*1 180 given by
While we are to understand cor- cise discretion in the administration of its respondence from counsel judg- that a final own contrary docket policies underly- subsequently ment entered the dis- ing Anti-Injunction Act. trict court one month after this case was The element of discretion that inheres argued panel, before this that does not this class certification determination must be change disposition present our of the appeal, emphasized. Indeed, one apply Texas court given discretionary nature of the class ing the federal collateral estoppel rules con certification generally. determination cluded that estoppel collateral did not bar
The denial of
relitigation
class certification is
of the class certification issue in
procedural ruling,
“a
collateral
part
to the merits
aspects
because even those
of the state
litigation....,”
of a
Deposit Guaranty Nat.
class action rule which are identical to the
Roper,
326, 336,
Bank v.
445 U.S.
100 S.Ct.
federal rule have sometimes
applied
been
1166, 1173,
(1980),
63
427
L.Ed.2d
and the
differently by the state
Morgan
courts.
v.
as
certify
decision
to whether to
Credit, Inc.,
a class lies
360,
(Tex.
Deere
889 S.W.2d
368
within the “wide
(14th
discretion”
the trial
Dist.)
court. App.
writ).
1994, no
— Houston
Shipes
Ind.,
Trinity
311,
v.
987
Therefore,
F.2d
the Texas court concluded that
Cir.),
denied,
991,
cert.
510 U.S.
identity
necessary
issues
to collateral
548,
(1993);
also,
Co. v. 883 S.W.2d
App. 1994, writ); no Ventura v. Ba — Dallas nales, 423, 905 S.W.2d 425 (Tex.App . —Cor
pus writ), Christi a Texas court
might well exercise this discretion in a differ ent It manner. is our considered view that BOYLE, Herbert Petitioner-Appellant, the wide discretion inherent in decision as to whether or certify not to a class dic v. tates that each juris court —or at least each Gary JOHNSON, L. Director, Texas De- diction —be free to make its own determina partment Justice, of Criminal Institu- tion regard. in this See 18 Charles Alan Division, tional Respondent-Appellee. Wright, Arthur R. Miller & H. Edward Coo per, (“If § preclusion 4434 at 327 is to be No. 95-10802. denied, it ground should be on the many United Appeals, States Court of procedural may matters be so far discretion Fifth Circuit. ary that a second court should be free to determination.”). make its own This reason Aug. 1996. ing particularly is applicable when matters of state-federal relations are involved as in the
present injunction case an would upon
impinge
the state court’s ability to exer-
"tactically risky”
certification
due to risk of for-
See
Valley
Salazar-Calderon
Presidio
Fanners
feiting rights
present
claim).
merits of
Assn.,
(5th Cir.1985)
(re
F.2d
viewing predominance determination for abuse
clearly
applicable
is
"predominate”
This
to the
discretion),
denied,
cert.
475 U.S.
determination that formed the ultimate basis of
S.Ct.
Judith Angeles, Cristy Los Jo McElroy, TX, Canyon, for Petitioner-Appel- lant. Zapalae,
William Gen., Charles Atty. Asst. Attorney Office of the General for the State Texas, Austin, TX, for Respondent-Appel- lee. KING, GARZA,
Before M. EMILIO DeMOSS, Judges. Circuit GARZA, EMILIO M. Judge: Circuit Benjamin Boyle, Herbert sentenced to death for the Smith,, murder of Gail Lenore appeals the district court’s peti- denial of his tion for writ of corpus. Finding error, reversible we affirm.
I Gail Lenore Smith drove with step- her brother and sister-in-law to a stop rest out- Worth, side Fort planned Texas. Smith obtain a ride from a truck driver in order to her visit mother in Amarillo. She asked her relatives to write down the license number of boarded, the truck she in case anything hap- pened. A few minutes arriving after stop, rest Smith’s relatives ap- observed her proach driver, a male truck converse with him, and then cherry-red board his Peterbilt tractor-trailer. day,
The next passing truck driver dis- body, covered Smith’s naked bound with duct tape, concealed in a brushy area fourteen miles north of Although Amarillo. Smith’s relatives had failed to write down the truck’s number, they license give were able to au- description thorities a of the driver and the rights. Boyle’s constitutional violation inscription “JEWETT truck, including the (Tex. State, 820 S.W.2d Inc., Boyle v. Magnum Okla- SCOTT, Line Truck moved for re The state Crim.App.1989). the side on was written homa” banc, information, the Court Criminal hearing author- en Through this truck. itself, reinstating to Appeals reversed the tractor-trailer trace able to ities grounds that on the Scott and sentence conferring with Jewett conviction and after Boyle, the truck Oklahoma, to search consent learned Scott’s Jewett Truck Lines Diboll, adequate. Id. at constitutionally Tex- destination Boyle’s ultimate Diboll, Boyle’s petition gave Supreme Court denied The Boyle was arrested as. pursued then to search of certiorari. consent for writ investigators written *4 held, hearing was and truck, sev- A found relief. officers state habeas the truck.1 Inside findings of facts also its Officers trial court entered possessions. the eral of Smith’s denying Boyle’s habe- pubic law head and conclusions of and hairs from Smith’s found Appeals forcibly re- of Criminal petition. The Court area, had been some of court, holding that the addition, in stains the the trial blood affirmed In moved. findings and conclusions were consistent the truck lower court’s sleeper portion of a Boyle then filed Subsequently, by type. supported the record. blood with Smith’s strips in the relief on the for federal habeas petition were found Boyle’s fingerprints Smith, The district and fibers District of Texas. to bind Northern tape used of duct granted a cer petition, but body carpet the his matched court denied taken from Smith’s Boyle appeal. to probable showed of cause Medical evidence tificate Boyle’s truck. in deny anally raped, order orally district court’s appeals and now the had been that Smith instrument, petition. and ing stran- a blunt his habeas with beaten maintain to Boyle continued gled to death. stop at a truck dropped had Smith off
that he II unharmed. court argues the trial that dur- capital murder for Boyle was indicted his sexual admitting evidence of in erred attempting committing or of ing the course Boyle maintains that drawings. habits and assault, and aggravated sexual commit to First violated his of this evidence admission kidnap- course of during the capital murder his right to not have evidence Amendment was guilty, and tried Boyle pleaded not ing. expressions admitted and associations at trial consist- jury. The a evidence before is no sentencing. While there at against him linking to physical evidence of the ed of evidence to the admission “per se barrier indicating murder, the medical evidence the at and associations concerning beliefs one’s murder, and other evi- of the sexual nature those simply because beliefs sentencing with Boyle’s obsession show tending to dence First by the protected are associations guilty on all jury found The sex. may admit Amendment,” government and, hearing relevant after evidence counts indiscriminately. Dawson such evidence affirmative answers returned punishment, to Delaware, 503 U.S. 37.071 found in article special issues to the Supreme The L.Ed.2d As Procedure. of Criminal the Texas Code in order explicitly held Court has law, court sentenced the trial required admissible, be it must to be such evidence Boyle to death. involved. the issues sufficiently to related (disallowing evidence id. admission of See Texas Court appeal, the On automatic belonged racist defendant indicating that Boyle’s conviction reversed Appeals Criminal where prison in “Aryan gang Brotherhood” had his arrest been grounds on the crime component to the racial pur- there was unlawful, obtained thus if committed).2 Thus, must determine we in admitted had arrest been suant to that Su- Aryan Brotherhood. The gang, the racist to search obtained consent 1. Officers also Scott, stipulation inad- preme held that of the truck. owner Court Jewett vehicle from failed to show because state missible in based a death sentence 2. Dawson involved issue any way to an linked was in belonged ato part stipulation that Dawson aon issue, the evidence of sexual relations special ond danger- issue of future expressions sufficiently ousness, related to the to survive a challenge.6 Dawson sentencing. carefully issues at After review- state, According to the the evidence showed case, ing in the record this we hold that the sex, was obsessed with and that sufficiently evidence was related to the crime violence, he associated sex with facts which during committed to allow its admission ultimately sexually resulted motivated capital sentencing phase trial.3 carefully murder. After reviewing the rec- ord, we believe the state satisfied sentencing,
At
the trial
the re-
court first admitted
quirements of Dawson.
Supreme
all the evidence that had
As the
been admitted at
Dawson,
guilt-innocence
Court
phase, including
many
noted
“In
three let-
...
eases
testimony concerning Boyle’s
ters and brief
associational
might
legiti-
serve a
preoccupation
purpose
with
mate
put
showing
sex.4 The state then
that a defendant
on additional
concerning Boyle’s
represents
danger
society.”
future
Dawson,
sexual
concerning
habits and evidence
fense in violation
dictates of
v.
lied
this case.11 As the district court
83,
noted, however,
1194,
court,
Maryland, 373 U.S.
83 S.Ct.
10
the state trial
in re
(1963).
viewing
petition,
L.Ed.2d 215
made find
ings of
rejecting Boyle’s
fact
contentions that
process
In order to establish a due
perjured
Dr. Erdmann
himself in
government’s
violation based on the
use
findings
case. These
of fact are entitled to a
testimony,
misleading
false or
the defendant
“presumption of correctness” in federal habe-
(1)
testimony
that the witness’s
must show
proceedings.
Collins,
as
Williams v.
16 F.3d
(2)
false,
actually
testimony
that
was
—
(5th Cir.),
denied,
-,
626
cert.
U.S.
(3)
material,
prosecution
42,
(1994).
115 S.Ct.
187 dictions, many posi- as to his applied of correctness presumption come findings, tive traits. factual habeas court’s to the state the district court’s affirm and we therefore We review ineffective assistance testify not false- Dr. Erdmann did
ruling that
claims under the standard set
of counsel
jury.13
ly or mislead the
Washington,
v.
466
forth
Strickland
U.S.
(1984).
2052,
668,
L.Ed.2d 674
104 S.Ct.
80
Further,
reject Boyle’s con
we also
is a
Ineffective assistance
counsel
mixed
of Erdmann’s
that
the state knew
tention
question
fact which we
de
of law and
review
Boyle’s trial and failed
unreliability prior to
698,
2070; Bryant
Id. at
at
novo.
S.Ct.
impeachment pur
notify the defense for
(5th Cir.1994).
Scott,
1411, 1414
v.
28 F.3d
made a find
poses. The state habeas court
of a conviction or death
To obtain reversal
was not aware of
ing
prosecution
that
based on ineffective assistance of
sentence
shortcomings at the time
Erdmann’s serious
counsel, a
defendant
convicted
must show
finding is also entitled
Boyle’s trial. This
(1)
performance
that
his counsel’s
was defi
A careful
presumption
to a
of correctness.
(2)
cient,
performance prej
deficient
only
of the record shows
review
Strickland,
his defense.
udiced
U.S.
any
indicating
the state had
687, 104
finding
A
S.Ct. at 2064.
deficient
prosecution
Erdmann was
reservations about
requires
showing
that coun
workload,
performance
testimony relating to Erdmann’s
objective
performance
sel’s
fell below an
practices.
competence
professional
or
not his
by
of reasonableness as defined
standard
or
after the
It was not until 1987
In
prevailing professional norms.
Id.
trial,
prosecu
that the
completion of
given heavy
strategic decisions are
formed
possibility that Dr.
tion
alerted to the
Scott, 41
of deference. Mann v.
measure
autopsies and commit
Erdmann had falsified
cert,
—
Cir.1994),
denied,
F.3d
Accordingly, we
perjury in other cases.
ted
-,
court that
has
IV at trial. At that his counsel was deficient *8 hearing, trial counsel testi Boyle’s writ his Boyle argues that the district court erred evi did not introduce certain petition for habeas relief on fied that he denying in his Boyle’s background and concerning attorney rendered inef- dence ground that his to tactical reasons. As punishment phase of character for assistance at the fective family Boyle’s back Boyle, violent According to his counsel his trial. responded, “It ground, counsel would significant mitigating evi- trial present failed to it, put aggravating.” As counsel his counsel or have been that was either known to dence trying keep as much violence as to known to his counsel. “We should have been record.” Coun possibly could out of the that his counsel did not we maintains illness, of his abu concerned that evidence violent sel was present evidence of his mental think, jury cause the to deprivation, sive father would family background, economic father, to the evidence of intoxication, like son.” As voluntary drug and alcohol ad- “like (5th Cir.1996) (rejecting claim did not F.3d we find that the district court 13. Because finding upholding be- the habeas court’s false err state had a to correct testimony duty we find Dr. Erdmann did not also testify falsely, failed to show that cause defendant Dr. Erd- the state had no to correct false). duty was actually Johnson, Faulder v. See mann's testimony. abuse, stated, counsel “It V drug and alcohol aggravating.” con- have been Counsel would appeal pend- We note that while this was beneficial, tinued, think “I it was did ing, Congress passed The Antiterrorism and jury to tell this particularly in 1986 he Penalty Effective Death Act of Pub.L. ... truck driver.”14 pill popping was a (“AEDPA”). No. 104-132. 110 Stat. 1214 strategic made decisions not to Counsel also Boyle’s draw- put statutory provi- into evidence non-sexual The AEDPA modifies the testimony of other women ings,15 and the corpus sions relevant to all habeas cases. Boyle had had sexual relations.16 with whom include, inter alia: a one changes year These essence, all the evidence that main- In cases; statute of limitation for habeas new pun- have been tains should procedures obtaining ap- a “certificate of capital trial phase of his murder ishment courts; pealability” to the circuit and limita- Mann, See quality.17 double-edged F.3d See petitions. tions on successive habeas heavy (noting deference owed trial generally however, §§ Congress, 101-106. deciding strategically forego when to counsel specify §§ did not an effective date for 101- admitting edged of a “double na- reject Boyle’s peti- 106. Because we habeas ultimately might harm a defen- ture” standards, tion under the old which we read case). Accordingly, dant’s we find that permissive, as more we decline to address strong presump- has failed to overcome Congress general whether intended these informed tion that these tactical decisions provisions apply appeals pending to when were reasonable under the circumstances. AEDPA was enacted. See Callins v. Id. satisfy has thus failed to the defi- Johnson, (5th Cir.1996) Strickland, ciency prong of and we hold that (declining applies to address whether the Act rejecting court did not err the district where it would make no Boyle’s petition grounds on the difference case). provided his counsel ineffective assistance.18 outcome of Additionally, illness, possible Boyle’s mitigation eveiy 14. As to mental the de- ble witness. But time I talked people, that the fense concerned evidence would not to some of these the I—there were other Further, mitigating. problems be the defense was con- associated with it.” counsel concluded, they put psychiatric why cerned that if on such evi- "That's we didn't talk about his dence, put psychiatrist amphetamines the state would on its own driving use of while a truck. testify Boyle's as to violent tendencies. why That's we didn’t talk about his alcoholism. why That's we didn’t talk about the child abuse. testified, Boyle's why counsel That's we damn sure didn't talk about his sex life.” Well, Boyle, being because Mr. while a rather artist, types articulate there were two of art reject Boyle’s 18.We also contention that trial capability that he delved in. He had the adequately investigate possible counsel failed to drawing you a small kitten that looked so soft mitigation testimony during evidence. pick Counsel's up pet would want to it it.... He hearing they the state habeas tempted indicates that at- ability also had the to draw masochistic sadis- great mitigation to talk ato number of type depicting bondage tic cult art women in witnesses, supplied by Boyle himself. As type counsel under the throes of demonic men. And I it, put most of these witnesses "were as harmful type don't think that that was the of art that good or more so than the that could convincing jury come from conducive to not to kill fact, it.” In family addition, several members of own him. against sentencing. testified him at In *9 Boyle's 16. counsel testified that all the women Boyle’s counsel was aware of most of willing testify Boyle's good who were to as to the evidence that claims his counsel would having nature were women with whom he was through investigation, have discovered further it, Boyle's put adulterous relations. As counsel they but had decided that the evidence was more put womanizing "If I in about alcohol and his helpful Boyle’s According- harmful than to case. running around on his wife and his ly, say Boyle's we cannot counsel was inef- running girlfriends, around on his that is not failing adequately investigate possi- fective in to Amarillo, going mitigating be a Collins, factor Tex- mitigation ble evidence. See Anderson v. as.” Cir.1994) (holding 1220-21 investigate that failure to did not rise to ineffec- testified, "Well, Boyle's every 17. As counsel fami- tive assistance of counsel because the evidence ly cumulative, unknown, possible mitigation member I talked possibly to was was either or defense). Every girlfriend possi- witness. I talked to was a harmful to the appli- of review standards alters the AEDPA America, cases, arguably of UNITED STATES penalty to death
cable Plaintiff-Appellee, Al- scope of our review.19 restricting the appli- that it shall be specifies § though on or after “pending to all cases cable STEWART, Defendant-Appellant. Kelly Act,” is this the state of of enactment date stan- more restrictive to the No. 95-10461. only entitled de- provisions, if certain of review dards Appeals, States Court of United counsel, are appointment signed to ensure Fifth Circuit. un- reject Boyle’s claims we Because met.20 review, decline to we old standards der the Aug. 1996. its burden has met whether Texas
address the Act.
under
VI reasons, the district foregoing
For deny Boyle’s petition for
court’s decision AFFIRMED. corpus is
writ of habeas concurring:
KING, specially Judge, Circuit done a able habeas counsel issues” job developing “Dawson
remarkable case, scholarly brother has my
in this treat- generous the extensive
been most majority in the provided issues
ment of those to that I am reluctant to subscribe
opinion.
treatment, however, concur and I therefore judgment.
in the only cases, applicable if the state is 20. Section 107 penalty Act limits review In death restrictions, establishes, adjudicated subject "a questions in the to certain of law to those only deci- compensation, reversal if the appointment, state courts and allows for the mechanism to, contrary or involved an unreason- sion "was litigation expenses payment of reasonable of, clearly Federal application established able post-conviction pro- competent counsel in State Supreme of the Court law as determined indigent prisoners." ceedings brought by See ques- §See 107. As to factual *10 United States.” § 107. tions, "based reversal to decisions the Act limits the facts in determination of on an unreasonable light in the State court § proceeding.” See 107.