Jackie Vance Lowery v. W.J. Estelle, Jr., Director Texas Department of Corrections, Respondent

allegation robbery indictment’s the JOHNSON, Before RUBIN and Circuit “by using exhibiting was committed Judges, and DUPLANTIER,* District firearm, gun.” to wit: a The was motion Judge. law, granted; under Texas its effect towas charge reduce the to the lesser included JOHNSON, Judge: Circuit robbery by offense of assault. Cross State, 474 (Tex.Cr.App.1971); S.W.2d 216 Lowery Jackie Vance stands convicted of Merritt, (Tex.Cr. Ex Parte 262 S.W.2d 725 robbery by firearms. The district court App.1953). The case tried on re found no violation jeopardy, of double due dacted indictment. Over Lowery’s plea of process, or the sixth amendment in his con- guilty, jury returned a conviction viction, request and denied his for habeas punishment and assessed at a term not corpus relief. We affirm. less than five not more than five hun years. dred I. A later, few months the Texas Court On an October afternoon in two Appeals Criminal reversed convic- men brandishing guns strode into the busi- tion of murder with malice its reliance ness of the City vending office Service ma- on in evidence seized violation of the fourth chine as firm the employee owner and an State, amendment. 499 S.W.2d up counted the day’s receipts. The thieves (Tex.Cr.App.1973). The trial sub- court businessmen, terrorized the them forcing sequently granted Lowery’s motion for a gunpoint to lie face down on the floor in a charge.1 new trial on the robbery A consol- back room. One guard stood awith .357 proceeded original idated retrial in- magnum; began the other gather the dictments, important but with an differ- bags change. But before the scene was prior retrial, ence: at some time in a out, played a machine serviceman returned in manner undisclosed the record on appeal, to the office from his rounds. The thief robbery the State revived the indictment’s carrying a .357 magnum felled as him he allegation of use of a firearm. Lowery was serviceman, entered. Patterson, The convicted, Morris but time again of murder died a half hour later. robbery by with malice and firearm.2 He * Judge apparent District An Eastern District of Louisi- failure to correct the indictment ana, sitting designation. allegation for the State’s reinsertion of use of a firearm left the record in for procedural prohibit second conviction some confusion. The 1. Texas rules the trial mal record of verdict of conviction and sen ruling court’s comment on the evidence in “robbery trials, tence denominates motions for new Vernon’s Ann.C.C.P. assault,” report however, as does the of the Texas appears, Court art. It 40.07 that the Appeal’s unpublished per grant of Criminal curiam of the motion was related to the reversal affirmance. magnum, of the murder conviction: the .357 however, 1976). was, (Tex.Cr.App. jury shotgun bags sawed-off and the coins charged fire on the elements of illegally improperly seized and admitted arms and the sentence authorized for that of placed murder trial were also in evidence only imposed is fense. The sentence consistent robbery trial. with conviction with firearms. prosecution. vindictive spectre raised ninety-nine years to terms of

was sentenced dispelled problems, raised the having But for each offense. purely he found to them: the first post-conviction applications Several law, and the second chim- problem state before us The one now relief followed.3 erical, sentence returned on identical, sequen- presented four claims less severe than second conviction the state courts and petitions tial adopt- district initially imposed. charged, district court. federal resolution and denied magistrate’s ed the aggravation first, striking that the relief.4 as a operated to his first prior element acquittal functional the four issues Lowery’s appeal reasserts subsequent trial on unex- rendering his and federal district presented state violative of purgated indictment court, arguments on the expands and argued He that certain clause. magistrate. the federal identified punish- the reputation evidence admitted at not properly the latter are conclude that of his trial and the phase ment of relief on the us affirm denial before argument prejudi- were so of that evidence former. proceeding cial the fundamen- as make finally, he inef- unfair. And claimed tally II. on assistance of counsel at trial and fective argues the Lowery vigorously summar- appeal. Although the state courts in his was twice violated process due clause as ily rejected “totally the claims without robbery with fire charge retrial merit,” slightly the matter took a different claims, first, striking that the He arms. mag- district court. The turn in the federal allegation irreversibly stripped the firearm petition was re- istrate to whom jurisdiction the convicting court of over the him, ferred, like before the state courts original indict offense under greater no relief in claims found basis charges that the State’s ment. He also however, presented. He suggested, im greater charge to the retrial return two substantial deficiencies had potentially effec upped the ante after his permissibly magis- attention. The escaped Lowery’s appeal. Two tive exercise of his challenged had not Lowery trate noted that our immediate reso principles prevent firm validity the State’s revivification points as claims: the State lution these robbery of the indictment portion firearm; time out, argues both for the first also use of a noted charging state rem appeal, after in this and has exhausted that retrial on conviction the lesser vacation edies neither.5 by proceedings probably in feder- the first to be followed The state of the formal verdicts corpus. attributable to the fact the verdict was al habeas instructed, “guilty expressed, as the court magistrate’s report response to the charged in indictment.” The Texas Court Lowery expressly disavowed reliance on thought Appeals seems have Criminal prosecutorial vindictiveness. He did opinion fact be the case: its memorandum validity question of the not address at all the “robbery identifies the conviction as of firearms,” the indictment. S.W.2d 358 appel- (Tex.Cr.App.1976), notation Acceptance of State’s ar- nonexhaustion “judgment and sentence late record states that gument, in this raised for the first time also need to be reformed to show defendant] [the contrary appeal, not in these circumstances with firearms not convicted of rule of refusal to consider to our established are assault.” We not told whether the rec- exhaust, see Messelt v. late claims failure has been reformed. We know that in ord so do Alabama, State of 595 F.2d 250-51 subsequent post-conviction proceedings all jur- Cir.1979). failure to exhaust relief, Lowery, the State and the Texas courts prosecutorial isdictional vindictiveness one for rob- have all treated conviction as prior simply in issue to his claims bery with firearms. Court, ante at note presentation of in this them 4; argument applications post- the nonexhaustion therefore has filed three raised, compare belatedly Messelt n. 7. Texas This is conviction relief courts. good appre- jurisdiction A bedrock of sense and keen no derives wholly state capabilities controlling of other forums law validity ciation for of Texas indict appears what sometimes underlies be ments. Texas courts have held that maze of Byzantine procedures governing dismissal indictment conclusively collateral attacks on state criminal convic- jurisdiction. ousts the trial court of Garcia Dial, Supreme tions. Recent Court decisions 596 S.W.2d 528 (Tex.Cr.App. emphasized requisites Minus, have to federal Ex Parte Tex.Cr.R. appellate consideration of state-confined A subsequent order corpus petitioners’ pleas. purporting Duck either to reinstate the cause or Serrano, worth enter judgment initio, thereon is void ab 70 L.Ed.2d 1 admonished that even a Garcia at Ex Kirby, Parte 626 S.W.2d per se violation of a criminal defendant’s (Tex.Cr.App.1981). The defect rights, appearing constitutional clearly waived, cannot but can be raised at record, does not initial justify point post-conviction considera- in direct or proceed the unexhausted claim in the ings, Kirby Cannon, Court Ex Parte of Appeals, compare Stuckey v. Styn- 266, 267 (Tex.Cr.App.1976); S.W.2d chcombe, Cir.1980) Wainwright v. Sykes, 433 Tifford v. Wainwright, Lowery argues (5th Cir.1979) Wainwright, with Cobb v. striking that the allega indictment’s 966, Cir.), denied, F.2d 968 n. 1 cert. tion of use of a firearm tantamount to -U.S.-, 2906, 73 L.Ed.2d dismissal of the greater see Brad ley State, 923, Cf. Rose v. Lundy, (Tex. S.W.2d 925 n. 1 1198, (1982) 71 L.Ed.2d Cr.App.1970), argues and from settled (requiring complete exhaustion of all claims principles governing dismissal in of whole presented prisoner’s in a state proceeding dictments that a conviction entered on a for corpus prior to a federal district charge including a reinstated element of court’s petition). void, consideration of the aggravation compare Pull- Ex Parte Swint, man-Standard Traxler, 456 U.S. 147 Tex.Cr.R. 1781, 1791-92,

5.Ct. (1982), (according jurisdictional effect dis to addressing a related in principle a different of portion charging missal of indictment context, admonished appellate offense). courts to re- felony capital be a unearthed, frain in all but cites, the clearest of circumstances and our research has no arg initial, from independent fact-finding. precedent directly addressing Texas Lowery’s allegations bring some of the rea- ument.6 for sons these principles appellate proce- requirement, The in its most exhaustion dure sharp into focus. aspect embodying respect fundamental jurisdiction

An absence of capabilities convict the coordinate state courts is, claims, ing a basis for in enforce federal constitutional directives corpus justice federal habeas cognizable proceedings, relief un Picard v. state criminal 270, 275, 509, 512, der the process Connor, due clause. Branch v. Es 404 U.S. telle, (5th Cir.1980); (1971), special sig- F.2d takes on Beto, Cir.), Bueno v. are where claims nificance constitutional enmeshed with state law. Bueno at (1982); Beto, L.Ed.2d 140 of a consti- Murphy Murphy Lowery’s at 100. claim 98, 100 (5th But, jur- Cir.1969). convicting defect in the court’s tutional juncture turn acknowledges, at this predicate appears conclusion isdiction indictment,” argument, argued id. S.W.2d at was not At oral the State return to a made in consideration a Whitehead v. 162 Tex.Cr.R. merely previously It that re- S.W.2d 947 that under Texas stricken. states establishes procedures charge originally grant or a new trial reinstates trial tried on differ- separate originally charges in the indictment as drawn. But White- ent returned a indictment “original s endorsement of retrial does not violate the clause. head’ substantially redefined firearms8 with pro- of Texas with question on a technical solely and rob- robbery9 aggravated exhaus- offenses of law. Enforcement cedural au- the claim modified the relinquishes significantly requirement bery10, firearms, law dimen- and state both its constitutional penalties. Robbery thorized province instance to in the first any sions death or term not punishable earlier courts. the Texas years,11 became form than five less by life im- robbery punishable aggravated problem plagues A somewhat different ninety- five to any or term from prisonment allegation: prosecution Lowery’s vindictive rob- penalty ordinary years.12 nine Lowery’s criminal events extraneous from or term bery decreased life subsidiary- the neat prosecutions destroyed 13 a years term two less than five charges relationship between the principal argues or fine.14 The twenty years, State proceedings, in the first and second brought penalties aggrava- the new that because for. injected approximate a debate over equivalent to and in part are in ted After equivalencies relevancy. their formerly than those availa- second, part less severe but before assault, it could not be robbery by ble penal new code effective.7 Texas became pursuing vindictiveness existing guilty of- supplanted new code proseeu- second offense robbery by fenses of assault (2) intentionally knowingly Leg., 6(c) provides or threatens § Acts 63rd Ch. bodily places imminent that: another in fear of injury or death. (c) pending com- In a criminal on or action felony (b) An under this section offense menced Act, or after the effective date of degree. of the second ef- for an offense committed before the date, defendant, adjudged if fective V.T.C.A., states: § Penal Code 29.03 guilty, punishment under shall be assessed this Act if he so elects written motion filed Aggravated Robbery sentencing with the trial court before the hearing begins. (a) person if com- A commits of mits as defined in Section 29.02 proceedings of that such The course indicates code, this and he: punishment made: at the election was another; (1) bodily injury serious to causes phase jury argued the of counsel or punishments range on the of was instructed available under the new code. There ever, weapon. (2) deadly or exhibits a uses is, how- (b) felony this is a An offense under section right no record of election of degree. of first proceed to under the new code. See note 11. ante 8. provided: 8. former code assault, violence, by any by person If or or Code, V.T.C.A., provides: § 12. Penal 12.32 bodily injury, putting fraudulently life shall in fear of or First-Degree Felony Punishment person posses- or take guilty felony adjudged of a An individual any property with intent sion appropriate another by degree punished be confine- the first shall use, shall the same to his own he Department in Texas of Corrections ment for by peniten- punished in confinement be any more 99 or for term not than life life, tiary than for for a of not less or term years. years 5 or less than years; or dead- and when firearm other five ly weapon com- used or exhibited in the is 13. See ante note 8. punishment shall mission be by penitentia- in the death or confinement V.T.C.A., provides: Penal 12.33 § 14. Code years. any ry for not less than five term V.T.C.A., art. 1408. Penal Code Felony Second-Degree Punishment adjudged felony (a) guilty of a An individual V.T.C.A., 29.02 states: § Penal Code punished by degree shall be of the second Robbery Department Texas of Cor- confinement if, (a) person an offense A commits more 20 for term not than rections years committing theft as defined course of Chapter years. 2 or less than and with intent code (b) imprisonment, an individu- In addition property, or control of the obtain maintain he: guilty felony adjudged al of a second degree may punished by a fine not to be recklessly intentionally, knowingly, or $10,000. exceed another; bodily injury to causes Phillips indictment, wrongly claims that on the tion.15 to a legislatively-granted denied the cf. United 929 (Tex.Cr.App.1980); S.W.2d sentence. less severe Johnson, 54, States v. F.2d Wainwright v. Sykes, see 433 U.S. argument adequate Neither side of the 53 L.Ed.2d 594 S.Ct. reason for ly developed. prosecutor’s for proper on the offense is not The state court is the forum reprosecution at parties Neither have the record.16 consideration procedural question, compare attendant conse tempted exploration leading for of the events eligibility parole, for quences, such as reprosecution with 6;n. Blackledge, Miracle at 2103 firearms, examination, an initial Hardwick Most importantly, matter, of the of an in problems intricate of a possibility consideration of whether the punish terim redefinition of crime and its qua the sine invariably harsher sentence Klobuchir Commonwealth ments. non see vindictiveness, prosecutorial Pennsylvania, 966, 970-71 Cir.), (3d 639 F.2d Hardwick 299-300, or whether vindic may deprivation be found in tiveness 70 L.Ed.2d 474 reducing legislation penalty benefit of accordingly leave these matters tried, premature. for the first It proceedings other and turn to the claims possible is at least the Texas courts fully litigated in the state and district would consider this barred Low claim ery’s pre-trial failure to raise it in a attack courts.17 suggests it The State also is absolved of 102 S.Ct. L.Ed.2d reprosecution all taint of vindictive virtue of Jamison at 416-17. Where the exercise of a actually imposed by protected right by reprosecution the lower sentence is followed jury argument misperceives tried, retrial. The a more serious variant of the resentencing, arises, distinction between vindictive see presumption of vindictiveness Good- Pearce, North Carolina v. 395 U.S. 89 S.Ct. 8; Blackledge win 102 S.Ct. 2490 n. (1969); Styn Chaffin v. presump- n. at 2103 Mracle at 1277. The chcombe, L.Ed.2d may dispelled by objective evidence (1973), reprosecution and vindictive in re justifying prosecutor’s action. But Id. protected right, taliation for exercise of a justification post reprosecution hoc State’s post note 16. The issue the latter situation is greater charges is no substitute for an actions, prosecutor’s pro whether the viewed on-the-record examination of the spectively, apprehension create reasonable Andrews, actual reasons. United States v. protected right. retaliation for exercise (6th Cir.1980) (en banc). Miracle v. 1979); Doolittle, 292, Cir. Hardwick v. 558 F.2d 17. The total exhaustion rule announced Rose denied, (5th Cir.1977), 1049, 300 cert. 434 U.S. Lundy, 509, 1198, v. 455 U.S. 102 S.Ct. 71 897, 98 S.Ct. 54 801 L.Ed.2d That such (1982) require 379 L.Ed.2d not does dismissal apprehension unjustified proves in the end remainder of claims. Rose beyond because of events trol, con may held that federal district courts not enter Walker, compare 139, Jackson v. 585 F.2d i.e., corpus petitions, peti tain “mixed” habeas (5th 1978), 147 Cir. does alleviate the dam presenting tions both exhausted and unex age protected done to the free exercise of the thorny question hausted claims. The of the right. Miracle at United States v. Jami timing application of Rose’s was resolved in son, 407, (D.C.Cir.1974). 505 F.2d 415 Isaac, Engle the same season. v. 456 U.S. 107, 123, 1563, 1558, Miracle, 102 S.Ct. 71 L.Ed.2d 783 this Court considered a defend- (1982) against hybrid proscription trimmed the right ant’s free exercise his to a new petitions taking by to appeal, protected exclude those like a that hue to be retaliation, injections 1272, constraining of unexhausted claims which fears of id. at 1276-77; part petition.” compare Blackledge Perry, “formed no [the] v. 417 21, equitable 2098, (1974); sensible and result is that U.S. 94 40 628 refusal S.Ct. L.Ed.2d 148-49; consider unexhausted claim first identified Jackson at Hardwick at 302-03 with - Goodwin, by pressed Lowery -, magistrate by United and first States v. U.S. 102 2485, (1982); appeal require deny does not that we S.Ct. 73 L.Ed.2d 74 Ehl v. Low (5th Cir.1981), denied, every ery argued through' 656 F.2d 166 cert. 455 review of the claims 953, 1459, stage prior proceedings. 669 U.S. 102 71 L.Ed.2d state and federal S.Ct. Wade, 298, (1982); compare Ruppel, (5th v. 666 v. 12 United States Robinson 686 F.2d 304 n. denied,-U.S.-, Harris, 532, (5th Cir.), 1982); F.2d 261 cert. Cir. accord Sales v. 675 F.2d

340 has been set aside.20 a lesser variant tion on

III. not.21 it does We conclude that jeop that the double argues Ball, by prosecution 662, his v. clause was violated United States ardy 163 U.S. 1192, after convic (1896) with firearms 300 estab 16 41 L.Ed. S.Ct. venerable, was set aside.18 that there general tion for assault rule lished the retrying retrial on bar jeopardy are not concerned with is no double prose after has succeeded in overturn charge dismissed State defendant who compare Meyer, Wilson v. has been had The slate begun, ing cution his conviction. Pearce, denied, v. North Carolina clean,” 89 cert. (7th Cir.1981), “wiped F.2d 118 665 proceed Reprosecution can 1621, 71 L.Ed.2d at 2078. S.Ct. 993, 102 455 U.S. S.Ct. McClelland, statutory viola a different Midgett v. F.2d on the same or 547 (1982); 855 tion, statutory whether regardless of Cir.1977); allega indictment’s (4th 1194 to be the same or is considered prior stricken violation tion of use of a firearm was 279-98; Wil Hardwick swearing separate empanelment States, to this major exception v. son at 125. The Green United 355 U.S. jury, first If the 221, acquittals.22 fact-finder 184, (1957); 2 L.Ed.2d 199 rule 78 S.Ct. prosecu Bretz, 28, 2156, decides that v. appellate 57 an court Crist 437 98 S.Ct. U.S. case, in entire proved its either Rather, tion has not question 24 (1978).19 L.Ed.2d States, v. ty, Burks United 437 U.S. jeopardy prohib whether the double clause 2141, (1978), part, or in 57 L.Ed.2d 1 put its in issue in the trial on an offense Green, 225, the defendant original convic- 98 S.Ct. proceeding, once Rose, er, Cir.1979) overruling (6th (2d Cir.1982); Riv F.2d Butler 610 445 540 n. 6 text v. & Lucas, (6th Cir.), 1163, Cir.1982); (6th v. 477 F.2d 199 vacated 686 F.2d 1167 Powell ers v. 896, 163, Cir.1982); (9th grounds, Spalding, 414 U.S. F.2d other 679 165-66 remanded on Jones, Cosby (11th v. 1377-78 139 and Mull 682 F.2d 94 S.Ct. 1972). 1970); Kropp, (6th Cir. reed 425 1095 Cir. v. F.2d Anderson, (7th 514 583 States v. F.2d United fol- This claim and the claims discussed in Williams, United States v. Cir. lowing thoroughly sections were exhausted denied, Cir.), (8th 429 U.S. cert. courts, v. the Texas at note Daniels ante (1976); States United L.Ed.2d Cir.1982). (5th Maggio, F.2d Barker, Cir.1982); (9th Ward v. v. F.2d Cir.), Page, (10th 424 F.2d 491 unexpurgated suggests in- that the (1970); L.Ed.2d Only jury. may have read to the dictment been Foti, accord Moore v. 546 F.2d 67 supports his bare this claim. The assertion States, 1977); Harrington v. United clearly mo- docket sheet shows that State’s Cir.1971); ex rel. cf. United States granted at the strike made and Cir.1970), McMann, (2d 436 F.2d 103 Williams arraignment, prior acceptance denied, 402 U.S. 91 S.Ct. rt. plea. no Record at 55. has offered ce (North indicating Carolina evidence whatsoever Myles, inapposite); erroneously States v. Pearce United submitted the case affirmed, F.Supp. (D.D.C.), originally phrased. no 569 F.2d 161 indictment as We have question finding (D.C.Cir.1978); reason to district see also Santobello New court’s 495, 499, York, before reduced (indicating attached. a 427 that should L.Ed.2d withdrawn, charge guilty plea lesser on a 20. This issue was raised but not in reached will, course, plead petitioner “the of anew to Blackledge, Jamison, at 94 S.Ct. at 2101 and in felony counts.”); original charge on the two 10. in- n. Both cases were resolved post 23. but see note by findings prosecutorial stead of vindictive- process ness violative of the due clause. might precluded Reprosecution 22. also be aside for deliberate where the conviction set A number of circuits have considered provoke prosecutorial overreaching intended to plea question bargaining. in the of All context mistrial, Wade, v. jeopardy a motion for see Robinson have concluded clause Cir.1982), (5th 686 298 discuss- prevent prosecution greater at 306-308 does not on the - -, ing Oregon Kennedy, guilty U.S. 102 offense after a conviction entered on a plea v. 2083, 22, 2090, L.Ed.2d 416 to the lesser included offense is aside. S.Ct. 2095-96 n. 72 set Johnson, 968-70; (1982). Klobuchir at United v. States 537 F.2d 1170 Hawk v. Berkem

341 reprosecution to Its of a protected guilty the extent return verdict on the great- Missouri, acquittal. Bullington of that v. est offense nothing available it said 1860, 430, 1852, 101 U.S. S.Ct. Lowery’s about culpability for the still (1981). L.Ed.2d 270 greater charged offense originally but not before placed it. Neither can the trial Supreme The Court has defined “ striking court’s allegation of the of a use of acquittal ruling judge, ‘the what firearm be viewed an acquittal of that label, its actually represents ever [which] charge. Lowery produced has no evidence favor], resolution the defendant’s correct [in whatsoever that the convicting court struck not, or all of the ele some factual that section of the indictment it because charged.’ ments Martin Lin charge believed the to be without factual en v. Martin Supply States Linen [United basis.23 He has not shown that the striking Co., 564, 1349, 430 U.S. S.Ct. was necessarily, either under Texas crimi- 642], 571, 1355,”. at U.S. S.Ct. at procedures, 2,24 nal compare Hawk at 447 n. Scott, United States v. 437 U.S. premised or in fact on a determination of 2187, 2197, (1978). 57 L.Ed.2d 65 Green and allegation merits v. stricken. Cf. Price Georgia, U.S. S.Ct. Gully Kunzman, 26 L.Ed.2d 300 recognized partial Cir.), denied, acquittal implicit in a jury’s return of a S.Ct (1979) (double guilty verdict on a lesser jeopardy included offense bar following imposition no But death sentence charge. the necessary predicate to a second conviction for willful finding ac murder and quittal, express robbery whether or implied, is a armed where life sentence only was determination that sought imposed following fact-finder had a first convic full opportunity offenses). return preclu verdict tion for same No factual charge precluded, defendant claims charge sion on the of use of a firearm arose Green, rejected it. Price, guilt S.Ct. from the first determination of 1761. No trier of charge fact has lesser assault. No refused convict of fact were necessarily issues determined charge firearms. The of use of a firearm favor in in first trial. Ashe v. was Swenson, withdrawn before the first jury was 397 U.S. 1193- empaneled. jury That was not asked to L.Ed.2d 469 The sim consider gun whether used a in the ply proceedi was not issue the first commission Cities Service holdup. ng.25

24. Parker v. through acceptance aggravated robbery. The decision did not rest C.P. art. the former App.1981) actually as an accepting ant’s innocence on the lesser offense of on a determination Code cided vice after stricken, dering At robbery by shooting acquittal Morris Patterson or Criminal 37.14, the Texas Court of Criminal his very necessarily jeopardy provisions plea. for the petition deems an of moment Procedure, the of a under sentence for mur- higher grade greater charge prior determined guilty plea, contrary. during robbery, the trial court either him with adjudication Vernon’s Ann.C. allegation the Cities Ser- of the Texas in that case the Parker, gun. held that Appeals (Tex.Cr. operate defend- guilt was de- to Bullington, 101 sentencing proceeding at tencing following self a trial on the area having L.Ed.2d U.S. L.Ed.2d North more severe sentence that could have been against imposed. Clause ed, ally [133-138], 101 S.Ct. United Parallel retrial of double imposition therefore, 17, 23-24, Carolina v. States 714 328]; imposes after a analysis regarded original imposition (1973); 40 S.Ct. L.Ed.2d 656 Chaffin Court S.Ct. 93 S.Ct. of a reconviction. issue defendant has succeeded DiFrancesco, obtains no absolute conviction set aside. See Pearce, at 1857. as an Stroud v. United particular generally ^[426] of a harsher sentence constraints on resen- the first 1977, 1981-1982, 64 punishment, Stynchcom.be, “acquittal” Double 395 U.S. L.Ed. 103 at 435-A38 But where the sentence usu- has trial prohibition analogous Jeopardy See also conclud- (1919). States, requir- [66 36 it- fundamentally trial rendered that his prosecution believe that the do we Nor reputation evi- of- the admission prosecute greater by the unfair power its to lost trial, his prior punishment phase the requesting its dismissal dence at by fense jeop- prose- the by by first case. The two made arguments the trial of the the require stage. state ardy punishment clause does closing cution in all join single proceeding in a criminal by failing object to claims that He also episode, charges arising from one criminal arguments,28 challenged evidence with id. at 1193-95 compare Ashe S.Ct. jeopardy his double failing to raise and in concurring). (Brennan, at J. 1197-1202 attorney his rendered ineffective argument, for stood, it initial conviction Lowery’s Had appeal. at trial and on of counsel assistance precluded would have robbery by assault claims. no merit these We find subsequent proceedings firearms, prejudicial see Brown evi robbery with The admission Ohio, argument justify 2226-27 97 S.Ct. feder improper U.S. dence and if, his corpus only & L.Ed.2d 187 But relief in the con n. al “a trial was deliber- errors contribut decision seek new of the entire text forgo critical, highly significant his his valued part “crucial, ate election on ed as Estelle, his deter- 648 F.2d guilt factors,” Washington to have innocence fact,” Scott, denied, (5th Cir.), mined the first trier cert. U.S. (1981); preclusive yield at and to L.Ed.2d S.Ct. 102 S.Ct. conviction, id., Estelle, unchallenged effects of an Blankenship v. 2192-94; Ball, 1195. at Cir.1977),

S.Ct. imposed by perceive can no constraints But the is, course, scope clause inquiry the double predicate such prosecution Lowery after a defend- subsequent that error occurred. determination ant, charged, once convicted of all that was that the admission has failed to show voluntarily26 challenges and successfully and the ar reputation evidence than grounds that first conviction on other were error. The chal thereof gument evidence, Burks, insufficiency testimony evidence is the lenged reputation 970; Accord, at 2149-50. Klobuchir at during enforcement officer of a veteran law at 447-48. Hawk had a punishment phase community being reputation in bad

IV. abiding citizen.29 Low peaceful law it should not have been ery complains claims are The remainder of reputa charges put He because he had not his considerably complicated.27 less admitted merits, Thompson beyond ing proof facts claims on the State’s of certain 1981). penalty state trial reasonable doubt before the harsher penalty petition imposed, the return of a lesser rested could its denial acquittal post-conviction its considered an state relief on determination punishment, jeop- “totally more severe and the double that his claims were without several ardy attempts subsequent rely proce bars to secure clause Its decision not to merit.” Id., Gully accord it. 101 S.Ct. at dural default frees us to examine the merits of Jamison at 414 n. 10. Id. his claims. See ante note 21. 26. exchange following 29. identified offending testimony: exhausted, They fully note are also see ante 27. you reputation general Do know Q: community Jackie Vance suggests cor that federal habeas State being peaceful in which he resides pus Low review of these claims is barred abiding? law repeated ery’s comply failure to with the Texas Yes, I A: do. Sykes, rule, contemporaneous objection jury reputation good tell is that And Q: Sykes preclude But does or is it bad? petitioner’s of a constitutional federal review A: bad. It’s adjudicated the if claims the state courts have But, magistrate tion in issue. as the con know the danger- You evidence that he’s ous, you he will kill if he had to or if he cluded, to, that will grin wants and he about it. apparently misperceives Petitioner You know that. That’s evidence. So testimony. purpose Unques- such base you your verdict the evidence tionably presented during had it been you that have. guilt-innocent Petitioner’s portion nothing other than an intentional vilifi having without the Petitioner solely pas cation calculated to inflame the issue, his placed reputation admis- State, sion jury, Baldwin v. such testimony sion of would have been 7 (Tex.Cr.App.1973); S.W.2d v. Cooper However, punishment erroneous. in the State, 72 Tex.Cr.R. S.W. 424 phase of the the jury may consider agree the argument that alto- was not evidence which is relevant gether circumstances, suited to the but do assessed, in- appropriate sentence to be it preju- believe that was in this case so general reputation. the accused’s cluding princi- dicial to violate the constitutional Thus no error occurred. ples of fundamental fairness of the trial as Estelle, H, Lowery v. No. mem. a whole. The trial record discloses that two CA-81-187— op. (N.D.Tex. 2, 1981); April at 5 eyewitnesses positively Vernon’s identified who, the man in the 37.07(3)(c); Ann.C.C.P. art. Carrillo v. course of an armed robbery, coolly deliberately State, murdered 876 (Tex.Cr.App.1979); S.W.2d bystander. innocent The medical exam- State, Henry v. (Tex.Cr.App. 567 S.W.2d 7 iner testified that shot fatal was fired 1978). Lowery also claims that the evi no more than half inch from Morris Pat- dence was inadmissible because officer’s terson’s back. Extensive evidence of Low- knowledge reputation his was derived ery’s prior criminal record and his repu- bad solely investigation into the put context, tation was jury. before the State, trial. Wright See phase this punishment argument was so (Tex.Cr.App.1973). Nothing in the record egregious as to undermine the fairness of supports charge. Finally, Lowery proceeding, Washington entire charges that the prosecutor’s reference to Estelle, Houston v. this reputation closing evidence in his argu Cir.1978). It does not warrant federal ha- punishment ment at phase compounded corpus beas relief. its prejudicial disagree. effect.30 We Finally, argues that his at merely statement was summarization torney’s failure to raise jeopardy, his double evidence, properly admitted Woodkins evidence, reputation improper argu 542 S.W.2d (Tex.Cr.App.1976), appeal ment claims at trial and on violated rt. ce his to effective assistance of counsel. that, The short is answer as the arguments Lowery’s challenge por to another merit, are without Lowery has failed punishment phase prejudiced demonstrate that he argument has more basis. He contends their omission. Washington Nelson prosecutor’s argument 642 F.2d 903 Cir.1981); Ful-' Lowery complains following bad, argu- good questions. or is it bad? It’s and no ment: things. You can think about those You have got reputation, enjoys repu- Well, his you you what he as a else What do have? have tation, him, got people testimony officer, what other think intelligence an they him, sergeant, things people, think bad Dallas Police Officer for other some 26 time, retired, questions. years, long seven and no and then enough got reputation. got but he dedicated that he You have took his You have working retirement you got now for the his criminal record and have County Department testimony you the Sheriffs yester- Intelli- in this case that heard gence, reputation and he knows the day yesterday, Jackie or deliberated on what that’s community Vance you which he your based verdict on. reputation? And resides. what it Is ante, Blackburn, (5th v. F.2d 17 ford Cir. exhaust.” See n. 5. While 1979). may jurisdictional exhaustion not be a pre-

requisite, the failure exhaust should be V. time, an issue which can be raised at any even by sponte. the court sua I could find We have concluded that indict- (but dicta) no Fifth authority Circuit some arguments process ment-based due are not contrary.1 Supreme While the Court us, at this time before and we properly have spoken precise issue, has not declined to reach their merits. We have principles comity federalism instruct considered his claims that the second prose- “ that ‘unseemly it is in our system dual placed cution him in jeopardy, government federal for a district court to the prosecution that was tainted inad- upset a state court conviction without evidence, missible improper jury arguments opportunity to the state courts to correct counsel, and ineffective assistance of ” constitutional Lundy, violation.’ Rose v. provide have found them to no basis for relief. The district court’s denial of the When a federal corpus writ habeas is affirmed. compels prisoner court present a state AFFIRMED. federal constitutional claims to a state court court, before from a seeking relief federal DUPLANTIER, Judge, specially District purpose this “furthers the underlying concurring: habeas statute.” Id. However, I concur in the result. I would 1199, 71 L.Ed.2d at It is an action decline to process consider the claimed due “designed protect state courts’ role in violations II opinion discussed in Part the enforcement federal law prevent ground fundamental that they are disruption judicial of state proceedings.” petition not raised in the and are argued by L.Ed.2d at Id. at petitioner for the on appeal. first time See 387. Wade, v. (5th Robinson 686 F.2d 298 Lucas, Gray (5th 677 F.2d 1086

Cir.1982); Scott, United States Cir.1982). The district judge’s

opinion ground. discusses neither The mag

istrate, after four issues as identifying be ing only petitioner, ones asserted America, UNITED STATES some reason proc mentions two due Plaintiff-Appellee, matters ess but states specifically they are raised by petitioner. Neither a

magistrate CARTWRIGHT, nor a Robert should wander Harris a/k/a through Cartwright, a state criminal record in William J. Defendant-Appellant. search of some raised by peti error not tioner. No. 81-2059. view, my since the claims are not United Court of Appeals, States presented by corpus petition, Circuit. Fifth

there is no issue of failure exhaust these Jan. However, claims the state court. I re- spectfully record my disagreement

there is in this circuit an “established rule

of refusal to consider late claims of failure circuit, In a corpus proceedings case of first instance in this federal habeas under 28 Felder v. 693 F.2d 549 at 550 U.S.C. § 2254.” That of course a different Cir.1982), may the court decided “the state issue. explicitly requirement waive the exhaustion

Case Details

Case Name: Jackie Vance Lowery v. W.J. Estelle, Jr., Director Texas Department of Corrections, Respondent

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 24, 1983

Citation: 696 F.2d 333

Docket Number: 81-1198

Court Abbreviation: 5th Cir.