Thomas Lee Ward
(died March 16, 1996) was an American murderer. He was tried,
convicted and executed by lethal injection in Louisiana for the
murder of his stepfather-in-law John Spencer.
On the night of
June 22, 1983, Ward claims he arrived in New Orleans from California
by bus. He went to the residence of Lydia and John Spencer, the
mother and stepfather of the his wife. Ward's wife and children were
also staying at the house.
Ward was allowed into the house
to visit his children. He asked and was allowed to bathe and freshen
up. Ward learned that his wife had begun receiving welfare and the
family was having some trouble with one of the daughters. Ward later
claimed that this upset him, but rather than saying or doing
anything rash, he left the house.
He then went to a local bar where
he drank vodka and beer and "hit up" with cocaine. Ward returned to
the house at approximately 5:30 a.m., asking to see his children one
After visiting with the children
he gave his wife his address and phone number in New York, then went
into the bedroom of his wife's mother and stepfather. He pulled out
a gun, pointed it at John Spencer and said "I am sorry, John, I have
to kill you."
He then shot Spencer once at
close range. As Lydia Spencer reached for her husband, Ward shot her
in the stomach. When she turned around, he shot her in the back.
Lydia Spencer ran for the door, trying to get out of the house.
Ward followed her, striking her
with three more shots. Linda Ward and her brother, Ernest Scott,
heard the shooting and ran from the house to get help from the
arrived, Ward walked up to the police officers, ostensibly to turn
himself in. The police did not at first seize Ward, not yet knowing
he was the alleged murderer. Ward claims the police shooed him away
because he was drunk. After further investigation at the scene the
police realized who Ward was and arrested him.
Ward was indicted
by the Orleans Parish Grand Jury with first degree murder. On August
15, 1984, the jury at Ward's trial found the him guilty as charged.
After a sentencing hearing, in which Ward testified, the jury
unanimously recommended a sentence of death.
Ward was executed
by lethal injection at the Louisiana State Penitentiary on March 16,
1995. He declined to make a final statement, but dictated to his
attorney that "I am leaving the world at peace with myself and with
the Almighty. I feel remorse for the things that I did. I hope that
young people today will learn that violence is not an answer. I hope
the legal system learns that lesson, too. The death penalty is not a
Thomas L. Ward was executed on May 16, 1995.
Ward was convicted of killing Wilbert John Spencer, his wife's
stepfather, in New Orleans on June 23, 1983. He also shot Lydia
Spencer, his wife's mother.
Ward's trial featured testimony that he
had sexually abused many children, including the woman who later
married him and his own 10-year-old daughter. Ward declined to make
a formal statement in the room before he was executed, but he
dictated these last words to his attorney:
"I am leaving the world at peace with myself and with
the Almighty. I feel remorse for the things that I did. I hope
that young people today will learn that violence is not an answer.
I hope the legal system learns that lesson, too. The death penalty
is not a solution."
21 F.3d 1355
Thomas Lee WARD, Petitioner-Appellant,
John P. WHITLEY, Warden, Louisiana State Penitentiary,
Angola, Louisiana, et al., Respondents-Appellees.
Nos. 89-3831, 90-3855.
United States Court of Appeals,
May 17, 1994.
Appeals from the United States
District Court for the Eastern District of Louisiana.
Before POLITZ, Chief Judge, KING and
GARWOOD, Circuit Judges.
POLITZ, Chief Judge:
Thomas Lee Ward,
convicted of first degree murder and sentenced to death, appeals the
denial of his petition for a writ of habeas corpus. We affirm.
Upon his release from a California
jail Ward boarded a bus for New Orleans. He drank vodka and shot
cocaine throughout the three-day trip and slept little, if at all.
Arriving late in the evening of June 22, 1983, he went directly to
the Hagan Street address of Lydia and John Spencer, where his wife,
Linda, and their children were living. Lydia Spencer was Linda's
mother. Explaining that he was on his way to New York and wanted to
see his children, Ward was admitted. His wife informed him that she
would not accompany him. Ward departed. He testified that he spent
the night drinking vodka and beer and injecting cocaine.
Around 5:30 a.m., he returned to
the Hagan Street house, asking to see his children again. Once again
he was admitted. According to his wife, Ward left an address and
phone number at which he could be reached in New York and then
walked into the Spencers' bedroom. Pulling a gun, he said, "John,
I'm sorry I have to shoot you," and fired once at close range,
killing John Spencer. He then shot Lydia Spencer five times as she
tried to escape. She survived.
A jury convicted Ward of the first
degree murder of John Spencer, La.R.S. 14:30. At the penalty phase
of the trial, Linda Ward testified that she first had sexual
relations with Ward when she was ten years old. She further
testified that she saw him have sexual relations with her sister
Ramona, aged 14 at the time, and their daughter Tasha, then aged
nine. Ernest Scott, Linda's brother, testified to witnessing a
sexual encounter between Ward and his sister Lorraine when she was
seven. The prosecution introduced a 1975 complaint charging sexual
relations with the minor Linda and two of her minor sisters; Ward
pleaded guilty to having relations with Linda. The prosecution also
offered a 1983 complaint charging Ward with sexual abuse of his
daughter Tasha; Ward pleaded guilty to the misdemeanor of cruelty to
The jury found two statutory
aggravating factors and sentenced Ward to death under Article 905.3
of the Louisiana Code of Criminal Procedure. The conviction and
sentence were affirmed on appeal and the Supreme Court denied
Efforts to obtain post-conviction
relief began. The trial court denied Ward's first petition but the
Louisiana Supreme Court remanded for an evidentiary hearing, which
was conducted over the course of three days. The trial court again
denied relief and the Louisiana Supreme Court denied Ward's
application for supervisory writs. Ward filed a federal habeas
petition under 28 U.S.C. Sec. 2254 which was dismissed for failure
to exhaust state remedies on a mental retardation claim. Repairing
to state court for another application for post-conviction relief,
Ward obtained a second evidentiary hearing at the direction of the
Louisiana Supreme Court. Again the trial court denied the petition.
In the wake of the Supreme Court's
decision in Penry v. Lynaugh,
the Louisiana Supreme Court denied the application for supervisory
writs. Ward then returned to federal court with the instant habeas
petition. The district court denied relief; Ward timely appealed and
we granted a certificate of probable cause. While his appeal was
pending, Ward filed a Fed.R.Civ.P. 60(b) motion seeking the
admission of newly discovered evidence. The district court denied
that motion but granted a certificate of probable cause. Ward timely
appealed that ruling and we consolidated the two appeals for
At the threshold, Ward asks us to
remand his case to district court so that he might amend his
petition to add a claim that the "reasonable doubt" instruction
given to his jury was invalid under Cage v. Louisiana.
We stayed disposition of his appeal pending exhaustion of that issue
in the Louisiana courts, which denied him relief. We deny the motion
to remand to the district court. A habeas petitioner may not add new
constitutional claims to a petition after the district court has
We express no opinion whatever on the Cage issue.
Ward seeks habeas relief on six
grounds: (1) the state withheld Brady material; (2) he did not
receive effective assistance of counsel; (3) the prosecutor made
improper argument; (4) one of the two aggravating circumstances
found by the jury has been invalidated; (5) the prosecution
eliminated African-American jurors because of their race; and (6)
racial discrimination infected the selection of the jury pool and
venire. We address these contentions seriatim.
Ward contends that his due process
rights under Brady v. Maryland
were violated by the prosecution's failure to produce police
documents tending to show that he killed John Spencer and shot Lydia
Spencer under the emotional stress of an argument about whether his
wife and children would accompany him to New York. These documents,
he maintains, contradicted testimony by Lydia Spencer, his wife
Linda, and Ernest Scott that no such argument occurred and
corroborated his testimony in the penalty phase.
To succeed on a Brady claim the
petitioner must show, inter alia, a reasonable probability that the
suppressed material would have changed the outcome of the
has not done so. The police reports reflect that Ward argued with
the Spencers when he returned to the Hagan Street residence on the
morning of June 23 and that he believed they were preventing a
reconciliation with his wife. That is not sufficient provocation to
cause a reasonable person to kill in the heat of passion, as
required for a responsive verdict of manslaughter.
Nor would the documents have
affected the sentencing determination, even if they had convinced
the jury to believe Ward's testimony at the penalty phase. Ward
testified that he was upset by his wife's refusal to accompany him
because that meant the children would stay behind as well. "Something
snapped," he stated, when John Spencer said that Linda "was doing
all right" in New Orleans. The prospect that the jury might have
found reduced culpability because of John Spencer's support of his
step-daughter's decision not to accompany her husband to New York is
remote at best. There is no reasonable possibility that the jury
would have reached a different result at either phase of the trial
had the police documents been produced.
Ward also asserts a Brady
violation in connection with possibly missing portions of the
prosecutor's files sought in connection with post-conviction
proceedings. He has not shown that any of these documents contained
Brady material nor a reasonable probability that they were outcome-determinative.
The prosecutor was uncertain what portion of the file, if any, was
missing and merely speculated that the file was incomplete because
it was relatively thin. This assignment of error is without merit.
2. Ineffective assistance of
Ward asserts multiple ways in
which his trial counsel allegedly failed to provide adequate
representation. To prevail on a claim of ineffective assistance, he
must show that (1) counsel's performance was so deficient as to fall
below an objective standard of reasonableness and (2) there is a
reasonable probability that, but for the unprofessional errors, the
result of the proceeding would have been different.
Ward has succeeded on neither prong. Counsel's overall performance
was not "outside the wide range of professionally competent
his errors, viewed separately and cumulatively, did not render the
result of either the guilt or penalty phase unreliable.
At the heart of the
ineffectiveness complaint is counsel's failure to present evidence
of Ward's good character at the penalty phase. Counsel testified at
the state post-conviction hearing that this omission was a matter of
trial strategy. During his initial investigation of Ward's
background counsel discovered the sexual abuse of the minors. While
it was settled law that those instances of sexual misconduct for
which Ward had been convicted were admissible at the penalty phase
of the trial, defense counsel believed the law unsettled as to
whether evidence of unadjudicated incidents was admissible. By
bringing in good character evidence defense counsel feared that he
would open the door to such evidence. He therefore limited his case
at the penalty phase to the presentation of a report of a
psychologist who evaluated Ward in California, which could not be
cross-examined, and a 1965 order obtained by Ward's previous wife.
Ward unexpectedly decided to testify, changing the dynamics of the
Louisiana law was unsettled as to
the admissibility of unadjudicated acts of misconduct at the time of
Ward's trial in August 1984.
Ward argues, however, that once the trial court overruled his
objection to the admission of bad acts evidence, his trial attorney
could have introduced good character evidence without waiving his
objection. That argument is misplaced. The issue is not waiver of
the objection but rather a removal of the grounds for the original
objection. As explained by Professors Wright and Graham:
It is important to distinguish ... between action
of a party that is asserted to estop him from objecting and action
that makes admissible evidence that would otherwise be inadmissible.
For example, in a prosecution for sale of heroin, the fact that the
defendant's mother-in-law died two years before the date of the sale
would be irrelevant. But if the defendant takes the stand and
testifies, by way of alibi, that at the time of the crime he was
taking tea with his mother-in-law, evidence that she was then
mouldering in the grave is admissible to impeach him and to disprove
the alibi.... What the defendant has done is to introduce evidence
that changes irrelevant evidence to relevant evidence.
Trial counsel had objected to
evidence of sexual molestation on the grounds of relevance. Had he
introduced good character evidence, the objectionable evidence would
have become relevant. We cannot say that trial counsel's strategy,
although ultimately unsuccessful, was unsound.
Ward also charges that trial
counsel did not adequately investigate his case and therefore did
not have sufficient information to form a sound strategy. We find no
evidence in the habeas record that would have changed trial
counsel's strategy had it been garnered, or changed the outcome of
the proceedings had it been presented. Dr. Robert Guthrie, the
California psychologist, testified that Ward placed great importance
on keeping his family together, had a good relationship with his
children and provided well for them. His examination of Ward's
daughter indicated that Ward had not molested her.
Llewellyn Gedge, an attorney who
represented Ward in efforts to regain custody of his children from
the state, and Dennis Burden, a friend, submitted affidavits
attesting to Ward's devotion as a parent; neither had observed
indications of child abuse. Ward's eldest son's affidavit declared
that he would have testified that his father was a good parent. Ward
himself testified about his childhood in Long Island and his work
history, denying sexual relations with anyone but his wife. We
cannot conceive, as a matter of law, how such testimony could have
outweighed the overwhelming eyewitness testimony of sexual abuse.
Ward complains of trial counsel's
failure to obtain the transcript of the trial of the 1975 sexual
misconduct charges. That transcript, Ward maintains, would have
shown that Lydia Spencer had suborned perjury, supporting his claim
that she maliciously concocted the sexual abuse charges against him.
Trial counsel tried to obtain the transcript but was unable to do so
for lack of funds. Ward did not produce the transcript on collateral
review; the record before us contains no showing of prejudice.
Another aspect of Ward's failure-to-investigate
complaint is that defense counsel did not interview Lydia Spencer,
Linda Ward, or Ernest Scott prior to trial. Counsel testified that
they had moved and that he was unable to locate them. This impacted
his cross-examination. With no knowledge of how she would respond,
he asked Linda Ward whether she wanted Ward executed. Her response
was in the affirmative.
It obviously is preferred trial
preparation that an attorney or someone on his behalf interview
witnesses before trial. We cannot say, however, that defense
counsel's unsuccessful efforts to locate these three witnesses fell
below prevailing professional norms to the point of constitutional
implication. Utility and telephone company records were reviewed
without success. Funds were limited and counsel's investigators
could suggest no further practical measures.
It is a basic rule of cross-examination:
Never ask a question for which you do not know the answer. Every
experienced trial lawyer realizes that that rule is honored more in
the breach than the observance. We do not perceive a reasonable
possibility of a different result but for defense counsel's blunder,
given the prosecution's evidence. "[T]he purpose of the effective
assistance guarantee of the Sixth Amendment is not to improve the
quality of legal representation, although that is a goal of
considerable importance to the legal system. The purpose is simply
to ensure that criminal defendants receive a fair trial."
Ward also criticizes his trial
counsel for not interviewing employees at Champs, the liquor store
where he bought vodka and beer after his first visit to the Hagan
Street house; had he done so, Charles Washington, a store clerk,
attested that he would have confirmed that Ward had purchased
alcohol. Trial counsel decided that a visit to Champs would be
futile because Ward told him that he had not seen anyone there that
he knew. Further, he had found Champs personnel singularly
uncooperative in past efforts to elicit information. Although
another attorney might have decided differently, we are not prepared
to say that trial counsel's decision not to investigate at Champs
was unreasonable under these circumstances.
Ward himself bears the blame for
some of the deficiencies in his defense. He criticizes his lawyer's
failure to obtain a toxicologist. The toxicologist whom his lawyer
consulted, however, withdrew at the eleventh hour, stating that he
could not help. Trial was continued for two weeks while counsel
scrambled to find another. Counsel finally located a forensic
psychiatrist but Ward refused to speak with him. Ward also faults
his trial attorney for failing to prepare him to testify.
In the critical weeks preceding
trial, however, Ward grew increasingly hostile and ultimately
refused to speak with trial counsel or the lawyer who joined the
defense team shortly before trial. Ward gave no indication of a
change in this posture at trial; he sat as far as possible from
counsel and rejected counsel's advice to testify at the guilt phase.
Ward's decision to testify at the penalty phase was his unilateral
last-minute choice. Further, Ward complains that his attorney
committed the cardinal sin of not producing the evidence that he
promised in his opening statement. That failure was due in large
part to Ward's refusal to testify at the guilt phase. Whatever the
reason for Ward's refusal to cooperate, he cannot now blame the
consequences on his trial attorneys.
Finally, Ward claims
ineffectiveness in the conduct of voir dire, complaining that
counsel did not request individual examination and did not ask "open-ended"
questions. Again, while these may be better trial practices, they
are not mandated by the sixth amendment; counsel's deviations did
not place his performance outside the wide range of professional
competence. Ward also complains that his attorney did not
rehabilitate "scrupled" jurors. Counsel testified that it is his
practice to take a "soft" approach with potential jurors and
preserve his objections for appeal. Ward has shown no prejudice from
3. Improper prosecutorial
Ward challenges multiple aspects
of the prosecution's closing argument. None of the assigned errors
warrant issuance of the Great Writ.
Ward maintains that the prosecutor
urged the jury to impose the death penalty partly as punishment for
prior sexual offenses, thereby subjecting him to double jeopardy. We
do not so interpret the challenged comments.
The prosecution closed its
argument with the plea "Come back with a proper penalty for this man
and for his actions over the last twenty to thirty years." That
statement standing alone is problematic but in rebuttal the
prosecution explained further.
You give him life, he wins. You give him life and
you walk out of here and he wins, and I will tell you why. Look at
his criminal history. He should not only have been sentenced to life
imprisonment, he ought to be doing about twenty life sentences and
in the state of Louisiana, not the revolving doors of California and
New York. In the state of Louisiana he would have gone to jail for
life imprisonment ten years ago the first time he fooled with one of
his children who was under age twelve or one of those children who
was under age twelve. Life imprisonment, he would have gone for here.
If you add up all the times, all the crimes he has committed on
those children, he should be doing a thousand years right now for
all that, and what has he done? Nothing, he is out, essentially he
is out and he is facing this charge. You give him life he wins, but
what you are giving him is what he deserved ten years ago, fifteen
years ago, twenty years ago when he was convicted of rape in New
York. That's not what he deserves now.
That was not an urging to execute
Ward as punishment for his prior offenses. The prosecution was
contending that life imprisonment would have been appropriate for
Ward's prior violations, but the murder called for a more severe
punishment. We do not lightly attribute an improper meaning to
ambiguous prosecutorial comment.
The prosecution did not urge the jury to punish Ward a second time
for his prior offenses; it sought what it considered appropriate
punishment for the offense at issue.
Next Ward contests the
prosecutor's references to John Spencer's good character. The
prosecution may argue the human cost of the charged offense unless
its statements are so inflammatory as to deprive the defendant of a
fundamentally fair trial.
The portrayal of John Spencer as a good provider for his step-daughter's
children was not improper.
We agree with Ward's contention,
however, that the prosecutor's argument that intoxication was not a
mitigating factor was improper. Among the mitigating circumstances
which Louisiana juries must consider is impairment of a defendant's
capacity "to appreciate the criminality of his conduct or to conform
his conduct to the requirements of the law ... as a result of ...
Despite this legal requirement, the prosecution argued:
[E]ven if he was high on cocaine and he had been
drinking booze, [defense counsel] says that because of that, that's
mitigation. You shouldn't feel as badly towards him because of that;
that makes this better. Think of the message you send to this
community if you are going to buy that theory and buy that line of
nonsense. It makes it pretty convenient that if I want to go kill
somebody the best thing for me to do is go out and get a pint of
booze first, drink it down and then I can come to Court and say I
was drunk. Don't put me in the electric chair because I had a pint
of booze before I did it, or I did a line of cocaine before I did it.
That's absolutely absurd. No one pinned him down and poured booze
down his throat, no one pinned him down and stuffed cocaine up his
nose, he did it to himself. Y'all shouldn't feel bad about that, not
one bit, not one bit.
There is a fine line between the
argument that a statutory mitigating circumstance merits no weight
in the jury's ultimate decision and the argument that the mitigating
circumstance should not be considered or is not mitigating. The
former is permissible under Louisiana law;
the latter is not.
The prosecution crossed the line in making this argument.
An improper prosecutorial argument
that does not implicate a specific constitutional provision, however,
is not cognizable on collateral review unless the defendant shows an
abridgment of due process, that is, that the improper argument
rendered the proceeding fundamentally unfair.
Ward has not done so. The trial court correctly instructed the jury
that impairment of mental capacity due to intoxication was a
statutory mitigating factor. The court also gave the jury the
standard charge that statements by the lawyers were not to be taken
as evidence and that it was bound to apply the law as given by the
court. In light of the court's charge it is reasonable to conclude
that the jury viewed the prosecutor's erroneous and excessive
comments as no more than the prosecutor's exhortation to accord that
circumstance little or no weight.
Finally, Ward complains that the
prosecutor violated his privilege against self-incrimination by
commenting during the sentencing phase about his failure to testify
at the guilt phase. The offending comments were:
You know what ought to be the most offensive
thing of all this, you know what ought to infuriate you and I'm sure
it does, he's a stinking liar 'cause he gets up here on the witness
stand [during the sentencing phase] and he lies to you. He lies, he
is not going to be a man and get up here and say, alright, you found
me guilty. I didn't testify at my trial because of that criminal
record that I knew would come out under cross examination by the D.A.,
y'all know that's why he didn't take the stand at the trial, 'cause
all that would have come out. He doesn't say you found me guilty, I
did it. Please, don't sentence me to death. Please have mercy on me.
Does he do that? No, he gets up there and he is indignant, he is a
horrible man, and he is going to get up there and he defies you to
sentence him to death.
The prosecution's attempt to use
Ward's election of his right not to testify at the guilt phase of
his trial to argue bad character at the penalty phase was improper.
That error warrants reversal on collateral review only if it had a
substantial and injurious effect or influence on the outcome.
This it decidedly did not have. The argument that Ward was a bad
person deserving of death because he did not inculpate himself
before the jury pales beside the other evidence of bad character, to-wit,
his attempt to kill Lydia Spencer after killing John Spencer and his
sexual encounters with the children in his family. We perceive no
gain for the prosecution in the prosecutor's improper comments in
4. Invalid aggravating
Louisiana law requires the jury to
find at least one aggravating circumstance before it may consider
the death penalty.
Ward's jury found two: (1) knowing creation of a risk of death or
great bodily harm to more than one person and (2) a significant
prior history of criminal activity. Before the disposition of Ward's
appeal the Louisiana Supreme Court invalidated the latter as
Nevertheless, it affirmed Ward's sentence, reasoning that one valid
aggravating circumstance supported the verdict and that the evidence
offered to show criminal history was otherwise admissible as proof
of character. Ward claims prejudice on the grounds that a second
aggravating factor was improperly on the scales when the jury chose
between life and death.
The Louisiana capital punishment
statute does not direct the jury to weigh aggravating against
mitigating circumstances. After the threshold finding of at least
one aggravating factor, the statute does not structure the jury's
deliberations other than to require that it consider all mitigating
circumstances. Addressing a substantially similar death penalty
statute in Zant v. Stephens,
the Supreme Court expressly rejected the argument now urged by Ward
and held that the erroneous classification of otherwise admissible
evidence as an aggravating circumstance does not invalidate a death
sentence where the jury also finds a valid aggravating circumstance.
That is substantially the same analysis applied by the Louisiana
Supreme Court to Ward's claim on direct appeal and approved by this
court on collateral review of Louisiana death penalty sentences.
Stephens, however, reserved the
question of the impact of an invalid aggravating circumstance in a
statutory scheme in which the factfinder must weigh aggravating
against mitigating circumstances. According to Ward, that is the
question presented here because the prosecutor urged the jury to
engage in weighing. Ward misframes the issue.
The prosecutor misstated the law
when he exhorted the jury to weigh aggravating against mitigating
circumstances. The trial court, however, correctly instructed the
You are required to consider the existence of
aggravating and mitigating circumstances in deciding which sentence
should be imposed.... Before you decide that a sentence of death
should be imposed, you must unanimously find beyond a reasonable
doubt that at least one aggravating circumstance exists. If you find
beyond a reasonable doubt that any of the statutory aggravating
circumstances existed you are authorized to consider imposing a
sentence of death.... Even if you find the existence of an
aggravating circumstance, you must also consider any mitigating
circumstances before you decide a sentence of death should be
The arguments of counsel perforce
do not have the same force as an instruction from the court.
Here, where the prosecutor's reference to weighing was cursory,
there is no reasonable likelihood that the jury disregarded or
misconstrued the court's specific instructions.
Ward contends that the state
exercised seven of its ten peremptory challenges against African-American
venirepersons because of their race, in violation of the equal
protection clause. He did not object at trial. We repeatedly have
held that as a matter of federal law, a contemporaneous objection is
a necessary element of a Batson
argues that the Supreme Court impliedly rejected that position in
Ford v. Georgia.
Ford was tried before the Supreme
Court decided Batson. In accordance with the prevailing evidentiary
burden of Swain v. Alabama,
the defendant filed a pretrial motion claiming that the prosecution
routinely exercised its peremptory challenges to strike African-Americans
in cases with black defendants and asked that it be prohibited from
doing so in the case at bar. The district court denied the motion.
The case proceeded to trial; the prosecution exercised nine of its
ten peremptories to strike African-American jurors. On the second
day of trial the court called a conference in chambers to put that
fact on the record.
The prosecutor asked the court
whether he needed to explain the justifications for his challenges
and the judge said he did not. After he was convicted and sentenced
to death Ford moved for a new trial, claiming the racial exercise of
peremptory challenges. The motion was denied. On appeal the Supreme
Court of Georgia refused to reach Ford's claim on the grounds of
procedural bar. The court interpreted a case decided after Ford's
trial to establish a rule that an equal protection challenge must be
lodged after the jurors are selected and before they are sworn.
Because that was not done in Ford's case, the court rejected his
The Supreme Court reversed. It
found that Ford had raised a Batson claim prior to trial and held
that a state may not retroactively bar litigation of a federal
constitutional right. Ward contends that the applicability of the
state procedural bar would have been moot if there was a federal
requirement of a contemporaneous objection. To the contrary, the
Court's inquiry whether the state properly found Ford's objection
untimely was premised on the fact that he had complained of the
racial use of peremptories in time for the trial court to require an
explanation from the prosecution. As the Court in Ford recognized,
Batson required a "timely objection" but left the definition of "timely"
to the trial courts. The opinion in Ford addresses the latter issue
only. In the matter sub judice, Ward raised no Batson objection in
the trial court. He has not satisfied the requisites for a Batson
6. Racial discrimination in the
selection of the jury pool and venire.
Ward contends that the Orleans
Parish jury commissioners excluded blacks from his jury pool and
venire, in violation of his sixth and fourteenth amendment rights.
The district court rejected this claim. Ward maintains that he was
entitled at least to discovery and an evidentiary hearing. We are
A federal habeas court must allow
discovery and an evidentiary hearing only where a factual dispute,
if resolved in the petitioner's favor, would entitle him to relief
and the state has not afforded the petitioner a full and fair
Conclusionary allegations are not enough to warrant discovery under
Rule 6 of the Federal Rules Governing Section 2254 Petitions; the
petitioner must set forth specific allegations of fact.
Rule 6, which permits the district court to order discovery on good
cause shown, does not authorize fishing expeditions.
The short answer to Ward's
assignment of error is that he had the opportunity to present
evidence at his state post-conviction hearing. We do not dispose of
Ward's argument on these grounds, however, because the state trial
court denied discovery and he later obtained additional evidence.
Factual development will not help
Ward's sixth amendment claim. He informs that his venire was half
black and half white and does not dispute the prosecution's
contention that the eligible population had essentially the same
racial composition. Accordingly, Ward cannot prove
underrepresentation, a necessary element of a fair cross-section
Ward's fourteenth amendment claim
fares no better. He alleges that the jury commissioners knew the
race of each member of the venire before directing the members to
criminal or civil district court and that blacks were
underrepresented in criminal court venires.
That does not constitute a specific factual allegation of
intentional discrimination. Ward attempts to bolster his petition
with a hearsay affidavit in which one of his attorneys attests that
the former director of the jury commission told him that he had
heard that the district attorney wanted more whites on criminal
court juries. Unlike Amadeo v. Zant,
on which Ward relies, there is no indication that the commission
heeded the district attorney's purported preferences. In another
affidavit, Ward's paralegal attests that a jury commissioner told
her that she selected more whites than blacks from the jury wheel to
compensate for differing appearance rates.
That is the only specific factual allegation of intentional
discrimination presented by Ward but it cuts against his charge that
blacks were steered onto civil and away from criminal venires.
As our colleagues on the First
Circuit have succinctly stated, "Habeas corpus is not a general form
of relief for those who seek to explore their case in search of its
Ward's discrimination claim falls within that proscription.
The judgment of the district court
53 F.3d 106
Thomas Lee WARD, Petitioner-Appellant,
Burl CAIN, Acting Warden, Louisiana State Penitentiary,
Angola, Louisiana, Respondent-Appellee.
United States Court of Appeals,
May 15, 1995.
Appeal from the United States
District Court for the Eastern District of Louisiana.
On Application for Certificate of Probable Cause
and Motion for Stay
Before POLITZ, Chief Judge,
GARWOOD and SMITH, Circuit Judges:
Scheduled for execution
between midnight and 3:00 a.m. on May 16, 1995, Thomas Lee Ward
seeks a certificate of probable cause to appeal the denial of
his petition for habeas corpus and a stay of his execution.
Binding precedent precludes debate among jurists of reason about
a dispositive issue and we must therefore deny the application
for CPC and a stay.
We do not repeat the factual
background and procedural posture of this case but refer to
In the petition at bar, Ward's third,
the sole claim is that his jury was given the identical
reasonable doubt instruction that the Supreme Court held to be
constitutionally infirm in Cage v. Louisiana.
Assuming for today's disposition that Cage is retroactive,
the dispositive issue is whether Ward has shown cause and
prejudice, or alternatively, a fundamental miscarriage of
justice which would satisfy the requirements of Rule 9(b) of the
Rules Governing Section 2254 Cases.
In James v. Cain
we very recently rejected the assertion of cause for not raising
a Cage claim in earlier petitions, finding that the claim
reasonably was available since the early 1980s. The effect of
James is to relegate Ward's efforts to avoid the limitation of
Rule 9(b) to the fundamental-miscarriage-of-justice exception.
As defined by the Supreme Court, that exception is confined to
cases of actual innocence, where the petitioner shows, as a
factual matter, that he did not commit the crime of conviction.
Ward has made no showing that it is more likely than not that no
reasonable juror would have found him guilty if given a correct
Accordingly, under controlling precedent we may not find a
miscarriage of justice.
The application for a
certificate of probable cause and the motion for a stay are
POLITZ, Chief Judge, concurring:
I fully concur with the
foregoing, adding that I share the concern voiced by the
district court that a person may be executed when there
effectively appears, in the words of Justice Scalia, to be "no
jury verdict of guilty-beyond-a-reasonable-doubt." Sullivan v.
Louisiana, --- U.S. ----, ----, 113 S.Ct. 2078, 2081, 124 L.Ed.2d
182, 189 (1993). With respect to the holding of James v. Cain,
50 F.3d 1327 (5th Cir.1995), regarding the availability of a
Cage claim, I am mindful of the Louisiana Supreme Court's
observation that the prevailing view during the 1980s was to
reject challenges to reasonable doubt instructions. State ex
rel. Taylor v. Whitley, 606 So.2d 1292 (La.1992), cert. denied,
--- U.S. ----, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993).