UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-2204
MARKHAM DUFF-SMITH, Petitioner-Appellant,
versus
JAMES A. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.
Appeal from the United States District Court For the Southern District of Texas
(September 17, 1992)
Before POLITZ, Chief Judge, GARWOOD and JOLLY, Circuit Judges.
POLITZ, Chief Judge:
Markham Duff-Smith, a Texas prisoner sentenced to death,
appeals the rejection of his application for a writ of habeas
corpus. Finding no error, for the reasons assigned we affirm the
district court's denial of habeas relief. Background1
On October 15, 1975, Gertrude Zabolio, Duff-Smith's adopted
mother, was murdered in her home. According to the prosecution,
Duff-Smith solicited Walter Waldhauser to kill her and his
stepfather, Dow Zabolio. Waldhauser in turn solicited Paul
MacDonald, a bail bondsman, who hired Allen Wayne Janecka. Janecka
killed Gertrude Zabolio by strangulation.
Duff-Smith was a spendthrift who lived beyond his means.
During the period preceding his mother's murder he had several
arguments with her over requests for money. He told several
persons that he wished her dead. Duff-Smith acted on this desire
and determined to secure the murder of both his mother and
stepfather. Dow Zabolio was included because Duff-Smith speculated
that his stepfather might delay the final distribution of his
mother's estate.
Detailed evidence of the crime was provided by MacDonald who
testified that in the late summer of 1975 Waldhauser told MacDonald
that a friend named "Duff" needed an estate cleared up in order to
accelerate receipt of his inheritance. When MacDonald stated that
he was not willing to commit murder Waldhauser asked him to use his
bail bond connections to find someone willing to do so.
1 We present only the facts necessary for an understanding of the issues raised in this appeal. A detailed review of the facts, including the pertinent corroborating evidence, may be found in the Texas Court of Criminal Appeals' opinion affirming Duff-Smith's conviction on direct appeal, Duff-Smith v. State, 685 S.W.2d 26 (Tex.Crim.App.), cert. denied, 474 U.S. 865 (1985).
2 Waldhauser later called to ask whether MacDonald had located
a hit man. Janecka was present and MacDonald asked him whether he
knew of anyone available for murder for hire and Janecka replied
that he would take the job. MacDonald and Janecka then contracted
to perform the killings for $10,000 -- $6,500 for Janecka and
$3,500 for MacDonald who was to assist Janecka in planning. A
small amount of this money was provided up front.
Waldhauser supplied MacDonald with details about the intended
victims, including the fact that on each Wednesday night they ate
dinner at a nearby cafeteria. On Wednesday October 15, 1975
Janecka and MacDonald staked out the Zabolio home. When Gertrude
Zabolio left alone to go to the cafeteria Janecka entered the home
to await her return. Janecka then spent several hours in the
Zabolio home with Mrs. Zabolio, ostensibly waiting for her husband
to return from work.2 According to MacDonald's testimony, Janecka
told him that Mrs. Zabolio resignedly accepted her imminent death
and was not surprised when Janecka revealed that her son was behind
the plan. Eventually Janecka strangled the victim with her
pantyhose, leaving behind two purported suicide notes, as well as
a "practice" panty hose tied into a loop, much like the one used in
the strangulation.3
The next day MacDonald met Waldhauser and Duff-Smith to
2 Gertrude told Janecka that her husband was merely working late when in fact he was in Austria.
3 The deceased's death was, in fact, originally ruled a suicide.
3 discuss the murder. Having been told by Waldhauser to bring some
proof that he had committed the murder, MacDonald brought
Mrs. Zabolio's driver's license which Janecka had given him. The
license was accepted by Duff-Smith without comment. During this
same meeting Duff-Smith complained that only one-half of the
contract had been completed. He informed MacDonald that no more
money would be paid to Janecka until Dow Zabolio had also been
killed.
After a few months Janecka grew impatient and threatened
MacDonald. MacDonald told Waldhauser about Janecka's threats, but
no money was forthcoming. Finally, Waldhauser gave MacDonald
Duff-Smith's unlisted phone number so that MacDonald could "shake
things up a bit." When MacDonald told Duff-Smith about Janecka's
threats, Duff-Smith agreed to "get it taken care of." Shortly
thereafter, Janecka received full payment from Waldhauser.
The police were eventually alerted of the murder conspiracy by
Donald Wayne Chaline. Chaline worked with Duff-Smith at Prudential
Insurance Company in 1975. According to Chaline, he and Duff-Smith
met several months after the murder. During the chance meeting
Duff-Smith told Chaline in great detail about how he had arranged
for the death of his mother in order to collect proceeds from her
estate.
For three years Chaline said nothing to the police because he
felt implicated. In 1979 Chaline read about the deaths by gunshot
of Duff-Smith's sister, Diana Wanstrath, her husband, John
4 Wanstrath, and their 14-month-old child, Kevin Wanstrath.4
Apparently Duff-Smith had squandered his inheritance from his
mother and he hired Waldhauser and Janecka to murder the Wanstrath
family so he could inherit his sister's estate. Suspecting foul
play by Duff-Smith, Chaline called and then eventually met with the
homicide detective investigating the Wanstrath killings.
Duff-Smith was tried for the murder of his mother.5 During
his case-in-chief he first presented the perjured testimony of two
witnesses.6 The third witness defense counsel called was Jerry Sol
Eickenhorst. Unfortunately for Duff-Smith, Eickenhorst destroyed
the defense theory. Eickenhorst testified that Duff-Smith had
suborned perjury by various inmates and had concocted a false story
that Waldhauser and MacDonald had murdered Mrs. Zabolio and were
attempting to place the blame on him to avoid the death penalty.
In support of his testimony, Eickenhorst provided the handwritten
notes made by Duff-Smith outlining the perjurious scheme.
4 The medical examiner initially ruled that the Wanstrath family deaths were the result of a double murder-suicide; that Diana Wanstrath had murdered her husband and son before committing suicide.
5 Duff-Smith was charged with but never tried for arranging the murders of the Wanstrath family. However, during both the guilt-innocence and punishment phases of his trial for the murder of Mrs. Zabolio, the Wanstrath murders were made know to the jury via the testimony of coconspirators.
6 There was no indication that defense counsel knew of the perjurious nature of the defense theory. Several weeks before trial five inmates, all previous jail-mates of MacDonald, contacted defense counsel by letter and offered to testify in Duff-Smith's favor.
5 Duff-Smith conceded that the handwriting was his.
Duff-Smith was convicted of murdering Gertrude Zabolio for
renumeration, namely, for half of the proceeds of her $190,000
estate. The jury returned affirmative findings to the two special
issues under Article 37.071(b), V.A.C.C.P., and punishment was
assessed at death. The Texas Court of Criminal Appeals affirmed
the conviction and death sentence.7
Execution was scheduled for January 10, 1986. When Duff-Smith
filed a petition for habeas relief in state court a stay was
issued. Following an evidentiary hearing the trial court entered
findings of fact and conclusions of law refusing all relief. The
Texas Court of Criminal Appeals denied Duff-Smith's habeas
application and the trial court reset the execution for October 8,
1987.
Duff-Smith filed his first federal habeas petition in
September of 1987 and a stay of execution was granted. Duff-Smith
raised 11 claims, including those raised in this appeal. An
evidentiary hearing was conducted and the magistrate judge entered
his report recommending that the writ be denied. The district
court adopted the magistrate judge's recommendation, entered an
order denying the writ of habeas corpus, vacated the stay of
execution, and denied a certificate of probable cause.
Duff-Smith filed a notice of appeal, which under
Fed.R.App.P. 21 we consider to be a request for a certificate of
7 Duff-Smith v. State, 685 S.W.2d 26 (Tex.Crim.App.), cert. denied, 474 U.S. 865 (1985).
6 probable cause, raising ten claims for relief. He alleges that:
(1) his substitute counsel was not given adequate time to prepare
his habeas claims; (2) two prospective jurors were improperly
removed; (3) in violation of a discovery order, the prosecution
failed to reveal the existence of the handwritten script outlining
the perjurious defense theory; (4) witness Eickenhorst was an
undercover agent for the state who improperly solicited admissions
from Duff-Smith after his right to counsel had attached;
(5) Eickenhorst affirmatively deceived defense counsel; (6) the
state offered Eickenhorst undisclosed benefits and inducements;
(7) subpoenas of material witnesses were quashed; (8) he was denied
effective assistance of counsel; (9) the evidence was insufficient
to sustain a conviction of capital murder for remuneration; and
(10) unadjudicated criminal conduct was introduced during the
punishment phase of his trial. We granted the CPC.
Analysis
In considering a federal habeas corpus petition federal courts
must accord a presumption of correctness to state court factual
findings.8 We accept the district court's findings of fact unless
they are clearly erroneous; issues of law are reviewed de novo.9
8 Barnard v. Collins, 958 F.2d 634 (5th Cir. 1992) (citing 28 U.S.C. § 2254(d)).
9 Humphrey v. Lynaugh, 861 F.2d 875 (5th Cir. 1988), cert. denied, 490 U.S. 1024 (1989).
7 1. Substitute counsel
The record indicates that Duff-Smith was represented at trial
by attorneys Victor Blaine and Candelario Elizondo. His direct
appeal, state habeas petition, and the initial aspects of the
federal habeas petition were handled by attorneys Will Gray and
Carolyn Garcia. During the second evidentiary hearing Gray and
Garcia asked to withdraw as counsel. The magistrate judge
ultimately granted a motion to substitute Douglas C. McNabb as
counsel.
At the time of his appointment, McNabb was informed that
although Duff-Smith's evidentiary hearing had been held, he could
supplement the record as long as he did so before the magistrate
judge issued his report to the district court. No particular time
period was set.
Four months later McNabb realized that previous counsel had
requested a transcript of the federal evidentiary hearings but that
no transcript was ever produced. McNabb requested the transcript,
the request was approved, and McNabb received the bulk of the
transcript the last week of October 1990.
Meanwhile, the magistrate judge had finished his report which
he filed on October 9, 1990. McNabb received a copy on October 17
and was given until October 30 to file objections. This objection
deadline was later extended to November 30, 1990 and then to
January 4, 1991.
In his objections to the magistrate judge's report, Duff-Smith
requested that his substitute counsel be given additional time to
8 examine the records, investigate the facts, and amend and/or
supplement the application for writ of habeas corpus. The district
court impliedly rejected this request when on January 28, 1991 it
adopted the magistrate judge's report, denying the writ.
Duff-Smith argues on appeal that his substitute counsel did
not have sufficient time to supplement the record before the
magistrate judge issued his report, thereby denying him a fair
federal habeas proceeding. He asserts that his substitute counsel
has found additional material not previously applied to the facts
of the writ. Citing the mandate of McCleskey v. Zant10 that all
claims for relief be raised in a petitioner's first habeas
petition, Duff-Smith also insists that his counsel should be given
additional time to perform what he terms a "McCleskey
investigation." Accordingly, Duff-Smith requests a stay of
180 days so that his substitute counsel might fully investigate his
claims in this, his first federal habeas petition. Should
additional claims be discovered, he requests an opportunity to
amend his petition to raise them.11
Discovery decisions in habeas proceedings, including whether
to allow an extension of time, are left entirely to the sound
10 _____ U.S. _____, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
11 Cf. Coleman v. Vasquez, 771 F.Supp. 300 (N.D.Cal. 1991) (staying proceedings for 120 days to allow a McCleskey investigation).
9 discretion of the district court.12 Amendments should be liberally
allowed but the decision whether to permit an amendment to a
petition after responsive pleadings have been filed is within the
discretion of the district court.13 The decision to deny leave to
amend is reviewed on appeal only for abuse of that discretion.14
Duff-Smith was represented by competent counsel for several
years before counsel withdrew. When McNabb was appointed as
Duff-Smith's substitute counsel he was given an opportunity to
supplement the record at anytime before the magistrate judge issued
his report to the district court. This was a period of four and
one-half months. McNabb then had three months to respond and
object to the report. Counsel was afforded sufficient time to
review the records, investigate the facts, and present them to the
court. The new information which Duff-Smith purports to have
discovered is nothing more than a bald assertion that with
additional time he might be able to prove psychological
mistreatment and that Eickenhorst was a government witness. We are
not persuaded. Duff-Smith has failed to show that "he was
prejudiced by his inability to amend his petition."15
12 28 U.S.C. § 2254.
13 Fed.R.Civ.P. 15(a); Hernandez v. Garrison, 916 F.2d 291 (5th Cir. 1990).
14 Carter v. Procunier, 755 F.2d 1126 (5th Cir. 1985).
15 Hernandez, 916 F.2d at 293. The district court did not abuse its discretion.
10 2. Improperly removed venire members
Duff-Smith alleges that venire members Sarah Nagler and Harold
Boyd were improperly excused by the trial court in violation of
Adams v. Texas16 and Witherspoon v. Illinois.17 He contends that the
voir dire responses given by the two prospective jurors do not
indicate that they were so opposed to the death penalty as to
interfere with their duties as jurors and that they should not have
been excused.
During the trial, counsel did not object to the exclusion of
either prospective juror as required by the Texas contemporaneous
objection rule.18 Consistent with state law, the Texas Court of
Criminal Appeals expressly stated that its judgment as to this
issue rested on a state procedural bar.19 The district court
correctly concluded that the procedural default doctrine forecloses
federal habeas review of this claim.20 When a state prisoner has
defaulted a claim in state court under an independent and adequate
state procedural rule, federal habeas review is barred unless the
prisoner can demonstrate cause for the default and actual
16 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).
17 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
18 Russell v. State, 598 S.W.2d 238 (Tex.Crim.App.), cert. denied, 449 U.S. 1003 (1980).
19 Duff-Smith, 685 S.W.2d at 36-38.
20 White v. Collins, 959 F.2d 1319 (5th Cir. 1992).
11 prejudice, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.21
But for his ineffective assistance of counsel claim discussed
infra, Duff-Smith does not allege cause for his failure to comply
with the state procedural rules for preserving error. Moreover, he
offers no proof tending to show that as a consequence thereof there
was a fundamental miscarriage of justice in his trial.22
3-6. Witness Jerry Sol Eickenhorst
Duff-Smith's third, fourth, fifth, and sixth claims for relief
center around the testimony of defense witness Eickenhorst. It was
Eickenhorst who surprised the defense by testifying at trial that
Duff-Smith's entire defense -- that he was being framed by
MacDonald and Waldhauser -- was but a perjurious concoction by
Duff-Smith. The state actually learned of the scheme a few weeks
before trial when Eickenhorst gave the prosecution Duff-Smith's
handwritten script detailing the perjurious scheme.
Duff-Smith's first contention is that the state violated the
trial court's pretrial discovery and inspection order when it
failed to provide the defense with a copy of Duff-Smith's
handwritten script before Eickenhorst testified. He argues that
the state's failure to comply with the discovery order violates due
process and deprives him of effective assistance of counsel.
21 Coleman v. Thompson, 501 U.S. _____, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
22 Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 9l L.Ed.2d 434 (1986).
12 This contention is also barred under the procedural default
doctrine because Duff-Smith did not object to the admission of the
script at trial. As the Texas Court of Criminal Appeals noted in
rejecting this claim, "[i]t is well settled that the proper
procedure when alleging surprise due to violation of a trial
court's order for discovery is to object or ask for a postponement
or continuance of the trial."23 Moreover, were we to reach the
merits of this claim, it is apparent that no federal constitutional
right is implicated. Eickenhorst's testimony and the script were
fully known and available to Duff-Smith; thus, he cannot complain
that it was withheld in violation of Brady v. Maryland.24
Duff-Smith's next allegation is that Eickenhorst was an
undercover agent for the state who solicited admissions from him
after his right to counsel had attached in violation of Maine v.
Moulton25 and Massiah v. United States.26 He also insists that at
the request of the prosecution, Eickenhorst affirmatively deceived
defense counsel by informing them that his in-court testimony would
support the fabricated defense theory. In addition, Duff-Smith
23 Duff-Smith, 685 S.W.2d at 33.
24 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Mattheson v. King, 751 F.2d 1432 (5th Cir. 1985), cert. denied, 106 S.Ct. 1798 (1986); United States v. Jones, 712 F.2d 115 (5th Cir. 1983).
25 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985).
26 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
13 alleges that Eickenhorst's testimony was induced by promises of
favorable treatment by the prosecutor in violation of United States
v. Bagley.27
Duff-Smith offered no evidence to support any of these
contentions. In the state habeas proceedings, the trial court
found that Eickenhorst was never a state agent, that the
prosecutors did not ask Eickenhorst to deceive defense counsel, and
that no inducements were given to Eickenhorst by the state either
before or after his testimony.28 These state findings, supported
by the record, are entitled to a presumption of correctness.29
Moreover, after the federal evidentiary hearing in which Duff-Smith
called several witnesses in an attempt to prove his allegations,
the magistrate judge again determined that Eickenhorst was not an
agent and that his actions were not induced by the state. There is
simply no evidence supporting these allegations, and mere arguments
to the contrary do not raise a constitutional issue.30
7. Compulsory process
Duff-Smith contends that his sixth amendment right to
compulsory process was denied during the state collateral hearing
27 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (failure of the state to reveal favorable information such as inducements may violate due process).
28 Ex parte Duff-Smith, No. 16,92601 at 81-85.
29 28 U.S.C. § 2254(d).
30 Ross v. Estelle, 694 F.2d 1008 (5th Cir. 1983).
14 when the judge quashed subpoenas duces tecum served on three
witnesses, Harris County District Attorney Johnny Holmes, Texas
Attorney General Jim Mattox, and United States Marshal B.S. Baker.
Duff-Smith claims he was seeking information that these individuals
may have had regarding the fact that Eickenhorst was eventually
transferred to the federal prison system.
This contention is without merit for infirmities in state
habeas proceedings do not constitute grounds for federal habeas
relief.31 We look only to the trial and direct appeal. Further,
Duff-Smith was granted permission to call these same witnesses in
the federal evidentiary hearing if he was not satisfied with the
affidavits they submitted. Although Duff-Smith's defense counsel
expressed some dissatisfaction with Holmes' affidavit, counsel
elected not to call him.
8. Ineffective assistance of counsel
In his eighth claim for relief Duff-Smith argues that he was
denied his sixth amendment right to the effective assistance of
counsel. Specifically, he contends that his counsel: (1) failed
to object to the excusal for cause of prospective jurors Boyd and
Nagler; (2) failed to object to prosecutorial misconduct; (3) did
not present mitigating evidence during the punishment phase of
trial; (4) failed to challenge the medical examiner reports;
(5) did not pursue a change in venue; and (6) failed to investigate
adequately the background of witness Don Chaline.
31 Vail v. Procunier, 747 F.2d 277 (5th Cir. 1984).
15 To succeed with an ineffective assistance of counsel claim,
Duff-Smith must show that counsel's performance was deficient,
falling below an objective standard of reasonableness and the
deficient performance prejudiced the defense to the extent that
"counsel's errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable."32 The reasonableness
of the challenged conduct is determined by viewing the
circumstances at the time of that conduct.33 In our assessment, we
"strongly presume that trial counsel rendered adequate assistance
and that the challenged conduct was the product of a reasoned trial
strategy."34
As previously discussed, defense counsel did not object to the
trial court's excusal for cause of venire members Boyd and Nagler,
and thus Duff-Smith is precluded from directly litigating that
issue on the merits. Under Strickland, however, Duff-Smith may
still raise the merits of this issue through an ineffective
assistance of counsel claim.35
32 Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Lincecum v. Collins, 958 F.2d 1271 (5th Cir. 1992).
33 Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695; Barnard, 958 F.2d at 638.
34 Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992) (citing Strickland).
35 Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.
16 The applicable standard to determine whether a prospective
juror may be excluded for cause because of his or her views on
capital punishment is "whether the juror's views would 'prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.'"36 A juror's bias
need not be proven with "unmistakable clarity."37 The trial judge
is in the best position to assess the demeanor and credibility of
a prospective juror; accordingly, the judge's determination is
statutorily accorded a presumption of correctness.38
A studied review of the responses of Boyd and Nagler during
voir dire confirms that they were not excused improperly under
Adams and Witt. After admitting that she philosophically opposed
the death penalty, Nagler was asked if she would resolve the
conflict between her conscience and oath by answering the special
answers "no" to avoid the death penalty. Nagler first responded
that she would and later stated that she did not know what she
would do to resolve the admitted conflict. Boyd was not sure that
he believed in capital punishment and for that reason he stated
that he "might answer the second [question] no to keep from having
to kill." When defense counsel asked Boyd "if you were in that
36 Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
37 Id.
38 28 U.S.C. § 2254(d); Ellis v. Lynaugh, 873 F.2d 830 (5th Cir.), cert. denied, 493 U.S. 970 (1989).
17 position then you would violate that oath that you would take and
answer it wrongfully, contrary to the law and the evidence?" Boyd
replied that he "wouldn't take the oath in the first place . . . if
it meant killing somebody." The trial court could have been "left
with the definite impression that [Nagler and Boyd] would be unable
to faithfully and impartially apply the law."39 Hence, Duff-Smith's
counsel did not act unreasonably or unprofessionally in failing to
object to the excusing of Nagler and Boyd.
Duff-Smith also alleges his counsel were ineffective in
failing to object to prosecutorial misconduct -- that in violation
of a discovery order the prosecution did not notify defense counsel
of their advance knowledge of the perjurious defense theory and of
Duff-Smith's handwritten script. This claim has no merit.
Duff-Smith was not deprived of a fundamentally fair trial because
the state failed to inform him that the authorities were aware that
he planned and then suborned perjury. Duff-Smith obviously had
full knowledge of the information the prosecution did not reveal;
his constitutional rights manifestly were not implicated.40
We next examine Duff-Smith's allegation that his counsel was
ineffective for failing to present any mitigating evidence during
the punishment phase of his trial. "[F]ailure to present
mitigating evidence 'if based on an informed and reasoned practical
39 Witt, 469 U.S. at 426, 105 S.Ct. at 853, 83 L.Ed.2d at 853.
40 Mattheson, 751 F.2d at 1444; Jones, 712 F.2d at 122.
18 judgment, is well within the range of practical choices not to be
second-guessed.'"41 Duff-Smith presented his counsel with the names
of several potential character witnesses. Defense counsel
contacted each person. Determining that these witnesses might be
more damaging than helpful, counsel decided not to present their
testimony during the punishment phase of trial. Such reasoned
trial strategy, although it might be challenged with the benefit of
20-20 hindsight, is not defective within the meaning of Strickland.
Duff-Smith's remaining ineffective assistance of counsel
claims are equally without merit. The decision by his counsel not
to challenge the medical examiner's report on Mrs. Zabolio's cause
of death was clearly trial strategy.42 Both Waldhauser and
MacDonald had admitted to the killing of Mrs. Zabolio. Likewise,
counsel's decision not to pursue Duff-Smith's initial motion for a
change of venue was also the product of reasoned trial strategy.
After voir dire defense counsel was satisfied that Duff-Smith could
receive a fair trial in Harris County. As there was neither a
demonstration nor suggestion of prejudice, this cannot be deemed
ineffective assistance of counsel.43 And finally, Duff-Smith fails
to demonstrate what relevant fact(s) a more thorough background
41 Wilkerson, 950 F.2d at 1065 (quoting Mattheson, 751 F.2d at 1441).
42 Strickland, 466 U.S. at 694; Green v. Lynaugh, 868 F.2d 176 (5th Cir.), cert. denied, 493 U.S. 831 (1989).
43 Gilliard v. Scroggy, 847 F.2d 1141 (5th Cir. 1988), cert. denied, 488 U.S. 1019 (1989).
19 check on Don Chaline, the state's primary non-accomplice witness,
would have revealed. Pure speculation that crucial
cross-examination material might have been discovered is
insufficient to raise a constitutional claim of ineffective
assistance.44
9. Insufficiency of evidence
Duff-Smith asserts that the state failed to present sufficient
evidence to support the jury's finding of the remuneration element
of capital murder. The heart of his argument is that remuneration
was not shown because he would have inherited the same amount of
money from his mother if she died naturally as he received after
her murder. Thus, Duff-Smith argues, he did not gain from the
murder.
When testing the sufficiency of the evidence in the context of
a habeas petition the state conviction must stand unless no
rational trier of fact, when viewing the evidence in the light most
favorable to the prosecution, could have found the essential
elements of the offense proven beyond a reasonable doubt.45 When
a state appellate court reviews the sufficiency of the evidence,
that court's opinion must be given great weight.46
44 See Barnard, 958 F.2d at 642 n.11.
45 Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
46 Parker v. Procunier, 763 F.2d 665, 666 (5th Cir.), cert. denied, 474 U.S. 855 (1985).
20 Duff-Smith's argument runs afoul of Beets v. State47 wherein
the Texas Court of Criminal Appeals specifically approved its prior
holding in his case.48 In Beets the defendant murdered her husband
to collect on his insurance policy and to sell his separate
property. In reversing the initial panel ruling, the Court of
Criminal Appeals sitting en banc held that remuneration includes
murder in anticipation of receiving an estate from the murdered
victim. Questions regarding the sufficiency of the evidence are
gauged in the light of applicable state law.49 Under Texas law the
trial record contains evidence sufficient to establish beyond a
reasonable doubt the essential elements of capital murder for
remuneration.
10. Use of unadjudicated criminal conduct
During the punishment phase of the trial evidence was
introduced of Duff-Smith's conspiracy to murder the Wanstrath
family, and his offer to murder the husband of an ex-girlfriend for
inheritance purposes. Duff-Smith alleges that this was error. He
also contends that the evidence pertaining to the Wanstrath murders
was hearsay and thus violated his right of cross examination.
His first contention is squarely foreclosed by the law of this
47 767 S.W.2d 711 (Tex.Crim.App. 1985) (en banc).
48 685 S.W.2d at 33 (evidence sufficient to sustain a conviction of capital murder for remuneration).
49 McGee v. Estelle, 732 F.2d 447, 451 (5th Cir. 1984).
21 circuit.50 As for the second argument, the statements Duff-Smith
complains of were coconspirator statements made in the course and
within the scope of the conspiracy. They were admissible.51
For these reasons, the decision of the district court denying
the application for writ of habeas corpus is AFFIRMED.
50 Landry v. Lynaugh, 844 F.2d 1117 (5th Cir.), cert. denied, 488 U.S. 900 (1988) (admission at sentencing in state capital murder trial of evidence of prior unadjudicated offenses does not violate due process rights).
51 Fed.R.Evid. 801(d)(2)(E); United States v. Miller, 799 F.2d 985 (5th Cir. 1986).