IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 91-5093 _______________
DAVID LEE HOLLAND,
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 Eastern District of Texas _________________________
(May 22, 1992)
Before POLITZ, Chief Judge, KING and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
David Lee Holland makes application for a certificate of
probable cause ("CPC") to appeal the district court's denial of his
petition for writ of habeas corpus. On December 17, 1991, without
acting on the application for CPC, the panel majority granted
Holland's motion for stay of execution "pending the court's en banc
decision in Graham v. Collins . . . ." Shortly thereafter, an
opinion was issued in Graham. See Graham v. Collins, 950 F.2d 1009
(5th Cir. 1992) (en banc), petition for cert. filed (Mar. 9, 1992) (No. 91-7580). In light of Graham, and for the other reasons
hereinafter expressed, we now deny CPC and vacate the stay of
execution.
I.
Holland was convicted for the capital murder, on July 16,
1985, of two bank employees in the course of committing and
attempting to commit bank robbery. The facts and earlier proce-
dural history of the case are set forth in the comprehensive
opinion of the Texas Court of Criminal Appeals. See Holland v.
State, 761 S.W.2d 307 (Tex. Crim. App. 1988), cert. denied, 489
U.S. 1091 (1989). Holland filed a state habeas petition with the
court of criminal appeals, which denied all relief. See Ex parte
Holland, No. 70,970 (Tex. Crim. App. Oct. 16, 1991). Holland filed
his first federal habeas petition on December 11, 1991.
In a lengthy memorandum and order, the district court on
December 17, 1991, denied Holland's motion for stay of execution,
dismissed his habeas petition, and denied CPC. Also on
December 17, Holland filed a motion for stay of execution and
application for CPC with this court. That same day the panel
majority, without taking action on the application for CPC, granted
the stay. Holland v. Collins, 950 F.2d 169 (5th Cir. 1991) (per
curiam).
In his application for CPC, Holland presents two issues.
First, he asserts that mitigating evidence of his positive
character traits required an additional instruction to the jury
2 under Penry v. Lynaugh, 492 U.S. 302 (1989). Second, he contends
that a confession was obtained from him in violation of, inter
alia, Miranda v. Arizona, 384 U.S. 436 (1966).
II.
A.
Holland presented evidence of positive character traits,
including a good work history, honesty, and courtesy. Other
evidence indicated that he was remorseful for the murder of which
he was convicted. Holland's attorney requested that additional
instructions be given to the jury in order to cure what Holland
claims is a constitutional defect in the Texas capital sentencing
statute, Tex. Code Crim. P. art. 37.071,1 as it existed at the time
of his conviction.
Specifically, Holland claims that without such instructions,
the jury was unable to give full effect to Holland's mitigating
evidence, as the evidence had value for Holland outside the second
special issue regarding future dangerousness. Thus, Holland argues
that a "rational juror could have concluded that, even if likely to
be dangerous in the future, David Holland nevertheless deserved to
1 Art. 37.071(b) reads in relevant part as follows: On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; [and] (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. . . .
3 live because of his long productive life of good deeds, loving
family and caring and respectful friends."
Holland also claims that the failure to define certain terms
in the second punishment question rendered such mitigating evidence
irrelevant. That is, he asserts that, without some standard to
guide the jury's deliberations, the standard of proof for "future
dangerousness" is so uncertain that a small amount of evidence will
support an affirmative answer to the second jury interrogatory and
that such evidence is not subject to being offset by mitigating
evidence.
As the state notes, however, all that is required is that the
jury be permitted to consider the mitigating evidence and give it
effect. As we stated in Graham, where the major thrust of a
defendant's mitigating evidence can be considered by the jury,
there is no need for additional jury instructions. Graham, 950
F.2d at 1026-30. "That is particularly appropriate in a case such
as this, where there is no {major thrustz of any of the mitigating
evidence which is not relevant to support a negative answer to the
second special issue . . . ." Id. at 1027.
The mitigating evidence presented by Holland is the same type
of evidence that we determined in Graham to be sufficiently
cognizable in the jury's consideration of the second jury
interrogatory. As in Graham, Holland's evidence of positive
attributes would have indicated to the jury that the crime was
aberrational and that he would not be a continuing threat to
society. As we observed in Graham,
4 this sort of evidence is different in kind from that involved in Penry, as its relevance to each of the special issues, and particularly the second, is entirely in the direction of a negative answer, and it has no tendency to reduce culpability for the particular crime charged in any way not encompassed within one or more of the special issues. Unlike Penry type disability evidence, which can reduce culpability where it is inferred that the crime is attributable to the disability while other similar offenders have no such "excuse," good character evidence provides no variety of "excuse." Further, absent some unusual indication of an essentially permanent adverse change in character (e.g., brain damage), to the extent that the testimony is convincing that the defendant's general character is indeed good it will also, to essentially the same extent, be convincing that he will not continue to be a threat to society.
Id. at 1033.
Important to the Graham analysis is that no additional jury
instruction is required "where no major mitigating thrust of the
evidence is substantially beyond the scope of all the special
issues." Id. at 1027. Thus, the jury was able adequately to
consider Holland's mitigating evidence under the second special
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 91-5093 _______________
DAVID LEE HOLLAND,
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 Eastern District of Texas _________________________
(May 22, 1992)
Before POLITZ, Chief Judge, KING and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
David Lee Holland makes application for a certificate of
probable cause ("CPC") to appeal the district court's denial of his
petition for writ of habeas corpus. On December 17, 1991, without
acting on the application for CPC, the panel majority granted
Holland's motion for stay of execution "pending the court's en banc
decision in Graham v. Collins . . . ." Shortly thereafter, an
opinion was issued in Graham. See Graham v. Collins, 950 F.2d 1009
(5th Cir. 1992) (en banc), petition for cert. filed (Mar. 9, 1992) (No. 91-7580). In light of Graham, and for the other reasons
hereinafter expressed, we now deny CPC and vacate the stay of
execution.
I.
Holland was convicted for the capital murder, on July 16,
1985, of two bank employees in the course of committing and
attempting to commit bank robbery. The facts and earlier proce-
dural history of the case are set forth in the comprehensive
opinion of the Texas Court of Criminal Appeals. See Holland v.
State, 761 S.W.2d 307 (Tex. Crim. App. 1988), cert. denied, 489
U.S. 1091 (1989). Holland filed a state habeas petition with the
court of criminal appeals, which denied all relief. See Ex parte
Holland, No. 70,970 (Tex. Crim. App. Oct. 16, 1991). Holland filed
his first federal habeas petition on December 11, 1991.
In a lengthy memorandum and order, the district court on
December 17, 1991, denied Holland's motion for stay of execution,
dismissed his habeas petition, and denied CPC. Also on
December 17, Holland filed a motion for stay of execution and
application for CPC with this court. That same day the panel
majority, without taking action on the application for CPC, granted
the stay. Holland v. Collins, 950 F.2d 169 (5th Cir. 1991) (per
curiam).
In his application for CPC, Holland presents two issues.
First, he asserts that mitigating evidence of his positive
character traits required an additional instruction to the jury
2 under Penry v. Lynaugh, 492 U.S. 302 (1989). Second, he contends
that a confession was obtained from him in violation of, inter
alia, Miranda v. Arizona, 384 U.S. 436 (1966).
II.
A.
Holland presented evidence of positive character traits,
including a good work history, honesty, and courtesy. Other
evidence indicated that he was remorseful for the murder of which
he was convicted. Holland's attorney requested that additional
instructions be given to the jury in order to cure what Holland
claims is a constitutional defect in the Texas capital sentencing
statute, Tex. Code Crim. P. art. 37.071,1 as it existed at the time
of his conviction.
Specifically, Holland claims that without such instructions,
the jury was unable to give full effect to Holland's mitigating
evidence, as the evidence had value for Holland outside the second
special issue regarding future dangerousness. Thus, Holland argues
that a "rational juror could have concluded that, even if likely to
be dangerous in the future, David Holland nevertheless deserved to
1 Art. 37.071(b) reads in relevant part as follows: On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; [and] (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. . . .
3 live because of his long productive life of good deeds, loving
family and caring and respectful friends."
Holland also claims that the failure to define certain terms
in the second punishment question rendered such mitigating evidence
irrelevant. That is, he asserts that, without some standard to
guide the jury's deliberations, the standard of proof for "future
dangerousness" is so uncertain that a small amount of evidence will
support an affirmative answer to the second jury interrogatory and
that such evidence is not subject to being offset by mitigating
evidence.
As the state notes, however, all that is required is that the
jury be permitted to consider the mitigating evidence and give it
effect. As we stated in Graham, where the major thrust of a
defendant's mitigating evidence can be considered by the jury,
there is no need for additional jury instructions. Graham, 950
F.2d at 1026-30. "That is particularly appropriate in a case such
as this, where there is no {major thrustz of any of the mitigating
evidence which is not relevant to support a negative answer to the
second special issue . . . ." Id. at 1027.
The mitigating evidence presented by Holland is the same type
of evidence that we determined in Graham to be sufficiently
cognizable in the jury's consideration of the second jury
interrogatory. As in Graham, Holland's evidence of positive
attributes would have indicated to the jury that the crime was
aberrational and that he would not be a continuing threat to
society. As we observed in Graham,
4 this sort of evidence is different in kind from that involved in Penry, as its relevance to each of the special issues, and particularly the second, is entirely in the direction of a negative answer, and it has no tendency to reduce culpability for the particular crime charged in any way not encompassed within one or more of the special issues. Unlike Penry type disability evidence, which can reduce culpability where it is inferred that the crime is attributable to the disability while other similar offenders have no such "excuse," good character evidence provides no variety of "excuse." Further, absent some unusual indication of an essentially permanent adverse change in character (e.g., brain damage), to the extent that the testimony is convincing that the defendant's general character is indeed good it will also, to essentially the same extent, be convincing that he will not continue to be a threat to society.
Id. at 1033.
Important to the Graham analysis is that no additional jury
instruction is required "where no major mitigating thrust of the
evidence is substantially beyond the scope of all the special
issues." Id. at 1027. Thus, the jury was able adequately to
consider Holland's mitigating evidence under the second special
issue even if, arguably, such evidence had some mitigating
relevance beyond the scope of the Texas special issues. Similarly,
we noted in Graham that
it appears to us that the principal mitigating thrust of all this evidence is to suggest that the [murder was] aberrational and atypical of Graham's true character and that he thus had potential for rehabilitation and would not be a continuing threat to society. As such, the mitigating force of this evidence can adequately be given effect under the second special issue.
Id. at 1032.
B.
The above-discussed evidence is all the evidence that, prior
5 to Graham, Holland claimed was mitigating. Now, in a post-Graham
brief requested by the court, he asserts, as mitigating evidence,
the fact that he arguably suffers from antisocial personality
disorder (APD). At the punishment phase, the state sought to
establish that Holland suffers from APD and used it to support an
affirmative answer to the issue on future dangerousness. Holland,
on the other hand, argued to the jury that he did not suffer at all
from APD.
Because of this diametric reversal of position, Holland is
raising an argument for the first time on appeal, a tactic
condemned by, e.g., Buxton v. Lynaugh, 879 F.2d 140, 148 (5th Cir.
1989), cert. denied, 110 S. Ct. 3295 (1990). Particularly in
view of the fact that, prior to the filing of this latest brief,
Holland always has contended that the diagnosis of APD was
erroneous, he cannot, in the light of an unfavorable decision in
Graham, now make an about-face and attempt, for the first time on
appeal,2 to present APD as mitigating evidence of the sort that is
cognizable under Penry.
IV.
As the only other issue presented in his application for CPC,
Holland argues that the state secured a confession from him in the
absence of a valid waiver of his right to remain silent. We find
this issue to be without merit and adopt the explanation set forth
2 Holland did not even raise the issue regarding APD in his application for CPC but, instead, waited until his execution had been stayed and he had been given an opportunity to file a post-Graham brief.
6 in part VI of the dissenting opinion to the panel majority's order
granting stay. See Holland v. Collins, 950 F.2d at 172-73 (Smith,
J., dissenting).
III.
In light of Graham, Holland has failed to make a "substantial
showing of the denial of a federal right." Barefoot v. Estelle,
463 U.S. 880, 893 (1983). He has not "demonstrate[d] that the
issues are subject to debate among jurists of reason; that a court
could resolve the issues in a different manner; or that the
questions are worthy of encouragement to proceed further." Byrne
v. Butler, 845 F.2d 501, 505 (5th Cir. 1988) (citing Barefoot, 463
U.S. at 893 n.4). Accordingly, his application for CPC must be,
and is hereby, DENIED. The stay of execution previously entered by
this court is hereby VACATED.