Montoya v. Scott

GARWOOD, Before JONES and EMILIO GARZA, M. Judges. Circuit GARZA, M. Judge: Circuit EMILIO. Scott, Wayne Director of the Texas De- partment Justice, of appeals, Criminal Montoya cross-appeals, trineo from the dis- grant trict court’s Montoya’s conditional petition corpus for a writ of habeas under 28 (1988). § part, U.S.C. affirm in We part, reverse and remand with instructions deny relief.

I friend,

Montoya Villaviceneio, and a Juan picked killed John Kilheffer after Kilheffer up hitchhiking them home from the Port of Brownsville, confession, Texas. his Mon- toya claimed that he held Kilheffer in the Villaviceneio, back seat while who had pushed Kilheffer out of the driver’s seat and vehicle, driving Kilheffer’s stabbed Kil- However, heffer. a witness at trial testified him, Montoya’s Villaviceneio had told presence, Montoya had held Kilheffer in him, the back seat and stabbed and further story, that while Villaviceneiotold the Monto- ya laughing. made faces as he were Mon- jewel- toya and stole Villaviceneio Kilheffer’s clothes, ry, body in and wallet and left his grapefruit grove. Montoya capital

A mur- convicted phase Montoya’s sentencing der. At the trial, the evidence that dur- State introduced ing the months in and around the time of the murder, Montoya raped had one woman and sexually assaulted and robbed another at Gen., Longoria, Atty. Reneau J. Asst. Dan point. Montoya knife called witnesses who Morales, Gen., TX, Austin, Atty. appel- responsible testified that he was re- lant. spectful young man and that had never McCorquodale, weapon acting disrespect- him James Alexander Donald seen with a Jr., Vial, Hamilton, Flanary, fully H. Koch toward women. The answered & issues,1 Knox, Dallas, TX, appellee. “yes” to the first two Texas presentation Code of Procedure in effect On conclusion of the of the evi- 1. The Texas Criminal dence, following shall submit the court provided: at the time of trial jury: issues to the answering judge into coerced court court sentenced trial and the affirmatively. We special issues art. the Texas Tex.Code Crim.Proc.Ann. See death. 1981). court’s determina (West a district 37.071(e) review novo de court petitioner’s trial a habeas tion that af- Appeals of Criminal Court Texas rendering a verdict. jury into coerced the sentence, Montoya’s conviction firmed Boyd v. denied Supreme Court States and the United U.S.-, petition for Montoya then filed certiorari. corpus. The state habeas writ of a state fact and conclusions findings of entered special issues for deliberating on the After peti- his filed day after of law minutes, jury foreman forty hour and day, Court of the Texas Later that tion. The first read: court two notes. sent the on denied the writ based Appeals Criminal a able to reach unani- “We not been findings of fact and conclu- court’s the trial second, yes on or no.” The mous decision day, Montoya filed a The next sions of law. later, read: minutes court received which corpus, writ of habeas for a petition federal awaiting We further instructions. “We are stayed Montoya’s exe- court and the district court in our decisions.” The are all definite pending its consideration cution asking jury, “Ladies and Gen- proposed claims.2 Jury: telling me Without tlemen of Montoya’s peti- granted court district The votes, east its could has what answer relief on and denied two of his claims tion on the numerical vote you please indicate what also issued twenty-five. The court the other the court special issue?” While is for each appeal. probable cause to a certificate counsel, proposal with discussed judg- court’s appeals from the district Scott they indicating that were no note sent third the two claims on which respect to ment deliberating awaiting fur- longer and were Montoya habeas granted court the district counsel moved ther instructions. Defense with re- relief, Montoya cross-appeals court, verdict, which and the directed the dis- spect of the claims on to six which deliberating for had been noted that relief. trict court denied minutes, forty overruled only an hour inquiring as to and sent its note the motion II jury’s vote. legal freely “We review district conclusions, findings jury responded factual of a it divided but ‘[t]he special in a action issue and district court habeas nine to three on the first federal special unless are clear issue. De- not be set aside on the second should ten two Collins, ly for a di- erroneous.’” renewed his motion fense counsel Self (footnote (5th Cir.1992) and cita verdict, follow- but the court sent the rected omitted) Lensing, (quoting you please tions Guzman jury: “Would note Cir.1991)), cert. de for another 30 to see deliberate minutes -, nied, you to reach an are able answer (1993). L.Ed.2d special in accordance with the Court’s issues please report me after

A later, Forty in- that.” minutes a ver- formed court that it had reached the district argues first that Scott trial dict. erroneously held that the state 37.071(b) (West (1) Crim.Proc.Ann. art. defendant that Tex.Code whether the conduct issue, 1981). pertains was commit- which the death of the deceased The third caused expec- deliberately victim, and with the apply reasonable and was provocation ted tation that the death of did not or anoth- deceased not submitted. result; er would probability the de- there is a whether requirement waived the exhaustion 2. The State acts of vio- would commit criminal fendant 2254(b) (1988). § of 28 U.S.C. continuing threat that would constitute a lence to society.... context, contrast, court held that the state In the habeas The district disturbing standard for a state conviction is jury continue request trial court’s stricter; considerably petitioner a habeas minutes, thirty following deliberating for must charge, establish that the court’s division, inquiry into the numerical circumstances, totality sowas coer unconstitutionally jury. coerced the In so unconstitutionally cive as to have rendered holding, primarily the district court relied on petitioner’s fundamentally unfair. our decision United States v. Lindell Boyd, 45 F.3d at 881.4 Thus, we evaluate the F.2d 1313 constitutionality supplemen of a state court’s by comparing tal instructions them to other on Lin- The district court’s reliance charges challenged grounds on constitutional however, dell misplaced, because our cases, corpus focusing habeas Lindell was an exercise of our decision charges approved deviations from of on di supervisory powers federal over the use of Boyd, See id. at 881-84.5 In appeal. rect “Allen charges”3 federal criminal trials. grant reversed district court’s of habeas See id. at 1320-21. On direct review of a coercive Allen allegedly relief based on an conviction, federal criminal we “scrutinize the similar, charge, holding that while “almost charge compliance Allen with two re identical” instructions had been held revers ‘(1) quirements: the semantic deviation from appeal, ible error on direct supplemental the “Allen” approved charges preju cannot be so charge was not so coercive as to have ren reversal, petitioner’s require fundamentally dicial to the defendant as to dered the trial un Id. at 884. (2) fair. surrounding the and circumstances the “Allen” giving approved charge of an must supplemental The trial court’s instruction ” Lindell,

not be 881 F.2d at 1321 coercive.’ case was not a traditional Allen Bottom, (quoting United States v. 638 F.2d charge; it did not contain what we have (5th Cir.1981)). 781, 787 called “the most troublesome feature of the phrase charge’ supple corpus 3. "The ‘Allen refers to state court conviction in habeas as fol- lows; urge mental instructions that deadlocked juries forego to their differences in order to [Ejven unanimity among substantial federal original a reach unanimous verdict. The Allen appeals ques- courts of that the instruction in charge urged minority of the to consider ought given tion not to be in United States majority the views of in an effort to deter respective jurisdic- district courts within their minority mine whether the views were reason not, more, authority tions is without for declar- Boyd, able under the circumstances.” 45 F.3d at ing giving of the instruction makes a States, (citing v. Allen United 164 U.S. resulting conviction invalid the Four- 154, 157, (1896)); 41 L.Ed. 528 teenth Amendment. Before a federal court Anderton, also United v. F.2d States may resulting overturn a conviction from a (5th (“An Cir.1982) charge, Allen as all used, state trial in which this instruction was it know, sharp punch criminal law devotees is a merely must be that in- established jury, reminding them of the nature of their undesirable, erroneous, trial, is struction or even duty expense and the time and of a and condemned," “universally verdict.”). but that it violated urging tiy again them to to reach a right guaranteed charge “dyna some which was defen- An to as Allen is also referred a See, by charge. e.g., Bailey, dant the Fourteenth mite" Amendment. United States v. (5th 141, 146, Cir.1972) Naughten, ("By Cupp whatever charge, dynamite label Allen identified—the instruction, charge, instruction, degree shotgun the third Cheramie, nitroglycerin charge 5.See also United States v. —the supplemental (5th 1975). standard been instruction has well- Cir. judges. received the nation's trial court The Court, pursuant general supervisory This to its works, charge precisely is used it be because powers, can restrict the utilization in this Cir- it cause can blast a verdict out of a other supplemental cuit of instructions more narrow- agree person guilty.”), wise unable to that a ly required by than would otherwise be banc, (5th reh’g en 480 F.2d 518 Cir. aff'd However, United States Constitution. because 1973). supervisory jurisdiction does not extend to courts, apply only explained we the constitutional 4. The Court has the distinc- corpus arising standard in habeas actions from tion between the standard for reversible error on prosecutions. appeal direct from a federal criminal conviction state criminal (citations omitted). challenging and the constitutional a Id. at 330 n. 6 standard following language: objected cally to the the minori charge exhortation Allen —the very ably tried out “The issue has been light its views ty to reexamine sides, evidence presented this who have United States both majority’s arguments,” by a has to be reached you, and a decision Cheramie, Cir. F.2d jury, and it seems to me jury. are that You jury] of 1975), “remind[ ] [the and it did arrive every effort to you ought to make time and duty and the their nature of a conclu- verdict and reach trial, try at a unanimous urg[e] them to of a expense the trial sion.” Id. verdict,” at 878. We noted United States again to reach other Allen instruction resembled Anderton, court’s Cir. stated, constituted revers- charges that we had held 1982).6 simply However, we review. error on direct for another 30 ible deliberate you please “Would deprive charge did not held that the court’s you are to reach an able to see minutes trial, fundamentally fair of a the defendant issues accordance answer context, instruction, reasoning that please re the Court’s encourage to reach “did more to that.” port to me after Id. than it did to coerce them.” verdict label we attach to Regardless of 883-84.7 instruction, empha- we supplemental Phelps, contained none the instruction size that Lowenfield the Su- “dynamite” language contained explicit trial court Boyd, held that the state preme Court traditional Allen charges. more unconstitutionally coerced challenge to had not petitioner’s a habeas reviewed many jury inquired as to how when it charge in the court instructed Allen which deliberations, further deliberations inform- members felt to continue verdict; repre- help them arrive at “should its verdict a modified Allen jury juror,” gave but then the opinion of individual sent the each that, al- jurors charge.8 The Court held instructing dissenting explicitly the thirty though jury its verdict light the the returned in of those of reconsider their views gave sup- the specifi- minutes after the court them Id. at 878. majority. petitioner The 4)6 Warren, jury and 5 hours deliberated between 6. See United States (5th Cir.1979) (noting dead- court's instruc notified the court that it was before it deliberating, response jury juiy Only hearing in tion to to continue that the was locked. after deadlocked, jury suggesting was charge to two was you another 20 minutes and see can indicates that the court’s instruction was un min- arrive at a verdict within the next 20 coercive, constitutionally (holding sup see id. jury utes. You can retire to the room. plemental instruction constitutional where minutes, thirty jury jury verdict minutes after Id. at 645. After seventeen rendered instruction); guilty receiving Boyd, Id. that 45 F.3d at 884 returned a verdict. We held deliberating charge supplemen in 9. We note that the state trial court's to continue like Further, tal instruction also did not contain countervail case. we have found no evidence that ing language, "dynamite” language, like that contained in the Allen such in the absence of the Lowenfield, charges Boyd, charge, at in and language issue of a traditional Allen is re merely that not ac quired to the effect should in this circuit. in federal criminal trials quiesce majority's Straach, 232, view. In the direct in v. F.2d 242- See United States 987 context, appeal suggested we have that such (5th 1993) (holding 43 Cir. that trial court’s in countervailing language in a tradi deliberating after struction to to continue States, charge, Posey tional Allen v. United court that it had reached verdict informed 545, denied, 416 F.2d 552 cert. through on counts two five but was unable 946, 965, 397 U.S. 90 S.Ct. 25 L.Ed.2d 127 reach verdict on count one was not reversible (1970), and at least one circuit court has "looked said, "simply where trial court’s instruction error language reviewing with favor” on such juiy: Considering length 'Members of the supplemental court instructions in the habeas of evidence to be con the trial and the amount Reed, 1195, context. Ellis v. F.2d 1200 See 596 sidered, you requests the Court that continue (4th 1979). Cir. your to reach a verdict deliberations in an effort Warren, ”); States v. 594 Montoya argue on all counts' United that the trial court does not 1046, (5th Cir.1979) (holding 1050 that trial including language, F.2d erred in not such and we authority suggesting instructions to "continue deliberations” that it is court’s found no charges and re constitutionally required, were not traditional Allen either in the context of error). charge, simple a traditional or a instruction versible Allen 412 minutes); federal habeas warrants twenty division

(same, hour and one if, only totality of the circum- (same, relief 645 seventeen F.2d at 511 Bryan, stances, inquiry, coupled with subse- minutes).10 petitioner’s trial charge, rendered the quent that contends Williams, See, fundamentally e.g., unfair. ren- instruction was supplemental court’s 851; Cornell, 628 F.2d at 741 F.2d at unconstitutionally because it coercive dered correctly points inqui that an out jury’s inquiry into the followed the ry the numerical division of into The trial court asked division. numerical phase capital during penalty of a Texas telling for what answer me jury, “Without present in a trial creates additional risks not votes, you please could cast its has guilt/innocence non-capital trial or vote is for each the numerical indicate what capital trial. with the phase of a Consistent issue?”, jury responded that special statute, the trial court special Texas issues on the first nine to three divided it was jury that if ten or more instructed the issue, the second. ten to two on special issue, any special “no” as to then vote issue, “no” to that while answer should be Although in United Brasfield 448, 135, “yes.” States, jury must be unanimous to vote 47 71 L.Ed. 272 S.Ct. U.S. 37.071(d). Ann. art. Tex.Crim.Proc.Code Supreme Court held such See 345 Thus, reveals that it is divided error on when inquiry per se reversible conviction, eleven to one on a issue ten to two or of a federal criminal direct review issue, 135-36, 450, every and that it has not answered 47 at id. at S.Ct. split necessarily communicate has held numerical will appeals that has addressed the issue majority favors per apply to the trial court se rule does Brasfield’s Parke, context, “yes.” denying habeas relief based on a the habeas see Williams (6th denied, 847, Cir.1984), inquiry numerical state court’s into F.2d 851 cert. 741 1399, division, emphasized that other circuits have 84 L.Ed.2d 787 470 U.S. S.Ct. Sumner, 403, (1985); which verdict the 406- the court did not ascertain Locks v. 70S F.2d Norvell, (9th 933, Cir.), denied, majority Compare 104 favored. Jones 07 cert. curiam), (6th Cir.) (1983); (per L.Ed.2d 307 United 472 F.2d 78 denied, Director, Dep’t rt. ex rel. Kirk v. Cor States ce (7th rections, Cir.1982); 2275, (holding that F.2d Iowa, part because state trial court coerced Cornell denied, Cir.1980), jury’s numerical division 101 it ascertained the voted) Williams, (1981); majority Ellis v. and how the Reed, Cir.), (holding that state trial court distinguishing had not coerced (1979).11 grounds inquired agree part that court We with those Jones jury’s ask- inquiry into the numerical as to numerical division without courts that an gave jury jury the an the trial court’s the into the courtroom and 10. also later, supplemental charge. again instruction "deadline” rendered Six the court Allen hours jury room, coercive. The trial court did not instruct jury gave called the into the court thirty was to reach a verdict in that it minutes; rather, you jury to "see if can "another minutes” jury continue it instructed to arrive at a verdict within the next 20 minutes." report deliberating thirty minutes and then conduct at 645. We held that trial court’s Id. circumstances, Under the back court. prejudicial as to make the trial "was not so may such an instruction in fact have rendered fundamentally unfair.” 646. by supplemental less coercive instruction suggesting jurors to the holdout that the end was Lowenfield, 484 U.S. at 240 n. 11. See also event, sight. any jury while a deadline on In ("Our S.Ct. at 552 n. 3 decision in Brasfield may deliberations constitute reversible error on of the Due Process Clause or makes no mention review, Amaya, direct see United States v. any provision. The Federal other constitutional F.2d 8 uniformly rejected Appeals Courts of a deadline approach per notion that se reversal necessarily render a state criminal trial does not Brasfield’s unfair, reviewing proceed be when state fundamentally Bryan, must followed 511 F.2d at 645. cases)). ings corpus." (citing Bryan, sponte summoned on habeas In the trial court sua jurors guilty jority jury “yes” many spe- favored a ver- favored on mg how each Cornell, issue, dict); by 628 F.2d at 1048 cial it is no see also means certain that the inquiry jury (holding trial court’s into nu- would have deduced its numerical jury part implied division of constitutional division to the court merical how each side Therefore, inquire inquiry, court did not and was not stood. the court’s because which majority acquittal). explicitly told whether favored disclaimed a desire to know how stood, jury was less coercive than an Montoya’s although In court request explicit as to which answer the ma- jury, telling asked the “Without me what jority favored. votes, jury you has cast its could answer balance, please indicate what the numerical vote is for On we conclude that the state trial added), special (emphasis jury each issue?” court’s instruction to the to continue jury’s communicating minutes, deliberating thirty answer risked which following its majority inquiry answer the favored because it was as to the numerical division of the special jury respect issue, ten to two on the second special divided to each was However, substantially issue. this risk was not under the circumstances so coercive toas not, jury undercut the fact that fundamentally did as have rendered trial contends, clearly previously communicate to unfair. While we have not ad- the trial court that it was unable to reach an dressed identical circumstances cir- cuit, respect weight authority answer with to either issue. in other circuits stated, simply supports Williams, holding. Compare The note “We have not our 851-52;12 Cornell, been able to reach a unanimous decision on 741 F.2d at 628 F.2d at Furthermore, 1048;13 Ellis, 1197;14 Locks, yes regardless or no.” 596 F.2d at Jones, suspected whether the trial court that a ma- F.2d at 40715 with 472 F.2d at 1186.16 Williams, given elapsed supple- 12. In the state trial court had hours between the time the charge inquiring a modified Allen after into given mental instruction was and the time the division, jury's numerical which the in jury returned its verdict. formed the court was seven to five. The Id. at 1048. thirty re returned verdict within minutes of Ellis, 14. ceiving In the Fourth Circuit affirmed a denial the instruction. The Sixth Circuit noted the state trial court's instruction did not of habeas relief in a case in the state which “expressly jurors continuing inquired remind of their jury's had court sion, into the numerical divi- right disagree,” one, id. at which the Sixth which the court learned was eleven to appeal Circuit had held on direct to be "one of given charge. had a mild Allen important parts charge,” the most of the Allen id. eight returned a verdict within minutes after (quoting United States v. receiving supplemental instruction. The 1977)). However, Cir. the Sixth Circuit dis inquiry Fourth Circuit held that “neither the as tinguished appeal "turning its direct cases as to the numerical division of the nor the supervisory powers.” this court's exercise of its supplemental charge modest had the coercive emphasized Id. at 851. It state trial appellant,” effect attributed to them the single minority court's instruction did not out particular upon noted that "we look with favor suggest and did not charge the two admonitions in the modified Allen agree. required to Id. at 850-51. The court thus that no surrender conscientious convic- instruction, held that the state trial court’s lowing fol tions.” Id. at 1200. inquiry into the numerical division ideal,” jury, "less while than id. Locks, 15. the Ninth Circuit affirmed the denial deprive petitioner not "so coercive as to of his of habeas relief in a case in which the state trial rights,” id. at 852. constitutional inquired jury's as to the numerical division one) (eight to three to and then dismissed the Cornell, Eighth Circuit reversed the jury for the weekend. Id. at 405. The Ninth grant of habeas relief in a case district court’s inquiry Circuit held that the trial court’s into the involving inquiry jury’s into the numerical coercive, jury’s numerical division was not not- five) (seven to and a division charge. balanced Allen ing did ask whether the in the that "he not inquiry The court held that “neither the verdict; majority acquittal guilty were for or a charge, nor the Allen tion, nor the two in combina- any judge inquiry the did not follow the with jury’s was coercive of the ultimate verdict of imploring jury the to come a deci- guilty.” emphasized statement sion; The court that: jury and the was not sent back to continue judge The did not ask nor was he told whether deliberations, was dismissed for the week- but majority acquittal the at that time favored or end.” Id. at 407. being sup- which offense was considered. The given mildly plemental charge that was was Jones, a district 16. the Sixth Circuit reversed worded and did not address itself to the minor- ity jury. Finally, nearly a case in which members the five court's denial of habeas relief in sum, by Lowenfield, Boyd, guided Myers, 40 F.3d 976

In Jiminez curiam), filed, Cir.1993) petition trial court’s Bryan, hold that the (per for 1995) (No. (U.S. May jury 63 U.S.L.W. of the inquiry into the numerical division strongest support for his 94-1934), Montoya’s to continue supplemental instruction a denial of claim, reversed Ninth Circuit the thirty were another minutes deliberating for in some re facts similar relief habeas rendered Monto coercive as to have not so However, in in this case. to those spects fundamentally Although its ya’s unfair. trial Jiminez, repeatedly trial court had the state jury of the numerical division inquiry into the split, ex jury’s numerical inquired into the such an more coercive than potentially jury’s movement of the pressed approval context of a inquiry have been eleven-to-one, and then from nine-to-three guilt/innocence a jury’s over deliberations jury deliberating to continue instructed the verdict, supplemental instruction the court’s The day. Id. at 979. the end of the until thirty deliberating minutes to continue the state trial court’s held that Ninth Circuit to the you if reach an answer “to see can giving amounted to and conduct “comments than the special issues” was less coercive charge.” Id. at 980. facto Allen a de Boyd Bryan. at issue in that the trial The court then reasoned language assuring protective While it lacked message a that “sent clear instruction minority jurors that were not majority their jurors in were to hold convictions, firmly relinquish held single persuade the hold-out position and “dy contained none of the court’s instruction verdict, and the juror join in a unanimous Allen language of a traditional namite” move cooperate was to hold-out totality of circumstances charge. Under the unanimity.” at 981. Id. ment toward surrounding the court’s communications are distin- Although the facts in Jiminez jury, trial court’s in we hold trial court guishable grounds on the to have was not so coercive as struction inquire repeatedly not into in this case did fundamentally un Montoya’s trial rendered express approval of its “split” Consequently, we hold that the district fair. unanimity, ques- we also movement toward granting Montoya’s request court erred the Ninth persuasiveness Circuit’s tion grounds that for habeas relief on the (Kozinski, J., reasoning. id. at 981 dis- See unconstitutionally trial court coerced senting) (characterizing phantasy” as “sheer answering “yes” special into to the majority’s assessment of the effect instructions). issues.17 trial court’s split inquired only contends that the trial court erred as to the the trial court had sentencing imprisonment majority's him to life after also inclination and asserted but your duty you a verdict can that it had deadlocked. The “it is to reach first indicated people only possibly you rejected ones Appeals do are the Texas Court of Criminal so— it, anyone claim, "[ujnless can't do nor that can do it. The Court the record reveals only people You twelve are the ones.” else. in hold- that the trial court abused its discretion addition, guilty deliberations, a 1185. In had returned is not reversal receiving event, five minutes of the court's verdict within any errors of state mandated.” See id. In charge. supplemental Sixth held that Circuit grounds granting relief. law are not habeas of a dead- the state trial court's “identification McGuire, 62, 67-68, Estelle jury's majority-minority and "coer- count” locked speedy jury charge,” a cive and "the return of Montoya argues that the trial To the extent totality of circumstances verdict” constituted imprisonment failure to render a life sen court's petitioner’s rights. constitutional which violated rights, we note tence violated his constitutional

Id. at 1186. rejected argument a similar in Monroe v. that we Blackburn, 748 F.2d 958 that the trial court's in deliberating to continue struction improper statute, a case in which the state L.Ed.2d penalty under the Texas death because court, capital did not in a Louisiana unable to answer "if the issue, impose sentence after the deadlocked life the defendant is to be assessed State, 160, sentence,” during sentencing phase petitioner's of trial. v. 810 S.W.2d life denied, rejected that the Louisiana courts had (Tex.Crim.App.1989), U.S. We noted 166 502 law, 961, 426, (1991). claim as a matter of state and L.Ed.2d 446 Monroe’s 112 S.Ct. 116

415 B We have held that “one who has been principal may, proper indicted as a on in- challenges the district Scott structions, be convicted on evidence show- state trial court un that the only that he aided and abetted the constitutionally jury on Texas’ instructed the commission of the offense.” United States Montoya had not parties” “law of because 1250, Robles-Pantoja, v. charged conspiracy to commit been (5th Cir.1989) (citations omitted). Similar- jury, instructed the murder. The trial court ly, it not error for Jacobs to be indict- statute, parties” Texas’ “law of under principal ed as a and then to be convicted (West 1994), § on Ann. 7.02 Tex.Penal Code parties.” under the “law of the theory “aiding abetting” and of criminal Jacobs, Montoya Id. Under is not entitled 7.02(a)(2), conspiracy § liability, and a see habeas relief based on the trial court’s 7.02(b).18 liability, § theory of criminal 7.02(b) § instruction. 7.02(b) Penal section of the Texas Under Code: Ill If, conspiracy attempt carry out a A felony, felony another

to commit one conspirators, of all committed one cross-appeal, Montoya argues In his felony conspirators guilty of actual- are erroneously first that the district court re committed, ly though having intent to no claim, jected eighth his in which he contend it, commit if the offense was committed jury ed that the trial court’s purpose furtherance of the unlawful and prevented considering from his miti anticipated was one that should have been gating principal evidence that he was not the carrying a result of the out of the as Eighth actor in the murder. “The Amend conspiracy. requires ment be able to consid 7.02(b). give mitigating § Ann. TexJPenal Code We er and effect to all relevant may support parties” by petitioner.” Boyde that Texas’ “law of v. held evidence offered 370, 377-78, capital California, a conviction for murder. See Skillern 110 S.Ct. U.S. Cir.1983), Estelle, (citing 108 L.Ed.2d 316 denied, Ohio, rt. 105 S.Ct. Lockett v. U.S. ce (1978); Eddings 83 L.Ed.2d 153 L.Ed.2d 973 Okla homo, recent decision in Jacobs v. Our (1982); Penry Lynaugh, F.3d 1319 106 L.Ed.2d 256 -, (1989)). holding. the district court’s forecloses Montoya, capi convicted of that because the trial Like Jacobs was gave after trial court court instructed the on Texas’ “law of tal murder clarify parties” conspiracy parties” instruction un but failed to that the “law of a “law 7.02(b). argued parties” apply during penalty § Id. at 1322. Jacobs does der trial, phase precluded by charging the of his “that the trial court erred theory considering giving to his miti- guilt phase conspiracy on a from effect at the liability though gating con evidence that Villavicencio and not he even indictment Boyde, charge.” tained no such Id. at 1329. We killed Kilheffer. for such a claim:

rejected argument, which is identical to Court clarified its standard proper inquiry in such a case Montoya’s, stating: “We think the fact, aiding accept reject the court instructed the on held: “We that decision and 7.02(a)(2), argument deprivation conspiracy, that a constitutional oc- abetting, § un- curred.” Id. at 7.02(b), 961. parties" § der both of which are “law State, S.W.2d instructions. See Jackson erroneously suggests that a brief (referring (Tex.Crim.App.1995) to “the parties” "law of instruction is distinct from parties it is set out in both ... law of as contends, quoting conspiracy instruction. He 7.02(b)”). 7.02(a)(2) § § and in instruction, that the court instructed the court’s parties conspiracy. the law of 416 consider court instructed the not to likelihood trial is a reasonable there

is whether challenged Montoya’s eligibility parole, in- for as Texas law applied the jury has that Estelle, do, way prevents O’Bryan the consider- v. 714 required it to in a struction constitutionally (5th Cir.1983) (“Under relevant evidence.” 365, Texas ation F.2d 388 1198; 380, see Johnson 110 S.Ct. Id. at law, may possibility of not consider the — 2658, Texas, U.S.-,-, 113 S.Ct. punishment.”), parole in its deliberation (1993) (holding that 290 125 L.Ed.2d 1013, 104 denied, 79 S.Ct. cert. claim Penry/Eddings/Lockett petitioner’s (1984). Montoya’s claim relies 245 L.Ed.2d gov- respect special Texas issues to holding in Supreme on the Court’s Simmons standard). by Boyde erned — Carolina, U.S.-, 114 S.Ct. v. South (1994), that when a rejected claims similar repeatedly haveWe capital if a believed murder is stat Montoya’s, holding that convicted of to defendant accomplice killed the process defendant’s utorily ineligible parole, for the due victim, to either it could answer “no” murder prosecution’s him to rebut the clause entitles Texas issues. See of the first two society” with his “future threat to evidence (5th Collins, 185, 188-89 Harris statutory ineligibility parole. for Id. at — Cir.), denied, U.S.-, cert. -, 114 at 2194-96.19 S.Ct. (1993); 746 Stewart v. 125 L.Ed.2d Montoya’s claims are foreclosed Simmons Collins, authority rejecting — an ex by recent circuit denied, -, U.S. in beyond situations tension of Simmons Collins, (1993); Bridge v. — statutorily ineligible for denied, a defendant is which Cir.1992), cert. Allridge 41 F.3d 213 -, parole. S.Ct. (1993). -, Cir.1994), In Stewart we held: 1959, 131 L.Ed.2d 851 a habeas satisfy petitioner] does not his burden [The prevented arguing from petitioner had been demonstrating likelihood a “reasonable jury that he was almost certain not to challenged appli[ed] ... granted parole. argued He that under way prevented] in a be Simmons, constitutionally consideration of relevant the trial court’s exclusion of his California, Boyde v. evidence.” ... and “refusal to instruct the evidence 1190, 1191, 108 L.Ed.2d certainly [petitioner] almost would serve punishment phase issues prison” the remainder of his life violated give mitigating allowed the effect right pro his fourteenth amendment to due alleged non-triggerman petitioner’s] [the claim, rejected cess. Id. at 220. We his status if chose to credit his version reading process Simmons “to mean that due the offense. sentencing requires the state to inform a parole ineligibility about a defendant’s holding Id. at 201. Our forecloses Stewart (1) when, when, only claim. the state danger represents that a defendant a future B society, legally the defendant is (footnote ineligible parole.” Montoya argues next that the trial omitted); (rejecting at 222-23 see also id. unconstitutionally pre court’s instructions eighth similar claim asserted as amendment giving mitigating vented from effect claim). Penry We also noted that an exten to the fact that if he had been sentenced to encompass sion of Simmons to situations prison, life he would have been eligible parole twenty years becoming which defendant prison serve before Lane, eligible parole. penalty phase, Teague barred under At the be 4, Montoya Although spe- in Simmons the Court id. at-n. 114 S.Ct. at 2193 n. cifically process to the due limited states his Simmons claim as both a fourteenth amendment, expressing clause of the fourteenth eighth claim and an amendment amendment opinion question whether result [its] "no on the claim. Amendment,” compelled by Eighth [was] specific may specu- 109 S.Ct. 334 which must be not be U.S. conclusory, “good Id. at 222 n. 11.20 lative or establish cause” 6(a) discovery

for under Rule of the Federal C Governing § Rules 2254 Cases. Id. at 1001- 02.21 Montoya also that the district court erroneously discovery him denied and an evi- Thus, question the first we must ad dentiary hearing on his claim that one of the is allegations dress whether are

jurors who convicted knew the vic prima sufficient to establish a pro facie due opportunity evidentiary tim. “The for an claim. In petition, cess his amended habeas hearing corpus proceed in a federal habeas Montoya alleged: ing mandatory only where there is a is factu All asked at were voir dire whether which, dispute petition if al resolved victim, alleged knew the John E. Kil- favor, petitioner er’s entitle heffer. knowledge No admitted petitioner a full relief and has received fact, Kilheffer, of him. In [Juror X] knew evidentiary hearing fair court.” while, had known him for a and admitted (5th Cir.1995) Scott, East v. 55 F.3d juror. this to a fellow Her failure to re- Sain, (citing Townsend spond inquiry to the court’s on voir dire (1963), overruled in concealed regarding critical information part grounds, Keeney Tamayo- on other grounds striking for her for cause and her Reyes, potential prejudices.... biases and (1992)). L.Ed.2d 318 [Juror failure to tell the truth X’s] on East, we reviewed district voir dire is itself evidence bias. The law request discovery of a for court’s denial implies bias in this situation. the un- evidentiary hearing, an and we follow a simi likely event that the court does not find First, approach in lar this case. we examine law, bias as a matter of Petitioner will legal petitioner’s claim basis for the evidentiary demonstrate actual bias at the petitioner’s allega whether determine hearing. prima process tions state a facie due claim. East, Second, Appeal, 1000-01. we deter Record on vol. at 523.22 In re- petitioner’s allegations, mine sponse summary whether to the State’s motion for (5th Cir.), 22.Montoya supported allegations 20. In Kinnamon v. 40 F.3d 731 these with an -, juror, affidavit another Juror Y. In the affida- vit, similarly L.Ed.2d 595 declined to Juror Y states: beyond statutory ineligibility extend Simmons (I point during At some the trial believe it was parole: during guilt/innocence phase delibera- [Petitioner] next asserts constitutional error in tions), short, juror, young, another who was a inability argue sentencing his hispanic girl, talking and were I about where spared penalty [petitioner] if the death we were from and where we worked. This required would be to serve a of 20 minimum is_and juror, whose first name I believe good years calendar coming eligible without time before be- is_, working, her last name said she was parole. [Petitioner] rests worked, had at the Yacht Club Restaurant in this claim on Simmons.... If we were to Port Isabel. ignore contemporaneous the absence of a ob- [Juror When I learned that worked at the XI ..., jection Teague and the bar of we would Restaurant, Yacht Club I mentioned that the beyond extend Simmons cases in which the might victim was from South Padre Island and sentencing alternative to death is without life frequented [Juror have the restaurant. I asked parole. responded X] if she had ever met him. She Id. at 733. and, fact, that she had known him had got impression so, known him a while. I peti- If then a remand is in order for the Then, personally [Juror had known him be- requested X] pursue discovery. tioner to his cause, thing, for one she referred to him his discovery, after the district court will be got first name. I then asked her how she evidentiary hearing to determine whether is, she we had necessary, genuine knew the victim since that whether issues of ma- selected, (citing been asked about that before we were terial fact remain. Id. at 1002 Ward v. longer Whitley, denied, but she would no talk about it. - ——, point, said she was not sure [Juror At one XI (1995)). penalty and she also she believed in the death his applied that standard to improperly claim in Montoya described his judgment, claim.25 of her concealment X’s] “[Juror these terms: was obvious- the deceased acquaintance applied McDonough standard We honestly a material answer failure to

ly juror a failure bias based on for a claim of Further, her friend- dire. on voir fact in criminal cases question on disclose a material certainly would have States v. deceased review. See United ship with the direct (5th Cir.1988) 697, (holding challenge for cause.” a basis of 854 F.2d formed the 1, trial where juror new vol. at 195.23 bias warranted Appeal, Record on that his juror knowingly concealed fact dishonestly X that Juror Montoya’s claim prosecutor’s office worked brother Kilhef- acquaintance with her failed to reveal juror “would dispute parties did Montoya from prevented this fer and that for cause challenged and excused have been grounded for cause is challenging her depu was a that his brother had he revealed McDonough Supreme decision Court’s Ortiz, sheriff_”); 942 ty United States Greenwood, 464 Inc. v. Equipment, Power (5th Cir.1991) ju 903, (noting that 845, employees of law en “familial ties to ror’s (1984). on direct a civil ease In that may support a agencies well not forcement review, juror allegedly failed to dis- had a cause,” juror holding that challenge for but Rehnquist a material fact. Justice close honestly yet query “answered the voir dire opinion that: plurality wrote his McDonough), inaccurately,” permitted as situation, a trial is such to obtain a new denied, S.Ct. rt. ce juror that a party first demonstrate must (1992); Unit ques- honestly a material to answer failed Collins, ed States dire, further show voir and then tion on Cir.1992) (declining apply McDonough response provid- a correct juror alleged claim for bias where framework challenge for a for cause. ed a valid basis subjective belief rather misstatement was of concealing information motives for fact), objective than vary, only that af- may but those reasons -, 1812, 123 L.Ed.2d 444 truly juror’s impartiality can be said fect a McDonough application of the standard Our of a trial. to affect the fairness juror appeal from to claims for bias on direct necessarily at 850.24 The district mean federal convictions does juror equivalent bias claim standard in a apply court evaluated that we Florida, standard, Murphy v. McDonough and Monto- habeas case. See under the 797-98, argument appeal that the U.S. ya makes no on juror_ a conver- That affidavit documents believed criminals could be told me that she hand, X| juror X in which she disclosed the [Juror On the other sation with rehabilitated. alleged say victim—some- of the first to the defendant de- fact that she knew the was one fact, penalty. thing deposi- the main dire. served the death she had denied at voir Her coming informa- necessary reason I am forth with this tion is to establish the fact that she may impression tion because I had the she failed to disclose at voir dire that she knew the awarding biased towards the death alleged gath- have been This evidence cannot be victim. personal penalty due her connection with deposition. by any method short of a ered the victim. Appeal, on vol. at 397. Record Appeal, on at 531-32. We note Record vol. although that the affidavit Scott contends Although quoted language appears in a 24. indicating expira- improperly stamp lacked a plurality opinion, we have treated the standard commission, notary public's Ortiz, tion date of the holding. Court's See United States v. as the affidavit, appears original the district which Cir.1991) ("In McDon- record, stamp. does contain such a ..., ough Court established a two- very pronged governs test that situation. similarly 23.Montoya's discovery request was Court_''). the words of the limited to this issue: Montoya specifically McDonough cited in his Montoya alleges that he was In Claim Mr. peti- petition, state habeas and his federal habeas deprived right impartial to a fair and his allegations response during to the State's mo- juror voir tion because one concealed prongs summary judgment alleged track the two knew the victim. This tion dire that she McDonough supported standard. claim is the affidavit of fellow (1975) (distinguishing tention argument between and makes no such ap reversing convic- constitutional standard peal. Challenges for cause in Texas criminal juror applied and standard tion based on bias governed by trials are article 35.16 of the supervisory in Court’s exercise federal Texas Code of Criminal Procedure. See But convictions). power federal criminal over State, (Tex.Crim. ler v. 830 S.W.2d However, applied other circuits have McDon- (“We App.1992) hold that Article 35.16 is a context,26 assume, ough in the habeas and we cause.”).29 complete challenges list of Ar arguendo, McDonough theory that a 35.16(e) grounds ticle contains two on which a be to obtain bias would sufficient federal may challenge venireperson, defendant nei habeas relief.27 applies ther of which to this case. Article Montoya’s prong claim fails on the second 35.16(a) grounds lists that either the State or McDonough of the standard because he has may them, a defendant Among assert. failed to establish that X’s correct re- Juror only arguably applicable basis is the ninth: is, Kilheffer, sponse, that that she knew venireperson] “That preju [the has a bias or would have constituted a valid basis for chal- against dice in favor of or the defendant.” lenging Although Juror X for cause.28 Mon- language Consistent with the of article toya alleged in the district court that he 35.16(a)(9), the Texas courts have focused challenged could X for cause have Juror had venireperson’s correctly a bias in against she answered whether she knew favor of or Kilheffer, authority no he cited this con- the defendant rather than the victim. We See, Johnson, 1150, e.g., degree, speculative, speculative 26. Burton v. some be alle- (10th Cir.1991) (holding juror’s gations 1159 that failure peti- are insufficient to entitle a habeas exposure family to disclose to and child abuse discovery evidentiary hearing. tioner to and an petitioner McDonough East, denied fair trial under 55 F.3d at 1003. juror question honestly because faded to answer response provided and correct would have basis 29.We have looked to state law as the nonexclu- cause); challenge Tinsley Borg, v. 895 grounds sive basis to determine the for chal- 520, 1990) (same), F.2d Cir. lenges grounds for cause because those were the 1091, 974, 498 U.S. 112 applicable Montoya's to trial. We have found no (1991); Lockhart, Cannon v. 850 independent evidence that an federal constitu- 437, (8th Cir.1988) (applying F.2d McDon- provided tional standard would have a valid ba- finding ough and no actual bias based on state challenging sis for Juror X in these circum- findings, court which court held were to entitled gov- stances for cause over and above Texas law correctness). presumption of See, erning challenges e.g., for cause. Patton v. Yount, 1025, 1035, 467 U.S. 1037 n. assume, arguendo, granting 27. We also that ha- S.Ct. 2891-92 n. 81 L.Ed.2d 847 McDonough theory juror beas on a of bias relief (1984) (noting federal constitutional standard for by non-retroactivity be barred determining juror’s ability lay whether to aside Lane, Teague doctrine of preformed opinion and render verdict based on S.Ct. 103 L.Ed.2d 334 presented juror impar- evidence tial, court makes Dowd, citing Irvin v. questionable It is whether alle- (1961), 6 L.Ed.2d 751 but that gations prima respect a facie case with impartiality state trial court determinations of standard, prong McDonough the first is, of the that findings presumption are factual entitled to a honestly whether Juror X "faded to answer a proceedings). correctness in federal habeas For question material on voir dire.” Butler, example, in Jones jury pool S.Ct. at 850. The trial court asked the Cir.1988), petitioner’s we addressed a habeas anyone whether knew "Mr. Kdheffer” from erroneously claim that the state trial court had juror responded. No South Padre Island. allegations The challenge juror a denied his for cause to who may suggest in Juror Y's affidavit victim, by sight, lived near the knew her had during Juror X realized the trial that she knew body, etc. visited funeral home to view Kilheffer, necessarily suggest but do not law, juror We noted that could under Louisiana Juror X realized when she was asked that she challenged juror impartial, be if the was "not Thus, speculative knew Kilheffer. it is whether partiality.” whatever the cause of his Id. at 362. (2) get jury; honestly Juror X lied to on the implicit court's find- We held the state trial mistakenly but failed realize she knew Kilhef- impartiality petitioner’s in its denial of the During when asked. her examination fer issue, challenge presump- for cause was entitled to a counsel at voir dire on an unrelated Juror 2254(d) § tion of correctness under 28 U.S.C. X referred to the victim as "this man from Padre Thus, precluded Montoya's and therefore federal habeas relief. Island” and not name. alle- gations respect prong may, to the first Id. D upholding a opinion published found no venireperson’s on a cause based challenge for that the trial Montoya contends next with the victim acquaintance

mere during court, in its has been the defendant for which crime dire, of re sense voir diminished of Criminal Texas Court charged, and the penalty imposing the death sponsibility for that the mere fact squarely determining held Appeals by misinforming has it of its role victim is not sufficient juror knows the should receive the death whether Mississippi penalty. See Anderson Caldwell disqualification. basis for (Tex.Crim.App. U.S. State, 633 S.W.2d “it held that Court Anderson, 1982). awas school constitutionally to rest death impermissible rape at issue where the at the school teacher by a made sen sentence on a determination victim, who attended and knew the occurred has been led to believe that tencer who school, wit State’s and several determining appropri responsibility for nesses, the defendant. did not know but rests else of the defendant’s death ateness knowledge “Although [of such stated: 328-29, 105 at 2639. In where.” Id. at existing may source of an be the victim] Adams, 401, 109 Dugger v. 489 U.S. S.Ct. knows, juror bias, a or is fact that ‘the mere (1989), 1211, Supreme 435 the of, acquaintance neighbor, a or an intimate holding in and clarified its Caldwell Court with, one of the friendly relations and on violation, a a held that to “establish Caldwell suit, sufficient basis parties to a is not necessarily that the must show defendant (quoting at All- disqualification.’” Id. 853 improperly the jury to the remarks described (Tex.Comm. Smith, 5 970 bright v. S.W.2d assigned to local law.” Id. role the App.1928)).30 407, 1215; Sawyer v. at 109 S.Ct. accord at Cir.1989) (en Butler, 1273, 1285 Montoya’s allegations fail to es- Because 2822, banc), aff'd, 497 McDonough, prima facie case under a tablish (1990). evaluating In L.Ed.2d 193 Caldwell abuse its discretion district court did not the scene,” claim, look the “total trial we to discovery denying Montoya’s request for in selection, guilt phase the of including East, evidentiary hearing, 55 F.3d and trial, sentencing hearing, and the examin the request (affirming denial of for dis- at 1003 and ing both the court’s instructions coun hearing peti- covery evidentiary where and jury. arguments to the Id. at sel’s 1286-87. attorney allegations district tioner’s case, Montoya mental ill- might points have known about witness’ In to the trial dire, Brady during he support to court’s voir which ness were insufficient instructions claim). suggests the role.31 The minimized stated, dicta, State, also in "it 682 S.W.2d Anderson. court Accord Williams likely relationship might the (holding seems (Tex.Crim.App.1984) that trial ability to [the veniremember's] affected avoid rejected challenge properly for cause to considering ques- against appellant the bias in attended with murder victim who church punishment the had victim, tions on once deter- wife, of murder and victim’s knew guilt,” that "the voir mined but noted dire with, knew, although close friend vic- was not entirely directed to the issue of the determination Anderson)).) (citing tim's wife guilt The voir dire in this case of or innocence.” State, (Tex.Crim.App.1983), Jernigan S.W.2d 936 part questions initial of the court’s denied, 464 U.S. t. cer 436, generally and related to the case. Howev- 78 L.Ed.2d 368 the Texas Court of er, dicta as more than even if took the court’s rejec Appeals a trial court’s Criminal affirmed that, just relationship Jernigan in was closer challenge who tion of a for cause to venireman acquaintance alleged in this case. than the knew the victim “all his life" and admitted jury: 31. The court might instructed have a “small amount of bias.” that he ruling upheld finding guilty, The court [I]n the event that there’s a Anderson, hearing instant as separate ”[i]n the to be then a has held Anderson, alleged upon punishment was based in bias to be assessed determine victim, relationship jury may felony case. And in cases the veniremember’s other punishment appellant.” defendant was directed toward assess the if the elects no bias punishment acknowledged personal to have the assess his 940. The court relationships guilty. relationship event he is was closer than the found however, fifth, to, accurately eighth, the trial court violated his points he jury’s role under Texas law. characterize the rights by introducing fourteenth Amendment penalty the Texas death statute Under unadjudicated evidence of criminal conduct at conviction, at the time of effect penalty phase of his trial. rais “yes” special issues answers the preserve these issues es them for future imposes the trial court “no” and then Court, appeal Supreme and as he that follows from those answers: punishment concedes, they pre are foreclosed circuit finding If returns an affirmative Collins, cedent. See Duff-Smith article, under this on each issue submitted denied, court shall sentence the defendant -, S.Ct. 123 L.Ed.2d 661 negative If the returns a find- death. (1993); Landry Lynaugh, issue submitted under this arti- Cir.), 488 U.S. cle, court shall sentence the defendant S.Ct. Department in the Texas to confinement Corrections for life. that he was 37.071(e) art. Tex.Code Crim.Proc.Ann. illegally prompt detained without a determi 1981). (West Thus, the trial court did not cause, probable nation of in violation of Ger of its role under local law misinform Pugh, stein v. not violate Caldwell. See and therefore did (1975).32 only Montoya’s Not 1215; Dugger, at record, unsupported by claim but the Sawyer, 881 F.2d at 1285. clearly Court stated Gerstein addition, the “total trial scene” contains requiring prompt that in determination of ample jury of their communications to the probable cause it did not mean to “retreat responsibility determining whether Mon- for toya penalty. For illegal would receive the death from the established rule that arrest prosecutor explicitly example, the asked the subsequent or detention does not void a con potential during voir dire if un- 865; viction.” Id. at 95 S.Ct. at accord spe- derstood that the answers to the Whitley, Lofton cial issues would determine whether or not Cir.1990) (“Even petitioner] if [the were ille Montoya penalty. received the death Be- detained, gally illegal ‘detention does void accurately conveyed cause the trial court to subsequent (quoting conviction.’” Ger its role under Texas law in deter- stein, 865)). at 420 U.S. at mining Montoya whether should receive claim, Montoya’s if it Consequently, even penalty, death and because the “total record, supported by were no was not scene” leaves doubt entitle him to relief. habeas role, misinformed of its we hold that rejected Montoya’s properly district court rv claim.

Caldwell E reasons, foregoing AFFIRM in For the part, part, REVERSE and REMAND Montoya’s claims The remainder of war- Montoya deny rant little discussion. that with instructions to relief. however, do, punishment. capital I need cases does not assesses the murder punishment. hearing you your assess A has to be held tell the effect of answers to those couple ques- will be asked a of and the particular questions.

tions, proof is the State. and the burden of IX, Record,' vol. at 33-35. State [Reciting special issues.] Now, you questions yes, answer the two Court in Gerstein that the held Court, judge, then the to assess provide State "must a fair and reliable determi- punishment of death to the accused. probable nation of cause as a condition for you ques- In the event answer one or both pretrial liberty, significant of and this restraint no, punishment prison, tions then the is life in judicial be made officer determination must Court, again by assessed and the does promptly either before or after arrest.” punishment not assess the but answers those (footnotes omitted). at questions. is the one that And then Court holding court that JONES, Judges, of the district alternate Circuit GARWOOD Keeney require it to conduct the concurring. did not specially factfinding proceeding. As the Su- initial Judge fine concurring in Garza’s While Keeney, preme ... “little can Court stated appropriate it we deem in this opinion petitioner to one a habeas be said rejecting ground for an additional to note failing bring a claim in state standard allegation that the fed- Montoya’s petitioner an- excusing petitioner court and erroneously him denied eral district other, failing develop lower standard evidentiary hearing on his discovery basis of that claim the same the factual jurors knew that one of the claim 112 S.Ct. at 1720. forum.” 504 U.S. opin- Judge Garza’s Part IIIC victim. See Montoya’s peti- Judge holds ion. Garza sufficiently al- did not

tion in federal court McDonough lege prima facie violation Greenwood, 464 Equipment, Inc. v. Power factfinding a federal necessitate endeavor. point out that would also

We INVESTMENTS, purported consti- alleged even less about A Texas Gen VENTANA Partnership; in his last-minute habeas tutional violation Pride House Care eral venue, Corporation; Company; court. In that petition filed Bruce Britwill Montoya merely individually, “on information and Whitehead, stated Plaintiffs- H. that a knew the victim but did Appellants, belief’ dire, fact in voir and he

not disclose the discovery sought time to conduct thereon. other He did not attach the affidavit Plaintiffs, Plaintiff, All court, juror that he soon after filed in federal juror’s any allegation that the nor was there just acquaintance discov- formerly CORPORATION, known as sooner. He did ered or was not discoverable Neuhaus; Kemper Financial Underwood allege juror’s familiarity with the Inc.; Companies, Lovett Mitchell Webb it her victim was such that would biased Garrison, Inc.; Franklin Financial & against Montoya. Sorenson; Services, Inc.; De William fendants-Appellees, circumstances, Montoya Under these did prima allege sufficient facts establish Corporation, as Receiver Resolution Trust court, McDonough violation in state facie Savings for Franklin Federal Associa properly the state court denied relief on the tion, Intervenor-Defendant-Appellee. “reasonably ground that he failed to show fact or facts which would existence No. 95-40004. legality to the issue of the of his be material Appeals, States Court of United incarceration.” Fifth Circuit. develop in Because failed to surrounding court the material facts this is Sept. juror disqualification, sue of he was not enti evidentiary hearing tled to a federal court prejudice he established cause and

unless excusing Keeney Tamayo- the default. 1715, 1721, Reyes, (1992). Montoya alleged petition precondi his federal neither of these evidentiary granting tions to the of a federal hearing. Consequently, agree with the notes deadlocked did the court read the Allen charge); see also United not traditional Allen encourage jury deliberat- to continue Williams, Cir. States Approximately twenty ing. hour and min- one 1980) (holding that court's restatement of its hearing charge jury returned utes after judge jury notified trial of its instructions after with its verdict. inability a verdict was not modified to reach at Id. denied, charge), Allen Cheramie, S.Ct. Cf. jury: 8.The court instructed the (“It might argued that 520 F.2d at 329 n. 3 be your duty you jury When enter the room it is lacking charge objected to here is so the terse oth- with one another to consider each consult composing either the Fifth Circuit’s the elements and to discuss the evidence with the er's views original pro approved 'Allen' version or the objective reaching you a verdict if can do so of subsume that this Court should not nouncement judgment. to that individual without violence analysis under the banner of the traditional your- you must decide the case for Each of example, no reference was 'Allen' cases. For impartial only after discussion and judge regarding expense self but by of made trial, the trial impartial the case and consid- minority of consideration of the need reconsideration or your jurors. presents an interest of the case with fellow their votes. While this view eration question, the denomination of advocates for one side or the definitional You are not importance.”). charge only tangential your is of own not hesitate to reexamine other. Do change your opinion you are views and to 7. We also stated that: you wrong but do not surrender convinced are weight your and effect of honest belief as to addition, reviewing the additional cir- In after opinion your solely of because of the evidence charge, surrounding we are cumstances purpose for the mere of re- fellow or firmly convinced that coercive- even more turning verdict. generated the court’s instruction fell ness at 108 S.Ct. at 549. violation. Id. short of the level of a constitutional 4H instruction, instruction, “the combination of the court’s combined plemental with the jury supplemental ensuing dialogue regarding and the an additional polling of twenty-minute way period in such a was not ‘coercive’ deliberations “was instruction deny petitioner any prejudicial constitutional not so as to make as to funda- mentally right.” at 108 S.Ct. at 552. The unfair.” Id. at 646. Id. supplemen- specifically noted that the Court The trial court’s instruction in this case inform the that it tal instruction did not substantially was less coercive than the Allen required to reach a verdict. charges Boyd held constitutional at 551-52. S.Ct. Bryan. Boyd Unlike the instructions in Bryan, the state trial court’s instruction in Wainwright, Bryan 511 F.2d 644 Montoya’s case was not directed to mi- Cir.), nority dissenting jurors. the in- Unlike we held that a district L.Ed.2d Boyd, struction the trial court’s instruction erroneously granted court had habeas relief language suggesting did contain claim that the state trial court had on a to reach a verdict. In- rendering into a verdict. coerced stead, simply the court’s instruction asked given the trial court had jury to charge explicitly deliberate another half hour an Allen which the court you “to see if minority jurors are able to reach an answer to instructed the to reconsider hours, special again issues.”9 their views. After six the court courtroom, “whereup called the into the further that the fact that following place: on the discussion took forty returned its verdict minutes THE COURT: Ladies and Gentlemen receiving supplemental after the court’s in you you Jury, do believe that can suggests struction it was coerced period arrive at a verdict a short supplemental instruction. While I to it time? JUROR: believe we’re closer receiving sup time deliberates after I than we were. idea. The consider, plemental instruction is a factor to minutes, give you If I another 20 COURT: Lowenfield, 484 at enough? give will that be You want to it a agree we do not that the fact that the try right. All minutes? JUROR: at unanimous answers to the arrived you right. give THE All We’ll COURT: forty issues after minutes of deliberations

Case Details

Case Name: Montoya v. Scott

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 13, 1995

Citation: 65 F.3d 405

Docket Number: 94-60184

Court Abbreviation: 5th Cir.