Goodbye to my
family; I love all of you, I’m sorry for the victim’s family.
I wish I could make it up to them. I want those out there to
keep fighting the death penalty.
Randy Lynn Woolls,
36, was executed Aug. 20, 1986 for the murder of a ticket teller in
On June 16, 1979, Woolls entered the Bolero
drive-in movie theater where Betty Stotts, 44, was selling movie
tickets. He hit her over the head with a tire tool, stabbed her
several times, and then set the booth on fire. He then sold tickets
to movie customers, took $600 out of the register, stole Stotts car
and drove it into the movie where he was arrested. An autopsy showed
that Stotts was still alive when the fire was set.
Woolls was shown to have been under the influence
of alcohol and 40 doses of liquid Valium.
Woolls was a former Medina construction worker
who had a series of previous convictions and blamed drugs for his
three prison sentences. Woolls started using drugs when he was 13,
and said he turned to crime to support his teenage drug habit.
Ronald Sutton, the prosecuting lawyer, said that
his problems went deeper than drugs. He said, “Even as a child he
was caught torturing many animals. He never showed any emotion or
guilt. I don’t believe that he even remembered anything that
happened because he was so high on Valium.”
Stotts apparently had written letters to her
husband and four children a few days before she died that told them
she would not always be with them in body but that her spirit would.
The investigators found Stotts journal in the debris and her next to
last entry read, “The burning and cutting of oneself for natural
self is sorrow and when it is all gone, the higher self is left.”
The last entry read, “This is the last I shall write to express
Woolls said, “I feel death is a little severe for
something that was a mistake. They said I beat this woman down with
a tire tool, cut her throat, then I piled everything in the booth on
top of her and set it on fire. Then I get in her car, go inside the
show and am sitting inside the car when the cops got there. It’s
obvious I was totally out of my mind.”
Sutton said this was pretty much an open and
close case even with Woolls having the best defense lawyer in the
“By God! He walked into a drive-in movie theater,
cut the woman’s throat, raped her, set the place on fire, then he
had the audacity to sit outside and sell tickets to the movie!” said
In his last statements he said, “I’d like to say
goodbye to my family. I love them all. I’d like to tell the people
fighting the death penalty to continue their work. I’m sorry about
the victim and family and I wish there was some way I could make it
Woolls had two personal witnesses: his aunt, June
Hind Mills, and his cousin, Natrona Mills. They told Woolls, “I love
798 F.2d 695
Randy Lynn WOOLLS,
O.L. McCOTTER, Director, Texas Department of Corrections,
United States Court of Appeals,
Aug. 14, 1986.
Appeal from the United States
District Court for the Northern District of Texas.
Before RUBIN, JOHNSON, and JONES,
EDITH Hollan JONES, Circuit Judge:
On October 8, 1979, the
appellant, Randy Lynn Woolls, was convicted of capital murder.
He is scheduled to be executed before sunrise on August 20,
1986. Woolls seeks a certificate of probable cause in order to
proceed with his appeal. Finding no substantial showing of the
denial of a federal right, the appellant's motion for a
certificate of probable cause is DENIED.
The facts of the murder itself
are generally undisputed. See the statement of facts in Woolls
v. State, 665 S.W.2d 455, 467-70 (Tex.Crim.App.1983) (en banc).
The appellant's conviction and sentence were affirmed on direct
appeal to the Texas Court of Criminal Appeals. Woolls, 665 S.W.2d
at 472. A petition for a writ of certiorari to the United States
Supreme Court was denied. Woolls v. Texas, 468 U.S. 1220, 104
S.Ct. 3592, 82 L.Ed.2d 889 (1984).
The appellant then filed a
petition for a writ of habeas corpus in the United States
District Court for the Northern District of Texas.
In the district court, the appellant raised the same issues as
are presented on appeal. The case was referred to a magistrate
for findings and recommendations. The magistrate found that an
evidentiary hearing was not required and recommended that the
appellant's petition for a writ of habeas corpus be denied.
Upon the appellant's failure
to timely file objections to the magistrate's findings and
recommendations, the district court, upon motion, made a finding
of excusable neglect and allowed the appellant to file
objections. The district court reviewed de novo those findings
and recommendations to which specific objections had been made.
Finding no error, the district court adopted the findings and
conclusions of the magistrate and denied the appellant's
petition for a writ of habeas corpus.
The appellant filed a timely
notice of appeal and sought leave from the district court to
appeal in forma pauperis and for a certificate of probable
cause. The district court denied both IFP and CPC.
The appellant now seeks leave
from this court to proceed on appeal IFP, for a stay of
execution, and for a certificate of probable cause. Without a
certificate of probable cause, Woolls cannot proceed with his
appeal in this court. Fed.R.App.P. 22(b). See Fabian v. Reed,
714 F.2d 39, 40 (5th Cir.1983) (per curiam). It is that motion
which we will now address.
To obtain a certificate of
probable cause, Woolls must make a " 'substantial showing of the
denial of [a] federal right.' " Barefoot v. Estelle, 463 U.S.
880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090, 1104 (1983) (quoting
Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), cert.
denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972)).
The appellant need not show
that he will prevail on the merits but he must demonstrate that
the issues raised in his petition for a writ of habeas corpus
are "debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are 'adequate to deserve encouragement to proceed
further.' " Id. at 893 n. 4, 103 S.Ct. at 3394-95 n. 4, 77 L.Ed.2d
at 1104 n. 4 (quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980)).
See O'Bryan v. McKaskle, 729 F.2d 991, 994 (5th Cir.1984) (per
A. Judicial review of FDA enforcement
The appellant first asserts
that the Food and Drug Administration's (FDA) refusal to
evaluate certain drugs used for lethal injection to determine
whether those drugs quickly and effectively cause a painless
death is judicially reviewable pursuant to the Administrative
Procedure Act. This claim has been foreclosed by the Supreme
Court's recent decision in Heckler v. Chaney, 470 U.S. 821,
----, 105 S.Ct. 1649, 1659, 84 L.Ed.2d 714, 728 (1985), which
held that the FDA's refusal to initiate enforcement proceedings
under the federal Food, Drug, and Cosmetic Act with respect to
drugs used to perform lethal injections was not subject to
Congress's failure to provide
for judicial review of FDA's discretionary decision not to
investigate the lethal use of sodium thiopental does not
constitute a denial of appellant's right to due process of law.
The action or inaction of the administrative agency is not a
punishment and so cannot be characterized as cruel or unusual.
B. Use of sodium thiopental
for lethal injections.
Although not clearly raised in
his petition as a separate ground for relief, we will
nevertheless review the appellant's apparent assertion that use
by the Texas Department of Corrections of sodium thiopental
violates his eighth amendment right to be free from cruel and
unusual punishment because, when administered by untrained
personnel or in improper dosages, this drug may cause conscious
death by suffocation.
Appellant's argument is
premised on supposition unsupported by fact. The appellant
proffers the affidavit of Dr. Ward Casscells, which recites an
American Medical Association recommendation that a physician
should not be a participant in a legally authorized execution.
The appellant then offers the affidavit of Dr. Leroy David
Vandam, which asserts that, even if administered by an expert,
the injection of sodium thiopental may cause physical and mental
pain due to possible technical difficulties in administering the
Finally, the appellant submits
the affidavit of Dr. Richard S. Hodes, who concludes that, even
if administered by a professional, individual responses to this
drug can be quite varied. Thus, if an individual is not rendered
unconscious before the injection of the paralytic drug, the
individual would be aware of the onset of loss of consciousness
and the paralytic drug would produce a sense of shortness of
breath and suffocation over a two to three minute period.
Depending on the specific paralytic drug administered, the
individual may also experience a sensation of multiple electric
shocks over the entire body with erratic muscle twitching
followed by acute paralysis and suffocation.
First, the appellant has not
even alleged, much less produced any evidence, that the Texas
Department of Corrections allows anyone other than trained
medical personnel to administer lethal injections. Second, the
appellant has neither alleged nor produced evidence that would
indicate that improper dosages of sodium thiopental have been or
will be administered so as to result in physical or mental pain.
Finally, even if the physical
and mental manifestations noted by Dr. Hodes were experienced by
an individual, this showing "of discomfort or unnecessary pain
falls far short of the showing found insufficient in Gray v.
Lucas, [710 F.2d 1048, 1057-61 (5th Cir.), cert. denied, 463
U.S. 1237, 104 S.Ct. 211, 77 L.Ed.2d 1453 (1983) ]." O'Bryan,
729 F.2d at 994. Woolls has failed to make a substantial showing
of the denial of his right to be free from cruel and unusual
punishment under the eighth amendment.
C. The failure to define "reasonable
doubt" during voir dire.
The appellant next asserts
that the failure of the Texas courts to require a definition of
"reasonable doubt" resulted in the improper exclusion of
veniremember Gutierrez. First, the appellant asserts that the
failure of the State of Texas to define "reasonable doubt" makes
it impossible for a potential juror to state whether he or she
could follow that law. We find this assertion untenable in this
case, where the potential juror understood the definition of "reasonable
doubt" but admitted that he would apply his own, more strenuous,
During voir dire, veniremember
Gutierrez was faced with the question whether he would hold the
State to its burden of proving guilt and punishment issues
beyond a reasonable doubt or whether he would require the State
to prove these issues under a stricter standard, namely "beyond
all doubt." The following colloquy occurred between the
prosecutor and Gutierrez:
Q. In order to clear your
conscience, if you were called upon to determine whether or not
death should be imposed, to answer the two questions to satisfy
Mr. Gutierrez' (sic) conscience, regardless of the other eleven
people, but to satisfy Mr. Gutierrez, you would require the
State to remove all doubt that he did it deliberately and he was
a continuing threat to society before Mr. Gutierrez could vote
on these two issues knowing at the time that it would result at
the time in sentencing the defendant to death?
THE COURT: When the District
Attorney asked you that question he said, "remove all doubt."
Are you saying remove all reasonable doubt?
MR. GUTIERREZ: All doubt.
THE COURT: All right. I
sustain the challenge.
Woolls, 665 S.W.2d at 464.
After continued questioning by the appellant's counsel, the
court proceeded to question Gutierrez's understanding of "reasonable
THE COURT: All right. In the
deliberation in a capital case where a death penalty is a
possible result, you've heard the evidence and you've retired to
the jury room, and in your mind you have a doubt concerning the
defendant's guilt or innocence, but you classify that doubt in
your mind as a non-reasonable or unreasonable doubt, one not
based on reason, could you [then] find the defendant guilty of
MR. GUTIERREZ: If there's any
doubt in my mind I could not.
THE COURT: Whether that doubt
was reasonable or unreasonable?
MR. GUTIERREZ: Yes.
* * *
THE COURT: Let me ask you one
other [question]. When you say it's to be clear in your mind,
are you saying that you are using the judgment scale that's it's
(sic) beyond all doubt or beyond a reasonable doubt?
MR. GUTIERREZ: Beyond all
THE COURT: And those are not
synonymous. That's not the same standard?
MR. GUTIERREZ: No. I don't
Veniremember Gutierrez made it
clear that he could not follow the court's instruction with
respect to the State's burden of proof. Gutierrez understood
that "reasonable doubt" and "beyond all doubt" were different
standards. Nevertheless, even if he believed his doubts were
unreasonable, Gutierrez would still require the State, at the
guilt-innocence stage, to alleviate not only his admittedly
unreasonable doubt but to prove the defendant's guilt beyond all
We cannot countenance such a
prospective juror's admission that he would refuse to abide by
the trial court's instruction as to the proper burden of proof
to which the jury must hold the State. Under Adams v. Texas, 448
U.S. 38, 44, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589 (1980),
we must conclude that veniremember Gutierrez was unwilling or
unable to follow the court's instructions or to obey the law or
follow his oath. His exclusion was, therefore, proper.
D. Exclusion of
Woolls finally asserts that
the trial court erred in sustaining the State's challenge for
cause of five veniremembers. Finding the trial court's exclusion
for cause "fairly supported by the record," we conclude that the
appellant has failed to make a substantial showing of the denial
of a federal right with respect to the exclusion of prospective
In Wainwright v. Witt, 469
U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Supreme
Court clarified the standard under which a juror may be excluded
for cause because of his or her views on capital punishment.
Relying on the test enunciated in Adams v. Texas, the Supreme
Court held that a prospective juror may be excluded for cause
when 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. at
424, 105 S.Ct. at 852, 83 L.Ed.2d at 851-52 (footnote omitted) (quoting
Adams v. Texas, 448 U.S. at 45, 100 S.Ct. at 2526, 65 L.Ed.2d at
In Wainwright v. Witt, the
Supreme Court also definitively established the degree of
deference that a federal habeas court must pay to a state trial
court's determination that a juror should be excluded for cause.
Relying on its previous decision in Patton v. Yount, 467 U.S.
1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), the Court held that
a trial court's determination that a prospective capital
sentencing juror should be excluded for cause is a finding of
fact subject to 28 U.S.C. Sec. 2254(d).
As such, the finding of the
trial judge is "presumed correct" unless one of the reasons
enumerated in Sec. 2254(d) is present. As in Wainwright v. Witt,
the appellant here "does not suggest that paragraphs 1 through 7
are applicable; he must therefore rest his case on the exception
in paragraph 8--that the finding of bias is 'not fairly
supported' by the record viewed 'as a whole.' " 469 U.S. at 431,
105 S.Ct. at 856, 83 L.Ed.2d at 856.
We have carefully reviewed the
testimony with respect to each excluded prospective juror. In
each case, the record indicates that the prospective juror's
views would have prevented or substantially impaired his or her
performance of his or her duties as a juror. Veniremember
Kendall stated that he would automatically vote against the
death penalty regardless of how gruesome, brutal, or bizarre the
facts of the particular case. He further affirmed that he was
unalterably opposed to capital punishment.
Veniremember Shelton stated
that under no circumstances could he consider the imposition of
the death penalty. Veniremember Thigpen initially declared her
opposition to the death penalty by affirming that she would
automatically vote against its imposition regardless of the
facts of the case. Mrs. Thigpen waivered, however, when asked if
she could impose the death penalty if someone "close to her" was
the victim. She later qualified this statement by saying that
she could think of no circumstances under which she could
consider giving the death penalty or voting for an issue which
would result in the imposition of the death penalty.
Veniremember McCullough stated
that he would consider whether the death penalty could be
imposed or not but that he would automatically vote "no" to at
least one of the questions during the punishment phase
regardless of the facts adduced at trial. Finally, veniremember
Huerta stated that, regardless of the facts presented, she would
automatically vote "no" to the questions presented during the
penalty phase simply because a positive response would result in
the death penalty.
The state trial court's
findings were amply supported by the record. The appellant has
not adduced " 'clear and convincing evidence that the factual
determination by the State court was erroneous.' " Wainwright v.
Witt, 469 U.S. at 435, 105 S.Ct. at 858, 83 L.Ed.2d at 859.
The appellant's motion for
leave to proceed in forma pauperis is GRANTED. Because the
appellant has failed to make a substantial showing of the denial
of a federal right, his motion for a certificate of probable
cause is DENIED. Accordingly, the motion for a stay of execution
is also DENIED, and this appeal is