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51 F.3d 457
James Carl Lee Davis, Petitioner-Appellee,
Cross-Appellant,
v.
Wayne Scott, Director, Texas Department of
Criminal Justice, Institutional Division,
Respondent-Appellant,
Cross-Appellee.
No.
93-8855
Federal Circuits,
5th Cir.
April 19, 1995
Appeals from the United States District Court
for the Western District of Texas.
Before KING, HIGGINBOTHAM and BARKSDALE,
Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
The State of Texas appeals the district court's
conditional grant of habeas relief to James Carl Lee Davis,
including conditional commutation of his death sentence, based
upon his contention that the two Texas statutory special issues
submitted to the jury, during the punishment phase of his trial,
prevented it from giving effect to mitigating evidence of, inter
alia, mental instability, in violation of the Eighth and
Fourteenth Amendments, and as held in Penry v. Lynaugh, 492 U.S.
302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Davis cross-appeals,
contending that the rule announced in Teague v. Lane, 489 U.S.
288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), does not bar him from
challenging collaterally how the punishment phase of his trial, as
well as jury voir dire, were affected unconstitutionally by the
statutory proscription against disclosing to the jury or venire
the effect of a hung jury on the special issues. We AFFIRM in part,
REVERSE in part, and REMAND with instructions to deny relief.
I.
Early on March 3, 1984, Davis entered the home
of his neighbor, Pauline Johnson, without permission, and brutally
attacked her young children. As a result, three of the four
children died due to multiple skull fractures. Based on the death
of one of the children, Yvette, who exhibited evidence of sexual
assault, a jury convicted Davis of capital murder.
During the punishment phase of the trial, and
after the presentation of additional evidence, the court
instructed the jury to answer two of the three Texas statutory
special issues (quoted infra ). Because the jury unanimously
answered both issues in the affirmative, the trial court assessed
punishment as death by lethal injection. The Texas Court of
Criminal Appeals affirmed, Davis v. State, 782 S.W.2d 211 (Tex.Crim.App.1989);
the United States Supreme Court denied certiorari. Davis v. Texas,
495 U.S. 940 , 110 S.Ct. 2193, 109 L.Ed.2d 520 (1990).
Davis sought habeas relief in Texas state court.
After making findings of fact and conclusions of law, the state
judge (who presided at Davis' trial) recommended denial of habeas
relief; and, in an unpublished opinion, the Texas Court of
Criminal Appeals denied that relief.
In September 1992, pursuant to 28 U.S.C. Sec
. 2254, Davis sought federal habeas relief. After the State
moved for summary judgment, the matter was referred to a
magistrate judge, who recommended granting the motion. But, in
November 1993, relying on intervening case law, the district court
declined to follow the recommendation.
It believed that Davis had raised a Penry claim--that there
existed a reasonable likelihood that the jury applied the special
issues in a way that prevented it from considering the mitigating
effect of childhood abuse, psychological disorders, and mental
retardation. It ordered the commutation of his death sentence,
unless the State appealed to this court or conducted a new
sentencing hearing within 180 days. On the other hand, the
district court held that Teague prohibited it from considering
Davis' contentions that TEX.CODE CRIM.PROC. art. 37.071(g) (Supp.1986)
(proscribing disclosure to a venireman or juror about the effect
of a hung jury on the special issues) affected unconstitutionally
the punishment phase of his trial, as well as jury voir dire.
II.
The State challenges the ruling on the Penry
claim; Davis, the rejection of the issues concerning article
37.071(g). "In considering a federal habeas corpus petition
presented by a petitioner in state custody, federal courts must
afford a presumption of correctness to any state court factual
findings. See 28 U.S.C. Sec . 2254(d). We review the
district court's findings of fact for clear error, but decide any
issues of law de novo." Barnard v. Collins, 958 F.2d 634, 636 (5th
Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 990, 122 L.Ed.2d
142 (1993). "Evaluation of a petitioner's constitutional challenge
to the Texas special issues as applied to him is, of course, an
issue of law." Madden v. Collins, 18 F.3d 304, 306 (5th Cir.1994),
cert. denied, --- U.S. ----, 115 S.Ct. 1114, 130 L.Ed.2d 1078
(1995).
Needless to say, because Davis seeks habeas
relief, " 'we must determine, as a threshold matter, whether
granting him the relief he seeks would create a "new rule" ' of
constitutional law" under Teague. Graham v. Collins, 506 U.S.
----, ----, 113 S.Ct. 892, 897, 122 L.Ed.2d 260 (1993) (quoting
Penry, 492 U.S. at 313, 109 S.Ct. at 2944); accord Motley v.
Collins, 18 F.3d 1223, 1230 (5th Cir.), cert. denied, --- U.S.
----, 115 S.Ct. 418, 130 L.Ed.2d 333 (1994).
Under Teague, a "new rule" is one which " 'imposes
a new obligation on the States or the Federal Government' " or was
not " 'dictated by precedent existing at the time the defendant's
conviction became final.' " [Graham, 506 U.S. at ----, 113 S.Ct.
at 897] (quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070). As
the Supreme Court aptly noted, it is extremely difficult " 'to
determine whether we announce a new rule when a decision extends
the reasoning of ... prior cases.' " Id. (quoting Saffle v. Parks,
494 U.S. 484, 488, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990)).
Nonetheless, we are instructed that "unless reasonable jurists
hearing [Davis'] claim at the time his conviction became final 'would
have felt compelled by existing precedent' to rule in his favor,
we are barred from doing so now." Id. (quoting Saffle, 494 U.S. at
488, 110 S.Ct. at 1260) (emphasis added).
Motley, 18 F.3d at 1230. First, we consider the
Penry issue.
A.
The two Texas special issues submitted to the
jury during the punishment phase of trial were:
(1) Do you find from the evidence beyond a
reasonable doubt that the conduct of the defendant that caused the
death of the deceased was committed deliberately and with the
reasonable expectation that the death of the deceased or another
would result?
(2) Do you find from the evidence beyond a
reasonable doubt that there is a probability that the defendant
would commit criminal acts of violence that would constitute a
continuing threat to society?
In Penry, decided before Davis' conviction
became final, the Supreme Court held that when a capital defendant
introduces evidence about his background, character, or
circumstances that reflects a reduced personal culpability, and
the jury cannot give effect to the mitigating force of that
evidence in response to Texas' special issues, the trial court
must, upon request, provide instructions that allow the jury to
consider and give mitigating effect to that evidence. Penry, 492
U.S. at 319-28, 109 S.Ct. at 2947-52.
Penry had presented evidence that childhood abuse and mental
retardation left him unable to learn from his mistakes, but that
the special issues failed to give the jury a vehicle for taking
this into consideration. Id. at 308.
Likewise, Davis maintains that the special
issues failed to give the jury a vehicle by which it could
properly consider and give effect to evidence tending to mitigate
his culpability for the murder of Yvette Johnson. He contends that
evidence of mental instability and childhood abuse indicates that
he was prevented, like Penry, from learning from his mistakes. "To
grant relief on a Penry claim, we must determine (1) that the ...
evidence was constitutionally relevant mitigating evidence, and,
if so, (2) that the ... evidence was beyond the 'effective reach'
of the jurors." Madden, 18 F.3d at 308 (emphasis omitted). For the
several alternate reasons discussed below, we conclude that Davis'
Penry claim fails.
1.
The first inquiry in a Penry claim is whether
the mitigating evidence is relevant. Phrased differently, does the
evidence implicate the basic concern of Penry "that defendants who
commit criminal acts that are attributable to a disadvantaged
background, or to emotional and mental problems, may be less
culpable than defendants who have no such excuse."
Madden, 18 F.3d at 307 (quoting Penry, 492 U.S.
at 319, 109 S.Ct. at 2947); accord Allridge v. Scott, 41 F.3d 213,
223 (5th Cir.1994); Motley, 18 F.3d at 1235 n. 10. In short,
evidence of a disadvantaged background, or emotional and mental
problems, does not raise, ipso facto, a Penry claim. In order to
present relevant evidence that one is less culpable for his crime,
the evidence must show (1) a "uniquely severe permanent handicap[
] with which the defendant was burdened through no fault of his
own", Graham v. Collins, 950 F.2d 1009, 1029 (5th Cir.1992) (en
banc), aff'd on other grounds, 506 U.S. ----, 113 S.Ct. 892, 122
L.Ed.2d 260 (1993), and (2) that the criminal act was attributable
to this severe permanent condition. Madden, 18 F.3d at 307.
As noted, this court has made it clear that,
for evidence to have mitigating relevance to the special issues,
there must be a nexus between the mitigating evidence and the
criminal act. For example, in Madden, a clinical psychologist
testified that Madden suffered from an emotional disorder (specifically,
an anti-social personality). Madden failed, however, to elicit any
testimony that a person with such a disorder is more aggressive or
violent than an unafflicted person, or that he, in particular, was
more aggressive or violent because of the disorder. Also absent
was evidence that Madden was incapable of controlling his impulses
or unable to distinguish right from wrong.
Based upon this, our court determined there was
insubstantial evidence that Madden's criminal actions were
attributable to his anti-social personality. Id. Davis asserts
that his mental instabilities were "acted out" during the crime,
thus, demonstrating a connection between the crime and his
condition. Specifically, he contends that a nexus is indicated
between his "diagnosed condition of paranoid schizophrenia,
psychotic disorders and violent sexual proclivities" and the crime
because "the offense was committed against female children during
a bizarre sexual attack."
After reviewing the state court's findings, the
district court's findings, and the record, we conclude, as
hereinafter discussed, that Davis failed to present the requisite
"constitutionally relevant mitigating evidence". We address in
turn the evidence on (1) paranoid schizophrenia and psychotic
disorders, (2) violent sexual proclivities, and (3) abusive
childhood.
a.
At the punishment phase, court-appointed
psychiatrist Dr. Richard Coons, who examined Davis just prior to
trial, testified that Davis suffered from a personality/behavioral
disorder. Based upon his review of Davis' medical files, Dr. Coons
opined that Davis did not suffer from paranoid schizophrenia or
any other psychotic disorder.
In addition, even assuming Davis presented
evidence that he suffered from paranoid schizophrenia or some
other psychotic disorder, he failed to present any evidence
linking that condition to the crime. Such a situation would be
similar to that in Madden, where, as noted, Madden failed to
present evidence that he was more aggressive or violent because of
his anti-social personality, or that he was incapable of
controlling his impulses, or unable to distinguish right from
wrong. Likewise, Davis failed to link any psychiatric problems he
may have suffered to the murder of Yvette Johnson.
b.
On the other hand, the evidence adduced during
the trial does indicate that Davis had engaged previously in
sexually deviant behavior. After undergoing foot surgery at age
six, Davis spent the next several weeks in the hospital. His
medical records reveal that, during this period, the nurses
reported that he continually made obscene statements, constantly
referred to sexual matters, expressed his desire to have sexual
relations with them, and masturbated frequently in front of them
and other patients. At age 13, Davis was arrested for the
attempted rape of a 35-year-old woman who lived in his
neighborhood. This evidence above, however, does not establish a
uniquely severe and permanent handicap from a violent sexual
proclivity, nor that the criminal act was attributable to any such
condition.
c.
In Barnard, "we recognized that an abused
childhood could rise to the level of a Penry claim if the
traumatic events caused psychological effects to which the
criminal conduct was attributable." Madden, 18 F.3d at 308. As the
district court noted, "there is no documented medical evidence of
Davis' childhood abuse". (Emphasis by district court.) There is
evidence, however, of parental neglect; and medical records
indicate that Davis may have been subjected to abuse. Oftentimes,
his mother would leave her six young children alone at home for
days at a time. (But, at other times, Davis would be left with his
grandmother.) Once, when Davis cut his hand severely, his mother
waited two days before taking him to the hospital; this delay
prevented the doctors from being able to suture the wound.
Davis' reliance solely upon medical records
from his youth does not establish Penry-type evidence. There is no
evidence that these incidents were of such a traumatic nature as
to cause psychological effects, let alone, that Davis' criminal
act was attributable to any resulting psychological problems.
In sum, even if we assume that Davis suffered
from the claimed conditions, conspicuously absent at trial was any
evidence tending to link these conditions with the crime.
Although there was evidence of behavioral and mental problems,
Davis failed to demonstrate how the crime was attributable to them.
Needless to say, conclusory assumptions do not create a nexus.
Accordingly, we conclude that there is insubstantial evidence that
Davis either suffered from a uniquely severe and permanent
handicap, or that his criminal actions were attributable to any
such condition. Thus, on this basis alone, the Penry claim fails.
2.
In the alternative, even assuming that Davis
presented constitutionally relevant mitigating evidence, he failed
to satisfy the second prong for relief on a Penry claim: that this
evidence was beyond the effective reach of the jury. We examine
each of the two special issues. But, before doing so, we note that,
after instructing on the two special issues, the trial court
instructed also that "[e]vidence presented in mitigation of the
penalty may be considered should the jury desire, in determining
the answers to either of the [special] issues".
a.
As quoted, the first special issue asks whether
the defendant acted "deliberately and with reasonable expectation
that the death of the deceased ... would result?" The court
instructed that "deliberately" meant "a manner of doing an act
characterized by or resulting from careful consideration: 'a
conscious decision involving a thought process which embraces more
than mere will to engage in the conduct' ". As discussed below,
and based upon this instruction and the mitigation instruction
quoted above, we conclude that Davis' jury had an appropriate
vehicle to consider his allegedly mitigating evidence; to require
an additional (third) instruction for Davis would be to create a
new rule of constitutional law on collateral review.
In examining the first special issue, we are
mindful of the basic concern of Penry, mentioned earlier: "that
defendants who commit criminal acts that are attributable to a
disadvantaged background, or to emotional and mental problems, may
be less culpable than defendants who have no such excuse". Penry,
492 U.S. at 319, 109 S.Ct. at 2947. Thus, the gist of Penry deals
with the ability of a jury to consider a defendant's culpability
and, in determining whether death is an appropriate punishment, to
be able to exercise a "reasoned moral response" to evidence
tending to mitigate that culpability.
Unlike the present case, however, the Penry
jury was not instructed on the meaning of "deliberately".
Proceeding on the assumption that the jury understood "deliberately"
to mean something more than "intentionally", the Court recognized
that "[b]ecause Penry was mentally retarded ... and thus less able
than a normal adult to control his impulses or to evaluate the
consequences of his conduct, ... [a] juror could ... conclude that
Penry was less morally 'culpable than defendants who have no such
excuse,' but who acted 'deliberately' as that term is commonly
understood". Penry, 492 U.S. at 322-23, 109 S.Ct. at 2948 (quoting
California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93
L.Ed.2d 934 (1987) (O'Connor, J., concurring)). The "juror who
believed that Penry's retardation and background diminished his
moral culpability and made imposition of the death penalty
unwarranted would be unable to give effect to that conclusion if
the juror also believed that Penry committed the crime 'deliberately'
". Id., 492 U.S. at 323, 109 S.Ct. at 2949.
In short, the fault with the first special
issue in Penry was that it failed to clarify the term "deliberately".
The Court concluded that
[i]n the absence of jury instructions defining
"deliberately" in a way that would clearly direct the jury to
consider fully Penry's mitigating evidence as it bears on his
personal culpability, we cannot be sure that the jury was able to
give effect to the mitigating evidence of Penry's mental
retardation and history of abuse in answering the first special
issue.
Penry, 492 U.S. at 323, 109 S.Ct. at 2949.
On the other hand, the definition of "deliberately"
provided to Davis' jury would have clearly directed Penry's jury
to consider his mitigating evidence and how it bore on his
personal culpability. As noted, under the special issues, Penry's
jury was foreclosed from considering his inability "to control his
impulses or to evaluate the consequences of his conduct". Had the
Penry jury been instructed, as it was in this case, that it could
consider evidence presented in mitigation of the penalty, as well
as that "deliberately" was "characterized by or resulting from
careful consideration", it would have been able to consider his
uncontrollable impulses or lack of evaluation. (Emphasis added.)
In sum, these additional instructions provided
Davis' jury with a sufficient means to consider his mitigating
evidence. To hold that they were inadequate would require us to
announce a new rule of constitutional law on collateral review--which
we are foreclosed from doing under Teague.
b.
Having determined that the jury had an adequate
means, through the first special issue, to consider Davis'
mitigating evidence, we need not consider whether the second
special issue--continuing threat or dangerousness--provided
another, separate, adequate means. See Clark v. Collins, 19 F.3d
959, 963 n. 14 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct.
432, 130 L.Ed.2d 344 (1994). But, in the alternative, we turn to
that second issue. It concerns whether, in the future, "there is a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society".
As discussed, even if the evidence is
aggravating, as long as the mitigating aspect is within the
effective reach of the jury, the requirements of the Eighth
Amendment are satisfied. In Johnson v. Texas, --- U.S. ----, ----,
113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993), the Court noted that
the only way the evidence of Penry's mental condition could be
considered within the second special issue (future dangerousness)
was as an aggravating factor. Id. at ---- - ----, 113 S.Ct. at
2669-70. On the other hand, as also discussed, a Penry claim does
not arise when constitutionally relevant evidence "can be given
mitigating effect in some way under the Texas special issues".
Motley, 18 F.3d at 1234 (emphasis in original).
As noted, Davis failed to present any
constitutionally relevant mitigating evidence. Even so, the
background evidence that he did present does not demonstrate that
he was unable to learn from his mistakes. To the contrary, it
demonstrated that he responded positively to a structured
environment.
Gerald Frank McKimmey, who was the chief social
worker at Austin State Hospital's adolescent unit, dealt with
Davis during a 1979 admission when Davis was 16 years of age.
McKimmey testified that Davis did well in the structured
environment at the unit.
Additionally, McKimmey read Davis' social history report that was
prepared upon his admittance to the unit. Under recommendations,
the report stated: "a proper placement outside the home can be
obtained for this patient and he can gain some direction in a
positive way. He has insight to this need and indicates he wants
to find somewhere else to go other than into the home."
David Adcock, Davis' special education teacher
in the sixth and seventh grades, testified that, although Davis
was learning disabled and had low self-esteem, he was a "tender-hearted,
a very kind young man". Another teacher at this same time
described Davis as "cooperative ... very creative, very calm,
anxious to please".
The evidence Davis did present indicates that,
despite whatever condition he may have suffered under, Davis was
subject to change and was not unable to learn from his mistakes.
Based on this evidence, and the earlier quoted mitigating
instruction, Davis' jury was not "compelled" to answer the second
special issue in the affirmative; it could give mitigating effect
to what evidence there was regarding his condition.
In conclusion, there are independent bases for
concluding that the Penry claim fails: (1) Davis failed to present
constitutionally relevant mitigating evidence; but, assuming it
was presented, that evidence was not beyond the effective reach of
the jury under either (2) the first (deliberate act) or (3) second
(continuing dangerousness) special issues. Because Davis does not
make a claim within the ambit of Penry, he is seeking a new rule
of constitutional law on collateral review. Accordingly, his claim
is barred by Teague, and we REVERSE the district court on this
issue.
B.
The trial court instructed the jury that if it
answered both special issues "yes", the sentence would be death;
if it answered "no" to either, or both, the sentence would be
confinement for life. See TEX.CODE CRIM.PROC.ANN. art. 37.071(e) (Supp.1986).
It then instructed: "You may not answer any issue 'yes' unless you
agree unanimously. You may not answer any issue 'no' unless ten or
more jurors agree." See TEX.CODE CRIM.PROC.ANN. art. 37.071(d) (Supp.1986).
But, pursuant to Texas law, it did not inform the jury that if it
was unable to answer either special issue, Davis would be
sentenced to life imprisonment. See TEX.CODE CRIM.PROC.ANN. art.
37.071(g) (Supp.1986).
Davis' cross-appeal centers on the statutory
proscription in article 37.071(g), imposed on the court and
counsel, that precludes them from disclosing to the jurors or
veniremen the effect of the failure to agree on a special issue.
Davis contends that this proscription affected impermissibly the
punishment phase of his trial, as well as jury voir dire. In
raising his challenge to article 37.071(g), he maintains that he
is seeking a "reasonable interpretation" of past precedent, not a
new rule barred by Teague.
1.
As a preliminary matter, we turn to Davis'
contention that the district court erred in even considering
whether his challenge to article 37.071(g) was foreclosed by
Teague. He maintains that, because the State did not raise the
Teague bar in either its response to his habeas petition or its
summary judgment motion, the district court should not have
considered Teague sua sponte.
Davis recognizes, however, that, even if the
State does not raise Teague, a court still has discretion to
consider it. "[A] federal court may, but need not, decline to
apply Teague if the State does not argue it." Caspari v. Bohlen,
--- U.S. ----, ----, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994);
see also Schiro v. Farley, --- U.S. ----, ----, 114 S.Ct. 783,
788, 127 L.Ed.2d 47 (1994). But, Davis contends that, under the
facts of this case, the district court abused its discretion. He
fails, however, to develop this contention; and, we fail to see
any abuse of discretion.
2.
As noted, the statutory proscription foreclosed
the jury from being advised on the effect of a hung jury on either
of the special issues. Davis maintains that such a limitation
deprived the jury of relevant and material information that was
crucial in its deliberative process.
In Webb v. Collins, 2 F.3d 93 (5th Cir.1993),
we rejected a virtually identical contention. Webb contended that
the statutory proscription violated the Eighth and Fourteenth
Amendments;
but we held that consideration of such a claim was precluded by
Teague. Id. at 96. Davis attacks Webb as "incorrectly decided". In
addition to claiming this is not a "new rule", he tries to
distinguish Webb by contending that it should have been decided
based on a procedural bar, not on the basis of Teague.
"[T]here can be no dispute that a decision
announces a new rule if it expressly overrules a prior decision."
Graham, 506 U.S. at ----, 113 S.Ct. at 897. In any event, despite
Davis' protestations, Webb is controlling precedent. E.g.,
Washington v. Watkins, 655 F.2d 1346, 1354 n. 10 (5th Cir.1981)
(prior panel decision binds subsequent panel unless intervening en
banc or Supreme Court decision), cert. denied,
456 U.S. 949 , 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982).
3.
Davis asserts next that the prohibition against
informing a venireman of the effect of a hung jury deprived him of
adequate and proper information on which to exercise a peremptory
challenge. He claims that such an impediment to defense counsel's
information seeking process during voir dire constitutes
constitutional error.
Regardless, Davis fails to identify any
precedent indicating that he is not seeking a new rule on
collateral review. Although defense counsel is entitled to
question veniremen in order to exercise peremptory challenges
intelligently, Davis has failed to demonstrate how disclosing the
provisions of article 37.071(e) to a venireman affects this
process. Concerns regarding whether a venireman will stand firm in
the face of overwhelming opposition from fellow jurors can
adequately be addressed without disclosing to that venireman the
statutory effect of three or more "no" votes. Accordingly, Davis'
second challenge to article 37.071(g) is foreclosed by Teague.
4.
Under Teague, new rules may be applied in
habeas proceedings only if they come within "one of two narrow
exceptions". Saffle, 494 U.S. at 486, 110 S.Ct. at 1259. The first
exception applies to new rules that place an entire category of
conduct beyond the reach of the criminal law or addresses a
"substantive categorical guarante[e] accorded by the Constitution".
Id. at 494, 110 S.Ct. at 1263, (quoting Penry, 492 U.S. at 329,
109 S.Ct. at 2952). The second exception applies to new "watershed
rules of criminal procedure" that are necessary to the fundamental
fairness and accuracy of the criminal proceeding. Id., 494 U.S. at
495, 110 S.Ct. at 1264. Davis claims the latter exception is
implicated in this case.
Davis failed, however, to raise this issue
before the district court. Accordingly, this claim is not properly
before us, and should not be considered for the first time on
appeal. Earvin v. Lynaugh, 860 F.2d 623, 628 (5th Cir.1988), cert.
denied,
489 U.S. 1091 , 109 S.Ct. 1558, 103 L.Ed.2d 861 (1989).
Even if this claim were properly before us, and as this court
noted in Sawyer v. Butler, 881 F.2d 1273 (5th Cir.1989) (en banc),
aff'd sub nom. Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 111
L.Ed.2d 193 (1990), the second Teague exception is designed to
redress constitutional violations that "so distort the judicial
process as to leave one with the impression that there has been no
judicial determination at all, or else skew the actual evidence
crucial to the trier of fact's disposition of the case". Id. at
1294. "A rule that qualifies under this exception must not only
improve accuracy, but also ' "alter our understanding of the
bedrock procedural elements" ' essential to the fairness of a
proceeding." Sawyer, 497 U.S. at 242, 110 S.Ct. at 2831 (quoting
Teague, 489 U.S. at 311, 109 S.Ct. at 1076 (quoting Williams v.
United States, 401 U.S. 667, 693, 91 S.Ct. 1171, 1180, 28 L.Ed.2d
388 (1971) (Harlan, J., concurring in judgments in part and
dissenting in part))). Davis has failed to demonstrate that the
proscription of article 37.071(g) is of such a nature as to "so
distort" the accuracy of the jury's answers to the special issues.
5.
Noting that he has challenged the
constitutionality of article 37.071(g) at every stage (trial, on
direct appeal, in his petition for certiorari, and in his state
and federal habeas proceedings), Davis encourages this court to
create an additional exception to Teague: if a defendant
demonstrates that he has raised his constitutional complaint in
every forum, and it has been rejected (for reasons other than
delay or procedural default), then, notwithstanding Teague, a
federal court should review the merits of his challenge.
As before, Davis raises this for the first time
on appeal. Regardless, in essence, he is not asking us to fashion
an additional Teague exception. Rather, his contention is but a
further attempt to have us apply the second Teague exception; one
he does not meet.
III.
For the foregoing reasons, we AFFIRM in part,
REVERSE in part, and REMAND with instructions to deny habeas
relief.
*****
KING, Circuit Judge, specially concurring:
I agree with the panel majority that the jury
was able to consider in some manner the evidence proffered by
Davis as mitigating, see Motley v. Collins, 18 F.3d 1223, 1235
(5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 418, 130 L.Ed.2d
333 (1994), and that to grant Davis the federal habeas relief that
he now requests would be to create a "new rule" of constitutional
law, barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103
L.Ed.2d 334 (1989). I also agree that Webb v. Collins, 2 F.3d 93
(5th Cir.1993), controls the outcome of Davis' cross appeal. I
concur therefore in the judgment affirming in part, reversing in
part and remanding with instructions to deny habeas relief.
*****
This Court finds no evidence that [Davis is]
mentally retarded. There is evidence of behavioral disorders....
There are some references to the presence of brain damage in the
applicant at the age of seven; however, in 1976 a physician's
report [found], "Brain damage is not present." [Emphasis in
original physician's report.] This Court find[s] no evidence of an
organic brain disorder.
Second, Davis' contention that his sexual
proclivities were acted out during the offense because it was
committed against "female children during a bizarre sexual attack"
is inconsistent with the facts surrounding the murders. Only one
of his victims, Yvette Johnson, was female and assaulted sexually.
The other two victims, her brothers, did not exhibit any evidence
of sexual assault.
The court shall charge the jury that:
(1) in deliberating on the [special] issues
..., it shall consider all evidence admitted at the guilt or
innocence stage and the punishment stage, including evidence of
the defendant's background or character or the circumstances of
the offense that militates for or mitigates against the imposition
of the death penalty.
See Graham, 950 F.2d at 1012 n. 1 (discussion
of the 1991 amendment).
The two words that are so critical to deciding
this question are "careful consideration". In other words, before
you can answer [the first special issue] yes, you have to be
convinced beyond any reasonable doubt that James Davis carefully
considered what he was going to do before he did it. Okay? If he
carefully considered what he was going to do before he did it. And
I submit to you that the evidence in this case, gruesome though it
may be, simply does not show that he carefully considered anything.
I submit to you right now that there is a reasonable doubt on that
issue, and you're going to have to answer that question no.
...
The upshot of all of these [medical] records is
that James Davis' mind is so diseased or damaged or whatever that,
quite frankly, ladies and gentlemen, he's incapable of carefully
considering anything.
After suggesting that Davis may have been under
the influence of drugs or alcohol, his attorney continued:
[The prosecution] says we haven't brought you
any experts to tell you that. I mean, do we need to bring an
expert on something like that? Of course not. Drugs or alcohol, in
an already clouded mind like that, has to just take whatever
little control he's got and throw it out the window. Who knows
what he was under?
The attorney concluded his comments regarding
the first special issue:
Can you say beyond a reasonable doubt that
James Davis carefully considered what he was going to do before he
did it? No. Given his crippled mind, and given what the facts of
the offense show, and what they don't show, there is no way to
escape that doubt. I submit to you that question should be
answered no.
Q Was [Davis] a violent, mean, bullyish [sic]
type kid, as these kids went? Put that in context for us.
A No, he was not a mean, bullyish [sic] kind of
kid. He was fairly successful in our program, as a matter of fact.
He was quite successful. We have a level system of graduated--a
level system, whereby we can provide kids with feedback as to what
their behaviors are and what kind of behaviors they need to change.
And [Davis] was able to negotiate that system quite well.
...
Q ... Did [Davis] seem to like the structure
and the reward system?
A Quite well.
Q Did he respond to that?
A Yes, he did like it. He liked it in the sense
that he did quite well at it, and--[y]es, he did.
McKimmey also discussed a five-color coding
system the adolescent unit utilized to identify to the patients
their progress. He identified green as the highest color but
described it as "fairly rare, because when somebody reaches that
high, they're ready to go. In other words, they're doing quite
well". Later, McKimmey testified that "[Davis] had achieved the
highest color level in our system". Subsequently, Davis was
downgraded because of an incident at the unit, but McKimmey
dismissed this as a "phenomenon on adolescent treatment units"
wherein the patient causes an incident upon learning that they are
scheduled to be discharged. It is an attempt, by the patient, to
stay in the unit.
Let's focus on this future dangerousness as it
really is in the concrete world. He--If he is not given the death
penalty, he is going to serve a life sentence in the Texas
Department of Corrections. That is his future environment that we
are talking about, and I don't need to tell anybody that it is a
very structured environment.
...
But one of the main themes that you will see
all through these reports is that when you put this little boy, or
this teenager, or whatever he was at that stage, in a situation
with a lot of structure, he did pretty damn good. He did good.
If the jury returns an affirmative finding on
each issue submitted under this article, the court shall sentence
the defendant to death. If the jury returns a negative finding on
or is unable to answer any issues submitted under this article,
the court shall sentence the defendant to confinement in the Texas
Department of Corrections for life.
As noted, the Texas legislature amended the
special issues statute in 1991. This provision is codified
presently, in a modified form, at TEX.CODE CRIM.PROC.ANN. art.
37.071, Sec. 2(g) (Supp.1995).
The court, the attorney for the state, or the
attorney for the defendant may not inform a juror or a prospective
juror of the effect of failure of the jury to agree on an issue
submitted under this article.
This provision is codified now, in substance,
at TEX.CODE CRIM.PROC. art. 37.071, Sec. 2(a) (Supp.1995).
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