispute over whether the palmprint was manufactured,
especially since the log book itself documents the existence of
a partial palmprint in the crime lab files on February 10, 1980.
Even reading the log book entries to mean that five lifts were
found to be unusable by the fingerprint technician, the log book
merely establishes a discrepancy in the recorded numbers of
lifts taken from the Cadillac.
There is absolutely no
evidence in the record which indicates that the " 1/2 palm"
entry was not made on February 10, 1980. Nor is there any
evidence to contradict the testimony of the fingerprint
technicians that a usable partial palmprint was taken from the
Cadillac on that date. The conclusory allegations to the
contrary do not entitle Taylor to a federal evidentiary hearing.
Ross v. Estelle, 694 F.2d 1008, 1011 & n. 2 (5th Cir.1983). The
Brady claim necessarily falls with the manufactured-evidence
claim, because the state was under no obligation to turn over
non-exculpatory evidence to Taylor.
Taylor has failed to make a
substantial showing of the denial of a federal right with
respect to the claims contained in his first habeas petition.
This application for a certificate of probable cause is denied;
accordingly, this panel has no jurisdiction over this appeal,
which is dismissed. Fabian v. Reed, 714 F.2d at 40. The first
application for a stay of execution is denied.
The district court has today
considered and rejected four grounds for relief claimed by
Taylor in his second habeas petition: (1) that he was
ineffectively represented in his prior habeas petitions, (2)
that he was ineffectively represented in the guilt phase of
trial, (3) that he was ineffectively represented at the
sentencing phase of trial, and (4) that his conviction was
unlawfully obtained through the use of evidence gathered after
These claims were apparently exhausted in the second state
We note here that our
jurisdiction depends upon our first granting a certificate of
probable cause since the district court has failed to do so. We
also decline to issue the certificate because we find that the
petitioner has not made a substantial showing of the denial of a
federal constitutional right.
In order to be entitled to an
evidentiary hearing before the district court, a habeas
petitioner must allege facts which, if proved, would entitle him
to relief. Rutledge v. Wainwright, 625 F.2d 1200 (5th Cir.1980),
cert. denied, 450 U.S. 1033, 101 S.Ct. 1746, 68 L.Ed.2d 229
(1981). A habeas petitioner, in order to obtain relief based on
a claim of ineffective assistance of counsel, must demonstrate
both an identifiable lapse in the performance of his attorney
and an actual adverse impact on the fairness of his trial
resulting from the lapse. Daniels v. Maggio, 669 F.2d 1075, 1077
(5th Cir.), cert. denied, 459 U.S. 968, 103 S.Ct. 295, 74 L.Ed.2d
278 (1982); Boyd v. Estelle, 661 F.2d 388, 389-90 (5th
Cir.1981); Washington v. Strickland, 693 F.2d 1243 (5th
Cir.1982), cert. granted, --- U.S. ----, 103 S.Ct. 2451, 77 L.Ed.2d
In evaluating allegations of
ineffectiveness, the federal court applies two presumptions. The
first is that trial counsel is presumed to have been competent.
Second, the failure to present a particular line of argument or
evidence is presumed to have been the result of strategic choice.
Washington v. Strickland, 693 F.2d at 1250 n. 11, 1257. In
determining whether a certificate of probable cause should issue,
we must consider whether Taylor has alleged any facts which, if
proved, would entitle him to a hearing.
First, Taylor claimed he was
denied effective assistance of counsel in his previous habeas
petitions because his attorney, Manning, failed to raise the
arguments raised before this court now. The fact that these
claims were not raised by petitioner's former attorney does not
relate to the validity of Taylor's conviction nor does it relate
to his entitlement to a hearing on the effectiveness of his
representation at his trial. Therefore, it serves as no basis
for habeas relief.
Second, with respect to the
performance of his counsel at the guilt phase of trial, Taylor
alleges several identifiable lapses. The first of these is the
failure to move to suppress evidence gained following Taylor's
arrest in Millry, Alabama. The arresting officer testified that
he stopped Taylor after Taylor had swerved in front of the
patrol car. In his habeas petition, Taylor alleges no facts upon
which trial counsel could have even arguably challenged the
validity of the arrest. Absent such allegations, we can identify
no failure on the part of trial counsel.
Second, Taylor alleges that
his trial counsel failed to object to Susan Vogler's hearsay
statement that her husband had been called by a black man on the
night of his murder. Any prejudice resulting from the failure to
object to this evidence was minimal, however, because (1) the
hair found in the Cadillac placed a black man at the crime scene,
and (2) the hearsay declaration is consistent with Taylor's own
alibi defense which implicated Allen Thomas and a black man in
The reference to a black man
certainly was no specific reference to Taylor individually. Even
though an objection might have properly been sustained to this
are totally unprepared to say that, assuming this to be a "lapse,"
it amounted to ineffectiveness of constitutional proportions.
Third, Taylor alleges that his
trial counsel failed to investigate a possible diminished
capacity defense based on alcohol abuse. Although Taylor
testified that he was drunk on one occasion (on February 9,
1980, when he wrecked the Buick), the record contains no other
evidence of alcohol abuse. Drunkenness on a single occasion
unrelated to the crime itself does not, under the circumstances
described here, impose a duty on counsel to consult medical
experts for the purpose of developing a diminished capacity
Fourth, Taylor challenges his
trial attorneys' preparation, alleging generally that cross-examination
was unproductive and that direct examination of defense
witnesses unnecessarily elicited responses prejudicial to the
defense. Again, no supporting facts are alleged in relation to
this claim. On the contrary, we have read the entire transcript
of this trial and it reveals active, aggressive and reasonably
effective representation of the defendant throughout the guilt
The record as we read it is
consistent with the state's contention that counsel focused on
definite trial strategy: to make every effort to destroy the
believability of the only evidence that placed Taylor at the
scene of the murder, that is, the palmprint. The record supports
the argument that counsel wanted Taylor to tell everything and
hide nothing in the hopes that the jury would find the defendant
open, frank and ultimately truthful in his denial of the murder.
In sum, with the possible
exception of the failure to object to the hearsay statement by
Mrs. Vogler, Taylor has identified no "lapse" in his trial
representation. He alleges no facts relevant to the adequacy of
his representation at the guilt phase of trial which, if proved,
would entitle him to habeas relief; instead, he relies on
conclusory allegations, and the district court was correct in
denying a hearing on this claim of ineffectiveness.
Taylor's third and final
allegation of ineffectiveness of counsel relates to Manning's
performance during the sentencing phase of trial. Manning began
to argue as a mitigating factor that the evidence against Taylor
was so slight that Taylor should not be put to death. The trial
judge prohibited this line of argument as relevant only as to
the issue of guilt. Manning made no further argument on Taylor's
Taylor does not allege that
his trial attorneys failed to investigate evidence which might
have been offered in his support at the sentencing phase of
trial. He does not identify witnesses who should have been
called to testify and were not called. He does not allege that
the failure to argue other lines of defense at this phase, if a
strategic choice, was such an unreasonable one that it
constituted a deprivation of Taylor's right to effective counsel.
At this stage, Taylor argues that he is entitled to a hearing on
this issue because the silence of his attorneys at the
sentencing phase of trial raises a presumption of
The law in this circuit is
clear: to be entitled to a hearing on ineffectiveness, a habeas
petitioner must allege facts which, if proved, would overcome
the presumptions that trial counsel is effective and that trial
conduct is the product of reasoned strategy decisions.
To grant Taylor a hearing
based solely upon the silence of his attorney would violate this
well-founded rule. Under the law of this circuit, Taylor was not
entitled on conclusory allegations to an evidentiary hearing
regarding the effectiveness of counsel at the sentencing stage.
Ross v. Estelle, 694 F.2d at 1011.
Taylor has not made the "substantial
showing" necessary to sustain the grant of a certificate of
probable cause necessary to maintain his appeal.
Therefore, the request for a certificate of probable cause is
denied, and the appeal from the order of the district court
dated February 27, 1984, is dismissed. The second application
for a stay of execution is denied.
In summary, in cause number
84-3108, the application for certificate of probable cause is
DENIED, the appeal is DISMISSED, and the application for stay of
execution is DENIED. In cause number 84-3141, the application
for certificate of probable cause is DENIED, the appeal is
DISMISSED, and the application for stay of execution is DENIED.