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Gerald Wayne TIGNER Jr.

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Drugs
Number of victims: 3
Date of murders: 1992 / 1993
Date of arrest: September 1, 1993
Date of birth: December 27, 1972
Victims profile: Bobby Ray Harris (former boyfriend of Tigner's mother) / Michael Watkins, 32, and James Williams, 22
Method of murder: Shooting
Location: McLennan County, Texas, USA
Status: Executed by lethal injection in Texas on March 7, 2002
 
 
 
 
 
 

 

Summary:

On Aug. 31, 1993, while out on bail for a separate murder indictment, Tigner was driving with friends, when they came upon a car being driven by Michael Watkins and James Williams.

Tigner signaled to make a loop around the block, and when they did, Tigner got out of the vehicle and approached Watkins and Williams. The conversation turned for the worse and Tigner started yelling at them and then began firing a gun into the car.

As the car rolled away, Tigner walked alongside and continued to fire his gun at Watkins and Williams. Having run out of ammunition, Tigner then went back to the truck, retrieved another gun and returned to the car.

On the way back to the car, Tigner stopped by Watkins, who had fallen out of the car and was attempting to crawl away. Tigner straddled him and shot him in the head. Both Watkins and Williams died from the gunshot wounds.

Watkins suffered 10 gunshot wounds, including two to the head, and Williams received seven gunshot wounds, including four to the head.

Tigner confessed to the murders and two eyewitnesses identified him as being the person who shot William and Watkins.

The prosecution described the murders as a drug-related robbery attempt. Tigner claimed he killed the two men in self defense.

Tigner also confessed to the killing of his mother's boyfriend, Bobby Ray Harris, a crime for which he was out on bond, but claimed that it also was self-defense.

Tigner's first death sentence was vacated on appeal due to the failure of prosecutors to give Tigner a copy of his taped confession in the time prescribed by law. He was retried, convicted, and again sentenced to death in 1997.

Final Meal:

Fried chicken, French fries with ketchup, two cheeseburgers (all the way), bag of potato chips, apple cobbler, white cake with white icing, pitcher of lemonade, pitcher of Sprite.

Final Words:

"I got convicted on a false confession because I never admitted to it, but my lawyer did not put this out to the jury. I did not kill those drug dealers."

ClarkProsecutor.org

 
 

Texas Attorney General

Media Advisory

Wednesday, March 6, 2002

Gerald Wayne Tigner Scheduled to be Executed.

AUSTIN - Texas Attorney General John Cornyn offers the following information on Gerald Wayne Tigner, who is scheduled to be executed after 6 p.m. on Thursday, March 7, 2002.

On March 5, 1997, Gerald Wayne Tigner was sentenced to death for the capital murders of Michael Watkins and James Williams in Waco, Texas, on Aug. 31, 1993. A summary of the evidence presented at trial follows:

FACTS OF THE CRIME

On Aug. 31, 1993, while out on bail for a separate murder indictment, Gerald Wayne Tigner shot and killed two men on a suburban street in Waco, Texas.

The facts indicate that at about 5:00 p.m., Tigner was driving with his friend Guan Scott and Guan's brother, Timothy Scott. They came upon a car being driven by Michael Watkins and James Williams.

Tigner signaled them to make a loop around the block, and when they did, Tigner and Guan got out of the vehicle and approached Watkins and Williams.

When the conversation turned for the worse, Tigner started yelling at them and then began firing a gun into the car.

As the car rolled away, Tigner walked alongside and continued to fire his gun at Watkins and Williams. Having run out of ammunition, Tigner then went back to the truck, retrieved another gun and returned to the car.

On the way back to the car, Tigner stopped by Watkins, who had fallen out of the car and was attempting to crawl away. Tigner straddled him and shot him in the head.

Both Watkins and Williams died from the gunshot wounds. Watkins suffered 10 gunshot wounds, including two to the head, and Williams received seven gunshot wounds, including four to the head. After the shooting, Tigner returned to the truck and drove away.

Tigner was arrested the next day. Two days after his arrest, Sept. 3, 1993, Tigner signed a five-page written statement regarding the double murder. On Sept. 8, 1993, while still in custody, Tigner gave a tape recorded statement.

At trial, in addition to Tigner's confessions, the State presented two eyewitnesses, Roy Darden and Timothy Scott, who identified Tigner as being the person who shot William and Watkins.

PROCEDURAL HISTORY

Tigner was twice convicted and sentenced to death for the 1993 murders of Michael Watkins and James Williams.

On Sept. 29, 1993, Tigner was indicted for the offense of capital murder. Tigner's 1994 trial resulted in a conviction for capital murder and a sentence of death, but was overturned on direct appeal on a procedural violation--the State failed to provide the defense a copy of Tigner's audio-taped confession at least 20 days before trial.

On retrial in 1997, Tigner was again found guilty of capital murder and sentenced to death. Tigner's conviction and sentence were automatically appealed to the Texas Court of Criminal Appeals, which upheld the judgment and sentence in an unpublished opinion dated April 28, 1999. Tigner did not file a petition for writ of certiorari in the United States Supreme Court.

Tigner filed an application for state writ of habeas corpus on Aug. 24, 1999. The state habeas court issued findings of fact and conclusions of law recommending that relief be denied. After determining that the findings were supported by the record, the Court of Criminal Appeals denied habeas relief on Sept. 29, 1999.

Tigner initiated habeas corpus proceedings in federal district court on Feb. 9, 2000. The district court entered final judgment denying habeas relief on Feb. 28, 2001. Appeal to the United States Court of Appeals for the Fifth Circuit followed.

On Aug. 28, 2001, the Fifth Circuit upheld the district court's judgment denying Tigner habeas relief. Tigner's subsequent motion for rehearing was denied on Sept. 28, 2001.

On Dec. 20, 2001, Tigner filed a petition for certiorari review in the Supreme Court challenging the Fifth Circuit's denial of relief, which was denied on Feb. 25, 2002.

PRIOR CRIMINAL HISTORY

Tigner's criminal history is documented with crimes of increasing severity ranging from a 1989 burglary when he was 16 years of age; to convictions for criminal mischief, terroristic threats and evading the police at age 18; to committing murder at age 19, and ultimately committing capital murder at age 20.

In January 1990, Tigner was granted probation in a juvenile hearing for a burglary offense that occurred in August 1989, when Tigner was 16 years old.

In January 1992, Tigner was convicted on a charge of criminal mischief and given a suspended sentence plus probation.

Tigner's record also reflects a January 1992 conviction for making a terroristic threat, which resulted in a suspended sentence and probation.

Another January 1992 conviction for evading detention resulted in a suspended sentence and probation.

On Dec. 5, 1992, Tigner confessed to the murder of Bobby Harris. Tigner shot Harris three times on the front lawn of Tigner's house.

 
 

Texas Execution Information Center by David Carson

Txexecutions.org

Gerald Wayne Tigner Jr., 29, was executed by lethal injection on 7 March in Huntsville, Texas for murdering two men during a robbery.

In August 1993, Tigner, then 20, and two other men were driving in a Waco suburb in Tigner's truck. With Tigner were his friend, Guan Scott, 21, and Scott's brother, Timothy, who was behind the wheel.

When Tigner saw Michael Watkins, 32, and James Williams, 22, driving in another car, he and Guan Scott got out of the vehicle and approached them.

The men got into an argument, and Tigner fired shots from two guns into the car. When he ran out of ammunition, Tigner went back to his truck, got another gun, and returned to Watkins and Williams' car. As he returned, he passed by Watkins, who had fallen out of the car and was attempting to crawl away.

According to witnesses, Tigner straddled him and shot him in the head. Tigner then returned to his truck and drove away. Michael Watkins suffered ten gunshot wounds, including two to the head. James Williams suffered seven gunshot wounds, including four to the head. Both died at the scene. Police found cocaine in the car.

Tigner was arrested the next day. He signed a 5-page written confession, then later gave a tape-recorded confession.

In his confessions, Tigner described the weapons he used, which were three pistols of different calibers -- 9 mm, .38, and .22. These calibers were later confirmed by ballistics investigation. Guan Scott, who had a previous conviction for delivery of cocaine and was on parole at the time of the killings, was killed in an unrelated shooting before Tigner's trial.

At Tigner's trial, Timothy Scott testified that Tigner was the shooter. The state also presented an eyewitness, Roy Darden, who identified Tigner as the shooter. The prosecution described the murders as a drug-related robbery attempt.

Tigner claimed he killed the two men in self defense. Tigner had a criminal history dating to at least 1989, when he was 16 and was charged with burglary. He was convicted as a juvenile and given probation.

In 1992, he was convicted of three more offenses, for which he received suspended sentences and probation. Tigner also used the aliases Gerald Tigmon, Jerry Lewis, and Tony Simmons.

In December 1992, Tigner confessed to the murder of Bobby Ray Harris, a former boyfriend of Tigner's mother. Tigner shot Harris three times on the front lawn of Tigner's house. Tigner confessed to killing Harris, but said he shot him in self-defense after Harris burst into his house. Tigner was indicted for Harris's murder and was free on bond when Michael Watkins and James Williams were killed.

Tigner was convicted by a jury of capital murder and sentenced to death. The Texas Court of Criminal Appeals vacated the conviction because the state had failed to provide the defense with a copy of Tigner's taped confession within the time prescribed by law.

Tigner was retried in 1997 and was again convicted by a jury and sentenced to death. The Court of Criminal Appeals affirmed his conviction and sentence in April 1999. All of his other appeals in state and federal court were denied.

Tigner later claimed that his confessions were false and that he was not even at the crime scene when the murders happened. "I was not there. I was at home with my family," he said in a death-row interview. He said that Guan Scott was the killer.

Tigner's attorneys had asked the courts for DNA testing of blood found on Tigner's shoes, contending that if the blood was not from the victims, it would prove Tigner was not at the scene.

The courts were not persuaded of this reasoning and did not authorize DNA testing. "I was wrongfully convicted of this crime," Tigner said in his final statement. "I got convicted on a false confession because I never admitted to it, but my lawyer did not point this out to the jury. I did not kill those drug dealers." Tigner then expressed love to his family and friends.

The lethal injection was then administered, and Tigner was pronounced dead at 6:21 p.m.

 
 

ProDeathPenalty.com

Gerald Wayne Tigner, once described by a prosecutor as having a "heart full of scorpions," twice was convicted and sentenced to die in the August 1993 shooting deaths of James Williams, 22, and Michael Watkins, 32 in Waco.

Tigner confessed to the slayings, but claimed he acted in self-defense. With guns blazing in both hands, Tigner shot Williams 7 times and Watkins 6 times in what prosecutors described as a drug-related robbery attempt.

At the time of the shootings, Tigner was free on bond in the December 1992 shooting death of Bobby Ray Harris, a former boyfriend of Tigner's mother. Tigner also confessed to killing Harris, saying he shot him in self-defense after Harris burst into his house and said he was looking for Tigner.

Tigner was convicted in the deaths of Williams and Watkins in 1994 and spent 2 years on death row before the Texas Court of Criminal Appeals threw out his conviction and awarded him a new trial.

In overturning his conviction, the Austin court ruled that prosecutors did not give a copy of Tigner's taped confession to defense attorneys in the time prescribed by law.

He was retried and convicted again in March 1997. "Gerald Tigner is a vicious criminal who was a threat and danger to society and murdered on several occasions, and with the fact that one more step in the process has now been completed, he is now closer to the sentence that 2 McLennan County juries believed was proper," said McLennan County First Assistant District Attorney Crawford Long, who prosecuted Tigner.

The Court of Criminal Appeals affirmed Tigner's 2nd conviction in April 1999 in a unanimous decision.

 
 

CCADP - Gerald Tigner Homepage

Hello there, My name is Gerald Wayne Tigner and I'm a death row prisoner on the Polunsky Unit in Livingston, Texas. I've been on death row struggling for 6 years trying to keep the hope alive in my heart while I fight the American Justice System, after my first trial being wrongfully convicted of this crime.

Upon my arrival on death row, just a year and a half later, my precious mom passed away. Then six months after my mom, the woman who raise me when I was a little baby, my beautiful grandmother passed away and ever since then my heart has been broken and the pain and misery just won't go away. These two family members was my only support I had in my corner but now they are gone. I feel lost at times sitting in this death row cell but I know in my mind I must stay stronmg and keep fighting for my freedom. I am lonely and

I need some friends that would be interested in writing me so I can share my life and case with them on an openminded, truthful, down to earth level. My date of birth is 12/27/72 and right now I'm 26 years old, 6'2" tall and 202 lbs., slim built with light brown eyes and black hair. Also, I'm a light skin male African American and my home town is Waco, Texas. My hobbies are reading, basketball, football, etc. I've been tried twice and wrongfully convicted both times on the same inadmissable evidence in Waco trial court.

WHERE IS THE JUSTICE ! ?

Now, I'm on death row wrongfully accused of killing two black male drug dealers in Waco, Texas. I did not kill these two drug dealers for the simple fact I was at my grandmother's house most of the day and during the time these two drug dealers got killed. My defense at trial was mistaken identity and alibi. My grandmother testified in my favor that I was with her, at her residence, during the time of the killings.

In addition, my grandmother's neighbor Gloria testified in my favor that at the time of the killings, she too was at my grandmother's residence where she was introduced to me. And a man at the crime scene testified also in my favor that he saw another man, "not Gerald Wayne Tigner", do the shooting.

The Waco District Attorneys use this unbelievable, inadmissable statement to confuse the jury in my first trial and in my second trial. That's how I got convicted twice. The erroneous admission of the statement at trial was damaging because the Waco District Attorney prosecutors case against Gerald Wayne Tigner was not otherwise overwhelming and on top of that this erroneously admitted statement was in violation of Texas Code of Criminal Procedure, Article 38.22 in the lawbook.

"I'M TOTALLY INNOCENT OF THIS CHARGE!"

Even though I'm forced to face all this physiological torture mentally and physically on death row, I'm determined to stay strong and keep my head up. And I thank the good Lord above for making me this way. It's sad when a poor young man out of the ghetto has to go to trial with a court appointed lawyer knowing he's not going to do his best job on a Capital Murder Case. That's why I am reaching out to the world expressing my true feelings, my thoughts and this Capital Case they wrongfully accuse me of in Waco. All I can do is hope and pray your interested in being my pen-pal friend. So please do not hesitate to write me. Here is my address below.

Yours Truly, MR GERALD W TIGNER #999099, Polunsky Unit.

 
 

Gerald Wayne Tigner

Waco Tribune-Herald

TEXAS: Gerald Wayne Tigner, once described by a prosecutor as having a "heart full of scorpions," is one step closer to the death chamber. U.S. District Judge Walter S. Smith Jr. of Waco rejected Tigner's application for federal writ of habeas corpus and denied his motion for an evidentiary hearing.

The judge's ruling puts the appeal of Tigner's capital murder conviction and death sentence in the hands of the 5th U.S. Circuit Court of Appeals in New Orleans. If the court denies his appeal, Tigner will be eligible to have an execution date set by 54th State District Judge George Allen, who presided over his capital murder trials in Waco. Tigner twice was convicted and sentenced to die in the August 1993 shooting deaths of James Williams, 22, and Michael Watkins, 32 in Waco.

Tigner confessed to the slayings, but claimed he acted in self-defense. With guns blazing in both hands, Tigner shot Williams 7 times and Watkins 6 times in what prosecutors described as a drug-related robbery attempt.

At the time of the shootings, Tigner was free on bond in the December 1992 shooting death of Bobby Ray Harris, a former boyfriend of Tigner's mother. Tigner also confessed to killing Harris, saying he shot him in self-defense after Harris burst into his house and said he was looking for Tigner.

Tigner was convicted in the deaths of Williams and Watkins in 1994 and spent 2 years on death row before the Texas Court of Criminal Appeals threw out his conviction and awarded him a new trial. In overturning his conviction, the Austin court ruled that prosecutors did not give a copy of Tigner's taped confession to defense attorneys in the time prescribed by law. He was retried and convicted again in March 1997.

"Gerald Tigner is a vicious criminal who was a threat and danger to society and murdered on several occasions, and with the fact that one more step in the process has now been completed, he is now closer to the sentence that 2 McLennan County juries believed was proper," said McLennan County First Assistant District Attorney Crawford Long, who prosecuted Tigner. The Court of Criminal Appeals affirmed Tigner's 2nd conviction in April 1999 in a unanimous decision.

 
 

United States Court of Appeals
For the Fifth Circuit

Gerald Wayne Tigner ("Tigner"), a death row inmate, seeks a certificate of appealability ("COA") to challenge the district court's denial of his 28 U.S.C. 2254 habeas corpus petition. Tigner has failed to make a substantial showing of the denial of his constitutional rights because Supreme Court and Fifth Circuit precedents foreclose all of his arguments. We deny the COA.

The case arises from a violent and fatal altercation on a suburban street in Waco, Texas. While on bail for a separate murder indictment, Tigner was driving a truck with his friend Guan Scott ("Guan") and his brother, Timothy Scott. As Tigner drove down the street, he came upon a car being driven by Michael Watkins ("Watkins") and James Williams ("Williams").

Tigner signaled for Watkins and Williams to turn around the block, which they did. Tigner and Guan got out of the truck and approached the car to talk to its occupants. For reasons unclear from the appellate record, the conversation turned for the worse. Tigner started yelling at Williams and then began shooting his gun into the car. As the car rolled away, Tigner walked alongside it and continued to fire his gun at Watkins and Williams.

When Tigner ran out of bullets, he went back to his truck to retrieve another gun and returned to the car. At this point, Watkins had fallen out of the car and was crawling away. As Watkins lay on the ground, Tigner shot him in the head. Tigner then fled the scene. Both Watkins and Williams died from the gunshot wounds. Watkins suffered ten gun shot wounds, including two to the head, while Williams had seven gun shot wounds, including four head wounds.

The next day, law enforcement officials arrested Tigner, who later confessed to the shootings. At trial, two eyewitnesses testified that Tigner was the gunman who shot Williams and Watkins. A jury convicted Tigner of murder.

At the punishment phase of the trial, the state presented numerous witnesses, including a Special Crimes Unit officer who testified that Tigner had a "dangerous and violent" reputation, and a municipal court judge who said that Tigner had threatened to "get even with him later."

Another state witness was Dr. James Grigson, a psychiatrist who testified that Tigner had an anti-social personality disorder and represented a continuing danger in the future. Tigner introduced his own witnesses as well, offering statements from his mother and grandmother.

Ultimately, the jury sentenced Tigner to death, finding that he posed a future threat to society. Tigner unsuccessfully sought post-conviction relief from the state courts. He then filed a petition for a writ of habeas corpus under 28 U.S.C. 2254, which the federal district court denied.

A prisoner seeking review of a district court's denial of his habeas petition must first obtain a COA. In his petition for a COA, Tigner makes two arguments. First, he claims that the state trial court violated his Eighth and Fourteenth Amendment rights by refusing to tell the jury that he would have been ineligible for parole for 35 years had he been given a life sentence. Second, he argues that Dr. Grigson's testimony that he would pose as a future threat to society deprived him of due process.

The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") governs this case because Tigner filed his COA after AEDPA's effective date of April 24, 1996. See Green v. Johnson, 116 F.3d 1115, 1119-1120 (5th Cir. 1997). In determining whether to grant a COA, we must see if the prisoner has made a "substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 554,120 S. Ct. 1595, 1603, 146 L. Ed. 2d 542 (2000). To demonstrate a substantial showing of the denial of a constitutional right, a prisoner must show that the "issues are debatable among jurists of reason." Hill v. Johnson, 210 F.3d 481, 484 (5th Cir. 2000).

* A

Tigner argues that the state trial court violated his Fourteenth Amendment due process rights by failing to instruct the jury that, if given a life sentence, he would not be eligible for parole for 35 years. At the time of the his trial, Texas law barred judges from instructing juries on parole possibility in capital cases, but allowed such instructions in non-capital felony cases.

Tigner claims that the information regarding his 35-year parole ineligibility was relevant to the jury's calculus of his potential future dangerousness: had the jurors known that he would remain incarcerated for at least 35 years, they might have opted to give him a life sentence instead of the death penalty.

Both the United States Supreme Court and the Fifth Circuit have already considered and rejected such a Fourteenth Amendment due process challenge. As a general rule, states have the freedom to formulate the type of jury instructions given in state trials. See California v. Ramos, 463 U.S. 992, 1000, 103 S. Ct. 3446,3452-3453, 77 L. Ed. 2d 1171 (1983) ("The deference we owe to the decisions of the state legislatures under our federal system . . . is enhanced where the specification of punishments is concerned, for 'these are peculiarly questions of legislative policy.'") (internal citations omitted).

The Supreme Court, however, has carved a narrow exception to the presumption that states have wide discretion in the realm of jury instructions. See Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d. 133 (1994). A state must give a jury instruction regarding parole ineligibility if (1) the state introduces the defendant's future dangerousness in asking for the death penalty, and (2) the alternative sentence to death is life without the possibility of parole. See id. at 168, 114 S. Ct. at 2196.

Contrary to Tigner's assertions, Simmons provides no support for his due process argument. In Simmons, the Supreme Court expressly held that its ruling does not apply to Texas, because it does not have a life-without-parole alternative to capital punishment. See id. at 168 n.8, 114 S. Ct. at 2196 (noting that Texas and North Carolina do not give juries information about parole status but explaining that they do not have life-without-parole alternatives). The harshest alternative to capital punishment in Texas is a life sentence without the possibility of parole for 40 years.1

In other words, Tigner was not entitled to a jury instruction regarding his 35-year parole ineligibility, because only prisoners who face life sentence without any possibility of parole can demand a Simmons instruction. The Supreme Court recently reiterated this point: "The parole-ineligibility instruction is required only when, assuming the jury fixes the sentence at life, the defendant is ineligible for parole under state law." Ramdass v. Angelone, 530 U.S. 156, 167, 120 S. Ct. 2113, 2120, 147 L. Ed. 2d 125 (2000) (emphasis added).

Our Circuit has consistently emphasized that a defendant can receive a jury instruction regarding parole ineligibility only if there exists a life-without-possibility-of-parole alternative to the death penalty an option not available under Texas law. See, e.g., Wheat v. Johnson, 238 F.3d 357 (5th Cir. 2001) (holding that a defendant was not entitled to a Simmons instruction because he faced an alternative sentence with the possibility of parole 40 years later).

To the extent that Tigner claims that this court should nevertheless rule that he was entitled to a Simmons instruction, such an argument is barred by the Teague non-retroactivity principle. See Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L.Ed. 2d 334 (1989) (holding that new rules of constitutional criminal law will not be announced or applied on collateral review). We have repeatedly held that an extension of the scope of Simmons will constitute a "new" rule under Teague. See, e.g., Wheat, 238 F.3d at 361-62.

B

Tigner also claims that the failure to give the jury instruction violated the Eighth Amendment's prohibition against cruel and unusual punishment. He correctly points out that the Supreme Court in Simmons declined to state whether the Eighth Amendment might compel a different result. See Simmons, 512 U.S. at 162, n.4, 114 S. Ct. at 2193. But the Fifth Circuit has held that neither the due process clause nor the Eighth Amendment requires a state court to give jury instructions regarding parole ineligibility in Texas. See, e.g., Johnson v. Scott, 68 F.3d 106, 112 (5th Cir. 1995).

C

Finally, Tigner maintains that Texas' sentencing scheme at the time of his conviction violated the Fourteenth Amendment's guarantee of equal protection, because it treated capital crime defendants differently from non-capital ones. Specifically, he contends that Texas law irrationally allowed non-capital defendants to receive jury instructions regarding parole ineligibility, while capital defendants could not demand such an instruction.2

We have previously considered and rejected this equal protection argument. We apply a rational basis test in this case because it does not implicate a suspect classification or a fundamental right. See Green v. Johnson, 160 F.3d 1029, 1044 (5th Cir. 1998) (holding that Texas law does not confer a fundamental right to parole). Thus, under a rational basis test, we must uphold a governmental classification if it rationally promotes a legitimate government objective. Id.

We have held that a state could rationally conclude that juries should not consider parole ineligibility in capital cases only:

Instructions on parole eligibility at the punishment phase of capital murder trials might tempt capital sentence juries to consider such transitory, but public, issues as prison overcrowding, the identities of the membership of the Texas Board of Pardons and Paroles, or the recent track record of that Board in releasing violent offenders, as factors which should be weighed in reaching their verdict at punishment. . . . The Texas legislature could rationally conclude that injection of parole issues at the punishment phase of capital murder trial would invite consideration of factors unrelated to the defendant's blameworthiness. . . .

Id. at 1044 (internal citations omitted). Tigner acknowledges that our Circuit has rejected an equal protection challenge to Texas' sentencing scheme, but he requests that we reconsider our decision. One circuit panel cannot overrule another panel's decision. See, e.g., Tucker v. Johnson, 242 F.3d 617, 621 n.6 (5th Cir. 2001).

II

Tigner constitutionally challenges the admission of Dr. James Grigson's expert testimony that he would be a future threat to society with little hope of rehabilitation. Dr. Grigson came to this conclusion without personally interviewing Tigner. This argument is procedurally barred for the failure to exhaust state remedies. See 28 U.S.C. 2254(b).

At his state trial, Tigner objected to Dr. Grigson's testimony on evidentiary grounds only, and not on constitutional grounds. We will not consider this constitutional challenge because it was not presented to the Texas Criminal Court of Criminal Appeals. See Richardson v. Procunier, 762 F.2d 429 (5th Cir. 1985) (requiring exhaustion at the highest state court).3

Even if Tigner had exhausted his state remedies, his constitutional objection to the admission of Dr. Grigson's testimony would fail because of Teague's non-retroactivity principle. Tigner concedes that the Supreme Court has allowed the admission of expert psychiatric testimony even in a death penalty case, see Barefoot v. Estelle, 463 U.S. 880, 904, 103 S. Ct. 3383, 3401, 77 L.Ed. 2d. 1090 (1983), but he responds that the Court implicitly overruled Barefoot when it later issued its Daubert standard for the admission of scientific evidence. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed. 2d 469 (1993). We decline Tigner's invitation to undercut Barefoot, because to do so on collateral review would constitute a new rule in violation of Teague's non-retroactivity principle.4

Tigner's application for a certificate of appealability is DENIED.

*****

NOTES:

1

At the time of Tigner's conviction, Texas law provided that the alternative was a life sentence without the possibility of parole for 35 years.

2

Texas has now amended the statute to allow a capital crime defendant to receive a jury instruction regarding his parole possibility. See Tex. Code Crim. Proc. art. 37.071(e)(2)(b) (2001).

3

The federal district court noted that Tigner had failed to exhaust his state remedies, but nevertheless addressed and rejected the argument on its merits. Although the district court considered this argument, we can sua sponte refuse to hear it for the lack of exhaustion. See Graham v. Johnson, 94 F.3d 958, 970 (5th Cir. 1996).

4

Judge Garza only reiterates his belief, as expressed in his special concurrence in Flores v. Johnson, that a psychiatrist who predicts a murderer's future dangerousness without examining him likely runs afoul of all five Daubert factors. See Flores v. Johnson, 210 F.3d 456, 464-70 (5th Cir. 2000) (specially concurring, Garza, J.) (recognizing the "statutory right to impose death as an appropriate punishment" but also cautioning that "what separates the executioner from the murderer is the legal process by which the state ascertains and condemns those guilty of heinous crimes.").

 
 


Gerald Wayne Tigner Jr.

 

 

 
 
 
 
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