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Bruce Edwin CALLINS
Classification: Murderer
Characteristics:
Robberies
Number of victims: 1
Date of murder:
June 27,
1980
Date of birth:
February 22,
1960
Victim profile: Allen Huckleberry(male
customer bar)
Method of murder:
Shooting
Location: Dallas County, Texas, USA
Status:
Executed
by lethal injection in Texas on May 21,
1997
Date of
Execution:
May 21, 1997
Offender:
Bruce Callins
#717
Last
Statement:
I want to let
all of my people know and everybody who is here and
supported me that I love them and wish them all the best.
BruceEdwin
CALLINS, Petitioner-Appellant, v.
James A. COLLINS, Director, Texas Department of
CriminalJustice, Institutional Division, Respondent-Appellee
United States Court of Appeals,
Fifth Circuit.
998 F.2d 269
Aug. 6, 1993
Appeal from the United States
District Court for the Northern District of
Texas.
Before
HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
BruceCallins appeals
the denial of his petition for writ of
habeas corpus challenging his capital
murder conviction. Finding no error in
the findings of fact and conclusions of
law of the district court, we affirm.
On
June 27, 1980, at approximately 4:00
p.m., Callins
entered Norma's Lounge, a bar in Tarrant
County, Texas, armed with a gun. There
were three patrons and three employees
present when he ordered the bartender to
put money from the cash register into a
bag.
The
remaining individuals were ordered to
empty their pockets onto the bar or a
pool table; Callins
threatened to kill anyone who withheld
property. Allen Huckleberry, a patron
who was sitting at the bar, failed to
turn over his wallet quickly enough to
appease Callins,
who shot him in the neck, ultimately
causing him to bleed to death.1
On August 19, 1980,
Callins was
indicted for one count of capital murder
and six counts of aggravated robbery,
and on October 15, 1981, the state filed
a notice of intent to seek the death
penalty. Prior to trial, the state
dismissed three of the aggravated
robbery charges;
Callins pled not guilty to the
remaining four counts.
On May
18, 1982, the jury convicted
Callins of the
capital offense and two counts of
aggravated robbery. The next day, in a
separate sentencing proceeding
exclusively devoted to the aggravated
robbery charges, the jury imposed a life
sentence and a $10,000 fine on each
count. On May 20, an additional hearing
was conducted to determine punishment
for the capital murder charge. The jury
affirmatively answered the Texas special
issues, TEX.CODE CRIM.PROC.ANN. art.
37.071(b), and sentenced
Callins to
death.
On
appeal to the Texas Court of Criminal
Appeals, Callins's
conviction initially was reversed for
misjoinder, because state law prohibited
the joinder of property offenses with
offenses against persons. On a sua
sponte motion for rehearing, however,
the court reformed the judgment to
delete the convictions for the two
aggravated robbery offenses, thereby
preserving the capital murder conviction
and the death sentence.
Callins, 780
S.W.2d at 185-96.
Callins failed
timely to file a petition for writ of
certiorari with the Supreme Court, and
his initial execution date was set for
May 9, 1990. Subsequently, he filed a
certiorari petition and an application
for writ of habeas corpus in the state
trial court, which modified the
execution date to June 20, 1990,
reviewed the habeas application, entered
findings of fact and conclusions of law,
and recommend that relief be denied.
The
Court of Criminal Appeals denied relief
on June 12, 1990.
Callins then filed a habeas
petition and application for stay of
execution in federal court. The district
court granted a stay of execution on
June 12, 1990. On June 25, 1990, the
Supreme Court denied
Callins's petition for writ of
certiorari. Callins
v. Texas, 497 U.S. 1011, 110 S.Ct. 3256,
111 L.Ed.2d 766 (1990).
The magistrate judge
issued findings of fact and conclusions
of law on January 6, 1992, recommending
that Callins be
granted an evidentiary hearing on a
number of issues in order to create an
adequate record, despite the apparent
lack of merit in his arguments.
After
the evidentiary hearing, the district
court adopted the magistrate judge's
findings and conclusions, entered
additional findings and conclusions
based upon the testimony presented at
the hearing, denied relief, and
dismissed the petition.
Callins appeals
following the district court's issuance
of a certificate of probable cause.
Callins first
asserts as error the denial of his Sixth
Amendment Confrontation Clause rights
allegedly inflicted by the trial court's
refusal to allow him to impeach the
testimony of Ricky Henderson, a witness
for the state. Henderson had been
working on a construction site when,
approximately one-half hour after the
robbery of Norma's Lounge,
Callins pulled
a gun on him, demanding he aid
Callins in his
escape attempt.
Henderson took Callins
to his supervisor, Arthur Wilson, who
owned a jeep parked nearby.
Callins then
forced Wilson, at gunpoint, to drive him
to another location. As the two men left
in the jeep, Callins
fired shots at Henderson and another
worker.
The
state sought to call Henderson at trial,
to testify about the incident and
identify Callins.
Callins
responded by filing a motion to suppress
the identification, based upon the fact
that Henderson was then on deferred
adjudication probation for theft
exceeding $200. The court denied
Callins's
motion, ruling that he would not be
allowed to impeach Henderson with his
probationary status because it did not
constitute a final conviction.2
Although the trial court's ruling was
plainly correct as to
Callins's attempt to impeach
Henderson by evidence of his conviction
of a crime under TEX.R.CRIM.EVID. 609,
Callins urges
that his inability to elicit on cross-examination
the possible motive for Henderson to
alter his testimony in favor of the
prosecution denied him the protection
accorded him under the Confrontation
Clause.
As
noted above, at the time of the trial,
Henderson was serving a three-year
deferred adjudication probation for
theft. Callins
contends that Henderson violated the
terms of his probation by committing a
misdemeanor criminal trespass on
December 7, 1981, and the state's
decision not to pursue a motion to
revoke Henderson's probation constituted
an implicit exchange for his testimony,
evidence of which the jury was entitled
to consider in assessing Henderson's
credibility.
In Delaware v. Van
Arsdall, 475 U.S. 673, 679, 106 S.Ct.
1431, 1435, 89 L.Ed.2d 674 (1986), the
Court recognized that the foreclosure of
all inquiry into a state witness's
possible bias or motive, where the state
had dropped pending criminal charges in
exchange for favorable testimony,
violated the defendant's rights secured
by the Confrontation Clause.
Unlike
the situation in Van Arsdall, however,
the uncontroverted evidence at both the
trial and habeas proceedings, apparently
accepted by Callins's
trial counsel, was that no deal had been
offered Henderson and no favorable
action taken by the state district
attorney on his behalf.3
Testimony in federal district court,
however, revealed that there was
frequent contact and substantial
cooperation between the probation and
district attorney's offices in
investigating probation violations
generally, as well as in determining
whether a motion to revoke was warranted
in an individual case.
We
need not determine whether the evidence
adduced before the district court was
sufficient to permit a jury to infer
that the prosecution dealt for
Henderson's testimony, because we agree
with the district court that even if the
trial court erred in denying
Callins the
opportunity to impeach Henderson for
bias, the error did not have "substantial
and injurious effect or influence in
determining the jury's verdict." Brecht
v. Abrahamson, --- U.S. ----, ----, 113
S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993)
(quoting Kotteakos v. United States, 328
U.S. 750, 776, 66 S.Ct. 1239, 1253, 90
L.Ed. 1557 (1946)).
In the
instant case, we must consider the
weakness of Callins's
allegations respecting Henderson's
purported bias. Moreover, Henderson's
testimony added little to the state's
case. For the most part, it served to
establish the facts leading up to the
kidnapping of Arthur Wilson and his
vehicle and lay a predicate for Wilson's
identification of certain of the murder
victim's items found in
Callins's
possession.
Henderson's
identification of
Callins was cumulative of, and
corroborated by, the testimony of two
workers who were on the construction
site that day--Steven Henry and Paul
Ethridge--both of whom also identified
Callins in
court. Lastly, Callins
was identified by several witnesses at
the murder scene, two of whom knew him
from prior acquaintance.
The
strictly circumstantial allegations of
Henderson's bias and the strength of the
state's case as to
Callins's guilt persuade us that,
viewed in the context of the trial as a
whole, any error the trial court may
have committed in foreclosing
Callins's
opportunity to impeach Henderson had no
effect on the verdict.
Callins next
asserts that the sentencing procedure
violated the Fifth Amendment prohibition
against double jeopardy. Here, the trial
court fashioned a "tri-furcated"
proceeding, with a single guilt/innocence
phase and separate sentencing phases for
the aggravated robbery and capital
murder counts.
This
admittedly unusual process was made
necessary because certain evidence
required to be admitted at the capital
punishment phase was inadmissible in the
robbery sentencing phase.
Callins argues
that he was twice subjected to
punishment for the same offense because
the prosecutor told the jury to consider
the murder in imposing an appropriate
sentence on the two aggravated robbery
counts.
Although the prohibition
of double jeopardy includes subjection
to multiple punishments for the same
offense, see Justices of Boston Mun.
Court v. Lydon, 466 U.S. 294, 308-09,
104 S.Ct. 1805, 1813-14, 80 L.Ed.2d 311
(1984), it does not offend the Fifth
Amendment to sentence within the upper
end of the permissible range for a crime
on the basis of a defendant's other
conduct.
As we
noted in Sekou v. Blackburn, 796 F.2d
108, 111-12 (5th Cir.1986), "[c]onsideration
of criminal conduct as an aggravating
circumstance does not convert the
sentencing proceeding into a trial,
conviction, or punishment for the
criminal activity so considered." See
also United States v. Carey, 943 F.2d
44, 46-47 & n. 4 (11th Cir.1991), cert.
denied, --- U.S. ----, 112 S.Ct. 1676,
118 L.Ed.2d 394 (1992). The Double
Jeopardy Clause thus poses no bar to the
jury's consideration of
Callins's other
conduct in determining an appropriate
punishment for his aggravated robbery
convictions.
Callins's
related argument--that his due process
rights were denied by permitting the
jury to assess punishment first for the
aggravated robbery convictions--is no
more persuasive. Essentially,
Callins
contends that the jury was unaware that
there were to be two separate sentencing
proceedings, and thus the jury was left
to believe that their only opportunity
to punish Callins
for the murder was in the robbery
sentencing phase.
At the
capital murder sentencing phase, the
jury was forced to select a death
sentence, as it would have been
illogical for them to impose no more
severe a sentence for the more serious
crime.
As the state makes plain
in its brief, the record refutes
Callins's claim.
At the conclusion of the guilt/innocence
phase, the court notified the jury of
the bifurcated sentencing proceedings
that were to follow. The extent and
detail of the court's remarks leave
little doubt that the jury understood
that it was to assess punishment
separately for the offenses.
Given
the trial court's explanation, the
jury's imposition of the death penalty
appears the product less of confusion
than of that "reasoned moral response"
required by the caselaw. See, e.g.,
California v. Brown, 479 U.S. 538, 545,
107 S.Ct. 837, 841, 93 L.Ed.2d 934
(1987) (O'Connor, J., concurring).
Callins's due
process rights were not infringed by the
trifurcated nature of his trial.
Callins relies
upon Penry v. Lynaugh, 492 U.S. 302,
319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d
256 (1989), for the proposition that "[t]he
sentencer must be able to consider and
give effect to [mitigating] evidence in
imposing sentence." Specifically,
Callins asserts
that the Texas special issues did not
allow him to present evidence of his
troubled childhood and drug abuse and
prevented the jury from giving full
mitigating effect to the testimony that,
after shooting Huckleberry,
Callins
reassured him that he would be all right
and asked that someone call an ambulance
after he left the bar.4
It is
well settled that no Penry claim can be
asserted for evidence that could have
been, but was not, introduced in the
sentencing phase, Lincecum v. Collins,
958 F.2d 1271, 1282 (5th Cir.), cert.
denied, --- U.S. ----, 113 S.Ct. 417,
121 L.Ed.2d 340 (1992); May v. Collins,
904 F.2d 228, 232 (5th Cir.1990), cert.
denied, 498 U.S. 1055, 111 S.Ct. 770,
112 L.Ed.2d 789 (1991), and we therefore
do not consider
Callins's allegations relating to
his troubled childhood and drug use.5
As for
the evidence of
Callins's remorse toward, and
consideration for, the murder victim, we
note the Court of Criminal Appeals's
conclusion that
Callins "did nothing immediately
after shooting the deceased to
ameliorate the damage he caused"; his "offhand
remark" constituted "no more action than
would have normally occurred in the
aftermath of a shooting."
Callins, 780
S.W.2d at 193.
Nonetheless, Callins
contends that, in the absence of an
instruction defining the term "deliberately"
for purposes of applying the first
special issue, the jury could not give
full mitigating effect to his conduct
immediately after the shooting.
We disagree. Whatever
marginal relevance
Callins's conduct may have had
toward the jury's consideration of the
first two special issues, the jury was
able fully to give it effect within the
scope of the Texas special issues.
Callins's
conduct was relevant both to suggest
that he did not deliberately shoot
Huckleberry and that he therefore was
not likely to be dangerous in the future.
Unlike the situation in Penry, there was
no aspect of this evidence that might
compel an affirmative answer to one of
the special issues; its only possible
thrust was mitigating.
Here,
as in the Supreme Court's recent
treatment of the issue, "[Callins's]
evidence quite readily could have
supported a negative answer. This
distinction leads us to conclude that
neither Penry nor any of its
predecessors 'dictates ' the relief [petitioner]
seeks...." Graham v. Collins, --- U.S.
----, ----, 113 S.Ct. 892, 902, 122 L.Ed.2d
260 (1993) (emphasis in original); see
also Johnson v. Texas, --- U.S. ----,
----, 113 S.Ct. 2658, 2668-70, 125 L.Ed.2d
290 (1993) (no Penry instruction
required where jury "had a meaningful
basis to consider the relevant
mitigating qualities of petitioner's
youth"). Any other application of Penry
to the instant case would result in
precisely the new rule of constitutional
law that, in Graham, the Court found
foreclosed by Teague v. Lane, 489 U.S.
288, 109 S.Ct. 1060, 103 L.Ed.2d 334
(1989).
In a
related argument,
Callins challenges the
sufficiency of the evidence to support
the jury's affirmative finding as to the
first special issue--whether his conduct
was committed deliberately and with the
legitimate expectation that the death of
the victim would result.
In
reviewing a claim of insufficiency, we
examine all the evidence in the light
most favorable to the verdict and ask
whether any rational trier of fact could
have found the issue in controversy to
have been proven beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S.
307, 317, 99 S.Ct. 2781, 2787, 61 L.Ed.2d
560 (1979). Where a state appellate
court has conducted a thoughtful review
of the evidence, moreover, its
determination is entitled to great
deference. Parker v. Procunier, 763 F.2d
665, 666 (5th Cir.), cert. denied, 474
U.S. 855, 106 S.Ct. 159, 88 L.Ed.2d 132
(1985).
The Court of Criminal
Appeals adequately addressed this issue:
Appellant [Callins]
entered a bar with a loaded firearm,
began to rob the occupants and announced
his intention of shooting anyone who
held anything back. Appellant then
decided that Allen Huckleberry was
moving too slowly and shot him in the
neck at close range. There was no
evidence that the deceased had provoked
the attack in any manner.
Callins, 780
S.W.2d at 181 (emphasis added). The
court found ample evidence from which a
rational trier of fact could have
concluded that Callins's
conduct was deliberate. Only Kathy
Harmon and Frank Houx testified that
they saw the victim both immediately
before and after the shot (although
neither actually witnessed the shooting);
both testified that Huckleberry neither
said nor did anything that might have
provoked Callins.
According to Houx, Huckleberry dropped
his billfold on the ground and fumbled
for it, "as if he was trying to maybe
keep it from being stolen in the course
of the robbery." It was shortly
thereafter that
Callins shot him. The evidence
was more than sufficient to support the
jury's affirmative answer to the first
special issue; the jury's refusal to
credit, in this regard,
Callins's
contention that he reassured the victim
and requested medical assistance does
not render his conviction suspect.
Callins alleges
as error the introduction of several
extraneous offenses: the kidnapping and
assault of Arthur Wilson, the murder
threat against Rickey Henderson, and the
firing of a shot at Paul Ethridge and
Stephen Henry.
In
addition, the testimony of Horace and
Bill Jones was introduced over
Callins's
objection to show his flight from arrest.
Callins
contends that the introduction of such
evidence relieved the state of its
burden to prove beyond a reasonable
doubt that the answer to the second
special issue--future dangerousness--should
be in the affirmative.
This argument is
meritless. We previously have held that
the presentation of unadjudicated
extraneous offenses at the sentencing
phase of Texas capital murder trials
does not implicate constitutional
concerns. Williams v. Lynaugh, 814 F.2d
205, 207-08 (5th Cir.), cert. denied,
484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d
270 (1987); Milton v. Procunier, 744
F.2d 1091, 1097 (5th Cir.1984), cert.
denied, 471 U.S. 1030, 105 S.Ct. 2050,
85 L.Ed.2d 323 (1985).
These
concerns, as we have stated, are best "addressed
by properly applied standards of
relevance and sufficiency of proof." Id.
The evidence of
Callins's uncharged offenses was
plainly relevant for the determination
of his future dangerousness; the court
did not err in allowing it to reach the
jury.
Callins next
asserts that he was denied due process
of law by the trial court's denial of a
mistrial based upon the jury's exposure
to one venireman's racist remarks and by
the court's refusal to allow his
challenge for cause to another venireman
based upon his alleged racial bias.
During
voir dire, venireman Johnny Frank Pruitt
was asked whether he had heard any other
veniremen discussing the case; he
replied that one member, Robert Max
Cannon, had referred to
Callins as a "nigger"
and had speculated as to how he could
afford to pay for his attorneys.
Callins moved
for a mistrial and, alternatively, to
quash the jury panel; the court denied
both motions.
To prevail on a due
process claim that he was denied a fair
trial owing to contamination of the
panel by exposure to prejudicial
information, a petitioner must
demonstrate prejudice, i.e., "the actual
existence of such an opinion in the mind
of the juror as will raise the
presumption of partiality." Murphy v.
Florida, 421 U.S. 794, 800, 95 S.Ct.
2031, 2036, 44 L.Ed.2d 589 (1975).
Here,
the trial court sua sponte awarded
Callins an
additional peremptory strike because he
had been forced to expend one on Cannon
before his remark was made known to him.
As for Pruitt, Callins
appears to have been satisfied that he
could render an impartial verdict; after
questioning by Callins's
counsel, he was accepted and served as a
juror. Counsel's interrogation of other
veniremen who might have been exposed to
Cannon's remark revealed that they had
heard nothing that would prevent their
sitting on the jury.
Callins has failed to demonstrate
prejudice from Cannon's racist remark;
the district court did not err in
denying relief on this ground.
Callins also
alleges that during voir dire, venireman
Luis Thomas Duran demonstrated prejudice
against blacks, yet the trial court
denied his challenge for cause, forcing
him to expend a peremptory strike. While
Callins claims
that Duran expressed a view that blacks
are more likely to commit aggravated
robbery and murder than are members of
other races, that was not the basis of
his challenge to Duran at trial. Rather,
Callins
objected to Duran's apparent preference
for harsh sentences.6
Additionally, Callins
cannot demonstrate the requisite
prejudice; although he accurately states
that he did not receive an additional
strike to replace that used against
Duran, the record reveals that after
exhausting his strikes, he asked for and
received an additional peremptory strike,
which he immediately used against
venireman John Joseph Nelson.
Callins
thereafter requested no additional
peremptory strikes, nor did he object to
the jury or to any juror ultimately
seated. Callins
was not denied due process by the
court's refusal to allow his challenge
for cause to Duran.
Finally,
Callins claims
that he received ineffective assistance
from his trial counsel, thereby
depriving him of the right to counsel
guaranteed him under the Sixth Amendment.
Callins's
complaint is three-pronged: the trial
court rendered counsel's assistance
ineffective by permitting voir dire to
proceed under the assumption that the
jury would decide on only one sentence
rather than the bifurcated sentencing
procedure actually followed; counsel
failed to offer at trial the only
possible affirmative defense available
to Callins,
self-defense; and counsel was unfamiliar
with the law regarding mitigating
evidence admissible in the capital
sentencing phase and failed adequately
to investigate and adduce such
mitigating testimony from
Callins's
family members and friends.
In
order to prevail on a claim of
ineffective assistance of counsel, a
habeas petitioner must meet the two-prong
test of Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 2063-64,
80 L.Ed.2d 674 (1984): that counsel's
performance was deficient and that such
deficient performance prejudiced the
defense.
As
Strickland cautions us, our scrutiny of
counsel's performance must be highly
deferential, lest it suffer "the
distorting effects of hindsight." Id. at
689, 104 S.Ct. at 2065. We must "indulge
a strong presumption that counsel's
conduct falls within the wide range of
reasonable professional assistance" and
that a challenged action " 'might be
considered sound trial strategy.' " Id.
(citation omitted).
In
reviewing for prejudice, we must look
for "a reasonable probability that, but
for counsel's unprofessional errors, the
result of the proceeding would have been
different." Id. at 694, 104 S.Ct. at
2068. When a defendant challenges the
imposition of the death sentence, our
inquiry must be "whether there is a
reasonable probability that, absent the
errors, the sentencer ... would have
concluded that the balance of
aggravating and mitigating circumstances
did not warrant death." Id. at 695, 104
S.Ct. at 2069.
We conclude that
Callins's
assertion that he would have structured
his voir dire differently had he been
aware of the trifurcated procedure
ultimately devised by the trial court is,
at best, highly speculative. Indeed,
before the district court,
Callins's trial
counsel could only "wonder[ ] whether I
would have done something different" had
he known beforehand of the trifurcated
process. Nor can we perceive, without
considerably more, a reasonable
probability that a jury selected with
the trifurcated process in mind would
have reached a different result, given
the overwhelming evidence of guilt and
the relatively meager mitigating
evidence presented during the capital
sentencing phase.
Callins's
contention that his counsel was
negligent in failing to raise the
defense of self-defense is nothing short
of ludicrous in light of common sense
and long-standing Texas precedent. In
short, as the Court of Criminal Appeals
has stated, "we note that a robber has
no right of self-defense against his
victim.
This
is especially true when the victim is
justified in acting to recover his
property, prevent the offense or save
another person." Westley v. State, 754
S.W.2d 224, 230 (Tex.Crim.App.1988),
cert. denied, 492 U.S. 911, 109 S.Ct.
3229, 106 L.Ed.2d 577 (1989). See also
Jones v. State, 149 Tex.Crim. 441, 195
S.W.2d 349, 353 (1946). Even were this
not the case, Callins
failed to introduce any evidence of
Huckleberry's provocative actions;
indeed, the evidence was uncontroverted
that the deceased committed no
aggressive act.
Lastly,
Callins argues that his trial
counsel was unaware of the wide range of
mitigating evidence that could be
presented at the capital sentencing
phase and therefore failed to conduct a
reasonable investigation into such
evidence. Specifically,
Callins asserts
that evidence of his good character and
drug use--potentially relevant to the
resolution of the first and the first
and second special issues, respectively--was
not looked into because his counsel was
not aware that it was admissible.
The
evidence adduced at the hearing before
the district court, however, fails to
support Callins's
view of his counsel's knowledge.
Callins's
mother, for example, was called at the
punishment phase to testify to her son's
good character; obviously, counsel must
have believed that such testimony
properly could be admitted at that time.
Additionally, trial counsel for
Callins
testified that he recalled asking
Callins's
mother and brother for names of other
people who might testify on
Callins's
behalf. Although Mrs.
Callins claimed never to have
spoken with the attorneys about such
matters, she conceded on cross that
Callins himself
had mentioned to her the need to acquire
mitigating evidence.
Even
if counsel's performance in this regard
was to be considered deficient,
Callins can
show no prejudice. The evidence of his
drug use, although relevant to the
punishment issues, cuts both ways;
indeed, in light of the absence of any
evidence that Callins
was under the influence of drugs at the
time of his offense, the evidence of
past drug use would appear to be more
aggravating than mitigating.
Also,
the fact that Callins
had not committed a felony previously,
combined with "some evidence of
employment," according to his trial
counsel, does not give rise to a
reasonable probability that a rational
jury would have answered one of the
special issues in the negative,
resulting in a life sentence.
Some
evidence of Callins's
good character already had been admitted
through his mother; the wantonness of
the murder and Callins's
violent escapades after it, however,
swamped this evidence, and we believe it
equally would have overwhelmed the
minimal mitigating evidence that
Callins now
argues should have been introduced at
the capital sentencing phase.
Therefore, we AFFIRM the judgment of the
district court.
A more detailed
version of the facts of the instant case
is set forth in the Texas Court of
Criminal Appeals's decision. See
Callins v.
State, 780 S.W.2d 176, 179-80 (Tex.Crim.App.1986)
See Baehr v. State,
615 S.W.2d 713, 716 (Tex.Crim.App.1981)
(order of deferral not a finding of
guilt), overruled on other grounds,
Elder v. State, 677 S.W.2d 538, 539 (Tex.Crim.App.1984);
see also Martinez-Montoya v. Immigration
& Naturalization Serv., 904 F.2d 1018,
1024-25 (5th Cir.1990) (deferred
adjudication not a final conviction for
purposes of deportation proceedings);
Green v. State, 663 S.W.2d 145, 146 (Tex.App.--Houston
[1st Dist.] 1983, pet. ref'd) (reversing
murder conviction where defendant was
impeached by his deferred adjudication
probation for theft)
The Texas Court of
Criminal Appeals rested its resolution
of the issue on precisely this basis--that
Callins "has
not made any showing that witness
Henderson testified against him as a
result of bias, motive or ill will
emanating from his status of deferred
adjudication." Callins,
780 S.W.2d at 196. Although Henderson
incurred a second post-probation
misdemeanor charge on August 16, 1982,
this transpired after his testimony at
trial and thus is not relevant to any
accusation of bias or motive to testify
in favor of the government in exchange
for dropping the charge
The Texas capital
sentencing scheme, which guides juries
in capital murder cases, reads in
relevant part as follows:
(b) On conclusion of
the presentation of the evidence, the
court shall submit the following 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; and
(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 deceased.
(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 submitted.
We note in passing,
however, that we have previously held
that just these two issues--a capital
murder defendant's troubled childhood
and drug abuse (alcohol)--do not raise
Penry claims, at least where the
evidence of these traits adduced at
trial was meager. See Drew v. Collins,
964 F.2d 411, 420 (5th Cir.1992), cert.
denied, --- U.S. ----, 113 S.Ct. 3044,
125 L.Ed.2d 730 (1993)
See
Callins, 780 S.W.2d at 187, for
the transcript of Duran's testimony
Justice Harry Blackmun
"Dissenting Opinion: Callins v. Collins"
BRUCE EDWIN CALLINS,
PETITIONER v.
JAMES A. COLLINS, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
CALLINS v. COLLINS
No. 93-7054
SUPREME COURT OF THE UNITED
STATES
February 22, 1994
On February 23, 1994,
at approximately 1:00 a.m., Bruce Edwin
Callins will be executed by the State of
Texas. Intravenous tubes attached to his
arms will carry the instrument of death,
a toxic fluid designed specifically for
the purpose of killing human beings. The
witnesses, standing a few feet away,
will behold Callins, no longer a
defendant, an appellant, or a petitioner,
but a man, strapped to a gurney, and
seconds away from extinction.
Within days, or
perhaps hours, the memory of Callins
will begin to fade. The wheels of
justice will churn again, and somewhere,
another jury or another judge will have
the unenviable task of determining
whether some human being is to live or
die. We hope, of course, that the
defendant whose life is at risk will be
represented by competent counsel—someone
who is inspired by the awareness that a
less-than- vigorous [*6]defense truly
could have fatal consequences for the
defendant.
We hope that the
attorney will investigate all aspects of
the case, follow all evidentiary and
procedural rules, and appear before a
judge who is still committed to the
protection of defendants' rights—even
now, as the prospect of meaningful
judicial oversight has diminished. In
the same vein, we hope that the
prosecution, in urging the penalty of
death, will have exercised its
discretion wisely, free from bias,
prejudice, or political motive, and will
be humbled, rather than emboldened, by
the awesome authority conferred by the
State.
But even if we can
feel confident that these actors will
fulfill their roles to the best of their
human ability, our collective conscience
will remain uneasy. Twenty years have
passed since this Court declared that
the death penalty must be imposed fairly,
and with reasonable consistency, or not
at all, see Furman v. Georgia, 408 U.S.
238 (1972), and, despite the effort of
the States and courts to devise legal
formulas and procedural rules to meet
this daunting challenge, the death
penalty remains fraught with
arbitrariness, discrimination, caprice,
[*7]and mistake. This is not to say that
the problems with the death penalty
today are identical to those that were
present 20 years ago.
Rather, the problems
that were pursued down one hole with
procedural rules and verbal formulas
have come to the surface somewhere else,
just as virulent and pernicious as they
were in their original form. Experience
has taught us that the constitutional
goal of eliminating arbitrariness and
discrimination from the administration
of death, see Furman v. Georgia,
supra, can never be achieved without
compromising an equally essential
component of fundamental fairness—individualized
sentencing. See Lockett v. Ohio, 438 U.S.
586 (1978).
It is tempting, when
faced with conflicting constitutional
commands, to sacrifice one for the other
or to assume that an acceptable balance
between them already has been struck. In
the context of the death penalty,
however, such jurisprudential maneuvers
are wholly inappropriate. The death
penalty must be imposed "fairly, and
with reasonable consistency, or not at
all." Eddings v. Oklahoma, 455 U.S. 104,
112 (1982). [*8]
To be fair, a capital
sentencing scheme must treat each person
convicted of a capital offense with that
"degree of respect due the uniqueness of
the individual." Lockett v. Ohio, 438
U.S., at 605 (plurality opinion). That
means affording the sentencer the power
and discretion to grant mercy in a
particular case, and providing avenues
for the consideration of any and all
relevant mitigating evidence that would
justify a sentence less than death.
Reasonable
consistency, on the other hand, requires
that the death penalty be inflicted
evenhandedly, in accordance with reason
and objective standards, rather than by
whim, caprice, or prejudice. Finally,
because human error is inevitable, and
because our criminal justice system is
less than perfect, searching appellate
review of death sentences and their
underlying convictions is a prerequisite
to a constitutional death penalty scheme.
On their face, these
goals of individual fairness, reasonable
consistency, and absence of error appear
to be attainable: Courts are in the very
business of erecting procedural devices
from which fair, equitable, and reliable
outcomes are presumed to flow. Yet, in
the death [*9]penalty area, this Court,
in my view, has engaged in a futile
effort to balance these constitutional
demands, and now is retreating not only
from the Furman promise of consistency
and rationality, but from the
requirement of individualized sentencing
as well. Having virtually conceded that
both fairness and rationality cannot be
achieved in the administration of the
death penalty, see McCleskey v. Kemp,
481 U.S. 279, 313, n. 37 (1987), the
Court has chosen to deregulate the
entire enterprise, replacing, it would
seem, substantive constitutional
requirements with mere aesthetics, and
abdicating its statutorily and
constitutionally imposed duty to provide
meaningful judicial oversight to the
administration of death by the States.
From this day forward,
I no longer shall tinker with the
machinery of death. For more than twenty
years I have endeavored—indeed, I have
struggled—along with a majority of this
Court, to develop procedural and
substantive rules that would lend more
than the mere appearance of fairness to
the death penalty endeavor.1
Rather than continue
to coddle the Court's delusion that the
desired level of fairness has been
achieved [*10]and the need for
regulation eviscerated, I feel morally
and intellectually obligated simply to
concede that the death penalty
experiment has failed. It is virtually
self-evident to me now that no
combination of procedural rules or
substantive regulations ever can save
the death penalty from its inherent
constitutional deficiencies.
The basic question—does
the system accurately and consistently
determine which defendants "deserve" to
die?—cannot be answered in the
affirmative. It is not simply that this
Court has allowed vague aggravating
circumstances to be employed, see, e.
g., Arave v. Creech, U.S. (1993),
relevant mitigating evidence to be
disregarded, see, e. g., Johnson v.
Texas, U.S. (1993),and vital judicial
review to be blocked, see, e. g.,
Coleman v. Thompson, 501 U.S. (1991).
The problem is that the inevitability of
factual, legal, and moral error gives us
a system that we know must wrongly kill
some defendants, a system that fails to
deliver the fair, consistent, and
reliable sentences of death required by
the Constitution.2
Endnotes
1 As a member
of the United States Court of Appeals, I
voted to enforce the death penalty, even
as I stated publicly that I doubted its
moral, social, and constitutional
legitimacy. See Feguer v. United States,
302 F.2d 214 (CA8), cert. denied, 371
U.S. 872 (1962); Pope v. United States,
372 F.2d 710 (CA8 1967) (en banc),
vacated and remanded, 392 U.S. 651
(1968); Maxwell v. Bishop, 398 F.2d 138,
153-154 (CA8 1968), vacated and remanded,
398 U.S. 262 (1970). See Furman v.
Georgia, 408 U.S. 238, 405 (1972). [*11]
2
Because I conclude that no sentence of
death may be constitutionally imposed
under our death penalty scheme, I do not
address Callins' individual claims of
error. I note, though, that the Court
has stripped "state prisoners of
virtually any meaningful federal review
of the constitutionality of their
incarceration." Butler v. McKellar, 494
U.S. 407, 417 (1990) (Brennan, J.,
dissenting) (emphasis in original). Even
if Callins had a legitimate claim of
constitutional error, this Court would
be deaf to it on federal habeas unless "the
state court's rejection of the
constitutional challenge was so clearly
invalid under then-prevailing legal
standards that the decision could not be
defended by any reasonable jurist." Id.,
at 417-418 (emphasis in original). That
a capital defendant facing imminent
execution is required to meet such a
standard before the Court will remedy
constitutional violations is
indefensible.
BruceEdwin
CALLINS,
Petitioner-Appellant, v.
Gary JOHNSON, Director,
Texas Department of
CriminalJustice,
Institutional Division,
Respondent-Appellee
United States Court of
Appeals, Fifth Circuit.
89
F.3d 210
July
12, 1996
Appeal from the
United States
District Court for
the Northern
District of Texas.
Before HIGGINBOTHAM,
SMITH and DeMOSS,
Circuit Judges.
JERRY E. SMITH,
Circuit Judge:
Bruce
Callins
appeals the
denial of his
petition for a
writ of habeas
corpus. Finding
no error, we
affirm.
In 1980,
Callins
went to a nude
dancing
establishment
named Norma's
Lounge, told the
bartender to put
the club's
receipts in a
bag, and ordered
the patrons to
empty their
pockets. "Allen
Huckleberry, who
was sitting at
the bar, did not
surrender his
wallet quickly
enough to suit [Callins],
and [Callins]
shot him in the
neck, causing
him to bleed to
death."
Callins
v. State, 780
S.W.2d 176, 180
(Tex.Crim.App.1986),
cert. denied,
497 U.S. 1011,
110 S.Ct. 3256,
111 L.Ed.2d 766
(1990).
Callins
then rifled
through
Huckleberry's
pockets, took
the other
victims'
property, and
fled.
After convicting
Callins
of one count of
capital murder
and two counts
of aggravated
robbery, a jury
imposed the
death penalty.
The Texas Court
of Criminal
Appeals affirmed
Callins's
murder
conviction and
death sentence
but vacated his
robbery
convictions.
Callins
unsuccessfully
sought post-conviction
relief, first in
the Texas state
courts and then
in the federal
courts. He later
filed another
state habeas
petition, which
the state courts
denied.
Callins
then filed this
petition,
contending that
the Texas Court
of Criminal
Appeals had
violated his due
process rights,
his attorney was
ineffective on
direct appeal,
and his capital
murder
conviction
violated Texas's
carving
doctrine.
The district
court denied
Callins's
petition,
finding that his
appellate
counsel was not
ineffective and
that
Callins
abused the writ
in bringing the
other claims.
Callins
appeals only the
district court's
rejection of his
ex post facto
and due process
arguments
arising from the
state's asserted
misapplication
of his carving
claim.
Callins
contends that
his murder
conviction
violated Texas's
erstwhile
carving
doctrine, which
prohibited the
state from "carving
out" and
prosecuting more
than one crime
arising from any
single
transaction. See,
e.g., Douthit v.
State, 482 S.W.2d
155, 161 (Tex.Crim.App.1971).
Callins
argues that his
actions at
Norma's Lounge
constituted a
single
transaction, and
further asserts
that his jury
returned final
verdicts on the
robbery
convictions
before
completing its
consideration of
the murder
charge. Thus,
concludes
Callins,
the robbery
convictions
precluded the
state from
continuing the
murder
prosecution.
The Court of
Criminal Appeals
abolished the
carving doctrine
on the first day
of
Callins's
trial, but
Callins
insists that the
trial court's
refusal to apply
that doctrine
infringed upon
his due process
rights and the "principles
embodied in the
Ex Post Facto
Clause."
The district
court found
Callins's
carving doctrine
challenge to be
an abuse of the
writ. Federal
courts will
consider a claim
presented in a
second habeas
petition only if
the petitioner
shows that (1)
he had cause for
failing to raise
the alleged
error earlier
and suffered
prejudice
therefrom, or
(2) failure to
do so would
result in a
fundamental
miscarriage of
justice.
McCleskey v.
Zant, 499 U.S.
467, 493-94, 111
S.Ct. 1454,
1469-70, 113
L.Ed.2d 517
(1991); see also
28 U.S.C. § 2254
Rule 9(b) (1994)
(permitting
dismissal if
failure to
assert claim in
earlier petition
constituted an
abuse of the
writ).
Callins
concedes that he
could have
presented his
carving doctrine
challenge in his
first petition.
Nonetheless, he
contends that we
should entertain
that claim at
this late date
because (1) his
first habeas
attorney's
failure to raise
the argument
amounted to
ineffective
assistance of
counsel; (2) he
is actually
innocent of both
capital murder
and the death
penalty; and (3)
the Texas Court
of Criminal
Appeals waived
the state's
interests in
finality and
federalism.
Callins
contends that
his habeas
attorney's
alleged
ineffectiveness
constitutes
cause. We have
already rejected
that argument.
"[C]ounsel's
ineffectiveness
will constitute
cause only if it
is an
independent
constitutional
violation,"
Coleman v.
Thompson, 501
U.S. 722, 755,
111 S.Ct. 2546,
2567, 115 L.Ed.2d
640 (1991) (emphasis
added), and
there is no
constitutional
right to counsel
in habeas
proceedings,
Pennsylvania v.
Finley, 481 U.S.
551, 555, 107
S.Ct. 1990,
1993, 95 L.Ed.2d
539 (1987).
Thus, no error
by habeas
counsel can ever
constitute cause
for abusing the
writ. See Irving
v. Hargett, 59
F.3d 23, 26 (5th
Cir.1995), cert.
denied, Y--- U.S.
----, 116 S.Ct.
929, 133 L.Ed.2d
857 (1996);
Johnson v.
Hargett, 978
F.2d 855, 859
(5th Cir.1992),
cert. denied,
507 U.S. 1007,
113 S.Ct. 1652,
123 L.Ed.2d 272
(1993).
Callins
insists that
Coleman is
distinguishable
because it
addresses only
the Sixth
Amendment right
to counsel, not
statutory rights
to counsel.
Congress
recently endowed
prisoners with a
right to counsel
in capital
habeas
proceedings, see
21 U.S.C. §
848(q)(4)(B)
(1994);
McFarland v.
Scott, --- U.S.
----, ----, 114
S.Ct. 2568,
2571, 129 L.Ed.2d
666 (1994), and
Callins
asserts that §
848(q)(4)
contains an
implied right to
counsel who are
effective within
the meaning of
the Sixth
Amendment.
Callins
further argues
that he should
not be held
responsible for
the actions of
an attorney who
failed to
satisfy that
standard.
Coleman is not
distinguishable.
Cause "must be
something
external to the
petitioner."
Coleman, 501 U.S.
at 753, 111 S.Ct.
at 2566 (emphasis
in original).
Attorney errors
are not external,
"because the
attorney is the
petitioner's
agent when
acting, or
failing to act,
in furtherance
of the
litigation, and
the petitioner
must 'bear the
risk of attorney
error.' " Id. (quoting
Murray v.
Carrier, 477 U.S.
478, 488, 106
S.Ct. 2639,
2645-46, 91 L.Ed.2d
397 (1986)).
The Sixth
Amendment
imposes an
exception to
this rule, in
that it forbids
the state from
making an
accused defend
himself without
effective
assistance of
counsel. See id.
at 754, 111 S.Ct.
at 2567; Carrier,
477 U.S. at 488,
106 S.Ct. at
2645-46. Absent
a failure by the
state to perform
its
constitutional
obligations,
however, an
attorney's error
is imputed to
his client. See
Coleman, 501 U.S.
at 755, 111 S.Ct.
at 2567-68.
The § 848(q)(4)
right to counsel
supplements the
Sixth Amendment
right to counsel;
it does not
impose a
constitutional
obligation upon
the state. In
fact, §
848(q)(4)
imposes a burden
only on the
federal
government, not
the state
governments.
Thus, even
assuming
arguendo that §
848(q)(4)
contains an
implied
effectiveness
requirement and
that
Callins's
first habeas
counsel did not
meet that
standard,
Coleman dictates
that such a
shortcoming does
not constitute
cause.1
Callins
argues that
failure to
consider his
carving doctrine
claim would
result in a
fundamental
miscarriage of
justice because
he is "actually
innocent" of
both capital
murder and the
death penalty.
Callins
explains that
the carving
doctrine limits
his criminal
liability to
only one of the
offenses he
committed at
Norma's Lounge,
rendering him
actually
innocent of all
but one robbery
conviction.
Similarly,
Callins
contends that as
his capital
conviction was
void ab initio,
he is ineligible
for the death
penalty and is
therefore
actually
innocent of that
sentence.
Callins
is not actually
innocent of
capital murder.
Federal courts
may excuse
abuses of the
writ only in "extraordinary
instances when a
constitutional
violation
probably has
caused the
conviction of
one innocent of
the crime."
McCleskey, 499
U.S. at 494, 111
S.Ct. at 1470.
This "miscarriage
of justice"
exception "is
concerned with
actual as
compared to
legal innocence,"
Sawyer v.
Whitley, 505 U.S.
333, 339, 112
S.Ct. 2514,
2519, 120 L.Ed.2d
269 (1992), and
"[t]he term
'actual
innocence' means
factual, as
opposed to
legal, innocence,"
Johnson, 978
F.2d at 859 (emphasis
in original).
Thus, "a
petitioner [must]
supplement[ ] a
constitutional
claim with a 'colorable
showing of
factual
innocence.' "
McCleskey, 499
U.S. at 495, 111
S.Ct. at 1471 (quoting
Kuhlmann v.
Wilson, 477 U.S.
436, 454, 106
S.Ct. 2616,
2627, 91 L.Ed.2d
364 (1986)) (emphasis
added).
Callins
does not attempt
to show that he
is factually
innocent of
capital murder;
in fact, he
concedes that he
"engaged in the
acts that
resulted in the
death of Allen
Huckleberry" and
is "morally"
guilty of
capital murder.
Nonetheless,
Callins
contends that
under
substantive
penal law, he is
liable for only
one offense.
Assuming
arguendo that
the carving
doctrine limits
Callins's
criminal
liability to one
offense, however,
that doctrine
does not
determine for
which offense he
is liable.
In fact, even
accepting
Callins's
allegations,
that one offense
would be capital
murder if (1)
the prosecution
had chosen not
to pursue the
robbery counts
or (2) the jury
had returned a
completed
verdict on
capital murder
before finishing
its
deliberations on
robbery.
In short,
Callins
has not
supplemented his
constitutional
claim with a
factual showing
that he did not
commit capital
murder; instead,
he contends only
that his
constitutional
claim
establishes his
innocence, i.e.,
that he is
legally innocent.
Thus,
Callins
has not shown
that he is
actually
innocent. Cf.
Ward v. Cain, 53
F.3d 106, 108
(5th Cir.1995)
(holding that
petitioner must
show "as a
factual matter,
that he did not
commit the crime
of conviction"),
petition for
cert. filed (May
15, 1995) (No.
94-9266);
Johnson, 978
F.2d at 860 n.
18 (stating that
"actual
innocence
requires more
than showing of
constitutional
error, even when
verdict would
have been
different absent
error").
Callins
contends that he
is ineligible
for the death
penalty because
his underlying
capital
conviction is
void. At least
in capital
cases, the
"actual
innocence"
exception to the
cause-and-prejudice
test encompasses
not only
innocence of the
underlying
offense, but
also innocence
of the sentence.
See Sawyer, 505
U.S. at 340-41,
112 S.Ct. at
2519-20. To
invoke this
exception, a
petitioner must
"show by clear
and convincing
evidence that
but for
constitutional
error at his
sentencing
hearing, no
reasonable juror
would have found
him eligible for
the death
penalty." Id. at
350, 112 S.Ct.
at 2525 (emphasis
added).
Callins
does not contend
that the state
trial court
erred during the
sentencing phase
of his trial;
instead, he
attacks only his
underlying
conviction. As
we have already
held, however,
"[t]he special
Sawyer-version
of the 'miscarriage
of justice'
exception is
limited to
assertions of
errors of
constitutional
magnitude
occurring at
sentencing."
Fearance v.
Scott, 56 F.3d
633, 637-38 (5th
Cir.), cert.
denied, --- U.S.
----, 115 S.Ct.
2603, 132 L.Ed.2d
847 (1995).
Callins
contends that
Fearance is
distinguishable
because it
involves a claim
that arose after
trial. The
Fearance court
squarely held
that Sawyer
applies only to
errors occurring
at sentencing;
it in no way
relied upon the
timing of the
alleged error.
See id. at 638.
In addition, the
Sawyer exception
"focus[es] on
those elements
that render a
defendant
eligible for the
death penalty."
Sawyer, 505 U.S.
at 347, 112 S.Ct.
at 2523. As such,
it does not
logically extend
to errors that
arose outside of
the sentencing
phase of a
defendant's
trial. See
Fearance, 56
F.3d at 638.2
Finally,
Callins
draws an
unlikely analogy
to Teague v.
Lane, 489 U.S.
288, 109 S.Ct.
1060, 103 L.Ed.2d
334 (1989),
arguing that we
should interpret
Sawyer's "ineligibility"
exception in
light of
Teague's
exception for
new rules
rendering an
entire class of
persons
ineligible for
execution.
Teague holds
that habeas
petitioners
generally do not
benefit from "new
rules" announced
after direct
review of their
convictions. See
id. at 310, 109
S.Ct. at 1075.
The exception
invoked by
Callins
covers "rules
prohibiting a
certain category
of punishment
for a class of
defendants
because of their
status or
offense." Penry
v. Lynaugh, 492
U.S. 302, 330,
109 S.Ct. 2934,
2953, 106 L.Ed.2d
256 (1989).
Callins's
constitutional
challenge would
not prohibit the
execution of a
specific "class
of defendants"
based upon their
offense or
status: The
government may
punish murder
with death, and
those who kill
while committing
other crimes do
not necessarily
share an "innate
characteristic
such as insanity
or mental
retardation
which precludes
imposition of
the death
penalty." See
White v. Johnson,
79 F.3d 432, 438
(5th Cir.1996),
petition for
cert. filed (Apr.
29, 1996) (No.
95-8790). Thus,
Callins's
claim does not
fall within the
Penry exception
to Teague.
In addition, we
fail to
understand the
relevance of
Penry. Sawyer
and Fearance are
explicit,
stating that we
should consider
only whether a
petitioner is
factually
innocent of
either an
element of the
crime or a
mandatory
sentencing
criterion.
We previously
likened the
"actual
innocence"
standard to a
different Teague
exception--one
that permits
reliance on new
procedures that
are "implicit in
the concept of
ordered liberty"--but
we did so
because those
procedures are
so fundamental
that they "implicat[e]
factual
innocence." See
Sawyer v. Butler,
881 F.2d 1273,
1293 (5th
Cir.1989) (en
banc) (emphasis
added), aff'd,
497 U.S. 227,
110 S.Ct. 2822,
111 L.Ed.2d 193
(1990).
To conclude,
Sawyer does not
hold that anyone
who is legally
ineligible for a
particular
punishment is "actually
innocent."
Sawyer merely
likens
sentencing
criteria to the
elements of a
crime, focusing
on the factual,
not legal, basis
for the verdict.
Finally,
Callins
contends that
the Texas Court
of Criminal
Appeals "effectively
waived the State
of Texas'[s]
interests in
federalism and
finality
regarding ex
post facto
claims" in
Ieppert v. State,
908 S.W.2d 217 (Tex.Crim.App.1995).
Ieppert holds
that ex post
facto claims are
not subject to
Texas's
procedural
default rules
because they are
based upon a
categorical
prohibition
against
government
behavior, not an
individual right.
See id. at 220.
Though the legal
basis for
Callins's
claim is not
entirely plain,
we divine two
possible
contentions.
First, he might
argue that the
state actually
waived the
protection of
Rule 9(b).
Assuming
arguendo that
the state may
waive that
defense, but cf.
United States v.
Flores, 981 F.2d
231, 236 n. 9
(5th Cir.1993)
(holding that
district courts
may raise abuse
of the writ sua
sponte), the
state has
vigorously
pressed it in
this case.
Second, and more
likely,
Callins
might contend
that we should
determine
whether
consideration of
this particular
petition would
intrude
significantly on
the interests of
the state in
federalism and
finality, taking
into account the
views of the
Texas Court of
Criminal Appeals
as to whether a
particular type
of claim should
be subject to
forfeiture.
While the
Supreme Court
could have
mandated such a
case-by-case
analysis, it did
not; instead, it
held that we may
consider a
second petition
only if the
petitioner shows
cause and
prejudice or
actual innocence.3
As Ieppert is
not relevant to
either inquiry,
we are
foreclosed from
holding that the
state court
impliedly waived
its government's
right to plead
abuse of the
writ.4
While this
appeal was
pending,
Congress enacted
the
Antiterrorism
and Effective
Death Penalty
Act of 1996,
Pub.L. No.
104-132, 110
Stat. 1214. That
act would
require us to
dismiss a claim
presented for
the first time
in a second
habeas petition
unless it relies
upon a legal
theory or
factual
predicate that
was previously
unavailable to
the petitioner.
A claim
presented in a
second or
successive
habeas corpus
application
under section
2254 that was
not presented in
a prior
application
shall be
dismissed unless--
(A) the
applicant shows
that the claim
relies on a new
rule of
constitutional
law, made
retroactive to
cases on
collateral
review by the
Supreme Court,
that was
previously
unavailable; or
(B)(i) the
factual
predicate for
the claim could
not have been
discovered
previously
through the
exercise of due
diligence; and
(ii) the facts
underlying the
claim, if proven
and viewed in
light of the
evidence as a
whole, would be
sufficient to
establish by
clear and
convincing
evidence that,
but for
constitutional
error, no
reasonable
factfinder would
have found the
applicant guilty
of the
underlying
offense.
Id. § 106(b)(2)
(to be codified
at 28 U.S.C. §
2244(b)(2)) (emphasis
added).
Callins
concedes that he
could have
presented his
carving doctrine
claim in his
first petition.
In fact, he
contends that
his counsel was
ineffective for
failing to do
so. Thus, §
106(b) would bar
us from
considering that
claim if that
subsection is
applicable to
cases pending on
appeal at the
time of its
enactment.
Congress did not
specify an
effective date
for § 106 as it
did for § 107 of
the Act. Because
we lack
discretion to
consider
Callins's
challenge under
either McCleskey
or the
antiterrorism
act, however, we
need not decide
whether § 106
applies to this
appeal, and the
foregoing
analysis is
based on our
understanding of
McCleskey.
Finding this
petition to be
an abuse of the
writ, we AFFIRM.
The Eighth
Circuit arguably
has found that
prisoners are
not responsible
for petitions
filed by counsel
who failed to
satisfy an
implied
effectiveness
requirement of §
848(q)(4). See
Murray v. Delo,
34 F.3d 1367,
1373-74 (8th
Cir.1994) (enunciating
exception to
McCleskey for
cases in which
counsel files
petition without
client's
knowledge), cert.
denied, --- U.S.
----, 115 S.Ct.
2567, 132 L.Ed.2d
819 (1995);
Holmes v. Norris,
32 F.3d 1240,
1241 (8th Cir.)
(holding that
habeas
attorney's
conflict-of-interest
is cause for
failure to raise
ineffective
assistance of
counsel claim),
vacated, 32 F.3d
1244 (en banc),
cert. dismissed,
--- U.S. ----,
115 S.Ct. 379,
130 L.Ed.2d 328
(1994). The
Eighth Circuit
cases do not
attempt to
distinguish
Coleman, however,
and to the
extent that they
hold the state
responsible for
statutorily-inadequate
counsel, they
are inconsistent
with that case
Callins
contends that
two of our
cases, Sones v.
Hargett, 61 F.3d
410 (5th
Cir.1995); Smith
v. Collins, 977
F.2d 951 (5th
Cir.1992), cert.
denied, 510 U.S.
829, 114 S.Ct.
97, 126 L.Ed.2d
64 (1993),
suggest that
Sawyer applies
to any
constitutional
defect if, but
for the defect,
the defendant
would have been
"ineligible" for
the sentence.
Each case
involves an
allegation of
error relating
only to
sentencing, not
conviction, and
neither
questions the
square holding
of Fearance
See Schlup v.
Delo, --- U.S.
----, ----, 115
S.Ct. 851, 861,
130 L.Ed.2d 808
(1995) (stating
that if a
petitioner fails
to show cause
and prejudice, a
federal court
may review his
claims only if
failure to do so
would result in
a miscarriage of
justice);
Fearance, 56
F.3d at 637 (same)
Even if we had
equitable
discretion,
Ieppert would
hardly end our
inquiry. Rule
9(b) protects
not only the
states'
interests in
finality and
federalism, but
also the federal
courts' interest
in not expending
resources on
unnecessarily
repetitive
litigation. See
McCleskey, 499
U.S. at 491-92,
111 S.Ct. at
1468-69
