Leon Rutherford King v. James A. Lynaugh, Director, Texas Department of Corrections

RUBIN, Before JOHNSON and proceeding. King v. Lynaugh, 828 F.2d JONES, Judges. Circuit (5th Cir.1987). court, sitting The full banc,

en vacated that order and reinstated King’s King sentence. v. PER CURIAM: 1055, (5th Cir.1988) (en banc), F.2d cert. Less than one week before his scheduled — denied, -, U.S. 109 S.Ct. 22,1989, execution date of petitioner March (1989). L.Ed.2d 809 King Leon Rutherford has commenced his January 24,1989, On King’s the State set petition second to secure a writ of habeas early morning execution for the of March corpus the state and federal courts. The King initiated his second habeas federal district court denied relief. The petition in state court less than one district week court also refused to issue a certifi prior court, to this date. The state probable cate of cause habeas appeal, which original court, which was also the may only granted if petitioner be makes a findings support showing “substantial its conclusion denial of a right.” Estelle, King reasonably received federal as- effective Barefoot 880, 893, 103 3383, 3394, investigation sistance of U.S. L.Ed. (1983). Finding preparation 2d 1090 of his punish- six of trial and at the claims to procedurally ment of his barred and six trial. The state merit, deny more to lack court motions denied relief on all other claims for of execution and procedural certificate of reason of default. On March probable 20, 1989, cause. the Texas Court of Ap- Criminal grisly surrounding King’s 1. The facts petition. crime are ion on first habeas Ap (5th Cir.1988), recounted the Texas Court of Criminal 850 F.2d 1056-57 State, denied, peals 631 S.W.2d 488-91 (Tex.Crim.App.1982), opin and in our en banc L.Ed.2d 809 Reed, findings Harris relief based peals denied [these six] claim[s].” — U.S. -, 1039-40, of the state habeas court. and conclusions (requiring a clear petition federal filed denied for statement that relief is reasons prior to his scheduled days less than two Moreover, default). procedural the state petition His raises twelve execution date. not advance other habeas court did thorough opinion, In a grounds for relief. denying relief on six denied addressed and the district court order, memorandum the claims.2 In its relief, relying procedural on ground each of Appeals Texas Court of Criminal held that: writ, on the and denial default, of abuse Mem.Op. findings has The court entered King v. the merits. [habeas] 20, 1989). essentially For of fact of law and recom- (S.D.Tex. and conclusions March reasons, sought of affirm the denial mended relief be denied. the we the same the petitioner. This Court has reviewed record with relief for the respect allegations now to the made DEFAULT PROCEDURAL I. [petitioner] findings finds that the entered conclusions [habeas] for relief are following grounds The supported by court The are record. in King’s time second raised first for the sought is denied. corpus: of habeas petition for a writ (1) court did include trial not that Thus, Wainwright Sykes, under (Ground instructions” “mitigation certain 72, 86-87, IV); for Relief we barred (2) court failed to ade- the trial that considering on these issues federal habeas jury concerning quately inform King “good review unless can show cause” spe- of their answers to the consequences noncompliance proce for his with state V); (Ground for Relief cial issues “prejudice” resulting dures and actual (3) court trial did not define that the alleged from the constitutional violation. terms in dispositive the Texas certain prejudice, reaching the issue of Without we (Ground sentencing statute King that find has failed to make the re VI); Relief “good quired showing of cause” for his (4) sentencing proce- that noncompliance procedures. with state 37.071 is dure Article unconstitutional separately, Treating each issue note VII); (Ground for on Relief its face explain no to attempt why that is made (5) trial court should have in- that the object sufficiency counsel to the did not jury on lesser included of- structed the the evidence or ask for an instruction on the evidence was insuffi- and that fenses lesser offenses. Nor included does counsel (Ground murder prove cient to attempt why explain trial counsel not did XI); and Relief request a different instruction intention- court the trial should have is- that statutory al or a definition of conduct concerning instruction sued different special terms jury used issues. (Ground conduct for Relief intentional certainly These for relief are XII). competent novel or unknowable counsel. preserved These were not During argument, closing voir dire and object record failure to jury was instructed on what would or to offer an alternative instruction. consequences and “no” “yes” answers issues, special yet attempt to the six is finding After that these issues were why made to trial preserved, explain counsel did not the state habeas charge not, expressly” King object yet “clearly and stated that did again, advancing consequences. was “procedurally explain barred from More- Contrary quently, not consider the to contentions we need recent hold- argument, telephonic ing oral con- we are v. Reed further. See Harris also Id. - vinced that the state court’s reliance U.S. at n. 109 S.Ct. at 1040 n. 10. procedural unambiguous. default was Conse- over, change trial, guilt has been no law that of his there informed any more make these claims or less attorneys would did not that he want them meritorious.3 offer imposition penalty expressed of the death remaining same is true for desire to take the stand and seek death. Sel ground for relief above. asserted According findings to the of the federal vage Lynaugh, 842 F.2d (5th 93-94 court, district the trial court held an infor- the Franklin issue Cir.1988), we held hearing presence mal outside capital sentencing the Texas whether jury, where counsel warned him procedure prevents jury consideration of that “this tactic ill advised....” procedurally evidence was Lynaugh, Mem.Op. at 3 (S.D.Tex. recently since “the issue is not a barred March legal 1989). theory by compe Although judge found not knowable ex- also, counsel, plained record, tent trial counsel.” on the (5th Cir.1989) (deni King’s testify F.2d 370 decision to “is a matter decision,” (T-2799-2800) al of the writ based “on the absence of his own “he re- legal Bridge’s for to raise quired cause failure the that counsel continue to repre- [] Quinones ‘Franklin’ trial”); issue at King and sent cross-examine the state’s Texas, King Lynaugh, Mem.Op. (Tex.Crim.App. 592 S.W.2d 933 witnesses.” denied, banc), 1980) (en 449 U.S. 3; T-2799-2800. (1980) (certio- 101 66 121 L.Ed.2d Thereafter, King took the stand and tes- pending during petitioner’s rari second tri as tified follows: al). grant Court’s of certio- guilty You all found me of one of the — U.S. -, Penry v. Lynaugh, rari in most brutal murders that have ever been (1988) L.Ed.2d and If I guilty Houston. had found a man — U.S. -, Franklin v. of figure that kind of murder I he de- (1988) 98 L.Ed.2d does penalty serves the death and that’s what alter the fact that such claims have been I asking you am that jury give me counsel, to especially well known since penalty. the death That’s I what want. preserved Penry’s counsel and Franklin’s 2254(d) claims in 1980 and respectively. requires We Title 28 U.S.C. federal § controlling prece bound thus our grant presumption to of courts a correct- Selvage dents in and until this explicit implicit ness to a state court’s court, banc, en holds otherwise. For findings of fact. The state habeas court reason, considering we are barred from found that: defense counsel secured the deny merits of these investigator of services an and that requested. “[cjounsel every spoke possible with wit- ness, character, [King] fact or disclosed by

II. INEFFECTIVE ASSISTANCE testify in an effort to find witnesses to OF COUNSEL trial;” that on the basis of their obser- [his] inquiry, vations and trial counsel Petitioner’s Sixth had Amendment claims suspect “drug prob- reason to had a arise from the events of his sentenc- ing trials, sanity At or trial. both his 1978 and 1980 lem” needed to be evaluated for represented by attorneys competency, was Ken or was in- “intoxicated or competent and Wesley any proceed McLean Hocker. After toway or decide returned verdict him on testify.” the whether to The court also found agree Likewise, King’s Mem.Op. 3. We with the district that at 6-7. we find Mills v. Mississippi, Maryland, reliance Caldwell v. (1988) inapposite regarding is mis- L.Ed.2d Caldwell, placed. constitutionally Unlike required there were never of issue definitions representations jurors Mills, statutory that would lessen terms. the Court ad- imposition responsibility ambiguous their sense of dressed the issue of whether instruc- Indeed, penalty. opposite rep- might death preclude jurors considering tions mitigating against resentations were counsel imposition for both evidence closing argument. King penalty. sides in the death (Ground right to counsel during trial did waiver no time that “[a]t II); Relief Finally, attorneys.” discharge his [King] [petition- (3) “effectively” denied a “[a]lthough that he was that the court found al- sentencing trial when he was modify testimony forced counsel er’s] (Ground for Re- proceed pro se lowed argument, coun- strategy and their defense III); lief [King] zealous advocates remained sel witnesses, assist- he was denied effective cross-examining punishment attorneys counsel because making ance of objections, and lodging appropriate mitigating evidence present any failed arguments.” final adequate or reasonable an or conduct further court made district The federal IX); (Ground for Relief defense those of the state findings with consistent claims based review these We court stated: The district court. prong test Strickland familiar two record the trial reviews [A]nyone who 668, 687, 104 S.Ct. Washington, 466 U.S. Ap- King’s 1981 Court of Criminal (1984): 2052, 2064, 80 L.Ed.2d conclude, do, peals will brief performance was that counsel’s First ... outstanding counsel did an King’s trial showing that requires This deficient. facts, devastating after set job with that coun- made errors so serious already counsel had obtained same functioning ‘counsel’ as the sel was Neither of the first conviction. reversal the defendant the Sixth guaranteed strong losing case with Second, the defendant Amendment. “Leroy,” premised on guilt and a defense perform- the deficient must show suffering culprit, nor mysterious alibi This re- the defense. prejudiced ance gruesome under these death sentence a errors quires showing that counsel’s of ineffective is an indication facts ... deprive the defen- so serious as to were of counsel. assistance trial, trial whose result of a fair a dant these find- Mem.Op. at 10. We note that a defendant makes both reliable. Unless federal district ings of the state habeas and that the con- showings, it cannot be said supported further the affida- courts are from a or death sentence resulted viction Hocker, supplemental Wesley process adversary vit of breakdown McLean, in and evidence of Ken unreliable. affidavit renders the result the record. review, “judicial mindful that In we are our performance must be scrutiny of counsel’s contradictory King advances several deferential,” at 689 and highly id. Amendment grounded the Sixth claims “indulge a we must and that counsel. right to effective assistance conduct that counsel’s strong presumption are raised of these for relief Some range of reasonable falls within the wide in this second habeas for the first time assistance,” and 104 id. at 689 professional grounds was only and one of these petition, at 2066. King’s petition for habeas first raised King (II) courts. in the federal the third corpus reject filed the second and We Amendment following (III) King never raises the Sixth for Relief because Ground during the proceed pro se. At all times claims: did trial, repre- this he was sentencing phase of (1) assist- he denied effective that was attorneys McLean and Hock- by his sented sentencing phase of counsel at the ance short, that the find- In we conclude er.4 attorneys ceased his of his trial because trial court on and federal ings of the state way meaningful him in represent record. supported point are well I); (Ground for Relief (I) and reject the first eleventh proceed pro We that he was allowed (XI) we find for Relief because intelligent Ground knowing a se without California, Compare King’s Faretta v. finding effectively precludes con- 4. This duty a to warn the trial court had tention that representation. of self him about the duties finding support supplied defendant and on trial court’s information McLean and Hocker “remained zealous ad- particular, the defendant. what cross-examining pun- [King] by vocates for investigation are decisions de- reasonable witnesses, appropriate lodging ishment ob- pends critically on such information. making argument.” At jections, and final The federal district court found that “what trial, Hocker second McLean and King alleges now as deficiencies unique position to determine their were a counsel’s conduct were in fact the result of strategy. Wesley As Hocker stated in thoughtful, by King’s tactical decisions tri affidavit, “Having already Leon’s tried al counsel and own informed deci once, good case felt we had feel sentencing to testify sion at the con strong for Leon’s case and where our trary Mem.Op. to his counsels’ advice.” points were.... that Leon had made felt least, very 9-10. At the counsel for trial, good witness for himself at the first conducted their defense “within the wide especially since the took a considerate range professional assistance.” Strick time amount of to return a verdict of land, 466 U.S. at 104 S.Ct. at 2066. Thus, guilty.” it not unreasonable to was rely King as his best witness at the own III. OTHER CLAIMS sentencing phase of trial. argues (VII) in his drug seventh regard King’s “alleged”

With (VIII) eighth Grounds for problem, the state court found that Relief that habeas sentencing had known existence of statute unconstitu “[i]f drug problem, strategy tionally their trial would failed to afford him the opportuni forego presentation have been to as toty drug introduce evidence of jurors generally unsym- evidence since dependency disadvantaged childhood. abusers, pathetic drug particularly toward argument This line of suffers several (citing commit those who violent crime” First, barred, procedurally defects. it is supplemental of W. affidavit Hocker challenged never consti McLean). K. affidavit of tutionality sentencing of the Texas that, law, court concluded a matter of appeal. scheme at trial on direct provided King defense counsel with reason- Second, King Selvage, 842 F.2d at 93-94. ably effective assistance counsel showing his has made no that trial counsel trial, investigation preparation and his by felt constrained the Texas statute from punishment to secure wit- efforts defense adequate investigation performing an nesses, punishment at and at mitigating or potential they facts that were trial. any way presenting inhibited in such trial, years petitioner contrary, Almost nine at trial. On the as the after evidence found, suggests King’s for the first time that additional court state habeas counsel “alleged” drug his problem mitigating evidence of decided that the best evidence presented been and other should have that must come from himself that and testify should have called to existed, witnesses been drug dependency, if it would not be childhood, disadvantaged his and in about by viewed short, things that have done a should been imposition of a sentence. differently. second-guessing little But is King’s argument respect adroitly in this is for not the test ineffective assistance of his redundant of ineffectiveness claims. Strickland, counsel. at Third, own, King’s standing on 104 S.Ct. at Court ex- argument fails to meet the crucial plained that: test constitutionally mitigating evidence. He The of counsel’s ac- reasonableness has neither demonstrated a likelihood that may substantially tions determined or be drugs dependent he was so or so disad influenced defendant’s own state- vantaged early youth that his rational ments or actions. Counsel’s actions are based, capacities permanently injured, nor usually quite properly, on in- were strategic formed choices he that condi- has shown either that is reviewed under the culpability partic- for this determination his affected tions standard). “clearly erroneous” specifi- court The state habeas crime. ular proffered affi- Dr. Fisher’s found that cally parties have additional Both asserted credibility its conclu- lacked davit light not claims we need address which drug and lack of ra- concerning use sions foregoing discussion.5 extremely speculative were capacity tional reasons, foregoing the motion For the evidence in objective unsupported and of execution and motion affidavit, Dr. Fisher’s Absent the record. probable appeal cause to certificate King’s way suggests that no the record DENIED.6 spree crime was remorselessly brutal OF FOR STAY EXECUTION MOTION episodes of or more any one caused DENIED injury dat- by an emotional drug or abuse Thus, King cannot ing from childhood. OF FOR CERTIFICATE MOTION culpability personal that establish DENIED. PROBABLE CAUSE by such cir- diminished might been have Compare cumstances. RUBIN, Judge, B. California Circuit ALVIN 837, 841, Brown, concurring: J., (O’Connor, concur- below, I expressed theWith reservations however, would be ring). proof, Such and opinion, in Parts II of concur demonstrating shortcoming of key to in Part III. in the result reached sentencing applied in scheme as the Texas Frank- Resolution this case. turns lin-Penry-Hitchcock must is point we consider The last may con- now be whether these issues (X) Ground for Relief. King’s tenth trial; at they were raised sidered when court should the state habeas that asserts considered, may if whether they now be competency inquired into when have raising in not trial was ineffective phase, request he desired to sentencing may them; if the issues now be con- forego a defense. penalty the death sidered, sentenc- the Texas whether for this only offered ing procedure constitutional. affidavit, Fisher’s which the is Dr. claim argues, State The State unworthy court found of be state habeas found, raise King’s failure to that that the It also noted lief. should procedur- at trial constituted a these issues recalled de judge personally trial precludes law al default under Texas time and found reason meanor at raising in this post-convic- him from them sobriety competency question his proceeding.1 tion Likewise, counsel, al time. of our circuit is that “a federal The law though disagreed his decision to they with error court cannot review claimed habeas to penalty, the found reason seek death in of state trial when the conduct criminal The record is question capacity. his mental on the has refused review in reliance state equally of of intoxication. bereft rule, contemporaneous objection its absent Thus, reject unsupported we this claim object.”2 prejudice for failure to cause and Ly v. by the record. See Streetman Cir.1988) Unfortunately, this cir- (5th the decisions of 1521, F.2d 1527

naugh, 835 cause-and-prejudice issue have on the finding competency to fore- cuit (trial on court’s In not clear and consistent. Williams proceedings is a factual been go legal further notes, vigorously pur motion for Leave to Proceed In Forma 6. but 5. The state does Pauperis is GRANTED. petitioner’s eleventh sue the contention that of never filing, a host hour which raises — -, Reed, Compare 109 petitioner, 1. Harris v. U.S. by consti previously this advanced (1989). 1038, 103 L.Ed.2d corpus. We of the writ of habeas tutes an abuse tactics, may in this these but do condone (5th Lynaugh, Cir. Selvage 842 F.2d easily on the merits 2. v. case as resolve the issues 1988). against King. — procedur- granted, this court found the Lynaugh,3 v. preclude (1988). its Bridge

al not to consideration To deny barrier despite right Franklin/Penry of Williams’ claim the this to raise revived issue in comply Williams’ failure to with the Texas this case be highly preju- would contemporaneous-objection rule. We stat- Wainwright Sykes, dicial. v. 433 U.S. eyes our the 72, 86-87, ed that cannot close to 97 S.Ct. 53 L.Ed.2d “[w]e granting fact that the of certiorari (1977). in least

Supreme Court Franklin has at case, therefore, This falls the es- within what possibility raised the had become exception procedural to the tablished bar legal accepted authority may as established through the of failure the state courts to modified, some at least to extent.”4 fully rely upon it and the extreme prejudice resulting from a later revival Williams, however, panels Since several of what was considered to settled be a of this circuit have followed a different question. Thus, ap- canwe decide this to the course and have declined rule on peal the on merits motion for a Franklin/Penry to merits of the claim due probable of appeal certificate cause to legal the of for trial absence cause coun charge the denial the Federal object sel’s to court’s District Court failure to the petition punishment phase at the of the trial and of his for habeas corpus.6 request the of trial to an failure Bridge II, In the court reaffirmed the evidence.5 In the instruction holding.7 Thereafter, para- above in a one cases, preceding Bridge cited in the foot graph in opinion, panel Bridge with- III note, initially the court followed reasoning drew earlier in I Bridge reasoning line of Williams addressed and, referring II Bridge without to Bridge’s Franklin/Penry of merits Williams, rested its denial of despite contempora claim the absence Franklin/Penry as to the claim on the objection by Bridge’s neous trial counsel. legal absence cause for the failure ” I, the court Bridge stated: Bridge to raise the “Franklin issue accept pro second reason not trial.8 cedural bar this case that the issue stage, At this I would follow mitigation under the Texas statute opinion, Williams as the earlier decision on seemed have favorably been settled point, apply decline the contem- upholding case the consti poraneous-objection rule Frank- tutionality capital punish of the Texas lin/Penry/Hitchcock claims and address Texas, ment statute. Jurek v. merits these issues. L.Ed.2d claims, merits On the am But issue of constitutionality and, precedents bound of this circuit plan Su was revived therefore, opinion denying concur in the preme grant of Court certiorari application those issues. granted, Franklin cert. noted, however, already As I have U.S -, 98 L.Ed.2d granted application Court has an in _ U.S _, aff'd Lynaugh,9 for a Penny writ rendered 2320, 101 Penry opinion an Lynaugh10 Franklin (5th Cir.1987), 832F.2d 3. 837 F.2d 1294 (5th Cir.1988). II, 7. 860 F.2d 163-64. Williams, 837 F.2d at 1296. III, Bridge 8. See 863 F.2d 370. 5. See Selvage (5th Lynaugh, v. F.2d Cir. 842 89 — 9. 832 1988); Bridge (5th Lynaugh, (5th Cir.1987), v. 863 granted, F.2d 370 915 F.2d Cir.1988) III), (Bridge Bridge Ly replacing -, 2896, v. U.S. 108 S.Ct. 101 L.Ed.2d 930 (5th Cir.1988) II), naugh, (Bridge 860 F.2d 162 (1988). replacing Bridge (5th Lynaugh, v. 856 F.2d 712 Cir.1988) I). (Bridge 10. — 2320, 101 U.S. - 108 S.Ct. (1988). I, Bridge 6. 856 F.2d at 714.

1408 (1988); Selvage Lynaugh, 967 v. concurring opinion of L.Ed.2d Justices which the (5th Cir.1988), stay granted, 89 particularly is rele 842 F.2d and Blackmun O’Connor — -, 1283, stays vant,11 granted pending 108 S.Ct. 99 L.Ed.2d consid U.S. Selvage (1988); in v. 858 978 applications Lynaugh, 494 v. F.2d of writ Bell eration — Cir.1988), U.S. -, Lynaugh,13 (5th Bell v. stay granted, v. Lynaugh,12 Lynaugh,14 Lynaugh.15 (1988); 254, Hawkins v. 102 243 109 S.Ct. L.Ed.2d (5th Lynaugh, 856 F.2d 712 Cir. Bridge v. effect of actions The cumulative — 1988), -, 109 stay granted, U.S. continuing me undermine seems to 20, (1988); 101 L.Ed.2d 972 Hawkins precedents and the Fifth Circuit validity of Cir.1988), (5th F.2d 862 487 jurists might that reasonable demonstrates — U.S. -, 569, 109 granted, stay Supreme Court decisions that the find both (1988). 593 L.Ed.2d dispositive be in cases would those stay capital case and a in this issues that, may Penry, Supreme be in It granted pending the outcome of should be upholds validity of the Texas Court therefore, urge I, the Su- those events. capital it to the jury’s scheme as relates pending grant stay a preme Court to evidence; consideration of how- appli- writ Penry and the determination of ever, height it of inconsisten- would be Bell, and Bridge, Haw- Selvage, in cations cy stay of a grant form kins. in almost all Texas cases execution resolved, deny is such Penry until but

JOHNSON, concurring: Judge, Circuit relief to other Texas defendants below, by Penry I claim. As stated expressed who raise With the reservations opinion by in his from the only of the Justice Brennan dissent in the result concur stay Supreme Court’s denial execu- majority. — tion in U.S. Streetman only of the concurring in the result In -, 108 S.Ct. 98 L.Ed.2d reached majority, join I in the conclusion “[Djeath unique to the different. Due concurrence, Judge Rubin penalty, the relief that we nature raising the prcedurally barred from is not give any type corpus could other of habeas Franklin/Penry/Hitchcock His petitioner is to Streetman. unavailable invoked contemporaneous objection rule long re- be moot before we can case will Lynaugh, 837 State. Williams dead.” 108 Franklin —he will be solve Further, (5th Cir.1988). join F.2d 1294 appeal, 590. In the instant unless S.Ct. at Supreme Court Judge plea Rubin’s moot stayed, case will also be pending stay King’s grant execution Penry time the decision is made—he will disposition of the Pen- Supreme Court’s also dead. a result is the essence Such ry regard, it is noted that case. capricious arbitrary conduct applica every wherein an almost instance government violation of —conduct filed with the stay tion for a has been eighth amendment to Constitution. capital case Supreme in a Texas Court re Supreme decision to since the Court’s capital sen validity

view the of the Texas

tencing Penry, scheme Franklin granted stay has Court Lynaugh, 837

execution. See Williams (5th Cir.1988), F.2d 1295-96 — U.S. -,

granted, 108 S.Ct. — Cir.), stay granted, (5th 11. 108 S.Ct. at 14. F.2d U.S. 2332-35. -, (1988). 102 L.Ed.2d 243 — (5th Cir.), stay granted, U.S. 12. 842 F.2d 89 -, (1988). 99 L.Ed.2d 494 108 S.Ct. — Cir.), stay granted, (5th 15. F.2d U.S. -, (1988). 102 L.Ed.2d 593 Cir.), stay granted, (5th F.2d

Case Details

Case Name: Leon Rutherford King v. James A. Lynaugh, Director, Texas Department of Corrections

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 21, 1989

Citation: 868 F.2d 1400

Docket Number: 89-2276

Court Abbreviation: 5th Cir.