*1 Myers’ allegations regard found that the POLITZ, SMITH, Before KING and them ing advice investment Judges. Circuit continuity prong satisfy Finkle failed to We pattern requirement. Id. BY THE COURT: Menasco, Wasserman, Inc. v. agree. See application Cir.1989). Moreover, is an for a Before the court probable stay allega certificate of cause and rely on their Myers are unable to in David Lee Holland’s first fed- execution that Finkle deceived others because tions stay petition. The specificity eral habeas allegations lack “[t]hese pending this court’s en banc of con is GRANTED show a ‘distinct’ threat needed to Collins, decision in Graham v. No. 88-2168 tinuing racketeering activity.” at 684. on the docket of this court. Because hold that we Myers failed to properly concluded SMITH, Judge, JERRY E. Circuit pattern, need

sufficiently allege RICO dissenting: grounds relied not address the alternative court. from the decision respectfully dissent colleagues to my and conscientious able dis- compels to remand Our decision in this matter. stay of execution grant a to exer- reconsider its refusal

trict court to for a has shown basis majority pendent jurisdiction over the state law cise or for the interfer- constitutional claims. process that is state criminal ence PART, IN AFFIRMED IN REVERSED stay of execution. implicated PART, REMANDED. AND I. majority failed to

Specifically, address, show, whether stan- or even have been of execution dards established in this case. It well satisfied granted may *2 170 court, involving penalty phase following questions can be an- district

only if the of his trial. affirmative: swered in the made a (1) movant has whether III. on the of success showing likelihood of has made merits, (2) the movant whether capital Holland was indicted for the mur injury if the irreparable showing of a der of Helen Barnard while the course (3) granted, whether stay committing attempting to commit rob substantially stay would granting of the bery. The offense occurred in the course (4) whether parties, and the other harm robbery savings loan Holland’s of a stay serve the granting amply forth in branch. The facts are set public interest. Ap of the Court of Criminal peals affirming appeal. on Holland’s direct Butler, 74, 823 F.2d 77 Celestine 307, State, 761 311- See Holland v. S.W.2d denied, 1036, Cir.), 108 S.Ct. cert. denied, (Tex.Crim.App.1988), cert. (1987). 6, As to the first 97 L.Ed.2d 796 1091, 1560, 103 L.Ed.2d 863 in a requirement, have elaborated that (1989). case, the movant need not capital “while probability of success on the always show a IV. merits, present a case he must substantial legal question merits a serious on the indictment, Following unitary Holland’s a that the is involved and show balance 26, February on 1986. trial was conducted equities the other three [i.e. factors] selection, pleaded guilty After granting the weighs heavily in favor of charge capital murder. The McKaskle, O’Bryan stay.” then returned affirmative answers (5th Cir.1984) (brackets 991, origi special questions two Texas it was Indeed, below, nal). the issues as discuss required pursuant to answer to former fall far short of 37.071(b)(1),(2). Art. Tex.Code Crim.Proc. constituting a substantial case on the mer Appeals then af Criminal its, of success much less one of likelihood State, firmed. Holland v. 761 S.W.2d 307 merits.1 on the (Tex.Crim.App.1988), 489 U.S. 1091, 1560, II. (1989). timely Holland filed a state 26, corpus July for writ of habeas 1989. is scheduled to David Lee Holland On the Texas Court of October midnight on December executed after Appeals opinion denying Criminal issued an 11, 1991, he filed a 1991. On December Holland, 70,- parte all relief. Ex No. See corpus and mo- petition for of habeas writ 16, 1991). (Tex.Crim.App. Oct. in federal district stay tion for state trial court then set Holland’s execu 17, 1991, the district court. On December midnight tion for time after on De some petition for of habeas court denied the writ appeal, 1991. On Holland rais cember corpus, probable cause to a certificate support only es two issues motion execution, and an appeal, a eviden- stay: mitigating evidence and the vol- tiary hearing. granted It the state’s mo- untariness of confession. summary judgment peti- and the tion for request proceed pau- tioner’s forma V. hour, peris. At this eleventh Holland now court, requesting primary certificate As his claim in this comes to this special probable and a of execution. Holland asserts issues an- cause jury pursuant inno- swered to Tex.Code Holland makes no assertion of factual precluded jury from points fifteen in the Crim.P. art. 37.071 cence raised some (5th Cir.1988), Certainly precedent vacated on other there is in this circuit deciding capital panel's another grounds, case while 110S.Ct. 108 L.Ed.2d issues, case, raising arguably pending related (1990). rehearing Selvage Lynaugh, See en banc. there question of whether relevant considering evidence com- Holland would probability that and was trial sentencing phase violence. acts of future evi- mit to that full giving issue is special second (Only the dence. before the effort primary *3 attorney con- here, Holland’s as question hearing to that show sentencing was the the answer it should jury that ceded past and criminal no violent had affirmative.) The in the special issue first question was result the incident that affirma- issue, answered statutory second pressures and financial family and specific “a there is is whether jury, by the tively continuing overall reflect not did would com- defendant the that probability acts of violence. future commit tendency to would that of violence acts mit criminal peaceful attorney argued that Holland’s society.” to continuing threat constitute he hard-working past showed that future; the he way the likely be that forth Holland’s As set Hol- that had mitigating evidence that Holland shown supposedly asserted also exemplary work had ac- included had he done presented for what land morse criminal crime, any violent record, thus the lack for his responsibility cepted imme- capable candid of rehabilita- past, a indicating that he was coop- full arrest, Holland’s diately after his tion. the investigation of state’s in the eration inis stark evidence of this The nature guilty plea, crime, unconditional Holland’s There, evi- Penry. the that in to contrast Penry v. In history. family troubled and a child abuse retardation mental dence 2934, 106 302, 109 S.Ct. U.S. Lynaugh, jury that a in the sense mitigating was the that held the Court (1989), L.Ed.2d culpabili- Penry’s lessen it to consider could juries precludes scheme special issue Texas scheme, as Texas the defect ty. The to certain mitigating giving from however, that such was Penry, to applied evidence, specifically, mitigating types of miti- as considered be could evidence of child abuse case, evidence Penry’s issue special of the second in terms gating the Penry applied retardation. mental in that it aggravating be only could Lynaugh, Franklin v. holding of likeli- indicating a interpreted as could (1980), L.Ed.2d This is dangerousness. of future hood Texas the acknowledged that by the “two- Penry meant the what Amend- Eighth the issues violate special mitigating evi- Penry edged” nature is either evidence if the defendant’s ment instruction, a that, additional absent dence: ques- special verdict to relevant “not Texas imposed under sentence death defendant’s “relevance or has tion” if the de- unconstitutional is issues special scope of beyond culpability moral against mitigates evidence fendant’s 185, 108 Id. questions.” special verdict wholly un- reasons sentence death concurring). J., (O’Connor, at 2333 S.Ct. special of—the independent to —and related that, assertion disagree with Holland’s Thus, argument, Holland’s inquiries. constitu- determining the purposes to mitigating evidence liken his seeking to sentencing scheme Texas tionality of the merit, he is entitled Penry’s, without is presented Holland, evidence applied argument. upon this based relief by presented that similar held consistently This court the evidence Penry. Unlike mitigat- here to be claimed evidence sort readi- evidence Holland’s Penry, Texas second within squarely ing fits an- jury in ly considered can be interrogatory special That interrogatory. second swering Lynaugh, Franklin under proper effect introduced evidence 2320, 101 L.Ed.2d 164, 108 S.Ct. attempt to show as an jury May v. Col- example, in (1988). For from aberration was an question crime Cir.1990), 228, 230 lins, character. non-violent normal — 770, 112 -, squarely fits evidence Accordingly, held that evidence (1991), we wholly issue, as it the second within pages. That court also filed script of 143 good employee habits and work good findings conclu- pages of of fact and five un be considered record could law, finding that “the confession sions interrogatory. “With the second der freely and voluntar- Defendant was actually May intro evidence regard to the any compulsion persua- ily made without phase, punishment during the duced on the trial of that it is admissible sion and conclusion court’s agree with case on its merits.” give effect to that was able special issue on fu through the evidence ad- record shows that Holland was (cit at 232 n. 4 dangerousness.” ture ministered his Miranda warnings when Franklin). Lynaugh, Russell In station, ing police even brought to the was first *4 Cir.1989), (5th 1205, arrest, 1214-15 892 F.2d not then under though he was — 2909, denied, U.S. -, 111 S.Ct. 115 knowingly, intelligently, and volun- he peti (1991), rights held that the with the tarily 1073 and talked waived background Immediately police could be after the decid- police. tioner’s crime-free a.m., him 12:20 he was that the “second to arrest at ed considered warnings again, time his Miranda at which provided the have special issue ... would speak longer he stated that he wished give miti an vehicle with request an police. He did not with the (citing Pen gating to that evidence” ques- there was no further attorney, and 2948). McCoy Ly In ny, 109 S.Ct. at tioning three hours at that time. About (5th Cir.), 954, naugh, 874 F.2d 966 later, magistrate he was taken before 2114, 1086, rights; he made no again of his warned (1989), we determined L.Ed.2d 674 statement, request attorney. nor did he an any had not shown petitioner fact that directly bore generally violent tendencies Chesson, had known Hol- Detective who regarding future dan- on the second prior investi- for some time because of land easily considered gerousness and “could instant gations of Holland unrelated to the Bridge Additionally, jury.” offense, by the to Holland’s house to execute went mod- 712, (5th Cir.), o’clock, Lynaugh, At 4:00 a search warrant. about (5th telephone Cir. from an- rehearing, on received a call Chesson ified grounds, stated that Holland on other 1988), other officer who modified on other wished Cir.1989), speak to Chesson. vacated F.2d 370 1013, 110 S.Ct. grounds, police returned to the station Chesson argued, (1990), petitioner L.Ed.2d 489 Holland and asked Hol- and sat down with connect- mitigation, that he had do Holland. Ches- land what he could inci- crime before the any violent ed with not a conversa- testified that this was son concluded that question. We dent Holland asked tion that he had initiated. properly be ad- “clearly could evidence arrange whether Chesson could Chesson Thus, law.” dressed under the Texas wife. Holland to meet with Holland’s arguable merit raises no issue Holland testified, he had “He said that Chesson limited evidence regard to the things he wanted to tell her and some jury, words, as the I he, tell me what that he in his would then know, you you give ample effect to that evi- or I tell what wanted to will was able agreed to sum- jury interrog- to know.” Chesson through the second want dence specifically testi- Holland’s wife but mon atory. Hol- make a deal with fied that he did not VI. land, that Holland’s agreement such as an only if Hol- made available wife would be that the state secured a asserts Holland then confessed. land of a from him the absence silent, in right to remain valid waiver and said she Holland was called Mrs. Arizona, available, of Miranda Hol- immediately would (1966). get some he wanted to land decided that Significantly, talking her. thorough with conducted a rest before The state trial court Chesson, Holland in his conversation with matter, producing a tran- hearing on this confession, this issue regard to a.m., mentioned 4:30 approximately at merit. any present to be have would Chesson wife, but and his Holland meeting between an meeting with if were him that “I told VII. so, I do not be able attorney, would well-reasoned of its section final In the alone_” De- them to leave points raised fifteen analyzing to Holland mention this further spite appeal, last minute at the (and the avail- attorney of an availability frustration expressed its attorney if an privacy ability of additional the habeas timing of with during no time Holland present), were Quite properly, to it. attorney. requested conversations these as follows: explained its view approximately appeared Holland Mrs. all has examined The Court her husband with met a.m. and were motions pleadings and noAt minutes. twenty-five approximately they obtain suggest that did Holland time 2,400 pages of including approximately left, Mrs. After attorney. delivered testimony which to talk down sat Chesson *5 December, day of 16th on the Court if he wanted Holland Mr. “I again. asked acknowledgement his And to me.” to talk to the case is called Specific attention Then to know?” want you do was, “What Petitioner-Appel- Bell, Jr. of Walter crime the confess proceeded Holland Director, Lynaugh, lant, A. v. James Chesson. Corrections, Re- Department Texas’ find- detailed made court trial state The dated October spondent-Appellee, ad- voluntariness regarding ings by Circuit written 1988—an The court confession. missibility Judge Jones. making confes- prior concluded 338 stated: page The Court rights as warned sion, was recently reiterated has Court "This “did then by Miranda required petition awith frustration its attorney right to an his knowingly waive the sched- prior to only week one filed voluntarily without freely and did then execution, Lynaugh, v. Bridge uled threats, compulsion, by any being induced Cir.1988) (ellipsis F.2d oral con- made persuasion, or promises, original).” found specifically The court ..." fession. Hutchins, 464 In Woodard Chesson, con- which with interview 377-378, S.Ct. en- confession, “was initiated stituted pronounce- following (1984) appears noted that The by Defendant.” tirely ment: Mi- separate three received developing in right to to be his pattern invoked seems warnings, never “A randa review multiple “free- confession oral counsel, gave capital cases been have could found that The court voluntarily.” claims which ly and brought for- voluntary and ago are entirely years was “the fashion— it meal piece was and that in a enticed” ward—often not coerced was is set date intelli- knowing and the execution after “pursuant only courts Federal guaranteed rights all imminent. becomes gent waiver to tolerate —even continue should Miranda.” type abuse capital cases—this support record state corpus.” of habeas writ that, required as finding court’s the trial it fits petition, views As this 96, 104, 96 Mosley, 423 Michigan v. rules purview exactly within (1975), Hol- 46 L.Ed.2d S.Ct. in Bell Fifth Circuit stated was questioning” cut off “right to land’s supra, (1988)], Lynaugh Accordingly, [858 honored.” “scrupulously Hutchins, supra. Woodard shown constitutional attorneys Remarkably, petitioner’s expressed by appeal. sentiments agree of the hour on the regard. Al- blamed the lateness court in this the able district The statements courts and state. Appeals is- of Criminal though the Court astonishing and seek to 16, 1991, petition are on October sued its decision any petitioner his counsel of absolve almost attorney for the waited filings. responsibility for the last-minute 11, 1991—to two months—until fol- example, petition contains the For doc- petition. habeas That file lowing statements: exhibits, long, plus pages ument post-conviction proceed- accompanied by twenty-one-page Mr. Holland’s and was ings by a com- and for evi- have been characterized motion or re- plete lack careful consideration hearing. There is no excuse for dentiary time, the view. ... Since that treatment life delay person’s this sort of when of Mr. Holland’s issues has been swift hangs in the balance. wholly inadequate.... very sepa- raised fifteen The habeas first court could moment that the district are, points, rate all which arguments of both considered the merit, found, and most without approximately p.m. on parties was and, in several entirely vapid are Sunday, December cases, Presumably, counsel frivolous. Instead, respondent its answer.... on one or two mer- have concentrated hours, the district court less than a much more time- issues and filed itorious pleadings took the filed and dismissed Instead, petition. ly and succinct habeas petition. petition, filed less than a week the habeas held Mr. Hol- The district court has date, in- the scheduled before providing for an land’s *6 “Resolving these formed the court hearing argument evidentiary and thorough review of require a claims will Stay acting on his Motion for transcript pages of at nearly one thousand Execution, today, until documentary at state records trial and a.m., only 13 hours before Despite the seriousness post-conviction. [ ] execution. Mr. Holland’s scheduled matter, complexity of this case and for Mr. Holland has therefore Counsel only days Mr. to the Court before comes Appellate required to file these been execution.” Holland’s scheduled adequately pleadings without time to prompt did a federal district court read, digest, respond the District reviewing the voluminous job of and able Court’s Order. comprehensive producing a record and Likewise, this is now faced with Court opinion. While the case twenty-four-page penalty case with a voluminous a death court, submission to was under only a few hours before the Re- record filed, on December puts Mr. Holland to spondent/Appellee motion for supplemental forty-seven-page a not rush Mr. death. This Court should hearing evidentiary stay of execution and Holland to his death without considered reply that had responding to the state’s claims, for adequate and review of day earlier. This demon- filed one been time, arbitrary the first because attorneys have petitioner’s strates that Nor limit set his execution date. turning large difficulty out volumes rush him to his death should this Court notice, perceived it is short work on District Court’s eleventh because of the file matters petitioner’s benefit to to be to hour actions. promptly. Estelle, 463 U.S. ... [Barefoot Indeed, (1983),] hours approximately four within review, opin- implicates right appellate district court’s of the issuance ion, attorney, imposes obligation assisted on the federal petitioner’s Center, “give instant careful attention” filed the courts to Texas Resource non-frivolous consti appli- first instance to all motion for twenty-nine-page claims_ Mr. Holland has probable cause to tutional for certificate of cation thus showing, and a such made Barefoot stay of grant that this demands suffi- itself a to allow in order deter- to consider opportunity

cient Mr. Hol- constitutionality of

mine permitting the before sentence

land’s death. put him to

spondent fuller attention

It is obvious case, both this given to been if appeals, rather promptly been hour. eleventh at what amounts

than unfortunately all amazing, It indeed are filed common, these matters

too here, that a with, plea minute last the court for necessary in order stay is consideration

give full inconsistency in such internal

claims. their petitioners by habeas approach is self-evident.

counsel well- respect my greatest

I have colleagues who senior and more

intentioned panel this majority

constitute to issue decision their case, how- of this facts Under the matter. prerequisites

ever, I conclude must estab- stay have not granting are issues petitioner’s

lished and circum- these Under merit.

wholly without

stances, respectfully dissent. *7 America, STATES

UNITED Plaintiff-Appellee, HAGMANN, Defendant- F.

Robert

Appellant. 91-4031.

No. Appeals, States

United

Fifth Circuit. 18, 1991.

Dec. 29, 1992. Jan.

Rehearing Denied