Opinion
No. 3:01-CV-2089-P
January 30, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.
Parties: Petitioner, William A. Murray, is an inmate in the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Respondent is the Director of TDCJ-ID.
Statement of Case: Upon his plea of not guilty to the offense of capital murder as charged in the indictment returned in Cause No. 19071, Murray was tried by a jury which returned a verdict of guilty. Thereafter, as a result of the jury's answers to the special issues submitted to it in the punishment phase of his trial, he was assessed a death sentence.
Because he was sentenced to death, Murray's capital murder conviction was automatically appealed to the Texas Court of Criminal Appeals. However, Murray subsequently waived his right to appeal. Therefore, the Court of Criminal Appeals reviewed the conviction and sentence for fundamental error and affirmed his conviction and death sentence in an unpublished opinion delivered on January 20, 2000. Murray then filed a motion for rehearing to reinstate his appeal which was denied on March 29, 2000. The Supreme Court denied Murray's petition for certiorari on October 16, 2000.
On March 27, 2001, Murray filed an application for habeas corpus relief in the convicting court pursuant to article 11.071 of the Texas Code of Criminal Procedure. After the district court issued its findings of fact and conclusions of law recommending that relief be denied, the Texas Court of Criminal Appeals denied relief based upon the findings and conclusions of the trial court in a written order dated October 3, 2001.
On October 17, 2001, Murray filed his motion for appointment of counsel which this court granted on November 29, 2001, appointing J. Stephen Bush as his counsel pursuant to 21 U.S.C. § 848(q)(4)(B). Murray's § 2254 petition was filed in this action on April 24, 2002, and his first amended petition was filed on July 23, 2002. Respondent filed her answer and supporting brief in response to Murray's amended petition on September 13, 2002.
In his amended petition, Murray presents six grounds for relief: 1) his trial counsel provided ineffective assistance of counsel; 2) his appellate counsel provided ineffective assistance of counsel; 3) the Texas Court of Criminal Appeals violated his due process rights by declining to reinstate his appeal; 4) the Texas capital murder statute violates his equal protection and due process rights; 5) the Texas death penalty scheme constitutes cruel and unusual punishment; and 6) the trial court violated his equal protection and due process rights because the court did not instruct the jury on the law of parole. In response to the instant petition and this court's show cause order, Respondent filed an answer along with a copy of the prior state proceedings. With the exception of Murray's third ground for relief, the Director claims that his grounds for relief are unexhausted and/or are procedurally barred.
Statement of Facts: In the early morning hours of February 10, 1998, Murray entered the home of Rena Ratcliff, a 93-year-old resident of Kaufman, Texas, while she slept. After Murray rummaged throughout the house looking for valuables, he entered her bedroom and began looking through her belongings. Mrs. Ratcliff awakened and confronted Murray. Murray hit, choked, and raped her. She died as a result of blunt force injuries and strangulation. He was arrested several days later, in possession of several of the victim's belongings, and he subsequently confessed to the crime.
Findings and Conclusions: Murray's petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254, which states that:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.28 U.S.C. § 2254(d)(2000).
The AEDPA applies to all habeas corpus petitions filed after April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 2068 (1997); Miller v. Johnson, 200 F.3d 274, 280 (5th Cir. 2000).
An examination of Murray's article 11.071 application confirms Respondent's contention that he did not present his first and second grounds for relief to the Texas state courts and therefore they are unexhausted, which precludes this court from granting relief on these grounds. 28 U.S.C. § 2254(b)(1)(A). In turn, Respondent argues that the grounds are subject to procedural default.
Although Murray raised ineffective assistance of appellate counsel in his art. 11.071 application, there he claimed that counsel was ineffective because counsel was not permitted to file an appellate brief after the Court of Criminal Appeals accepted Murray's waiver of his right to appeal. In his federal petition he claims that appellate counsel erred in failing to raise possible points of error on appeal, which presents different allegations of fact and a substantially different basis for relief. See Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) (holding that the exhaustion requirement is satisfied when the substance of the federal claim has been fairly presented to the highest state court, but it is not satisfied if the federal petition presents a new legal theory or a new factual claim), citing Picard v. Conner, 404 U.s. 270, 275-8, 92 S.Ct. 509, 512-13 (1971).
Procedural default occurs when a petitioner fails to exhaust all available state remedies and the state court to which he would be required to petition would now find that the claim is procedurally defaulted. Bledsoe v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999). Were the unexhausted claims raised in a subsequent state writ of habeas corpus, the Court of Criminal Appeals would consider them to be procedurally defaulted under Article 11.071 § 5 of the Texas Code of Criminal Procedure, which prohibits a claim from being raised in a subsequent habeas application unless: 1) it could not have been raised in the previous application because the factual or legal basis was unavailable at the time; or 2) the claim contains sufficient facts establishing that, but for a violation of the United States Constitution, no rational juror would have found Murray guilty or would have answered the punishment issues in the State's favor. See TEX. CODE CRIM. PROC. ANN. art 11.071 § 5(a) (Vernon Supp. 1999).
Clearly, the legal and factual bases for this ground for relief were available to Murray at the time he filed his state habeas application. With respect to his first ground, all of the conduct attributed to his trial attorneys involved interaction between Murray and his trial counsel prior to the conclusion of his criminal trial. Likewise, the alleged deficiencies in appellate counsel's representation occurred prior to the Court of Criminal Appeals' denial of his motion to reinstate his appeal on March 29, 2000, nearly one year before he filed his art. 11.071 application. Moreover, Murray has made no attempt to allege, much less prove, that his unexhausted claims contain sufficient facts establishing that, but for a federal constitutional violation, no rational juror would have found him guilty or sentenced him to death. Accordingly, because Murray has failed to exhaust his state remedies with regard to these claims, and because the Court of Criminal Appeals, if presented with a successive state habeas petition on these claims, would find them barred under article 11.071 § 5(a), merits review of these grounds in his federal petition is procedurally barred.
While a federal habeas petitioner can overcome this procedural bar by either showing cause and prejudice for the default or that a failure to consider the claim will result in a "fundamental miscarriage of justice," Murray fails to allege, much less establish, either. See Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 861-62 (1995); Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991).
In his third ground for relief, Murray contends that the Court of Criminal Appeals denied him his procedural due process rights when it refused to grant his motion for rehearing and reinstate his appeal after accepting his waiver of his right to appeal.
On October 29, 1999, the day that Murray's direct appeal brief was due to be filed with the Court of Criminal Appeals, Murray filed a motion with that court to abate the appeal and extend the time for filing a brief by 120 days. This motion stated that Murray had informed his appellate attorney that he wanted to waive his right to appeal his conviction and sentence and requested that the appeal be abated so that a hearing could be held by the trial court in order to determine Murray's competency to waive his appeal. On November 1, 1999, the Court of Criminal Appeals issued an order granting the motion, instructing the trial court to conduct a hearing within thirty days of the date of the order, and directing the trial court to forward to the court within forty-five days findings of fact and conclusions of law regarding Murray's desire to waive his appeal. The trial court conducted a hearing on November 19, 1999, during which Murray testified regarding his desire to waive his direct appeal. The trial judge issued findings and conclusions on December 9, 1999, in which he found that Murray was aware of his right to appeal and had "voluntarily, knowingly, and intelligently" waived his right to appeal. On January 20, 2000, the Court of Criminal Appeals issued an opinion stating that, on Murray's request to waive all appeals, the court had submitted the case, reviewed the record for any fundamental error, and was affirming the judgment of the trial court. On February 7, 2000, Murray's appellate attorney filed a motion for rehearing with the Court of Criminal Appeals after being informed that Murray had changed his mind about waiving his direct appeal. On March 29, 2000, the mandate was issued, and the motion for rehearing was denied.
Murray had also initially stated that he wanted to waive his right to file a state habeas application, but this waiver was also withdrawn, and the trial court permitted the state habeas process to proceed.
The Supreme Court has acknowledged that a criminal defendant who has been sentenced to death may waive his right to appeal, provided that waiver is made knowingly and intelligently. Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436 (1976); See also Whitmore v. Arkansas, 495 U.S. 149, 165-66, 110 S.Ct. 1717, 1728 (1990). Earlier, in Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 1506 (1966), the Supreme Court stated that the standard for determining whether a criminal defendant was competent to withdraw a petition for certiorari is whether a defendant has the capacity to appreciate his position and make a rational choice with respect to further litigation of his case or, if he suffers from a mental disease or defect, whether it may substantially affect his capacity. Subsequently, in Rumbaugh v. Procunier, 753 F.2d 395, 398-99 (5th Cir. 1985), the Fifth Circuit applied this standard in determining whether a federal habeas petition under a state death sentence was mentally competent to waive his rights to further judicial review of his conviction and sentence.
Applying this standard to the case at hand, the trial court's finding that Murray waived his right to appeal knowingly and intelligently is supported by the record from the hearing regarding Murray's competency to waive his appeal. Murray testified at this hearing that he wanted to waive his appeal because he was guilty of the crime for which he was committed, he did not want to remain in prison on death row or in the general population, and he wanted the victim's family to be satisfied with the outcome of the trial and wanted to end their suffering. (Supplemental Record, vol 1:12-13, 19-20, 27). Murray further testified that he understood that he would lose his right to a direct appeal and that he understood that this decision would probably be irrevocable. (S.R. 1:14-15). Moreover, at this hearing the trial judge referenced the fact that two psychiatrists testified at trial who had examined Murray at some point and that neither testified that Murray suffered from any mental disorder that called into question his competency. (S.R. 1:11).
The findings of the state court are entitled to a presumption of correctness. § 2254(e)(1).
When it addressed this issue at the state level, the state habeas court concluded that Murray's knowing and voluntary waiver of appeal was binding upon him and concluded that his right to due process was not violated when the Court of Criminal Appeals held him to his voluntary election to waive his right to appeal. (State Habeas Transcript: 127). Succinctly stated, the issue raised in this ground is whether a state appellate court is required to reinstate a defendant's criminal appeal after the defendant has knowingly and understandingly waived his right to appeal. As noted above, the Supreme Court has previously held that even a defendant subject to a death sentence may waive his right to appeal. The Supreme Court has not modified or distinguished its decisions in any subsequent cases, and therefore this ground fails to present a cognizable basis for relief. See § 2254(d)(1).
In his fourth and fifth grounds for relief, Murray asserts that the Texas capital murder statutory scheme, as applied to him, violates his due process rights, his equal protection rights, and his right to be free from cruel and unusual punishment under the Fifth, Eighth, and Fourteenth Amendments because prosecutors are able to decide whether or not to seek an indictment for capital murder and the death penalty in applicable cases. Murray therefore alleges, in essence, that he may have been treated differently than a similarly situated defendant because the prosecutor in his case elected to seek an indictment for capital murder, rather than murder, and chose to seek a death sentence rather than a life sentence. Respondent argues that Murray's due process claim is procedurally barred because it is unexhausted and that Murray's equal protection and Eighth Amendment claims are procedurally barred because they were decided at the state level on an independent and adequate state procedural ground. Alternatively, Respondent asserts that all of these claims should be denied on their merits.
Although § 2254(b)(1) bars a federal court from granting habeas court on an unexhausted claim, subpart (b)(2) permits a court to deny relief on an unexhausted ground for relief. For the following reasons, the court should proceed to deny Murray's fourth and fifth grounds on the merits.
In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct, 2909 (1976), the Supreme Court rejected a claim that the Georgia capital punishment statute was unconstitutional because the state prosecutor has the discretion to decide whom to prosecute for capital murder and whether or not to offer a plea bargain to certain defendants. Rather, the Court noted that the Constitution requires that the decision to impose the death penalty must be guided by standards that require that the sentencing be based on the particularized circumstances of the crime and the defendant in question. Id. at 199, 96 S.Ct. at 2937. The Court re-affirmed this holding in McCleskey v. Kemp, 481 U.S. 279, 306-07, 107 S.Ct. 1756, 1774-75 (1987), noting again that opportunities for discretionary leniency by the State towards other defendants do not render a specific capital sentence arbitrary and capricious. Moreover, in Pulley v. Harris, 465 U.S. 37, 44-5, 104 S.Ct. 871, 876-77 (1984), the Supreme Court held that the Eighth and Fourteenth Amendments do not require state courts to compare a death sentence imposed on one defendant with penalties imposed in similar cases. Thus, the Supreme Court has consistently rejected claims that capital murder schemes are unconstitutional because sentences sought and/or imposed on other defendants may differ. The Texas courts concluded that Texas state law does not violate Murray's constitutional rights because it permits prosecutorial discretion in charging someone with capital murder and seeking the death penalty. (SHTr.:138-40). This conclusion is not an unreasonable application of Supreme Court precedent, and Murray's fourth and fifth grounds for relief are without merit.
On the same day that the Court issued its opinion in Gregg v. Georgia, it issued its opinion in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950 (1976), upholding the constitutionality of the Texas state death penalty statute. The statute addressed in Gregg and the statute addressed in Jurek were adopted by the States of Georgia and Texas, respectively, after those states' prior death penalty statutes, considered by the Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726 (1972), were held to be constitutionally infirm.
Finally, in his sixth ground for relief, Murray argues that he was denied his equal protection and due process rights because the trial court did not allow defense counsel to inform potential jurors during voir dire about Murray's parole eligibility if given a life sentence and because the trial court subsequently declined to instruct the jury at the punishment phase of the trial that Murray would be ineligible for parole for forty years if he were given a life sentence. See TEX. Gov'T CODE ANN. § 508.145(b) (Vernon 1998). Specifically, Murray argues that parole eligibility information was relevant mitigating evidence and that he has been treated differently than subsequent capital murder defendants, because Texas state law now permits juries to be informed about parole eligibility in capital cases if the defendant so desires.
Murray's final claim is foreclosed by both Supreme Court and Fifth Circuit case law. In Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187 (1994), the Supreme Court held that, where a defendant's future dangerousness is an issue in a capital case, and the sentencing options are death or life without the possibility of parole, due process requires that a defendant be allowed to inform the sentencing jury about his parole ineligibility. Id. at 156, 177. However, the plurality opinion in Simmons specifically limited its holding to cases where the sentencing option is between death and life without parole. Justice Blackmun, writing for the Court, went further and stated that "[i]n a State in which parole is available, how the jury's knowledge of parole availability will affect the decision whether or not to impose the death penalty is speculative, and we will not lightly second-guess a decision whether or not to inform a jury of information regarding parole." Id. at 168. And the opinion also noted that, differing from South Carolina, Texas has no life-without-parole sentencing option. Id. at 168, n. 8.
Furthermore, the Fifth Circuit has not only consistently held that the federal constitution does not require that capital juries be informed about parole eligibility, but has re-affirmed this position several times within the last year. See Woods v. Cockrell, 307 F.3d 353, 361-62 (5th Cir. 2002); Johnson v. Cockrell, 306 F.3d 249, 256-57 (5th Cir.), cert filed No. 02-8120 (2002); Collier v. Cockrell, 300 F.3d 577, 582-83 (5th Cir. 2002). This court is bound by such precedent, and therefore the state habeas court's conclusion that this ground for relief is without merit does not constitute an unreasonable application of Supreme Court precedent on this issue (SHTr.:144).
The fact that Texas state law now requires a trial court, if requested in writing by the defendant in a capital murder case, to inform the jury that if a capital murder defendant is sentenced to life imprisonment he will be ineligible for parole for forty years, see TEX. CODE CRIM. PROC. art. 37.071 § 2(e)(2)(B) (Vernon 2001), does not change the result under Simmons. No constitutional issue is raised since the State of Texas has not adopted a life-without-parole alternative to imposition of the death penalty. Further, this amendment to Texas state procedural law did not become effective until after Murray's criminal trial was completed. Acceptance of his argument would not only conflict with the holding in Simmons and the subsequent opinions of the Fifth Circuit, but would also constitute a new rule of law contravening the holding in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989); also see Wheat v. Johnson, 238 F.3d 357, 361-62 (5th Cir.), cert. denied, 532 U.S. 1070, 121 S.Ct. 2226 (2001).
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition be denied.
A copy of this recommendation shall be transmitted to Petitioner, his counsel and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), a party's failure to file written objections to this recommendation within such ten-day period may bar a de novo determination by the District Judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the District Court.