Davis v. Scott

KING, Before HIGGINBOTHAM and BARKSDALE, Judges. Circuit BARKSDALE, RHESA HAWKINS Judge: Circuit appeals The State of Texas the district grant court’s conditional of habeas relief to Davis, including James Carl Lee conditional sentence, commutation of his death based upon his contention that two Texas statu- tory special jury, issues submitted to the during trial, punishment phase of his prevented giving it from effect to of, alia, instability, inter mental Eighth violation of the and Fourteenth Amendments, Ly and as held in naugh, 492 U.S. 109 S.Ct. (1989). L.Ed.2d 256 cross-appeals, contending Teag that the rule announced Lane, ue v.

L.Ed.2d 334 does not bar him from challenging collaterally how the dire, phase of his as well as voir unconstitutionally by were affected the statu- tory proscription against disclosing to the hung jury or venire the effect of a on part, issues. We AFFIRM in part, REVERSE and REMAND with in- deny structions to relief. tence, appealed to this court unless the State

I. sentencing hearing with- a new or conducted 3,1984, Davis entered Early March hand, days. the district in 180 On the other Johnson, with- neighbor, Pauline of his home it from Teague prohibited court held her brutally attacked permission, out that Tex.Code considering Davis’ contentions result, the three of aAs young children. (pro- 37.071(g) (Supp.1986) art. Crim.Pb.oc. multiple skull frac- died due children four juror scribing disclosure to a venireman one of the of on the death tures. Based hung jury on the effect of a about the Yvette, of children, who exhibited issues) unconstitutionally the punish- affected capi- Davis of assault, jury convicted a sexual trial, jury voir as well as phase ment of his tal murder.1 dire. phase of the During the evi- of additional presentation the and after II. jury to an- the dence, instructed the court statutory special ruling on the challenges the three Texas State swer two jury claim; Davis, rejection of the is- Penry the the infra). Because (quoted issues 37.071(g). af- “In con- concerning issues both the sues article unanimously answered punish- corpus petition pre- firmative, sidering court assessed a federal habeas the trial custody, feder- injection. by petitioner The Texas in state by a lethal sented ment as death affirmed, of cor- presumption Davis v. Appeals courts must afford a al of Criminal Court findings. (Tex.Crim.App.1989); factual State, 211 state court rectness 782 S.W.2d 2254(d). the § denied cer We review Supreme Court 28 U.S.C. See United States error, 940, Texas, findings 110 for clear of fact 495 U.S. court’s v. district Davis tiorari. (1990). Bar law de novo.” any issues 2193, 520 decide of 109 L.Ed.2d but S.Ct. Cir.1992), (5th 634, Collins, 636 958 F.2d nard v. in Texas state sought habeas relief — U.S.-, denied, 113 S.Ct. rt. ce findings fact and making of After court. (1993). of 990, 142 “Evaluation 122 L.Ed.2d (who pre- law, judge of the state conclusions challenge petitioner’s constitutional trial) denial recommended at Davis’ sided is, applied him special issues as and, opinion, relief; unpublished in an habeas Collins, v. course, Madden an issue of law.” Appeals denied of Criminal Texas Court (5th Cir.1994), 304, cert. de 306 18 F.3d that relief. — 1114, nied, -, 130 115 S.Ct. U.S. 1992, to 28 U.S.C. pursuant September (1995). 1078 L.Ed.2d habeas 2254, sought relief. § federal habe- Davis seeks say, because Needless summary judg- moved for After the State determine, thresh- relief, as a must ‘“we magis- ment, matter was referred him relief matter, granting whether old granting judge, who recommended trate ’ con- “new rule” of create a he seeks 1993, relying on But, in November motion. v. Teague. Graham law” under stitutional law, de- district court intervening case 892, -,-, Collins, 113 S.Ct. 506 U.S. be- It recommendation.2 clined follow Penry, (1993) (quoting 897, 260 122 L.Ed.2d Penry claim— had raised lieved that 2944); 313, at accord 109 at S.Ct. 492 U.S. likelihood a reasonable existed there (5th 1223, Collins, F.3d 1230 18 Motley v. in a jury issues applied that the — U.S.-, denied, Cir.), cert. considering the it from way that prevented (1994). 418, L.Ed.2d 333 130 abuse, psycho- childhood mitigating effect of which rule” is one Teague, a “new It Under disorders, mental retardation. logical obligation on the States “‘imposes a new his death sen- commutation ordered the Sub report recommendation. magistrate’s completely in Davis more are stated 1. The facts Motley 211, (Tex.Crim.App.1989), superseded v. State, Motley sequently, I was 782 S.W.2d 219-20 v. denied, denied, - Cir.), (5th Collins, S.Ct. 495 110 rt. U.S. cert. F.3d 1223 ce 109 (1990). U.S.-, L.Ed.2d 130 L.Ed.2d 333 S.Ct. thus, court's the district changing the basis large opinion based in is court’s 2. The district grant relief. of habeas conditional Cir. Motley F.3d 781 part 1993) I) (Motley decided after which was ” must, or the Federal Government’ or was upon request, provide instructions that by precedent existing “‘dictated allow the give to consider and time the defendant’s conviction fi- became effect to that Penry, evidence. 492 U.S. at ” [Graham, -, nal.’ U.S. at 113 319-28, 109 S.Ct. at 2947-52.3 had (quoting Teague, at 897] 489 U.S. S.Ct. presented evidence that childhood abuse 1070). Supreme As the mental retardation left him unable to learn aptly extremely it difficult mistakes, from his but that the “‘to determine whether we announce a taking vehicle for new rule when a decision extends the rea- this into consideration. Id. at 308. ” soning prior ... (quoting cases.’ Id. Likewise, Davis maintains that Parks, 484, 488, 110 Saffle special give the a vehicle 1257, 1260, (1990)). 108 L.Ed.2d 415 by which it properly could give consider and Nonetheless, we are instructed that “un effect to tending mitigate evidence to his jurists hearing less reasonable [Davis’] culpability for murder of Yvette Johnson. claim at the time his conviction became He contends that evidence of mental instabil compelled by “wouldhave felt existing final ity and childhood abuse indicates that he was precedent’ favor, to rule in his we are prevented, Penry, learning like from from his barred from so now.” Id. (quoting grant mistakes. “To claim, relief on a Penry Saffle, 488, 1260) 494 U.S. at (1) we must determine that the ... evidence added). (emphasis constitutionally was relevant mitigating evi Motley, First, 18 F.3d at 1230. we consider dence, and, (2) so, ... Penry issue. beyond was ju ‘effective reach’ of the Madden, A. rors.” 18 F.3d at (emphasis 308 omitted). For the several alternate reasons The two Texas issues submitted to below, discussed we conclude that Davis’ jury during punishment phase of trial Penry claim fails. were: (1) you Do find from the evidence be- 1. yond a reasonable doubt that the conduct of the defendant that caused the death of The first inquiry Penry a claim is the deceased was deliberately committed whether the mitigating evidence is rele- expectation and with the reasonable vant. differently, Phrased does the evi- the death of the or deceased another would implicate dence the basic Penry concern of result? “that defendants who commit criminal acts (2) you Do find from evidence be- that are attributable to a disadvantaged yond a reasonable doubt that there is a background, or to emotional and mental probability that the defendant problems, would com- culpable less be than defen- mit criminal acts of violence that would dants who no have such excuse.” continuing constitute a society? threat Madden, 18 F.3d at (quoting 307 Penry, 492 Penry, In decided before Davis’ conviction 2947); U.S. at 109 accord All final, became Supreme Scott, ridge (5th held that v. 41 Cir.1994); F.3d 223 capital awhen defendant introduces evidence Motley, 18 short, F.3d at 1235 n. 10. background, character, about his or circum- evidence of a disadvantaged background, or stances that personal reflects a reduced cul- problems, emotional and mental does pability, and the raise, cannot ipso facto, effect to Penry claim. In order to the mitigating force of that present evidence in re- relevant evidence that one is less sponse issues, Texas’ the trial culpable court crime, for his the evidence must this, ‘‘[I]n 1990), a case such as which certifying question (Tex. was tried to 816 S.W.2d 390 decided, Penry petitioner (failure Crim.App.199l) need not request object does requested mitigating have an instruction on procedurally evi- bar claim when the trial dence, objected nor must he have prior to the lack Penry). infra, occurred As discussed 1229; such Motley, an instruction.” 18 F.3d at Davis did receive mitigation; an instruction on Collins, Selvage (5th see 897 F.2d 745 Cir. he asserts it was insufficient. discussed, that Davis failed as hereinafter hand permanent (1) “uniquely severe show “constitutionally rele- requisite was bur defendant with which icap[] address own”, We mitigating evidence”. Graham vant fault of through no dened (1) Cir.1992) schizophre- paranoid turn the evidence F.2d (2) disorders, violent sexual grounds, psychotic (en banc), nia on other aff'd (3) childhood. proclivities, L.Ed.2d abusive -, (2) act was attributable criminal that the a. Mad condition. permanent severe to this den, F.3d at court-appointed phase, At the Coons, who exam- Richard psychiatrist it clear Dr. has made court just testified prior relevance ined Davis have for evidence personality/behavioral from a a nexus Davis suffered issues, must be there review of Davis’ upon his and the disorder. Based mitigating evidence between Madden, files, opined Dr. Coons example, medical act. For criminal schizophrenia paranoid from Madden not suffer did testified psychologist clinical psychotic disorder. (specifi- any other disorder an emotional suffered Madden personality). anti-social cally, an present- addition, assuming Davis even testimony that a however, failed, to elicit paranoid from that he suffered evidence ed aggres- more is a disorder such person with psychotic disor- or some other schizophrenia or person, unaifiieted than an or violent sive linking any evidence der, he failed aggressive he, was more particular, in that Such a situation to the crime. that condition absent Also disorder. of the violent because Madden, where, to that in be similar incapable of Madden was that was evidence noted, present evidence Madden to distin- or unable impulses controlling his or violent be- aggressive more that he was this, upon wrong. Based right from guish he or that personality, of his cause anti-social there was insubstantial determined our court controlling impulses, his of incapable were criminal actions that Madden’s evidence wrong. distinguish right unable personality. anti-social to his attributable any psychiatric Likewise, failed to link Davis Id. to the mur- may have suffered problems he of Yvette Johnson. der instabil his mental that asserts Davis thus, crime, during the “acted out” were ities b. between demonstrating a connection hand, adduced evidence the other con On Specifically, he his condition. crime and had that Davis does indicate during the trial his indicated between a nexus is tends sexually be- deviant in previously engaged schizophre paranoid of “diagnosed condition surgery at foot undergoing havior. After sexual and violent nia, psychotic disorders six, several weeks spent the next age Davis of “the crime because and the proclivities” records reveal hospital. His medical in the children against female committed fense was reported nurses that, period, the during this re attack.”4 After during bizarre sexual a statements, continually made obscene findings, district viewing state court’s matters, ex- conclude, constantly sexual referred record, we findings, and the court’s [found], damage is report "Brain physician's by claim. for called are 4. Two observations original physi- [Emphasis in present.” First, change position appears to Davis event, find[s] no evidence any report.] This Court mentally cian’s retarded. he is whether petition organic brain disorder. findings Davis' habeas an of fact on of Second, trial) pro- (who presided that his sexual judge Davis' Davis' contention the state noted, during we are be- not. offense Davis was acted out were that were clivities presumption of correctness required against a "female children committed it was cause findings. stated: The court is those inconsistent during sexual attack" a bizarre Only surrounding the murders. with the facts [Davis is] evidence that finds no This Johnson, victims, was female Yvette one of behav- mentally There is evidence retarded. victims, sexually. other two and assaulted references are There some disorders.... ioral brothers, any did not exhibit appli- her damage presence of brain to the however, seven; assault. a sexual age in 1976 at the cant pressed desire to Ms have sexual tending relations to link these conditions with the them, with frequently masturbated Although crime.5 there was evidence of be- patients. front of age them and other At havioral problems, and mental Davis failed to for attempted rape was arrested of demonstrate how crime was attributable 35-year-old neigh- woman who lived in his to them. say, Needless to conclusory as- above, however, borhood. This evidence sumptions do not According- create nexus. does uniquely establish severe and ly, we conclude that there is insubstantial permanent handicap from violent sexual evidence that Davis either suffered from a proclivity, nor that the criminal act was at- umquely permanent severe and handicap, or any tributable such condition. that his criminal actions were attributable Thus, such condition. on tMs basis

c. alone, Penry claim fails. Barnard, “we recognized that an abused childhood could rise to the level of a Penry claim if the traumatic events caused alternative, In the assuming even psychological effects to which the criminal presented constitutionally relevant Madden, conduct was attributable.” 18 F.3d mitigating evidence, satisfy he failed to 308. As district court “there is prong second relief on a claim: no documented medical evidence of Davis’ beyond this evidence was the effective (Emphasis by childhood abuse”. district jury. reach of the We examine each of the court.) evidence, however, pa- There But, two so, issues. we neglect; rental and medical records indicate note after instructing on the two subjected have been issues, the trial court instructed also that Oftentimes, abuse. his mother would leave “[ejvidence presented mitigation young her six children alone at home for penalty may be considered jury should the days (But, times, at a time. at other desire, in determining the to answers either grandmother.) Once, would be with left his [special] issues”.6

when severely, his hand cut his mother days waited two taking him to the a. hospital; delay prevented tMs the doctors quoted, As special the first issue asks from being able to suture the wound. whether the defendant “deliberately acted solely upon Davis’ reliance medical records and with expectation reasonable that the youth from Ms does not Penry-tjpe establish death of the deceased ... would result?” evidence. There is no evidence that these The court instructed that “deliberately” incidents of were such a traumatic nature as meant “a manner of an act character- effects, alone, to cause psychological let that by ized or resulting from careful consider- Davis’ criminal act any was attributable to ation: ‘a conscious involvmg decision resulting psychological problems. thought process wMch embraces more than sum, In even we that assume Davis mere will engage in the conduct’”. As suffered conditions, from the claimed below, con- discussed upon and based this mstruc- spicuously absent at trial was evidence tion mitigation and the quoted instruction 5. example, For one of the ly, 37.071, "conditions” 2(d) § (Supp. Crim.Proc. art. TexCode upon mitigate relies culpability his 1995), is the fact provides that: that he ment, baby”. argu- was bom a "blue At oral charge jury court shall the that: attorney his stated that this condition (1) ..., deliberating in [special] on the it "sounds to me. And bad if he's blue it means shall consider all evidence guilt at admitted the lack oxygen possible of damage.” and brain stage or innocence stage, and the Davis fails to demonstrate how his criminal con- duct was attributable to such a condition. including evidence of the defendant’s back- ground or character or the circumstances of 6. We note approximately also the offense mitigates that six militates years and against after imposition one-half Davis' penalty. of the death legislature Graham, special (discussion amended the issues statute See 950 F.2d at 1012 n. 1 of problem address the Penry. Specifical- amendment). raised the 1991 his background diminished jury an retardation had that Davis’ above, conclude we imposition of the and made allegedly culpability his moral to consider vehicle appropriate unable would unwarranted be evidence; penalty an additional death require mitigating juror if the to cre- to that conclusion give be effect (third) for Davis would instruction on collat- the crime law committed constitutional believed of also a new rule ate Id., ‘deliberately ”. review. eral S.Ct. at issue, are we examining first Penry, men- of concern of the basic mindful short, the first with fault who commit “that defendants earlier: tioned clarify the Penry was that it issue in to a disad- are attributable criminal acts concluded “.deliberately”. The Court term or to emotional background, vantaged culpable than may be less problems, mental jury defin- of instructions absence [i]n the Pen no excuse”. have such defendants who way would “deliberately” ing Thus, 319, 109 at 2947. ry, 492 U.S. fully jury to consider clearly direct ability of a Penry deals with gist of it bears Penry’s and, culpability a defendant’s jury to consider sure culpability, we be personal cannot his appropri anis determining whether death jury effect to was able that the to exercise to be able punishment, ate Penry’s re- mental mitigating evidence response” to evidence tend moral “reasoned history abuse in answer- tardation culpability. mitigate that ing to special issue. ing first however, ease, the Pen- Unlike the Penry, 492 U.S. at meaning of instructed on jury ry was hand, “delib- the definition of the other On assump- Proceeding on the “deliberately”. have to Davis’ erately” provided “deliberately” understood tion that Penry’s jury to consider his clearly directed “intentionally”, something more than mean it on his and how bore mitigating evidence “[bjecause Penry recognized that the Court under personal culpability. thus less able ... and retarded mentally issues, jury was foreclosed Penry’s impulses his adult control than a normal inability “to control considering his his con- consequences toor evaluate consequences to evaluate the impulses or ... conclude duct, juror could ... [a] in- Penry jury been Had the his conduct”. morally ‘culpable than defen- Penry was less ease, it could structed, this it was in that as excuse,’ but who have no such dants who mitigation presented commonly consider term is ‘deliberately’ as that acted “deliberately” as that as well 322-23, 109 penalty, the Penry, 492 U.S. understood”. resulting care- or from Brown, was “characterized (quoting at 2948 S.Ct. California to consideration”, have able it been 837, 841, would 538, 545, 93 S.Ct. ful lack impulses or uncontrollable (O’Connor, J., his (1987) concur consider L.Ed.2d 934 added.)7 (Emphasis Penry’s of evaluation. that “juror ring)). who believed The on that reasonable doubt there is a closing argu- that now punishment phase's During the issue, that you’re going have to to answer ment, phrase attorney the in on homed Davis' question de- instruction no. consideration” from "careful "deliberately" jury to fining consider for the records special upshot [medical] issue: of these addressing the first of all when The or is so diseased mind is James Davis’ that so critical decid- words that are The two that, frankly, quite ladies damaged or whatever consideration”. ing question are this "careful carefully incapable of con- gentlemen, he's and sidering anything. words, [the you can answer In other con- yes, have to be special you issue] first under have been suggesting Davis that After any doubt that beyond reasonable vinced alcohol, attorney drugs or his the influence was carefully what he James considered continued: Okay? If he he it. going to do before did brought says we prosecution] haven't [The going do was carefully he considered what mean, you do that. you any experts to tell I you I did it. And before he submit something like bring expert on case, We need an though may gruesome it evidence in alcohol, Drugs in an Of course not. be, carefully that? that he simply does anything. show just take has already like right clouded mind you I submit considered sum, pro- these additional instructions could be considered special within the second vided with a Davis’ sufficient (future means to dangerousness) issue ag- was as an mitigating consider his evidence. To hold gravating at-, Id. factor.. they inadequate were require us hand, S.Ct. at 2669-70. On the other as also rule to announce a new of constitutional law discussed, Penny claim does not arise when on collateral we are review—which foreclosed constitutionally relevant evidence “can be Teague. under given mitigating way effect in some under special Motley, issues”. 18 F.3d at b. (emphasis original). Having determined that the jury had an As present means, adequate through con- the first issue, stitutionally relevant mitigating evidence, to consider Davis’ evidence. so, need not consider whether Even background we second evidence that he continuing threat danger- did does not demonstrate that he issue— another, provided separate, ade- was unable to learn from his ousness — quate mistakes. To means. Clark v. See 19 F.3d contrary, it demonstrated that he re- — Cir.), denied, 963 n. 14 cert. sponded positively to a structured environ- -, U.S. 130 L.Ed.2d 344 ment. (1994). But, alternative, in the we turn to McKimmey, Gerald Frank who was whether, second issue. It concerns chief social future, worker at Hospital’s Austin probability “there is a State that the unit, adolescent would commit criminal defendant of vio dealt with during acts lence that would constitute continuing 1979 admission when years Davis was 16 society”. threat age. McKimmey testified that Davis did well in the structured environment at the unit.8 discussed, even the aggra evidence is Additionally, McKimmey read Davis’ social vating, long mitigating aspect as the history report prepared upon within the jury, effective reach of the admittance to requirements the unit. Eighth Under recommenda- Amendment are — tions, Texas, report satisfied. proper placement Johnson stated: “a U.S. -,-, 2658, 2669, 125 outside the L.Ed.2d home can be obtained for this patient Court noted that only gain and he can some direction in a way Penry’s the evidence of positive mental way. condition insight He has to this need got whatever little he's control it they throw out change. need to And [Davis] was able the window. Who knows what he negotiate was under? system quite well. attorney regarding concluded his comments the first issue: Q ... Did [Davis] seem to like the structure you say beyond Can a reasonable doubt that system? and the reward carefully James Davis considered what was Quite A well. going to do before he did it? No. Given his Q respond Did he to that? mind, crippled given and what the facts Yes, A he did like it. He liked it in the sense show, show, they offense and what don't there it, quite that he did [y]es, well he and'— way escape is no to that doubt. I submit to did. you question that should be answered no. McKimmey also discussed a coding five-color system the adolescent unit utilized to identify to punishment phase, 8. At the on direct examina- patients progress. their green He identified attorney, tion Davis’ McKimmey testified as highest as the color but "fairly described it as follows: rare, somebody because when high, reaches that they're ready go. words, violent, mean, to Q they're In other Was a bullyish [Davis] [sic] quite Later, kid, type McKimmey well". as kids these went? testified Put that in highest “[Davis] had context for us. achieved the color level No, mean, system”. in Subsequently, A our bullyish he was anot Davis kind was down- [sic] graded fairly unit, of kid. He because pro- was of an successful in our at the incident but gram, McKimmey as a matter of quite "phenomenon fact. He dismissed was as a this on system gradu- successful. We a have level patient adolescent treatment units” wherein the system, whereby ated—a level pro- upon we can causes an learning they incident are vide kids with feedback as to their discharged. what scheduled to be attempt, by It is an ’ behaviors are what patient, and kind of stay behaviors in the unit. by Teague, Accordingly, his claim is barred somewhere to find he wants indicates on this the district court and we REVERSE into the home.” than go other else issue. Adcock, special education Davis’ David tes- grades, and seventh sixth in the

teacher B. learning dis- that, although Davis was tified self-esteem, he was a low and had abled jury that if it instructed the The trial court young- man”. “tender-hearted, very kind special “yes”, sen- answered both described same at this time Another teacher death; “no” to if it would be answered tence creative, very very ... “cooperative Davis as both, either, be con- the sentence would or calm, please”. anxious for See Tex.Code CRIMPROC. finement life. 37.071(e) It then (Supp.1986).10 Ann. art. indicates present did Davis The evidence any may issue not instructed: “You answer may have condition he despite whatever unanimously. You you agree ‘yes’ unless change under, subject was suffered unless ten or any issue ‘no’ not answer his mis- to learn from was not unable jurors agree.” See TexCode more Crim. evidence, and the earli- this takes. Based on 37.071(d) But, (Supp.1986). art. instruction, jury Davis’ ProcAnn. mitigating quoted er law, inform the it did not pursuant to Texas the second to answer “compelled” not was to answer either if it unable was affirmative; it could in the special issue issue, sentenced to would be there was to what evidence mitigating effect See Tex.Code imprisonment. life CrimProc. regarding his condition.9 (Supp.1986).11 37.071(g) Ann. art. conclusion, independent bases there are (1) statuto- cross-appeal centers on the Davis’ fails: concluding that the claim imposed 37.071(g),- ry proscription in article constitutionally rele- counsel, precludes evidence; but, assuming it on the court vant jurors or venire- disclosing to the beyond them from not that evidence was presented, agree on a of the failure to men the effect jury under either the effective reach (3) pro- this act) Davis contends that special issue. second (2) (deliberate the first punish- impermissibly the scription affected issues. dangerousness) (continuing jury, voir as well phase of his ment make a claim within does not Because Davis challenge article raising his dire. seeking a new rule Penry, he is ambit of seeking a is 37.071(g), that he he maintains review. on collateral law of constitutional finding negative juiy is argument returns during closing at the example, 9. For under issues submitted acknowledged attorney unable answer phase, Davis' article, the defen- court shall sentence envi- well in a structured that Davis functioned Department Texas dant to confinement ronment: for life. of Corrections dangerousness as it on this future Let’s focus legislature. amended Texas he is He—If really concrete world. is in the provision is in 1991. This issues statute going penalty, given death form, at Tex presently, a modified codified Department serve a life sentence 37.071, 2(g) (Supp. § art. Code Crim.Proc.Ann. environment is his That future of Corrections. 1995). about, talking don’t need and I that we are very envi- structured anybody that it is tell words, satisfy if the could In other ronment. Rule", then requirements of the "12-10 would be "hung juiy” result and Davis you will see themes the main But one of imprisonment. TexCode to life sentenced Crim. you put through reports when is that all these provided, in 37.071(g) (Supp.1986) ProcAnn. art. teenager, or whatever he boy, this this little pertinent part: stage, with a lot of in a was at that situation structure, good. pretty He did damn state, did court, attorney or the for good. not inform attorney the defendant juror of the effect juror prospective or a 37.071(e) (Supp. 10. ProcAnn. art. TexCode Crim agree issue submit- jury to on an failure 1986) provided: article. ted under this substance, now, at provision is codified finding on This jury returns an affirmative If the 2(a) 37.071, (Supp. § article, art. under this issue each submitted TexCode Crim.Proc. 1995). If to death. the defendant court shall sentence interpretation” past prece- Teague. “reasonable Id. at 96. Davis attacks Webb as dent, by Teague. “incorrectly not a rule barred new decided”. In addition to claim-

ing rule”, this is not a “new he tries to 1. distinguish by contending Webb that it should bar, have procedural been decided on a based matter, preliminary we turn As a to Davis’ Teague. not on the basis of contention that the district court erred in considering challenge whether his even can dispute “[TJhere be no that a decision 37.071(g) by Teague. article was foreclosed announces a new if expressly rule it over that, He maintains because State did not Graham, prior rules a decision.” U.S. Teague response raise the bar either its -, any event, despite S.Ct. 897. In petition summary judgment his habeas or its protestations, Davis’ controlling pre Webb is motion, the district court should not have E.g., Watkins, Washington cedent. v. Teague sponte. considered sua 1346, (5th Cir.1981) F.2d 1354 n. 10 (prior panel subsequent decision panel binds unless however, that, recognizes, even decision), intervening en banc Supreme Teague, does not raise State court denied, rt. 456 U.S. 102 S.Ct. ce still has discretion to consider it. “[A] feder (1982). 72 L.Ed.2d 474 not, may, al court apply but need decline to Teague if argue the State does not it.” Cas 3. — Bohlen, pari U.S.-,-, 114 S.Ct. 948, 953, (1994); 127 L.Ed.2d 236 see also prohibi asserts next that the — -, Farley, -,

Schiro v. U.S. against tion informing a venireman of the (1994). 783, 788, But, 127 L.Ed.2d 47 hung jury effect of a deprived him of ade Davis contends under the facts of this quate proper information'on which to case, the district court abused its discretion. peremptory challenge. exercise a He claims fails, however, develop contention; He impediment that such an to defense counsel’s and, we fail to see abuse of discretion.12 seeking information process during voir dire constitutes constitutional error.14 Regardless, identify any pre- Davis fails to statutory proscription indicating cedent seeking that he is not being foreclosed the advised on the new rule on collateral Although review. de- hung jury effect of a either of the fense counsel is question entitled to venire- issues. Davis maintains that such a limita men in peremptory order to exercise chal- tion deprived the of relevant and materi lenges intelligently, Davis has failed to dem- al information that was crucial its delibera onstrate disclosing provisions how of arti- process. tive 37.071(e) cle to a venireman pro- affects this Collins, Webb v. F.3d 93 Cir. cess. regarding Concerns whether a venire- 1993), rejected virtually we identical con man will stand firm in the face of overwhelm- tention. statutory Webb contended that the ing opposition jurors from fellow can ade- proscription Eighth violated the quately and Four be addressed without disclosing to Amendments;13 teenth but we held that con that venireman statutory effect of three precluded by sideration of such a claim was or more “no” Accordingly, votes. Davis’ sec- address, decide, 12.We need not nor do we proscription 13. Davis claims the violates also the may require State’s contention that Graham Fifth and sua Sixth Amendments. Graham, sponte analysis Teague. See at-, 987; Nethery 993 dissenting), juror Davis’ contention assumes that bias or (5th Cir.1993) J., F.2d (King, 1162-63 misconception automatically derives from disal- - denied, -, t. U.S. lowing cer the venire to be informed of the effect of a (1994); Schiro,- 128 L.Ed.2d 87 but see essence, permitted deadlock. In if a defendant is -, ("Although U.S. at 114 S.Ct. at 789 we hung jury to disclose the effect of a on the undoubtedly venireman, have the discretion to reach the ato his counsel would be able Teague argument, State’s we will not do so in through single to sift the venire to locate a "no" circumstances"). these vote.

467 .accuracy nature as to “so distort” 37.071(g) is foreclos- article challenge to ond special issues. jury’s to the answers by Teague. ed 4. ap rules be Teague, new Under challenged the constitu- Noting that he has they only if come proceedings in habeas plied every stage 37.071(g) at tionality of article exceptions”. narrow “one of two within (trial, petition in appeal, Saf on direct 486, 1259. The 110 S.Ct. at at

fle, 494 U.S. certiorari, habe- in his and federal and state place applies to new rules exception first encourages this court proceedings), Davis as beyond the conduct category of an entire Teague: exception to additional to create an law or addresses of the criminal reach has that he if a defendant demonstrates accorded categorical guarante[e] “substantive complaint every in raised his constitutional 494, 110 at at S.Ct. Id. by the Constitution”. (for forum, rejected reasons and it has been 329, 109 1263, Penry, at (quoting 492 U.S. default), then, delay procedural than other 2952). applies exception at second S.Ct. Teague, a federal court notwithstanding proce of criminal new rules “watershed challenge. of his review the merits should necessary fundamental to the that are dure” before, this for the first Davis raises pro criminal accuracy of the and fairness essence, Regardless, in appeal. time 495, Id., at ceeding. 494 U.S. Teague an additional asking us to fashion exception is latter Davis claims the Rather, is but exception. his contention in case. implicated this apply us the second attempt to have further however, failedj he does not meet. Teague exception; to raise one Accordingly, court. the district issue before us, and before properly is not

this claim III. time on for the first considered should be reasons, in we AFFIRM foregoing For the 623, F.2d 86Ó Lynaugh, Earvin v. appeal. part, in and REMAND part, REVERSE denied, (5th Cir.1988), 489 U.S. cert. 628 deny habeas relief. instructions to with (1989). 1558, 103 1091, L.Ed.2d 861 109 S.Ct. us, properly were this claim Even concurring: Judge, specially KING, Circuit Butler, Sawyer in v. noted as this court and Cir.1989) (en banc), (5th majority that the panel F.2d 1273 agree 881 I with aff'd Smith, 227, 110 Sawyer v. 497 U.S. in manner the nom. consider some sub able to (1990), mitigating, the sec by 111 L.Ed.2d 193 proffered S.Ct. evidence 1223, 1235 designed Collins, to redress Teague exception is Motley ond F.3d v. see — U.S.-, denied, that “so distort Cir.), violations constitutional cert. leave one with judicial process as to 130 L.Ed.2d 333 judicial has been no that he impression that there habeas relief grant Davis the federal all, skew the actual rule” at else create a “new requests determination would be to now disposi law, Teague trier of fact’s crucial to barred of constitutional “A rule that Lane, Id. at 1294. tion of the case”. S.Ct. 489 U.S. only (1989). exception agree must not that Webb qualifies under this I also L.Ed.2d ‘ (5th Cir.1993), accuracy, “alter our under controls

improve but also 2 F.3d 93 ele procedural appeal. I concur standing of the bedrock cross of Davis’ the outcome pro affirming part, of a in judgment to the fairness ments’” essential in the therefore 242, 110 in remanding S.Ct. ceeding.” Sawyer, U.S. with reversing part 311, 109 Teague, (quoting deny U.S. relief. at 2831 habeas structions v. United (quoting at 1076 Williams 1171, 1180, States, 667, 693, 91 S.Ct. (1971) (Harlan, J., concurring

28 L.Ed.2d 388 dissenting in part judgments to demonstrate

part))). Davis has failed 37.071(g) is of such proscription of article

Case Details

Case Name: Davis v. Scott

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 19, 1995

Citation: 51 F.3d 457

Docket Number: 93-08855

Court Abbreviation: 5th Cir.