Leon Spencer v. Dr. George J. Beto, Director, Texas Department of Corrections
398 F.2d 500
5th Cir.
1968
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*1 THORNBERRY, AINS- DYER, Judges. WORTH and Circuit DYER, Judge: Circuit

Appellant, represented court-ap pointed August, was convicted 1964, of murder with malice his second wife. He was sentenced to proc under the Texas recidivist *2 appellant’s was coun- continued to allow was affirmed His conviction edure.1 Appeals, he wished to sel to assemble by Criminal Court of the Texas by stipulation 1965, the court 389 Spencer Texas, v. State court later recon- otherwise. When the 304, by the Court and S.W.2d evidence, appellant’s to receive the States, vened v. State United of the pre- 648, counsel that he was not 554, answered 385 U.S. evidentiary proceed pared to on a full Appellant resen was 606. stipulation (which hearing, offered a by September the in 1967 tenced to death objection accepted was the and with- over No court, carried out to be signature the out for the counsel immediately vember 1967. Counsel setting state) forth wit- the names of petition a a for filed testimony and the nesses alleging court, most of corpus with that give Appellant’s counsel also if called. Constitutional infirmities claimed the testify. The Dis- offered a witness to appellant’s grounds us as crystal Court, it trict at that made denied, with was release. The adhering order clear that was to the it hearing, on October a out (to previously agreed) counsel had Ap which of Criminal 19 the Court October hearing. evidentiary this was a full appellant’s application for peals denied say To the now District Court Court-appoint corpus. a writ of habeas affording petitioner in the “erred rep continued to had ed who hearing evidentiary for a full chance petition in appellant, a filed resent then urged” the substantive contentions Hear District the United States Court.. simply a of the record which distortion ings 14 and on November were held accept. we will denied District Court after which the stay petition. A execution and the filing Subsequent grant probable were certificate of argument and oral in case briefs by ed on November this Court Court States of the United Court, decided case of urges District Court committed 88 S.Ct. allegedly denying by reversible error furtherance 20 L.Ed.2d 776. hearing expeditious disposition evidentiary for which judice proceed sub de case we will argued long attorney hard his had applicability deci termine of that experts and which testified sion to sentence. At sociological psychological im pro appellant’s trial time of Texas law pact capital punishment in modern challenged juror could vided a America. the record reveals by juror for cause if “the state no evi was when it established scruples hearing has conscientious in dentiary had been in the of death infliction of courts, made the District Court interpreted necessary. crime.” statute is hearing This To clear that was give expense the Texas courts a chal conserve time and lenge accept suggested “the venireman when scruples has conscientious counsels’ as to what the wit penalty” E.g., say testify flietion Crain if in nesses would called person. immediately Tex.Ct.Crim.App.1964, counsel added.) 165,171. suggestion (Emphasis 394 S.W.2d provision procedure in There no law such a The case be followed. previously brought convicted vision has been forward as Ver- Crim.P., Art. first 35.16 of murder with malice non’s Ann.Tex.Code (1). (b) wife. Crim.P.Ann., Arts. Tex.Code pro- (1941). The substance of this rights challenging for cause if a venireman has under the Fifth and Fourteenth scruples Amendments, It favor of stipulated punish- the District Court constitutes cruel and unusual per there sufficient ment both se that in this ease was a and in the manner scruples determined, which it process with number of veniremen due that, introduction, capital punishment had the single *3 challenge proceedings, them not to of been able former purpose enhancing cause, convictions for the have had a suffi- not punishment peremptory challenges under the state’s re- cient number of jurors scrupled cidivist are procedure, to remove all panel. from moot. These ques- contentions have no These relation to the same facts are contained appellant’s guilt tion of corpus petition innocence, or in the habeas bearing only upon properly would have a Texas state courts which was sentence,, just death Therefore, which we the District have Court. invalid.4 holding has also the spoon Court’s in Wither- that guarantees the Constitution “that him a sentence of death cannot right during jury period to counsel imposed be carried out if from appeal sentence, or to execution of ex- recommended was chosen right cluding infringed. this gument simply has been veniremen for This ar- be- they general objections is frivolous for several voiced to reasons. First, appellant standing penalty expressed death has no or to com- consci- plain religious scruples against he because has never entious or been its without Second, infliction,” Witherspoon counsel. this issue v. concerns the death Illinois, supra, question sentence rather equal- than the 88 S.Ct. at is guilt ly applicable or innocence to case. The therefore sentence Finally, appellant moot. of death cannot stand.3 has failed to question to the state courts. The other substantive consti argued The denial of tutional issues on behalf corpus are, light holding ap of our reversed as to the pellant’s death, subject invalid, sentence of right without merit. arguments appellant the state The resentence absence stand with- in a jury ards reasonable under which the time and to retain cus- determined tody penalty during the death should be im posed process, remanded to violates due simul proceedings further guilt taneous submission of the issues of inconsistent herewith. tion, any evidence, or The other show entered into below indi- jury respect may “this cates that these veniremen biased with petitioner’s guilt.” very strong scruples against Witherspoon Illinois, supra, 88 S.Ct. at the nature of their scruples does not rise situation dis- Appellant’s argument on introduction Witherspoon cussed in where the venire- prior convictions was to both opposed men are appeal state and federal courts on direct automatically “that vote consistently and was resolved him. imposition capital punish- v. State of any loithout ment 606; Spen- might developed he the trial of Texas, Tex.Ct.Crim.App. cer v. State of [Emphasis them, added.] case before 389 S.W.2d 304. con- * * * their attitude toward penalty tention that the death itself vio- penalty prevent them Eighth lates the Amendment has making impartial from decision as Court. See guilt.” Witherspoon the defendant’s Illinois, 1968, v. State of State of n. U.S. (Mr. U.S. 88 S.Ct. 1770 Justice stipula- dissenting). 88 S.Ct. 1777. Neither does the White Rehearing en Banc Petition PER CURIAM: Rehearing is denied The Petition Judge panel nor of this

and no member the Court- on regular service active the Court having requested (Rule rehearing banc, polled en Procedure; Appellate Rules Federal 12) the Peti- Rule Fifth Circuit Local Rehearing denied. en Banc tion for *4 Appellant, BRENT, Warden, WHITE, Wingate Louisiana Penitentiary, Appellee. July 18, 1968.