I’m an African
warrior, born to breathe, and born to die.
Carl Eugene Kelly
was convicted and sentenced to death at only 22 years of age after
he and accomplice, Thomas Graves, robbed a 7-Eleven in Waco, Texas,
and killed two young men on September 2, 1980.
After stealing $30 for drugs,
Kelly and Graves abducted the store clerk, Steven Pryor, stole his
car and drove him out to Cameron Park. They shot him several times
then threw his body off a 60-foot cliff. David Riley, a transient
who was asleep in Pryor’s car, was also killed.
Kelly went back to the 7-Eleven to
get his car, and later meet up with Graves to split the money. The
police were already on the scene talking to two witnesses and taking
fingerprints. They questioned Kelly about the whereabouts of the
store clerk, and if he had been in the store that night.
While Kelly was being questioned,
Grave’s was in Pryor’s car driving north until police pulled him
over outside of Hillsboro. Police found Kelly’s wallet in the car,
bloodstains, and personal belongings of Riley’s.
With that evidence, the police
arrested the two that day. Graves pleaded guilty to the murders and
received a life sentence. Kelly also confessed to the killings, but
refused the plea bargain. Instead, Kelly chose to go on trial where
he was convicted of capital murder, and then sentenced to death.
In one statement Kelly confessed
that he shot at one of the victims, but later denied it, and claimed
that it was Graves who fired the fatal shots. He did confess to
being at the scene and throwing the bodies off the cliff.
Tim Madigan, a reporter who spent
16 months with Kelly said that when he described his crime, he did
so like it was just a trip to the grocery store. Kelly told Madigan
that it was the drugs that made him do it. “I wish I wouldn’t have
been there, but you can’t change that…I feel like I shouldn’t be
executed for something that I didn’t do.”
After his conviction, Kelly spent
the next 12 years waiting his execution. The efforts of his lawyers
were successful at delaying it through the appeals process. Appeals
were made that Kelly hadn’t intended on participating in the
killings with Graves, that evidence used in the trial were seized
illegally, and that he was on drugs at the time of the crime that
affected his judgement.
Other attempts at appeals included
pointing out Kelly’s low IQ, that his father physically abused him,
and his young age. All attempts for a stay of execution to save
Kelly, a high school dropout with a drug problem and a criminal
Kelly was executed by lethal
injection on August 22, 1993 at 12:22 a.m. Charles L. Brown, the
former assistant director for public information, witnessed the
execution. “My job was to witness many executions, it was not
because I was so pro capital punishment,” Brown said. “I didn’t
really pay that much attention to them.”
862 F.2d 1126
Carl Eugene KELLY, Petitioner-Appellant,
James A. LYNAUGH, Director, Texas Department of Corrections,
United States Court of Appeals,
Dec. 22, 1988.
death by the State of Texas, Carl Eugene Kelly seeks federal
relief in this, his first request for federal habeas. The United
States District Court granted the State's motion for summary
judgment and denied the writ. We affirm.
Kelly was convicted of the capital murder of Steven Pryor, a
convenience store clerk in Waco, Texas. The jury found Kelly
guilty on June 4, 1981, and the next day answered affirmatively
the special interrogatories submitted pursuant to article 37.071
of the Texas Code of Criminal Procedure.
The Texas Court of Criminal
Appeals affirmed Kelly's conviction and sentence on April 25,
1984. Rehearing was denied, and the United States Supreme Court
denied certiorari. Kelly v. State, 669 S.W.2d 720 (Tex.Crim.App.)
(en banc), reh'g. denied, (May 23, 1984), cert. denied, 469 U.S.
963, 105 S.Ct. 362, 83 L.Ed.2d 298 (1984).
Kelly was scheduled to be
executed before sunrise on February 25, 1985. On February 6,
1985, he filed an application for writ of habeas corpus with the
Texas courts. See Tex. Crim. Proc. Code Ann. art. 11.01-.64 (Vernon
1977 & Supp. 1988). The Texas Court of Criminal Appeals denied
the writ application and a motion for stay of execution. Ex
parte Kelly, Application No. 14,711, slip op. (Tex.Crim.App. Jan
11, 1985). Kelly has exhausted his state remedies.
Kelly sought a writ of habeas
corpus and a stay of his execution from the federal courts. Four
days later, on February 19, 1985, he obtained a stay from the
United States District Court for the Western District of Texas.
Nearly twenty-eight months later, the district court granted the
State's motion for summary judgment and denied Kelly's petition
for writ of habeas corpus. In the meantime, no new execution
date has been set by the state.
before the jury were summarized by the Texas Court of Criminal
Appeals as follows:
The evidence reveals that on
September 2, 1980, the victims, Steven Pryor and David Wade
Riley, a transient found asleep in Pryor's 1980 brown Camaro
automobile, were kidnapped from the convenience store where
Pryor was employed at approximately 4:15 a.m. and taken to
Cameron Park where they were both murdered.
Diana Player, an acquaintance
of Pryor's and a regular customer at the store, testified she
saw "three black males" escort the victim to his car outside the
store and watched the victim drive toward Cameron Park. Player
was soon joined at the unattended convenience store by Ed
Torres, an off-duty policeman, who telephoned police to report
the missing attendant.
Shortly thereafter and before
police arrived, Dewey Verona, a regular customer of Pryor's,
arrived at the site and, at trial, testified he saw a man get
out of the victim's car which had pulled up across the street
from the store, dropped the man off and then departed.
Verona testified he followed
the man's path with his eyes and only "lost contact with him for
a few minutes" until the same man approached the group and asked
for assistance in starting his stalled automobile parked near
The three witnesses and two
police officers called to the scene testified that the man who
requested assistance (later identified as the appellant)
appeared to have blood on his shirt, his arm and his two-toned
shoes. When police officers questioned the appellant about the
blood, he replied that he had gotten into a fight earlier that
Upon asking for identification,
appellant replied that he had none. Police officers
characterized appellant as "belligerent" and testified appellant
was found in the store, which had been sealed off to the public,
twice after previously being asked to leave. While in the store,
appellant asked the investigator dusting for fingerprints
whether he had found any and quickly told the officer that he
had been in the store earlier "buying a slurpee" and wished to
purchase another. After working on his stalled vehicle,
appellant subsequently left the convenience store area.
was issued for the victim's 1980 Camaro which was later stopped
at approximately 6 a.m. by police officers outside Hillsboro.
The driver, Thomas Graves, was arrested and a search of the car
followed. Items retrieved in the trunk of the car included the
appellant's billfold; two revolvers; a green canvas sack which
contained money; a backpack which contained clothes and
prescription bottles in the name of David Wade Riley; and blood-stained
Blood stains were found on the
door and floormat of the automobile. Limestone dust found on the
floorboard of the car was the clue that led police officers to
Cameron Park where the bodies were found at the bottom of a
cliff in the park area. Upon discovering the appellant's
billfold in the trunk of the victim's car, an arrest warrant was
issued. At approximately 10:00 a.m. appellant was arrested at
his place of employment.
Kelly v. State, 669 S.W.2d at
* Kelly first
argues that his right against self-incrimination was denied when
his right to terminate questioning was not scrupulously honored.
Kelly relies on Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321,
46 L.Ed.2d 313 (1975), in which the Supreme Court concluded "that
the admissibility of statements obtained after the person in
custody has decided to remain silent depends under Miranda on
whether his 'right to cut off questioning' was 'scrupulously
honored.' " Id. at 104, 96 S.Ct. at 326.
Waco police first questioned
Kelly at the station house on September 2, 1980, shortly after
taking him before a justice of the peace who at 10:57 a.m. gave
him Miranda warnings. Kelly answered "no" when asked if he
wanted to talk. Questioning stopped and Kelly was taken to the
Officer Bobby Luedke removed
Kelley from the jail at 4:00 p.m. that same afternoon.
The police told Kelly of the charges against him and gave
Miranda warnings. When Kelly refused to answer questions, the
questioning stopped, and he was returned to jail.
Officer Luedke next removed
Kelly from jail that same evening somewhere between 8:30 and
10:00 p.m. to conduct a gun powder residue test. Luedke told
Kelly that Kelly's co-defendant, Thomas Graves, had given a
statement implicating Kelly. Kelly indicated a willingness to
talk if he was shown Graves' signature at the bottom of a
After seeing the signature,
and without new Miranda warnings, Kelly orally confessed. When
the confession was reduced to writing,
the Miranda warnings were stated at the top of the first page.
Immediately below the Miranda warnings was the phrase "I
understand my rights as set out in this warning and knowing what
they are I freely and voluntarily, without being forced or
compelled by promises, threats, or persuasion, waive these
Miranda should not be "read to
create a per se proscription of indefinite duration upon any
further questioning by any police officer on any subject, once
the person in custody has indicated a desire to remain silent."
Mosley, 423 U.S. at 102-03, 96 S.Ct. at 326. The circumstances
of each case determine whether the right to cut off questioning
was scrupulously honored.
In Mosley, the
police stopped the interrogation upon the defendant's request.
Questioning resumed after more than two hours had passed, with a
new set of Miranda warnings, and only about a crime that had not
been the subject of the first interrogation. Id. at 105-06, 96
S.Ct. at 327. The Supreme Court concluded that the right to
terminate questioning had been scrupulously honored.
We found that the right to end
questioning had not been scrupulously honored in United States
v. Hernandez, 574 F.2d 1362 (5th Cir.1978). After arrest,
Hernandez was given Miranda warnings and declined to make a
statement. Questioning stopped. Police then kept Hernandez in a
police wagon for approximately five hours, even though the
station was only minutes away.
Upon arrival at the station at
5:00 a.m., Hernandez was again informed of his rights and again
declined to talk. The police nevertheless interrogated him "at
least two, and perhaps three times more" and Hernandez gave a
statement within 45 minutes after arriving at the station. Id.
at 1365. "It [was] patently obvious that the police ignored [his]
repeated invocation of his right to remain silent." Id. at 1369.
We find here that the police
scrupulously honored Kelly's decision to terminate questioning,
despite Kelly's attempts to characterize his situation as being
more like Hernandez than like Mosley. First, interrogations
ceased immediately each time Kelly expressed a desire to remain
Second, the police did not
repeatedly interrogate Kelly as occurred in Hernandez; rather,
the efforts to question Kelly were spread over seven to twelve
hours. See United States v. Corral-Martinez, 592 F.2d 263, 267
(5th Cir.1979) (second interrogation given four and a half hours
warnings were administered twice and written warnings once.
Even had no written warning been given, it would be difficult to
conclude that Kelly had forgotten his Miranda rights. See Evans
v. McCotter, 790 F.2d 1232, 1238 (5th Cir.), cert. denied, 479
U.S. 922, 107 S.Ct. 327, 93 L.Ed.2d 300 (1986); see also Stumes
v. Solem, 752 F.2d 317, 321 (8th Cir.) (finding that failure to
give Miranda warnings before second interview did not establish
Mosley violation), cert. denied, 471 U.S. 1067, 105 S.Ct. 2145,
85 L.Ed.2d 502 (1985).
Finally, it is not decisive
that the interrogations covered the same crime. See Jackson v.
Wyrick, 730 F.2d 1177, 1180 (8th Cir.) ("Although each of the
interrogations concerned the murder of the prison guard, this
factor alone is not sufficient to find a violation of ...
Miranda rights under Mosley."), cert. denied, 469 U.S. 849, 105
S.Ct. 167, 83 L.Ed.2d 102 (1984). In short, nothing in the
record indicates that the police "persist[ed] in repeated
efforts to wear down [Kelly's] resistance and made him change
his mind." Mosley, 423 U.S. at 105-06, 96 S.Ct. at 327. Instead,
the record indicates only that Kelly's right to cut off
questioning was scrupulously honored.
We also reject
Kelly's related contention that he did not voluntarily waive his
right to remain silent.
The state trial court found that Kelly "voluntarily waived the
rights of which he was advised."
This finding is supported by the record and entitled to a
presumption of correctness under 28 U.S.C. Sec. 2254(d).
argues that his trial counsel was ineffective in two respects.
First, counsel failed to object to the trial court's failure to
instruct the jury to disregard "the illegally obtained evidence,"
presumably his confession.
The trial court,
however, instructed the jury regarding voluntariness in
compliance with the Texas Criminal Code.
The court instructed the jury that to consider the confession it
had to find both that the confession was given voluntarily and
that Kelly had waived his rights voluntarily.
allegedly was ineffective in failing to request a charge on
mitigation of punishment due to voluntary intoxication. Of
course, to succeed Kelly must demonstrate prejudice from his
counsel's failure to object. See Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). He fails
to show such prejudice.
In a supplemental brief,
Kelly's counsel "acknowledges that there exists little evidence
in this case which could be classified as mitigating," and
points out that this type of mitigating evidence can be a "double-edged
sword ... [that] creates a sense of fear in the jury as often as
it creates a sense of sympathy." We agree. This is a classic
example of a judgment call by trial counsel and we are pointed
to nothing to suggest that it was otherwise. See Strickland, 104
S.Ct at 2065; see also Millard v. Lynaugh, 810 F.2d 1403, 1410
(5th Cir.) (citing Strickland), cert. denied, --- U.S. ----, 108
S.Ct. 122, 98 L.Ed.2d 81 (1987).
Nor was the district court
required to hold an evidentiary hearing to determine whether
trial counsel's failure to request a charge on mitigation was
due to ineffectiveness.
The law in this circuit is
clear: to be entitled to a hearing on ineffectiveness, a habeas
petitioner must allege facts which, if proved, would overcome
the presumptions that trial counsel is effective and that trial
conduct is the product of reasoned strategy decisions.
Taylor v. Maggio, 727 F.2d
341, 349 (5th Cir.1984). Kelly has not alleged such facts, and
we decline to require an evidentiary hearing on his claim of
ineffective assistance of counsel. See Baldwin v. Blackburn, 653
F.2d 942, 947 (5th Cir. Unit A 1981).
Kelly also alleges his
appellate counsel was ineffective because he failed to raise the
admissibility of the confession on appeal. Again, however, Kelly
fails to meet the Strickland standard. Kelly suffered no
prejudice because the en banc Texas Court of Criminal Appeals
specifically reviewed the confession issue. Ex parte Kelly,
Application No. 14,711, slip op. (Tex.Crim.App. Jan. 11, 1985).
attacks the constitutionality of Texas' capital punishment
scheme, urging that it is flawed because the jury is prevented
from considering mitigating evidence except on the issues of the
deliberateness of the murder and the probability of future
Until recently, the
constitutionality of the Texas capital punishment scheme was a
settled matter. See Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950,
49 L.Ed.2d 929 (1976); see also Lockett v. Ohio, 438 U.S. 586,
607, 98 S.Ct. 2954, 2966, 57 L.Ed.2d 973 (1978) (Burger, C.J.).
However, in Franklin v. Lynaugh, --- U.S. ----, 108 S.Ct. 2320,
101 L.Ed.2d 155 (1988), prior law was called into question when
only four justices joined the plurality opinion reaffirming
Jurek. Justice O'Connor's concurrence affirmed the
constitutionality of the Texas scheme as related to the
mitigating evidence before the Court in Franklin, but the
opinion rested on grounds suggesting that different mitigating
circumstances might warrant a different result.
Since Justice O'Connor's
concurrence presents the narrower of the two positions
attracting the majority required for affirmance, we take it as
the rule of Franklin, at least until the Court speaks more
clearly. The test used by the concurrence is described in the
petitioner had introduced mitigating evidence about his
background or character or the circumstances of the crime that
was not relevant to the special verdict questions, or that had
relevance to the defendant's moral culpability beyond the scope
of the special verdict questions, the jury instructions would
have provided the jury with no vehicle for expressing its "reasoned
moral response" to that evidence. If this were such a case, then
we would have to decide whether the jury's inability to give
effect to that evidence amounted to an Eighth Amendment
Franklin, 108 S.Ct. at 2333 (O'Connor,
J., concurring). The opinion concludes, however, that the
mitigating evidence introduced by Franklin, his discipline
record while in custody, could be given mitigating effect by the
jury in answering the question regarding future dangerousness.
Kelly only points specifically
to one item of potentially mitigating evidence in his case.
In the guilt phase of the trial, Kelly's confession was
introduced which indicated that he had taken drugs sometime
prior to the murders. Kelly's counsel did not emphasize this
fact in the sentencing phase. Even if this evidence of voluntary
intoxication is considered mitigating, it could clearly be given
full effect by the jury in deciding whether Kelly acted
deliberately. We have already held that Kelly's counsel was not
ineffective for failing to request a charge on mitigation due to
Kelly argues that more
mitigating evidence was not offered because at the time of trial
no instructions regarding the mitigating effect of the evidence
could have been obtained. Since much mitigating evidence can be
a "double-edged sword," creating fear in the jury as well as
sympathy, Kelly contends that his trial counsel made a rational
choice to withhold such evidence without specific instructions
to the jury regarding its mitigating impact.
As examples of such "double-edged"
evidence, Kelly points to a defendant's poor childhood
characterized by abuse or neglect, his history of drug use, or
his diminished mental capacity. Kelly has not previously made
this argument. The state makes no contention that Kelly has
failed to exhaust his state remedies and we do not rest on this
point. However, we nonetheless decline to consider the argument
here because it was not made to the federal district court.
* Kelly also
attacks the constitution of the jury. He argues that Aron Foster
was excluded for cause contrary to Witherspoon v. Illinois, 391
U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). A state can
exclude for cause those who made unmistakably clear (1) that
they would automatically vote against the imposition of capital
punishment without regard to any evidence that might be
developed at the trial of the case before them, or (2) that
their attitude toward the death penalty would prevent them from
making an impartial decision as to the defendant's guilt.
Id. at 522-23 n. 21, 88 S.Ct.
at 1777 n. 21 (emphasis in original). We now look to whether the
juror's views would " 'prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.' " Wainwright v. Witt, 469 U.S. 412,
424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985) (quoting Adams v.
Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581
(1980)); see also Woolls v. McCotter, 798 F.2d 695, 699 (5th
Cir.1986) (following Wainwright). The trial court's decision to
exclude the juror is presumed correct under 28 U.S.C. Sec.
2254(d). See Wainwright v. Witt, 469 U.S. at 426-29, 105 S.Ct.
at 853-55; see also Woolls, 798 F.2d at 699 (applying Sec.
Kelly must adduce "clear and
convincing evidence" that the state court's factual
determination was erroneous. See Wainwright, 469 U.S. at 435,
105 S.Ct. at 858. He has failed to do so. We are persuaded that
Mr. Foster properly was excused; the record makes it plain. See
Wicker v. McCotter, 783 F.2d 487, 493 (5th Cir.), cert. denied,
478 U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986).B
Kelly next argues that the
jury was unconstitutionally conviction-prone and did not reflect
the "contemporary standards of decency" required by the
Constitution. The Supreme Court has rejected this argument,
finding that the removal for cause of "Witherspoon-excludables"
did not violate a constitutional right to an impartial jury. See
Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 1770, 90 L.Ed.2d
137 (1986); see also Brogdon v. Blackburn, 790 F.2d 1164, 1169
(5th Cir.1986) (deciding that Lockhart foreclosed such a claim),
cert. denied, 481 U.S. 1042, 107 S.Ct. 1985, 95 L.Ed.2d 824
(1987). Nor do death-qualified juries violate the fair cross-section
requirement. See Lockhart, 106 S.Ct. at 1766; see also Wicker v.
McCotter, 783 F.2d at 493-94 (rejecting unfair bias and fair
cross-representation arguments). Finally, Kelly provides no case
law to support his "contemporary standards of decency"
launches a general attack on the death penalty. He argues the
Texas death penalty scheme has been applied in an arbitrary and
capricious manner since 1973 and that it was applied in Kelly's
case in an arbitrary and invidious manner. This is not argument
but rhetoric, for Kelly provides no facts or studies to support
his allegation. We reject it.
Kelly argues that Texas
applies the death penalty in a racially discriminatory fashion,
but does not establish "that the decisionmakers in his case
acted with discriminatory purpose." McCleskey v. Kemp, 481 U.S.
279, 107 S.Ct. 1756, 1766, 95 L.Ed.2d 262 (1987).
Kelly next asserts that the
death penalty has no penological justification. However, "it is
settled that the death penalty may, as a general rule, be
imposed on individuals for capital murder who themselves killed,
attempted to kill, or intended that a killing take place." See
Evans v. McCotter, 790 F.2d 1232, 1243 (5th Cir.), cert. denied,
479 U.S. 922, 107 S.Ct. 327, 93 L.Ed.2d 300 (1986); see also
Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 1688, 95 L.Ed.2d
127 (1987) (stating that death penalty may be used on defendant
whose mental state was one of reckless indifference to human
Finally, Kelly argues against
lethal injection as a method of execution, arguing that it is
cruel and unusual punishment, especially when administered by an
unqualified person. Again, we already have rejected this
argument. See Woolls, 798 F.2d at 698.
JOHNSON, J., concurs in the