Characteristics: Member of the Aryan
Brotherhood of Texas - Revenge
Number of victims: 1
Date of murder:
Date of arrest:
Date of birth: January 8, 1979
Victim profile: Donta
Green, 22 (inmate)
Method of murder: Stabbing
with an 8" home-made weapon
Location: Bowie County, Texas, USA
Status: Sentenced to death on February 22, 2000.
by lethal injection in Texas on June 16, 2011
Date of Birth
Taylor, Lee Andrew
Date of Offense
Age (at the Offense)
#765153 on 10/29/96, Life sentence for 1 count Aggravated
04/01/99, during the daytime, at TDCJ-ID Telford Unit dayroom,
Taylor fatally stabbed an adult black male offender multiple
times with an 8" home-made weapon.
Taylor and one co-defendant
had engaged in a fight with the victim due to racial tension
between Taylor and the victim.
Taylor was a member of the Aryan
Brotherhood of Texas (a recognized security threat group).
Race and Gender
At 16, Taylor was convicted of a 1995 aggravated robbery that
resulted in the death of an elderly man. While serving a life
sentence at the Telford State Prison in New Boston, Taylor became
a member of the Aryan Brotherhood. Another inmate, Daniel
Richbourg, had property stolen from his cell and it was suspected
that inmate Donta Greene participated in the theft. Taylor and
Richbourg made plans to seek revenge.
The next morning, the inmates were released
from their cells to go to breakfast. Taylor walked just past
Greene, then turned and struck Greene with his fist. Taylor then
grabbed Greene around the head, held him in a headlock, and
repeatedly stabbed him in the chest with a rod-like shank, a
prison-made stabbing device that resembled an ice pick.
Afterwards, Taylor shouted at Greene, “That’s
what you get for stealing." During the stabbing, Richbourg
brandished his own shank, to chase away other inmates attempting
to help Greene, who was unarmed. After the stabbing, Taylor was
euphoric and repeatedly bragged that he must have stabbed Greene
twenty-five to thirty times.
He later claimed self defense. Accomplice
Richbourg was serving a 12-year sentence for Burglary. He was also
convicted in the murder of Greene and was sentenced to 48-years
Taylor v. Thaler,397 Fed.Appx. 104 (5th Cir. 2010).
A medium pizza with cheese, beef, black olives and mushrooms, four
soft tacos, large bowls of fried okra and one pint of Blue Bell
"There are 300 people on death row, and not every one of them is a
monster. The state of Texas is carrying out a very inhuman and
unjust situation. It's not right to kill anybody, not the way I
did it, or the way it's being done to me. Everyone changes, right?
Life is about experience, and people change." The condemned man
then looked to the victim's family. "For all you people," I
defended myself when I killed your family member. Prison is a bad
place. I didn't set out to kill him. But he would not have been in
prison if he was a saint. I hope y'all understand that. I hope you
don’t find satisfaction in this, watching a human being die.”
While Taylor continued talking to the victim's family, the lethal
injection was started. As the drug was taking effect, he said, "I'm
ready to teleport".
Texas Department of Criminal Justice
Taylor, Lee Andrew
Date of Birth: 01/08/1979
Date Received: 02/22/2000
Education: 9 years
Occupation: stocker, laborer
Date of Offense: 04/01/1999
County of Offense: Bowie
Native County: Galveston
Hair Color: Brown
Eye Color: Brown
Height: 5' 09"
Prior Prison Record: #765153 on 10/29/96, Life
sentence for 1 count Aggravated Robbery.
Summary of incident: On 04/01/99, during the
daytime, at TDCJ-ID Telford Unit dayroom, Taylor fatally stabbed
an adult black male offender multiple times with an 8" home-made
weapon. Taylor and one co-defendant had engaged in a fight with
the victim due to racial tension between Taylor and the victim.
Taylor was a member of the Aryan Brotherhood of Texas (a
recognized security threat group).
Co-Defendants: Richbourg, Daniel.
Texas Attorney General
Friday, June 10, 2011
Media Advisory: Lee Taylor scheduled for
AUSTIN – Texas Attorney General Greg Abbott
offers the following information about Lee Andrew Taylor, who is
scheduled for execution after 6 p.m. on Thursday, June 16, 2011.
Taylor, a prison inmate who was serving a life sentence for
aggravated robbery that resulted in the death of an elderly man,
was convicted and sentenced to death in a Bowie County state
district court for the murder of another prison inmate, Donta
FACTS OF THE CRIME
During the evening hours of March 31, 1999, in
the Barry Telford state prison in New Boston, property was stolen
from the cell of inmate Daniel Richbourg. Inmate Donta Greene
participated in the theft and took some of Richbourg’s property.
During the night of March 31, 1999, Taylor and Richbourg made
plans to seek revenge for the theft.
The next morning, in the early morning hours of
April 1, 1999, the inmates were released from their cells to go to
breakfast. When Taylor was released from his cell, he walked just
past Greene, then turned and struck Greene with his fist. Taylor
then grabbed Greene around the head, held him in a headlock, and
repeatedly stabbed him in the chest with a rod-like shank—a prison-made
stabbing device that resembled an ice pick. Afterwards, Taylor
shouted at Greene, “That’s what you get for stealing....”
During the stabbing, Richbourg brandished his
own shank—a plexiglass blade-like weapon—to chase away other
inmates attempting to help Greene so Taylor could complete the
murder. At no time did Greene himself ever have a weapon. After
the stabbing, Taylor was euphoric and repeatedly bragged that he
must have stabbed Greene twenty-five to thirty times. Taylor
inflicted thirteen actual stab wounds and numerous scratches on
Greene’s body. Several of the puncture wounds were fatal.
On November 4, 1999, Taylor was indicted by a
Bowie County grand jury for capital murder in the death of Donta
Greene. On Feb. 18, 2000, a jury found Taylor guilty of the
capital murder and the court sentenced Taylor to death. The Texas
Court of Criminal Appeals affirmed Taylor’s conviction and
sentence on December 11, 2002.
Taylor filed a state application for writ of
habeas corpus in the trial court on November 30, 2001. The trial
court entered findings of fact and conclusions of law recommending
that Taylor be denied relief. The Texas Court of Criminal Appeals
adopted the trial court’s findings and conclusions and denied
Taylor habeas relief on March 31, 2004.
Taylor filed a federal habeas petition in a U.S.
district court on March 30, 2005. The court then issued a stay so
that Taylor could exhaust a mental-retardation claim in state
court. On July 11, 2008, Taylor’s attorney informed the court that
a doctor determined Taylor was not mentally retarded. On July 28,
2008, the court lifted the stay. On August 31, 2009, the court
denied Taylor federal habeas relief. Taylor appealed this decision
to the United States Court of Appeals for the Fifth Circuit. The
Fifth Circuit court affirmed the federal district court’s decision
on October 7, 2010. Taylor filed a petition for writ of certiorari
in the U.S. Supreme Court on January 5, 2011. The Supreme Court
denied the petition on April 18, 2011.
EVIDENCE OF FUTURE DANGEROUSNESS
Taylor was convicted of aggravated assault and
sentenced to life imprisonment for a Nov. 17, 1995, incident in
which a grandfather and his wife were beaten at their home. The
grand father died a short time later in a hospital.
Texas executes man for prison stabbing
By Corrie MacLaggan - Reuters.com
June 16, 2011
AUSTIN, Texas (Reuters) - A man convicted of
fatally stabbing a fellow inmate in a state prison in 1999 was
executed in Texas on Thursday evening by lethal injection.
Lee Taylor was to be the second man put to
death in Texas this week. But on Wednesday, the U.S. Supreme Court
stayed the execution of John Balentine, who fatally shot three
teenagers in Amarillo in 1998. Balentine had raised an issue about
whether he has a right to be represented by a lawyer in a post-conviction
state hearing challenging the effectiveness of his lawyers at
Taylor, 32, used an ice-pick-like weapon made
in prison to stab fellow inmate Donta Greene multiple times in
what the Texas Department of Criminal Justice describes as a fight
stemming from racial tension. Taylor, who is white, was a member
of the Aryan Brotherhood of Texas, according to the department.
Greene was black.
Taylor said shortly before he died that he was
acting in self-defense. "I am sorry that I killed him but he would
not have been in prison if he was a saint," Taylor said, according
to Jason Clark, a spokesman for the Texas Department of Criminal
Justice. Clark said that Taylor also talked about the death
penalty itself, saying that not everyone on death row is "a
monster." "I hope people understand the grave injustice by the
state," Clark quoted Taylor as saying. "It's not right to kill
anybody just because I killed your people. Everyone changes, right?"
At the time of the stabbing at the northeast
Texas prison, Taylor was serving a life sentence for an aggravated
robbery in which an elderly man died, according to the state
attorney general's office.
Taylor was pronounced dead at 6:24 p.m.
Thursday, Clark said. His last meal included pizza, soft tacos,
fried jalapeno sticks, french fries, fried okra and ice cream,
Clark said. One of the last things Taylor said was: "I'm ready to
teleport," according to Clark.
Taylor was the fifth inmate executed in Texas
this year. Alabama on Thursday executed a man for brutally
murdering a 70-year-old woman in 1995. Those two executions
brought to 22 the number of people put to death in the United
States so far this year. Texas has executed more than four times
as many people as any other state since the death penalty was
reinstated in the United States in 1976, according to the Death
Penalty Information Center. The next execution in Texas is
scheduled for Tuesday.
Convicted killer of fellow inmate executed Thursday
By Brandon Scott - ItemOnline.com
Jun 16, 2011
HUNTSVILLE — A member of the Aryan Brotherhood
of Texas prison gang was put to death Thursday evening with few
thoughts left unspoken. Lee Andrew Taylor, 32, spoke candidly to
his witnesses before being pronounced dead by lethal injection at
6:24 p.m. Thursday.
“There are 300 people on death row and not
every one of them is a monster,” said Taylor, who was sentenced to
death for killing a fellow inmate in 1999. “The state of Texas is
carrying out a very inhumane and unjust situation. It’s not right
to kill anybody, not the way I did it or the way it’s being done
to me. “Everyone changes right? Life is about experience and
people change.” Taylor began serving a life sentence in 1996 for
one count of aggravated robbery which resulted in one fatality.
Almost three years later, Taylor engaged in a
fight with fellow inmate Donta Greene at the Telford Unit near
Texarkana, in what the Texas Department of Criminal Justice
referred to as an incident of racial tension. Taylor stabbed
Greene 15 times in the heart with a homemade weapon. As lethal
drugs were injected into his veins, Taylor looked to Greene’s
family to plead his case. “For all you people, I defended myself
when I killed your family member,” Taylor said. “Prison is a bad
place. I didn’t set out to kill him. But he would not have been in
prison if he was a saint. I hope ya’ll understand that.”
The Aryan Brotherhood is a white prison gang
with roughly 19,000 members in and out of prison. Though the gang
makes up less than one percent of the prison population, it is
responsible for up to 21 percent of murders in the federal prison
system, according to the FBI. Of the 469 inmates put to death
since Texas resumed executions in 1982, Taylor was only the second
white convict executed for killing a black person. The first was
The victim’s family stood still as Taylor
continued to speak until he was no longer able. Taylor’s mother
cried repeatedly: “Oh my God, please don’t.”
The U.S. Supreme Court refused an appeal
Thursday that claimed Taylor had poor legal help at his trial and
in earlier appeals. The court voted 5-4 to reject the appeal just
hours before Taylor was scheduled to die. State attorneys opposed
the reprieve, saying Taylor had “brutally killed” people both in
and out of prison.
For his final meal, Taylor requested a medium
pizza with cheese, beef, black olives and mushrooms. In addition,
Taylor ate four soft tacos, large bowls of fried okra and one pint
of Blue Bell Ice Cream. Taylor’s final words before he lost
consciousness were directed at the victim’s family, “I hope you
don’t find satisfaction in this, watching a human being die.”
This was the fifth execution in Texas this year.
At least eight more will follow.
Texas man executed for killing fellow inmate
By Michael Graczyk - Star-Telegram.com
AP Thursday, Jun. 16, 2011
HUNTSVILLE -- Apologizing for killing a fellow
inmate but insisting that he acted in self-defense, Lee Andrew
Taylor was executed Thursday evening.
Taylor, 32, used his final statement to tell
his mother and wife he loved them. Looking at relatives of Donta
Greene, the inmate he fatally stabbed in 1999, Taylor said, "I
defended myself when I killed your family member." "Prison is a
bad place. There was eight against me. I didn't set out to kill
him. I am sorry that I killed him, but he would not have been in
prison if he was a saint. I hope y'all understand that." Standing
at a death chamber window, Greene's family had no reaction. Taylor
said the death penalty is inhuman and unjust and that not everyone
on Death Row is a monster. "Everyone changes, right?" he said. "Life
is about experience, and people change." Then he told the warden:
"I'm ready to teleport."
As the drugs began taking effect, he again
looked toward Greene's relatives. "I hope you don't find
satisfaction in this, watching a human being die," he said.
He was pronounced dead at 6:24 p.m., the fifth
inmate executed in Texas this year. Taylor's mother sobbed: "This
is not right."
Taylor was among a few white convicts sent to
Death Row in Texas for killing a black person. And of the 469
Texas inmates put to death since executions resumed in 1982, he's
only the second to be executed for killing a black person. The
first was in 2003.
Taylor's punishment was carried out almost two
hours after the U.S. Supreme Court, in a 5-4 vote, rejected a last-day
appeal. His lawyer argued that Taylor had poor legal help at his
trial and in earlier appeals. It's an issue similar to the one
used Wednesday by condemned Texas inmate John Balentine, who won a
reprieve from execution.
"Lee Andrew Taylor's childhood was fraught with
physical abuse, mental illness, neglect, instability, sexual
abuse, substance abuse and exposure to traumatic violence," lawyer
David Sergi told the court. "A reasonable investigation would have
uncovered details of a childhood vastly different and more severe
from the one presented to Taylor's jury."
State attorneys opposed the reprieve request.
"He has brutally killed persons both in and out of prison," W.
Erich Dryden, an assistant Texas attorney general, told the court.
"He has proven beyond any doubt that he is a danger to any society."
At the time of Greene's death at the Telford Unit near Texarkana,
Taylor was already serving a life sentence for the fatal beating
of a 79-year-old man during a robbery in Channelview, just east of
Houston. The man's wife was also beaten but survived.
Taylor was 16. He pleaded guilty. "I did
something real atrocious when I was a kid," Taylor, a Galveston
native, said in a recent interview outside Death Row. "I lost my
life and somebody lost their life in turn. "It was a very sad day
for two individuals and myself."
He blamed the attack on the couple on a life of
"drugs and sex and rock 'n' roll." Taylor's lawyers argued in
earlier appeals that prosecutors improperly used that conviction
-- when he was under 18 and ineligible for the death penalty -- as
evidence to persuade jurors to send him to Death Row for the
prison killing. "The state couldn't give me the death penalty when
I was 16, so they got back at me," Taylor said.
Jeff Fletcher, one of his trial lawyers, said,
"I felt like he was convicted for something he had done prior to
the actual crime for which he was given the death penalty."
Appeals courts disagreed, ruling that the death sentence was for
the prison slaying. Evidence showed that Greene, serving six years
for crimes in Dallas County, was stabbed 13 times with an 8-inch
James Elliott, who prosecuted Taylor for the
prison murder, said the case is an argument against life in prison
as a better alternative to the death penalty. "It's pretty naive
to expect there will be no murders in prison, especially by those
who have committed a murder already," he said this week.
Prison records showed that Taylor belonged to
the Aryan Brotherhood, a white prison gang. Taylor said he and
David Richbourg, also convicted in the attack on Greene, were the
only white inmates on their cellblock. Evidence showed that
Richbourg used a sharpened piece of plastic to stab Greene and
brandished his weapon to keep others at bay while Taylor made his
attack. Richbourg got 48 years for his part in the melee.
Lee Andrew Taylor
While serving a life sentence for aggravated
robbery, Lee Andrew Taylor, a member of the white supremacist
Aryan Brotherhood gang, stabbed another inmate to death in a
On November 17, 1995, at the age of 16, Taylor
robbed and brutally beat an elderly couple in their home in
Channelview, Texas, near Houston. John and Mildred Hampton, both
79 years old, were savagely beaten during the robbery. Taylor used
the money he got from robbing the couple to rent a motel room and
throw a party. John Hampton was in a coma for most of the two
months after the beating before finally succumbing to his injuries
on January 13, 1996. Mildred had to have massive reconstructive
surgeries to repair her broken jaw and other damage to her face.
At the February 20, 1996 hearing held to determine whether to
certify Taylor as an adult in this crime, John K. Hampton, the
grandson of John and Mildred Hampton, testified. He said that he
had traveled from Plano with his wife, half-brother and two young
children to visit his grandparents in Houston on the day of the
The next morning around 10:00 am they went to
the home where his grandparents had lived for 10 years and knocked
on the door. After not receiving an answer, he checked the garage
to see if the couple's car was there. Mildred frequently left the
garage door slightly elevated so their cats could enter and exit.
After around ten minutes, Mildred made it to the door and opened
it, revealing her battered face to her family. "Her head was about
twice the size and her eyes were swollen shut. There was blood on
her hands and all over her blouse." John K. Hampton sent his
family back to their car and asked a neighbor to call 911, then
went inside. His grandfather was lying on his side in a pool of
blood and Mildred was in a state of shock, but was lucid enough to
warn her grandson not to touch the phone because the attacker had
touched it and there might be fingerprints. In any case, the
phones were not working because the cords had been ripped from the
wall. Jewelry boxes were emptied and John Hampton's wallet
containing about $40 was stolen. After police questioned neighbors,
they learned that someone named Lee had stayed at a nearby motel
and had gone to a hospital after being involved in a fight during
his party. Police obtained Taylor's full name at the hospital and
matched it to the motel records. After they questioned Taylor, he
confessed and showed them where he had thrown away John Hampton's
wallet. Taylor was charged with capital murder and was to be tried
as an adult. He subsequently accepted a plea bargain and was
convicted of aggravated robbery and sentenced to a term of life
While he was serving that sentence, Taylor came
into possession of a “shank” — a prison-made stabbing implement —
which he used against Donta Green during the morning of March 31,
1999. Taylor stabbed Green 13 times and inflicted numerous other
scratch wounds; Green later died as a result. Taylor was indicted
for capital murder for intentionally or knowingly causing the
death of an individual while serving a sentence of life
imprisonment for aggravated robbery.
Following a jury trial, Taylor was convicted
and sentenced to death. David Richbourg, a second prisoner who was
convicted of the attack on Green received a 48-year sentence.
Evidence showed that Richbourg used a sharpened piece of plastic
glass to stab Green and then brandished his weapon to keep other
inmates at bay while Taylor was making his attack. Medical
evidence showed that Taylor's weapon was responsible for the fatal
Lee Andrew Taylor
Hello, my name is Lee. I
was locked up at the age of 16. I received a life sentence.
There was a death involved, but I was only convicted of
aggravating robbery. I was a product of the environment I would
dwell in. I was on my own from the age of 13. Houston, TX and
lived the Houston street life. I started drugs then became
addicted to powder cocaine. I will go deeper into this in a
later point in time if their is a person out there whom really
cares to hear it.
I was in the Texas
Department of Criminal Justice for five years almost, there is
sooo much violence, and racism and abuse that I could go on & on.
I am a white male with a
farely decent build. And I believe that my keeping in shape, not
only physically but mentally as well was the only reason I made
it them years.
Well in '98 the State or
rather "George Bush" made a law where if your serving a life
sentence and kill someone, it is Capital Murder, and no matter
what you will be found guilty. Because there is supposed to be
no weapons in T.D.C. Because, the public believes that these "officers"
are here to protect "us", when really they secure the area in
which someone is fighting, i.e. rioting, and video tape the
incident. So, they can "punish" the aggressors. But, what about
Well, I was a victim in
a racist war. Being white we are the minority here, therefore
taken advantage of. Most pay for protection. Me on the other
hand can't submit to another person for protection. A lot to be
explained by this letter I realize, but, I'm trying to keep this
short as possible....Long story short, there was a black guy who
stole some other white guy's stuff, and he wasn't a "hoe" or
whatever. So, the others and myself included have to back him up
because, he never broke to the several abusive beatings he had
and every white has in TX when you come to the prison system.
The "officers" feed the few whites to the majority so they don't
have any problems. Anyway, the riot took place April 15th '99
and while it took place and I defended myself I killed a person.
The odds were 8 on the two of us. I am the first person to be
sentenced to death under the new law "George Bush" made. I was
sentenced Feb, 18th, 00.
The thing about it is,
that the whole place knew it was self-defense, but because I had
a weapon in the prison system it was declared a murder. But,
what am I supposed to do? The officers do just what I said lock
all doors and run, get the camera and watch someone beaten or
killed. So, do I let that happen to me? No. But, I'm wrong I
think No!! The actual riot had nothing to do with race. But,
everything to do with stealing. Then just because I'm white and
he was black, I'm a kkk member and kill em all?!? When I went to
court the D.A's whole case was that I'm a racist. Please, I have
a 48 year old black dude next to me at the moment that looks at
me like a son, and he knows every detail of my prison life. And
he knows how the regular population in T.D.C is with all the
promoted racism from the officials. I did what I had to do, and
any man would have.
The lawyer in my trial
is still a good friend, because he got to know me. When I got
locked up I couldn't read, write spell. I know I still can't
spell too well. But people can understand my letters 100%. I
know all type of subjects. Why? Because, the five years I was
locked up I did care. I cared for my life and wanted a change.
But, due to the way the violence is out of control in T.D.C, I
Anyways, I love to write,
and when I do I just let my thoughts flow, as you can very well
see from this letter. I bet who ever types this letter out on
the web site will be unhappy! :)
If anyone cares to write,
please feel free, anyone at all. I will write all. I've enclosed
a picture of myself for you, don't laugh! I've always had
compliments on my looks. But, somehow can't see any good looking
features. I have a lot life story to tell that I wish no twenty-one
year-old should ever have to tell. It is sad and disrupted. But,
it is mine, and I am a different person than I was five years
ago. Even before the riot on April first. because, although I
was a product of my environment in the free, I changed and grew
into a man, and the reason the defensive killing took place was
because of the environment the State put me in. If you put a cat
in a cage with a dog, he will defend himself with whatever he
can, this is probably a pretty poorly written introduction
letter, but like I said I ain't trying to be someone I'm not,
and "me" is a person who writes his feelings and thoughts.
Lee Andrew Taylor
3872 F.M. 350 South
Livingston, TX 77351
Taylor v. Thaler, 397 Fed.Appx. 104
(5th Cir. 2010) (Habeas)
Background: Defendant convicted of capital
murder for intentionally or knowingly causing the death of an
individual while serving a sentence of life imprisonment for
aggravated robbery petitioned for a writ of habeas corpus. The
United States District Court for the Eastern District of Texas,
2009 WL 2833453, denied relief, and defendant appealed.
Holdings: The Court of Appeals held that: (1)
using defendant's aggravated robbery conviction, for an offense he
committed as a minor, as the predicate for his capital murder
conviction was not constitute cruel and unusual punishment; (2)
Texas's capital-sentencing scheme rationally narrowed the class of
persons eligible for the death penalty; and (3) defendant's claim
that his Confrontation Clause rights were violated by the
admission of portions of his prison disciplinary record was barred
by procedural default. Affirmed
Texas death row inmate Lee Andrew Taylor
appeals the district court's denial of habeas relief. For the
following reasons, we affirm.
In 1995, at the age of 16, Taylor robbed an
elderly couple in their home in Houston, Texas. He was
subsequently convicted of aggravated robbery FN1 and sentenced to
a term of life imprisonment. While he was serving that sentence,
Taylor came into possession of a “shank”—a prison-made stabbing
implement—which he used against Donta Green during the morning of
March 31, 1999. Taylor stabbed Green 13 times and inflicted
numerous other scratch wounds; Green later died as a result. (FN1.
Under Texas law, aggravated robbery includes, inter alia, the
commission of robbery if the defendant “causes bodily injury to
... or threatens or places ... in fear of imminent bodily injury
or death, ... [a person] 65 years of age or older.” Tex. Penal
Code Ann. § 29.03(a)(3)(A).)
Taylor was indicted for capital murder for
intentionally or knowingly causing the death of an individual
while serving a sentence of life imprisonment for aggravated
robbery. See Tex. Penal Code Ann. §§ 19.02(b)(1),
19.03(a)(6)(B).FN2 Following a jury trial, Taylor was convicted
and sentenced to death. On December 11, 2002, hearing the case on
direct appeal, the Texas Court of Criminal Appeals (TCCA) affirmed.
Taylor next sought post-conviction relief in the state trial court,
which denied relief. On March 31, 2004, the TCCA, adopting the
trial court's findings of fact and conclusions of law, similarly
FN2. Section 19.02(b)(1) provides that a person
commits murder by “intentionally or knowingly caus[ing] the death
of an individual.” Tex. Penal Code Ann. § 19.02(b)(1). Section
19.03(a)(6)(B) provides that a person commits capital murder by
“commit[ting] murder as defined under Section 19.02(b)(1) ...
while serving a sentence of life imprisonment ... for an offense
under Section ... 29.03.” Tex. Penal Code Ann. § 19.03(a)(6)(B).
Taylor next sought a writ of habeas corpus in
federal district court. In his application under 28 U.S.C. § 2254,
Taylor raised 14 issues that he claimed warranted relief. The
district court dismissed all of Taylor's claims, see Taylor v.
Thaler, No. 4:04–CV–150, 2009 WL 2833453 (E.D.Tex. Aug.31, 2009),
but issued a certificate of appealability (COA) with respect to
three of them. Those three claims raise essentially two issues:
(1) whether using Taylor's aggravated robbery conviction—for an
offense he committed as a minor—as the predicate for his capital
murder conviction constitutes cruel and unusual punishment; and
(2) whether admitting Taylor's prison disciplinary record during
the sentencing phase of his capital murder trial violated his
right to confront the witnesses against him.FN3 Taylor now appeals
the denial of habeas relief on those three claims.
FN3. The three claims for which a COA was
granted are articulated as follows: 1. Because he is actually
innocent of the death penalty, his execution would constitute a
miscarriage of justice and is therefore barred by the Eighth
Amendment. 10. He was denied the right to confront witnesses by
the trial court's admission of prison administrative records which
contained testimonial hearsay. 11. Because Taylor was sixteen
years old at the time he committed aggravated robbery, his death
sentence, which was based in part on his conviction for that
robbery, constitutes cruel and unusual punishment.
The district court concluded that Taylor's
eleventh claim was “indistinguishable from Taylor's first claim”
and denied it for the same reasons that it denied his first claim.
II. LEGAL STANDARDS
In an appeal from a district court's denial of
habeas relief, we apply the same standards as the district court.
Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir.2010). Taylor's
habeas proceeding is subject to the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). See Pierce v. Thaler, 604 F.3d
197, 200 (5th Cir.2010). Under AEDPA, we may not grant habeas
relief: with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim— (1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. 28 U.S.C. § 2254(d).
A state court decision is “contrary to” federal
precedent if it applies a rule that contradicts the governing law
set forth by the Supreme Court or if it involves a set of facts
that are materially indistinguishable from a Supreme Court
decision but reaches a result different from that Court's
precedent. Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir.2010) (citing
Woodward v. Epps, 580 F.3d 318, 325 (5th Cir.2009)). “The relevant
‘clearly established federal law’ is the law that existed at the
time the state court's denial of habeas relief became final.”
Pierce, 604 F.3d at 200 (citing Abdul–Kabir v. Quarterman, 550 U.S.
233, 238, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007); Williams v.
Taylor, 529 U.S. 362, 390–94, 120 S.Ct. 1495, 146 L.Ed.2d 389
As mentioned above, the district court granted
Taylor a COA for each of three claims that he presented in his
federal habeas petition. Two of those issues involve the Eighth
Amendment's prohibition on cruel and unusual punishment, FN4 while
the third involves the Sixth Amendment's Confrontation Clause. FN5
We first address the Eighth Amendment issues before turning to the
Sixth Amendment issue. FN4. “Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII. FN5. “In all criminal
prosecutions, the accused shall enjoy the right ... to be
confronted with the witnesses against him....” U.S. Const. amend.
A. Cruel and Unusual Punishment
Taylor's Eighth Amendment arguments consist of
two discrete theories. First, he claims that the Supreme Court's
decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161
L.Ed.2d 1 (2005), forecloses the use of his prior aggravated
robbery conviction as the predicate elevating his homicide offense
from non-capital to capital murder because he was a minor when he
committed the aggravated robbery offense. Second, he claims that
Texas's capital scheme impermissibly expands the class of persons
eligible for the death penalty to include persons who commit
murder while serving a sentence of life imprisonment for
aggravated robbery. The State urges that both claims were
procedurally defaulted and are, in any event, meritless. We
pretermit discussing the procedural defaults, as Taylor's
“claim[s] can be resolved more easily” on the merits. See Busby v.
Dretke, 359 F.3d 708, 720 (5th Cir.2004).
In Roper, the Supreme Court held that “[t]he
Eighth and Fourteenth Amendments forbid imposition of the death
penalty on offenders who were under the age of 18 when their
crimes were committed.” 543 U.S. at 578, 125 S.Ct. 1183. Taylor
urges that we should interpret Roper to reach the conclusion that
his own “diminished moral culpability at 16 years of age, the time
at which he committed aggravated robbery, should preclude use of
that conviction and sentence as an aggravating factor thereby
making him eligible for the death penalty.” FN6
FN6. We note that the TCCA entered a final
denial of Taylor's state habeas petition on March 31, 2004, and
that Roper was decided nearly a year later, on March 1, 2005. This
raises the question whether Roper was “clearly established Federal
law, as determined by the Supreme Court of the United States,” at
the time of the relevant state court decision, such that Roper can
provide Taylor with a foundation for relief under AEDPA. Neither
party raised this issue on appeal. In any event, as Taylor's claim
fails on its merits, we need not decide that question today.
We conclude that Taylor's claim must fail
because Roper does not clearly establish that he is ineligible for
the death penalty. The Roper Court held only that “[t]he age of 18
is ... the age at which the line for death eligibility ought to
rest.” 543 U.S. at 574, 125 S.Ct. 1183. In reaching this
conclusion, the Court identified three ways in which juvenile
offenders differed from adult offenders: (1) lack of maturity and
underdeveloped senses of responsibility; (2) vulnerability to
negative influences and outside pressure; and (3) less developed
characters. Id. at 569–70. According to the Court, “[t]hese
differences render suspect any conclusion that a juvenile falls
among the worst offenders.” Id. at 570. After recognizing “the
diminished culpability of juveniles,” id. at 571, the Court then
analyzed whether the two recognized social purposes—retribution
and deterrence—were furthered by allowing the death penalty for
offenders under 18 years of age, id. at 571–72. The Court noted
that “[r]etribution is not proportional if the law's most severe
penalty is imposed on one whose culpability or blameworthiness is
diminished, to a substantial degree, by reason of youth and
immaturity.” Id. at 571. It further determined that “the same
characteristics that render juveniles less capable than adults
suggest as well that juveniles will be less susceptible to
deterrence.” Id. The Court concluded that “[w]hen a juvenile
offender commits a heinous crime, the State can exact forfeiture
of some of the most basic liberties, but the State cannot
extinguish his life and his potential to attain a mature
understanding of his own humanity.” Id. at 573–74.
While the Roper decision clearly establishes
that the death penalty may not be imposed as punishment for an
offense committed as a juvenile, it does not clearly establish
that such an offense may not be used to elevate murder to capital
murder. Here, Taylor is not being punished again for his earlier
crime but is instead being punished for a murder that he committed
as an adult. See Cannady v. Dretke, 173 Fed.Appx. 321, 329–30 (5th
Cir.2006) (per curiam) (likening § 19.03(a)(6) to a
constitutionally acceptable recidivist statute). Thus, the TCCA
did not unreasonably apply federal law in concluding that Taylor's
aggravated robbery conviction and corresponding life sentence
rendered him eligible for the death penalty under §
Taylor also argues that Texas's capital-sentencing
scheme fails to genuinely narrow the class of persons eligible for
the death penalty. He contends that it is unconstitutional for
Texas to authorize the death penalty in cases where a murder is
committed by an inmate serving a life sentence for aggravated
robbery but not where the same murder is committed by an inmate
serving a life sentence for various other crimes. Taylor's
argument is, essentially, that because there are other serious
crimes that cannot serve as predicates for § 29.03(a)(3), the
crime of aggravated robbery may not be so used.
“[T]he Constitution ‘does not mandate adoption
of any one penological theory.’ ” Ewing v. California, 538 U.S.
11, 25, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (quoting Harmelin
v. Michigan, 501 U.S. 957, 999, 111 S.Ct. 2680, 115 L.Ed.2d 836
(1991) (Kennedy, J., concurring)). Instead, the Supreme Court has
emphasized its longstanding “tradition of deferring to state
legislatures in making and implementing such important policy
decisions.” Id. at 24, 123 S.Ct. 1179 (citing cases). This
deference requires that the state have “a reasonable basis for
believing” that an enhanced sentence “ ‘advances the goals of its
criminal justice system in any substantial way.’ ” Id. at 28, 123
S.Ct. 1179 (alterations omitted) (quoting Solem v. Helm, 463 U.S.
277, 297 n. 22, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). Where the
death penalty is involved, the Supreme Court has articulated the
following rule: “If a State has determined that death should be an
available penalty for certain crimes, then it must administer that
penalty in a way that can rationally distinguish between those
individuals for whom death is an appropriate sanction and those
for whom it is not.” Spaziano v. Florida, 468 U.S. 447, 460, 104
S.Ct. 3154, 82 L.Ed.2d 340 (1984) (citing Zant v. Stephens, 462
U.S. 862, 873–80, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Furman v.
Georgia, 408 U.S. 238, 294, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan,
J., concurring)); accord Kansas v. Marsh, 548 U.S. 163, 173–74,
126 S.Ct. 2516, 165 L.Ed.2d 429 (2006) (“[A] state capital
sentencing system must: (1) rationally narrow the class of death-eligible
defendants; and (2) permit a jury to render a reasoned,
individualized sentencing determination.... So long as a state
system satisfies these requirements, our precedents establish that
a State enjoys a range of discretion in imposing the death penalty
....” (internal citation omitted)).
Consistent with these principles, we addressed
the constitutionality of Texas's capital-sentencing scheme in
Sonnier v. Quarterman, 476 F.3d 349 (5th Cir.2007). We first noted
that the distinction between the nine enumerated categories of
capital murder, see Tex. Penal Code Ann. § 19.03(a), and other
categories of murder, see Tex. Penal Code Ann. § 19.02(b), “is the
initial narrowing of the class of persons who may potentially face
the death penalty.” Sonnier, 476 F.3d at 366. This, in conjunction
with the requirement that one or more statutory aggravating
circumstances be found beyond a reasonable doubt by a unanimous
jury, led us to “conclude that the Texas scheme ... is
constitutionally valid ..., in that it rationally narrows the
classes of defendants determined to be eligible and selected for
the death penalty.” Id. at 366.
We conclude that our decision in Sonnier, by
which we are bound, see United States v. Rose, 587 F.3d 695, 705
(5th Cir.2009) (per curiam), forecloses Taylor's argument.
Moreover, it was not irrational for the State to authorize the
death penalty only for those inmates whose life sentences were
imposed for aggravated offenses. As the TCCA has explained,
“inmates who have committed murder or other aggravated offenses
have already shown a certain propensity for violence. Furthermore,
the greater the sentence that the inmate received, the less he may
have to lose by committing further offenses in prison.” Cannady v.
State, 11 S.W.3d 205, 215 (Tex.Crim.App.2000) (footnote omitted);
see also Cannady v. Dretke, 173 Fed.Appx. at 329 (“[T]he
legislators' intent in passing the law was to deter inmates
already serving long sentences from murdering other inmates.” (citing
State v. Cannady, 913 S.W.2d 741, 743–44 (Tex.App.–Corpus Christi
1996, writ denied))). Nor is it constitutionally problematic that
the earlier decision to charge an aggravated offense such as
aggravated robbery rather than ordinary robbery rested within the
discretion of the prosecutor. See Bordenkircher v. Hayes, 434 U.S.
357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (“Within the limits
set by the legislature's constitutionally valid definition of
chargeable offenses, ‘the conscious exercise of some selectivity
in enforcement is not in itself a federal constitutional violation’
so long as ‘the selection was not deliberately based upon an
unjustifiable standard such as race, religion, or other arbitrary
classification.’ ” (alteration omitted) (quoting Oyler v. Boles,
368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962))). We
therefore hold that the state court's decision was neither
“contrary to, [n]or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1).
B. Confrontation Clause
Taylor next alleges that admission of portions
of his prison disciplinary record during the sentencing phase of
his trial violated his right to be confronted with the witnesses
against him. During the sentencing phase of his trial, the State
sought to introduce a copy of Taylor's prison disciplinary record,
which contained reports of altercations with other inmates and
threats made to prison guards. Taylor objected on the grounds that
the reports contained inadmissible hearsay and violated his rights
under the Confrontation Clause. The state trial court admitted the
prison disciplinary record under the business records exception to
the hearsay rule. See Tex.R. Evid. 803(6). On direct appeal to the
TCCA, Taylor claimed that the record was erroneously admitted
under the business records exception because it contained “matters
observed by police officers and other law enforcement personnel.”
Tex.R. Evid. 803(8)(B); see also Cole v. State, 839 S.W.2d 798,
810 (Tex.Crim.App.1990) (holding that evidence made inadmissible
by Rule 803(8) may not be admitted under Rule 803(6)). However,
because Taylor did not raise that objection at trial, the TCCA
held that he “procedurally defaulted his Cole claim for appeal.”
The TCCA further held that Taylor's Confrontation Clause claim,
which was predicated on the Cole claim, was thus procedurally
defaulted as well. FN7. The TCCA held in the alternative that any
error was harmless.
In this appeal, Taylor has not attempted to
argue that his procedural default on the Confrontation Clause
claim is excused by cause and prejudice. Instead, he merely
reurges his assertion that because he is actually innocent of the
death penalty, any procedural default should be excused.FN8 We
have already rejected, on the merits, Taylor's contentions that he
is ineligible for the death penalty. As a result, his claim of
actual innocence based on those contentions must also fail.
Because Taylor offers no independent justification for us to reach
the merits of his Confrontation Clause claim, we do not do so.
FN8. In the portion of his brief devoted to the
issue, Taylor argues: As already stated, Petitioner contends that
any procedural default should be excused in light of his “actual
innocence” of the death sentence imposed on him as a result of the
unconstitutional application of Tex. Pen.Code § 19.03(a)(6)(B) in
which an offense committed when Petitioner was a juvenile was used
to elevate the killing of a fellow inmate from simple murder to
For the foregoing reasons, the judgment of the
district court is AFFIRMED.
Lee Andrew Taylor