Classification: Mass murderer
Number of victims: 4
Date of murders:
Date of arrest:
Date of birth:
Victims profile: Anil Varughese,
18, Rod Harris, 22, Arnold Pequeno, 19, and his brother Joerene Pequeno,
18 (Malibu Grand Prix Race
Method of murder: Stabbing
Location: Harris County, Texas, USA
by lethal injection in Texas on August 31, 1993
Date of Execution:
August 31, 1993
Richard J. Wilkerson #756
This execution is not justice. This
execution is an act of revenge! If this is justice, then
justice is blind.
Take a borderline retarded young male
who for the 1st time ever in his life committed a
then contaminate his TRUE tell all confession
add a judge who discriminates
plus an ALL-WHITE JURY
pile on an ineffective assistance of counsel
and execute the option of rehabilitation
persecute the witnesses
and you have created a death sentence for a family lasting
over 10 years.
I will say
once again…..This execution isn’t justice – but an act of
revenge. Killing R.J. will not bring Anil back, it only
justifies "an eye for an eye and a tooth for a tooth." It’s
too late to help R.J., but maybe this poem will help someone
else out there.
"Seeing Through the Eyes of a Death
Sometime I wonder why, why he? Why
did he go out into the world to see? To be out there and see
what really did exist, now his name is written down on the
Death Row list. I can only imagine how lonesome he was all
by himself. We both knew he had no future left! His hopes
and dreams became a fantasy. He often said, "There’s nothing
left of me." I have asked myself, why did he get involved
with drugs? He could never explain why he hung around with
thugs? Did it really make him feel like a king – Did he
actually think he was capable of getting away with anything?
He knew the thought of life wasn’t ticking in his head.
There’s nothing left but the memory of those who lay dead.
What was did, cannot be undone. He was confessed, he was one
of the guilty ones. What would he say to the victim’s family?
– I’m sorry and my head wasn’t on straight. I hope you will
accept my apology, even though it’s too late. I never knew I
would take a life and commit a crime. I regret it because
now I have to face the lethal injection while doing death
row time. I knew I would pay with struggle and strife, but I
never thought the cost would be me losing my life.
Richard J. Wilkerson
Written through his sister
Age: 29 (19)
Executed: Aug. 31, 1993
Education level: 10th grade
On July 1, 1983, Wilkerson, his 16-year-old
cousin and another man entered the Malibu Grand Prix in southwest
Houston, where Wilkerson had been fired two weeks before. They
stabbed manager Anil Varughese, 18, and three other employees, Roddy
Harris, 22, and brothers Arnold Pequeno, 19, and Joerene Pequeno,
18. The killers made off with about $1,800 and spent much of it on
clothing just hours after the killings.
Co-defendant Kenneth Ray Ransom was executed in
1997 while the cousin received a life sentence.
Kenneth Ray Ransom was with
his girl friend, Wanda Phillips, at her home for most of the day
on June 30, 1983. After seven o'clock p.m., James Randle, a
friend of Ransom, came to Phillip's [sic] home to talk with him.
Ransom and Randle went outside--away
from Wanda and her small daughter. The two talked for about
fifteen minutes. Randle left and Ransom came back into the home.
Later, Randle returned to the home for a second time. The two
went outside again to talk for about fifteen minutes.
Randle left, but between nine
thirty and nine forty-five p.m., he returned to the home and for
a third time he and Ransom went outside to talk. Both men went
into the kitchen after this third discussion. While there, they
removed a butcher knife from the dish drainer.
Randle told Ransom, "Oh man,
here's one that we can use." As they started to leave with the
knife, Phillips asked Ransom where he was going and said that
she needed her knife. Ransom responded that they were going to
pick up Randle's cousin's paycheck. Randle told her, "Hold on
you're going to get your knife back. We'll bring the knife
Between nine thirty and ten
o'clock p.m. that night, Randle's mother saw Randle with Richard
James Wilkerson, Randle's cousin, and "another boy" at her home.
Randle's younger brother, Jessie, saw Ransom leave with Randle
and Wilkerson at some time before midnight. Earlier that day,
Randle's mother had borrowed a butcher knife from one of her
neighbors but was later unable to find it.
At approximately ten o'clock
that night, Wilkerson's sister saw Ransom standing outside her
home when she unlocked the screendoor to let her brother inside.
Wilkerson went into the kitchen and rummaged through the drawer
where the family kept the butcher knives. Randle waited in the
After going through the drawer,
Wilkerson went into the bedroom with Randle. The two went
outside five or ten minutes after they had arrived at the home.
When Wilkerson's sister locked the door behind them she saw
Ransom speaking with Wilkerson and Randle. The three left
Anil Varughese, Rod Harris,
Arnold Pequeno and his younger brother, Joerene Pequeno, were
employees of the Malibu Grand Prix Race Center in Houston. The
race center, which contained numerous video games inside the
center and had a racetrack for gocarts outside, was open for
business from ten o'clock a.m. until midnight.
Richard James Wilkerson had
also been employed by the race center but his employment was
terminated on June 20, 1983. Wilkerson could not pick up his
last paycheck until June 30, 1983--the day that Ransom told
Phillips that he was going to pick up Randle's cousin's paycheck.
Before Wilkerson could get the
check he had to appear in person at the race center and sign his
time card indicating that he had received it. As of two-thirty
p.m., on June 30, 1983, Wilkerson had not picked up his check.
Late that night, at three
o'clock a.m. on July 1, 1983, Ransom with Randle and Wilkerson
returned to Phillips' home. Wilkerson was carrying a black
satchel. Ransom went into the bathroom and the other two men
went into the bedroom. All three men had blood on their clothing.
Ransom, while in the bathroom, tended to a severe cut on the
inside of his right hand.
Inside the bedroom, Wilkerson
poured the contents of the black satchel--currency, a wallet, a
calculator and a watch--onto the bed. Some of the money was
bloody. The three men counted it together after which Randle
gave Ransom a share.
Phillips estimated Ransom's
share to be around three hundred and twenty-five dollars. Ransom
counted the money, put it into his pocket and began watching
television with the two other men. Wilkerson and Randle talked
of how they had "slashed" somebody's throat and "put the knife
in someone['s] temple."
Phillips, while the men
watched television, began cleaning her kitchen. She discovered
that a billfold, some credit cards and a driver's license had
been discarded in the garbage, the driver's license had the name
"Roddy Harris" on it. Randle took the billfold, the credit cards
and the license away from Phillips and threw them into the
When Phillips asked Ransom
from where the money had come, he replied, "We just went and got
some money." Phillips and Ransom, that next day, used the money
to purchase clothing for themselves.
Early that morning, at around
eight o'clock a.m., the bodies of Anil Varughese, Rod Harris,
Joerene Pequeno and Arnold Pequeno were discovered at the race
center by a friend of Varughese. Anil Varughese's body was
discovered in the manager's office. He had been stabbed at least
eight times--five times in the chest and three times in the
abdomen. He was eighteen at the time of his death.
The other three bodies were
found in one of the race center's bathrooms. Rod Harris' body
was found in one of the stalls. He had been stabbed at least
seven times in the chest. Joerene Pequeno's body was found in
the other stall. He had been stabbed eleven times--once in the
chest, once in the neck, once in the back, and once in the right
hand; he had been stabbed seven times in the neck area with one
cut severing his jugular vein.
Arnold Pequeno's body was in
the bathroom corner with his head under one of the urinals. He
had been stabbed and cut twenty-two times in the neck, chest,
abdomen, back and right hand. One of the cuts to his neck
severed his jugular vein. Arnold's watch and class ring were
missing along with a black satchel in which he carried his
At the time of their deaths,
Rod Harris was twenty-two years old, Arnold Pequeno was nineteen
and his younger brother, Joerene, was eighteen.
The three victims' blood
covered the bathroom floor and was splattered on the walls and
ceiling. There was blood not matching that of the victims on the
sink's counter, on a paper towel and on the bathroom door. A
trail of blood led out of the bathroom, through the race center
and into the parking lot area. Analysis revealed that this blood
could not have come from any of the victims or from either
Randle or Wilkerson. Only Ransom's blood was genetically
compatible to it.
The fingerprint to Ransom's
left index finger was lifted from the door to the bathroom stall
where Harris' body was found. The print was discovered on the
inside of the door at the top. Randle's fingerprint was lifted
from the inside of the door to the bathroom stall where Joerene
Pequeno's body was found.
Over thirteen hundred dollars
was missing from the race center's safe and petty cash drawers.
Wilkerson's last paycheck was also missing. His time card had
been signed and was found laying on the manager's desk.
The knife that was taken from
Phillips' home was discovered in an area near the racetrack. The
knife was broken into pieces.
Late that evening on the day
that the bodies were discovered, Ransom was with Phillips. The
two were watching television. A news story about the murders was
broadcast. Upon seeing the story, Ransom was visibly upset. At
around seven o'clock that evening, Ransom told Phillips that he
was going to Wharton, Texas.
The last time Phillips saw
Ransom, he was wearing a high school class ring and a watch both
of which were identical to the ones that Arnold Pequeno had been
wearing before his murder. Phillips had never seen Ransom wear
the ring or the watch before that day. Also, the calculator that
was in the satchel along with the satchel itself were identified
at trial as belonging to Arnold Pequeno.
950 F.2d 1054
James A. COLLINS, Director, Texas Department of Criminal
Justice, Institutional Division, Respondent-Appellee.
United States Court of Appeals,
Jan. 6, 1992.
Appeal from the United States District Court for
the Southern District of Texas.
Before CLARK, Chief Judge, KING and DAVIS, Circuit
CLARK, Chief Judge:
Richard James Wilkerson
appeals the district court's denial of his petition for writ of
habeas corpus. We affirm the district court's judgment and
vacate the stay of execution.
The recitation of facts is
taken in large part from the district court's opinion. Wilkerson
v. Collins, No. H-91-2252 (S.D.Tex. August 14, 1991) (Memorandum
On June 30, 1983, Wilkerson,
together with James Randle and Kenneth Ransom, entered the
Malibu Grand Prix Raceway (Malibu) after closing time. Wilkerson,
who recently had been fired from the Malibu, demanded his final
paycheck from the shift supervisor, Anil Varughese. Varughese
accompanied Wilkerson to the manager's office while Randle and
Ransom remained outside with three Malibu employees. Upon
entering the office Wilkerson struck Varughese and, threatening
him with a knife, directed him to open the safe. After Varughese
complied, Wilkerson killed him with the knife, stabbing him
approximately forty-two times. Randle and Ransom killed the
other three Malibu employees. Wilkerson, Randle and Ransom left
the Malibu with money taken from the safe and Wilkerson's final
payroll check, which he eventually cashed.
In July 1983, Wilkerson was
indicted for the offense of capital murder. On January 6, 1984,
following trial, a verdict was returned finding Wilkerson guilty
of the capital offense. The following day the jury returned
affirmative answers to the special issues submitted under the
Texas death penalty statute, Texas Code of Criminal Procedure
article 37.071. Pursuant to the jury's findings and the Texas
statute, Wilkerson was sentenced to death.
The Texas Court of Criminal
Appeals affirmed Wilkerson's conviction and death sentence and
denied rehearing. Wilkerson v. State, 726 S.W.2d 542 (Tex.Cr.App.1986).
Certiorari was denied by the United States Supreme Court.
Wilkerson v. Texas, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779
On August 13, 1987, Wilkerson
filed his first application for a post-conviction writ of habeas
corpus in state court. The application raised, among other
things, a claim of ineffective assistance of trial counsel and a
constitutional challenge to the state's use of peremptory jury
challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.
1712, 90 L.Ed.2d 69 (1986).
The state trial court, without
conducting a hearing, recommended that relief be denied, and
forwarded the application to the Texas Court of Criminal Appeals.
That court remanded the case for an evidentiary hearing on the
The trial court conducted an
evidentiary hearing and concluded that Wilkerson had made a
prima facie showing of purposeful discrimination by the
prosecution. However, the court ultimately concluded that
Wilkerson had not proven a Batson claim, based on the
prosecutor's race-neutral explanations for its peremptory
challenges to the black venirepersons. The Texas Court of
Criminal Appeals denied Wilkerson habeas corpus relief. Ex Parte
Wilkerson, No. 17,443-02 (Tex.Cr.App. May 15, 1989). The United
States Supreme Court denied certiorari. Wilkerson v. Texas, 493
U.S. 924, 110 S.Ct. 292, 107 L.Ed.2d 272 (1989). Two justices
dissented, stating that a mixed-motives case was established and
that, under Batson, race should not play any part in a
prosecutor's use of peremptory challenges. Wilkerson, 110 S.Ct.
at 293-95 (Marshall, J., dissenting; joined by Brennan, J.).
In July 1989, Wilkerson filed
a pro se motion seeking an emergency stay from the United States
District Court. He also requested appointment of counsel. The
district court granted the stay and appointed counsel. Wilkerson
filed an amended petition. The district court granted the
state's motion for summary judgment. Wilkerson appealed. This
court remanded the action to the district court with directions
to dismiss without prejudice because Wilkerson failed to exhaust
all habeas corpus claims in state court.
After further state court
proceedings, Wilkerson's motion for stay of execution and for an
evidentiary hearing was denied by the Texas Court of Criminal
Appeals. Wilkerson again petitioned the district court for
habeas corpus relief. The state moved for summary judgment. The
district court found that Wilkerson had exhausted state
remedies, granted the state's motion for summary judgment, and
denied Wilkerson's application for a stay of execution.
Wilkerson noticed the present
appeal. We granted a stay of execution to enable appellate
review and heard oral argument by counsel.
Wilkerson asserts here that he
is entitled to relief based on claims related to the operation
of the Texas capital punishment sentencing statute, the
prosecutor's peremptory challenges of jurors and ineffective
assistance of counsel.
A. Jury Discretion.
Wilkerson makes an Eighth
Amendment challenge to the procedures which Texas imposed on the
sentencing phase of his trial. He claims the jury could not give
full consideration to his evidence in deciding whether to impose
the death penalty. He urges that in his case, Penry v. Lynaugh,
492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989),
establishes that the statute precluded jury consideration of the
mitigating value of his young age and his cooperation with
authorities. More basically, his attack is that the jury could
not exercise the sort of guided discretion which the
Wilkerson's sentencing was
conducted under a statute which provided, in part:
(a) Upon a finding that the
defendant is guilty of a capital offense, the court shall
conduct a separate sentencing proceeding to determine whether
the defendant shall be sentenced to death or life imprisonment....
[E]vidence may be presented as to any matter that the court
deems relevant to sentence.... The state and the defendant or
his counsel shall be permitted to present argument for or
against sentence of death.
(b) On conclusion of the
presentation of the evidence, the court shall submit the
following three issues to the jury:
(1) whether the conduct of the
defendant that caused the death of the deceased was committed
deliberately and with the reasonable expectation that the death
of the deceased or another would result;
(2) whether there is a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society;
(3) if raised by the evidence,
whether the conduct of the defendant in killing the deceased was
unreasonable in response to the provocation, if any, by the
(c) The state must prove each
issue submitted beyond a reasonable doubt, and the jury shall
return a special verdict of "yes" or "no" on each issue
(d) The court shall charge the
(1) it may not answer any
issue "yes" unless it agrees unanimously; and
(2) it may not answer any
issue "no" unless 10 or more jurors agree.
(e) If the jury returns an
affirmative finding on each issue submitted under this article,
the court shall sentence the defendant to death. If the jury
returns a negative finding on or is unable to answer any issue
submitted under this article, the court shall sentence the
defendant to confinement in the Texas Department of Corrections
for life. The court, the attorney for the state or the attorney
for the defendant may not inform a juror or a prospective juror
of the effect of failure of the jury to agree on an Issue
submitted under this article.
TEX.CODE CRIM.PROC.ANN. art.
The court's punishment phase
charge to the jury was, in pertinent part, as follows:
The mandatory punishment for
capital murder is death or confinement in the penitentiary for
The burden of proof in this
phase of the trial still rests upon the State and never shifts
to the defendant. Each Special Issue submitted must be proved by
the State beyond a reasonable doubt; therefore, before any issue
may be answered "Yes", all jurors must be convinced by the
evidence beyond a reasonable doubt that the answer to such issue
should be "Yes." If the jury unanimously determines (and only if
such determination is unanimous) that the State has proved an
issue beyond a reasonable doubt, then the Foreman will so record
the Jury's answer to such issue by signing his name to the
finding reflecting such answer on the form provided for that
You are further instructed
that if any juror, after considering the evidence and these
instructions, has a reasonable doubt as to whether the answer to
a Special Issue should be answered "Yes", then such juror should
vote "No" to that Special Issue in the Jury's deliberations.
If ten (10) jurors or more
vote "No" as to any Special Issue, then the answer of the Jury
shall be "No" to that issue, and the Foreman will so record the
Jury's answer by signing his name to the finding reflecting such
answer on the form provided for that purpose.
If there is any Special Issue
on which the vote of the jurors is not unanimously "Yes" or not
at least ten (10) in favor of an answer of "No", then there
shall be no answer for that Special Issue, and the Foreman
should not sign his name to any answer form for that Special
You are further instructed
that if the jury returns an affirmative finding on each of the
issues submitted, this court shall sentence the defendant to
death. If the jury returns a negative finding on any issue
submitted, the court shall sentence the defendant to confinement
in the Texas Department of Corrections for life.
No objections were made to the
In Furman v. Georgia, 408 U.S.
238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Court held that
the death penalty could not be constitutionally imposed unless
the discretion of the sentencer is "suitably directed and
limited so as to minimize the risk of wholly arbitrary and
capricious action." Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct.
2909, 2932, 49 L.Ed.2d 859 (1976). "[A]ccurate sentencing
information is an indispensable prerequisite to a reasoned
determination of whether a defendant shall live or die by a jury
of people who may never before have made a sentencing decision."
Id. at 190, 96 S.Ct. at 2933. When we cannot say that an effort
to "minimize the jury's sense of responsibility for determining
the appropriateness of death.... had no effect on the sentencing
decision, that decision does not meet the standard of
reliability that the Eighth Amendment requires." Caldwell v.
Mississippi, 472 U.S. 320, 341, 105 S.Ct. 2633, 2646, 86 L.Ed.2d
The jury's exercise of its
sentencing discretion must be channeled "by 'clear and objective
standards' that provide 'specific and detailed guidance' and
that 'make rationally reviewable the process for imposing a
sentence of death'." Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct.
2320, 2331, 101 L.Ed.2d 155 (1988) (quoting Godfrey v. Georgia,
446 U.S. 420, 428, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398
(1980) (plurality opinion)). While the jury must be allowed to
make an informed decision, this does not require that the jury
be informed of every detail in exercising sentencing discretion.
Cf. Sonnier v. Maggio, 720 F.2d 401, 408 (5th Cir.1983) (Rejecting
the defendant's contention that the court must explicitly
instruct the jury on the weight to be accorded aggravating and
The Texas special issues have
previously been recognized, in other contexts, as sufficient
guides to jury discretion. See Franklin, 108 S.Ct. at 2332;
Jurek v. Texas, 428 U.S. 262, 275-76, 96 S.Ct. 2950, 2957-58, 49
L.Ed.2d 929 (1976). We find them so in the present case also.
B. Penry Claim.
Wilkerson alleges that the
statute did not allow the jury to consider or give full effect
to his mitigating evidence of youth and acceptance of
responsibility. Texas replies that Wilkerson's claim is
procedurally barred and, if not barred, the Texas special issues
provided the jury with a constitutionally sufficient vehicle to
give mitigating effect to Wilkerson's evidence.
The sentencing authority must
be allowed to consider mitigating factors before sentencing a
defendant to death. Jurek v. Texas, 428 U.S. 262, 271, 96 S.Ct.
2950, 2956, 49 L.Ed.2d 929 (1976). A state's statute must allow
for "particularized considerationf relevant aspects of the
character and record" of the defendant. Woodson v. North
Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990-91, 49 L.Ed.2d
944 (1976). To uphold Wilkerson's sentence, his jury must have
been able to consider and give effect to any mitigating evidence
relevant to the background or character of the defendant and
circumstances of the crime. Penry v. Lynaugh, 492 U.S. 302, 109
S.Ct. 2934, 2945-47, 106 L.Ed.2d 256 (1989).
The state argues that
Wilkerson's Penry claim is not properly before the court because
he failed to request special instructions as to consideration of
mitigating evidence. Wilkerson replies that "Penry itself gives
little support to this construction," quoting Mayo v. Lynaugh,
893 F.2d 683, 689 (5th Cir.1990). See Id. at 689-90. The state
also points out that whether a special instruction request is a
federal prerequisite for preservation of a Penry claim is before
the court en banc in Graham v. Collins, 903 F.2d 1014 (5th
Cir.1990) (granting rehearing en banc).
The answer to these
contentions has already been given. The highest court in Texas
held that failure to object does not waive the petitioner's
right to assert a Penry claim. Selvage v. Collins, 816 S.W.2d
390, 391-92 (Tex.Cr.App.1991). Wilkerson's failure to object or
request special instructions does not bar his claim. Cf. Mayo v.
Lynaugh, 893 F.2d 683, 689-90 (5th Cir.1990).
Wilkerson contends his youth
and his cooperation or acceptance of responsibility come within
Penry 's criticism of the Texas sentencing scheme and that the
jury was unable to give them full mitigating consideration. The
state argues that Wilkerson's sentence should not be set aside
unless there is a reasonable probability that the jury would
have interpreted its instructions to preclude effective
consideration of the mitigating force of the evidence. Boyde v.
California, 494 U.S. 370, 110 S.Ct. 1190, 1198-99 & n. 5, 108
L.Ed.2d 316 (1990). The state contends the second special issue,
future dangerousness, allowed the jury to give such
consideration to youth. It further contends cooperation and
acceptance of responsibility could be considered under both the
first and second special issues.
Whether "youth", in general,
may be given full consideration under the Texas scheme has
recently been decided in this circuit. In Graham v. Collins, 950
F.2d 1009 (5th Cir.1992) (en banc ), the court held that the
Texas scheme allowed full consideration of youth as a mitigating
Wilkerson says his youth is
more than a chronological fact. Age represents "a time and
condition of life when a person may be most susceptible to
influence and to psychological damage ... [and] lack[ing] the
experience, perspective, and judgment expected of adults."
Eddings v. Oklahoma, 455 U.S. 104, 115-16, 102 S.Ct. 869, 877,
71 L.Ed.2d 1 (1982). Youth, he urges, involves not only a
measured span of time, but also the "qualities of youth" or
"mental age." Wilkerson alleges that he has impairments of a
long-standing nature which affect his mental age and the quality
of his youth.
When Penry v. Lynaugh, 832
F.2d 915, 925-26 (5th Cir.1987), aff'd in part, rev'd in part,
and remanded, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256
(1989), was remanded to this court, we concluded, 882 F.2d 141
(5th Cir.1989), that the Texas special issues did not permit the
jury to consider the mitigating effect of evidence concerning
the defendant's retardation, arrested emotional development, and
troubled youth. Penry was shown to have limited mental ability
at a competency hearing before trial. There was testimony at
that hearing that Penry was beaten as a child and behaved
strangely as both a child and a teenager. At the guilt/innocence
phase of his trial, the three testifying psychiatrists disagreed
as to the degree and cause of Penry's mental limitations. But,
all agreed that Penry had mental limitations and that his
problems manifested themselves, among other ways, in an
inability to learn from his mistakes. 832 F.2d at 917. Penry was
over 20 years old at the time of the crime. 832 F.2d at 925 n.
Wilkerson claims that his
habeas corpus petition demonstrates that he suffers from a
serious, long-standing mental impairment that was first
diagnosed when he was seven years old. He alleges that a recent
neuropsychological evaluation confirms that he is borderline
mentally retarded and suffers from serious brain dysfunction and
cognitive impairments, including severely impaired auditory
processing and that he is functionally illiterate. Wilkerson
argues that this recent evaluation is consistent with the
results of a much earlier psychological evaluation performed
when he was in the first grade. The state replies that
Wilkerson's school report does not show him to be mentally
retarded though it discloses his level of intelligence is low.
The state points out that Wilkerson's strongest scores were in
the test areas dealing with day-to-day problems.
More significant than the
degree of difference in the mental and emotional state of the
two defendants is the fact that the serious physical and
psychological deficits asserted by Penry were established in the
record. Here, Wilkerson's much more attenuated problems must be
the subject of conjecture built upon a school report prepared
when Wilkerson was in the first grade. No psychiatric testimony
was offered at trial, as was done in Penry. Instead, Wilkerson
refers to a recent psychological evaluation which he first
tendered in support of his motion for a hearing in the state
habeas corpus proceedings.
In De Luna v. Lynaugh, 890
F.2d 720, 722 (5th Cir.1989), we affirmed the denial of habeas
corpus relief to a defendant who, at trial, had offered no
evidence arguably within Penry. The defendant, De Luna, 21 years
old at the time of the crime, made no claim of childhood abuse
or substance use which significantly reduced his mental
capacities nor did he offer evidence of mental retardation. We
apply that same reasoning here. A defendant cannot claim factors
exist in his case which are not covered by the Texas special
issues unless he has offered proof of those factors at trial. To
demonstrate that the trial court committed constitutional error
in conducting his trial a defendant must afford that court the
right to consider and rule on such proof.
In argument to the jury at the
punishment phase, Wilkerson's trial counsel urged, without
objection, his chronological age of nineteen years as a reason
not to impose a death sentence. Obviously, counsel thought
Wilkerson's age could receive full consideration under the Texas
special issues. Nothing in the record indicates the jury failed
to give due consideration to argument of counsel.
In Ex Parte Jewel Richard
McGee, Jr., 817 S.W.2d 77 (Tex.Cr.App.1991), Texas rejected a
claim that a 19 year old defendant's relative youth could not be
considered by the jury under the future dangerousness special
issue. See also Lackey v. State, 819 S.W.2d 111 (Tex.Cr.App.1991)
It is not necessary for us to
rule on whether the second special issue permits consideration
of Wilkerson's "mental age" claim. We hold it was too
conjectural to establish a federal constitutional basis for
habeas corpus relief.
b. Acceptance of
Wilkerson also argues that the
jury was precluded from giving full mitigating effect to his
acceptance of responsibility for participation in the offense.
Shortly after Wilkerson was arrested he gave a statement to
police officers admitting his involvement in the robbery and the
murder. He directed and accompanied the police to the locations
where they found evidence of the crime. Wilkerson did not
bargain with officers or request anything in return. The
officers who took his statement believed that he was forthright
and honest. Wilkerson contends that such acceptance of
responsibility for one's criminal conduct and cooperation with
police historically have been treated as character evidence
which are entitled to consideration in mitigation of punishment.
He argues that this mitigating relationship to criminal
sentencing decisions is demonstrated by the United States
Sentencing Guidelines, which provide for a reduction in the
guideline offense level when the defendant demonstrates
acceptance of responsibility for his criminal conduct. United
States Sentencing Commission, Guidelines Manual, § 3E1.1 (1990).
Wilkerson points out that the
jury was limited by the punishment stage instructions to giving
yes or no answers to the special issues. This procedure confined
the jury's role to determining whether Wilkerson's conduct was
deliberate and whether there was a probability that in the
future he would commit "criminal acts of violence that would
constitute a continuing threat to society." Without special
instructions, he argues, the jury was precluded from giving full
mitigating effect to his acceptance of responsibility for his
participation in the offense within the scope of the first
special issue. Rather, without such instructions, he says the
jury was bound to weigh his evidence of cooperation heavily in
favor of an affirmative answer to the issue of deliberations.
Wilkerson contends that the
second special issue also precluded the jury from considering
and giving full effect to the mitigating effect of his evidence
of cooperation. He argues that the jury reasonably could have
concluded because he cooperated he was less culpable, less
blameworthy and, when considered together with his age, had a
sufficient possibility for rehabilitation to warrant a life
sentence. At the same time, he argues, the jury could have
concluded that, despite his potential for rehabilitation, the
evidence required an affirmative answer to the second special
Wilkerson calls to our
attention that the jury specifically expressed confusion and
uncertainty about the meaning of the second special issue. In a
handwritten note, the jury foreman asked the court, "What is the
effect if one of the Special Issues is not answered?" and "How
is the word 'probability' in Special Issue No. 2 defined?" The
trial court responded that it could not answer the first
question under the law and could not define the word "probability."
Cf. Jurek v. Texas, 428 U.S. 262, 269 n. 5, 96 S.Ct. 2950, 2955
n. 5, 49 L.Ed.2d 929 (1976). Wilkerson argues that this
expression of jury confusion and uncertainty confirms that the
instructions were constitutionally unacceptable. He does not,
however, challenge the court's refusal to answer the question
about the result of a failure to answer.
The district court held that
Wilkerson offered no authority for the proposition that his
acceptance of responsibility or cooperation with the authorities
were mitigating circumstances which would require the court to
instruct the jury to give such effect to this evidence. The
court refused to read Penry to encompass this type of evidence.
It held that a defendant's acceptance of responsibility and
cooperation with authorities are factors which this jury could
consider in mitigation of punishment. We agree.
Wilkerson's trial counsel made
a full and uninterrupted argument to the jury that Wilkerson's
acceptance of responsibility could and should be considered
under the special issues. The jury was free to accept this
argument under the instructions of the court. Further
instruction was not required.
C. Batson Claim.
Wilkerson alleges that the
jury selection process was so tainted that he is entitled to a
new trial by properly selected jurors. Wilkerson was convicted
and sentenced by an all-white jury. He claims that under Batson
v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),
racial considerations formed an impermissible part in the
prosecutor's use of peremptory challenges to strike two
potential jurors who were black. The state argues that federal
habeas corpus review of Wilkerson's Batson claim is barred
because Wilkerson failed to timely object and that Wilkerson's
claim is without merit.
Wilkerson was convicted and
sentenced in 1984. Batson was decided in 1986. In 1987 the Court
held that Batson is to be "applied retroactively to all cases,
state or federal, pending on direct review or not yet final."
Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93
L.Ed.2d 649 (1987). The state argues that, notwithstanding the
retroactivity of Batson, Wilkerson forfeited review as a matter
of law by his failure to lodge a contemporaneous objection to
the prosecutor's use of peremptory challenges. A contemporaneous
objection would have provoked court consideration of this
alleged misconduct at a point before trial where it could have
been readily corrected. Wilkerson responds that no court has
accepted the state's procedural default argument. Wilkerson
further contends that he obviously has not waived the right to
review because the habeas corpus trial court later considered
the Batson claims on the merits.
The district court noted, but
did not further address, the state's argument that Wilkerson's
Batson claim is procedurally barred because Wilkerson's trial
counsel failed to make a contemporaneous objection. Rather, the
court discussed the merits of the claim and deferred to the
state trial court's determination that the challenges were
exercised for racially neutral reasons.
Batson 's retroactive effect
does not control the issue here. "[T]he evidentiary rule
established in Batson does not enter the analysis of the
defendant's equal protection claim unless a timely objection is
made to the prosecutor's use of his peremptory challenges."
Thomas v. Moore, 866 F.2d 803, 804 (5th Cir.1989), cert. denied,
493 U.S. 840, 110 S.Ct. 124, 107 L.Ed.2d 85 (1989). Wilkerson's
failure to timely object at trial is a constitutional bar to his
In other contexts, we have
held that "if the state courts reached the merits rather than
relying on the procedural bar, we are also free to do so." Tasco
v. Butler, 835 F.2d 1120, 1122 (5th Cir.1988). However, we have
declined to apply that holding to Batson claims. "The nature of
the claim requires that it be raised when the strikes are made."
Jones v. Butler, 864 F.2d 348, 369 (5th Cir.1988) (on petition
for rehearing). "The inquiry is essentially one of fact,
dependent on credibility, and the passage of time would diminish
the prosecutor's reconstruction of his reasons for striking a
venireperson and the judge's evaluation of the juror." Mayo v.
Lynaugh, 893 F.2d 683, 689 (5th Cir.) (Citing Jones, 864 F.2d at
369-70), modified, 920 F.2d 251 (5th Cir.1990). "Equity does not
require that those who did not object benefit from Batson 's new
evidentiary standard." Jones, 864 F.2d at 370. Since review of
Wilkerson's Batson claim is barred here, we will not address the
district court's ruling on the merits of his claim.
D. Counsel Claim.
Wilkerson contends that the
district court erred in denying his ineffective assistance of
counsel claim based on the presumed correctness of state court
findings under 28 U.S.C. § 2254(d). He asserts he was entitled
to a federal evidentiary hearing. To receive such a hearing,
Wilkerson must allege facts that, if proved, would entitle him
to relief. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745,
756-57, 9 L.Ed.2d 770 (1963); Wilson v. Butler, 825 F.2d 879,
880 (5th Cir.1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1059,
98 L.Ed.2d 1021 (1988).
We substantially adopt the
district court's analysis of Wilkerson's counsel claims.
Wilkerson v. Collins, No. H-91-2252 (S.D.Tex. August 14, 1991) (Memorandum
Ineffective assistance of
counsel claims are reviewed for federal constitutional error
under the two-prong standard of Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Burger v.
Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). To
satisfy this standard a criminal defendant must establish:
First ... that counsel's
performance was deficient. This requires showing that counsel
made errors so serious that counsel was not functioning as the "counsel"
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced
the defense. This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant makes both showings,
it cannot be said that the conviction or death sentence resulted
from a breakdown in the adversarial process that renders the
Strickland v. Washington, 466
U.S. at 687, 104 S.Ct. at 2064.
"Judicial scrutiny of
counsel's performance must be highly deferential." Id. at 689,
104 S.Ct. at 2065. Every effort must be made to eliminate "the
distorting effect of hindsight." Id. Courts "must indulge a
strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance" and a defendant
must overcome the presumption that the "challenged action 'might
be considered sound strategy.' " Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83
To demonstrate prejudice the "defendant
must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Id. 466 U.S. at 694, 104 S.Ct. at
2068. When a defendant challenges his death sentence, the
question is "whether there is a reasonable probability that,
absent the errors, the sentencer--including the appellate court,
to the extent it independently reweighs the evidence--would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death." Id. at 695, 104 S.Ct. at
2. Deficient performance?
a. Reasonable investigation.
Wilkerson asserts that trial
counsel were ineffective for failing to conduct a reasonable
investigation to determine what defenses were available.
Specifically, he argues that trial counsel should have fully
investigated his mental condition, and sought an expert
evaluation of his mental and psychological state.
Strategic choices of trial
counsel are granted a heavy measure of deference in a subsequent
habeas corpus attack. Strickland, at 690-91, 104 S.Ct. at 2066.
In the present case, the trial court found as a factual matter
that "counsel conducted reasonable inquiry into the applicant's
psychological history and, based upon information received as
well as observations of the applicant, made a decision to forego
further inquiry into matters of sanity, competency, or
psychological status." Ex Parte Wilkerson, No. 383749-B (Harris
County, Tex. August 12, 1991). The record reflects that trial
counsel retained an investigator to explore Wilkerson's
background and mental condition. Counsel talked with and
observed Wilkerson. He interviewed Wilkerson's family. This
investigation did not lead counsel to believe that Wilkerson's
mental state would support a defense at the guilt-innocence
phase or produce different evidence for mitigation of punishment.
When viewed under the deferential Strickland standard, these
procedures and this conclusion do not demonstrate that the
alleged limits of trial counsel's investigation constituted
unreasonable assistance of counsel for Wilkerson's defense.
b. Development of
Wilkerson asserts that he was
denied effective assistance of counsel because trial counsel
failed to investigate factors in his background and mental
competency which would have produced mitigating evidence.
Wilkerson argues that, had trial counsel conducted an
independent background investigation, they would have discovered
substantial mitigating evidence.
The mitigating evidence
Wilkerson now asserts was available consists of: school records
which reveal that a psychologist or psychiatrist interviewed
Wilkerson as a child and found he had mental limitations; his
alleged present mental impairment; his alleged deprived family
background; and, his asserted past good behavior and lack of
criminal record. Because his attorneys at trial failed to
discover or develop this mitigating evidence, Wilkerson claims
he is entitled to relief.
These allegations are not
sufficient, however, to demonstrate that he was denied the
effective assistance of counsel. We must strongly presume that
trial counsel rendered adequate assistance and that the
challenged conduct was the product of reasoned trial strategy.
Strickland at 690, 104 S.Ct. at 2066. Wilkerson's assertions do
not counteract Strickland 's presumption. Although no mitigating
evidence or witnesses were presented by defense counsel at the
punishment phase, failure to present mitigating evidence "if
based on an informed and reasoned practical judgment, is well
within the range of practical choices not to be second-guessed."
Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir.1985).
Wilkerson's trial counsel
interviewed Wilkerson, his mother, and other relatives. Neither
Wilkerson nor his relatives were able to supply the names of
potential defense witnesses. Investigation did not reveal reason
to suspect that Wilkerson's mental capacity was in any fashion
impaired. "[W]hen a defendant has given counsel reason to
believe that pursuing certain investigations would be fruitless
or even harmful, counsel's failure to pursue those
investigations may not later be challenged as unreasonable."
Burger v. Kemp, 483 U.S. 776, 795, 107 S.Ct. 3114, 3126, 97 L.Ed.2d
638 (1987) (quoting Strickland v. Washington, 466 U.S. at 691,
104 S.Ct. at 2066). Wilkerson does not here assert the failure
of trial counsel to object to the prosecutor's peremptory
challenges as ineffective assistance of counsel. Wilkerson has
failed to demonstrate that counsel's performance was defective
within the meaning of Strickland.
Wilkerson claims that there
exists a reasonable probability that, but for the failure of
trial counsel to investigate, the result of the proceeding would
have been different. Under Strickland, however, a petitioner
cannot "simply allege but must 'affirmatively prove' prejudice."
Celestine v. Blackburn, 750 F.2d 353, 356 (5th Cir.) (citation
omitted), cert. denied, 472 U.S. 1022, 105 S.Ct. 3490, 87 L.Ed.2d
624 (1985). Assuming arguendo that Wilkerson's counsel's
performance was deficient, Wilkerson has not shown that
presentation of the allegedly mitigating evidence would have
affected the outcome of his trial. Wilkerson has failed to
establish prejudice. He has failed to show the existence of
evidence of sufficient quality and force to raise a reasonable
probability that, had it been presented to the jury, a life
sentence would have resulted. When either prong of Strickland,
deficient performance or prejudice, is not proved the petitioner
is not entitled to relief. Strickland, 466 U.S. at 687, 104 S.Ct.
Wilkerson asserts that the
Texas statute so chilled counsel that he was deterred from
developing or presenting mitigating evidence. Alternatively,
Wilkerson argues that trial counsel did not make strategic
decision not to pursue or present such evidence, but, rather,
counsel had no idea that mitigating evidence existed. These
contentions are also without merit. Trial counsel argued to the
jury Wilkerson's age and his acceptance of responsibility as if
they could be considered within the Texas special issues. Cf.
Russell v. Lynaugh, 892 F.2d 1205, 1215 (5th Cir.1989). No
chilling effect was shown or could be implied.
The judgment of the district
court is AFFIRMED. The stay of execution is VACATED.
KING, Circuit Judge, specially
I concur in the judgment and I
join in the opinion except for part III.B.2. As to that part, I
believe we are controlled by the court's recent decision in
Graham v. Collins, 950 F.2d 1009 (5th Cir.1992), with which I
continue to respectfully disagree.