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Selvage v. Collins

United States Court of Appeals, Fifth Circuit
Mar 6, 1990
897 F.2d 745 (5th Cir. 1990)

Summary

In Selvage, we asked the Texas Court of Criminal Appeals to decide whether Texas requires a contemporaneous objection when a defendant argues that the jury, prior to Penry, was unable to give effect to mitigating evidence under the Texas special issues.

Summary of this case from Buxton v. Collins

Opinion

No. 88-2278.

March 6, 1990.

Robert S. Walt, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellant.

David Cunningham, Houston, Tex., George H. Kendall, New York City, for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Texas; Norman W. Black, Judge.

Before POLITZ, WILLIAMS, and HIGGINBOTHAM Circuit Judges.


CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE COURT OF CRIMINAL APPEALS OF TEXAS PURSUANT TO RULE 214 TEXAS RULES OF APPELLATE PROCEDURE

TO THE TEXAS COURT OF CRIMINAL APPEALS AND THE HONORABLE JUSTICES THEREOF:

The United States Court of Appeals for the Fifth Circuit on remand from the United States Supreme Court has decided that this case presents a question of law that may be determinative of this case, for which there is no controlling precedent in the decisions of the Court of Criminal Appeals. The question is whether petitioner Selvage's claim under Penry v. Lynaugh, 492 U.S. ___, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), is presently procedurally barred under Texas law. We certify this question pursuant to Rule 214, Texas Rules of Appellate Procedure. The question was framed by the United States Supreme Court in its per curiam opinion filed February 21, 1990, ___ U.S. ___, 110 S.Ct. 974, 108 L.Ed.2d 93.

The procedural history of this case is set out in Selvage v. State, 680 S.W.2d 17 (Tex.Crim.App. 1984); Selvage v. Lynaugh, 823 F.2d 845 (5th Cir. 1987), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 268 (1987); Selvage v. Lynaugh, 842 F.2d 89 (5th Cir. 1988), stay granted pending cert., 485 U.S. 983, 108 S.Ct. 1283, 99 L.Ed.2d 494 (1988), cert. granted in part, (Oct. 10, 1989), ___ U.S. ___, 110 S.Ct. 231, 107 L.Ed.2d 182 (1989).

The names and addresses of counsel for each party are set out in the appendix.

APPENDIX A

Jim Mattox, Attorney General Robert S. Walt, Assistant Attorney General Capitol Station Austin, Texas 78711 David P. Cunningham, Esq. Attorney for Petitioner 1927 Norfolk Houston, Texas 77098 Julius L. Chambers, Esq. NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street New York, New York 10013 George H. Kendall, Esq. 31 Elm Street, Suite 236 Springfield, Massachusetts 01103


Summaries of

Selvage v. Collins

United States Court of Appeals, Fifth Circuit
Mar 6, 1990
897 F.2d 745 (5th Cir. 1990)

In Selvage, we asked the Texas Court of Criminal Appeals to decide whether Texas requires a contemporaneous objection when a defendant argues that the jury, prior to Penry, was unable to give effect to mitigating evidence under the Texas special issues.

Summary of this case from Buxton v. Collins

In Selvage, we asked the Texas Court of Criminal Appeals to decide whether Texas would find a claim that the jury was unable to give mitigating effect to the defendant's evidence procedurally barred because the defendant failed to request a special instruction on mitigation or to object to the jury's charge.

Summary of this case from Buxton v. Collins

In Selvage, we asked the Texas Court of Criminal Appeals to rule on the question whether Selvage's failure to object to the jury charge or request special instructions at the punishment phase of his trial barred him under Texas law from asserting that the Texas death sentencing statute prevented the jury's consideration of his mitigating evidence.

Summary of this case from Buxton v. Collins
Case details for

Selvage v. Collins

Case Details

Full title:JOHN HENRY SELVAGE, PETITIONER-APPELLEE, v. JAMES A. COLLINS, DIRECTOR…

Court:United States Court of Appeals, Fifth Circuit

Date published: Mar 6, 1990

Citations

897 F.2d 745 (5th Cir. 1990)

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