IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-7272 _____________________
JUSTIN LEE MAY,
Petitioner-Appellant,
v.
JAMES A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellee.
_________________________________________________________________
On Application for a Certificate of Probable Cause and for a Stay of Execution _________________________________________________________________ (May 6, 1992)
Before KING, JOLLY, and SMITH, Circuit Judges.
PER CURIAM:
Justin Lee May is scheduled to be executed before dawn on
May 7, 1992. On February 26, we affirmed the denial of habeas
relief in his third federal habeas corpus petition. May v.
Collins, 955 F.2d 299 (5th Cir. 1992), petition for cert. and for
stay of execution filed, No. 91-7832 (U.S. April 2, 1992). On
April 29, he filed a motion for relief from judgment under Rule
60(b) of the Federal Rules of Civil Procedure and a motion for a
stay of execution. The district court denied the Rule 60(b)
motion, denied a stay, and denied a certificate of probable cause to appeal. May has applied to this court for a certificate of
probable cause and for a stay of execution.
I.
The facts and long procedural history of this case can be
found in our most recent opinion. May, 955 F.2d at 301-307. The
facts relevant to this appeal are as follows: In support of his
third state habeas petition, May submitted affidavits in which
two persons who had testified at trial, Richard Miles and Oren
Howard, stated that their testimony was false and that
prosecutors used it knowing it was false. May used this "newly
discovered evidence" to argue that his conviction was obtained in
violation of the Sixth, Eighth and Fourteenth Amendments.1 The
State countered with affidavits in which the police and
prosecutors involved in the case maintained that they did not
knowingly use false testimony. The state judge, without holding
a hearing, found that the Miles and Howard affidavits were
unworthy of belief and that the State committed no constitutional
violations. The Texas Court of Criminal Appeals affirmed.
May filed his third federal habeas petition, raising the
claims rejected by the state courts. The district court applied
the presumption of correctness, 28 U.S.C. § 2254(d), to the state
1 The key claims were that the prosecution knowingly used false testimony in violation of Giglio v. United States, 405 U.S. 150 (1972), and Mooney v. Holohan, 294 U.S. 103 (1935) (per curiam), and that the prosecution failed to disclose material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). May, 955 F.2d at 305.
2 court's factual findings and denied relief. We affirmed,
rejecting May's argument that the state court's failure to hold a
live evidentiary hearing was an inadequate factfinding procedure
which rendered the presumption of correctness inapplicable under
§ 2254(d)(2) or (3). May, 955 F.2d at 314 & 315 n.19. May's
next action in the district court was to file the motion which is
the subject of the instant appeal.
II.
Under Fed. R. App. P. 22(b), the district court's refusal to
grant a certificate of probable cause precludes us from
entertaining May's appeal unless we find that May has made a
"'substantial showing of the denial of [a] federal right.'"
Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (quoting Stewart v.
Beto, 454 F.2d 268, 270 n.2 (5th Cir. 1971), cert. denied, 406
U.S. 925 (1972)). To succeed in this showing, May "must
demonstrate that the issues are debatable among jurists of
reason; that a court could resolve the issues [in a different
manner]; or that the questions are adequate to deserve
encouragement to proceed further." Barefoot, 463 U.S. at 893 n.4
(citations omitted). As we explain below, the issue presented on
appeal is not controversial. We decline to grant either a CPC or
a stay of execution.
May's Rule 60(b) motion was predicated on remarks made on a
television program entitled "City Under Siege" by the state trial
3 judge who presided over both May's trial and third state habeas
petition. During the program, the judge stated:
I don't think the affidavits are probably worth the paper they're written on. . . . There was an eyewitness that was going into the Western Auto store right before the shot was heard, and May comes walking out of the Western Auto store, with a gun.
May argued that this newly discovered evidence entitled him to
relief under Rule 60(b)(2) or 60(b)(6). He reasoned that,
because there was no eyewitness to the shooting, the judge's
statement showed the state court factfinding procedures to be
inadequate; the federal district court's basis for applying the
presumption of correctness having been eliminated, he contended,
he was now entitled to a federal evidentiary hearing.
In denying relief, the district court observed that the
state trial judge's findings of fact and conclusions of law do
not indicate any reliance on the eyewitness. Moreover, the court
held, the broadcast was a collection of sound bites and the
juxtaposition of the statements quoted by May does not suggest
that the trial judge relied on the "phantom witness" in
determining that the affidavits were not worthy of belief. At
most, the program indicated that the judge was confused about the
role of the eyewitness.
We find that the district court acted well within its
discretion to deny the motion. Streetman v. Lynaugh, 835 F.2d
1521, 1524 (5th Cir. 1988). The factual question in state habeas
was whether the Miles and Howard affidavits were true. The judge
found that they were not, and so concluded that May could not
4 establish a constitutional violation. The same factual question
was presented in federal habeas, only the district court was not
required to retry the facts unless the state procedures were
inadequate. Even viewing the state judge's statement on the
television program in the light most favorable to May, it cannot
possibly establish that the state court's procedures were
inadequate because it has absolutely nothing to do with that
court's factfindings. Assuming that the judge was confused about
the role of the eyewitness at the time he ruled on the petition,
such confusion was unrelated to the task of assessing the
credibility of the Miles and Howard affidavits in light of the
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. 92-7272 _____________________
JUSTIN LEE MAY,
Petitioner-Appellant,
v.
JAMES A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellee.
_________________________________________________________________
On Application for a Certificate of Probable Cause and for a Stay of Execution _________________________________________________________________ (May 6, 1992)
Before KING, JOLLY, and SMITH, Circuit Judges.
PER CURIAM:
Justin Lee May is scheduled to be executed before dawn on
May 7, 1992. On February 26, we affirmed the denial of habeas
relief in his third federal habeas corpus petition. May v.
Collins, 955 F.2d 299 (5th Cir. 1992), petition for cert. and for
stay of execution filed, No. 91-7832 (U.S. April 2, 1992). On
April 29, he filed a motion for relief from judgment under Rule
60(b) of the Federal Rules of Civil Procedure and a motion for a
stay of execution. The district court denied the Rule 60(b)
motion, denied a stay, and denied a certificate of probable cause to appeal. May has applied to this court for a certificate of
probable cause and for a stay of execution.
I.
The facts and long procedural history of this case can be
found in our most recent opinion. May, 955 F.2d at 301-307. The
facts relevant to this appeal are as follows: In support of his
third state habeas petition, May submitted affidavits in which
two persons who had testified at trial, Richard Miles and Oren
Howard, stated that their testimony was false and that
prosecutors used it knowing it was false. May used this "newly
discovered evidence" to argue that his conviction was obtained in
violation of the Sixth, Eighth and Fourteenth Amendments.1 The
State countered with affidavits in which the police and
prosecutors involved in the case maintained that they did not
knowingly use false testimony. The state judge, without holding
a hearing, found that the Miles and Howard affidavits were
unworthy of belief and that the State committed no constitutional
violations. The Texas Court of Criminal Appeals affirmed.
May filed his third federal habeas petition, raising the
claims rejected by the state courts. The district court applied
the presumption of correctness, 28 U.S.C. § 2254(d), to the state
1 The key claims were that the prosecution knowingly used false testimony in violation of Giglio v. United States, 405 U.S. 150 (1972), and Mooney v. Holohan, 294 U.S. 103 (1935) (per curiam), and that the prosecution failed to disclose material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). May, 955 F.2d at 305.
2 court's factual findings and denied relief. We affirmed,
rejecting May's argument that the state court's failure to hold a
live evidentiary hearing was an inadequate factfinding procedure
which rendered the presumption of correctness inapplicable under
§ 2254(d)(2) or (3). May, 955 F.2d at 314 & 315 n.19. May's
next action in the district court was to file the motion which is
the subject of the instant appeal.
II.
Under Fed. R. App. P. 22(b), the district court's refusal to
grant a certificate of probable cause precludes us from
entertaining May's appeal unless we find that May has made a
"'substantial showing of the denial of [a] federal right.'"
Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (quoting Stewart v.
Beto, 454 F.2d 268, 270 n.2 (5th Cir. 1971), cert. denied, 406
U.S. 925 (1972)). To succeed in this showing, May "must
demonstrate that the issues are debatable among jurists of
reason; that a court could resolve the issues [in a different
manner]; or that the questions are adequate to deserve
encouragement to proceed further." Barefoot, 463 U.S. at 893 n.4
(citations omitted). As we explain below, the issue presented on
appeal is not controversial. We decline to grant either a CPC or
a stay of execution.
May's Rule 60(b) motion was predicated on remarks made on a
television program entitled "City Under Siege" by the state trial
3 judge who presided over both May's trial and third state habeas
petition. During the program, the judge stated:
I don't think the affidavits are probably worth the paper they're written on. . . . There was an eyewitness that was going into the Western Auto store right before the shot was heard, and May comes walking out of the Western Auto store, with a gun.
May argued that this newly discovered evidence entitled him to
relief under Rule 60(b)(2) or 60(b)(6). He reasoned that,
because there was no eyewitness to the shooting, the judge's
statement showed the state court factfinding procedures to be
inadequate; the federal district court's basis for applying the
presumption of correctness having been eliminated, he contended,
he was now entitled to a federal evidentiary hearing.
In denying relief, the district court observed that the
state trial judge's findings of fact and conclusions of law do
not indicate any reliance on the eyewitness. Moreover, the court
held, the broadcast was a collection of sound bites and the
juxtaposition of the statements quoted by May does not suggest
that the trial judge relied on the "phantom witness" in
determining that the affidavits were not worthy of belief. At
most, the program indicated that the judge was confused about the
role of the eyewitness.
We find that the district court acted well within its
discretion to deny the motion. Streetman v. Lynaugh, 835 F.2d
1521, 1524 (5th Cir. 1988). The factual question in state habeas
was whether the Miles and Howard affidavits were true. The judge
found that they were not, and so concluded that May could not
4 establish a constitutional violation. The same factual question
was presented in federal habeas, only the district court was not
required to retry the facts unless the state procedures were
inadequate. Even viewing the state judge's statement on the
television program in the light most favorable to May, it cannot
possibly establish that the state court's procedures were
inadequate because it has absolutely nothing to do with that
court's factfindings. Assuming that the judge was confused about
the role of the eyewitness at the time he ruled on the petition,
such confusion was unrelated to the task of assessing the
credibility of the Miles and Howard affidavits in light of the
police and prosecutors' affidavits and in light of Miles' and
Howard's trial testimony. As the district judge recognized, the
state judge's ultimate findings and conclusions were not in any
way dependent on a perfectly accurate recollection of the role of
the eyewitness.
Moreover, the judge's statement does not necessarily
indicate that he depended on his belief about the eyewitness in
determining the truthfulness of the affidavits. The television
segment was edited, so the two sentences quoted above did not
constitute one continuous statement. As the district court
noted, the segment could give the impression that the trial judge
thought the affidavits were valueless because Miles' and Howard's
trial testimony was corroborated by an eyewitness to the crime,
but contrary inferences are quite reasonable. The district court
did not, as May argues on appeal, hold him to "an unjustifiably
5 high burden of proof." Finding that the segment led to the
reasonable inference that the judge did not base his decision on
the affidavits on the eyewitness, the court exercised its
discretion to determine that May's evidence did not warrant
relief under Rule 60(b).
Finally, May has built this entire motion on what seems to
us a false characterization of the state judge's belief about the
eyewitness. Robert Dohle, a former Freeport police officer,
testified that he saw a man acting suspiciously outside the
Western Auto store in Freeport shortly before 6:00 p.m. on the
evening of the murders. Shortly after 6:00, Frank and Jeanetta
Murdaugh were found dead in the store. Dohle paid close
attention to the man and later gave police a detailed description
which was consistent with May's physical characteristics. Dohle
did not see May come out of the store after the murders, but the
trial judge's statement does not indicate that he thought Dohle
had seen May exit the store. Rather, the statement suggests that
the judge was referring to the eyewitness who saw May before he
entered the store. Contrary to the impression which May seeks to
convey, the judge did not harbor a wholly fanciful belief in a
phantom witness to the crime.
For the foregoing reasons, May's application for a
certificate of probable cause and for a stay of execution are
DENIED.