White v. CollinsWhite v. Collins
DAVIS, Circuit Judge:
Billy Wayne White is under a sentence of death and is scheduled for execution by the State of Texas on April 23, 1992. The district court rejected White‘s habeas рetition and he seeks a certificate of probable cause (CPC) and stay of execution from this court. Because White has made no substantial showing of a denial of a federal right nor demonstrated a likelihood of success on the merits of his claims, we deny White‘s motions bоth for CPC and for stay of execution.
I.
On August 23, 1976, at approximately 6:00 p.m., White robbed the Right Price Furniture and Appliance store in Houston, Texas.
After firing the fatal shot, White wheeled back around and shot again, this time hitting a desk. After ordering Spinks to open the safe, White had him lie on the floor. White went through the safe and then asked Spinks about his watch and whether his wife had any jewelry. Spinks informed him that he didn‘t know where his watch was and that his wife‘s watches and rings were on her arms. White put the gun on the floor with his foot on the barrel, told Spinks to “be still,” and lifted Martha Spinks’ arm to remove her jewelry. Spinks took this opportunity to grab the gun from under White‘s foot. During the scuffle that ensued, Spinks fired the gun twice, hitting White in the groin and emptying the gun. Spinks got up, ran from the building and hid behind his car. He shouted to Mack Alford, who worked across the street from the Sрinks’ store, asking him to call the police.
Alford heard gunfire and then saw White run from the alley between the Spinks’ furniture store and the neighboring liquor
Officers Neito and Sanford responded to the radio call. When they were less than a minute‘s drive from the scene, an individual, matching the broadcasted description and identified at trial as White, walked into the intersection in front of their vehicle. White was stopped. The gun in his possession at this time was later found to have fired the bullet recovered from the office desk at the furniture store. The police recovered $269.62 from White, an amount nearly identical to the day‘s receipts turned over to him by Spinks.
II.
In October 1977, a Harris County, Texas jury found White guilty of the capital murder of Martha Laura Spinks. At the punishment phase of the trial which followed, the jury answered affirmatively the two special issues submitted pursuant to the
White filed his first petition for habeas relief in state court on October 30, 1984. Following an evidentiary hearing, the trial court entered findings of fact and conclusions of law rejecting all relief on December 31, 1985. The Texas Court of Criminal Appeals denied White‘s habeas application in February 1990. White‘s second state habeas application was filed in April 1990. In January 1992, the presiding judge in the convicting court entered his findings of fact and conclusions of law rejecting all claims. The Court of Criminal Appeals in February 1992 also rejected relief and denied White‘s second state habeas application on the basis of the trial court‘s findings and conclusions. The trial court set White‘s execution for April 23, 1992. White filed his first federal habeas petition on April 5, 1992. White raised three claims including those raised in this appeal. The federal district court on April 15 filed a written opinion and order rejecting all of White‘s habeas claims and denying all relief. The district court also denied White‘s motion to stay his execution and denied a certificate of probable cause. White then filed а notice of appeal to this court and on April 17 filed an application for certificate of probable cause and for a stay of execution.
A.
Under
In reviewing an application for a stay of execution, the court must consider:
(1) whether the movant has made a showing of likelihood of success on the merits; (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the оther parties, and (4) whether the granting of a stay would serve the public interest.
Byrne v. Roemer, 847 F.2d 1130, 1133 (5th Cir. 1988), (quoting Streetman v. Lynaugh, 835 F.2d 1521, 1524 (5th Cir. 1988)).
B.
Relying on Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320 (1988), and Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L.Ed.2d 256 (1989), White contends that the special issues established in the Texas statutory scheme impermissibly prevented the jury from considering and giving mitigating effect to his youth and provocation by the victim.
In Penry, the Supreme Court held that, where a capital defendant introduces evidence about his background, character, or circumstances of the offense that reflects a reduced personal culpability, and the jury cannot give effect to the mitigating force of that evidence in responding to Texas’ statutory punishment phase issues, the trial court must, upon request, provide instructions which allow the jury to consider and give mitigating effect to such evidence. 492 U.S. at 319-328, 109 S.Ct. at 2947-2952.
1.
The Texas capital sentencing scheme authorizes the court to submit a third special issue to the jury:
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasоnable in response to the provocation, if any, by the deceased.
White argues that because the third statutory punishment issue was not submitted to the jury, the jury was unable to give effect to the fact that the victim allegedly рrovoked her murder by spraying him with mace. In findings and conclusions adopted by the Court of Criminal Appeals, the state trial court found that White was procedurally barred from challenging the trial court‘s failure to include the third special issue. This was predicated on White‘s failure to request that the third special issue be propounded to the jury or object to the punishment charge which did not include this special issue. At the time of trial, White was entitled to have the third statutory punishment phase issue submitted to the jury. Therefore, his claim clearly does not come within Texas’ “right nоt recognized” exception to the requirement that a
The district court correctly concluded thаt the procedural default doctrine forecloses federal habeas review of this claim because the state court rejected it on the basis of his failure to comply with state procedural rules. The Texas Court of Criminal Appeals in denying White‘s requested relief expressly adopted the trial court‘s findings of fact and conclusions of law. Under these circumstances, “federal habeas review is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of the federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640, 669 (1991). White does not allege cause for his failure to comply with state procedural rules for preserving error nor has he demonstrated that he was prejudiсed by the alleged constitutional violation.
We also agree with the district court‘s alternative rejection of this claim on the merits.3 The only evidence at trial concerning mace was the testimony of Officer Lynn that he was at
If the jury believed White shot Mrs. Spinks as a reflex after she sprayed him with mace, the jury was able to give effeсt to the mitigating value of this perception. First, it could have given effect to provocation by finding that ordinarily, absent such provocation, White would be nonviolent. Such an understanding of the evidence would support a negative response to the second issue on future dаngerousness. Also, if the jury believed White discharged the gun accidentally or by reflex action because he was suffering from the caustic effect of mace, as he now hypothesizes, the jury could have responded to this evidence in two additional ways. The jury could have answered “no” to the deliberateness inquiry of the first punishment phase issue. It could have also determined at the guilt-innocence phase of the trial that White had
2.
White also argues that the Texas special issues did not allow the jury to give effect to the mitigating aspect of his youth at the time of the offense. At the time of the offense, White was two months away from his twentieth birthday. We agree with the district court that this claim should be rejected on the merits.4 The first and second statutory punishment issues (on deliberateness and future dangerousness) provided a constitutionally adequate vehicle by which the jury could give mitigating effect to White‘s youthful age. “To the extent that [a defendant‘s] criminal conduct was a product of his youth he was for that reason not only less culpable but, to the same extent, also less likely to be dangerous when no longer young.” Graham v. Collins, 950 F.2d 1009, 1031 (5th Cir. 1992) (en banc).
CONCLUSION
We cоnclude that White has not made a substantial showing of the denial of a federal right, Barefoot v. Estelle. We therefore deny his application for certificate of probable cause. We also conclude that he has failed to make a showing of a likelihood of
Notes
The jury answered the following special issues affirmatively:
- Was the conduct of the Defendant that caused the death of the deceased committed deliberately and with the reasonable expectation that thе death of the deceased would result?
- Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?