holding that a district court may sua sponte rule on a certificate of appealability because “the district court that denies a petitioner relief is in the best position to determine whether the petitioner has made a substantial showing of a denial of a constitutional right on the issues before that court,” noting that “[f]urther briefing and argument on the very issues the court has just ruled on would be repetitious”
How later courts described this case
- holding that a district court may sua sponte rule on a certificate of appealability because “the district court that denies a petitioner relief is in the best position to determine whether the petitioner has made a substantial showing of a denial of a constitutional right on the issues before that court,” noting that “[f]urther briefing and argument on the very issues the court has just ruled on would be repetitious”
- explaining that a district court may sua sponte rule on a certificate of appealability because “the district court that denies a [movant] relief is in the best position to determine whether the [movant] has made a substantial showing of a denial of a constitutional right on the issues before the court. Further briefing and argument on the very issues the court has just ruled on would be repetitious.”
- explaining it is appropriate for district court to address sua sponte issue of whether a certificate of appealability should be granted or denied, even before one is requested
- stating that a district court may decline to issue a COA even where the petitioner has not moved for a COA
Written by the judges who cited it.
The opinion
1 Revised May 10, 2000
2 UNITED STATES COURT OF APPEALS
3 FOR THE FIFTH CIRCUIT
4
5 No. 00-50101
6 CARUTHERS ALEXANDER,
7 Petitioner-Appellant,
8 v.
9 GARY L. JOHNSON, DIRECTOR,
10 TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
11 INSTITUTIONAL DIVISION,
12 Respondent-Appellee.
13 Appeal from the United States District Court for the
14 Western District of Texas
15 May 5, 2000
16 Before JOLLY, DAVIS and JONES, Circuit Judges.
17 PER CURIAM:
18 Caruthers Alexander, a Texas death row inmate, seeks a
19 certificate of appealability (“COA”) to appeal the district court’s
20 denial of his petition for a writ of habeas corpus. 28 U.S.C. §
21 2253. Because Alexander’s petition runs afoul of the
22 nonretroactivity rule in Teague v. Lane, 489 U.S. 288, 109 S.Ct.
23 1060 (1989), we deny the requested COA.
24 BACKGROUND
25 In April 1989, a jury found Alexander guilty for the
26 capital murder of Lori Bruch in the course of committing and
27 attempting to commit aggravated rape.1 Following a separate
28 hearing on punishment, the same jury affirmatively answered the
29 special questions submitted to it pursuant to former Article 37.071
30 of the Texas Code of Criminal Procedure. The trial court sentenced
31 Alexander to death. The Court of Criminal Appeals affirmed the
32 conviction and sentence in April 1993.2 Alexander v. State, 866
33 S.W.2d 1 (Tex. Crim. App. 1993). Rehearing was denied in September
34 1993, and the United States Supreme Court denied Alexander’s
35 petition for certiorari on May 16, 1994, rendering his conviction
36 final. Alexander v. Texas, 511 U.S. 1100, 114 S.Ct. 1869 (1994).
37 Alexander next filed an application for writ of habeas
38 corpus in the state trial court. The trial court entered findings
39 of fact and conclusions of law on September 21, 1996, and the Court
40 of Criminal Appeals denied relief based on these findings on
41 November 26, 1997. Alexander then moved for and received a stay of
1
This was Alexander’s second trial for this offense.
Alexander was previously convicted of capital murder and sentenced
to death in 1981. The Texas Court of Criminal Appeals overturned
his conviction on October 7, 1987. Alexander v. State, 740 S.W.2d
749 (Tex. Crim. App. 1987).
2
The Court of Criminal Appeals recounts in detail the
evidence supporting Alexander’s conviction. Alexander, 740 S.W.2d
at 4-5. The recitation of facts confirms that the charge against
Alexander was abundantly proved by physical evidence.
2
42 execution in federal district court. On July 1, 1998, Alexander
43 filed the instant habeas petition, which the district court denied
44 on November 30, 1999. Alexander’s motion to alter and amend the
45 judgment was denied on January 7, 2000, and in both orders, the
46 district court denied a COA.
47 Alexander applied for a COA with this court, and we
48 granted Alexander’s motion for stay of execution in order to
49 consider his application.
50 DISCUSSION
51 Under the Antiterrorism and Effective Death Penalty Act
52 of 1996 (“AEDPA”), Alexander must obtain a COA in order to appeal
53 the denial of his habeas petition. A COA may only be issued if the
54 prisoner has made a "substantial showing of the denial of a
55 constitutional right." 28 U.S.C. § 2253(c)(2). "A 'substantial
56 showing' requires the applicant to 'demonstrate that the issues are
57 debatable among jurists of reason; that a court could resolve the
58 issues [in a different manner]; or that the questions are adequate
59 to deserve encouragement to proceed further.'" Drinkard v.
60 Johnson, 97 F.3d 751, 755 (5th Cir.1996) (quoting Barefoot v.
61 Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090
62 (1983)). See Slack v. McDaniel, ___ S.Ct. ___, 2000 WL 478879, *6-
63 7 (U.S. S.Ct. Apr. 26, 2000). In a capital case, “the severity of
64 the penalty does not in itself suffice to warrant the automatic
65 issuing of a certificate,” although the court may properly consider
3
66 the nature of the penalty in deciding whether to allow an appeal.
67 Barefoot, 463 U.S. at 893, 103 S.Ct. at 3395.
68 Alexander argues that his rights under the Eighth and
69 Fourteenth Amendments were violated by the trial court’s refusal to
70 instruct the jury as to the effect of a hung jury. The Texas
71 sentencing statute provides that if a capital sentencing jury
72 answers “yes” to each of the punishment questions submitted, the
73 defendant will be sentened to death, but if ten or more jurors
74 answer one or more of the issues “no,” or if the jury is unable to
75 agree on an answer to any issue, the defendant will be sentenced to
76 life imprisonment. Texas Code Crim. Proc. Ann. 37.071(d)(2),f(2),
77 &(g) (Vernon Supp. 1999). The statute, however, prohibits the
78 court or the attorneys for the state or the defendant from
79 informing the jury of the effect of the failure to agree on an
80 issue. Id. In Texas, this is commonly called the “10-12 Rule.”
81 During jury deliberations at the punishment phase of
82 Alexander’s trial, the jury sent the following note to the court:
83 If jury deliberation does not produce a 12-0
84 “yes” vote, or a 10-2 “no” vote, on a special
85 issue, what other recourse does the jury have?
86 /s Foreman
87 The court replied that it was not authorized to give any additional
88 instructions on the issue. Alexander asserts that this refusal to
89 issue clarifying instructions was unconstitutional because it
90 created a false need for a nearly unanimous response to the special
91 issues.
4
92 This Court has considered this argument before and found
93 it barred by the nonretroactivity rule of Teague v. Lane, 489 U.S.
94 288, 109 S.Ct. 1060 (1989).3 See Webb v. Collins, 2 F.3d 93 (5th
95 Cir. 1993). Because we find Webb materially indistinguishable from
96 the instant case, we conclude that Alexander’s argument is Teague-
97 barred as well. The petioner in Webb made the same argument as
98 Alexander -- that the Texas 10-12 rule compelled the jury to vote
99 “yes” on the special issues -- and he relied on the same authority
100 -- Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860 (1988).4 See
101 Webb, 2 F.3d at 95. We concluded in Webb that the principles of
102 Mills did not dictate the rule urged by the petitioner, see Webb,
103 2 F.3d at 96, and precedent constrains us to reach the same
104 conclusion here.5
3
Under Teague, new rules of constitutional criminal
procedure will not be announced on federal habeas review unless an
exception applies. Teague, 489 U.S. at 316, 109 S.Ct. at 1078.
“[A] case announces a new rule when it breaks new ground or imposes
a new obligation on the States or the Federal Government . . . .
To put it differently, a case announces a new rule if the result
was not dictated by precedent existing at the time the defedant’s
conviction became final.” Id. at 301, 109 S.Ct. at 1070.
4
In Mills, the Supreme Court struck down a death sentence
imposed under Maryland’s capital punishment scheme because jury
instructions may have precluded the jury from considering
mitigating evidence unless the jury agreed unanimously on each
mitigating factor. See Mills, 486 U.S. at 384, 108 S.Ct. at 1870.
The Court has subsequently interpreted Mills to mean that “each
juror [must] be permitted to consider and give effect to mitigating
evidence when deciding the ultimate question whether to vote for a
sentence of death.” McKoy v. North Carolina, 494 U.S. 433, 442-43,
110 S.Ct. 1227, 1233 (1990).
5
In addition to be being barred by Teague, Alexander’s
substantive argument is meritless. The Supreme Court recently
5
105 Alexander makes two additional arguments in quest of his
106 COA. First, he urges us to allow the parties to re-brief all
107 claims in light of the Supreme Court’s recent decision in Williams
108 v. Taylor, -- S.Ct.---, 2000 WL 385369 (U.S.), which modified the
109 habeas standard announced in Drinkard v. Johnson, 97 F.3d 751, 756
110 (5th Cir. 1996). The problem with this argument is that Williams
111 is irrelevant to our disposition of Alexander’s constitutional
112 claim. Alexander’s claim is Teague-barred, separate and apart from
113 any deference to state court findings or conclusions, and any
114 argument on the Supreme Court’s modification of the Drinkard
115 standard would be unproductive.
116 Alexander also argues that the district court’s sua
117 sponte denial of COA denied him meaningful access to the courts and
118 representation of counsel.6 This argument is meritless. It is
119 perfectly lawful for district court’s to deny COA sua sponte. The
120 statute does not require that a petitioner move for a COA; it
121 merely states that an appeal may not be taken without a certificate
122 of appealability having been issued. 28 U.S.C. § 2253(c).
rejected the theory that a district court’s failure to instruct the
jury as to the consequences of deadlock gives rise to an Eighth
Amendment violation. See Jones v. United States, 119 S.Ct. 2090,
2099 (1999). Furthermore, the Fifth Circuit has expressly rejected
the contention that Texas’s 10-12 Rule prevents jurors from
considering mitigating circumstances. See Jacobs v. Scott, 31 F.3d
1319, 1328-29 (5th Cir. 1994).
6
Alexander’s argument that the district court applied the
incorrect legal standard for granting a COA barely rates mentioning
in view of the fact that the court applied the precise standard
mandated by Fifth Circuit precedent.
6
123 Furthermore, Alexander points to no legal support for his
124 contention that his rights were violated by the district court’s
125 sua sponte denial of COA without prior briefing and argument by
126 counsel. Arguably, the district court that denies a petitioner
127 relief is in the best position to determine whether the petitioner
128 has made a substantial showing of a denial of a constitutional
129 right on the issues before that court. Further briefing and
130 argument on the very issues the court has just ruled on would be
131 repetitious.
132 CONCLUSION
133 Because Alexander’s constitional argument was foreclosed
134 by Teague, he is unable to make a substantial showing that his
135 consititional rights were denied. We therefore DENY his
136 application for a COA and VACATE the stay of execution granted by
137 this court.
7