something about he wished his whole life would have been
spent as Islamic.)
Convict: Walter Key Williams, 32
Victim: Daniel Liepold, 19 (Convenience Store Clerk for Circle K)
Date of crime: February 10, 1981
Date of conviction: 1983
City of crime: San Antonio, Texas
Date of execution: October 5, 1994
Walter Key Williams grew up in San Antonio’s poor East Side. His
childhood neighborhood has been referred to as one filled with guns,
gangs, and drugs.
The facts of Williams’s crime are apparent. From
his 1994 appeals case, he and a friend decided to go out one night.
It was Feb. 9, 1981. Theodore Edwards, later named as an accomplice,
accompanied Williams to his home. They took a .38-caliber gun
belonging to Williams’s mother. After leaving the house, they walked
to a nearby gas station. That was where the first of two murders
that night began.
Williams waited for his friend, while Edwards
went to the service window. Edwards fatally shot the gas station
attendant, reached in through the window, and grabbed some money.
After they fled from the scene, they split the cash. According to
one of Williams’s lawyers, that was when Edwards turned to Williams
and said now that he’d killed someone, it was Williams’s turn.
Later that same evening, the pair went for a car
ride. At approximately 2 a.m. Daniel Liepold, a local convenience
store clerk, was visiting with a friend. His friend had to run a
quick errand, but promised to return shortly. When the friend came
back a short time later, he couldn’t locate Liepold.
When a San Antonio Police Department officer
arrived on the scene and discovered Liepold lying in a pool of blood.
After police arrested Edwards, who was found wondering around the
store property after Liepold’s murder, they were led to Williams’s
residence. Upon arriving, Lucian Williams, Williams’s father,
allowed the officers to look for his son. The ironic twist to the
arrest and crime was that when police officers arrested Williams,
they found the murder weapon lying next to the only birthday card
Williams received on his birthday. The card was from Liepold.
Roy W. Thomas, a retired San Antonio Police
detective, was the arresting officer. He remembers that the facts
and evidence in Williams’s case were strong. “This was a good, solid
case…we had good, solid evidence, eyewitness testimony, and even
some of Williams’s family members were willing to testify against
him,” he said.
But, how weighty is one’s environment when it
comes down to the facts in a capital punishment trial? For the
attorneys that argued Williams’s appeals: they believed it was
extremely important. Joan M. Cheever, an attorney and journalist,
along with Robert B. Hirschhorn, an attorney hired to handle
Williams’s appeals, tried to appeal the decision on thirteen grounds.
According to Cheever, the primary grounds for
appeal was going to be the ineffective assistance of counsel. This
was a referral back to his court-appointed attorneys: Allan R. Manka
and Michael Callahan. Manka, currently in private practice in San
Antonio, testified at one of the three evidentiary hearings about
the strategy he and his partner used during the trial. Manka later
gave his opinion of the trial. “I don’t think he (Williams) got a
fair trial,” he said. “Now, even the Supreme Court thought I did a
good job. But the job of an attorney is to make sure the jury
representatives selected are favorable to your case.”
He elaborated about the selection process of the
jury and how difficult the trial judge made the selection process.
“There were time restrictions placed on our ability to make good
decisions on jurors. The judge had an egg timer and by the end of 15
minutes…the damage was already done,” Manka said.
He explained further that they did have an
opportunity for a lesser charge. “Well, there was a plea bargain
attempt,” he said. “He (Williams) refused.” Manka pointed out that
Williams’s case was the only death penalty case he ever lost.
16 F.3d 626
Walter Key Williams, Petitioner-Appellant,
James A. Collins, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
Docket number: 93-8499
Federal Circuits, 5th Cir.
March 7, 1994
Appeal from the United States District Court for
the Western District of Texas.
Before DAVIS, JONES, and DUHE, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant Walter Williams was convicted of capital
murder in Bexar County, Texas and sentenced to death. The Texas Court
of Criminal Appeals affirmed his conviction. See Williams v. State,
668 S.W.2d 692 (Tex.Crim.App.1983), cert. denied,
466 U.S. 954 , 104 S.Ct. 2161, 80 L.Ed.2d 545 (1984). In
1986, Williams filed an application for federal habeas relief.
Williams's case was initially referred by the district court to
Magistrate Judge Jamie Boyd. Because of Boyd's impending retirement
from the bench, the case was subsequently referred to Magistrate Judge
Robert O'Connor. Magistrate Judge O'Connor recommended denying relief;
his recommendations were adopted by order of then-District Judge
Emilio Garza. Williams filed a motion to alter or amend judgment based
upon then-recent decisions by the Supreme Court and the Fifth Circuit
which mandated a re-examination of the district court's decision. Upon
reconsideration, both the magistrate judge and District Judge Edward
Prado adhered to the earlier decision, and a certificate of probable
cause was issued. Williams now appeals.
On the evening of February 9, 1981, Appellant
Walter Williams and a friend, Theodore Edwards, went to the home of
Williams's parents, where Williams was living at the time. While there,
the two men took a .38 revolver belonging to Williams's mother and
walked to a nearby gas station. Williams stayed in the parking lot as
Edwards proceeded to the store service window, shot twice at the gas
station attendant and killed him, reached through the window, and took
the money. After Edwards and Williams left the scene, they split the
money. At approximately 9:00 p.m. that same evening, the police
responded to a call reporting a robbery in progress. Upon their
arrival at the gas station, the police discovered the body of the
Later that same night, Williams and Edwards went
for a car ride. While driving around, the two men discussed the fact
that they were both short of cash, so they decided to rob a nearby
Circle K convenience store at which Williams had previously worked.
When they arrived at the Circle K, Williams placed the revolver in the
waistband of his trousers and entered the store with Edwards. Williams
knew Danny Liepold, the clerk who was working that evening, because
Williams had worked with Liepold in that same store before. Williams
and Edwards picked up food items and took positions at opposite sides
of the counter. When Liepold turned his back to Williams in order to
wait on Edwards, Williams fatally shot Liepold in the back. After
Liepold fell to the floor, Edwards and Williams went behind the
counter to open the two cash registers located in the store. Unable to
open the register that he was working on, Williams ran to the car,
leaving Edwards inside the store. He yelled at Edwards from the car
that they should leave. At that point, Williams saw someone drive by.
Becoming scared, he left the scene without Edwards. Williams went home
and went to bed. He had been asleep for a half hour before he was
awakened by the police.
At approximately 2:00 a.m. on February 10, 1981,
Roberto Gutierrez, a friend of Danny Liepold and fellow employee of
the Circle K who worked at a different location, drove to the store to
talk to Danny. After Gutierrez had visited with Danny at the Circle K,
he left to run a quick errand, planning to return shortly. Upon
returning approximately 20 minutes later, Gutierrez noticed a car
suspiciously parked parallel to the front of the store and two men
standing inside the store trying to open the cash registers. Gutierrez
recognized one of the men as Walter, an employee of the store.
Concerned for Danny, whom he did not see, Gutierrez slowly drove by
the store once and turned around to look into the store a second time.
Upon driving by the second time, he noticed that one of the men was in
the car pulling away, leaving behind the other man who was walking
toward the car. Gutierrez followed the car for about 20 minutes and
managed to get a description and take down its license plate number.
As Police Officer Thomas Estrada drove toward the
Circle K at approximately 2:30 a.m. to make a routine check, he
noticed a man walking away from the store. Unable to see the clerk
inside the store, Officer Estrada parked his car and entered the
store. He discovered Liepold lying beneath the counter in a pool of
blood. Estrada immediately notified the dispatcher and described the
man he had seen walking away just moments before. Gutierrez then
returned to the store with a description of the car and its license
plate number. Gutierrez told the police that he saw two men and
recognized one of the men as an attendant named Walter who worked at
that store on weekends.
Shortly thereafter, Police Officer Heim arrested
Ted Edwards about a mile away. Following his arrest, Officer Estrada
and Gutierrez positively identified Edwards as the man they had seen
earlier at the store. After being advised of his rights, Edwards
denied having had anything to do with the robbery and shooting.
However, when it was discovered that he had a package of cigarettes
which, based on the stamp on the bottom of the package, came from that
Circle K, Edwards admitted his involvement in the shooting and robbery.
Officer Roy Thomas arrived at the scene at
approximately 3:30 a.m. and read Edwards his rights again. Edwards
identified Williams as the other person involved in the shooting and
told Officer Thomas where Williams lived. Relying on Edwards's
directions, several officers drove to Williams's house, where they
discovered a car matching the description and license plate number
provided by Gutierrez. Lucian Williams, Williams's father, answered
the door and, after having the situation explained to him, let the
officers in to look for his son.
As the officers entered Williams's bedroom, they
saw Williams asleep on the bed with a revolver in plain view on the
nightstand. The jury was not informed that the officers also saw on
the nightstand a birthday card given to Williams by Danny Liepold, the
man Williams had just killed. Officer Thomas woke Williams and read
him his rights. Williams was not under the influence of drugs or
alcohol at the time of his arrest. A .38 caliber copper-jacketed
bullet recovered from Liepold's body was positively identified as
having been fired from the revolver recovered from atop Williams's
nightstand. An additional .38 caliber bullet was recovered from the
car, parked in front of the house, that matched the vehicle and
license plate number that Gutierrez had described.
Upon arrival at the police station, Williams was
again advised of his rights, and he made a written, signed voluntary
statement regarding the robbery. The following morning, Williams asked
that he be allowed to amend the written statement. Detective Abel
Juarez read him his rights for the third time, and Williams gave a new
statement, again indicating his involvement in the robbery, but
admitting, contrary to his first statement, that it was he, not
Edwards, who had shot the clerk in the Circle K. Additionally, after
being advised of his rights still one more time, Williams told Officer
Michael Akeroyd of his involvement in the shooting at the gas station
the night before. Williams was convicted of capital murder for the
robbery and shooting at the Circle K.
A. Standard of Review
In reviewing requests for federal habeas corpus
relief, this court reviews the district court's findings of fact for
clear error, but reviews issues of law de novo. See Barnard v. Collins,
958 F.2d 634, 636 (5th Cir.1992), cert. denied, --- U.S. ----, 113
S.Ct. 990, 122 L.Ed.2d 142 (1993). A finding of fact made by the
district court is clearly erroneous only when the reviewing court,
after reviewing the entire evidence, is left with the definite and
firm conviction that a mistake has been committed. See Self v. Collins,
973 F.2d 1198, 1203 n. 12 (5th Cir.1992) (citing Anderson v. City of
Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518
(1985)), cert. denied, --- U.S. ----, 113 S.Ct. 1613, 123 L.Ed.2d 173
Williams complains that the federal district court
incorrectly presumed the state court factual findings to be correct.
Williams improperly relies on a footnote that appeared in the original
opinion of Spriggs v. Collins, 993 F.2d 85 (5th Cir.1993), and was
deleted prior to publication. However, as it was not part of the final
published opinion, that footnote is of no significance. Moreover, this
court has held, in accordance with the language of 28 U.S.C. Sec .
2254(d) and Supreme Court rulings, that a federal court is to accord a
presumption of correctness to findings of state court proceedings
unless particular statutory exceptions to Sec. 2254(d) are implicated.
See Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d
722 (1981); Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir.1990).
Williams has not contended that any of the Sec. 2254(d) exceptions are
applicable to his case, nor have we noticed any defects in the state
procedures. Consequently, the presumption of correctness was properly
B. Ineffective Assistance of Counsel Claim
Williams complains that he received ineffective
assistance of counsel in violation of the sixth amendment because
trial counsel failed (1) to prepare and investigate adequately in
preparation of his case in mitigation at the sentencing phase of his
trial, (2) to object during voir dire examination of potential jurors
when three venire members were stricken for cause from the panel, (3)
to request a psychiatric examination, and (4) to object to the
testimony of the victim's mother regarding the victim's good character.
Under Strickland v. Washington, in order to
establish a sixth amendment ineffectiveness claim, Williams must
demonstrate that his counsel's performance (1) was seriously deficient
and (2) probably affected the outcome of the trial. See Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984); King v. Puckett, 1 F.3d 280, 284-85 (5th Cir.1993). Failure to
establish both deficient performance and prejudice defeats an
ineffectiveness claim. See Strickland, 466 U.S. at 700, 104 S.Ct. at
2071; King, 1 F.3d at 285.
This court must bear in mind that we review
narrowly professionally deficient conduct:
Judicial scrutiny of counsel's performance must be
highly deferential.... A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the
time.... There are countless ways to provide effective assistance in
any given case. Even the best criminal defense attorneys would not
defend a particular client in the same way.
. . . . .
Thus, a court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel's challenged conduct on
the facts of the particular case, viewed as of the time of counsel's
conduct.... The court must then determine whether, in light of all the
circumstances, the identified acts or omissions were outside the wide
range of professionally competent assistance.... [T]he court should
recognize that counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment.
Strickland, 466 U.S. at 689-90, 104 S.Ct. at
a. Lack of Preparation and Investigation for
Williams asserts that his attorneys did not
adequately investigate and prepare for the sentencing phase of his
trial and, as a result, presented no evidence in mitigation of his
guilt of capital murder. Williams claims that trial counsel should
have put on various witnesses who could have testified to positive
aspects of Williams's character. Additionally, Williams claims that
his trial counsel "never made an independent examination of the facts
and circumstances involved." Williams's contentions are not supported
by the record.
At trial, Williams was represented by Allan Manka
and Michael Callahan, both of whom were experienced capital trial
counsel and both of whom testified at the state habeas proceeding.
Manka and Callahan were sensitive to the fact that the state had an
extremely strong case against Williams. Consequently, after his
indictment, both Manka and Callahan encouraged Williams to accept the
state's plea bargain, which he refused to do.
After interviewing Williams and family members at length, counsel
decided not to pursue defenses based upon alibi, insanity, or self-defense
because their investigation provided no reasonable basis for doing so.
They made a strategic decision to direct their attention to the
punishment phase of Williams's case.
Both Manka and Callahan were aware of the use of
character witnesses to mitigate punishment. However, they were also
aware of Williams's juvenile crime record, drug and alcohol abuse
history, gang association, violence against his family, and, as they
put it, various other problems. They were legitimately concerned that
any mitigating testimony would have been presented by witnesses whose
knowledge would have opened the door to more damaging evidence under
This court has upheld decisions of counsel not to
put on evidence in mitigation of culpability when the decision results
from a strategic choice. See King, 1 F.3d at 284. In Williams's case,
these decisions by counsel were well thought through tactical
decisions. A court might even disagree with such a decision, viewing
the case in hindsight, and still determine that the decision was not
so seriously inept as to have been professionally unreasonable. In
this case, we do not gainsay the decision of Williams's attorneys.
Their decision to forego the presentation of mitigation witnesses
cannot be said to be professionally deficient performance. The first
prong of the Strickland analysis is not satisfied.
b. Failure to Object During Voir Dire Regarding
Strikes for Cause
Williams also claims that he received ineffective
assistance of counsel because venire members Salazar, Flores, and
Castillo were improperly excused for cause and counsel did not object.
During voir dire, venire member Salazar stated that she was opposed to
the death penalty and would be unable to set aside her personal
beliefs in order to answer the special issues based on the evidence
presented at Williams's trial.
Venire member Flores stated that she would not be able to inflict the
death penalty in any case.
Similarly, venire member Castillo stated that she would not be able to
impose the death penalty under any circumstances.
A venire member is properly excused for cause in a
capital case when his "views would prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath." Wicker v. McCotter, 783 F.2d 487, 493 (5th
Cir.) (quotations and footnotes omitted) (quoting Wainwright v. Witt,
469 U.S. 412 , 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985)),
478 U.S. 1010 , 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986).
It is a test to be applied primarily by the trial
court, for determinations of juror bias depend in great degree on the
trial judge's assessment of the potential juror's demeanor and
credibility, and on his impressions about that venireman's state of
mind. The trial court's determination that a prospective juror could
not perform his statutory function faithfully and impartially is
accorded a presumption of correctness under
28 U.S.C. Sec . 2254(d).
It is not for this court to substitute its judgment
for that of the state trial court on this issue. See id. The record
supports the trial judge's decision to remove each of these venire
members for cause. Moreover, the fact that there were no objections to
the removal of these venire members for cause may very well support
the propriety of the court's decisions:
[N]o one in the courtroom questioned the fact that
[the venire members'] beliefs prevented [them] from sitting. The
reasons for this, although not crystal clear from the printed record,
may well have been readily apparent to those viewing [the venire
members] as [they] answered the questions.
Wainwright v. Witt,
469 U.S. 412 , 435, 105 S.Ct. 844, 857-58, 83 L.Ed.2d 841 (1985).
Counsel unsuccessfully attempted to rehabilitate
venire member Salazar and did not attempt to rehabilitate venire
members Flores and Castillo. The record suggests that any attempts at
rehabilitation would have been futile because these venire members
would not have been able to function properly as jurors in this
capital case. Accordingly, counsel's decision not to rehabilitate
these venire members or to object to their removal for cause cannot be
said to be deficient performance. See Bridge v. Lynaugh, 838 F.2d 770,
776 (5th Cir.1988); Moore v. Maggio, 740 F.2d 308, 317 (1984), cert.
472 U.S. 1032 , 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985).
Because counsel's performance was not deficient, Williams does not
satisfy the first requirement of Strickland on this issue and his
Failure to Request Psychiatric Examination
Williams also complains that he was afforded
ineffective assistance of counsel because Manka and Callahan did not
request a psychiatric examination to aid in the presentation of "mitigating
evidence" of insanity, duress, and emotional disturbance. Williams
does not allege that he had any defense against a guilty verdict based
on these theories. Williams's only professional "proof" that he lacked
a dangerous character is supplied in the inconclusive affidavit of Dr.
Sparks, the Chief Bexar County Psychiatrist at that time, who never
examined Williams and could only speculate about his condition from
records furnished by habeas counsel.
Counsel made a knowing, strategic decision not to
seek a psychiatric evaluation of Williams because they feared the
state would use rebuttal psychiatric testimony of Williams's future
dangerousness. This was not a frivolous concern. The state properly
criticizes Williams for simply second-guessing counsel's performance
without having any evidence to support their criticism. The fact that
his counsel did not request a psychiatric examination does not
constitute deficient performance. Williams's Strickland argument fails
on this issue.
d. Failure to Object or Limit the Testimony of
the Victim's Mother
Williams next complains that he received
ineffective assistance of counsel because his counsel did not object
or try to limit the testimony of the victim's mother. At trial, Danny
Liepold's mother testified for what amounted to three pages of trial
transcript. She identified her son as the victim and testified
emotionally but briefly about his trusting nature.
It is unlikely that counsel's passivity when
confronted with this witness represented a deficient performance
because counsel made a strategic choice not to object, recognizing the
"delicacy" of how to handle testimony of a victim's relative. Counsel
wanted Mrs. Liepold's testimony to conclude as quickly as possible and
without contentiousness. Moreover, her testimony was probably
admissible anyway for its explanation why Danny trustingly turned his
back on Williams, whom he knew, before being shot. For all these
reasons, the decision whether to object was a close call
But, in any event, Williams has not satisfied the
second prong of Strickland: he cannot establish prejudice. It is clear
from the record that the exclusion of Mrs. Liepold's brief testimony
would not have affected the outcome of Williams's case. The evidence
of guilt was overwhelming, and the testimony at the punishment phase
of his trial, which included evidence of the gas station murder, was
compelling. Williams has not satisfied the prejudice prong of
Strickland because of counsel's failure to exclude the testimony of
Williams also complains that he received
ineffective assistance on his appeal by Allan Manka, one of his trial
attorneys. In his brief to this court, Williams states that his
counsel "failed to raise important issues on appeal, including but not
limited to: ineffective assistance of counsel; introduction of
inflammatory and prejudicial evidence such as the testimony of the
victim's mother; introduction of the decedent's high school yearbook
photograph; prejudicial and inflammatory remarks by the prosecutor
during arguments at the punishment phase of the trial; Witherspoon/Adams
challenges [to the venire members]; voluntariness of the confession;
illegal arrest and failure of the state to prove ownership of the
The due process clause of the fourteenth amendment
guarantees effective assistance of counsel for direct appeals as of
right. See McCrae v. Blackburn, 793 F.2d 684, 688 (5th Cir.) (citing
Hamilton v. McCotter, 772 F.2d 171, 182 (5th Cir.1985)), cert. denied,
479 U.S. 965 , 107 S.Ct. 466, 93 L.Ed.2d 411 (1986). That
right to effective appellate counsel must pass the Strickland
standards. See id. Williams must demonstrate that (1) his appellate
counsel's performance was so deficient as to fall below objectively
reasonable conduct of appellate counsel and (2) his case was
prejudiced as a result.
As we have already determined that Williams's
ineffective assistance of trial counsel claim, including his claim
regarding the testimony of the victim's mother, is without merit,
Williams could not have prevailed on that issue on appeal. Similarly,
Williams's claims regarding strikes for cause of venire members and
the voluntariness of his confessions, discussed infra, are without
merit. Accordingly, on these issues, Williams necessarily cannot
satisfy the second prong of Strickland, namely that he was prejudiced
because these issues were not raised on appeal.
Williams's remaining claims of appellate counsel's
failure are burdened either by lack of factual specificity or by the
inherent legal weakness of the claims of alleged error. Appellant has
not shown prejudice from the failure to pursue on appeal any of the
C. Mitigating Instruction for Williams's Youth
Williams complains that the special issues that the
jury was required to answer during the punishment phase
did not enable the jury to give adequate mitigating effect to
Williams's youth at the time of the offense. Williams was nineteen
years old when he murdered Liepold.
The Supreme Court has recently concluded that the
Texas statutory scheme under which Williams was sentenced allows the
jury to give mitigating effect to the defendant's age. See Johnson v.
Texas, --- U.S. ----, ----, 113 S.Ct. 2658, 2669-70, 125 L.Ed.2d 290
(1993). A failure to supplement the special issues, as Williams urges,
to give effect to the mitigating effect of age at the punishment phase
does not amount to a constitutional defect. Moreover, any ruling by
this court to the contrary would require the application on habeas
review of a new rule of criminal law in violation of Teague v. Lane,
489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality). See
Graham v. Collins, --- U.S. ----, 113 S.Ct. 892, 122 L.Ed.2d 260
(1993). Williams was not entitled to an additional instruction to the
jury regarding the mitigating effect of his age.
D. Questioning During Voir Dire Regarding Range
Venire member Lindley was questioned during voir
dire by the prosecution regarding whether he could make a judgment as
to whether a person would commit acts of violence in the future.
Lindley testified that he could. Upon examination by Williams's
counsel, Lindley was asked, "[W]hat degree of probability or what
degree of reliability can you attach to, say, in your own judgment the
probability that a person will continue to act a certain way in the
future?" The prosecution objected to this question, and the objection
was sustained. Defense counsel then asked, "How reliable would your
determination be [regarding a person's continuing to commit criminal
acts of violence] in your own mind?" The prosecution again objected,
and the objection was again sustained.
Williams now complains that he was denied due
process, equal protection, a fair trial, and effective assistance of
counsel because the trial court refused to allow him to question this
venire member regarding range of punishment, depriving Williams of the
opportunity intelligently to exercise his peremptory strikes. This
argument is without merit.
First, we agree with the district court that,
ordinarily, questioning a venire member regarding the range of
punishment raises only an issue of state criminal procedure that does
not present a federal constitutional claim. See Moreno v. Estelle, 717
F.2d 171, 179 (5th Cir.1983), cert. denied,
466 U.S. 975 , 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984).
Second, it is difficult to see how the vague, open-ended
questions asked by defense counsel could have elicited any
enlightening response from this venire member. Manka went on to
question Lindley in detail regarding his duties as an educator and the
potential effect of education on future lifestyle. Manka then accepted
Lindley as a juror. Defense counsel's failure to obtain two specific
answers, moreover, given an otherwise thorough voir dire examination,
was not such a critical deficiency in the trial as to deprive Williams
of fundamental fairness in the exercise of peremptory strikes. This
error, if it was one, is different from the judge's unkept promise on
voir dire in Knox v. Collins, 928 F.2d 657, 661-62 (5th Cir.1991).
E. Testimony of Trial Jurors at the Federal
Williams next complains that the federal district
court abused its discretion by not allowing testimony from trial
jurors at the evidentiary hearing. His counsel requested to have the
state jurors testify as to whether their deliberations would have been
different if they had been presented with the mitigating evidence that
was allegedly available, but not presented at trial. This argument is
The post-verdict inquiry of jury members, as live
witnesses or by affidavit, is inappropriate and precluded by Federal
Rules of Evidence 606(b).
See Byrne v. Butler, 845 F.2d 501, 509-10 n. 8 (5th Cir.), cert.
487 U.S. 1242 , 108 S.Ct. 2918, 101 L.Ed.2d 949 (1988);
McQueen v. Blackburn, 755 F.2d 1174, 1178-79 (5th Cir.), cert. denied,
474 U.S. 852 , 106 S.Ct. 152, 88 L.Ed.2d 125 (1985). The
district court did not abuse its discretion in disallowing this
F. Magistrate Judge's Alleged Conflict of
Williams complains that Magistrate Judge Boyd, who
conducted the federal habeas evidentiary hearing, had a conflict of
interest because he went to work for the state district attorney's
office after the evidentiary hearing in January 1988. In March of
1988, Boyd recused himself from Williams's case because of his
impending retirement in June. Williams's case was then taken over and
actually decided by Magistrate Judge Robert O'Connor on two separate
occasions, by then-District Judge Emilio Garza, and by District Judge
Williams does not explain the ways in which
Magistrate Judge Boyd was biased against him or how this alleged
conflict of interest prejudiced Williams's case. From the record,
there does not appear to have been an appearance of impropriety which
rose to the level of a fundamental defect. See United States v. Couch,
896 F.2d 78, 81 (5th Cir.1990). There was no harm to Williams's case
as a result of Magistrate Judge Boyd's participation in these
G. Statutory Maximum for Payment of
At the time of Williams's trial, the Texas Code of
Criminal Procedure placed a $500 limit for reimbursement for costs of
Williams claims that he was deprived of equal protection, due process,
and effective representation because this provision was
unconstitutional on-its-face and as applied to Williams.
It is well settled that the due process clause does
not require a state to pay for the same assistance that a wealthier
defendant might buy, see Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct.
1087, 1093, 84 L.Ed.2d 53 (1985), and the equal protection clause does
not require that indigent defendants have precisely the same
advantages as non-indigent defendants, see Ross v. Moffitt, 417 U.S.
600, 611-12, 94 S.Ct. 2437, 2444-45, 41 L.Ed.2d 341 (1974). This
statute was not unconstitutional on its face.
Moreover, the investigation in Williams's case
exceeded the $500 limit, as it cost over $900. Additionally, the trial
judge who presided over Williams's case stated in the state habeas
proceeding that in Williams's case, as in all capital cases, it is his
policy to furnish investigators with unlimited funds. Williams's
investigative costs of over $900 were reimbursed. Williams has made no
attempt to show that his defense was adversely affected by the $500
limit, nor can he point to any specific evidence that could have been
obtained that was not obtained as a result of this statutory cap. We
reject this contention.
H. Alleged Variance Between Indictment and Proof
Williams next complains that there was a fatal
variance between the indictment and the proof at trial. The indictment
charged Williams with causing the death of Danny Liepold "while in the
course of committing and attempting to commit the offense of robbery
upon the complainant." Williams argues that because the proof at trial
unequivocally established that Williams was robbing the convenience
store, not Danny Liepold, this creates a fatal variance between the
indictment and the proof at trial.
The sufficiency of a state indictment is
appropriate for federal habeas relief only when the indictment is so
deficient that the convicting court was without jurisdiction. See
Yohey v. Collins, 985 F.2d 222, 229 (5th Cir.1993). State law dictates
whether a state indictment is sufficient to confer a court with
jurisdiction. See id. Texas law provides that it is the preferred
practice for an indictment to allege ownership in a natural person
acting for the corporation rather than in the corporation itself. See
Dingler v. State, 705 S.W.2d 144, 145 (Tex.Crim.App.1984). Williams's
indictment did just that. Because the state court had jurisdiction
under the indictment, the federal court had no basis for granting
I. Applicability of Stone v. Powell
Williams next complains that the federal magistrate
judge erred in finding that Williams's fourth amendment claims were
barred by Stone v. Powell,
428 U.S. 465 , 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
Williams is wrong in his assertion. Powell provides:
where the State has provided an opportunity for
full and fair litigation of a Fourth Amendment claim, a state prisoner
may not be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was
introduced at his trial.
Powell, 428 U.S. at 494, 96 S.Ct. at 3052 (footnotes
[A] federal court need not apply the exclusionary
rule on habeas review of a Fourth Amendment claim absent a showing
that the state prisoner was denied an opportunity for a full and fair
litigation of that claim at trial and on direct review.
Id., 428 U.S. at 494 n. 37, 96 S.Ct. at 3052-53 n.
Williams does not argue that he was denied a full
and fair opportunity for litigation of his fourth amendment claim,
although he did not pursue it on direct appeal. Moreover, the record
indicates that Williams's motions to suppress were presented to and
addressed by the trial court. This claim is unfounded.
J. Voluntariness of the Confessions
Williams's final complaint is that the confessions
with which he provided the police were unconstitutionally obtained. He
complains that he was suffering from diminished capacity at the time
of the confessions and that he was forced into confessing by coercive
behavior exercised by the police. These claims are without support in
All of the police officers who spoke with Williams
the morning of his arrest were experienced in detecting drug or
alcohol usage, yet neither they nor Williams's father testified that
he appeared to be impaired in any way. Williams cites only one
instance of police duress, alleging that the arresting officer who
awoke Williams, "got on top of him," got him out of bed, and had
Williams sit on the bed and talk. The officer read Williams his rights,
and at that time, Williams denied any involvement in the robbery. The
record clearly supports the finding that Williams was advised of his
rights before he was permitted to give any of his three confessions.
Additionally, there is plenty of support in the record for the finding
that Williams's confessions were not the product of duress. For these
reasons, we agree with the state and federal courts that the
confessions were not obtained in violation of Williams's
For the foregoing reasons, this court AFFIRMS the
denial of Williams's petition for federal writ of habeas corpus.
[Q. By Mr. Callahan, defense attorney]: Now, my
question to you is could you set aside your opposition to the death
penalty and answer these questions just based on the evidence as you
have heard, and could you do that, or would you feel--could you do
that, answer those questions based just on the evidence?
A: Well, I don't know. I don't think I will be able
to do it.
The Court: You don't think you could answer yes?
Mrs. Salazar: No, sir.
The Court: [I]f a defendant is convicted of capital
murder, he can be punished by death or life imprisonment. Those are
the two punishments. Now, bearing that in mind, will that affect you
in your deliberations?
[A]: I don't think I could pass judgment. I would
be nervous and scared.
The Court: Are you conscientiously opposed to the
The Court: You are? Okay. Let me ask you this:
Could you in a capital case, capital murder case, could you ever
inflict the death penalty, no matter how cruel, how heinous, how awful,
how terrible the case may be? Could you ever vote to inflict the death
[A]: I don't think I could. I don't think I could
decide whether to have a man's life on my hands.
The Court: Now, let me ask you if you will give me
a yes or no answer. Could you in any case, no matter how heinous, how
terrible, how awful the case might be, could you in any capital murder
case inflict the death penalty?
[A]: I don't think so, no.
SOF XII: 102-03.
The Court: In a capital case there are two optional
punishments. If the Defendant is found guilty of capital murder, his
punishment will be life in prison or death. Do you understand that?
The Court: Knowing that, is that going to affect
your deliberations when you determine what the facts in the case are?
Will that affect you?
[A]: Well, it will because I don't believe in the
The Court: You don't believe in the death penalty?
The Court: You would not under any--let me ask you
this: would you consider assessing the penalty of death in any case,
no matter how vicious or how bad it might be?
[A]: It would--it would have to be very bad. I
really don't think so, no.
The Court: Well, you have answered it two different
ways. First you said that you would if it was bad enough, and then you
said it would depend.
[A]: It would take a lot out of me to do it.
The Court: Well, I want you in your own mind to
imagine the worst possible capital murder, the worst possible type of
murder which was a capital offense, say a murder committed during the
course of the commission of a robbery by the defendant, not this
particular case, but just imagine some terribly brutal, vicious murder.
Now, would you consider assessing a death penalty in the most brutal
type of murder that you can imagine?
[A]: No, I don't feel I could.
The Court: You would not?
The Court: Not under any circumstances?
[A]: No, I don't think so.
(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; and,
(2) whether there is a probability that the
defendant would commit criminal acts of violence that would constitute
a continuing threat to society.
Tex.Code Crim.Proc.Ann. art. 37.071(b).
Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter or statement
occurring during the course of the jury's deliberations or to the
effect of anything upon that or any other juror's mind or emotions as
influencing the juror to assent to or dissent from the verdict or
indictment or concerning the juror's mental processes in connection
therewith, except that a juror may testify on the question whether
extraneous prejudicial information was improperly brought to the
jury's attention or whether any outside influence was improperly
brought to bear upon any juror. Nor may a juror's affidavit or
evidence of any statement by the juror concerning a matter about which
the juror would be precluded from testifying be received for these