# Alexander v. Johnson > Court of Appeals for the Fifth Circuit · May 10, 2000 · 211 F.3d 895 URL: https://www.frixlaw.com/law-library/cases/20697 ## Case - **Full name:** Caruthers ALEXANDER, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** May 10, 2000 - **Citations:** 211 F.3d 895; 2000 WL 554542 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Jolly, Davis, Jones - **Cited by:** 586 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/20697 ## How later opinions describe it (automated extraction) - 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 t… - 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 th… - 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 - holding that district courts may deny COA sua sponte without requiring further briefing or argument ## Opinion text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/20697. Public record. Not legal advice.