IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10263 _____________________
DORSIE LEE JOHNSON BEY,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director, Texas Department of Criminal Justice, Institutional Division
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Northern District of Texas (5:94-CV-0020-C)
_________________________________________________________________ December 27, 1995 Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM*:
Dorsie Lee Johnson-Bey, Jr., a Texas prisoner convicted of
capital murder and sentenced to death, appeals from the district
court's judgment dismissing with prejudice his petition for the
writ of habeas corpus.
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. I. BACKGROUND
Dorsie Lee Johnson-Bey, Jr. ("Johnson-Bey") murdered Jack
Huddleston in Scurry County, Texas, on March 23, 1985. The
factual circumstances of Johnson-Bey's crime, as summarized by
the Texas Court of Criminal Appeals, are as follows:
In the early morning hours of Sunday, March 23, 1986, [Johnson-Bey] and his accomplice, Amanda Miles, decided to commit a robbery at the Allsup's convenience store in Snyder[, Texas]. After planning the crime, deciding that there should be no witnesses, and waiting for the store to clear of customers, the pair entered the store. On the pretext of wanting a particular item, [Johnson-Bey] lured Huddleston, the clerk, back to the cooler where [Johnson-Bey told him that] this was a robbery and to lie face down on the floor. [Johnson- Bey] then shot the clerk in the back of the neck with a .25 caliber pistol, killing him. Amanda Miles emptied out the cash drawer taking approximately $160.00 (one hundred sixty dollars.) Two cartons of cigarettes were also taken.
[Johnson-Bey] was arrested in April for a subsequent robbery and attempted murder of a store clerk in the neighboring town of Colorado City. It was in the course of investigating this latter offense that [Johnson-Bey] confessed to the capital offense committed in Snyder.
Johnson v. State, 773 S.W.2d 322, 324 (Tex. Cr. App. 1989).
Johnson-Bey was indicted for capital murder on May 29, 1986;
he was tried by jury and convicted of capital murder on November
12, 1986, and, following the presentation of evidence related to
punishment, he was sentenced to death on November 14, 1986. On
direct appeal, the Texas Court of Criminal Appeals affirmed
Johnson-Bey's conviction and sentence on June 21, 1989. Johnson
v. State, 773 S.W.2d 322 (Tex. Crim. App. 1989). The United
States Supreme Court granted Johnson-Bey's petition for a writ of
2 certiorari, and affirmed his conviction and sentence. Johnson v.
Texas, 113 S. Ct. 2658 (1993).
On November 9, 1993, Johnson-Bey initiated a state habeas
action pursuant to Tex. Code. Crim. Proc. Ann. art. 11.07 by
filing an application for state habeas relief in the convicting
state district court. The Texas Court of Criminal Appeals denied
habeas relief, on the recommendation of the trial court's
Findings of Fact and Conclusions of Law, on January 24, 1993.
Johnson-Bey initiated a second state habeas action, raising two
additional grounds, on January 18, 1994. The Court of Criminal
Appeals again denied relief on January 26, 1994.
Also on January 26, Johnson-Bey filed a federal petition for
the writ of habeas corpus in the United States District Court for
the Northern District of Texas, Lubbock Division. The case was
referred to a magistrate judge, who filed Findings of Fact and
Conclusions of Law on December 14, 1994, recommending that habeas
corpus relief be denied. On January 17, 1995, the district court
entered an order adopting the magistrate judge's recommendation,
which dismissed Johnson-Bey's habeas petition with prejudice and
denied all relief. Johnson-Bey filed a motion to alter or amend
the judgment, which the district court denied on February 15,
1995. Johnson-Bey then filed a timely notice of appeal to this
court. The district court granted a certificate of probable
cause.
II. STANDARD OF REVIEW
3 In considering a federal habeas corpus petition presented by
a petitioner in state custody, federal courts must accord a
presumption of correctness to state court factual findings. See
28 U.S.C. § 2254(d); Barnard v. Collins, 958 F.2d 634, 636 (5th
Cir. 1992), cert. denied, 113 S. Ct. 990 (1993). We review the
district court's findings of fact for clear error, but review any
issues of law de novo. Barnard, 958 F.2d at 636.
III. DISCUSSION
Johnson-Bey alleged thirty-seven grounds of error in his
federal petition for the writ of habeas corpus, which were each
addressed in the magistrate judge's findings of fact and
conclusions of law. On appeal, Johnson-Bey raises only five
points of error, namely, that: (1) the district court erred in
denying an evidentiary hearing on Johnson-Bey's claim that Juror
Barbee was biased against him and should have been dismissed for
cause; (2) the district court erred in refusing to grant habeas
relief because the state trial court failed to excuse Jurors
Kiker, Barbee, and Lammert after they declared that they would
not consider youth as a mitigating circumstance; (3) the district
court erred in rejecting the claim that the prosecutor's improper
argument at the sentencing phase deprived Johnson-Bey of his
Eighth and Fourteenth Amendment rights; (4) the district court
erred in failing to address Johnson-Bey's claim that he was
denied the right to counsel at his pre-trial arraignments; and
(5) the denial of counsel at the arraignments violates Johnson-
4 Bey's Sixth Amendment rights. We will address each argument in
turn.
A. Evidentiary Hearing on Juror Bias
Johnson-Bey argues that the district court erred in denying
an evidentiary hearing on his claim that Juror Barbee
intentionally failed to disclose two prior instances of jury
service, indicating bias. The magistrate judge rejected this
claim without an evidentiary hearing, finding that although
Barbee failed to remember accurately the details of his prior
jury service, "nothing in his voir dire examination [] in any way
indicates he was secreting or hiding information."
To receive a federal evidentiary hearing, a habeas corpus
petitioner must allege facts that, if proved, would entitle him
to relief. Wilson v. Butler, 825 F.2d 879, 880 (5th Cir. 1987),
cert. denied, 484 U.S. 1079 (1988). "[T]he remedy for
allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual bias." Smith v.
Phillips, 455 U.S. 209, 215 (1982). To obtain relief on a claim
that a venire member concealed information, "a party must first
demonstrate that a juror failed to answer honestly a material
question on voir dire and then further show that a correct
response would have provided a valid basis for challenge for
cause." McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.
548, 556 (1984); United States v. Scott, 854 F.2d 697, 698 (5th
Cir. 1988) (applying the McDonough test in a criminal case).
5 We conclude that the district court did not err in denying
an evidentiary hearing on this claim because, even if Johnson-
Bey's allegations are true, Barbee would not have been subject to
a challenge for cause on the basis of the omitted information.
In his jury questionnaire and upon voir dire, Juror Barbee stated
that he had served as foreman on a criminal jury in an assault
case in 1971, but he also stated on voir dire that he did not
remember all the details about his service. Johnson-Bey alleges
that court records reveal that Barbee had served on a jury in a
murder case, and had served as foreman of a jury in a robbery
case, in 1970 and 1972, respectively. The magistrate judge found
that Barbee had not intentionally concealed the additional jury
service, but merely had forgotten the details of his service, as
he stated in voir dire. This factual finding is not clearly
erroneous. See Barnard v. Collins, 958 F.2d 634, 636 (5th Cir.
1992), cert. denied, 113 S. Ct. 990 (1993). Furthermore, even if
Johnson-Bey could prove at an evidentiary hearing that Barbee
deliberately concealed his service on a murder jury, prior
service on a murder jury and as foreman of a robbery jury would
not have supported a challenge for cause. See Kirkland v. State,
786 S.W.2d 557, 559 (Tex. App.--Austin 1990, no pet.) ("It is
well settled that it is not a ground for disqualification that
prospective jurors have served on a jury in a case against
another defendant charged with an offense of the same
character."); Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon
1989).
6 Johnson-Bey additionally argues that we should presume bias
solely from the alleged fact that Barbee deliberately concealed
material information, relying on, inter alia, United States v.
Scott, 854 F.2d 697 (5th Cir. 1988), and Burton v. Johnson, 948
F.2d 1150 (10th Cir. 1991). We again note that the district
court's factual finding that Barbee simply forgot, rather than
intentionally concealed, his jury service history is not clearly
erroneous.
Because Johnson-Bey does not allege facts which, if true,
would entitle him to habeas relief, we affirm the district
court's denial of habeas relief on this ground without an
evidentiary hearing.
B. Voir Dire: Youth as a Mitigating Factor
habeas relief because the state trial court refused to excuse
Jurors Barbee, Lammert, and Kiker for cause after they declared
during voir dire that they would not consider youth as a
mitigating factor in answering the special issues at the
sentencing phase. Johnson-Bey contends that under the rule
announced in Morgan v. Illinois, 504 U.S. 719 (1992),1
prospective jurors must be willing to consider particular
evidence, such as a defendant's age, as a mitigating factor in
1 In Morgan, the Court held that the Fourteenth Amendment requires that a juror who will automatically vote for the death penalty in every case in which the defendant is found guilty shall be excused for cause. 504 U.S. 719, 729 (1992).
7 sentencing. We need not reach the question posed by Johnson-Bey-
-whether jurors are constitutionally required to consider
particular evidence as mitigating--because the state habeas court
made factual findings that Barbee, Lammert, and Kiker had
indicated in voir dire that they could consider youth as a
mitigating factor. These factual findings are entitled to a
presumption of correctness under 28 U.S.C. § 2254(d).2
2 Section 2254(d) provides:
In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit-- (1) that the merits of the factual dispute were not resolved in the State court hearing; (2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; (3) that the material facts were not adequately developed at the State court hearing; (4) that the State court lacked jurisdiction . . . (5) that [the State court failed to appoint counsel for an indigent applicant] . . . (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or (7) that the applicant was otherwise denied due process of law in the State court proceeding; (8) or unless . . . the Federal court on a consideration of [the relevant] part of the record as a whole concludes that such factual determination is not fairly supported by the record.
28 U.S.C. § 2254(d).
8 Wainwright v. Witt, 469 U.S. 412, 426 (1985); Patton v. Yount,
467 U.S. 1025, 1036 (1984).
Johnson-Bey contends that the § 2254(d) presumption of
correctness should not apply to the state court's findings in
this case for three reasons: (1) because the state habeas court
findings were made seven years after the trial, the state court
was not in a better position to evaluate the credibility and
demeanor of the jurors than is this court; (2) Johnson-Bey was
denied a fair opportunity to challenge these findings; and (3)
the findings are not supported by the record. We reject these
contentions.
First, Johnson-Bey's argument that the presumption of
correctness is inapplicable because the factual findings were not
contemporaneous with the challenges for cause is incorrect.
Although one reason state court findings are accorded a
presumption of correctness is that the state trial judge is in a
better position to judge the credibility and demeanor of
witnesses, the § 2254(d) presumption of correctness also embodies
principles of federalism. Sumner v. Mata, 449 U.S. 539, 547
(1981). These principles support the application of the
presumption of correctness to state appellate court findings made
on the basis of the trial court record, as well as state trial
court findings. Id. Furthermore, that the factual findings were
made by the state court during the habeas proceeding rather than
contemporaneous with voir dire does not render the presumption of
correctness inapplicable. See Williams v. Lynaugh, 809 F.2d
9 1063, 1066 (5th Cir. 1987) (according a presumption of
correctness to factual findings that juror was properly excused
for cause made by the Texas Court of Criminal Appeals upon habeas
review), cert. denied, 481 U.S. 1008 (1987).
Johnson-Bey next contends that the factual findings are not
entitled to a presumption of correctness because he was denied
any fair opportunity to challenge the findings, invoking the
exception of § 2254(d)(6). This contention lacks merit.
Johnson-Bey had an opportunity to challenge the state court's
findings in the state habeas proceeding, which satisfies the
requirement that the applicant receive a full, fair and adequate
hearing in the state court. 28 U.S.C. § 2254(d)(6); see May v.
Collins, 955 F.2d 299, 310 (5th Cir. 1992) (holding that a state
court affords a full, fair, and adequate hearing so long as the
state and the petitioner are parties to the proceeding and
written findings are made, citing Sumner v. Mata, 449 U.S. 539
(1981)), cert. denied, 504 U.S. 901 (1992).
Finally, Johnson asserts that the state court's findings
that Lammert, Barbee, and Kiker could consider youth as a
mitigating factor were not supported by the record, citing brief
portions of each juror's voir dire. However, section 2254(d)
provides an exception to the presumption of correctness only if
the federal court determines that the state court factual
findings were not supported by the record as a whole. 28 U.S.C.
§ 2254(d)(8). We conclude that the record provides ample support
for the state court's findings. When first asked whether he
10 thought the age of a person charged was a factor to consider in
answering special issue number two, concerning future
dangerousness, Barbee answered "I don't think age would make any
difference." However, upon further questioning, Barbee stated
that people definitely can change, and he agreed that younger
people will sometimes do things that they might not do in the
future. Lammert stated that individuals can change, that people
do things when they are young that they would in the future
consider wrong and never do again, and that he would not now do
some of the things he did as a teenager. Although he also stated
that he did not consider a nineteen-year-old to be a "youth", he
reaffirmed that he believed that "people do change in time."
Kiker stated that she believed a nineteen-year-old with the
maturity of a twelve-year-old should be treated the same for
punishment purposes as a nineteen-year-old with the maturity of a
twenty-five-year-old. However, she also testified that: "Yes
people can change. What they have been like as a young adult
does not necessarily mean that that's the way they'll be in their
older adult years." Therefore, the record of these three
jurors' voir dire testimony as a whole supports the state court's
factual findings that these jurors could consider youth as a
mitigating factor. We affirm the district court's judgment
denying habeas relief on the ground that Jurors Barbee, Lammert
and Kiker refused to consider youth as a mitigating factor in the
punishment phase.
11 C. Prosecutor's Argument
Johnson-Bey contends that the district court erred in
denying habeas relief on the basis that comments made by the
prosecutor in closing argument during the sentencing phase
violated his Eighth and Fourteenth Amendment Rights. During the
course of the prosecutor's closing argument at sentencing, the
following exchange took place:
MR. ARMSTRONG (the prosecutor): First of all, you will recall or you should recall, that even if somebody voluntarily took drugs or voluntarily became intoxicated, that is not a defense. That does not excuse nor make or change the fact that he is guilty of capital murder or lessen the punishment.
MR. CONARD (the defense counsel): Your Honor, I object to that statement in that it implies to the Jury that they cannot consider that as a mitigating factor when, in fact, that is the law.
THE COURT: Of course, what he says is true, but the Jury may consider that as a mitigating factor if they wish.
MR. ARMSTRONG: Thank you, Your Honor.
MR. CONARD: Is my objection overruled?
THE COURT: Yes, overruled.
Johnson-Bey alleges that the prosecutor's argument misstated the
law, that the court endorsed the misstatement of the law, and
that these statements violated his right to due process by
preventing the jury from considering voluntary intoxication as a
mitigating factor.
Improper prosecutorial argument does not present a
constitutional claim cognizable on federal habeas review unless
such argument was "so prejudicial that the petitioner's state
12 court trial was rendered fundamentally unfair within the meaning
of the Fourteenth Amendment Due Process Clause."3 Ward v.
Whitley, 21 F.3d 1355, 1364 (5th Cir. 1994), cert. denied, 115 S.
Ct. 1257 (1995); Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir.
1986); see Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
To establish that a prosecutor's remarks are fundamentally
unfair, "the petitioner must demonstrate either persistent and
pronounced misconduct or that the evidence was so insubstantial
that (in probability) but for the remarks no conviction [or death
sentence] would have occurred." Byrne v. Butler, 845 F.2d 501,
507 (5th Cir. 1988), cert. denied, 487 U.S. 1242 (1988); Felde,
795 F.2d at 403.
Assuming without deciding that the prosecutor's argument--
that voluntary intoxication could not lessen Johnson-Bey's
punishment--was improper, nevertheless we conclude that this
improper argument did not render Johnson-Bey's trial or
sentencing fundamentally unfair. First, the challenged
3 Johnson-Bey contends that the Boyde v. California, 494 U.S. 370 (1990), standard for reviewing jury instructions should apply. He argues that this claim is properly reviewable as a challenge to an objectionable jury instruction because he claims that the court's comments "endorsed" the prosecution's misstatement of the law. This contention lacks merit. Johnson- Bey does not challenge any part of the court's charge to the jury. He does not claim that the trial court gave erroneous instructions or failed to instruct the jury in regard to any matter. Moreover, in response to defense counsel's objection, the court stated that the jury may consider voluntary intoxication as mitigating evidence, if they wish. As found by the district court, "this claim is one directed solely to the prosecutor's closing argument at the Sentencing phase." Hence, we shall apply the standard for reviewing improper prosecutorial argument.
13 prosecutorial argument is an isolated statement, not repeated or
persistent misconduct. The ample evidence presented in this case
regarding guilt and punishment was not so insubstantial that but
for this one remark the death sentence would not have been
imposed. See Byrne, 845 F.2d at 508. Second, the prosecutor's
statement did not manipulate or misstate the evidence, nor did it
implicate a specifically guaranteed right of the accused, such as
the privilege against self-incrimination. See Darden v.
Wainwright, 477 U.S. 168, 181 (1986). Additionally, the court
instructed the jury that counsel's argument was not evidence, and
that it should follow the law as presented in the jury charge.
Finally, the prosecutor's statement did not prevent the jury
from considering voluntary intoxication as a mitigating factor.
Johnson-Bey was allowed to introduce evidence of voluntary
intoxication. The jury charge instructed the jury to consider
all evidence presented for either aggravating or mitigating
purposes. Immediately after the challenged statement was made,
although the court overruled defense counsel's objection, it
informed the jury that they could consider evidence of voluntary
intoxication as a mitigating factor.
In sum, the challenged comment did not render Johnson-Bey's
trial or sentencing fundamentally unfair. Therefore, we affirm
the district court's denial of habeas relief on this claim.
D. Denial of Counsel at a Critical Stage
14 Finally, Johnson-Bey argues that the district court erred in
failing to address his claim that he was denied his Sixth
Amendment right to counsel at his pre-trial arraignments.
Additionally, he maintains that this court should grant habeas
relief because the state trial court denied his right to counsel
at a critical stage of the proceedings by permitting him to enter
uncounseled "not guilty" pleas at two pre-trial arraignments
without first securing a valid waiver of the right to counsel,
relying on White v. Maryland, 373 U.S. 59 (1963).
We need not decide whether the district court erred in
failing to address Johnson-Bey's White v. Maryland claim, because
Fifth Circuit precedent forecloses this claim on the merits.
Cadena v. Estelle, 611 F.2d 1385 (5th Cir.), cert. denied, 449
U.S. 848 (1980). In Cadena, we determined that, even if a Texas
arraignment is a critical stage of the proceeding, "a defendant
may question failure to provide counsel only where potential
substantial prejudice inheres." Id. at 1386. The only defense
waived by a not guilty plea at a Texas arraignment is "that the
name on the indictment [is] not appellant's true name--a defense
which [Johnson-Bey] has never suggested he might have asserted."
Id. at 1385. Therefore, Johnson-Bey cannot challenge the state
trial court's failure to provide counsel because no prejudice
resulted from such failure.4
4 Johnson-Bey urges this court to distinguish Cadena on the basis that "death is different." We are not inclined to believe that death is different with respect to the effects of a not guilty plea at a Texas pre-trial arraignment. However, even if we determined that a different rule should apply in capital
15 III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court's
judgment dismissing Johnson-Bey's petition and denying all habeas
relief.
cases, such a holding would create a "new rule," which we cannot do in reviewing a petition for habeas corpus. See Teague v. Lane, 489 U.S. 288 (1989).