IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40042
LESLEY LEE GOSCH,
Petitioner,
versus
GARY JOHNSON, Director, Texas Dept. of Criminal Justice, Institutional Division,
Respondent.
Appeal from the United States District Court for the Southern District of Texas (CV-97-126)
January 15, 1998
Before JOLLY, WIENER and EMILIO M. GARZA, Circuit Judges.
B Y T H E C O U R T:
IT IS ORDERED that petitioner’s application for
Certificate of Appealability (COA) from the district court’s denial
of his petition for writ of habeas corpus is hereby denied and his
appeal is hereby dismissed; and his petition for stay of execution
is likewise denied.
Although the instant appeal, application for COA, and petition for stay of execution have just been filed in this court, this
panel has been tracking petitioner’s direct and collateral appeals
in state and federal court for years, most recently those in the
federal district court for the Southern District of Texas, having
timely received and carefully reviewed all filings of petitioner,
respondent, and the district court, when and as filed. As such, we
are intimately familiar with the facts and law, the arguments of
the parties, and the rulings of the district court and its reasons
therefor. Consequently, petitioner’s eleventh hour filings in this
court do not place us in a position of requiring more time than
remains before petitioner’s scheduled execution in which to make
considered determinations and rulings on the matters now before us.
For the reasons set forth by the district court in its
extensive explications in its Order filed January 12, 1998, and its
subsequent rulings, we agree that the standard of review to be
applied here is that set forth in 28 U.S.C. § 2254, as amended by
the Anti-Terrorism and Effective Death Penalty Act (AEDPA),
particularly subsections (d)(1) and (d)(2).1 Our study of the
1 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of 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
2 careful and exhaustive analysis of the district court in its ruling
denying habeas relief and dismissing the petition satisfies us that
petitioner’s claim was “adjudicated on the merits” in State court
proceedings and that the resulting decisions were not contrary to,
and did not involve an unreasonable application of, clearly
established federal law as determined by the Supreme Court of the
United States, and did not result in a decision that was based on
an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.
The overwhelming evidence of guilt in this case indicates that
the petitioner planned to kidnap the victim and extort a
significant monetary ransom from her husband and that the
petitioner murdered the victim in her home by shooting her in the
head six times. No claim of factual innocence of the petitioner in
this 1985 murder is even remotely suggested. All of petitioner’s
many claims made in these proceedings, which have dragged on for
over eleven years, have been rejected —— and correctly so. In this
last effort for relief, we perceive the petitioner’s claims to be
meritless on their face.
First, the petitioner claims that his execution would violate
the Eighth Amendment’s prohibition against cruel and unusual
punishment in light of the three previous dates the State set for
unreasonable determination of facts in light of the evidence presented in State court proceedings. (emphasis added) (West Supp. 1997).
3 carrying out the petitioner’s capital sentence. The petitioner
alternatively argues that the length of his stay on death row ——
over eleven years —— constitutes cruel and unusual punishment
entitling him to relief. But the petitioner’s challenges under the
Eighth Amendment do not affect the validity of his conviction or
sentence and they are thus not cognizable as a basis for relief
under federal habeas corpus. 28 U.S.C. § 2254 (Supp. 1996).
Furthermore, the relief that the petitioner seeks is barred by the
principles enunciated in Teague v. Lane, 109 S.Ct. 1060, 1075
(1989).
Next, the petitioner asserts that his counsel rendered
ineffective assistance during the guilt phase of his trial.
Strickland v. Washington, 104 S.Ct. 2052, 2065-68 (1984). The
state court correctly determined, however, that the petitioner
failed to demonstrate any prejudice resulting from his counsel’s
allegedly deficient investigatory and trial tactics. Strickland,
104 S.Ct. At 2068 (“The defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional
error, the result of the proceeding would have been different.”).
Finally, the petitioner alleges that the State elicited false
testimony at the trial and knowingly allowed such testimony to
stand in violation of the precepts set out in Giglio v. United
States, 92 S.Ct. 763, 766 (1972), and Brady v. Maryland, 83 S.Ct.
1194, 1197 (1963). To obtain relief under Giglio, the petitioner
must demonstrate (1) that the testimony was false; (2) that the
4 government knowingly offered the false testimony; and (3) that the
false testimony was material, that is, that “it is reasonably
likely that the truth would have affected the outcome of the
trial.” Id. Without addressing whether the petitioner has
established the first two prongs, he has failed totally to
demonstrate the materiality of the allegedly false testimony.
Therefore, each of the petitioner’s claims for relief lack any
possible merit.
Petitioner’s post-AEDPA petition seeking habeas relief was
properly denied. Moreover, for purposes of COA, petitioner has
failed to make a “substantial showing of the denial of a
constitutional right,” i.e., the issues presented are not debatable
among jurists of reason, so petitioner has failed to justify
issuance of a COA as well.
IT IS FURTHER ORDERED that, considering the foregoing
denial of petitioner’s application for COA, his petition for stay
of execution is denied. The merits of his petitions for a writ of
habeas corpus and for a stay of execution have not presented a
substantial case; neither have they made a substantial showing of
the denial of a federal right.
COA DENIED; APPEAL DISMISSED; STAY OF EXECUTION DENIED.
EMILIO M. GARZA, Circuit Judge, dissenting:
This matter, reviewed and decided in less than a day, is a
5 prime example of the tail of a pending execution wagging this
panel’s dog.2 Although I agree that a preliminary review of
Gosch’s habeas application and motion for a stay of execution
suggests that it lacks merit, this court should be more reticent in
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40042
LESLEY LEE GOSCH,
Petitioner,
versus
GARY JOHNSON, Director, Texas Dept. of Criminal Justice, Institutional Division,
Respondent.
Appeal from the United States District Court for the Southern District of Texas (CV-97-126)
January 15, 1998
Before JOLLY, WIENER and EMILIO M. GARZA, Circuit Judges.
B Y T H E C O U R T:
IT IS ORDERED that petitioner’s application for
Certificate of Appealability (COA) from the district court’s denial
of his petition for writ of habeas corpus is hereby denied and his
appeal is hereby dismissed; and his petition for stay of execution
is likewise denied.
Although the instant appeal, application for COA, and petition for stay of execution have just been filed in this court, this
panel has been tracking petitioner’s direct and collateral appeals
in state and federal court for years, most recently those in the
federal district court for the Southern District of Texas, having
timely received and carefully reviewed all filings of petitioner,
respondent, and the district court, when and as filed. As such, we
are intimately familiar with the facts and law, the arguments of
the parties, and the rulings of the district court and its reasons
therefor. Consequently, petitioner’s eleventh hour filings in this
court do not place us in a position of requiring more time than
remains before petitioner’s scheduled execution in which to make
considered determinations and rulings on the matters now before us.
For the reasons set forth by the district court in its
extensive explications in its Order filed January 12, 1998, and its
subsequent rulings, we agree that the standard of review to be
applied here is that set forth in 28 U.S.C. § 2254, as amended by
the Anti-Terrorism and Effective Death Penalty Act (AEDPA),
particularly subsections (d)(1) and (d)(2).1 Our study of the
1 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of 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
2 careful and exhaustive analysis of the district court in its ruling
denying habeas relief and dismissing the petition satisfies us that
petitioner’s claim was “adjudicated on the merits” in State court
proceedings and that the resulting decisions were not contrary to,
and did not involve an unreasonable application of, clearly
established federal law as determined by the Supreme Court of the
United States, and did not result in a decision that was based on
an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.
The overwhelming evidence of guilt in this case indicates that
the petitioner planned to kidnap the victim and extort a
significant monetary ransom from her husband and that the
petitioner murdered the victim in her home by shooting her in the
head six times. No claim of factual innocence of the petitioner in
this 1985 murder is even remotely suggested. All of petitioner’s
many claims made in these proceedings, which have dragged on for
over eleven years, have been rejected —— and correctly so. In this
last effort for relief, we perceive the petitioner’s claims to be
meritless on their face.
First, the petitioner claims that his execution would violate
the Eighth Amendment’s prohibition against cruel and unusual
punishment in light of the three previous dates the State set for
unreasonable determination of facts in light of the evidence presented in State court proceedings. (emphasis added) (West Supp. 1997).
3 carrying out the petitioner’s capital sentence. The petitioner
alternatively argues that the length of his stay on death row ——
over eleven years —— constitutes cruel and unusual punishment
entitling him to relief. But the petitioner’s challenges under the
Eighth Amendment do not affect the validity of his conviction or
sentence and they are thus not cognizable as a basis for relief
under federal habeas corpus. 28 U.S.C. § 2254 (Supp. 1996).
Furthermore, the relief that the petitioner seeks is barred by the
principles enunciated in Teague v. Lane, 109 S.Ct. 1060, 1075
(1989).
Next, the petitioner asserts that his counsel rendered
ineffective assistance during the guilt phase of his trial.
Strickland v. Washington, 104 S.Ct. 2052, 2065-68 (1984). The
state court correctly determined, however, that the petitioner
failed to demonstrate any prejudice resulting from his counsel’s
allegedly deficient investigatory and trial tactics. Strickland,
104 S.Ct. At 2068 (“The defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional
error, the result of the proceeding would have been different.”).
Finally, the petitioner alleges that the State elicited false
testimony at the trial and knowingly allowed such testimony to
stand in violation of the precepts set out in Giglio v. United
States, 92 S.Ct. 763, 766 (1972), and Brady v. Maryland, 83 S.Ct.
1194, 1197 (1963). To obtain relief under Giglio, the petitioner
must demonstrate (1) that the testimony was false; (2) that the
4 government knowingly offered the false testimony; and (3) that the
false testimony was material, that is, that “it is reasonably
likely that the truth would have affected the outcome of the
trial.” Id. Without addressing whether the petitioner has
established the first two prongs, he has failed totally to
demonstrate the materiality of the allegedly false testimony.
Therefore, each of the petitioner’s claims for relief lack any
possible merit.
Petitioner’s post-AEDPA petition seeking habeas relief was
properly denied. Moreover, for purposes of COA, petitioner has
failed to make a “substantial showing of the denial of a
constitutional right,” i.e., the issues presented are not debatable
among jurists of reason, so petitioner has failed to justify
issuance of a COA as well.
IT IS FURTHER ORDERED that, considering the foregoing
denial of petitioner’s application for COA, his petition for stay
of execution is denied. The merits of his petitions for a writ of
habeas corpus and for a stay of execution have not presented a
substantial case; neither have they made a substantial showing of
the denial of a federal right.
COA DENIED; APPEAL DISMISSED; STAY OF EXECUTION DENIED.
EMILIO M. GARZA, Circuit Judge, dissenting:
This matter, reviewed and decided in less than a day, is a
5 prime example of the tail of a pending execution wagging this
panel’s dog.2 Although I agree that a preliminary review of
Gosch’s habeas application and motion for a stay of execution
suggests that it lacks merit, this court should be more reticent in
deciding any death penalty case so quickly))especially one in which
the merits have not been previously reviewed by an appellate court.
A thorough and comprehensive review of the record, the briefs, and,
in my opinion, oral argument, is required after the passage of
AEDPA.
Clearly we have violated Chief Justice Rehnquist’s admonition
that “Capital cases should be subject to one complete and fair
course of collateral review in the state and federal system, free
from the time pressure of impending execution.” See Judicial
Conference of the United States, Ad Hoc Committee on Federal Habeas
Corpus in Capital Cases, Committee Report and Proposal at 6 (Aug.
23, 1989) (retired Justice Powell presiding); cf. McFarland v.
Scott, 512 U.S. 849, 857-58 (1994) (appointment of counsel on the
eve of an execution date “would have been meaningless” unless the
execution was stayed; “the right to counsel necessarily includes a
2 While the majority opinion is correct that we have been tracking Gosch’s direct and collateral appeals in state and federal court for several years, see McFarland v. Scott, 512 U.S. 849, 852 n.1 (1994) (discussing Gosch’s previously filed “skeletal” habeas petition and previous Texas policy in death penalty cases), none of the panel members, to my knowledge, have reviewed the state court record or state habeas evidentiary hearing in light of issues number 2 and 3, Gosch’s ineffective assistance of counsel and his false testimony claim.
6 right for that counsel meaningfully to research and present a
defendant’s habeas claims.”). This case is not frivolous. At a
minimum, issues number 2 and 3))whether Gosch received ineffective
assistance of counsel and whether the State knowingly permitted
false testimony))require thorough review of the underlying record.
See Mercer v. Armonstrout, 864 F.2d 1429, 1431-32 (8th Cir. 1988)
(“If the petition is not frivolous on its face, the very essence of
this court’s duty is to study and research the points raised. The
severity and finality of the death penalty requires the utmost
diligence and scrutiny of the court. . . . No judge can digest,
retain, or apply these principles to a voluminous state court
record without reflective study and analysis. To suggest that a
life or death decision can be made by simply reading a petition is
to advocate dereliction of judicial duty.”) (emphasis in original).
I would, therefore, grant the stay of execution and hold in
abeyance any ruling on a COA until a thorough review of the record
is performed in light of the specific issues before us.