# Ronald Clark O'Bryan v. W.J. Estelle, Jr., Director, Texas Department of Corrections, Respondent

> Court of Appeals for the Fifth Circuit · August 30, 1983 · 714 F.2d 365

URL: https://www.frixlaw.com/law-library/cases/423527

## Case

- **Full name:** Ronald Clark O’BRYAN, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** August 30, 1983
- **Citations:** 714 F.2d 365
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Randall, Higginbotham, Buchmeyer
- **Cited by:** 105 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/423527

## How later opinions describe it (automated extraction)

- finding that Texas courts strictly apply procedural default rules to objections to the charge
- discussing inconsistent standards concerning the degree of deference a habeas court must accord the decision of the voir dire judge
- discussing rehabilitation of veniremen challenged on Witherspoon grounds

## Opinion text

714 F.2d 365
Ronald Clark O'BRYAN, Petitioner-Appellant,
v.
W.J. ESTELLE, Jr., Director, Texas Department of
Corrections, Respondent- Appellee.
No. 82-2422.
United States Court of Appeals,
Fifth Circuit.
Aug. 26, 1983.
Dissenting Opinion Aug. 30, 1983.
Stanley G. Schneider, Will Gray, Houston, Tex., for petitioner-appellant.
Leslie A. Benitez, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
David Crump, The Legal Foundation of America, South Texas College of Law, Houston, Tex., amici curiae for Texas Dist. and County Attys. Ass'n.
Nicholas E. Calio, Washington, D.C., amici curiae for Washington Legal Foundation.
Appeal from the United States District Court for the Southern District of Texas.
Before RANDALL and HIGGINBOTHAM, Circuit Judges, and BUCHMEYER * , District Judge.
RANDALL, Circuit Judge:
1
Ronald Clark O'Bryan was convicted of the murder of his own child in a Texas state court in 1974 and sentenced to die. On appeal from the federal district court's denial of habeas corpus relief, 28 U.S.C. § 2254 (1976), the defendant contends:
2
(1) that the exclusion of three jurors who expressed conscientious objections to the death penalty violated the rule of Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968);
3
(2) that the Texas death penalty procedure is unconstitutional because it does not provide for jury instructions concerning mitigating circumstances;
4
(3) that the defendant's constitutional rights were violated when the trial court permitted the prosecutor to comment on defense counsel's failure to ask defense witnesses certain questions about the defendant's reputation; and
5
(4) that the trial court's refusal to instruct the jury on the law governing parole as it relates to persons sentenced to life imprisonment violated the defendant's due process rights.
6
While we are compelled to recognize that O'Bryan has raised a serious challenge to the exclusion of two of the three jurors under Witherspoon, we conclude that the district court's denial of habeas corpus relief should be affirmed.
7
I. FACTUAL AND PROCEDURAL BACKGROUND.
8
O'Bryan was convicted of murdering his eight-year-old son, Timothy, for remuneration or the promise thereof, namely, the proceeds from a number of life insurance policies on Timothy's life. See Tex.Penal Code Ann. § 19.03(a)(3) (Vernon 1974). 1 The facts of this case as adduced at trial are set forth in detail in the Texas Court of Criminal Appeals' disposition of O'Bryan's direct appeal. O'Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979) (en banc), cert. denied, 446 U.S. 988 , 100 S.Ct. 2975 , 64 L.Ed.2d 846 (1980). We have summarized them briefly here.
9
The record reflects that O'Bryan, who worked as an optician at Texas State Optical Company, had serious financial problems. The family was delinquent on a number of loans and had been forced to sell their home to meet their most pressing obligations. O'Bryan discussed his financial burdens with friends and acquaintances, informing some of them that he expected to receive some money by the end of the year. Despite his financial difficulties, O'Bryan substantially increased the life insurance coverage on his two children, Timothy and Elizabeth Lane, during 1974. By mid-October there was $30,000 worth of coverage on each child, while the coverage on O'Bryan and his wife was minimal.
10
In August, 1974, O'Bryan tried unsuccessfully to obtain cyanide where he worked. In September, he called a friend who worked at Arco Chemical Company, and the two discussed the varieties and availability of cyanide. O'Bryan continued to discuss cyanide among his fellow employees at Texas State Optical. Shortly before Halloween, O'Bryan appeared at Curtin Matheson Scientific Company, a chemical outlet in Houston. When he discovered that the company had cyanide available only in large quantities, O'Bryan asked the salesperson where he could obtain a smaller amount.
11
On Halloween, Thursday, October 31, 1974, the O'Bryan family dined at the home of the Bates family. The children of both families had planned to go "trick or treating" together in the Bates' neighborhood. The defendant and Mr. Bates accompanied O'Bryan's children and Bates' son on the Halloween outing. When the party arrived at the Melvins' home, the lights were out, but O'Bryan and the children went up to the home anyway. When no one answered the door, the children went on to the next house; O'Bryan remained behind for about thirty seconds. He then ran up to the children, "switching" at least two "giant pixy styx" in the air and exclaiming that "rich neighbors" were handing out expensive treats. O'Bryan offered to carry the pixy styx for the children. Back at the Bates' home, O'Bryan distributed the pixy styx to his and Bates' two children, and gave a fifth stick to a boy who came to "trick or treat" at the door.
12
After the Halloween festivities had been completed, O'Bryan took his children home, while his wife went to visit a friend. O'Bryan informed the children that they could each have one piece of candy before going to bed; Timothy chose the pixy stick. The boy had trouble getting the candy out of the tube, so O'Bryan rolled the stick in his hand to loosen the candy for his son. When Timothy complained that the candy had a bitter taste, O'Bryan gave him some Kool-Aid to wash it down.
13
Timothy immediately became ill and ran to the bathroom, where he started vomiting. When Timothy became sicker and went into convulsions, O'Bryan summoned an ambulance. Timothy died within an hour after he arrived at the hospital. Cyanide was found in fluids aspirated from his stomach and in his blood. The quantity of cyanide in the blood was well above the fatal human dose.
14
There was conflicting testimony at trial concerning the extent to which the defendant showed remorse at the hospital and at his son's funeral. During the days following Halloween, O'Bryan gave conflicting stories as to the origin of the pixy styx, but he eventually claimed that the pixy styx came from the Melvin home. Mr. Melvin was at work, however, until late in the evening on Halloween.
15
O'Bryan was charged with and convicted of capital murder. At the sentencing proceeding, the State reintroduced the evidence that it had presented at trial and the defendant presented nine lay witnesses who stated that they did not believe that O'Bryan was likely to be a danger to society in the future. The jury answered the two special issues affirmatively 2 and O'Bryan was sentenced to die.
16
O'Bryan's conviction and sentence were affirmed by the Texas Court of Criminal Appeals on September 26, 1979. O'Bryan v. State, supra. His application for a writ of certiorari to the United States Supreme Court was denied in 1980, O'Bryan v. Texas, 446 U.S. 988 , 100 S.Ct. 2975 , 64 L.Ed.2d 846 (1980), as was his first application for state habeas corpus relief.
17
In July, 1980, he filed a petition for federal habeas corpus relief, which was dismissed without prejudice so that he could return to state court to present additional unexhausted claims. His second application for state habeas corpus relief was denied on September 1, 1982, and his execution date set for October 31, 1982. On September 29, 1982, O'Bryan filed his second application for federal habeas relief. The district court denied his application for the writ and stay of execution on October 20, 1982. We granted his application for a stay and request for a certificate of probable cause on October 27, 1982. O'Bryan v. Estelle, 691 F.2d 706 (5th Cir.1982).
18
II. THE WITHERSPOON ISSUE.
19
At least seventeen persons were excused for cause from serving on the jury on the basis of their opposition to the death penalty. O'Bryan challenges the exclusion of three of them: Jurors Wells, Pfeffer, and Bowman.
20
In Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), the Supreme Court set aside a defendant's death sentence where members of the venire had been excluded solely because they had conscientious scruples against capital punishment. The Court held that a potential juror could not be excused for cause on the basis of his opposition to the death penalty unless he was "irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings." Id. at 522 n. 21, 88 S.Ct. at 1777 n. 21. Such persons may be excluded only if they make it
21
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.
22
Id. (emphasis in original). The Supreme Court reasoned that a jury from which all persons who had reservations against imposing the death penalty had been excluded was a jury "uncommonly willing to condemn a man to die." Id. at 521 , 88 S.Ct. at 1776 .
23
Both the Supreme Court and this circuit have insisted upon strict adherence to the mandate of Witherspoon. The courts have required a death sentence to be set aside even if only one potential juror has been excluded for opposing the death penalty on grounds broader than those set forth in Witherspoon, see Davis v. Georgia, 429 U.S. 122 , 97 S.Ct. 399 , 50 L.Ed.2d 339 (1976); Marion v. Beto, 434 F.2d 29, 32 (5th Cir.1970), regardless of whether the state has any peremptory challenges remaining at the close of voir dire. Alderman v. Austin, 663 F.2d 558 , 564 n. 7 (5th Cir.1982), aff'd in relevant part, 695 F.2d 124 (5th Cir.1983) (en banc); Granviel v. Estelle, 655 F.2d 673, 678 (5th Cir.1981), cert. denied, 455 U.S. 1003 , 102 S.Ct. 1636 , 71 L.Ed.2d 870 (1982); Burns v. Estelle, 592 F.2d 1297, 1299 (5th Cir.1979), aff'd, 626 F.2d 396 (5th Cir.1980) (en banc); contra, Davis, supra, 429 U.S. at 124 , 97 S.Ct. at 400 (Rehnquist, J., dissenting).
24
A. The Standard of Appellate Review.
25
As a threshold matter, we address the question of the appropriate standard of appellate review in federal habeas proceedings in assessing challenges to the exclusion of jurors in state trials under Witherspoon. The Supreme Court has never expressly stated what the standard of review of a Witherspoon challenge should be. Our review of the Supreme Court's principal Witherspoon cases, Adams v. Texas, 448 U.S. 38, 49-51 , 100 S.Ct. 2521, 2528-29 , 65 L.Ed.2d 581 (1980); Lockett v. Ohio, 438 U.S. 586, 595-97 , 98 S.Ct. 2954, 2959-61 , 57 L.Ed.2d 973 (1978); Maxwell v. Bishop, 398 U.S. 262, 264-65 , 90 S.Ct. 1578, 1580 , 26 L.Ed.2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 482-84 , 89 S.Ct. 1138, 1140-42 , 22 L.Ed.2d 433 (1969); Witherspoon, supra, suggests to us that in those cases, the Court was engaging in an independent or de novo review. By de novo review, we mean that the Court appears to decide for itself, based upon a reading of the transcript, whether a juror who was allegedly improperly excluded under Witherspoon has made it unmistakably clear that he or she would automatically vote against the imposition of the death penalty, without regard to any evidence that might be developed at trial, or that his or her attitude toward the death penalty would prevent him or her from making an impartial decision as to the defendant's guilt. No deference appears to be given to the trial court's ability to observe the demeanor of the juror, perhaps because Witherspoon's requirement that a juror must make his or her views "unambiguously" or "unmistakably clear" suggests that there is no need for such deference. Significantly, however, the high Court's decisions have generally been made in the context of a direct criminal appeal. 3
26
Witherspoon challenges in the lower federal courts are raised in the context of federal habeas proceedings. In the traditional juror bias case, federal habeas review of a state trial court's findings is more narrowly circumscribed than is appellate review in a direct criminal appeal. See Smith v. Phillips, 455 U.S. 209 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982). In Smith, the petitioner maintained that a juror who had applied for a law enforcement position during the trial was presumptively biased against him. The state trial court held a post-trial hearing and determined that the juror had not been biased. The Supreme Court held that in a federal habeas action like the one before it, the state court's findings with respect to actual bias were "presumptively correct under 28 U.S.C. § 2254 (d)," and that "federal courts in such proceedings must not disturb the findings of state courts unless the federal habeas court articulate[d] some basis for disarming such findings of the statutory presumption that they are correct ...." 102 S.Ct. at 946 (citing Sumner v. Mata, 449 U.S. 539 , 101 S.Ct. 764 , 66 L.Ed.2d 722 (1981)); see also Rogers v. McMullen, 673 F.2d 1185 , 1190 n. 10 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 740 , 74 L.Ed.2d 961 (1983); but see Irvin v. Dowd, 366 U.S. 717, 723 , 81 S.Ct. 1639, 1642 , 6 L.Ed.2d 751 (1961) (habeas case in which Supreme Court held that juror bias is "mixed [question of] law and fact" and therefore, it was duty of court of appeals to "independently evaluate the voir dire testimony of the impaneled jurors") (quoting Reynolds v. United States, 98 U.S. 145, 156 , 25 L.Ed. 244 (1878)). Since a Witherspoon challenge is a form of a challenge for juror bias, Smith would seem to indicate that a state court's factual findings with respect to a juror's willingness to impose the death penalty should be entitled to a presumption of correctness under section 2254(d). The Court's requirement of strict adherence to Witherspoon, however, see, e.g., Davis v. Georgia, 429 U.S. 122 , 97 S.Ct. 399 , 50 L.Ed.2d 339 (1976) (death sentence must be set aside even if only one prospective juror is excluded in violation of Witherspoon), leaves us with some doubts about whether the Court would apply the traditional juror bias standard of review to a Witherspoon challenge. Further, the Supreme Court has not been entirely consistent in its treatment of the juror bias cases. Compare Smith, supra (presumption of correctness accorded state court's findings with respect to actual bias), with Irvin, supra (juror bias is mixed question of law and fact to be independently reviewed by appellate court).
27
The State maintains that a state court's factual findings are entitled to a presumption of correctness under section 2254(d) in Witherspoon challenges as well. See Alderman v. Austin, 695 F.2d 124, 130 (5th Cir.1983) (en banc) (Fay, J., dissenting); Darden v. Wainwright, 699 F.2d 1031, 1037-38 (11th Cir.), rehearing en banc granted, 699 F.2d 1043 (11th Cir.1983) (Fay, J., suggesting that Sumner presumption applies, but apparently engaging in independent review of the propriety of the state trial court's exclusion of prospective jurors). Like the Supreme Court, however, the lower federal courts, without expressly establishing a standard of review, appear to engage in a de novo review of Witherspoon challenges in federal habeas proceedings. McCorquodale v. Balkcom, 705 F.2d 1553 , 1556-57 n. 9 (11th Cir.1983); Bell v. Watkins, 692 F.2d 999, 1006-08 (5th Cir.1982); Williams v. Maggio, 679 F.2d 381, 384-86 (5th Cir.1982) (en banc), cert. denied, --- U.S. ----, 103 S.Ct. 3553 , 77 L.Ed.2d 1399 (1983); Alderman v. Austin, 663 F.2d 558, 562-64 (5th Cir.1982), aff'd in relevant part, 695 F.2d 124 (5th Cir.1983) (en banc); Granviel v. Estelle, 655 F.2d 673, 677-78 (5th Cir.1981); Burns v. Estelle, 592 F.2d 1297, 1300-01 (5th Cir.1979), aff'd, 626 F.2d 396 , 397-98 (5th Cir.1980) (en banc); Marion v. Beto, 434 F.2d 29, 31 (5th Cir.1970).
28
Some judges have suggested a third possibility: according some deference to the trial court's decision in light of its opportunity to observe the juror's demeanor while he or she is answering the questions on voir dire. Judge Kravitch recently suggested that where the questions asked of the prospective jurors are precise and closely track the language in Witherspoon, an appellate court's deference to the trial court's assessment of the clarity of the juror's answers is appropriate. McCorquodale v. Balkcom, 705 F.2d 1553, 1561 (11th Cir.1983) (Kravitch, J., dissenting); see also Mason v. Balkcom, 487 F.Supp. 554, 560 (M.D.Ga.1980) (noting trial judge's opportunity to observe and listen to juror, but engaging in independent analysis of Witherspoon challenge), rev'd on other grounds, 669 F.2d 222 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1260 , 75 L.Ed.2d 487 (1983). The McCorquodale majority, however, carefully "scrutinized the record in [its own] effort to ascertain the correctness of the trial court's finding with regard to a venireman's convictions about capital punishment," 705 F.2d at 1556-57, n. 9 , and noted that in Aiken v. Washington, 403 U.S. 946 , 91 S.Ct. 2283 , 29 L.Ed.2d 856 (1971), the Supreme Court summarily reversed a death sentence where the state court had found no Witherspoon violation and had accorded some deference to the trial court.
29
As discussed above, however, our review of the case law reveals that the courts have not specifically established a standard for appellate or collateral review of Witherspoon challenges. While a state trial court's factual findings with respect to juror bias may normally be entitled to a presumption of correctness in a federal habeas proceeding, Smith, supra, or at least to some deference in light of the trial court's opportunity to observe the prospective juror during voir dire, the federal courts appear to engage in a de novo review of the trial court's conclusions in cases where the defendant complains of a Witherspoon violation. Fortunately, we do not have to resolve the question whether and to what extent we should defer to the state court's findings because we have concluded that even if we proceed under the more exacting standard resulting from de novo review, the trial judge's exclusion of the three jurors in this case was proper under Witherspoon.
30
B. Juror Wells.
31
The first prospective juror excused for cause who has merited the defendant's attention in these habeas proceedings was the Reverend Charles D. Wells. While Wells was able to imagine a case where a juror would vote to impose the death penalty, he was unable to see himself doing it, and on further questioning stated that he would automatically vote against the death penalty:
32
Q. Mr. Wells, I'm Mike Hinton, as the Court told you awhile ago for the State, and this is my co-counsel, Mr. Vic Driscoll. We come here representing the State of Texas in this case in which we are seeking as the punishment for this defendant the penalty of death.
33
Let me begin then by asking you whether or not you have any conscientious, moral or religious scruples against the imposition of the penalty of death in the electric chair?
34
A. Let me say that morally, I do, and I don't think that I am capable of issuing a penalty of death to any man.
35
Q. All right. Again, as Judge Price told you a moment ago, no one is here to quarrel with your feelings and you certainly are entitled to your opinions as all of us are in our good country, and that includes your feelings about the death penalty. But under the law I must ask you this further additional question, Reverend, which is, I take it from your answer that you cannot imagine a case of murder where you could, as one of twelve jurors, vote to send someone to the electric chair as a punishment for their offense even though it was authorized by statute?
36
A. Would you repeat yourself now, please?
37
Q. Yes, sir. My question that I must ask you then, based upon your former answer is, I take it that because of the feelings that you do have that you are entitled to have, moral feelings, religious feelings, that you cannot imagine a case where you, sitting on a jury, could vote to send someone to death in the electric chair as a punishment for their crime even though the law authorizes such penalty?
38
A. I can imagine it, but I can't see myself doing it.
39
Q. All right. Then, I believe we must [be] somewhere between our hypothetical case where you can imagine a jury doing it?A. Yes.
40
Q. But you can't imagine yourself doing it as one of those jurors, is that correct, sir?
41
A. I can hardly see myself doing it, yes.
42
Q. All right. Now, I don't want you to get angry with me and I'm not trying to argue with you, but I have to ask you for your answer, because this lady is taking down your testimony at this time for the record.
43
I take it then from your answer that because of your religious and moral principles and feelings that you are certainly entitled to have, you cannot imagine a case where you would vote for the imposition of death in the electric chair. Is that correct, sir?
44
A. No, I can't.
45
MR. HINTON: I thank you, sir. We submit that the juror is not qualified, Your Honor.
EXAMINATION BY THE COURT
46
Q. Mr. Wells, let me ask you a question before they have the right to ask you questions.
47
Because of your moral or religious scruples, would you, if you were a member of the jury, would you automatically vote against the imposition of capital punishment no matter what the trial revealed?
48
A. As far as the electric chair is concerned?
49
Q. Would you personally, if you were a member of a jury, would you automatically vote against the imposition of the death penalty no matter what the trial revealed?
50
A. Yes, I would.
51
Q. All right.
52
A. I would vote against it.
53
2 Trial Transcript at 763-66.
54
In Texas, however, a juror does not technically vote to impose the death penalty. Instead, the trial judge sentences the defendant to die if, and only if, the jury answers two, sometimes three, statutory questions in the affirmative. Following the examination by counsel for the State and by the court set forth above, counsel for the defendant directed Wells' attention to those two questions:
55
Q. All right. You understand of course, nobody would ask you personally to put somebody to death. You understand that. You personally do not have to pull the switch or something?
56
A. I understand that.
57
Q. Surely. And of course there's a lot of steps to go to between the time you start trial and the time you end the testimony and the defense puts on their testimony and of course, there's a finding of guilt. You understand that. You do now if you haven't before. Is that correct?
58
A. Yes.
59
Q. All right. And then, after a finding of guilt, if there is one, certain questions will be submitted to you as a juror. Now, are you saying at this time that under no circumstances, regardless of what the testimony would be, under no circumstances could you vote for the death penalty?
60
A. I don't think there are any that I possibly could vote for the death penalty.
61
Q. All right. Let me ask you this, sir, if you were selected as a juror, even though the State has asked for the death penalty, could you consider these two issues--and I'll ask you the issues that you would perhaps be asked to consider. All right?
62
A. All right.
63
Q. All right. The first issue would be whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result. Could you answer that question, sir, after you had gotten all the facts?
64
A. Yes, Yes.
65
Q. You could answer that all right?
66
A. Yes.
67
Q. And that wouldn't have any trouble with your conscience, would it?
68
A. No.
69
Q. Then of course there would be another question, and that would be whether there is [a] probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Now, could you possibly answer that question?
70
A. Yes, I possibly could answer that question.
71
Q. And would you have any quarrel or any problem with those questions?
72
A. I don't think so.
73
Q. All right. And if you answered those questions, of course, it wouldn't be up to you to do anything to this defendant. Those are merely questions that you answer to the Court. Isn't that correct?
74
A. I would say yes.
75
Q. Could you do that, sir?
76
A. I could be as liberal in answering the questions as I could.
77
Q. And you would answer those questions truthfully, would you not?
78
A. Yes, as far as my opinions are concerned.
79
Q. I know you're a minister, are you not?
80
A. Yes, sir. That's correct.
81
Q. And you could answer those questions to the best of your ability and truthfully, could you not?
82
A. Yes.
83
2 Trial Transcript at 768-70. In spite of Wells' assurance that he could and would answer the statutory questions, the trial court granted the State's request that Wells be excused for cause. Significantly, at no time did defense counsel explain to Wells that if he and the other jurors answered the statutory questions in the affirmative, the trial judge would be required to sentence the defendant to death, and our review of the record indicates that at no point in the proceedings before the voir dire of Wells did the court or counsel render any such explanation. We thus do not know whether, in saying that he could and would answer the two statutory questions truthfully, Wells understood what the effect of those answers could be.
84
The Texas Court of Criminal Appeals was recently presented with a Witherspoon challenge involving a prospective juror whose views were in some respects strikingly similar to those of Wells. In Cuevas v. State, 641 S.W.2d 558 (Tex.Crim.App.1982) (en banc), venireman Ward initially stated, in the words of the court of criminal appeals, "that under no circumstances could he participate as a juror in returning a verdict that would require the court to assess the death penalty." Id. at 560 . After the "bifurcated system in Texas for assessing guilt and punishment in capital murder cases" had been "carefully" explained to him, however, and after he had been informed that the court, not the jury, would impose the penalty, Ward told the trial court that he could set aside his objections to capital punishment and answer the statutory questions on the basis of the evidence presented. Id. 4 While the court of criminal appeals relied on Adams, rather than Witherspoon, in setting aside Cuevas' death sentence, 5 the court was convinced that Ward could not have been excluded consistently with Witherspoon either, because "[h]e repeatedly stated that he could follow the law and convict upon proper evidence of guilt beyond a reasonable doubt, despite his opposition to the death penalty." 641 S.W.2d at 563 .
85
Cuevas sharpens the ultimate question presented by Wells' exclusion. Just as a juror may be able to put aside his or her opposition to the death penalty and obey the law, so may he or she decide that he or she can determine the facts, i.e., answer the questions, as long as he or she is not the one who must actually pronounce the fatal words. 6 If this is the juror's conclusion, then he or she cannot be excluded under Witherspoon. Ward in Cuevas was just such a juror, and the Texas Court of Criminal Appeals held that his exclusion was error.
86
The threshold question presented by Wells' voir dire is whether Wells had the same views as had Ward. The record indicates that he may have held those views. He stated that he could and would answer the statutory questions truthfully. But in view of the fact that the record does not contain an explanation to Wells of the effect of "yes" answers to those questions by the jury, we do not know from the record whether Wells, like Ward, could put aside his opposition to the death penalty and obey the law, i.e., answer the statutory questions truthfully, knowing the possible effect of his answers to those questions. We can only speculate. If the requirement of Witherspoon and its progeny--that a venireman must make "unmistakably clear" his or her inability to follow the law and abide by his or her oath, Adams, supra, 448 U.S. at 48 , 100 S.Ct. at 2528 ; accord Boulden, supra, 394 U.S. at 483-84 , 89 S.Ct. at 1141 -42--means that an appellate or federal habeas court that cannot be certain from the face of the record about a venireman's inability to follow the law must, without any further consideration, grant the writ, then we would be compelled to do so here.
87
The State argues that we should not apply such a rule in the circumstances of this case. It maintains that it clearly established Wells' automatic opposition to the death penalty during its initial examination of him. Having done so, the State argues that if the petitioner wished to rehabilitate Wells as a juror successfully, it was incumbent upon defense counsel to take his inquiry into Wells' ability to answer the statutory questions one step further by clarifying, on the record, whether Wells understood the possible effect of his answers to those questions. The State argues that, since the defense failed to take that step, the exclusion of Wells on the basis of his initial unequivocal statements of automatic opposition to the death penalty was proper. We agree with the State.
88
A fair reading of Wells' testimony in response to the initial questioning by the State and by the trial court indicates that Wells stated clearly, forcefully and without any equivocation that he would automatically vote against the imposition of the death penalty no matter what the trial revealed. Had the voir dire ended with the court's questioning, the State would clearly have properly obtained the exclusion of Wells under Witherspoon. If the defense wished to rehabilitate Wells by demonstrating that he could obey the law regardless of his opposition to the death penalty, perhaps because of the distinction between the jury as the fact-finder and the judge as the sentencer that Ward found persuasive in Cuevas, then it was incumbent upon the defense to establish, on the record, Wells' ability to engage in that fact-finding function with knowledge of the possible effect of those findings on the defendant's fate. This the defense failed to do. Accordingly, we hold that the exclusion of Wells on the basis of his initial clear and unequivocal statements that he would automatically vote against the death penalty no matter what the trial revealed was proper under Witherspoon and its progeny.
89
This holding is not inconsistent with Burns, supra, in which we held that the exclusion of juror Doss was improper because we were forced to speculate about whether she could put aside her disbelief in the death penalty and follow the law. 592 F.2d at 1301 . In Burns, Doss affirmed that she "did not believe in" the death penalty three times and stated "that the mandatory penalty of death or life imprisonment would 'affect' her 'deliberations on any issue of fact in the case.' " Id. The trial court excluded Doss solely on the basis of those statements, and it rejected defense counsel's suggestion that Doss be asked further questions because it could not imagine what else could have been asked. Unfortunately, we could:
90
She could have been asked whether, despite her expressed convictions, she could put her disbelief aside and do her duty as a citizen. Her answer might have been that she could. Or she could have been asked what effect the presence of a possible death sentence would have on her deliberations. Her answer might have been that she would wish to be very sure of guilt, to be thoroughly convinced, before she could find facts in such a way that the death penalty might result. Either answer would doubtless have rehabilitated her for jury service. An answer that she would not take or could not comply with the required oath not to be "affected" in her deliberations would doubtless, upon a proper definition of "affected" as meaning "disablingly" or "insurmountably" affected, have clearly disqualified her.
91
Id. (emphasis in original). We went on to explain that the speculations caused by the inadequacy of Doss' responses to the questions initially posed to her, in combination with the trial court's failure to permit additional questioning by the defense, required us to hold that her exclusion was improper under Witherspoon:
92
To be sure, these are mere speculations about what her answers to such [additional] questions might have been. The point is that nothing in her actual answers forecloses them. Her mere acknowledgment that the penalty would "affect" her deliberations does not do so: what candid and responsible citizen would not admit as much, could truthfully swear the proposition to be one of no concern whatever?
93
Id.
94
In contrast to the voir dire in Burns, neither the State nor the trial court has left us to speculate about the nature of Wells' opposition to the death penalty. The prosecutor did not settle for Wells' statement that he did not think that he was "capable of issuing the penalty of death to any man," or that he could "imagine" but could not "see" himself voting to send someone to death. 2 Trial Transcript at 764-65. The prosecutor did not sit down until Wells had stated unequivocally that he could not imagine a case where he would "vote for the imposition of death." Id. at 765. After the prosecutor had finished his questioning, the court took up the task and asked whether Wells would "automatically vote against the death penalty no matter what the trial revealed," to which Wells replied that he would. Id. at 766. If we are forced to speculate in this case, it is defense counsel, not the State or the trial judge, who failed to ask the necessary question.
95
We have here the converse of the situation in Burns. Nothing in Wells' answers to defense counsel's questions forecloses the possibility that he would not have answered the statutory questions on the basis of the evidence if he knew that an affirmative answer to both questions would mandate the defendant's execution. The State established Wells' unequivocal opposition to the death penalty beyond speculation; it was then incumbent upon the defendant, if he wished to rehabilitate the juror, to ask enough questions to demonstrate that Wells could perform his fact-finding function in spite of his opposition to the death penalty. 7
96
We were recently confronted with a similar failure by defense counsel to rehabilitate a juror who had expressed her opposition to the death penalty in Porter v. Estelle, 709 F.2d 944 (5th Cir.1983). In Porter, in response to the State's questions, prospective juror Herndon had repeatedly expressed "longstanding convictions against the death penalty that would [have] require[d] her to vote against [it] no matter what the trial revealed." 709 F.2d at 948 . She maintained her opposition in response to two questions from defense counsel but when asked whether she could "put her convictions aside and do her duty 'as a Juror in a Capital Murder case,' " she replied that she could. Id. (emphasis in original). When defense counsel objected to the State's challenge for cause, the State pointed out that the general question asked about Herndon's ability to do her "duty as a juror" had not included "the second predicate question in Burns .... [that] if it meant sentencing a man to death, could you follow that duty?' " Id. Defense counsel did not ask any more questions and the juror was excused for cause. We held in Porter that
97
[i]n view of Herndon's repeated, firm, and unequivocal statements of irrevocable [opposition to the] imposition of the death penalty under any circumstances, we are unable to say her limited reply that "she could do her duty as a juror " indicated any vacillation or equivocation in her previous statement of unalterable opposition to imposition of the death penalty.
98
709 F.2d at 948-49 (emphasis in original). Like the defense counsel in Porter, defense counsel here did not ask enough questions to demonstrate that Wells' previously expressed unequivocal opposition to the death penalty would not prevent him from performing his function as a juror in a capital case.
99
C. Juror Pfeffer.
100
Juror Pfeffer presents the opposite problem from Wells. Indeed, the voir dire of Pfeffer may be the quintessential example of a situation in which it would be appropriate for an appellate court to give at least some deference to the trial judge, who has had the opportunity to observe the juror as he or she struggles to give an honest answer to difficult questions. Regardless of whether such deference is advisable, our own independent review of the record indicates that Pfeffer's exclusion was not in violation of Witherspoon.
101
As we observed in our decision to grant O'Bryan a stay of execution, and as the court of criminal appeals recognized, during the initial two-thirds of Pfeffer's lengthy voir dire examination (covering twenty-four pages in the transcript), he was
102
equivocal in stating his position on capital punishment. He described himself as a "borderline thinker" on the issue of capital punishment, and expressed doubt that he could make the proper judgment because of his "mixed feelings" concerning the infliction of the death penalty.
103
O'Bryan v. Estelle, 691 F.2d 706, 709 (5th Cir.1982). When informed by the trial court that he must give a definitive answer, Pfeffer stated that he "would have to say" that he could not vote to impose the death penalty, although he continued to add caveats from time to time, referring to the necessity for giving the judge a "yes or no answer," "to give a correct answer," or "for the good of everyone concerned:"
104
THE COURT: Well, the law requires that we have to have a definite answer.
105
JUROR PFEFFER: I understand, right.
106
THE COURT: Because the law does allow people to be excused because of certain beliefs that could be prejudicial or biased for one side or the other, and both sides just want to know if you can keep an open mind, consider the entire full range of punishment, whatever that may be, and under the proper set of circumstances, if they do exist and you feel they exist, that you could return that verdict. And that's in essence what they're asking.
107
JUROR PFEFFER: Indirectly, I guess I would have to say no.
108
THE COURT: You could not?
109
JUROR PFEFFER: I would have to say no then, to give you a yes or no answer.
110
THE COURT: Then, am I to believe by virtue of that answer that regardless of what the facts would reveal, regardless of how horrible the circumstances may be, that you would automatically vote against the imposition of the death penalty?
111
JUROR PFEFFER: As I say, I don't know.
112
THE COURT: Well, that's the question I have to have a yes or no to.
113
JUROR PFEFFER: Right.
114
THE COURT: And you're the only human being alive who knows, Mr. Pfeffer.
115
JUROR PFEFFER: Right, I understand. If I have to make a choice between yes and no, I would say that I couldn't make the judgment.
116
3 Trial Transcript at 882-84. Although Pfeffer interspersed his answers from this point on in his voir dire with caveats or qualifications such as those referred to above, there are at least two instances in which, if we focus on a specific question and answer, he gave unqualified answers:
117
THE COURT: You yourself are in such a frame of mind that regardless of how horrible the facts and circumstances are, that you would automatically vote against the imposition of the death penalty? Is that correct?
118
JUROR PFEFFER: Well, if it says a yes or no, I would have to say yes, I would automatically vote against, to give a correct answer.
119
THE COURT: You would vote against?
120
JUROR PFEFFER: Yes.
121
3 Trial Transcript at 884-85 (emphasis added).
122
Q. (By Mr. Harrison) Then, under no circumstances, Mr. Pfeffer, could you even think of voting or answering those questions if the result of those questions were to be to, in effect, give somebody the death penalty. Is that correct?
123
A. I think at the present time that's correct, yes.
124
Id. at 892.
125
In O'Bryan's view, while Pfeffer had "reservations" or "mixed emotions" about the death penalty, and while he was seriously concerned about his own ability to assess the death penalty, he was willing to do so in a "very, very extreme set of circumstances." 8 If this were an accurate view, then Pfeffer's exclusion would have been improper. In Witherspoon, one of the venirewomen excluded stated that "she would not 'like to be responsible for ... deciding somebody should be put to death.' " 391 U.S. at 515 , 88 S.Ct. at 1773 . In the footnote accompanying this description of the juror's feelings, the Supreme Court cited, apparently with approval, a Mississippi case that reversed a trial court's exclusion of jurors who did not wish to decide whether a person should die:
126
The declaration of the rejected jurors, in this case, amounted only to a statement that they would not like ... a man to be hung. Few men would. Every right-thinking man would regard it as a painful duty to pronounce a verdict of death upon his fellow-man.
127
Id. at 515 n. 8, 88 S.Ct. at 1773 n. 8 (quoting Smith v. State, 55 Miss. 410, 413-14 (1887)); accord Burns, supra, 592 F.2d at 1299 n. 2. Witherspoon makes it clear that neither a deep reluctance to pronounce the death penalty, short of absolute refusal to do so, nor the reservation of the death penalty for only an extreme set of circumstances, is a ground for exclusion. 9 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21.
128
A careful review of the transcript indicates that during the initial two-thirds of Pfeffer's voir dire, he did indeed suggest that he would be able, in an extreme set of circumstances, to assess the death penalty. At that point, however, Pfeffer's attitude, or at the very least, his answers, changed when he stated that "if [he had] to make a choice between yes and no," 3 Trial Transcript at 884, he would have to say that he would automatically vote against imposition of the death penalty. We conclude that this case is controlled by our en banc decision in Williams v. Maggio, 679 F.2d 381 (5th Cir.1982) (en banc), cert. denied, --- U.S. ----, 103 S.Ct. 3553 , 77 L.Ed.2d 1399 (1983). Juror Brou in Williams stated that there were "certain cases where you read about them and they are so hideous that you just think, oh, the death penalty would be the only good outcome," 679 F.2d at 305 , a statement similar to Pfeffer's statement that he could assess the death penalty in a "very, very extreme set of circumstances." The prosecutor continued his probing, however, and in response to a leading question about Williams' particular case, Brou stated that she felt that she could not impose the death penalty:
129
Q. So you feel that you could not return the death penalty?
130
A. (Ms. Brou) No.
Id. (emphasis in majority opinion). 10
131
Viewing Brou's initial uncertainty in conjunction with her ultimate response to the prosecutor's question about her ability to return the death penalty, the majority of this court concluded in Williams that "the record of [Brou's] automatic opposition to the death penalty [was] established." Id. The en banc majority specifically rejected the contention that under Witherspoon "exclusion of a venireman is impermissible unless he states in response to all questions that he absolutely refuses to consider the death penalty." 679 F.2d at 386 (emphasis added). It would seem that under Williams, it is the juror's ultimate conclusion about whether he or she is irrevocably opposed to the death penalty that is critical. Absent effective rehabilitation of the sort that we found lacking in defense counsel's questioning of Wells and the Texas Court of Criminal Appeals found present in Cuevas, a juror's ultimate statement of unequivocal opposition to the death penalty will justify his or her exclusion under the Williams court's interpretation of Witherspoon.
132
Pfeffer's unequivocal statement that he would automatically vote against the death penalty, 3 Trial Transcript at 885, was sufficient to justify his exclusion under Williams; his earlier statement that he could assess the death penalty in an extreme set of circumstances, his prolonged uncertainty and his caveats and qualifications preceding that unequivocal statement do not undercut the validity of that exclusion. The caveats and qualifications following that unequivocal statement do not amount to the kind of effective rehabilitation of Pfeffer that would be necessary for us to hold that his exclusion was error.
133
O'Bryan suggests that Pfeffer's ultimate statements do not accurately reflect Pfeffer's position. O'Bryan contends that the trial judge mistakenly viewed Witherspoon as an "exclusionary rule," 11 and that the judge was unwilling to accept Pfeffer's deep, agonized reluctance to pronounce the death penalty. The defendant maintains that the trial court, in effect, coerced Pfeffer into taking a position that he would automatically vote against the imposition of the death penalty regardless of the facts established at trial. Our review of the entire voir dire, encompassing seven volumes of the trial record, indicates that the trial judge did not generally view Witherspoon as an exclusionary rule. Instead, he painstakingly questioned, and permitted counsel to question, each and every juror who expressed discomfort about imposing the death penalty, excluding some for cause but refusing to exclude others, thereby forcing the State to exercise its peremptory challenges.
134
We cannot say that the court's probing of Pfeffer's answers in an attempt to find some basis on which to evaluate his true feelings was improper. Throughout the voir dire, Pfeffer continued to express concern about his ability to pronounce the death penalty. The trial judge may have thought that Pfeffer's professed willingness to assess the death penalty in a "very, very extreme set of circumstances" was a smoke screen for what was really an inability to assess the death penalty under any circumstance. Under this view, we would have to say that a trial judge, harboring those suspicions about the person in front of him or her, has the right, within certain limitations, to pursue a line of questioning designed to flush out the venireman's true views. Indeed, an appellate court confronted with the question whether such an exclusion was proper, and with the apparent necessity of making an independent review based on the cold record, will expect no less. The trial court in this case succeeded in obtaining an answer from Pfeffer that he could not impose the death penalty. Under these circumstances, we cannot say that Pfeffer's exclusion was improper. Williams, supra.
135
D. Juror Bowman.
136
O'Bryan's final complaint about the voir dire involves the exclusion of juror Bowman. Like Pfeffer, Bowman was originally unsure of his feelings about the death penalty, but on further questioning he stated that he could not vote for it. When asked about a crime "closer to home," however, he said that he could consider the death penalty if the victim "was one of [his] family." 3 Trial Transcript at 918.
137
We agree with the Texas Court of Criminal Appeals that Bowman's response that he could impose the death penalty if a member of his family had been killed does not invalidate the trial court's excusal of him for cause. If the victim had been a member of Bowman's family, he would have been "unable to serve as a juror because of his interest and prejudice in the case." O'Bryan, supra, 591 S.W.2d at 473 (citing Tex.Code Crim.Pro.Ann. art. 35.16 (Vernon 1966 & Supp.1983)). The statement that a person could impose the death penalty only in a case in which he or she would not be permitted to serve is virtually the equivalent of a statement that the juror would never vote in favor of capital punishment.
138
III. THE CONSTITUTIONALITY OF THE CAPITAL SENTENCING PROCEDURE.
139
O'Bryan contends that the Texas capital sentencing procedure, Tex.Code Crim.Pro.Ann. art. 37.071 (Vernon 1981), is unconstitutional because it does not provide for instructions to the jury concerning mitigating circumstances. 12 He argues that in the absence of such instructions, the determination of punishment is left to the unbridled discretion of the jury, resulting in the imposition of the death penalty in an arbitrary and capricious manner, in violation of the eighth and fourteenth amendments. See Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972). Relying on the Supreme Court's holdings in Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982), that a sentencer must consider all of the mitigating evidence before sentencing someone to die, and in Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), that the sentencer cannot be precluded from considering any mitigating factors, O'Bryan maintains that an instruction concerning mitigating evidence is constitutionally mandated.
140
The State claims that O'Bryan cannot be heard to complain about the trial court's failure to give a jury instruction on mitigating circumstances because he did not make a contemporaneous objection to the court's charge on this ground or request such an instruction at trial, as required by state law. Tex.Code Crim.Pro.Ann. arts. 36.14, .15 (Vernon 1981, superseded). It is, of course, settled law that "when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice." Engle v. Isaac, 456 U.S. 107, 129 , 102 S.Ct. 1558, 1572 , 71 L.Ed.2d 783 (1982); accord, Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977). On the other hand, we are not "barred from reviewing a claim by a state procedural rule when the state courts themselves have not followed the rule." Bell v. Watkins, 692 F.2d 999, 1004 (5th Cir.1982); accord, Ulster County Court v. Allen, 442 U.S. 140, 154 , 99 S.Ct. 2213, 2223 , 60 L.Ed.2d 777 (1979); Henry v. Wainwright, 686 F.2d 311, 313 (5th Cir.1982). The problem here is that the state court did not say whether it was denying the petitioner habeas corpus relief on the basis of his procedural default or on the merits of his claim; it simply denied his petition without comment. 13
141
We were recently confronted with the problem of interpreting a state court's silence with respect to the grounds for its denial of a state habeas petitioner's claim in Preston v. Maggio, 705 F.2d 113 (5th Cir.1983). We determined that the same considerations should be applied to cases in which the state court has denied relief without offering any reasons for its denial as are applied to cases where a state court has been "less than explicit." Id. at 116 . We included among those considerations:
142
Whether the court has used procedural default in similar cases to preclude review of the claim's merits, whether the history of the case would suggest that the state court was aware of the procedural default, and whether the state court's opinions suggest reliance upon procedural grounds or a determination of the merits.
143
Id. (citing Ulster County Court, supra, 442 U.S. at 147-54 , 99 S.Ct. at 2219-23 ). Applying the Preston criteria to O'Bryan's case, we conclude that the state court presumably denied his claim on the basis of his procedural default.
The Texas courts have held that
144
in the absence of objections to the charge or a specially requested charge, no errors therein can be considered on appeal "unless it appears that the defendant has not had a fair and impartial trial." Boles v. State, 598 S.W.2d 274, 278 (Tex.Cr.App.1980). And, in determining whether fundamental error is present, it is proper to view the charge as a whole.
145
White v. State, 610 S.W.2d 504, 506 (Tex.Cr.App.1981) (en banc). In Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1981) (en banc), cert. denied, 455 U.S. 1008 , 102 S.Ct. 1646 , 71 L.Ed.2d 876 (1982), the Texas Court of Criminal Appeals refused to hear a capital murder defendant's contention that he was entitled to a mitigating circumstances instruction during the sentencing phase of his trial where he had failed to object or request such an instruction at trial. The court held: "Absent such an objection or requested instruction, the trial court's failure to charge the jury as to the consideration of mitigating circumstances was not reversible error." Id. at 120. Williams' position was the same as O'Bryan's: Williams contended that his death sentence had been imposed unconstitutionally because the jury had not been given a mitigating circumstances instruction, but he had never requested such an instruction at trial. Under these circumstances, the Texas court concluded that Williams' procedural default precluded review of his constitutional claim. O'Bryan has not offered us any indication that the court would not have made the same decision here. 14 Further, we know that the Texas Court of Criminal Appeals had been made aware of O'Bryan's procedural default, since the State raised the matter in its answer opposing the petitioner's second application for habeas relief.
146
O'Bryan argues that his failure to object to the trial court's charge should not bar his claim because the Texas court's decisions in Williams, supra, and Quinones v. State, 592 S.W.2d 933 (Tex.Cr.App.) (en banc), cert. denied, 449 U.S. 893 , 101 S.Ct. 256 , 66 L.Ed.2d 121 (1980), placed him in a "Catch-22" situation. As discussed above, the court of criminal appeals held in Williams that it would not review a challenge to the sentencing instructions where the defendant had made no objection to those instructions at trial. In Quinones, the defendant had requested and been denied a charge on mitigating circumstances. The court of criminal appeals held that no such charge was necessary and overruled his exception:
147
Appellant was entitled to present evidence of any mitigating circumstances and did present such evidence, including a broad discussion of his personal and family background. The question then is whether the language of the special issue is so complex that an explanatory charge is necessary to keep the jury from disregarding the evidence properly before it. In King v. State, 553 S.W.2d 105 (Tex.Cr.App.1977), cert. denied, 434 U.S. 1088 , 98 S.Ct. 1284 , 55 L.Ed.2d 793 (1978), this Court held that the questions in Art. 37.071 used terms of common understanding which required no special definition. The jury can readily grasp the logical relevance of mitigating evidence to the issue of whether there is a probability of future criminal acts of violence. No additional charge is required.
148
Id. at 947. Contrary to O'Bryan's assertion, these two decisions do not present him with a Catch-22 situation, since they do not hold that a trial judge may not give a mitigating circumstances instruction if he or she is disposed to grant the defendant's request. The purpose of a contemporaneous objection requirement is to give the trial judge the opportunity to rule on the defendant's constitutional claim, see Engle v. Isaac, 456 U.S. 107, 128-29 , 102 S.Ct. 1558, 1572 , 71 L.Ed.2d 783 (1982); this is what O'Bryan failed to do. 15
149
Accordingly, we hold that the defendant is barred from raising his claim about the absence of a mitigating circumstances instruction in these federal habeas proceedings. See also O'Bryan v. Estelle, 691 F.2d 706, 710 (5th Cir.1982) (Gee, J., dissenting). We note further that the Supreme Court's recent decision in Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 2744 , 77 L.Ed.2d 235 (1983) (holding that death sentence need not be set aside where one of three statutory aggravating circumstances found by juror was subsequently held to be invalid by state supreme court but other two were specifically upheld, and stating that "the absence of legislature or court-imposed standards to govern the jury in weighing the significance of either or both of those aggravating circumstances does not render [capital sentencing statute] invalid" as applied) makes the defendant's argument on the merits far more difficult.
O'Bryan also contends that his
150
punishment of death, based solely upon the evidence introduced at the guilt stage of trial, the state having elected to present no evidence bearing upon the special issue required by article 37.071(b)(2), V.A.C.C.P., violated the plurality conclusion in Furman v. Georgia, 408 U.S. 238 [ 92 S.Ct. 2726 , 33 L.Ed.2d 346 ] (1972); Woodson v. North Carolina, 428 U.S. 280 [ 96 S.Ct. 2978 , 49 L.Ed.2d 944 ] (1976); Roberts v. Louisiana, 428 U.S. 325 [ 96 S.Ct. 3001 , 49 L.Ed.2d 974 ] (1976).
151
The defendant never explains precisely what he means by this statement, but it seems to refer to the contention that he made in his direct criminal appeal that the evidence was insufficient to support the jury's finding that there was a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. O'Bryan v. State, supra, 591 S.W.2d at 480 . 16 We agree with the Texas Court of Criminal Appeals that the State's reintroduction of the evidence presented during the guilt phase of the trial provided sufficient evidence of O'Bryan's future dangerousness to support the jury's findings. 17 In particular, we note that O'Bryan carefully planned the poisoning of his own son so that he could collect life insurance proceeds, and that he gave the poisoned pixy styx to four other children, including his own daughter, in an attempt to cover up his crime. We cannot say that no rational trier of fact could have found beyond a reasonable doubt that such a man posed a continuing threat to society. See note 18.
152
IV. PROSECUTORIAL ARGUMENT.
153
O'Bryan complains that his constitutional rights were violated when the prosecutor was permitted to comment, during closing argument at the sentencing phase of the trial, on defense counsel's failure to question defense witnesses concerning O'Bryan's reputation for being a peaceful and law-abiding citizen, and to suggest that counsel had a "moral obligation" to ask this question of the witnesses. O'Bryan contends that these comments impermissibly shifted the burden of disproving future dangerousness onto the defendant, and that the prosecutor's comments deprived him of a fundamentally fair trial. 18
154
The trial court overruled O'Bryan's objection to the prosecutor's argument. The court stated that a party is permitted, in Texas, to comment on the failure to call certain witnesses. The Texas Court of Criminal Appeals agreed, noting that it "is well settled that the prosecutor, in argument, may comment upon the defendant's failure to call certain witnesses." O'Bryan v. State, 591 S.W.2d 464, 479 (Tex.Cr.App.1979) (en banc), cert. denied, 446 U.S. 988 , 100 S.Ct. 2975 , 64 L.Ed.2d 846 (1980) (citing, e.g., Carrillo v. State, 566 S.W.2d 902, 912 (Tex.Cr.App.1978)). The court added that while the burden of proving the special issues is on the State, "the option of coming forward with mitigating circumstances is upon the capital defendant." 591 S.W.2d at 479 . Noting that counsel for both the defense and the prosecution had commented on the failure to call witnesses, 19 and that the trial court had properly charged the jury with regard to the State's burden of proof during the punishment phase of the trial, the Texas Court of Criminal Appeals held that the prosecutor's remarks had not shifted the burden of proof to the defendant, and that the trial court's ruling was not in error. Id.
155
Our review of the propriety of prosecutorial comments made during a state trial is "the narrow one of due process, and not the broad exercise of supervisory power that [we] would possess in regard to [our] own trial court." Donnelly v. DeChristoforo, 416 U.S. 637, 642 , 94 S.Ct. 1868, 1871 , 40 L.Ed.2d 431 (1974). In the absence of a violation of a specific guarantee of the Bill of Rights, 20 we may overturn a state court conviction only if the complained-of conduct has made the trial fundamentally unfair. Id. at 645 , 94 S.Ct. at 1872 ; see also Passman v. Blackburn, 652 F.2d 559, 567 (5th Cir.1981), cert. denied, 455 U.S. 1022 , 102 S.Ct. 1722 , 72 L.Ed.2d 141 (1982); Cobb v. Wainwright, 609 F.2d 754, 756 (5th Cir.), cert. denied, 447 U.S. 907 , 100 S.Ct. 2991 , 64 L.Ed.2d 857 (1980). Such is not the case here.
156
The prosecutor's remarks did not impermissibly shift the burden of proving the special issues under Tex.Code Crim.Pro.Ann. art. 37.071 (Vernon 1981). The prosecutor's comments were at most tangentially related to the burden of proof. The cases cited by the defendant as examples of impermissible burden-shifting involved specific instructions by the trial court about who bore the burden of proving certain issues, see, e.g., Sandstrom v. Montana, 442 U.S. 510 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (1979), or a state statute establishing the same. In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970). Here the complaint is about a prosecutor's off-the-cuff comments, not judicial instructions.
157
In Cupp v. Naughten, 414 U.S. 141 , 94 S.Ct. 396 , 38 L.Ed.2d 368 (1973), the habeas petitioner claimed that a state trial judge's instruction that "[e]very witness is presumed to speak the truth," id. at 142 , 94 S.Ct. at 398, impermissibly shifted the burden of proof. The Supreme Court held that "[w]hatever tangential undercutting of [the presumption of innocence and the state's duty to prove guilt beyond a reasonable doubt] may, as a theoretical matter, have resulted from the giving of the instruction on the presumption of truthfulness is not of constitutional dimension." Id. at 149, 94 S.Ct. at 401. The connection between the prosecutor's comments about the failure to question defense witnesses in this case and the burden of proof is even more attenuated than was the connection in Naughten, supra.
158
Further, we have held that the requirements of the federal Constitution are satisfied as long as the State bears the burden of proving the aggravating circumstances. Gray v. Lucas, 677 F.2d 1086, 1107 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1886 , 76 L.Ed.2d 815 (1983). The trial court instructed the jury that the prosecution bore the burden of proving the defendant's future dangerousness beyond a reasonable doubt. The Constitution requires no more. The question of who should produce evidence of mitigating circumstances was a matter of state law; the state court's decision that the defendant bore that burden entailed no constitutional violation. See Gray, supra.
159
We find no error of constitutional magnitude, if there be any error at all, in the trial court's permitting the prosecution to comment on the defendant's failure to ask his witnesses certain questions. As the Texas Court of Criminal Appeals noted, the prosecutor may comment, as a matter of state law, on the defendant's failure to call a material witness, and he may draw an inference from that failure that the testimony would have been unfavorable. See, e.g., Carrillo, supra. Similarly, we have held that in federal court, "the failure of a party to produce as a witness one peculiarly within the power of such party creates an inference that such testimony would be unfavorable, and may be the subject of comment to the jury by the other party." United States v. Lehmann, 613 F.2d 130, 136 (5th Cir.1980) (quoting McClanahan v. United States, 230 F.2d 919 (5th Cir.), cert. denied, 352 U.S. 824 , 77 S.Ct. 33 , 1 L.Ed.2d 47 (1956)). Comment is not permissible, however, if the "person in question is equally available to both parties; particularly where he is actually in court." Id.
160
O'Bryan did call these witnesses, and he points out that the prosecutor could have asked them about the defendant's reputation for peacefulness as easily as the defendant could have. The prosecutor's statement that defense counsel had a "moral obligation" to ask certain questions of the witnesses probably bordered on the improper. Viewing these two comments in the context of the trial as a whole, however, see Houston v. Estelle, 569 F.2d 372, 377 (5th Cir.1978), we cannot say that they deprived the defendant of a fundamentally fair trial.
161
In Houston, supra, where we set aside a state court conviction on the basis of improper prosecutorial comments, the prosecutor had repeatedly made the remarks even after he was reprimanded by the trial judge. Further, the comments themselves were far more egregious than those made during O'Bryan's trial. The prosecutor began his argument with a personal attack on the integrity of defense counsel, continued with a personal opinion about the defendant's credibility on the witness stand, and suggested that the jury give the defendant a long sentence so that the defendant would have an opportunity to rehabilitate himself, a suggestion that was improper under state law. 569 F.2d at 378, 380 , 381 n. 12. In contrast, the Supreme Court refused to set aside a defendant's conviction where the prosecutor had expressed his personal opinion about the defendant's guilt and had made an improper suggestion about the defendant's motives for standing trial. Donnelly v. DeChristoforo, 416 U.S. 637, 642 , 94 S.Ct. 1868, 1871 , 40 L.Ed.2d 431 (1974). In O'Bryan's case, the State's evidence, adduced at the guilt phase of trial, of the probability of the defendant's future dangerousness was substantial, and the comments' potential for prejudice was at best minimal. Accordingly, we hold that the prosecutor's comments do not entitle O'Bryan to federal habeas relief.
162
V. PAROLE INSTRUCTIONS.
163
Under Texas law, a jury may not consider the possibility of parole in its deliberation on punishment, see, e.g., Moore v. State, 535 S.W.2d 357 (Tex.Cr.App.1976), and the jury in O'Bryan's case was so instructed. 21 The defendant maintains that the trial court's refusal to instruct the jury about the law governing the Board of Pardons and Paroles in relation to inmates sentenced to life imprisonment deprived him of a fundamentally fair trial in violation of the due process clause of the fourteenth amendment. Relying on People v. Morse, 60 Cal.2d 631 , 388 P.2d 33 , 36 Cal.Rptr. 201 (1964), O'Bryan argues that an instruction about the law of parole is necessary in a capital case to dispel the widely held misconception that a life sentence will result in a defendant's only serving nine or ten years in prison. The Texas Court of Criminal Appeals declined to adopt the view of the California courts that a jury should be charged on the law of parole and then instructed not to consider it. O'Bryan, supra, 591 S.W.2d at 478 .
164
As in our review of alleged prosecutorial misconduct, our review of a challenge to instructions given in a state criminal trial is narrowly limited to whether the alleged impropriety "so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147 , 94 S.Ct. 396, 400 , 38 L.Ed.2d 368 (1973); accord, Easter v. Estelle, 609 F.2d 756, 758 (5th Cir.1980); Higgins v. Wainwright, 424 F.2d 177 (5th Cir.1970). Morse, supra, was a response to California's earlier minority position permitting the jury to consider parole in determining punishment. Concluding that the evidence concerning parole introduced at trials was confusing to the jurors, the California Supreme Court decided that a jury should be informed about the parole law and then told not to consider parole in making its determination on punishment. The California court's decision was based on its supervisory powers over the state trial courts, not on the United States Constitution. Whatever the reasons for a state court's decision to require such an instruction in its own trial courts, we cannot say that an instruction on parole is constitutionally mandated in a capital case. See California v. Ramos, --- U.S. ----, ----, 103 S.Ct. 3446, 3448 , 77 L.Ed.2d 1171 (1983) (instruction informing jurors in capital case that governor has power to commute "life sentence without possibility of parole" but not informing them of equivalent power to commute death sentence not unconstitutional).
165
Since the failure to give such an instruction did not deprive O'Bryan of a fundamentally fair trial, his complaint about the court's instruction is not cognizable in federal habeas proceedings. See Easter, supra.
166
VI. CONCLUSION.
We hold:
167
1. that jurors Wells, Pfeffer and Bowman were not excluded in violation of Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), because at some point during the voir dire, each made it unmistakably clear that he could not vote for the death penalty no matter what the law required;
168
2. that O'Bryan's failure to request an instruction concerning mitigating circumstances at trial precludes him from challenging the court's failure to give such an instruction in these proceedings;
169
3. that the prosecutor's comments about the defendant's failure to ask certain questions of defense witnesses did not deprive the defendant of a fundamentally fair trial; and
170
4. that O'Bryan's complaint about the trial judge's refusal to give an instruction concerning Texas parole law is not cognizable in federal habeas proceedings.
171
Accordingly, the federal district court's denial of habeas relief to O'Bryan is AFFIRMED.
172
PATRICK E. HIGGINBOTHAM, Circuit Judge, special concurrence:
173
I join Judge Randall's opinion except with respect to the standard by which we ought to review the claimed Witherspoon errors. I also write separately to explain how we differ in our reading of the voir dire.
174
* I am not persuaded that the dispassionate disinterest that we ought to bring to the case requires that we recast the facts in sterile abstraction. If the facts are unpleasant or horrible, they remain so whether or not we wish them away. Ultimately our rules, our justice is judged on the actual facts and not on our restatement of them. Those facts follow.
175
In early November 1974, petitioner arose in his church and sang a solo dedicated to his eight year-old son, Timothy, buried the previous day. It was soon learned that Timothy had been murdered by petitioner for the proceeds of recently purchased life insurance. As described by the Texas Court of Criminal Appeals:
176
A more calculated and cold-blooded crime than the one for which appellant was convicted can hardly be imagined. Appellant murdered his child in order to collect life insurance money. The record reflects months of premeditation and planning. As Halloween neared, he took out new and additional life insurance policies on both of his children, made his diligent and successful search for the poison which he was to use, set up plans to insure that he would take his children "trick or treating," bought the children their costumes, and even began making plans to spend the money which he would collect upon the deaths of his children. Well before the carefully planned and executed murder, appellant began to consider buying a new house, paying off his debts, and even quitting his job.
177
* * *
178
* * *
179
Appellant, in order to execute his plan to murder his son and to collect the life insurance proceeds, and to escape detection in doing so, was willing to and attempted to commit murder four more times. When he intentionally distributed the four additional poisoned pixy styx to the other children, the likely and predictable result of his acts was to cause their deaths also. The lives which appellant was willing to sacrifice in order to carry out the murder of his son included those of the two children of his good friend Jimmy Bates, and another child who attended appellant's church, and his own daughter, whose life was also heavily insured.
180
* * *
181
* * *
182
The jury also had before it evidence of appellant's attempt to implicate another for the poisoning death, by a positive identification of another man as the source of the candy, when the evidence showed that this could not have been true.
183
Further, the jury had before it evidence of appellant's attitude toward his crime. There was testimony that he was "excited" by wide spread news coverage of his son's death. There was also various testimony concerning the disparity between appellant's public displays of grief over his son's death and his behavior when the circumstances were more private. The jury also heard testimony that at approximately 9:00 a.m. on November 1, the morning after his son's death the previous night, appellant called his life insurance agent to find out how to collect the proceeds of the policy on his son. At approximately 9:30 a.m. this same morning after his son's death, he inquired at his bank about collecting on a policy there, also. Further, over the next several days, appellant openly discussed how he would use the proceeds of the life insurance; these plans included taking an extended vacation.
184
By his entire conduct, including the facts that appellant, in such a deliberate and calculated way, took the life of his own child for money and jeopardized the lives of four others, the jury could have concluded that appellant had a wanton and callous disregard for human life; the evidence is sufficient for the jury to have found that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society.
185
O'Bryan v. State, 591 S.W.2d at 464, 480-81 (Tex.Crim.App.1979) (en banc) (emphasis in original).
186
Petitioner was indicted November 11, 1974 for the offense of capital murder. After finding him guilty, a Houston, Texas jury, proceeding under Texas' bifurcated decisions of guilt and punishment, answered yes to the questions put to them as required by Article 37.071(b), Vernon's Ann. C.C.P. As required by those answers, petitioner was sentenced to death. The conviction was affirmed on direct appeal. O'Bryan v. State, 591 S.W.2d 464 (Tex.Crim.App.1979) (en banc). On June 2, 1980, the Supreme Court denied certiorari. O'Bryan v. Texas, 445 U.S. 998 , 100 S.Ct. 2975 , 64 L.Ed.2d 846 (1980). Petitioner has twice, before filing this petition, sought state habeas and, once before, federal habeas relief. His first trip through state habeas ended with relief denied on July 31, 1980. In that same month, petitioner filed his first application for federal habeas. That petition was pending before the United States District Court for approximately one year when Texas requested expedition. In August 1981, pretrial briefing schedules were set. The state requested an evidentiary hearing, but in November petitioner's request to return to state court to exhaust additional claims was granted, over the objections of the state. On September 1, 1982, petitioner's state writ application was denied a second time, and his execution was set for October 31, 1982. Thirty days before the scheduled execution, petitioner filed his second petition for federal habeas. On October 2, 1982, the District Court held a hearing denying the writ, and refused an application for stay and certificate of probable cause to appeal. On October 27, 1982, a panel of this court, by divided vote, granted a stay, pending full appellate review. This decision then is at least the fourth time a court has decided that the contested juror exclusions were proper under Witherspoon.
II
187
While suggesting that precedent may not require it or is at least uncertain Judge Randall's able opinion employs a de novo standard of review that accords no deference to the trial judge. The standard by which an appellate court reviews is too basic to be so neatly sidestepped nor on these facts can it be. No decision is a decision here because Judge Randall's analysis is inevitably touched by the effort to disclaim any deference to the trial judge. The use of an evidentiary device of rehabilitation of a witness to fill a perceived Witherspoon hole in Wells' voir dire testimony is illustrative. The supposition that such a hole exists (might have answered the death penalty questions despite opposition to the penalty) is fueled, at least in part, by the decision that no weight is to be accorded the trial judge. I am persuaded that we are not required to proceed as if there were no trial judge and that here we should not.
188
Witherspoon held that a state was constitutionally barred from excluding veniremen that expressed reservations about the death penalty, or had conscientious scruples against its imposition. At the same time, the Court made clear that a state retained the right to exclude veniremen
189
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.
190
391 U.S. 522 -23 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in original).
191
There is nothing inherent in Witherspoon which explains failure to accord deference to the trial court by courts reviewing claimed Witherspoon error. That a trial court's decision may result in a death sentence has not been sufficient to strip it of all such deference. Trial judges daily decide whether conspiracies have been established independent of declarations by co-conspirators, whether statements were voluntary, and whether warnings were given or rights understood. Many trial decisions have lethal potential, yet are reviewed by standards as deferential as "clearly erroneous."
192
Despite its many applications during its fourteen-year life, there have been few efforts by appellate courts to confront the core appellate question of the deference due a trial court decision excluding veniremen over a Witherspoon objection. For example, in a recent review by the Eleventh Circuit of claimed Witherspoon error, three dissenting judges treated the subject in two opinions, but the majority never mentioned its standard of review. Alderman v. Austin, 695 F.2d 124 (11th Cir.1983) (en banc). The Eleventh Circuit now has the question before its en banc court. Darden v. Wainwright, 699 F.2d 1031 (11th Cir.), rehearing en banc granted, 699 F.2d 1043 (1983). This silence is especially puzzling in light of the Supreme Court's explicit requirement of deference to decisions of trial courts in matters of jury selection. For example, pointing in part to the trial judge's superior opportunity to observe veniremen, the Court has said that "the trial court has a serious duty to determine the question of actual bias, and a broad discretion in its rulings on challenges therefor." Dennis v. United States, 339 U.S. 162, 168 , 70 S.Ct. 519, 521 , 94 L.Ed. 734 (1950). 1
193
Yet, in Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980), the Court prefaced its conclusion with the statement, "Based on our own examination of the record, we have concluded that § 12.31(b) was applied in this case to exclude prospective jurors on grounds impermissible with Witherspoon and related cases." Id. at 49, 100 S.Ct. at 2528 (emphasis added). This seeming inconsistency is not compelled. That the Court itself examined the record is as consistent with deferential review as with review that ignores the existence of the trial judge. Adams turned on the legal question of whether the Texas courts could, consistent with Witherspoon, exclude veniremen who indisputably had opinions that would only affect their answers. It did not present a review of a trial judge's conclusion that the sum of his observations of veniremen and their testimony was that they would automatically refuse to vote for the death penalty. The fact is the Supreme Court has shed little direct light on the standard of review of claimed Witherspoon error. The usual language of deference is conspicuous in its absence. Equally conspicuous, however, is the lack of any discussion at all of the appellate standard. In summary, review in Witherspoon cases is independent but precedent does not bar an attempt to develop an appellate standard for its exercise.
194
In the following I examine in functional terms the justifications for a deferential standard of review and inquire whether such justifications are apt in a death penalty case. There are three overlapping, but nonetheless distinct, fundamental judicial policies to which a deferential standard is responsive: first, the recognition of a trial court as an integral level of an operating justice system; second, as an expression of comity and federalism, the deference owed a state court by a federal court engaged in collateral review; and third, recognition of the superior opportunity of an observer of witnesses to comprehend their testimony.
195
That an appellate court not simply ignore that the case has been earlier decided expresses in part a recognition that the trial court was more than an entrance gate. When an appellate court starts afresh, a trial court's function is reduced to that of collecting data and providing an opportunity for an extrajudicial resolution of the dispute. Even this function would experience a reduction in value as expectation of a judicial decision of consequence shifts wholly away from the trial court. The pyramidal shape of our present court structure rests on the institutional integrity of the trial court as a distinct part of the justice system. As such review is extended upward, only the last "court" in the chain retains full institutional integrity. More is afoot here than nostalgic or romantic reverence for trial courts. Finality and all values bound up in that precept are implicated.
196
Review which ignores the trial court also travels against the command of 28 U.S.C. § 2254 (d) as read in Sumner v. Mata, 449 U.S. 539 , 101 S.Ct. 764 , 66 L.Ed.2d 722 (1981), and the concern for the sovereignty of states presented by collateral review of state criminal convictions. Such review is "perplexing given 'the limited nature of review provided federal courts by 28 U.S.C. § 2245 [sic].' " Alderman v. Austin, 695 F.2d 124, 131 (11th Cir.1983) (Fay, J., dissenting) ( quoting Sumner v. Mata, 449 U.S. at 541 , 101 S.Ct. at 766 ). Cf. Rose v. Lundy, 455 U.S. 509 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982). Indeed when other than Witherspoon error has been asserted the principles of Sumner v. Mata have been applied in federal habeas review of asserted juror bias. Smith v. Phillips, 455 U.S. 209 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982).
197
Finally, the appellate courts have long recognized the advantage of the trial judge in essaying the truth of a matter when the facts are caught up with a witness's manner of expression. As noted, we and the Supreme Court have at the least touched this base when reviewing decisions of trial judges regarding jury selection, save for Witherspoon error, when we all have proceeded in near silence.
198
Nothing teaches that these three ideas, general but central, are inapt in death cases. That death cases must evoke a high level of scrutiny at every level in no way travels against any of the three expressed values. To the contrary, if we believe that a trial judge's superior opportunity to observe gives his call a greater probability of being correct than that of a person who was not there, then it is unclear why we ought to ignore his decision in administering the Witherspoon standard.
199
The selection of a jury in a capital case includes many judgment calls by trial judges--calls that involve the judge's intuition about the demeanor of the venireman, the appropriateness of his response, his manner, dress, and his inflection. It is a decision with the usual stuff of trial court decisionmaking, calls more dependent upon intuition, shrewdness, or courtroom savvy than abstract analogical processes. Correspondingly, one need not pause for long to summon up myriad examples of expression whose meaning can only be determined by the inflection and manner of its expression. For example, the simple expressions "I reckon so" and "I could hardly do so" may or may not express doubt.
200
In sum, ruling upon a request to exclude a venireman inevitably involves an interpretation of what was asked and answered. The dynamic trial scene is not easily conformed to a mold judicially shaped to facilitate review or to achieve a targeted level of accuracy, perhaps because few but lawyers and judges talk and think in such a fashion, peculiarly so with the interrogation of veniremen in death cases. Indeed, there is almost a pattern in the clarity and certainty of response--progressing from hesitation and vagueness at the outset toward greater comprehension and clarity at the end. And this mental groping ought not be a surprise. Few citizens chosen at random have so thought through the profound moral and ethical questions implicated by a Witherspoon qualification as to do otherwise.
201
A trial court's decision to sustain a challenge for cause because the venireman would automatically vote against the death penalty sometimes presents questions of fact in the sense that the trial court must choose from permissible inferences. That choice is often aided by the opportunity to observe and sometimes cannot be made without that opportunity. If we really mean that the review is wholly afresh, one can wonder if we are telling the trial judge not to make the choice.
202
It would seem to follow that jury selection in capital cases presents the type of decision properly categorized as factual, and thus reviewable by a familiar standard such as clearly erroneous. But it is not so simple. First, there is the recurring difficulty of the deference due a mixed question of law and fact. See Pullman-Standard v. Swint, 456 U.S. 273 , 286 nn. 16 and 19, 102 S.Ct. 1781 , 1790 nn. 16 and 19, 72 L.Ed.2d 66 (1982). Second, appellate courts have independently assessed "ultimate facts." See Baumgartner v. United States, 322 U.S. 665 , 64 S.Ct. 1240 , 88 L.Ed. 1525 (1944). Third, there is a legacy, if not category, of unique review of "constitutional fact." See, e.g., Norris v. Alabama, 294 U.S. 587 , 55 S.Ct. 579 , 79 L.Ed. 1074 (1938). Fourth, Witherspoon itself demands heightened appellate review. As will be seen, however, whether termed a mixed question of law and fact, ultimate fact, or constitutional fact, and despite its internal demands, according the trial court deference is not forbidden by independent appellate review of Witherspoon error. That is, an independent review of the facts may be undertaken against a backdrop of trial court discretion.
203
Appellate review of mixed questions of law and fact and questions of ultimate fact was discussed by the Supreme Court in Swint. The Court intimated that the two categories may involve essentially the same type of determination, of whether the legally determinative consideration is "satisfied by subsidiary facts admitted or found by the trier of fact." 102 S.Ct. at 1788-89 n. 16. Cases similar to Witherspoon, involving exclusions of veniremen for bias resulting from pre-trial publicity, traditionally have been characterized as involving a mixed question of law and fact. Irvin v. Dowd, 366 U.S. 717, 723 , 81 S.Ct. 1639, 1642 , 6 L.Ed.2d 751 (1961); Reynolds v. United States, 98 U.S. 145, 156 , 25 L.Ed. 244 (1878). For that reason in these cases there is on appeal an independent evaluation of the voir dire testimony. Irvin v. Dowd, 366 U.S. at 723 , 81 S.Ct. at 1642 ; United States v. Williams, 523 F.2d 1203, 1208 (5th Cir.1975); Wansley v. Slayton, 487 F.2d 90, 98 (4th Cir.1973), cert. denied, 416 U.S. 994 , 94 S.Ct. 2408 , 40 L.Ed.2d 773 (1974). Yet, citing Irvin v. Dowd, we held in United States v. Robbins, 500 F.2d 650 (5th Cir.1974), that "rulings on suggestions of impartiality of the jury is within the discretion of the trial judge, and an abuse of that discretion must be clear." Id. at 653 . See also Dennis v. United States, 339 U.S. 162, 168 , 70 S.Ct. 519, 521 , 94 L.Ed. 734 (1950). This combination of independent review and deference to the trial judge was evident in United States v. Taylor, 554 F.2d 200 (5th Cir.1977). We noted there that the trial judge had discretion to decide whether to excuse a juror but nonetheless reversed his decision not to do so. Though we did not expressly characterize our review as "independent," we reexamined the colloquy between the judge and juror, noted that "[i]t was apparent to the judge that [the juror] was extremely reluctant to sit on this jury," and concluded that "[t]he right to an impartial jury trial, free of fear, dominated all other considerations." These cases establish that reviewing courts can engage in an independent review and simultaneously give weight to trial court decisions.
204
Independent review of Witherspoon decisions is driven in part by its similarity to cases traditionally characterized as mixed questions of law and fact, in which the courts engage in de novo review without mentioning deference. Of particular relevance is the Swint Court's characterization of why the Baumgartner Court there allowed de novo review:
205
The Court said that the significance of the clear and convincing proof standard "would be lost" if the ascertainment of the lower courts whether that exacting standard of proof had been satisfied on the whole record were to be deemed a "fact" of the same order as all other "facts" not open to review here.
206
102 S.Ct. at 1790 n. 16. Like the clear and convincing standard, the unmistakably clear standard pushes reviewing courts to independent review and, as Judge Randall records, with little shown deference to the trial court. Of course, that deference is not articulated with independent review does not mean either that it was absent or that it was inappropriate.
207
The independent character of Witherspoon review is also explainable by its similarity to appellate review of issues termed constitutional fact. In Norris v. Alabama, Justice Hughes for a unanimous Court expressed the need not only to examine whether a rule of law has been correctly applied to established facts but also to examine historical facts--constitutional facts--in certain instances:
208
The question is of the application of [an] established [constitutional] principle to the facts disclosed by the record. That the question is one of fact does not relieve us of the duty to determine whether in truth a federal right has been denied. When a federal right has been specially set up and claimed in a state court, it is our province to inquire not merely whether it was denied in express terms but also whether it was denied in substance and effect. If this requires an examination of evidence, that examination must be made. Otherwise, review by this Court would fail of its purpose in safeguarding constitutional rights.
209
294 U.S. at 589-90 , 55 S.Ct. at 580 . Of course a decision to exclude a venireman under Witherspoon can involve more than the question of whether established historical facts satisfy the Witherspoon standard. It can also include resolution of disputed historical facts.
210
In addition to its similarity to the categories of cases in which appellate courts engage in independent review, Witherspoon review is driven by its unique formulation of a rule that carries an internal standard of review, equally unique. This is true because Witherspoon has two intertwined parts that can for analysis be separated and labelled as a standard for decision and a required level of proof. Although each part requires reviewing courts to independently review voir dire testimony in order to decide whether an exclusion was proper, each part also allows reviewing courts to give weight to the trial judge's decision.
211
Witherspoon as a standard for decision offers three possibilities: (1) the venireman must be unwilling to consider the death penalty; (2) the venireman must say that he is unwilling to consider the death penalty; (3) he must both say that he is and be unwilling to consider the death penalty. 2 All three are at their core factual inquiries, but there are differences. If an appellate court's inquiry is into what a venireman believed or attempted to say, we will be forced to judge demeanor from a transcript. If the question is what was said, each court can read as well as another. The Court has said that "[u]nless a venireman states unambiguously that he would vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position." Witherspoon, 391 U.S. at 516 n. 9, 88 S.Ct. at 1774 n. 9 (emphasis added). The rub is that what is said can be ambiguous in the record but unambiguous at trial due to the ability of transcript to mirror only part of the trial scene. Certainly in such a case the decision of the trial judge must count for something.
212
The "unmistakably clear" language suggests that Witherspoon is not only a standard for decision but also a standard of proof. Many trial court decisions are based on a preponderance standard or a substantial evidence standard. See United States v. James, 590 F.2d 575 (5th Cir.1979) (en banc). Others are based on a clear and convincing, or beyond a reasonable doubt standard. See McCormick on Evidence §§ 340-41 (1972). The unmistakably clear standard sets Witherspoon apart.
213
Yet nothing internal to the unmistakably clear standard forbids deference to a trial court. If there is any such internal sign it points in the opposite direction. In certain instances the only way for a reviewing court to reliably conclude that the objective fact of absolute bias was unmistakably clear is to defer to the trial court's judgment. To never defer would be to review according to a less than accurate view of the nature of many venire decisions. This would inevitably lead to inaccurate decisionmaking in the trial courts because trial judges and counsel would attempt to force veniremen to conform their language and thought pattern to the mold cast by the audience of reviewing judges. Thus, the accuracy of decisionmaking that the unmistakably clear standard requires would be diminished.
214
I recognize that accuracy in decisionmaking can be defined in different ways. If the goal is to minimize all error, the deference to the trial judge follows for the reasons I have stated. But if the goal is only to eliminate any possibility of error harmful to defendants, without regard to the overall accuracy of the proceedings, then giving defendants two wholly fresh bites at the Witherspoon apple may be more likely to achieve this end. Some have subscribed at least in the abstract to the view that appellate review of a death sentence must be controlled by this imperative. I disagree. The institutional integrity of our judicial system demands that a line be drawn at some point. Thus, for example, we apply Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977), to death penalty cases. See Bass v. Estelle, 696 F.2d 1154 (5th Cir.1983). Indeed, assertions that a capital case should be subjected to this level of absolute scrutiny may be little more than a flanking opposition to the penalty itself. Yet when it comes to Witherspoon, the argument becomes that courts ought to be willing to find error if based on the record any hypothetical scenario can be constructed, regardless of the trial court's finding and the probability of its correctness, in which the potential juror was not inalterably opposed to imposition of the death penalty.
215
An extreme standard of proof coupled with a standard of decision calling for an extreme level of stated partiality requires reviewing courts to freshly make the Witherspoon decision. At the same time, both the standard of proof and nature of the venire decision itself counsel against a total ban of deference to such trial court decisions. All considered, I am persuaded that independent appellate review by a standard of abuse of discretion responds to the concerns of Witherspoon while expressing the values of comity and of respect for trial court integrity with its sometime superior opportunity for accurate decisionmaking. Independent review is an understandable expression of appellate courts' reluctance to tie their hands in advance when the stakes are so high. Here an abuse of discretion standard will allow reviewing courts freedom to correct asserted Witherspoon error without dilution of its demanding standard while giving weight to the trial court's decision as warranted by the circumstances of the particular case.
III.
216
I turn now to the specifics of the error claimed in the exclusion of veniremen Wells, Bowman and Pfeffer. Fully one-half of the effort in the trial court was devoted to the selection of a jury. Little of that effort was devoted to other than Witherspoon qualification. In other words, seven of the fifteen volumes of transcript report efforts to meet the requirements of Witherspoon. After devoting one half of the trial to jury selection, only three of the veniremen interrogated are now claimed to have been erroneously excluded under Witherspoon. 3
217
Charles D. Wells is a minister. After testifying that he had an open mind as to guilt or innocence in the case, he was asked:
218
Q. Let me begin then by asking you whether or not you have any conscientious, moral or religious scruples against the imposition of the penalty of death in the electric chair?
219
A. Let me say that morally, I do, and I don't think that I am capable of issuing a penalty of death to any man.
He was further asked by the prosecutor:
220
Q. But you can't imagine yourself doing it as one of those jurors, is that correct, sir?
221
A. I can hardly see myself doing it, yes.
222
Q. All right. Now, I don't want you to get angry with me and I'm not trying to argue with you, but I have to ask you for your answer, because this lady is taking down your testimony at this time for the record.
223
I take it then from your answer that because of your religious and moral principles and feelings that you are certainly entitled to have, you cannot imagine a case where you would vote for the imposition of death in the electric chair. Is that correct, sir?
224
A. No, I can't.
He was then asked by the court:
225
Q. Would you personally, if you were a member of a jury, would you automatically vote against the imposition of the death penalty no matter what the trial revealed?
226
A. Yes, I would.
227
Q. All right.
228
A. I would vote against it.
229
At this juncture, Wells was indisputably properly excludable under Witherspoon. His answers were direct and unequivocal, both in response to questions by the prosecutor and the court. Then, in response to questions by defense counsel, he made plain that his earlier answers were not made on an assumption that he would personally pull the switch "or something." Otherwise stated, Wells had explained that causing the death penalty in an indirect manner was equally abhorrent. He was then asked by defense counsel:
230
Q. All right. And then, after a finding of guilt, if there is one, certain questions will be submitted to you as a juror. Now, are you saying at this time that under no circumstances, regardless of what the testimony would be, under no circumstances could you vote for the death penalty?
231
A. I don't think there are any that I possibly could vote for the death penalty.
232
At this juncture, the minister remained unshaken in his statements that there were no circumstances under which he could vote for the death penalty. Defense counsel then asked the following questions and received the following answers:
233
Q. All right. Let me ask you this, sir, if you were selected as a juror, even though the State has asked for the death penalty, could you consider these two issues--and I'll ask you the issues that you would perhaps be asked to consider. All right?
234
A. All right.
235
Q. All right. The first issue would be whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result. Could you answer that question, sir, after you had gotten all the facts?
236
A. Yes, yes.
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Q. You could answer that all right?
238
A. Yes.
239
Q. And that wouldn't have any trouble with your conscience, would it?
240
A. No.
241
Q. Then of course there would be another question, and that would be whether there is probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Now, could you possibly answer that question?
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A. Yes, I possibly could answer that question.
243
Q. And would you have any quarrel or any problem with those questions?
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A. I don't think so.
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Q. All right. And if you answered those questions, of course, it wouldn't be up to you to do anything to this defendant. Those are merely questions that you answer to the Court. Isn't that correct? (Emphasis supplied.)
246
A. I would say yes.
247
Q. Could you do that, sir?
248
A. I could be as liberal in answering the questions as I could.
249
Q. And you would answer those questions truthfully, would you not?
250
A. Yes, as far as my opinions are concerned.
251
Q. I know you're a minister, are you not?
252
A. Yes, sir. That's correct.
253
Q. And you could answer those questions to the best of your ability and truthfully, could you not?
254
A. Yes.
255
At no time was Reverend Wells told that affirmative answers to the questions would compel the imposition of the death penalty. To the contrary, he was asked whether he would have "any quarrel or any problem with those questions," with the explanation that "[t]hose are merely questions that you answer to the Court."
256
It is suggested that because the record does not affirmatively reflect that Reverend Wells did not know that the effect of his answers to these questions would be a death sentence, it is not unmistakably clear that he was disqualified under Witherspoon. Not only does this argument proceed upon an assumption that Wells knew the effect of affirmative answers to the question, an assumption unsupported by the record, it ignores the fact that defense counsel told him that these were "merely questions that you answer to the court." It also makes all his other testimony virtual nonsense. It is suggested that Reverend Wells, despite his view that he could not vote for the death penalty, might yet have been of the view that he could answer the death penalty questions. Apart from being an unsupported hypothesis, the supposition is directly inconsistent with his testimony that he could not see himself "doing it" as one of the jurors. He was asked and answered as follows:
257
Q. But you can't imagine yourself doing it as one of those jurors, is that correct, sir?
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A. I can hardly see myself doing it, yes.
259
Indeed, the witness became angry with even the suggestion that he could so vote.
260
There may be persons who, although opposed to the death penalty, could answer questions, the effect of which is to impose the penalty, but only a tortured reading of this transcript supports the finding that Reverend Wells was explaining that he was one of those persons.
261
L.R. Pfeffer is a paradigm of veniremen in capital cases. His responses to the questions of counsel and court were at the outset, to the extent they are intelligible, equivocal. The prosecution was able to elicit intelligible responses only with difficulty. Faced with a confused and confusing venireman, the court attempted to learn Pfeffer's opinions. Pfeffer volunteered, "I know you would like direct answers but this is the best I can do and this is a vague answer." The trial court explained to Pfeffer that only he knew his opinion. Pfeffer stated then, "if I have to make a choice between yes and no, I would say that I couldn't make a judgment." At this juncture, Pfeffer had progressed from an equivocal position to a clear expression of opinion. His response became certain, however, only as he was pushed by the trial judge to give an opinion one way or the other. The record is plain that the trial judge pushed for an opinion. It is equally plain that the trial judge pushed in no particular direction.
262
Unlike Wells, Pfeffer knew the effect of answering the sentencing questions. In response to questions by defense as to whether the sentencing questions would "pose any problems to you," he answered:
263
A. I think it would, because it would have a direct bearing on the outcome anyway, what we've been talking about with the Judge a minute ago.
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Q. Well, my question would be, could you or could you not answer that question, sir?
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A. Well, I would have to say I couldn't. I already made the statement a moment ago.
266
After a colloquy among counsel and the court, defense counsel put the final question to Pfeffer as follows:
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Q. (By Mr. Harrison) Then, under no circumstances, Mr. Pfeffer, could you even think of voting or answering those questions if the result of those questions were to be to, in effect, give somebody the death penalty. Is that correct?
268
A. I think at the present time that's correct, yes.
269
Despite his initial confusion and uncertainty, Pfeffer's testimony read as a whole makes unmistakably clear that he would automatically vote against the death penalty. It is suggested that the trial judge's insistence upon an answer somehow taints Pfeffer's responses. The trial judge told Pfeffer that only he knew the answer to the questions. At that point Pfeffer had done little more than think aloud. It was Pfeffer who first suggested framing his responses in yes or no terms by his gratuitous statement that "if I have to make a choice between yes and no, I would say I couldn't make a judgment." The trial judge, following Pfeffer's lead, put the question in yes or no terms. The difficulty is that in philosophical terms certainty that one would automatically vote against the death penalty in all cases has an internal continuum. There is no finite certainty in predicting one's future response. Pfeffer translated his own level of certainty by stating what his answer would be if he must answer. Implicit in the argument that this exchange does not allow one to conclude that Pfeffer's absolute partiality was unmistakenly clear is that the no answer expresses a range of uncertainty that exceeds the level acceptable under Witherspoon. Otherwise stated, the argument is that extruding a juror's views through yes or no channels does not resolve the uncertainty that Pfeffer earlier expressed. Accepting for now the premise that a juror who has no view or who after voir dire remains uncertain cannot be excluded on Witherspoon grounds, I am persuaded that when Pfeffer left the stand he had sorted his views and made a decision.
270
I note that Pfeffer's responses were becoming questions themselves when the trial judge redirected the inquiry to Pfeffer declining, properly, to suggest a response. It was then that Pfeffer himself, not the judge, reached for the yes or no strainer and answered the question. Significantly, the record does not stop with the yes or no question. Defense counsel probed Pfeffer without such a preface by inquiry into whether he could answer the sentencing questions. This exchange I have set out. It concluded with the following question and answer:
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Q. (By Mr. Harrison) Then, under no circumstances, Mr. Pfeffer, could you even think of voting or answering those questions if the result of those questions were to be to, in effect, give somebody the death penalty. Is that correct?
272
A. I think at the present time that's correct, yes.
273
This sequence is important because it evidences the progressive character of Pfeffer's level of certainty and fixity of opinion. We are not, contrary to petitioner's suggestion, forced to rely upon an answer forced through yes or no gates to decide Pfeffer's view. Instead we have a venireman who reached for that device and a court that then used it to provide a framework for thought. The witness was given every opportunity to explain his answer. After the yes or no exchange he was cross-examined by defense counsel. The responses were then direct and unmistakably clear. That the yes or no exchange may have been a catalyst in Pfeffer's progressive grasp of and ability to express his own views is no vice. There was no error in the exclusion.
274
Finally, Mr. Gus B. Bowman, in response to the first questions regarding his beliefs regarding capital punishment, stated:
275
A. Well, I've never thought about it until I was called yesterday into this Court.
276
Shortly thereafter, he explained: "I doubt very seriously I could assess the death penalty. I could give him life or some other penalty, but I don't think in my mind that I could condemn him to death." The prosecutor asked the next question, with Bowman answering as follows:
277
Q. Certainly many people do not believe in the death penalty, and many people who believe in the death penalty believe in it but think that they could not do it themselves. And others, while they might not have general objections to it, could not assess or consider assessing the death penalty themselves. And I take it by your answer that in every case, no matter how serious it was, you as a juror could automatically exclude consideration of the death penalty and would in every case turn to some other form of punishment, whether it be life confinement or 99 years or whatever?
278
A. I think that's true.
279
Q. Okay. We appreciate your candor, Mr. Bowman and we would challenge for cause.
280
In response to cross-examination, Bowman testified that he could only consider the penalty if "it was closer to home." He explained that he meant by that if a member of his family were a victim.
281
Witherspoon does not require that exclusion be limited to veniremen who would automatically vote against the death penalty in every conceivable case. Williams v. Maggio, 679 F.2d 381, 386 (5th Cir.1982) (en banc), cert. denied, --- U.S. ----, 103 S.Ct. 3553 , 77 L.Ed.2d 1399 (1983). Rather, Witherspoon allows the exclusion of those veniremen who would automatically vote against the death penalty "without regard to any evidence that might be developed at the trial of the case before them." 391 U.S. at 522 -23 n. 21, 88 S.Ct. at 1777 n. 21. The state is entitled to a jury that will consider imposing the death penalty based on the evidence in the case before them. See Williams, 679 F.2d at 386 . Bowman without question would have been absolutely incapable of doing so in this case. Thus he was properly excluded.
282
With each of these jurors the trial judge had a superior view of what was asked, answered, and understood than do we. After independent review of the claimed errors and giving weight to the presence of the trial judge I am persuaded that his decisions were reasonable constructions of the testimony and no abuse of discretion has thus been shown. The doubts suggested by the dissent and worried over by Judge Randall's opinion are largely spun from factual supposition. That supposition proceeds as if there was no trial judge, sworn as we to apply Witherspoon. But there was.
BUCHMEYER, District Judge, dissenting:
283
My dissent is presumptuous.
284
A district judge--one who has never before considered a death penalty case, much less the frustrating problems under Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968)--is urging this Court to make it "unmistakably clear" just what standard of review the Fifth Circuit will apply in this and future cases involving Witherspoon challenges.
285
In the fifteen years since Witherspoon, this has not been done. And, the Fifth Circuit decisions in this area are becoming confusing and inconsistent. This dissent, therefore, argues that the Court should expressly hold:
286
(i) that it will apply the same standard of review in Witherspoon cases that it does in other habeas corpus matters--and, contrary to Judge Randall's opinion, will not conduct a de novo review to determine whether jurors were improperly excluded because of "conscientious scruples" against the death penalty;
287
(ii) that it will, therefore, give deference under 28 U.S.C. § 2254 (d) to specific findings of fact and credibility determinations made by state courts concerning the exclusion of jurors under Witherspoon 1 --but that, contrary to Judge Higginbotham's opinion, no such deference will be accorded if the trial judge did not make express factual or credibility determinations, and merely concluded without explanation that the juror was properly excluded;
288
(iii) that it will, of course, make an "independent review" of the state court record in Witherspoon cases--just as it does in other habeas corpus matters involving fundamental constitutional issues--to determine if it is "unmistakably clear" that jurors were, or were not, improperly excluded under Witherspoon;
289
(iv) but that, if this is not "unmistakably clear" from the "close scrutiny" of the state court record, then the case will be remanded--just as in other habeas corpus matters--to the federal district court for an evidentiary hearing to determine whether or not jurors were improperly excluded under Witherspoon.
290
Indeed, the Fifth Circuit approved just such a "Witherspoon evidentiary hearing" by a federal district court in Jackson v. Beto, 428 F.2d 1054 (5th Cir.1970) (the state prosecutor, the state trial judge, and the excluded jurors testified at this hearing). 2 Similarly, in Boulden v. Holman, 394 U.S. 478, 484-85 , 89 S.Ct. 1138, 1142 , 22 L.Ed.2d 433 (1969), and Maxwell v. Bishop, 398 U.S. 262 , 90 S.Ct. 1578 , 26 L.Ed.2d 221 (1970), the Supreme Court remanded cases to federal district courts for a "further hearing directed to the [Witherspoon ] issue" which might "conceivably modify in some fashion the conclusion so strongly suggested by the [state court] record" that jurors were improperly excluded. 3
291
Applying these standard principles of habeas review to the present case, this Court should reverse and remand to the federal district court for an evidentiary hearing concerning the exclusion of Juror Wells--the minister who would automatically vote against the death penalty, but who could truthfully answer the two statutory death penalty questions--(i) because the trial judge made no specific fact findings or credibility determinations concerning his exclusion, 4 and (ii) because, as Judge Randall also holds, it is not clear from the state court record whether Wells "could and would answer the two statutory questions truthfully" if someone had explained to him "what the effect of those answers could be." For similar reasons, the case should be remanded for an evidentiary hearing concerning Juror Pfeffer. 5 However, if this is not done, or if the district court determines that a meaningful Witherspoon hearing cannot be conducted, 6 then the case must be reversed and remanded to the state courts for a new trial solely on the question of punishment. Witherspoon, 391 U.S. at 523 n. 21, 88 S.Ct. at 1777 n. 21.
I. The Witherspoon Issue
292
Judge Randall is correct that the federal courts "have never expressly stated what the standard of review of a Witherspoon challenge should be" in a petition for federal habeas corpus relief under 28 U.S.C. § 2254 . However, she erroneously concludes that both the Supreme Court and the lower federal courts "appear to engage in a de novo review of Witherspoon challenges" without giving any deference to fact findings made by the state court. 7 And, she errs in conducting such a de novo review in this case.
293
Witherspoon challenges should, in fact, be subject to the very same standards of review that are applied to other constitutional issues presented by petitions for federal habeas relief. This conclusion is demonstrated by the following summary of:
294
(i) the standards of habeas corpus review of findings of fact and credibility determinations by state courts and the deference that must be accorded to them under 28 U.S.C. § 2254 (d) (pages 402-403);
295
(ii) the standards for evidentiary hearings and fact findings by federal district courts in habeas matters (pages 403-404);
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(iii) the application of these standards and the "presumption of correctness" under § 2254(d) to review of Witherspoon challenges (pages 404-407);
297
(iv) the types of Witherspoon cases that can--and should--be resolved by evidentiary hearings in the federal district courts, and the cases supporting the conclusion that such Witherspoon evidentiary hearings are proper (pages 407-412); and
298
(v) the application of these principles in the present case to Jurors Wells (pages 412-414) and Pfeffer (pages 414-416).
299
Habeas Corpus Review: "Findings" by State Courts
300
In all habeas corpus proceedings instituted by state prisoners under 28 U.S.C. § 2254 , the federal district and appellate courts are bound by the provisions of § 2254(d)--which provide, in substance, that the findings of the state court "shall be presumed to be correct," 8 and that the petitioner has the burden of establishing that the factual determinations of the state court are "clearly erroneous." 9 Sumner v. Mata, 449 U.S. 539 , 101 S.Ct. 764 , 66 L.Ed.2d 722 (1981); Asper v. Estelle, 709 F.2d 356 (5th Cir.1983).
301
The "factual determinations" covered by § 2254(d) are "basic, primary or historical facts: facts in the sense of a recital of external events and the credibility of their narrators." Townsend v. Sain, 372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963), quoting Brown v. Allen, 344 U.S. 443, 506 , 73 S.Ct. 397, 445 , 97 L.Ed. 469 (1953) (opinion of Mr. Justice Frankfurter); Mason v. Balcom, 531 F.2d 717, 721-23 (5th Cir.1976). Thus, if a state court has made specific findings of fact or credibility determinations, these are binding upon a federal court in a subsequent habeas proceeding unless the federal court concludes--not with a "boilerplate" dismissal, but with "some reasoned written references to § 2254(d) and the state court findings"--that the findings or credibility determinations are clearly erroneous. Sumner v. Mata, 449 U.S. at 549-52 , 101 S.Ct. at 770-71 ; Smith v. Phillips, 455 U.S. 209, 218 , 102 S.Ct. 940, 946 , 71 L.Ed.2d 78 (1982).
302
Of course, this does not mean that total deference must be accorded to state court findings. Eight exceptions to the "presumption of correctness" are listed in § 2254(d); the ones most relevant to this case and other Witherspoon challenges are:
303
"(1) that the merits of the factual dispute were not resolved in the State court hearing;
304
* * *
305
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
306
(3) that the material facts were not adequately developed at the State court hearing;
307
* * *
308
(6) that the applicant did not receive a full, fair and adequate hearing in the State court proceeding;"
309
Accordingly, no "presumption of correctness" is due under § 2254(d) if the state court does not make any specific fact findings or credibility determinations--or if the record is incomplete because the material facts were not fully and adequately developed at the state court hearing. Mason v. Balcom, 531 F.2d at 721-23 ; White v. Finkbeiner, 570 F.2d 194, 201 (7th Cir.1978). Nor is any deference due to conclusions of law by a state court. Cuyler v. Sullivan, 446 U.S. 335, 341-42 , 100 S.Ct. 1708, 1714-15 , 64 L.Ed.2d 333 (1980). And, where the resolution of the habeas corpus issue presents a "mixed question of fact and law," the presumption of correctness under § 2254(d) does apply to findings of "specific historical facts"

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/423527. Public record. Not legal advice.