Opposition Brief — Lackey v. Texas

@3/22/95 15:33 TEXAS ATT. GEN. 512-463-2084 904 03/02/95 15:33 TEXAS OTT. GEN. 512-463-2064

A-643 ‘ , : ;

No. 94-8262 QUESTIONS PRISENTED

1, Whether a petition for writ of certiorari to the state’s

IN THE EINE highest court on that court’s denial of a successive

state habeas application should be denied as an

Se oceeeee a R E C E I V E D inappropriate attempt to avoid the abuse of the writ

SER TER, . doctrine where the same claims could not be advanced

WAR 2 1995 in federal court duc to the abuse of the writ doctrine.

CS aaee —, —- AY At U.S. 2. (a) | Whether this Court has jurisdiction to revicw a

: claim rejected in a state habeas corpus proceeding

” where the basis of the denial was an adequate and

THE STATE OF TEXAS. independent state law ground.

Respondent. (b) Whether the delay occasioned by the pursuit of

appellate and collateral review of a conviction and

- — sentence of death violates the Lighth Amendment

Ga Petia wd Wek of Cott proscription against crucl and unusual punishunent.

To the Court of Criminal Appeals of Texas

RESPONDENT'S BRIEF IN OPPOSITION

AND OPPOSITION TO MOTION FOR STAY OF EXECUTION

DAN MORALES *MARGARET PORTMAN GRIFFEY

Attorney General of Texas Assistant Attorney General

Chief, Capital Litigation Division

JORGE VEGA

First Assistant Attorney General JOHN JACKS

Assistant Attorney Gencral

DREW T. DURHAM

Deputy Attorney General P. O. Box 12548, Capitol Station

for Criminal Justice Austin, Texas 78711

(512) 463-2080

ATTORNEYS FOR RESPONDENT

* Counscl of Record

i 7

Pit

03/82/95 15:34 TEXAS ATT. GEN. 512-463-2084 G06 | 03/82/95 15:34 TEXAS ATT. GEN. 512-463-2084 aa?

TABLE OF CONTENTS TABLE OF CONTENTS, continued

Page Page

QUESTIONS PRESENTED anne 0006 gngnee edaetiosereneneenuecesoeenss seneueuscesoesess i IV. LACKEY HAS NOT SATISFI1 ED THE

TABLE OF AUTHORITIES on... «SSD TN iv STANDARD FOR OBTAINING A STAY OF

RIEL” scxnsscunsissdanseidseseiiutinbeneneseoanescnnestsenceosessocoee. 21

OPTNION BELOW pianbetiiniedastenteansiittinshgencruinacbianitueiiogmabitetinautinpees ]

CONCLUSION relma 22

I na et ee asians easennebindemeneinnntanemnatinnsantenes 2

CONSTITUTIONAL PROVISIONS INVOLVED onic: 2

STATEMENT OF THE CASE (—voccsccsssssessssssscesssseseneeseeseceeeeeeenerseceneenes 2

A. Course of Proceedings and Disposition Below: — oo...0..c00cc00000s 2

B. Statement of Facts. oooococ cc ccccccceceeceeeeeeeteeeee Siiaicaediiingtenadadtaitedadies 5

REASONS FOR DENYING THE WRIT ioiiiiccccovcececcceeeeeveeeeenteeees 10

1. THE QUESTIONS PRESENTED FOR REVIEW ARE

UNWORTHY OF THIS COURT'S ATTENTION. __.............. 10

IL CERTIORARI SHOULD BE DENIED AS AN

INAPPROPRIATE ATTEMPT TO AVOID THE

ABUSE OF THE WRIT DOCTRINE, iiiooecoeoocveccceeeeesecsees 1]

IIL LACKEY’S CLAIM WAS PROPERLY DENIED ON

ADEQUATE AND INDEPENDENT STATE LAW

GROUNDS; IN THE ALTERNATIVE, HIS

EXECUTION DOES NOT VIOLATE THE EIGHTH

SITE. dtiabussviemnsincstncnisnnincctinnnincnrecainsatnesessencesceces 13

A. This Court is without jurisdiction to review the

state court's determination that Lackey's claim

was not cognizable in a petition for

postconviction writ of habeas corpus, ———eicessssesseeees 14

B. In the alternative, the state court’s decision

was proper because Lackey’s claim does not

constitute cruel and unusual punishment, —......4.... 15

ii iii

03/82/95 18:35 TEXAS ATT. GEN. 512-463-2064 088 03/82/95 15:35 TEXAS ATT. GEN. 512-463-2084 aes

TABLE OF AUTHORITIES TABLE OF AUTHORITIES, continued

Cases Page Pulley v. Harris, 465 U.S. 37 (V9B4) oo 15,17

Alien v. Hardy, 478 U.S. 255 (1986) eessescssescssesssueessuessueessuessnensneseseeesnees 3 Richmond v. Lewis, 948 F.24 1473 (9th Cir. 1990),

rev'd on other grounds, 113 S. Ct. 528 (1992) silane 16,18,20,21

Barefoot v. Estelle, 463 U.S. 880 (1983) ......cccccce.ccessecssessessesseesvesuesrenvesveneenven 21

Sawyer v. Whitley, 112 S$. Ct. 25141992) rs 12,13,16

Burdine, Calvin Jerold v. Texas, No. 94-7623 (cert. denied, Feb. 21, 1995) ... 19

Schiup v. Delo, 1995 WL 20524 (U.S. Mo.) 13

Coleman v. Thompson, 111 S.Ct. 2546 (199T) oo cececcecscesesessesseeceseneeeneeeenenees 15

Smith v. Murray, 477 U.S. $27 (1986) a 13

Dugyer v. Adams, 489 U.S. 401 (1989) oocccccccccsssessscsssesssusssvevsesssrsevensueseeeen 13

: Stanford v. Kentucky, 492 US. 361 (1989) 1S

Ford v. Wainwright, 477 U.S. 399 (1986) oooccccccccccccsecsssesscsatesseceseeeceneerenees

aired + State of Louisiana ex rel. Francis v. Resweber, Sheriff, et al.,

Fox Film Corp. v. Muller, 296 U.S. 207 (1935) oeccccccccccccccccevccecerseveeenceeveres 1S 329 U.S. 459 (1947) ientieamnene we 17

Franklin v. Lymaugh, 487 U.S. 164 (V9BB) ooo cceccccceccceeesseecesseeeeeeeees viene 16 Trop v. Dulles, 356 U.S. 86 (1958) i alitehestaneneivegeneuentegnenen 1s

Furman v. Georgia, 408 U.S. 238 (1972) ovecccccceccccccsacecsssceceeeesseceeeeeneeees 20 White v. Florida, 488 U.S. 1301 (1982) — 21

Gomez, et a., v. United States District Court, Woodard v. Hutchins, 464 U.S. 377 (1984) 7 12

i a sclharsieabbatalincobtininennd 1}

Gregg v. Georgia, 428 U.S. 153 (1976) ....c.....000. Re Sa Rie a: Oe 17 Gonsthateen, Statutes and Cates

U. S. Const., vu i iaetiaaiianl 2,13

Harmelin v. Michigan, 111 S.Ct. 2680 (V99V) ieee cette, 16 aeocimeame

Harris v. Pulley, 493 U.S. 1051 (1990) ecccccccssssssrssssssessnsestsnsesnnsenesvs 16 oS, -

Harrison v. United States, 392 U.S. 219 (1968). cccssssssssvsntsensnsnee 17,19 ——— : 2

S.C. fol. § 22 | | D112

Herb v. Pitcairn, 324 U.S. IVT (V94S) —oeeeossscessernsntsnnsnnsnenrenennon 15 RENTER, RSS. St OOS

x. C PROC. ANN. art. 42.04 ‘ is

Kuhlman v. Wilson, 477 U.S. 436 (1986) occccssccsssssesssvssnnesossasezenvnenesve 12 Tex. Cums Came ANN. art. 42

; . a ee a 10

Kyles v. Whitley, 111 S.Ct. 333 (1990) ccscssesssssssvossssnnssvssvansnnsnenesovn 1 —

McCleskey v. Zant, 499U.S.__, WITS. Ct. 1454 (199D) oeecccccececcseenes 12,16

MeCoy v, Shaw, 277 U.S. 302 (1928) vrcecccccccccecsessceseceeseveneeesseeveneeneven a 15

Murray v. Giarratano, 492'U.$.1 (1989) oes Jillecdintiiitatdttiamcapaataciininile 1419

Pennsylvania v. Finley, 481 U.S. S$1 (1987) ovoeccccccccccsceescesecesessvenvenseesesers 14

Penry v. Lynaugh, 492 U.S. 302 (1989) ooeccccccccssssersessesecseseesesseseesceceneeneeneesens 3

Petrie v. Nampa Irrigation Dist., 248 U.S. 154 (V91B) —ooeccecccccsssessessesnvosvove 1s

Vv

A-643

No. 94-8262

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1994

CLARENCE ALLEN LACKEY,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

On Petition for Writ of Certiorari

To the Court of Criminal Appeals of Texas

RESPONDENT'S BRIEF IN OPPOSITION

AND OPPOSITION TO MOTION FOR STAY OF EXECUTION

TO THE HONORABLE JUSTICES OF THE SUPREME COURT:

NOW COMES the State of Texas, Respondent,! and files this Brief in

Opposition and Opposition to Motion for Stay of Execution.

OPINION BELOW

The order of the Texas Court of Criminal Appeals denying Lackey’s state

application for a writ of habeas corpus is unpublished, but a copy is attached to the

supplement to the petition as Appendix B. The wial court's findings and

conclusions are attached to the supplement to the petition as Appendix A.

! For clarity, Respondent will be referred to as “the state” and Pctitioncr Clarcnee Allen

Lackey, as “Lackey.~

————————

JURISDICTION

Lackey seeks to invoke the jurisdiction of this Court pursuant to 28 U S.C

§§ 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

Lackey bases his claims upon the Eighth and Fourteenth Amendments to

the United States Constitution.

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition Below

The State has lawful custody of Lackey pursuant to a judgment and

sentence of the 238th Judicial District Court of Midland County, Texas, Cause No

18,075.

First Trial

On August 3, 1977, Lackey was charged by indictment with the capital

offense of intentional murder of Toni Diane Kumpf during the course of a burglary

or an aggravated sexual assault. Following «a wansfer of venue to Tom Green

County and a jury trial to determine Lackcy’s competence to stand trial, Lackey

was convicted of capital murder on February 18, 1978. The jury affirmatively

answered the special punishment issues two days later, and the tial court

subsequently nnposed the sentence of death on March 30, 1978.

On April 17, 1982, the Texas Court of Criminal Appeals abated Lackey’s

appeal to allow a retrial of the competency issue. On May 18, 1982, a jury

determined that Lackey was competent to stand trial However, on September 17,

1982, the Court of Criminal Appeals reversed the conviction, because the trial

court improperly excluded for cause a prospective juror. Lackey v. State, 638

S.W.2d 439 (Tex.Crim.App. 1982).

—_—— ——— _—

Second Trial

On remand, venue was transferred to Midland County, Texas, and Lackey

was again tried before a jury upon a plea of not guilty. On April 15, 1983, the jury

found Lackey guilty of capital murder. A separate punishment hearing ensued

and, on April 16, 1983, the jury answered affirmatively the two special issues

submitted pursuant to former Article 37.071(b) of the Texas Code of Criminal

Procedure. In accordance with Texas law, the tial court sentenced Lackey to

death by lethal injection on May 2, 1983.

Lackey directly appealed to the Court of Criminal Appeals of Texas, which

affirmed the conviction and sentence on June 14, 1989. Lackey v. Siaie, 816

S.W.2d 392 (Tex.Crim.App. 1989). Following the Supreme Court’s decision in

Penry v. Lynaugh, 492 U.S. 302 (1989), the Court of Criminal Appeals granted

Lackey’s motion for rehearing. After supplemental bricfing and argument, the

Court of Criminal Appeals affirmed Lackey’s sentence on May 29, 1991. Lackey

v. State, 819 S.W.2d 111 (Tex.Crim.App. 1991). Lackey’s second motion for

rchearing was denied on September 25, 1991. Because Lackey did not seek

certiorari review, his conviction became final on December 24, 1991, the date

upon which the time for filing a petition for writ of certiorari expired. See Allen v.

Hardy, 478 U.S. 255, 258 n.1 (1986).

First State Habeas Action

No action was taken by Lackey until after the trial court, on April 17, 1992,

conducted a hearing prior to setting an execution date. On April 28, 1992, the

court entered an order scheduling Lackey’s execution for July 17, 1992. On July

9, 1992, the court permitted Lackey to substitute counsel, and on July 13, 1992,

substitute counsel requested that the execution date be modified so that counsel

could investigate and present claims in a state habeas application. The trial court

granted the motion the same day and rescheduled the execution date for October

3

ae Al 6:37 ATT. GEN. 512-463-2084 a13

17, 1992. On September 17, 1992, Lackey again requested that fe execution date

be modified, and the trial court again granted the request: Lackey’s execution was

then set for December 17, 1992. On December 3, 1992, the court held a hearing

on four motions filed by Lackey: @ motion for discovery, which was denied? ; a

motion for funds for experts, which was denied, a motion to transcribe Lackey’s

second competency hearing, which was granted, and a motion to modify the

execution date for the third time, which was denicd.

On December 11, 1992, less than six days prior to the scheduled execution

(and only eight days since the trial court denied Lackey’s third request for a

modification of the execution date), Lackey filed a 122-page state habeas

application, raising 22 separate claims for relief. At 9:00 am. on December 16,

1992, the tial court entered findings of fact and conclusions of law and

recommended that relief be denied. The Court of Criminal Appeals of Texas

adopted the trial court’s findings and denied relief at approximately 2:30 p.m. on

December 16, 1992. Ex parte Lackey, No. 24,267-01 (Tex.Crim.App. Dec. 16,

1992).

First Federal Habeas Action

Lackey then filed a federal habeas petition and request for a stay of

execution in the United States District Court for the Western District of Texas,

Midland-Odessa Division. After the state announced that it did not oppose a stay,

the district court granted the stay at 4:27 p.m. on December 16, 1992. he

Director of the Texas Department of Criminal Justice, Institutional Division,

responded on January 12, 1993. After conducting an evidentiary hearing and

receiving post-hearing briefing, the district court denied federal habeas relief. but

granted a certificate of probable cause to appeal.

2 Mike West, an assistam district attorney for Lubbock County, offered Lackcy's habeas counsel

the opportunity tw review the prosecution's files.

Lackey appealed the district court’s denial of habeas relicf to the Fifth

Circuit Court of Appeals. The Fifth Circuit initially set the case for oral argument,

but after receiving supplemental bricfing from both parties, issucd its opinion

affirming the district court's denial of habeas relief without argument. Lackey v.

Scout, 28 F.3d 486 (Sth Cir. 1994). Lackey then filed a petition for writ of

certiorari in this Court, which was denied on January 9, 1995. Lackey v. Scot,

115 S.Ct. 743 (1995).

Second State Habeas Action

On February 2, 1995, the wial court scheduled Lackey’s execution for

March 6, 1995. Lackey filed a state application for writ of habeas corpus on

February 23, 1995. The trial court entered findings of fact and conclusions of law

recommending denial of habeas relief on March 1, 1995. Based upon the findings

of the trial court, the Texas Court of Criminal Appeals denied relief on the same

day. Ex parte Lackey, No. 24,267-02 (Tex.Crim.App. March 1, 1995).

B. Statement of Facts

The opinion of the Court of Criminal Appeals of Texas (partly quoting from

its summary of the evidence in its previous appellate review of the casc)

adequately summarizes the evidence introduccd at Lackcy’s trial:

15:38 TEXAS ATT. GEN. 512-463-2084

kicked open. There were indications that a

violent struggje had occurred in her apartment.

A fingerprint expert testified that a latent

discovered on a cigarctic

found in the victim’s bed belonged to [Lackey].

The brand was the same brand as a pack found

on (Lackey) at the time of the arrest. Blood

found on [Lackcy’s}] boots matched Kumph’s

blood type. Secretor analysis showed that the

individual whose semen was found in Kumph

was a secretor and had the same type O blood

as did [Lackey]. An expert testified that hairs

found on Kumph’s body were similar to

{Lackey’s] and marks found on the door of

Kumph’s apartment were very similar to the

heel print of [Lackey’s] boot.

A person living in the adjoining

apartment testified that he was awakened in the

early morning, went outside, and saw a man

matching ([Lackcy’s] physical description

driving away in a white pickup. A woman was

slumped over in the seat. The truck was

missing a hubcap from the right rear wheel.

[Lackey], at the time of the murder, had use of a

white pickup that was missing a hubcap from

the right rear wheel. [Lackey] was identified by

an acquaintance as having been in this truck,

driving in Lubbock at approximately 5:00 a.m.

on the morning of Kumph’s abduction.

Another resident of the adjoining

apartment testified that she was awakened that

moming by loud bangi:'g, and scicams of “help

me” and “get off me” coming from Kumph’s

apartment.

[Lackey’s] roommate, Carrol Johnson,

testified that she had been at work all night the

night of the murder. When she returned home

that morning, about 7:30 a.m., [Lackey] was not

home, but there was fresh blood all about the

015

house. Shortly after her return, [lackey]

phoned Johnson and said he was doing some

laundry at a laundromat. He arrived at the

house a half hour later with a bedspread and

sheets he had washed. He burned a throw rug.

Later that day, as Johnson and [Lackey] were

discussing radio reports of the murder of

Kumph and the search for a suspect, [Lackey]

adinitied to Johnson: “Baby, I've got to tell you

something--I'm the one they're looking for.”

More incriminating evidence was seized

in a search of [Lackey’s] house and the white

truck. Leaves found on Kumph's face were

very similar to leaves found in the truck,

according to expert testimony. Hair taken from

the truck was very similar to Kumph's,

according to the expert. Sweepings fromm

[Lackey’s] apartment revealed hair that was

very similar to Kumph’s, according to more

expert testimony. Blood found throughout

[Lackey's) home matched Kumph's blood type,

including that found on « blood soaked

mattress. Blood was also found on the porch

and on the exterior of [Lackey's] house. That

blood matched Kumph's type. Blood found on

the pickup matched the deceased's type.

Lackey [v. State), 638 $.W.2d at 439-40,

Both the State and (Lackey) introduced evidence at the

penalty stage of the trial, though [Lackey] chose not to

testify. The State proved that [Lackey] was first

convicted of a felony on September 6, 1973, when he

was convicted of burglary and placed on felony

probation. The State also showed the jury that

[Lackey] was convicted on January 9, 1975, of the

felony offense of burglary with intent to commit rape

from an incident at the hubitation of Ms. Rita

Featherston on June 7, 1974. His previous felony

conviction was revoked on January 9, 1975, based

upon the burglary with intent to commit rape charge.

016

03/02/95 15:39 TEXAS ATT. GEN. Sl2-465-2084

[Lackey] was sentenced to two concurrent five year

sentences to be served in the Texas Department of

Corrections.

The State also relied on the facts of the crime

itself. [Lackey] was a stranger to the victim, who he

apparently chose at random when he kicked open the

door to her apartment in the pre-dawn hours of July 31,

1977. The offense began there and continued across

town in Lubbock to his residence where he ultimately

killed the victim. In addition to the knife wound from

car to ear across her neck, the victim's body bore

evidence of trauma from severe beatings. These facts

reflect a crime that was not only scnscless, but was

also an incident of prolonged brutality and repeated

violent acts.

After the commission of the instant offense,

[Lackey] dumped the body of the victim on a farmer's

property and made a hurried attempt to conceal the

evidence of the offense, even going so far as to rush

the clothes and sheet. to the laundry to clean them of

blood. This behavior indicates a lack of remorse by

[Lackey] for his actions. It also shows an attempt to

destroy evidence of his actions and to evade

prosecution.

Annabclic Lackey, [Lackey’s) mother, testified

that [Lackey] was moved around to several citics as a

child, that [Lackey] did poorly in school, that

{Lackey's) futher drank a lot, that his father and he

“fussed a lot,” and that his father “hit him some.” She

also testified that [Lackey] did not drink around her,

and she did not think that [Lackey] had a drinking

problem.

Betty Edge testified that she was with [Lackey]

for several hours prior to the murder of Kumph, Edge

testified that at the time of the murder, she had known

[Lackey] for almost six months, On the night of July

30, 1977, Edge and friends were at a small club in

01

03/02/95 15:39 TEXAS ATT. GEN. 512-463-2084

Lubbock. [Lackey] arrived around midnicht, at which

time Edge considered him intoxicated. [Lackey] drank

beer at another table until the bar closed at 2 a.m. At

that time Edge, [Lackey], and four other persons

continued on to an after hours club, where [lackey]

drank at most onc more beer. The group stayed there

less than an how. Edge and [Lackey] were invited to

the mobile home of their friends. They were at the

mobile home for almost an hour, when Edge left to

take one of the group home, and [Lackey] lef to check

on a friend, They ran into each other again outside the

after hours club, and returned to the mobile home.

Sometime later, [Lackey] removed all of his clothing,

and Edge removed most of hers. Edge refused to

engage in sex, and [Lackey] told her she was “a lady.”

[Lackey] did not appear angry and left shortly after 5

a.m.

Edge testified that [Lackey] was still intoxicated

around 4 a.m., but appeared to be “sobering up” even

though he continued to drink from midnight till after 4

am. She testified that she could not tell how many

drinks [Lackey] had consumed between midnight and 2

a.m., but that [Lackey] might have had one beer at the

after hours bar, and possibly two or three beers after

that. [Lackey] was intoxicated, but at all times

coherent and conversational.

Dr. Herbert Modlin, a general psychiatrist,

psychoanalyst, and board certificd neurologist,

testified that he had examined [Lackey] for two hours

and had read [Lackey’s) past medical, psychiatric and

psychological reports, and educational records.

Modlin testified that [Lackey] had been

psychologically tested as an adult, and ai ages 7, 11,

and 14; that [Lackey’s] school record in academics

was extremely poor, but that he had good marks for

citizenship and art; that [Lackey's] 1Q was 75 at age 7,

80 at age 11, 67 at age 14, which was mentul

retardation, and as an adult was probably in the 70-80

range; and that [Lackey] was “over controlled” and

“somewhat inh[iJbited emotionally.” In Modlin’s

_ opinion, [Lackey] did not fit any particular category

01a 03/02/95 15:40 TEXAS ATT. GEN. Sl2-465-20684

such as psychotic, impulsive nersonalin’ or anti-social

personality,

Modlin, however, classified [Lackey] as a

“periodic drinker.” Although [Lackey] did not have a

daily need for alcohol, “[t}he problem [was] that he

often drank too much and it got out of hand, and he

would have alcoholic blackouts.” Modlin testified that

[Lackey’s] version of the events on the moming of

Kumph’s murder was consistent with an alcoholic

blackout at the time of the murder. Modlin testified

that [Lackey] recognized his alcohol problems, and

that [Lackey] would probably not constitute a

continuing threat to society.

The State presented cvidence to refute

[Lackey'’s] mitigating evidence and his claim of

alcoholic blackout. Carrol Johnson Holmes,

[Lackey's] girlfriend and roommate at the time of the

murder, testified that when [Lackey] saw the news

coverage of Kumpf's murder, he turned to her and

said, “Baby, I've got to tell you something. I'm the

one they're looking for.”

Lackey v. State, 819 S.W.2d at 113, 115, 129-30.

REASONS FOR DENYING THE WRIT

I,

THE QUESTIONS PRESENTED FOR REVIEW

ARE UNWORTHY OF THIS COURT'S

ATTENTION.

Rule 10.1 of the Rules of the Supreme Court provides that review on writ of

certiorari is not a matter of right, but of judicial discretion, and will be granted

only when there are special and important reasons therefor. Lackey advances no

special or important reason in this case, and none exist. Further, the issues in this

case involve only the application of established constitutional principles to the

facts. Thus, the petition presents no important question of Jaw to justify this

Court's exercise of its certiorari jurisdiction.

10

03/82/95

CERTIORARI SHOULD BE DENIED AS AN

INAPPROPRIATE ATTEMPT TO AVOID THE

ABUSE OF THE WRIT DOCTRINE,

Lackey claims that the state has forfeited its right to execute him due to the

length of time he has been challenging his execution and the fact that he has

previously faced three execution dates. This claim was clearly available to him at

the time he filed his federal habeas petition, as all of the circumstances of which

he complains had already occurred. Lackey should not be allowed to now

circumvent the federal abuse of the writ doctrine by litigating claims in a petition

for writ of certiorari to the state court that could have been advanced previously,

As Justice Stevens noted, concurring in the denial of an application for a

stay in Kyles v. Whitley, 111 S. Ct. 333 (1990), “this Court rarely grants review at

this stage of the litigation even when the application for state collateral relief is

supported by arguably meritorious federal constitutional claims. Instead, the Court

usually deems federal habeas proceedings to be the more appropriate avenues for

consideration of federal constitutional claims.” This policy is especially

appropriate in a case such as this where review of a constitutional claim rejected

by the state courts would allow a petitioner to bypass the proper application of the

abuse doctrine in federal habeas review. Given the “[s)tate’s strong interest in

proceeding with its judgmem” in this case and Lackey’s obvious attempt to

manipulate the system by secking certiorari review of a claim previously available

to him when he filed his petition for federal habeas corpus, a Stay is not justified.

See Gomez et ul., v. United States District Court, 112 U.S. 1652, 1653 (1992).

By seeking certiorari review of the state habeas decision, Lackey clearly

seeks to bypass federal habeas review and the proper dismissal of his successive

claim in that forum as an abuse of the writ pursuant to Rule 9b), 28 U.S.C. fol. §

15:48 TEXAS ATT. GEN. 512-463-2084 020

03/82/95 15:41 TEXAS ATT. GEN. 512-463-2084 O21

--54. Lackey should not be allowed to avoid the proper application of the abuse

doctrine.

Rule 9(b), 28 U.S.C. fol. § 2254, provides:

A seoond or successive petition may be dismissed if

the judge finds that it fails to allege new or different

grounds for relief and the prior determination was on

the merits or, if new or different grounds are alleged,

the judge finds that the failure of the petitioner to

assert those grounds in a prior petition constituted an

abuse of the writ.

This provision applies with equal force to capital murder petitioners unde:

sentence of death. See McCleskey v. Zani, 111 S. Ct. 1454 (1991); Sawyer v

Whitley, 112 S. Ct, 2514 (1992). In fact, this Court has explicitly stressed its

applicability.

A pattern scems to be developing in capital cases of

multiple review in which claims that could have been

brought years ago are brought forward--often in a

pieceineal fashion--only afler the execution date is set

or becomes imminent. Federal courts should not

continue to tolerate--even in capital cases--this type of

abuse of the writ of habeas corpus.

Woodard v. Hutchins, 464 U.S. 377, 380 (1984) (Powell, J., joined by Burger,

C.J., Blackmun, Rehnquist, and O'Connor, JJ., concurring).

Lackey’s attempt to litigate these succes:ive claims would be foreclosed in

federal habeas review, A federal habeas cout may address the merits of a

successive claim only if the prisoner supplements his constitutional challenge with

& showing of actual innocence. Auh/man y. Wilson, 477 U.S. 436, 454 (1986).

Although Lackey claims that his claim would fall under the “fundamental

miscarriage of justice” exception to the abuse of the writ doctrine, he does not

claim, much less demonstrate, that he is actually innocent of the crime or the death

penalty in the sense that “but for a constitutional error no reasonable juror would

12

03/02/95 15:42 TEXAS ATT. GEN. 512-463-2084 Q22

Lave found him eligible for the death penalty.” Sawyer v. Wuiley, 112 S.Ct. m

2517. Thus, Lackey’s claim docs not come under the “narrow scope of the

fundamental miscarriage of justice exception.” Jd. at 2519. See also Dugger v.

Adams, 489 U.S. 401 (1989); Smith v. Murray, 477 U.S. 527 (1986). Lackey,

therefore, cannot establish the prerequisite to his right to litigate these claims in a

successive habeas petition. See Schlup v. Delo, 1995 WL 20524 (U.S.Mo.).

This Court should decline to exercise its certiorari jurisdiction where, as

here, a defendant asks the Court to review the denial in state habeas review of a

claim that would be foreclosed from federal habeas review by the abuse of the writ

doctrine. Allowing a petitioner to deliberately bypass the proper application of the

abuse doctrine in the manner attempted by Lackey would eviscerate the

effectiveness of the abuse doctrine in preventing piecemeal litigation.

Il.

LACKEY’S CLAIM WAS PROPERLY DENIED

ON ADEQUATE AND INDEPENDENT STATE

LAW GROUNDS; IN THE ALTERNATIVE, HIS

EXECUTION DOES NOT VIOLATE THE

EIGHTH AMENDMENT.

Lackey claims that the state has forfeited its right to execute him due to the

length of time he has been challenging his execution and the fact that he has

previously faced three execution dates. He claims that to carry out his sentence at

this time would violate the Cruel and Unusual Clause of the Eighth Amendment.

This claim is without merit,

=~ — — ee — i — SC — — —— ao rr ee ec ce = - —— — — ENE SES I SERS SE TD SESS RE I IEEE -" a — a SN as = a

83/82/95 15:42 TEXAS ATT. GEN. 512-463-2084 G27

A. This Court ts without jurisdiction to review the state

court's determination that Lackey'’s claim was not

cognizable in a petition for postconviction writ of

habeas corpus.

The Court of Criminal Appeals denied Lackey’s claim because it is “not

cognizable in a petition to determine the legality of his sentence or confinement”

pursuant to the Texas habeas statute. See Trial Court's Findings of Fact and

Conclusions of Law at 10. Consequently, this Court lacks jurisdiction to review

the state court’s determination that Lackey's claim that his execution is rendered

unconstitutional due to the length of time between the assessment and imposition

of sentence.

A state conviction and scutcnee are presumptively valid and final at the

conclusion of the direct appeal process, which includes the right to petition this

Court for a writ of certioravi if a federal question is involved. Murrary v

Giarratano, 492 U.S. 1, 9 (1989). By contrast, state habeas proceedings are not

part of the criminal process nor required by the Constitution.

A postconviction proceeding is not part of the criminal

process itself, but is instead a civil action designed to

overtum a presumptively valid criminal judgment.

Nothing in the Constitution requires the States to

provide such proceedings . . . nor does it seem to me

that the Constitution requires the States to follow any

particular federal model in those proceedings.

Jd. at 13 (O’Connor, J., concurring), citing Pennsylvania vy. Finley, 481 U.S. 551

(1987). Thus, if the state courts are not constitutionally required to provide habeas

corpus review, a fortiori the state courts are not constitutionally required to

recognize particular types of claims.

Because the Texas courts have chosen to not recognize as a basis for habeas

relief the type of claim Lackey raised there, this Court is without jurisdiction. The

14

ey

cases are legion that the Cowt is without juisdictivn to review a question of

federal law where the decision of the state court rests on a state law ground

adequate and independent of the federal question. Coleman v. Thompson, 11)

S.Ct. 2546, 2553-54 (1991); Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935);

McCoy v. Shaw, 277 U.S. 302 (1928); Petrie v. Nampa Irrigation Dist., 248 U.S.

154, 157 (1918). “Because this Court has no power to review a state law

determination that is sufficient to support the judgment, resolution of any

independent federal ground for the decision could not affect the judgment and

would therefore be advisory.” Coleman v. Thompson, 111 S.Ct. at 2554, citing

Herb y. Pitcairn, 324 U.S, 117, 125-26 (1945). As the decision of the state court

resis on adequate and independent state law grounds, this Court is without

jurisdiction to review the claim.

B. In the alternative, the state court’s decision was

proper because Lackey's claim does not constitute

cruel and unusual punishment.

The Court has interpreted the Crucl and Unusual Clause of the Eighth

Amendment to prohibit “those modes uo: acts of punislunent that had been

considered cruel and unusual at the time the Bill of Rights was adopted.” Jord v

Wainwright, 477 U.S. 399, 405 (1986). In addition, the Court has interpreted the

cruel and unusual clause to prohibit punishment that offends the “evolving

standards of decency that mark the progress of a muturing society.” 7rop vy.

Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). In determining what

standards have “evolved” the Court has looked to the standards of “modem

American society as a whole.” Stanford v. Kentucky, 492 U.S. 361, 369 (1989).!

3 This refers to American standards, not the standards of other countrics. Stanford v. Kentucky,

492 U.S. at 369 n.3 (emphasis in original). Therefore, Lackey's substantial reliance on Pratt & Aforgan v.

the Attorney General of Jamaica, Privy Council Appeal No. 10 of 1993 (Nov. 2, 1993), as the guiding

15

Leena aaa aaa aan

83/82/95 15:43 TEXAS ATT. GEW. 512-463-2084 B24

83/82/95 15:43 TEXAS ATT. GEN. Si2-465-2064 G25

Svc also Harmelin v. Michigan, 111 S.Ct. 268°, 2691-92 (199%). Ty this end, the

Court looks toward “objective indicia that reflect the public attitude toward a given

sanction”, the “statutes passed by society's elected representatives.” Stanford v.

Kentucky, 492 U.S. at 370 (quotations and citations omitted) The “evolved

standards” thus prohibits “particular forms or ‘modes’ of punislunent--specifically,

cruel methods of punishment that are not regularly or customarily employed.”

Harmelin v. Michigan, 111 S.Ct. at 2691. Lackey cannot demonstrate that his

execution at this time would have been considered cruel and unusual at the time

the Bill of Rights was adopted or that it would be a cruel method of punishment

that is not regularly followed at this time.

Beginning with the Jatier standard first, Lackey cannot demonswtate that the

delay occasioned while he pursues appeals and collateral relicf is unusual by

present standards. Due to the procedural safeguards in place, it is certainly not

uncomunon to take more than ten years to carry out a death sentence from the time

of sentencing. See, ¢.g., Sawver v. Whitley, 112 S.Ct. at 2517 (death sentenced

petitioner pursuing appeals and collateral relicf for 13 years); McClesky v. Zant,

111 S.Ct. 1454 (1991) (death sentenced petitioner pursuing appeals and collateral

rclicf for 13 years); Harris v. Pulley, 493 U.S. 1051 (1990) (previous opinion of

the Court, Pulley v. Harris, 465 U.S. 37 (1984), demonstrates death sentenced

petitioner pursuing appeals and collateral relief for 13 years), Franklin v. Lynaugh,

487 U.S. 164 (1988) (death sentenced petitioner pursuing appeals and collateral

relief for 13 years), Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990) (denying

staudaid of what vonstitutcs crucl and unusual punishment ts misplaced. Morcover, in Prati & Morgan,

in addition to being premised on a differcmt constitution and legal system than in the Uniicd Statics, the

court there fashioned a rule by which any execution that is to take place more than five years alter the

sentence is assessed is picsumptively “‘inhuman and degrading punishment or other ircatment” in

violation of the cunstitutiun governing Jamaica. No reason ts given for the arbitrary lime period of five

ycars, that is, no reason is given as to why an interval of four and one-half years would not be in violation

of the constitution, but « delay of six or seven years would. Thus, for good reason, such arbitrary

“constitutional” time limits in Jamaica are obviously not applicable under the United States Constituuon

16

TEXAS ATT. GEN. 512-463-2084 G26

vai that to execute death sentenced pelitione: afic: pursuing appeals and

collateral relief for 16 years is cruel and unusual), rev'd on other grounds, 113

S.Ct. 528 (1992) (conviction reversed without prejudice to state's right to seck

another death sentence).

Moreover, most states with the death penalty provide for a mandatory

03/02/95 15:44 TEXAS ATT. GEN. Sl2-465-2084

does not make his subsequent execution any more

cruel in the constitutional sense than any other

execution. The cruelty against which the Constitution

protects a convicted man is cruelty inherent in the

method of punishment, not the necessary suffering

involved in any method employed to eatinguish life

humanely. ... We cannot agree that the hardship

imposed upon petitioner rises to the level of hardship

denounced as denial of due process because of cruelty.

Jd. at 464 (emphasis added). The mere fact that Lackcy was able to block a

previously scheduled execution through legal channcls certainly does not give rise

appeal to the state’s highest court. See, e.g., Gregg v. Georgia, 428 U.S. 153, 198

(1976) (“important additional safeguard against arbitrariness and caprice, the

Georgia statutory scheme provides for automatic appeal of all death sentences to

the State’s Supreme Court.”); Pulley v. Harris, 465 U.S. at 43 .7 (Georgia statute

requiring State Supreme Court to conduct proportionality review “much copied”).

Substantial amounts of time spent in determining complex issues in important

to a claim that the scheduling of that execution constitutes cruc] and unusual

punishment.

In the present case, no execution date was set until afier Lackey’s second

conviction was affirmed in April of 1992--that is, no execution date was set while

his appeal was pending before the Texas Court of Criminal Appeals.* Therefore,

cases do not implicate constitutional guarantees. Cf, Harrison v. Untied States,

392 U.S. 219, 221 n.4 (1968) (delay of eight years between arrest and sentencing

did not violate defendant's constitutional right to a speedy trial where the delay

resulted from the need to assure careful review of an unusually complex case).

Thus, a delay of over ten years between sentencing and the execution of the

Lackey has spent less than three years with a pending execution. Moreover, his

first conviction and death sentence was reversed, resulting in a new trial at which

Lackey was presumed innocent of the crime and not under any sentence. His

' , t death : i} il 983. See Ric ,

— — by Ss enn ta het epecnndeten ent curren sentence was not assessed until April of 1983. See Richmond \

death sentence are automatically appealed to the State's highest cout.

In addition, the fact that Lackey has previously had to prepare for an

execution does not itself rise to the level of cruel and unusual punishment. The

Court addressed a similar issue in Siate of Louisiana ex rel. Frarcis v. Kesweber,

Sheriff, et al., 329 U.S. 459, 464 (1947).

Lewis, 948 F.2d at 1491 (relevant period for assessing eighth ainendment claim

based on delay in carrying out sentence is time when sentence for which petitioncs

is presently under was imposed). Finally, as acknowledged by Lackey, Petition at

3, his case has involved highly complex issues, which could account for the length

of time the courts have taken to resolve the challenges to his conviction. C/,

Petitioner's suggestion is that because he once

underwent the psychological strain of preparation for

electrocution, now to require him to undergo this

preparation again s. jects him to a lingering or crucl

and unusual punishment. [ven the fact that petitioner

has already been subjected to a current of electricity

* In Texas, the trial court could not set an execution date while Lackey’s appeal was pending

Tex. Code Crim. Proc. Ann art. 42.04 (“When a defendant is semenced to death, no date shall be set for

the execution of sentence until after the receipt by the clerk of the trial court of the mandate of affirmance

of the vourt of criminal appeals.”). Aficr the Coun of Criminal Appeals issued its mandate the ual coun

could sct an cxocution date, but it could not set the date within thirty days of its order Tex Code Crim

Proc Ann amt 43.14 In this case, the trial court took no action on Lackey's case for approximately five

months after his conviction Decame final. Then, the wial court scheduled his cxccution for approximately

Untce imnths in advance, which, of course, was modified twice at Lackey 's request.

17 18

Harrison v. United States, 392 U.S. at 221 n.4. During this time--and, in fact, not

until all other avenues of attack upon his conviction and sentence have ended and

his execution was little more than one weck away--Lackey never once complained

about the slow pace of the resolution of his claims or even inquired as to the tise

being devoted to the task. On the contrary, Lackey, as is apparent from his manner

of proceeding, was content with delaying the ultimate resolution of his case for as

long as possible. See Statement of Casc, Supra.

After the Court of Criminal Appeals affirmed his conviction and the time

had expired for him to file a petition for writ of certiorari, the trial court, in April

1992, scheduled his first execution date. Lackey, on three occasions, requested

modifications of his execution so he could pursue collateral relief in state oourt.

The first two requests were granted. Thus, the fact that he has previously faced

three execution dates was of his own making. Moreover, only his attorneys can be

faulted for waiting until the last minute to file requests for modifications or his

habeas applications in order to obtain a last-minute stay.‘

complied before it may go forward with the execution of a presumptively valid conviction and

pe eats nt Giarratano, 492 U.S. 1 (1989). Additionally, there is no requirement

m0 execution is imminent, or that he even have an execution date, before filing a

ttn Tex. Code Crim. Proc. Ann. art. 11.01 ef seg. However, as is

— a litigants today, nothing is filed until an execution date becomes imminent in

wg! emergency which the inmatc believes will entitle the inmate to u stay of

execution. this way, the inmate secks to prolong the process as long as possible.

denied February 21, 1995). Despite all of the legal work (as well as all factual allegations) being

TEXAS ATT. GEN. 512-463-2084 a28

03/02/95 15:46 TEXAS ATT. GEN. Sl2-465-2084 B29

Lackey also cannot demonstrate that the delay occasioned by his pursuit of

appeals and collateral relief would have been considered crue! and unusual

punishment at the time the Bill of Rights was adopted. While Lackey may

accurately claim that a death sentence would not have taken near the amount of

time as it does presently for it to have been carried out, he in no manner

demonstrates that the speed with which executions were carried out at the time the

Bill of Rights was adopted was due to the concern over what was crucl and

unusual to the condemned. See Pratt & Morgan, slip op. at 2 (discussing

swiftness of carrying out exccutions in eighteenth- and nineteenth-century

England, but not discussing reasons). Contrary to Lackey’s assertions, the

procedures to which Lackey has been subject, which has allowed him to attack his

conviction on direct appeal (once successfully) and in collateral proceedings,

exhausting ¢very imaginable claim at the expense of the state,° are quiet geneous

by the standards employed at the time the Bill of Rights was adopted when

counsel was not required to be appointed at the time of trial, much less on

collateral review.

Finally, as recognized in Richmond v. Lewis, 948 F.2d at 1491-92, to allow

death-sentenced inmates, who have the most complex issues on appeal and

lawyers most skillful at dilatory tactics, to avoid a death sentence due to the delay

thus created would itself be arbitre and capncious and, therefore,

unconstitutional. See Furman vy. Georgia, 408 U.S. 238 (1972). Richmond v

Lewis bears quoting in this respect.

© Of course, Lackey never faced immincnt cxccution while he pursued his direct appeal and was

granted generous allowances of time in which to assert collateral remedies. if he so chose, afler his

conviction was affirmed

20

_ _ - - - —

83/02/95 15: 46 TEXAS ATT. GEN. 512-463-2084 830 TEXAS ATT. GEN. 512-463-2064 a3!

03/02/95 15:47

It would indeed be a mockery of justice if the delay

incurred during the prosecution of claims that fail on

the merits could itself accrue into a substantive claim

to the very relief that had been sought and properly

denied in the first place. If that were the law, death- CONCLUSION

a ‘elaying pone Prater neo ape For the foregoing reasons, the State respectfully requests that the petition

threshold amount of time, while other death-row

inmates--less successful in their attempts to delay--

would be forced to face their sentences. Such

differential treatment would be far more “arbitrary and

unfair’ and “cruel and unusual” than the current DAN MORALES

system of fulfilling sentences when the last line of Attomey General of Texas

appeals fails on the merits.

involved the application of well-established precedent to the facts of this case, the

jurisdictional prerequisite for certiorari review is lacking,

for writ of certiorari and stay of execution be denied.

Respectfully submitted,

JORGE VEGA

Richmond v. Lewis, 948 F.2d at 1473. No reason exists to allow death sentenced lirst Assistant Attorney General

inmates to benefit fiom the unsuccessful pursuit of appeals.

DREW T. DURHAM

IV, Deputy Attorney General

for Criminal Justice

LACKEY HAS NOT SATISFIED THE

STANDARD FOR OBTAINING A STAY OF *MARGARET PORTMAN ORIFFEY

EXECUTION, Assistant Attorney General

In deciding whether to grant a stay of execution, the Court is guided by the Chief, Copy Litigation Division

following standard: Ji | / Lf! by

if fv

““[T)here must be a reasonable probability that four

Meinbers of the Court would consider the underlying

issue sufficiently meritorious for the grant of certiorari

or the notation of probable jurisdiction; there must be #

significant possibility of reversal of the lower court's

decision, and there must be a likelihood that

irreparable harm will result if that decision is not

stayed.”

*Counscl of Record

JOHN JACKS

AssiStant Attorfey General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 463-2080, Fax No. (512) 320-8132

ATTORNEYS FOR RESPONDENT

Barefoot v. Estelle, 463 U.S. 880, 895-96 (1983), quoting White v. Florida, 45%

U.S. 1301, 1302 (1982) (Powell, J., in chambers) (quoting 7imes-/icayune Corp.

v. Schulingkamp, 419 U.S. 1301, 1305 (1974)). Because it is clear that the court

below correctly resolved the issues presented and that their resolution only

2) 22