Hai Hai Vuong challenges the
dismissal of his petition for a writ of habeas
corpus contesting his death sentence under 28
U.S.C. Sec. 2254. Concluding that the district
court did not err, we affirm.
The facts are
set forth in Vuong v. State, 830 S.W.2d 929, 933
(Tex.Crim.App.), cert. denied, --- U.S. ----,
113 S.Ct. 595, 121 L.Ed.2d 533 (1992), and Vuong
v. Collins, 867 F.Supp. 1268, 1271 (E.D.Tex.1994),
and are now recounted here.
On December 7,
1986, Vuong and two friends were playing pool
and drinking beer at the Tam Game Room in Port
Arthur, Texas. Vuong claims that Vietnamese gang
members from New Orleans started to threaten him
there. Vuong became angry, left the
establishment, and went home to retrieve a Colt
AR-15 or M-16 automatic or semi-automatic
.223 caliber rifle.
to the game room with his friend Thien Huu
Nguyen, who was armed with a pistol. Vuong fired
two shots into the rear wall or ceiling of the
Game Room and told the patrons to remain as they
were. The alleged gang members then exited the
establishment. Vuong proceeded to shoot Nang
Pham, who escaped out the front door, and Luan
Vuong shot and
killed Tien Van Nguyen ("Nguyen") and claims
that Nguyen stood up from behind a pool table
and was reaching for a gun when shot. No weapon
was found on Nguyen, and the testimony of
witnesses indicated that he stood up and stated
"Hai, it's me," in Vietnamese before he was shot.
Nguyen, Vuong shot and wounded Binh Nguyen as he
tried to run away, then shot Do a second time.
Vuong went to the doorway that separated the
game room from the adjoining cafe, which was
part of the same business establishment. He
walked toward a table where Hien Quang Tran was
seated. Tran stood up, and Vuong shot him in the
chin, killing him. Vuong took a telephone from
the owner of the game room and left.
Vuong fired a total of eleven
rounds. Two persons were killed and three others
wounded. Vuong, Thien, and Tuan Van Nguyen left
in a blue Monte Carlo that Tuan Van Nguyen had
parked and waiting in the street. An arrest
warrant was issued, but Vuong eluded police.
In March 1987,
a grand jury indicted Vuong for the capital
murder of Hien Quang Tran in the course of
committing the murder of Nguyen, in violation of
TEX.PENAL CODE ANN. Sec. 19.03(a)(6)(A).
Vuong eventually was arrested on a public
intoxication charge in California in July 1987
and was extradited to Texas.
Vuong gave a
statement on August 28, 1987, in which he
admitted to firing several shots in the game
room but maintained that he did not recall
hitting anyone. His trial began in May 1988. The
jury convicted him of capital murder and
answered affirmatively the special issues set
out in TEX.CODE CRIM.PROC.ANN. art. 37.071,
whereupon he was sentenced to death.
was affirmed on direct review. Vuong v. State,
830 S.W.2d 929 (Tex.Crim.App.), cert. denied,
--- U.S. ----, 113 S.Ct. 595, 121 L.Ed.2d 533
(1992). After an execution date was set by the
state trial court, Vuong filed a federal habeas
petition, alleging one claim. The district court
granted a stay of execution and a motion for
substitution of counsel. Vuong filed an amended
petition, alleging eight errors. The state
asserted that Vuong had failed to exhaust state
remedies, and the petition was dismissed without
Vuong filed for state collateral
relief and filed motions for a stay of execution,
an evidentiary hearing, and the recusal of the
judge who had presided over the trial. The
recusal motion was denied by another judge on
April 12, 1994.
judge denied the motion for an evidentiary
hearing and ordered that affidavits be filed by
the parties. After that occurred, the state
court entered findings of fact and conclusions
of law recommending that relief be denied. After
the Texas Court of Criminal Appeals accepted the
trial court's recommendations, Vuong filed
another federal habeas petition.
raised eight grounds for relief and asked for a
stay of execution, which was granted. The
district court dismissed the petition and denied
the motion for an evidentiary hearing. Vuong v.
Collins, 867 F.Supp. 1268 (E.D.Tex.1994). Vuong
claim is that the jury was unconstitutionally
prevented from adequately considering certain
mitigating evidence at the punishment phase of
the trial. See Penry v. Lynaugh, 492 U.S. 302,
322-24, 109 S.Ct. 2934, 2948-50, 106 L.Ed.2d 256
(1989). In Texas, the jury must answer three "special
issues" affirmatively before a sentence of death
may be imposed. See TEX.CODE CRIM.PROC.ANN. art.
law applicable to Vuong, in a multiple murder
case under TEX.PENAL CODE Sec. 19.03(a)(6), the
court was to submit the three special issues
only with regard to the "conduct of the
defendant in murdering the deceased individual
first named in the indictment." TEX.CODE
CRIM.PROC.ANN. art. 37.071(f).
The indictment named Hien Quang
Tran first and Nguyen second.
As a result, the special issues were submitted
1. Do you
believe beyond a reasonable doubt that the
conduct of the defendant that caused the death
of Hien Quang Tran was committed deliberately
and with the reasonable expectation that the
death of Hien Quang Tran or another would result?
2. Do you
believe beyond a reasonable doubt that there is
a probability that the defendant would commit
criminal acts of violence that would constitute
a continuing threat to society?
3. Do you
believe beyond a reasonable doubt that the
conduct of the defendant in killing Hien Quang
Tran was unreasonable in response to the
provocation, if any, by Hien Quang Tran?
maintains that the operation of article
37.071(f) prevented the jury from considering
the possible mitigating effects of the alleged
provocation by Nguyen.
law that applied at the time of this case, in a
capital murder case alleging two or more murders
in the same transaction, the defendant was
prosecuted for the murder of the victim named
first in the indictment while in the course of
killing the other victim, regardless of whether
the first-named victim was murdered first in
time. Narvaiz v. State, 840 S.W.2d 415, 433 (Tex.Crim.App.1992),
cert. denied, --- U.S. ----, 113 S.Ct. 1422, 122
L.Ed.2d 791 (1993). The state needed to satisfy
the three special issues only with respect to
the first-named victim. Id. Consequently, the
trial court was correct to submit the special
issues as they were worded.
This court has considered
numerous claims by capital petitioners that the
Texas special issue system has impermissibly
restricted the sentencer's ability to consider
relevant mitigating evidence.
Because Vuong's claim is before us on a petition
for federal habeas relief, "we must determine,
as a threshold matter, whether granting him the
relief he seeks would create a 'new rule' " of
constitutional law under Teague v. Lane, 489 U.S.
288, 311, 109 S.Ct. 1060, 1075-76, 103 L.Ed.2d
"a case announces a new rule when it breaks new
ground or imposes a new obligation on the States
or the Federal Government" or was not "dictated
by precedent existing at the time the
defendant's conviction became final." Id. at
301, 109 S.Ct. at 1070. The Teague principle
seeks to validate "good faith interpretations of
existing precedents made by state courts."
Butler v. McKellar, 494 U.S. 407, 414, 110 S.Ct.
1212, 1217, 108 L.Ed.2d 347 (1990).
applies even if those interpretations "are shown
to be contrary to later decisions." Id. "Thus,
unless reasonable jurists hearing petitioner's
claim at the time his conviction became final 'would
have felt compelled by existing precedent' to
rule in his favor, we are barred from doing so
now." Graham v. Collins, --- U.S. ----, ----,
113 S.Ct. 892, 898, 122 L.Ed.2d 260 (1993) (quoting
Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct.
1257, 1260, 108 L.Ed.2d 415 (1990)).
In order to
determine whether Vuong is asking this court to
fashion a new rule, we must examine the law
pertaining to the proper treatment of mitigating
evidence in Texas at the time that Vuong's
conviction became final. We begin with the
instances in which the Supreme Court has
reviewed the question of whether the Texas
capital punishment scheme adequately allows a
jury to consider relevant mitigating evidence.
See Johnson v. Texas, --- U.S. ----, 113 S.Ct.
2658, 125 L.Ed.2d 290 (1993); Graham; Penry v.
Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d
256 (1989); Franklin v. Lynaugh, 487 U.S. 164,
108 S.Ct. 2320, 101 L.Ed.2d 155 (1988); Jurek v.
Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d
In Jurek, the Court rejected a
facial challenge to Texas's unique three special
issues scheme and determined that the "constitutionality
of the Texas procedures turn[ed] on whether the
enumerated questions allow consideration of
particularized mitigating factors." Id. at 272,
96 S.Ct. at 2956.
that the Texas Court of Criminal Appeals had
indicated that as to the second special issue it
would "allow a defendant to bring to the jury's
attention whatever mitigating circumstances he
may be able to show," id. (plurality opinion),
the Court held that the system promoted "the
evenhanded, rational and consistent imposition
of death sentences...." Id. at 276, 96 S.Ct. at
2958 (plurality opinion). Thus, art. 37.071
survived the petitioner's constitutional
the petitioner contended that the Texas system
was unconstitutional as applied because the jury
was unable to consider his record of good
conduct in prison. 487 U.S. at 172, 108 S.Ct. at
2326-27 (plurality opinion). Between the time of
Jurek and Franklin, the Court had determined
that, as a matter of law, in a capital case " 'the
sentencer ... [may] not be precluded from
considering, as a mitigating factor, any aspect
of a defendant's character or record and any of
the circumstances of the offense that the
defendant proffers as a basis for a sentence
less than death.' " Eddings v. Oklahoma, 455 U.S.
104, 110, 102 S.Ct. 869, 871, 71 L.Ed.2d 1
(1982) (quoting Lockett v. Ohio, 438 U.S. 586,
604, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973
in Franklin argued that the instructions in his
case violated this so-called "Lockett- Eddings
rule." He was not denied the opportunity to
present his mitigating evidence but contended
that the special issues did not give the jury "sufficient
opportunity" to give "adequate weight" to the
evidence. 487 U.S. at 172, 108 S.Ct. at 2326-27
rejected Franklin's claim. The plurality noted
that while the state may not exclude evidence of
a defendant's character, record, or the
circumstances of the offense, it may provide the
jury with some "framework for discharging [its]
responsibilities." Id. at 179, 108 S.Ct. at 2330
(plurality opinion). The Court found that "the
jury was completely free to give [the] evidence
appropriate weight in arriving at its answers to
the Special Issues." Id. at 179-80, 108 S.Ct. at
2330 (plurality opinion).
concurring opinion, Justice O'Connor expressed
the following concerns about the Texas system:
Under the sentencing procedure
followed in this case the jury could express its
views about the appropriate punishment only by
answering the special verdict questions
regarding the deliberateness of the murder and
the defendant's future dangerousness. To the
extent that the mitigating evidence introduced
by petitioner was relevant to one of the special
verdict questions, the jury was free to give
effect to that evidence by returning a negative
answer to that question.
petitioner had introduced mitigating evidence
about his background or character or the
circumstances of the crime that was not relevant
to the special verdict questions, or that had
relevance to the defendant's moral culpability
beyond the scope of the special verdict
questions, the jury instructions would have
provided the jury with no vehicle for expressing
its "reasoned moral response" to that evidence.
If this were such a case, then we would have to
decide whether the jury's inability to give
effect to that evidence amounted to an Eighth
Id. at 185,
108 S.Ct. at 2333 (O'Connor, J., concurring in
found just such a situation in Penry, 492 U.S.
at 322-28, 109 S.Ct. at 2948-52, in which the
Court determined that the Texas system, absent a
special instruction, did not allow the jury
properly to consider Penry's evidence of mental
retardation and childhood abuse. Id. at 322-28,
109 S.Ct. at 2948-52.
reaffirmed the principle, as embodied by Lockett
and Eddings, that "punishment should be directly
related to the personal culpability of the
criminal defendant." Id. at 319, 109 S.Ct. at
2947. The special issues, according to the Court,
did not provide the sentencer with "a vehicle
for expressing its 'reasoned moral response' "
to the mitigating evidence. Id. at 328, 109 S.Ct.
More specifically, the Court
found that, absent a definition of "deliberately,"
the jury was not able properly to consider the
evidence as it bore on Penry's "personal
culpability" as encompassed in the first special
issue. Id. at 323, 109 S.Ct. at 2949. On the
second issue, the Court held that the evidence,
absent an instruction, could be a "two-edged
sword," both diminishing Penry's blameworthiness
for the crime and increasing the probability
that he would be dangerous in the future.
Id. at 324, 109 S.Ct. at 2949-50.
Court stated that a juror who concluded that
Penry's mental state made him less culpable than
a normal adult for his actions, still could
conclude that Penry's actions were unreasonable
in response to the amount of provocation by the
victim. Id. The solution was "instructions
informing the jury that it could consider and
give effect to the mitigating evidence of
Penry's mental retardation and abused background
by declining to impose the death penalty...." Id.
at 328, 109 S.Ct. at 2952.
Penry, as the cases cited previously indicate,
this court has faced a myriad of "Penry" claims.
Subsequent to Penry, however, we have stated
that "while Penry appears to be worded broadly,
the case has been interpreted narrowly."
Allridge, 41 F.3d at 223.
interpretation was later approved in Graham, in
which the Court held that the petitioner's claim
was barred by Teague. Petitioner had argued that
the jury was unable to give effect to the
mitigating evidence of his youth, family
background, and positive character traits. ---
U.S. at ----, 113 S.Ct. at 895.
conviction became final on September 10, 1984.
The Court concluded that reasonable jurists in
1984 would have found that, under our cases, the
Texas statute satisfied the commands of the
Eighth Amendment: it permitted petitioner to
place before the jury whatever mitigating
evidence he could show, including his age, while
focusing the jury's attention upon what that
evidence revealed about the defendant's capacity
for deliberation and prospects for
Id. at ----, 113 S.Ct. at 900.
Importantly, the Court found that nothing in
Franklin or Penry undermined this conclusion. Id.
specifically stated that it "did not read Penry
as effecting a sea change in this Court's view
of the constitutionality of the former Texas
death penalty statute; it does not broadly
suggest the invalidity of the special issues
framework." Id. at ----, 113 S.Ct. at 901 (footnote
omitted). The Court noted that, unlike the
situation in Penry, the "mitigating evidence was
not placed beyond the jury's effective reach."
Id. at ----, 113 S.Ct. at 902.
The Court held
that the jury plainly could have answered "no"
to the special issues based upon mitigating
evidence, consistently with its instructions. Id.
Whereas Penry's evidence "compelled" an
affirmative answer to the future dangerousness
issue and had some mitigating significance, "Graham's
evidence quite readily could have supported a
negative answer." Id.
stated that "neither Penry nor any of its
predecessors 'dictates' the relief that Graham
seeks within the meaning required by Teague." Id.
Concentrating on the "reasonable jurists"
inquiry, the Court concluded:
We cannot say
that all reasonable jurists would have deemed
themselves compelled to accept Graham's claim in
1984. Nor can we say, even with the benefit of
the Court's subsequent decision in Penry, that
reasonable jurists would be of one mind in
ruling on Graham's claim today. The ruling
Graham seeks, therefore, would be a "new rule"
Id. at ----,
113 S.Ct. at 903.
Finally, during the same term as
Graham, the Court decided Johnson v. Texas, ---
U.S. ----, 113 S.Ct. 2658, 125 L.Ed.2d 290
(1993). The petitioner presented the Court with
a Penry claim similar to the one raised in
Graham but on direct review rather than on
habeas. Thus, the Court was not constrained by
in Johnson, as the petitioner in Graham had
done, contended that the Texas special issues,
absent special instructions, did not allow the
jury to give adequate weight to mitigating
evidence of his youth at the time of the offense.
Johnson, id. at ----, 113 S.Ct. at 2661. The
Court, however, declined to take the step that
would have amounted to a new rule in Graham. Id.
at ----, 113 S.Ct. at 2668. As this court has
indicated, "the Court's analysis of Johnson's
claim speaks directly not only to the scope of
Penry but also to how the 'rule' Johnson
requested would be viewed under Teague." Motley,
18 F.3d at 1233.
Court had no doubt that the petitioner's youth
was a relevant mitigating circumstance that
should be within the effective reach of the
sentencer. --- U.S. at ----, 113 S.Ct. at 2668.
The Court concluded that "there is ample room in
the assessment of future dangerousness for a
juror to take account of the difficulties of
youth as a mitigating force in the sentencing
determination." Id. at ----, 113 S.Ct. at 2669.
fact that a juror might view the evidence of
youth as aggravating, as opposed to mitigating,
does not mean that the rule of Lockett is
violated." Id. (citing Graham, --- U.S. at ----,
113 S.Ct. at 901-02).
The key is
whether the "mitigating evidence is within 'the
effective reach of the sentencer'...." Id.
Therein was the difference between Penry and
Johnson: The jury "had a meaningful basis to
consider the relevant mitigating qualities of
petitioner's youth...." Id. As a result, Texas
was not required to give the jury an additional
instruction beyond those given with the special
issues. Id. at ----, 113 S.Ct. at 2670.
Vuong's conviction became final
on the day certiorari was denied, November 30,
1992. We must decide whether reasonable jurists,
at that time, would have deemed themselves
compelled to accept Vuong's claim under Penry.
In order to grant relief in this case, we would
be required to hold that at the time Vuong's
conviction became final, the Eighth Amendment,
in a multiple murder case in Texas, required
that a jury be given a special instruction so
that it could give proper weight to mitigating
evidence of provocation by a victim not named
first in the indictment.
if the jury was able to give proper mitigating
effect to the evidence under the instructions as
given, such a holding--that a special
instruction is required--would constitute a "new
rule" of constitutional law under Teague.
As a threshold
matter, we note that a jury is required to give
effect only to relevant evidence. As we stated
earlier, in Texas a double murder case is
treated as the killing of one victim in the
course of killing another. The special issues
need be submitted only with respect to the first
victim named in the indictment.
question is whether provocation on the part of
the second-named victim is relevant mitigating
evidence if that victim was killed first in
time. We are not prepared to say that such
evidence, as a matter of law, is not relevant.
Certainly, provocation by one of the victims may
be a circumstance of the offense that could
affect culpability. See First v. State, 846 S.W.2d
836, 837-38 (Tex.Crim.App.1992).
provocation by the first victim in time might
have "carried over" in some sense to the second
victim if the two killings occur in close
succession. The evidence in such a case might
indicate that the killing of the second victim,
first-named, was not "deliberate" under the
first issue. Moreover, the evidence might
indicate that the killing of the second victim
is not indicative of the killer's likelihood to
commit crimes in the future.
Much of Vuong's argument is
premised on First v. State. In that case, the
court found that the operation of art. 37.071(f)
violated the dictates of Penry. Vuong now
principally relies upon First in his Penry
argument. The facts of First are as follows:
On May 30,
1986, the complainants, Luke Davis and Kimberly
Holley, spend several hours at a Lubbock tavern.
Later in the evening, appellant [Keith Wayne
First] and Pierce Horton arrived at the tavern
and began playing pool with Davis and Holley. At
approximately 1:00 a.m. appellant, Horton, Davis,
and Holley left the bar together. While in the
parking lot, Davis and Holley assaulted
appellant and Horton. Davis overpowered
appellant and repeatedly slammed appellant's
head into the sidewalk and into the bumper of a
parked automobile. Testimony as to the number of
times appellant's head hit the car and sidewalk
differed, but various witnesses agreed that
Davis was in control of the fight. During the
fight, Holley produced a knife and held Horton
at bay by threatening to "cut [Horton's]
goddamned guts out" if Horton attempted to
assist appellant. Upon learning of the fight,
the bar's doorman went outside and told the four
to leave. When the fight between appellant and
Davis ended, appellant retrieved a revolver from
Horton's automobile. Appellant fired at and hit
a passing vehicle. Davis and Holley attempted to
escape in Holley's car. Appellant fatally shot
Davis as Davis sat in the passenger seat of the
car. Holley, standing on the driver's side,
turned and attempted to flee. Appellant fired a
fatal shot into the back of Holley. Moments
later, police officers arrested Horton and
First, 846 S.W.2d
found that provocation on the part of Davis, who
was the second-named victim, was a relevant
circumstance of the offense that the jury should
have been able to consider as mitigating
evidence. Id. at 840. The court further held
that the existing special issues did not provide
an adequate means whereby that evidence could be
considered. Id. at 842.
the state's contention that the punishment
charge provided an adequate means by which the
jury could give mitigating effect to the
evidence, the court quoted the charge:
In this case, the defendant,
KENNETH WAYNE FIRST, has proffered the following
matters as evidence of mitigating facts or
circumstances: (1) voluntary intoxication at the
time of the offense, (2) sexual molestation of
the defendant as a child, (3) lack of education,
(4) the youthful age of the defendant.
Id. at 841.
The court concentrated on the fact that the
trial court presented the jury with an inclusive
list of mitigating evidence. "It is clear ...
that the Eighth and Fourteenth Amendments are
violated when the jury's consideration is
limited to an inclusive list of mitigating
circumstances." Id. (footnote omitted).
A majority of
the court also concluded that the operation of
art. 37.071(f) itself "precluded the jury's
consideration of the mitigating evidence as it
related to the provocation of Davis." Id. at
840; Id. at 845 (Miller, J., concurring).
According to the concurrence, "by directing the
jury's attention to only Holley's conduct, the
charge implicitly encouraged the jury to not
consider the conduct of Holley's accomplice,
Davis, in considering whether or not to assess
the death penalty." Id. (Miller, J., concurring).
reasons, we conclude that Vuong's claim
nevertheless must fail. First, the facts in
Vuong's case, unlike those in First, simply do
not support a special instruction on the
assertion that provocation by Nguyen affects
Vuong's culpability with respect to the killing
of Tran. The evidence indicates that Vuong
himself initiated the violence in the first
place by going home, retrieving a rifle, and
returning to the game room.
At least two
persons were shot by Vuong before the alleged
provocation by Nguyen occurred. There is no
testimony, other than Vuong's, to support the
claim that Nguyen was reaching for a gun when he
was shot, and no gun was found at the scene.
Petitioner then shot a fourth person and one of
the previous victims a second time before
turning the gun on Tran.
Moreover, Vuong argues at length
about the alleged provocation by Nguyen but
fails to indicate how Nguyen's actions reduce
his culpability for the killing of Tran.
Thus, reasonable jurists could have concluded
that Vuong's sentence was not constitutionally
petitioner had made out a good factual case for
relevant mitigating evidence, the argument fails
as a legal matter. In its answers to the special
issues, a Texas jury is able to give adequate
weight to the type of provocation evidence that
Vuong claims he presented.
As an initial
matter, we emphasize that the punishment charge
in Vuong's case, unlike First's, did not contain
an inclusive list of mitigating factors for the
jury to consider. The charge instructed the jury
to consider "any evidence which ... mitigates
against an answer of 'yes' to each issue,
including any aspects of the Defendant's
character or record, and any of the
circumstances of the commission of this offense
which you find to be mitigating." Thus, one of
the First court's legal rationales, namely that
the jury was given only an inclusive list of
mitigating factors, simply does not apply here.
reasonable jurists looking at Vuong's conviction
would not have felt compelled to conclude that
the charge was deficient solely on account of
the operation of art. 37.071(f).
This court has held that the possible mitigating
effect of provocation by a victim can be
adequately accounted for under Penry in the
first two special issues.
In White v.
Collins, 959 F.2d 1319 (5th Cir.), cert. denied,
503 U.S. 1001, 112 S.Ct. 1714, 118 L.Ed.2d 419
(1992), the petitioner had not requested that
the third special issue be submitted, and
consequently it was not submitted as part of the
punishment charge. The petitioner, in his habeas
proceeding, claimed that the victim had sprayed
him with mace, therefore provoking a violent
reaction. Id. at 1323-24.
decided that the jury could have concluded that
"absent such provocation, [petitioner] would be
nonviolent" and thus could have rendered a
negative answer to the future dangerousness
inquiry. Id. at 1324.
This reasoning of White is also
applicable here, where it is not the provocation
of the victim with respect to whom the special
issues were submitted that is at issue, but
provocation by another victim. If, as Vuong
claims, Nguyen provoked a violent response
spilling over to the second victim, the jury
could have concluded that Vuong did not pose a
danger in the future.
In response to
White's claim that he accidentally or by reflex
action discharged the gun because of the effect
of the mace, the court determined that the jury
might have answered "no" to the deliberateness
inquiry of the first punishment phase. Id.
Vuong's jury could have determined that any
provocation by Nguyen reduced the probability
that the killing of Tran was "deliberate" and,
as a result, could have returned a negative
answer to the first special issue. See Heckert
v. State, 612 S.W.2d 549 (Tex.Crim.App.1981)
(holding that "deliberately" and "intentionally"
are not linguistic equivalents that would render
art. 37.071 a nullity).
The court also found that the
jury could have given effect to White's evidence
at the guilt phase by determining "that White
had no intent to kill." White, 959 F.2d at 1324.
The same is true in our case. The jury was, in
fact, given a self-defense instruction and could
have determined that Nguyen was not killed
intentionally. If so, then Vuong would not have
been eligible for the death penalty. Accordingly,
as reasonable jurists would not have felt that
relief to Vuong was compelled by Penry, we must
reject his claim in accordance with Teague.
two claims arise out of events that occurred
during the deliberations at the punishment stage
of the trial. While deliberating, the jury
submitted a note to the court asking, among
other things, about Vuong's eligibility for
parole. According to Texas law, "a jury may not
consider the possibility of parole in its
deliberations on punishment." Felder v. State,
758 S.W.2d 760, 762 (Tex.Crim.App.1988).
responded with an explanatory note indicating
that a person sentenced to life in prison could
earn good time that would reduce the amount of
time he had to serve. The court also indicated
that the jury was not to consider parole when
determining the sentence.
alleges two errors, the first of which is that
the court communicated with the jury in response
to the note without consulting with the defense
attorneys. Vuong claims that this ex parte
contact violated his Sixth Amendment and Due
that the federal district court erred in
affording a presumption of correctness, and
thereby denying an evidentiary hearing on this
issue, to the state court's collateral review
finding that there had not been an ex parte
communication regarding parole between the trial
judge and the jury. Vuong now requests a federal
evidentiary hearing on this issue. In the event
that this court denies the hearing and upholds
the presumption, Vuong asserts that his trial
counsel rendered ineffective assistance by
failing to object to the communication to the
initially raised his Sixth Amendment claim at
his state habeas proceeding. Prior to the
resolution of his claims, Vuong asked that the
trial judge be recused from the state collateral
review proceeding because he had presided over
the original trial. After a live hearing
conducted by another judge, the motion to recuse
judge then denied Vuong's motion for an
evidentiary hearing and ordered the parties to
submit affidavits addressing the relevant issues.
Based upon the affidavits of the lead defense
counsel, Jim Delee, and the lead prosecutor,
Paul McWilliams, and relying upon his personal
recollections, the judge concluded that the
petitioner had not shown that an ex parte
communication in fact had occurred.
courts accord state findings of fact a
presumption of correctness, provided the
factfinding procedures employed were "adequate."
28 U.S.C. Sec. 2254(d)(2).
This court has indicated that "it is clear that
Sec. 2254(d) does not preclude a federal court
from presuming the correctness of factfindings
made from a paper record." May v. Collins, 955
F.2d 299, 312 (5th Cir.), cert. denied, 504 U.S.
901, 112 S.Ct. 1925, 118 L.Ed.2d 533 (1992).
As long as the
habeas applicant and the state are parties to
the proceeding and the state court evidences its
determination with a " 'a written finding,
written opinion, or other reliable and adequate
indicia,' " a hearing has taken place. Sumner v.
Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 769,
66 L.Ed.2d 722 (1981) (quoting Sec. 2254(d)).
In order to determine whether the
requirements of Sec. 2254(d)(2) have been met by
a paper hearing, "it is necessary to examine in
each case whether a paper hearing is appropriate
to the resolution of the factual disputes
underlying the petitioner's claim." May, 955
F.2d at 312.
that it was improper for the trial judge to rely
upon personal recollections to resolve his state
habeas claims. Therefore, Vuong contends, under
Sec. 2254(d)(2) and the related provision in Sec.
that the trial judge's findings on this issue
are not entitled to the presumption of
correctness that they were accorded by the
federal district court. See Vuong, 867 F.Supp.
Vuong's contention to be without merit. Under
Texas law, judges may use, among other things,
"personal recollection" to resolve any
unresolved facts raised by a state habeas
petitioner. TEX.CODE CRIM.PROC.ANN. art.
In May, the
state judge made a decision, based upon
affidavits and his own firsthand knowledge of
the trial, constituting a credibility
determination that was accorded a presumption of
correctness. 955 F.2d at 314-15; see also
Sawyers v. Collins, 986 F.2d 1493, 1505 (5th
Cir.1993) (state habeas judge in a position to
assess credibility of competing affiants), cert.
denied, --- U.S. ----, 113 S.Ct. 2405, 124 L.Ed.2d
In fact, this
court has found that a state habeas judge who
also conducted the trial is "in a different and
better position to make determinations regarding
the facts and circumstances surrounding that
trial than other courts on direct or collateral
review." Buxton v. Lynaugh, 879 F.2d 140, 146
(5th Cir.1989), cert. denied, 497 U.S. 1031, 110
S.Ct. 3295, 111 L.Ed.2d 803 (1990). Thus, the
fact that the judge has a personal recollection
of the proceeding actually contributes to the
adequacy of a paper hearing rather than
detracting from it.
Vuong argues that a distinction
may be drawn between cases in which a judge is
making credibility determinations, as in May,
and a case in which the judge is making a
factual finding directly related to his own
actions. We find Vuong's distinction
He points this
court to no authority that indicates that a
state trial judge may not use personal
recollection to resolve factual disputes, as
Texas law allows, even with respect to his own
conduct. Judges are repeatedly asked and trusted
to examine their own rulings, for example on a
motion for rehearing or reconsideration.
contends that the evidence that the state judge
relied upon was insufficient to be presumed
correct on the issue of whether an ex parte
communication had taken place.
of Warren Clark, a member of the defense team,
stated that he could not recall seeing the
judge's communique to the jury on the law of
parole. McWilliams, the prosecutor, stated that
he felt "certain that all aspects of the Court's
response [to the jury note] including the parole
response were discussed with defense counsel."
other defense attorney, did not recall seeing
the note asking about parole information, nor
did he recall the court's response, though he
attributed this to the time lapse between the
trial and the affidavit. He also stated that he
had "never known of any time that this court
answered a note without review by attorneys."
judge supplemented this record information with
his own recollection and determined that he had
consulted with the attorneys on the question.
The record information was certainly sufficient
to support the finding of consultation when
taken in combination with the judge's
alternative, Vuong contends that his attorneys
rendered ineffective assistance of counsel by
not objecting to the submission of the note to
the jury. See Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Under Washington, Vuong must establish that his
attorneys acted objectively unreasonably in
failing to object and that he was prejudiced by
the failure to object. Id. at 687, 104 S.Ct. at
counsel's performance must be deficient under "prevailing
professional norms." Id. at 690, 104 S.Ct. at
2066. Moreover, Vuong must establish more than
that the outcome of his proceeding would have
been different but for counsel's alleged errors.
He must show that "the result of the proceeding
was fundamentally unfair or unreliable."
Lockhart v. Fretwell, --- U.S. ----, ----, 113
S.Ct. 838, 842, 122 L.Ed.2d 180 (1993).
find that Vuong has failed to establish the
requisite prejudice, we need not examine the
reasonableness prong. Vuong argues that had his
attorneys objected, the instruction on parole
would not have been submitted to the jury. Vuong,
therefore, must prove that the instruction on
parole was prejudicial as defined by Fretwell.
As we have
noted, a jury may not consider parole
possibilities when rendering its punishment
decision. Vuong has not proven that the jury did
take parole possibilities into account. Moreover,
there is no dispute that the judge informed the
jury that it was not to consider parole. Such
limiting instructions generally are sufficient,
as juries are presumed to follow their
instructions. See Zafiro v. United States, ---
U.S. ----, ----, 113 S.Ct. 933, 939, 122 L.Ed.2d