Opinion
Civil Action No. 3:01-CV-2551-D
July 11, 2002
MEMORANDUM OPINION AND ORDER
Petitioner Yokamon Laneal Hearn ("Hearn"), convicted and sentenced to death for capital murder, petitions the court for a writ of habeas corpus on 19 grounds. Respondent Janie Cockrell (the "State") moves for summary judgment. The court holds that most of Hearn's claims are barred by Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion), or are procedurally barred, and that he otherwise is not entitled to relief under the standards prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. The court therefore grants the State's motion, denies Hearn's petition for a writ of habeas corpus, and dismisses this action with prejudice.
I
Hearn and three accomplices abducted Joseph Franklin Meziere ("Meziere") from a car wash and drove him to a remote location, where Hearn killed him by shooting him several times in the head at close range. See Hearn v. State, No. 73,371, slip op. at 3 (Tex.Crim.App. Oct. 3, 2001) (en banc) (per curiam). Hearn was convicted of capital murder — murdering Meziere in the course of committing and attempting to commit the offense of robbery and kidnapping Meziere — and sentenced to death. Id. at 1. He appealed to the Texas Court of Criminal Appeals, which affirmed his conviction and sentence. Id. at 13. The Supreme Court of the United States denied his petition for a writ of certiorari on April 15, 2002. See Hearn v. Texas ___ U.S. ___, 122 S.Ct. 1547 (2002).
While the appeal was pending in the Texas Court of Criminal Appeals, Hearn filed on December 14, 2000 an application for a writ of habeas corpus in Texas state district court ("state habeas court"). The state habeas court recommended that all relief be denied. See Ex Parte Hearn, No. W98-46232-S(A) (Dist.Ct. of Dallas County, 282nd Judicial Dist. of Texas, Aug. 1, 2001). The Texas Court of Criminal Appeals thereafter denied relief in an unpublished order based on the state habeas court's findings and conclusions and its own review of the record. Ex parte Hearn, No. 50, 116-01 (Tex.Crim.App. Nov. 14, 2001) (en banc) (per curiam).
On December 3, 2001 Hearn filed in this court a motion for appointment of counsel, which the court granted. On March 4, 2002 he filed the instant petition for a writ of habeas corpus. Hearn seeks relief on the following 19 grounds:
I. The State deprived him of qualified trial counsel by failing to comply with Tex. Code. Crim. Proc. Ann. § 26.052, which institutes a statutory selection process to assure capable court-appointed lead counsel for criminal defendants in cases where the State seeks the death penalty.
II. The evidence is legally insufficient to prove beyond a reasonable doubt a probability that he would commit criminal acts of violence that would constitute a continuing threat to society, as the jury found in answering special issue no. 1.
III. The trial court erred in admitting evidence of his written confession because the State failed to prove that he voluntarily made this statement.
IV. The prosecutor failed to offer an adequate racially neutral explanation for the State's exercise of a peremptory strike of potential juror no. 86, Glenn Brown.
V. The trial court erred by denying his motion to voir dire prospective jurors on the law of minimum parole eligibility, which would render him ineligible for parole for a period of at least 40 years.
VI. The trial court erred in denying his motion to instruct the jury on the law of 40-year minimum parole eligibility for defendants convicted of capital felonies.
VII. The Texas death penalty scheme violated his equal protection rights under the Fourteenth Amendment because it placed his future dangerousness in issue while preventing the jury from knowing he would not be eligible for parole for 40 calendar years, whereas, with respect to noncapital felony defendants, the Texas Code of Criminal Procedure tells juries when defendants become eligible for parole.
VIII. The Texas death penalty scheme denied him due process of law, in violation of the Fifth and Fourteenth Amendments, because it placed his future dangerousness in issue while preventing him from informing the jury in the charge that he would have to serve 40 calendar years before becoming eligible for parole if the jury sentenced him to life imprisonment.
IX. The Texas death penalty scheme imposed cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments, because it placed his future dangerousness in issue while preventing him from informing the jury in the charge that he would have to serve 40 calendar years before becoming eligible for parole if the jury sentenced him to life imprisonment.
X. The Texas death penalty scheme denied him due process of law, in violation of the Fifth and Fourteenth Amendments, because it placed his future dangerousness in issue while preventing him from presenting evidence to the jury on the law of minimum parole eligibility, which, for him, was 40 calendar years before becoming eligible for parole.
XI. The Texas death penalty scheme imposed cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments, because it placed his future dangerousness in issue while preventing him from presenting evidence to the jury on the law of minimum parole eligibility, which, for him, was 40 calendar years before becoming eligible for parole.
XII. The Texas death penalty scheme denied him effective assistance of counsel, in violation of the Sixth Amendment, because it placed his future dangerousness in issue while preventing him from questioning venire members during voir dire regarding the law of minimum parole eligibility, which, for him, was 40 calendar years before becoming eligible for parole.
XIII. The Texas death penalty scheme denied him due process of law, in violation of the Fifth and Fourteenth Amendments, because it placed his future dangerousness in issue while preventing him from questioning venire members during voir dire regarding the law of minimum parole eligibility, which, for him, was 40 calendar years before becoming eligible for parole.
XIV. The Texas death penalty scheme imposed cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments, because it placed his future dangerousness in issue while preventing him from questioning venire members during voir dire regarding the law of minimum parole eligibility, which, for him, was 40 calendar years before becoming eligible for parole.
XV. The Texas death penalty scheme violated his rights against cruel and unusual punishment and to due process of law, under the Eighth and Fourteenth Amendments, by requiring at least 10 "No" votes for the jury to return a negative answer to the punishment special issues.
XVI. The Texas death penalty scheme denied him due process of law, and imposed cruel and unusual punishment, in violation of the Fifth, Eighth, and Fourteenth Amendments, because of the impossibility of simultaneously restricting the jury's discretion to impose the death penalty while also allowing the jury unlimited discretion to consider all evidence militating against imposition of the death penalty.
XVII. The Texas death penalty scheme denied him due process of law, and imposed cruel and unusual punishment, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments, because it placed his future dangerousness in issue through the application of vague, undefined terms used in special jury instructions that effectively determined the difference between a life sentence and imposition of the death penalty.
XVIII. Dallas County's venire-selection process violated his rights to an impartial jury consisting of a representative cross-section of the community, under the Sixth and Fourteenth Amendments.
XIX. The cumulative effect of the above-enumerated constitutional violations denied him due process of law, in violation of the Fifth and Fourteenth Amendments, even if no separate infraction by itself rose to that magnitude.
The State answered and moved for summary judgment on May 3, 2002. Under the court's December 5, 2001 scheduling order, Hearn was entitled to file a reply brief no later than 30 days thereafter. He has not done so, and the petition is now ripe for adjudication.
The State's motion and brief do not comply with the court's December 5, 2001 scheduling order. That order provides, in relevant part:
[The State's] motion must be accompanied by a separate brief that complies with the local civil rules of this court, except as follows: (1) the page limitations of N.D. Rules 7.2(c) and 56.5(b) do not apply; (2) the appendix requirements of Rules 7.1(i) and 56.6(a) do not apply; and (3) the citation-to-appendix requirements of Rules 7.2(e) and 56.5(c) do not apply (instead, the brief must cite the state court record in the customary manner).
Order at 2. The State's motion and brief are a combined document that does not contain the tables of contents and authorities required by Rule 7.2(d). Because the State's failure to follow the order has not interfered with the decisional process of the court, the court will not direct that it re-file its summary judgment motion or re-brief the matter. The court admonishes the State to read and adhere to its orders in future death penalty habeas cases.
Although the court customarily convenes oral argument in death penalty habeas cases, it is not doing so here. of the nineteen grounds on which Hearn relies, eleven are Teague-barred, two are procedurally barred, and oral argument would not assist the court in applying well-settled precedent to Hearn's other six contentions.
II
Hearn's habeas petition is governed by AEDPA. 28 U.S.C. § 2254 (d) provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
This court's determination requires deference to the state court's adjudication of Hearn's claims unless the adjudication is flawed under at least one of these provisos. See Kutzner v. Johnson, 242 F.3d 605, 608 (5th Cir. 2001); Wheat v. Johnson, 238 F.3d 357, 360 (5th Cir.), cert. denied, 532 U.S. 1070 (2001).
"Under the `contrary to' clause [of § 2254(d)(1)], a federal habeas court may grant [a writ of habeas corpus] if the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "A `run-of-the-mill state-court decision applying the correct legal rule' would not fit within this exception as `diametrically different' or `opposite in character or nature' from Supreme Court precedent." Beazley v. Johnson, 242 F.3d 248, 256 (5th Cir.) (quoting Williams, 529 U.S. at 406 (emphasis added)), cert. denied, ___ U.S. ___, 122 S.Ct. 329 (2001).
"Under the `unreasonable application' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. "A state court's decision will be based on an unreasonable application of clearly established federal law when it is objectively unreasonable." Kutzner, 242 F.3d at 608. "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Williams, 529 U.S. at 410. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
"Factual findings of the state court are presumed to be correct[.]" Gardner v. Johnson, 247 F.3d 551, 557 (5th Cir. 2001). A federal habeas court "must defer to them unless they were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Id. (internal quotation marks and footnote omitted) (quoting Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.), cert. denied, 531 U.S. 1002 (2000)). "When challenging a state court's factual determinations, a petitioner must rebut this presumption of correctness by `clear and convincing evidence.'" Barnes v. Johnson, 160 F.3d 218, 222 (5th Cir. 1998) (quoting 28 U.S.C. § 2254 (e)(1)).
III
Hearn maintains in ground I that the State deprived him of qualified trial counsel by failing to comply with Tex. Code. Crim. Proc. Ann. § 26.052 (Vernon Supp. 2002), which institutes a statutory selection process to assure capable court-appointed lead counsel for criminal defendants in cases where the State seeks the death penalty. The State asserts that this ground is procedurally barred because the Texas Court of Criminal Appeals dismissed it on adequate and independent state-law grounds.
Alternatively, it maintains that Hearn is not entitled to relief because the Texas Court of Criminal Appeals found that the record demonstrated that Hearn was represented by filly qualified and capable counsel, and this finding was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. The State also contends that the manner and method by which the state trial court appointed Hearn's counsel did not violate the Sixth Amendment.
"Where a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, this court may not review the prisoner's habeas petition unless he can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Stokes v. Anderson, 123 F.3d 858, 859 (5th Cir. 1997) (citing Coleman v. Thompson, 501 U.S. 722 (1991)). "This `independent and adequate state law' doctrine applies to both substantive and procedural grounds and affects federal review of claims that are raised on either direct or habeas review." Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995). "To satisfy the `independent' and `adequate' requirements, the dismissal must `clearly and expressly' indicate that it rests on state grounds which bar relief, and the bar must be strictly or regularly followed by state courts, and applied to the majority of similar claims." Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001) (citing Amos, 61 F.3d at 338-39).
The Texas Court of Criminal Appeals held that Hearn had failed to preserve this claim for appeal because he did not timely raise it. Hearn, No. 73,371, slip op. at 2 (citing Tex. R. App. P. 33.1(a)(1)). Hearn has made no effort to demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or to demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. The court holds that ground I of his petition is procedurally barred.
IV
Hearn maintains in ground II that the evidence is legally insufficient to prove beyond a reasonable doubt a probability that he would commit criminal acts of violence that would constitute a continuing threat to society, as the jury found in answering special issue no. 1.
In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court held that the correct standard of review when a state prisoner challenges the sufficiency of the evidence in a federal habeas corpus proceeding is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. Moreover, the trier of fact has the responsibility of weighing the evidence, resolving conflicts in testimony, and drawing reasonable inferences from basic facts to ultimate facts. Id. The Texas Court of Criminal Appeals rejected Hearn's argument on direct appeal. See Hearn, No. 73,371, slip op. at 3-4. It held the evidence to be sufficient, noting:
The nineteen-year-old appellant and three accomplices abducted the victim from a car wash in the victim's car and drove to a remote location where appellant killed the victim by shooting him several times in the head with a gun at close range. Soon after this, appellant bragged to others about killing a "white boy." Appellant previously had committed other crimes including several aggravated assaults and numerous burglaries. Appellant had also sexually assaulted a disabled woman who suffered from cerebral palsy. The night before committing this capital murder, appellant firebombed a house and fired a gun at a witness to this offense. Several days after committing this capital murder, appellant and an accomplice robbed a woman at gunpoint. Appellant laughed while she begged for her life. On this record we cannot say the jury's affirmative answer to the "future dangerousness" special issue is not adequately supported by the evidence.
Id. The Texas Court of Criminal Appeals correctly followed the Jackson standard, and its application of the standard was not unreasonable. The court's decision did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor is this decision based on an unreasonable determination of the facts in light of the evidence presented at trial.
V
In ground III, Hearn argues that the state trial court erred in admitting evidence of his written confession because the State failed to prove that he voluntarily made the statement. He contends his confession was involuntary because, although he was given Miranda warnings, during his custodial interrogation a police detective falsely represented to him that his fingerprints had been found on the steering wheel of decedent Meziere's car.
The Texas Court of Criminal Appeals rejected this argument on direct appeal, concluding that police deception does not render a statement involuntary per se, that the record was devoid of any other evidence of police misconduct that has been held to render a statement constitutionally involuntary, and that based on the suppression hearing testimony, Hearn freely and voluntarily gave the statement. It therefore held that the state trial court did not abuse its discretion in concluding that Hearn's statement was voluntary. See Hearn, No. 73,371, slip op. at 4-5. The ruling of the Texas Court of Criminal Appeals did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor is this decision based on an unreasonable determination of the facts in light of the evidence presented at trial.
VI
Hearn argues in ground IV that the prosecutor failed to offer an adequate racially neutral explanation for the State's exercise of a peremptory strike of potential juror no. 86, Glenn Brown, who is African-American, thereby violating Batson v. Kentucky, 476 U.S. 79 (1986). The State responds that this ground is barred under Teague v. Lane because Hearn is seeking a new rule that Batson applies to discrimination based on religion. It also contends that the Texas Court of Criminal Appeals' ruling on appeal rejecting this argument was not an unreasonable application of Batson.
The court rejects the State's reliance on Teague v. Lane because Hearn is relying on race discrimination, not discrimination based on religion. See P. Br. at 27 ("The State improperly used a peremptory challenge to prevent a black man, Glenn Brown, from sitting on the jury."). Hearn referred to venireman Brown's "religiousness," see id. at 33, to support his assertion that the State had "failed to voice a sensible, racially neutral justification for exercising a peremptory strike against the veniremember regardless of race." Id. (emphasis added). He did not contend that the State had stricken him based on his religious faith. See Tr. 5:79 ("we submit that the only . . . reason the State is using a peremptory challenge in this case is based on race" (emphasis added)).
Citation to "Tr." is to the volume and page of the trial transcript.
The court agrees with the State, however, that Hearn is not entitled to relief on the merits of his claim. The Texas Court of Criminal Appeals held that the trial court did not clearly err in denying the Batson challenge, because the State had provided an adequate racially neutral explanation for striking the venireman based on his lack of anger toward a person who had bludgeoned his grandmother to death with a hammer and because, from a religious standpoint, he believed in the rehabilitative process. See Hearn, No. 73,371, slip op. at 5-6. Its ruling did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor is the decision based on an unreasonable determination of the facts in light of the evidence presented at trial.
VII
In grounds V through XIV, Hearn raises various arguments that pertain to the Texas law of minimum parole eligibility. Hearn maintains that the State violated a host of his constitutional rights because he was prevented at several points during jury selection, trial, and the punishment phase from informing, or the state trial court failed to inform, the venire and jury that he would not be eligible for parole for 40 calendar years, whereas, in a noncapital felony case, the Texas Code of Criminal Procedure provides that jurors be informed when defendants will become eligible for parole. The State maintains that Hearn is not entitled to relief under the AEDPA standards, that these claims are Teague-barred, and that Hearn's claims lack merit.
Because the application of the Teague bar is a threshold question in a federal habeas case, see Goeke v. Branch, 514 U.S. 115, 117 (1995) (per curiam), the court turns first to this issue. Under Teague, with two narrow exceptions, a court may not announce a new rule on federal collateral review of a habeas petition. Teague, 489 U.S. at 301, 310; Penry v. Lynaugh, 492 U.S. 302, 313-14 (1989). The first exception applies when a new rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Teague, 489 U.S. at 307 (quotation and citation omitted). The second exception becomes effective when the new rule "requires the observance of those procedures that . . . are implicit in the concept of ordered liberty." Id. (quotation and citation omitted). A case announces a new rule "if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. at 301 (emphasis added).
O'Dell v. Netherland, 521 U.S. 151, 157 (1997) (stating that Teague exceptions are narrow).
The Teague inquiry is conducted in three steps. First, the court determines the date on which the defendant's conviction became final. Second, the habeas court considers whether a state court considering the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution. If not, then the rule is new. If the rule is determined to be new, the final step in the Teague analysis requires the court to determine whether the rule nonetheless falls within one of the two exceptions. O'Dell v. Netherland, 521 U.S. 151, 156-57 (1997).
Hearn's conviction and sentence became final on April 15, 2002, when the Supreme Court of the United States denied his petition for a writ of certiorari. See Hill v. Black, 920 F.2d 249, 250 (5th Cir. 1990) (per curiam) (holding for Teague purposes that petitioner's "conviction was final. . . . when a petition for a writ of certiorari regarding his conviction and sentence was denied by the Supreme Court."). This court would be required to announce a new rule to accept one or more of the grounds that Hearn proffers in grounds V through XIV. See, e.g., Tigner v. Cockrell, 264 F.3d 521, 525 (5th Cir. 2001) (addressing parole eligibility argument in context of Fourteenth Amendment due process claim), cert. denied, ___ U.S. ___, 122 S.Ct. 1177 (2002); Wheat, 238 F.3d at 361 (holding Teague-barred petitioner's contention that, due to his age, 40-year parole ineligibility was equivalent of life without parole under Simmons v. South Carolina, 512 U.S. 154 (1994), and that statutory prohibition against informing jury of parole ineligibility violated Fifth, Eighth, and Fourteenth Amendments); Muniz v. Johnson, 132 F.3d 214, 224-25 (5th Cir. 1998) (holding that "the Supreme Court has declared Simmons a `new rule' under Teague," and declining to expand Simmons to petitioner's challenge that his conviction was unconstitutional based on instruction that jury not consider length of time before his parole eligibility under life sentence when determining whether to give him life in prison or death penalty). Hearn has not established that one of the narrow Teague exceptions applies. These grounds of his petition are therefore Teague-barred.
VIII
Relying primarily on principles set out in Mills v. Maryland, 486 U.S. 367 (1988), Hearn maintains in ground XV that the Texas death penalty scheme violates his rights against cruel and unusual punishment, under the Eighth and Fourteenth Amendments, by requiring at least 10 "No" votes for the jury to return a negative answer to the punishment special issues. He contends that Tex. Code Crim. Proc. Ann. art. 37.071 § 2(d)(2) (Vernon Supp. 2002) — the so-called "12/10 Rule" — creates a danger that jurors will reasonably believe their votes in favor of a life sentence are worthless unless nine other jurors concur, and therefore cause them to join a majority of jurors and answer the special issues in a manner that requires a sentence of death. He points out that, under the Texas scheme, the jury's failure to garner the requisite number of votes either way results in a life sentence, but the statute prevents the court, parties, and counsel from advising the jury that their failure to agree by the required number of votes mandates this result. Citing its own precedent, the Texas Court of Criminal Appeals rejected this argument on direct appeal. See Hearn, No. 73,371, slip op. at 12 (citing Hughes v. State, 24 S.W.3d 833, 843-44 (Tex.Crim.App.), cert. denied, 531 U.S. 980 (2000)).
The Texas Court of Criminal Appeals' holding that the 12/10 Rule of Article 37.071 provided Hearn no relief did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor is the decision based on an unreasonable determination of the facts in light of the evidence presented at trial. See Miller v. Johnson, 200 F.3d 274, 288-89 (5th Cir.) (addressing 12/10 Rule) ("Moreover, our precedent precludes [petitioner] from demonstrating that the state court's resolution of this claim involved an unreasonable application of clearly established federal law as determined by the Supreme Court."), cert. denied, 531 U.S. 849 (2000).
IX
Hearn argues in ground XVI that the Texas death penalty scheme denied him due process of law, and imposed cruel and unusual punishment, in violation of the Fifth, Eighth, and Fourteenth Amendments, because of the impossibility of simultaneously restricting the jury's discretion to impose the death penalty while also allowing the jury unlimited discretion to consider all evidence militating against imposition of the death penalty. This contention is essentially based on Justice Blackmun's dissenting opinion from the denial of a petition for a writ of certiorari in Collins v. Collins, 510 U.S. 1141 (1994) (Blackmun, J., dissenting from denial of writ of certiorari), and represents a broad-based challenge to the death penalty. See P. Br. at 82-90. The Texas Court of Criminal Appeals rejected this argument on direct appeal. See Hearn, No. 73,371, slip op. at 12 (citing Hughes, 24 S.W.3d at 844). Its decision was not contrary to, nor did it involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor was the decision based on an unreasonable determination of the facts in light of the evidence presented at trial.
X
Hearn maintains in ground XVII that the Texas death penalty scheme denied him due process of law, and imposed cruel and unusual punishment, in violation of the Fifth, Eighth, and Fourteenth Amendments, because it placed his future dangerousness in issue through the application of vague, undefined terms used in special jury instructions that effectively determined the difference between a life sentence and imposition of the death penalty. Specifically, he challenges the state trial court's failure to define the terms "probability," "criminal acts of violence," and "continuing threat to society." The State responds that this ground for relief is Teague-barred and precluded by Fifth Circuit precedent, and that any such error did not have a substantial and injurious effect or influence the jury.
The court agrees that the claim is Teague-barred. Moreover, the Fifth Circuit has "frequently rejected challenges to the lack of definition of diverse terms in the . . . punishment special issues." Woods v. Johnson, 75 F.3d 1017, 1034 (5th Cir. 1996). In particular, it has rejected any need to define the terms "probability," "criminal acts of violence," or "continuing threat to society." See James v. Collins, 987 F.2d 1116, 1120 (5th Cir. 1993) (holding inter alia it is not necessary to define the terms "probability," "criminal acts of violence," or "continuing threat to society").
XI
Hearn contends in ground XVIII that the Dallas County venire-selection process violated his rights, under the Sixth and Fourteenth Amendments, to an impartial jury consisting of a representative cross-section of the community. He asserts that the selection process grossly underrepresents three groups of citizens: (1) Hispanics; (2) persons 18 to 34 years old; and (3) persons from households with incomes under $35,000.
The State maintains that Hearn has not exhausted this claim because he did not raise it on direct appeal or in the state habeas court. It also argues, however, that it would be futile for Hearn to attempt to exhaust the claim now because, under Tex. Code Crim. Proc. Ann. art. 11.071 § 5 (Vernon Supp. 2002), if he were to do so, the claim would be dismissed as an abuse of the writ. Therefore, the claim is barred on federal habeas review under the doctrine of procedural default. The State also contends that the claim lacks merit.
"A state prisoner normally must exhaust all available state remedies before he can apply for federal habeas relief." Nobles v. Johnson, 127 F.3d 409, 419 (5th Cir. 1997). A procedural default occurs, however, "when a prisoner fails to exhaust available state remedies and `the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" Id. at 420 (quoting Coleman, 501 U.S. at 735 n. 1). If Hearn were to file a successive habeas petition in the Texas state courts, his application would be governed by article 11.071 § 5(a). See id. at 422 (holding that if petitioner filed successive habeas petition in Texas state courts, his application would be governed by this provision). Section 5(a) "prohibit[s] a Texas court from considering the successive petition on the merits, unless it [meets] certain exceptions." Id. at 422.
Hearn has not attempted to establish that an exception available under § 5(a) applies in this case. Instead, inferentially addressing the federal procedural default issue, Hearn maintains in his brief that the newspaper articles that contain the information on which he relies to establish this claim were not available to his trial or appellate counsel because he was tried in 1998, the appellate brief was filed in March 2000, and the articles did not appear until later in 2000. He contends 2000 census data concerning the Dallas County Hispanic population will not be available until June through September 2002. Hearn requests leave to supplement his petition with this evidence and a hearing at which he can offer these and other documents into evidence. See P. Br. at 112-13.
But as the State points out, even if the newspaper articles did not exist, the evidence on which Hearn relies to support this claim did. Nothing in Hearn's brief indicates that the articles disclosed for the first time information that was previously undiscoverable. Instead, Hearn relies on no more than the fact that publication of the information in the form of the articles did not occur until late 2000. He has not shown that, through the exercise of due diligence, he could not have obtained the information necessary to advance in state court the arguments he now makes. Concerning the 2000 census data, which admittedly was not available in 1998, the State points out that information that was necessary to support Hearn's contention concerning the Hispanic population of Dallas County could have been derived from 1990 census data. See R. Br. at 46. The court therefore rejects Hearn's conclusory assertion that "[t]his claim relies on a factual predicate that could not have been previously discovered through the exercise of due diligence by petitioner nor by his trial or direct appeal counsel." P. Br. at 112. For the same reasons, the court holds that Hearn is not entitled to an evidentiary hearing. See Riddle v. Cockrell, 288 F.3d 713, 719 (5th Cir. 2002) (holding that § 2254(e)(2) of AEDPA precludes hearing where applicant has failed to develop factual basis for claim in state court proceedings unless applicant can show that claim relies on factual predicate that could not have been previously discovered through exercise of due diligence).
Accordingly, the court holds that Hearn's claim is procedurally defaulted because he has not established cause for his failure to raise this claim on direct appeal or in the state habeas proceeding.
XII
Finally, Hearn contends in ground XIX that the cumulative effect of the above-enumerated constitutional violations denied him due process of law, in violation of the Fifth and Fourteenth Amendments, even if no separate infraction by itself rose to that magnitude.
In Derden v. McNeel, 978 F.2d 1453 (5th Cir. 1992) (en banc), the Fifth Circuit held that in order for a federal habeas petitioner to prevail on a claim of cumulative error, he must establish that the state trial court committed an error, the error was not procedurally barred from habeas corpus review, and the error rises to a constitutional dimension. Id. at 1458. Hearn has not presented specific arguments or reasoning that establish that he is entitled to relief. He merely requests that if no one constitutional violation is sufficient to obtain a writ, the court consider their cumulative effect. See P. Br. at 114. The Texas Court of Criminal Appeals found that his individual claims were without merit and therefore concluded that he had failed to show that he was denied due process. See Hearn, No. 73,371, slip op. at 12-13. The court's conclusion was a reasonable application of clearly established federal law.
* * *
The State's motion for summary judgment is GRANTED, Hearn's habeas petition is DENIED, and this action is DISMISSED with prejudice.
SO ORDERED.