IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT ________________________
No. 97-20599 ________________________
JAMES RONALD MEANES,
Petitioner-Appellee,
versus
GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Texas ________________________ April 14, 1998
Before KING, SMITH, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
The respondent-appellant, Gary L. Johnson, the Director of the
Texas Department of Criminal Justice, Institutional Division,
appeals the district court’s grant of a writ of habeas corpus to
James Ronald Meanes, a Texas death row inmate convicted of capital
murder. For the reasons set forth below, we reverse and render.
FACTUAL BACKGROUND
On April 21, 1981, around noon, an armored van driven by
Olivero Flores, who was accompanied by Dorothy Wright, pulled into
the Sage grocery store parking lot on the Gulf Freeway in Houston,
Texas, to pick up a deposit. As Flores exited the van and walked
around to the front of the store, the petitioner, Ronald Meanes, who is African-American, and his co-defendant, Carlos Santana,1 who
is Hispanic, exited a car parked near the front of the store and
opened the trunk. Wright, still in the back of the van, then heard
a “black voice” tell Flores to halt in a loud, demanding tone.
Flores, who was carrying money bags in his left hand and had a
weapon on his right hip, turned to face the men but made no move
toward his weapon. As Flores turned, two or three shots rang out,
and Flores fell to the ground, “flopping like a chicken.” Although
no one saw who shot Flores, it was determined that Flores was
killed by a bullet from either a rifle or a pistol.
One of the men, armed with a pistol, then approached Flores,
bent over him, and began firing shots at the van, about three
seconds after the original shots. The same voice that Wright heard
tell Flores to halt screamed, “bitch, open the door” at Wright, who
was still in the back of the armored van. After more shots were
fired at the van, the men broke the glass on the driver’s side of
the van, and Meanes entered the van. Meanes then climbed over the
driver’s seat to the passenger’s side, looked through the wire
screen to the back of the truck where Wright was lying on the
floor, poked a pistol through the screen, and said, with the same
voice that she had heard before, “Get up bitch, right now or you’re
dead.” Wright then opened the back of the van and walked toward
the store with her hands raised. The two men then left in the van,
with the man with the pistol as the passenger.
Meanes and his co-defendant were captured soon thereafter in
1 Mr. Santana was executed in 1993 for his role in this robbery/murder.
- 2 - a cane patch a few blocks from the scene of the robbery. Upon
questioning, Meanes revealed the location of the weapons used in
the robbery.
PROCEDURAL BACKGROUND
On July 22, 1981, Meanes was convicted of capital murder after
a jury trial. On July 23, 1981, after a separate punishment
hearing, the jury answered affirmatively the two special issues
presented to it pursuant to the version of article 37.071 of the
Texas Code of Criminal Procedure then in effect. In accordance
with state law, the trial court then sentenced Meanes to death. On
September 14, 1983, the Texas Court of Criminal Appeals affirmed
both Meanes’s conviction and sentence. Meanes v. State, 668 S.W.2d
366 (Tex. Crim. App. 1983). On April 16, 1984, the United States
Supreme Court denied certiorari. Meanes v. Texas, 466 U.S. 945,
104 S. Ct. 1930 (1984).
On August 15, 1984, Meanes filed his first application for a
state writ of habeas corpus. On November 18, 1985, after an
evidentiary hearing, the trial court entered findings of fact and
conclusions of law, recommending that relief be denied. On May 7,
1986, the Texas Court of Criminal Appeals accepted the trial
court’s recommendation and denied the application.
On August 4, 1986, Meanes filed his first petition for a
federal writ of habeas corpus. On October 18, 1988, that petition
was dismissed by the district court for failure to exhaust state
court remedies. Specifically, the district court found that the
- 3 - state judge who had signed the state habeas findings, the Honorable
Sam Robertson, acted without jurisdiction under state law, because
he was at that time a justice on the Fourteenth Court of Appeals
and therefore ineligible under state law to hear Meanes’s habeas
petition. In addition, the district court found that Justice
Robertson was a potential witness in the state habeas corpus
hearing and that Meanes was deprived of his right to cross-examine
him at that hearing. Finally, the district court found that
Justice Robertson had engaged in improper ex parte communications
with the State regarding Meanes’s habeas petition.
For reasons unknown to anyone, neither the State nor Meanes
was given notice of the district court’s October 26, 1988 order,
and no one discovered the error until early 1995. By that time,
Justice Robertson had retired from the court of appeals and was
sitting as a visiting state district judge. Over Meanes’s
objection, Justice Robertson was again assigned to preside over
Meanes’s state habeas petition. After two evidentiary hearings,
the trial court entered findings of fact and conclusions of law
recommending that habeas relief be denied. On August 24, 1995, the
Texas Court of Criminal Appeals accepted the district court’s
recommendation and denied the application.
On August 25, 1995, Meanes filed a second petition for federal
habeas relief. On May 1, 1997, the district court entered
judgment, granting habeas relief in part. Specifically, the
district court found that Meanes was denied the effective
assistance of counsel at the punishment stage of his trial and that
- 4 - Meanes’s Eighth and Fourteenth Amendment rights were violated when
the trial court incorrectly instructed the venire that the law of
parties2 applied not only to the guilt phase of the trial but to
the punishment stage as well. See Enmund v. Florida, 458 U.S. 782,
102 S. Ct. 3368 (1982). On July 7, 1997, the district court denied
the Director’s motion for reconsideration and Meanes’s motion to
alter or amend. On July 15, 1997, the Director filed a timely
notice of appeal. Meanes has not appealed any of the district
court’s findings against him.
STANDARD OF REVIEW
In reviewing requests for federal habeas corpus relief, we
review the district court's findings of fact for clear error, but
review issues of law de novo. Dison v. Whitley, 20 F.3d 185, 186
(5th Cir. 1994). A finding of fact is clearly erroneous when,
although there is enough evidence to support it, the reviewing
court is left with a firm and definite conviction that a mistake
has been committed. United States v. United States Gypsum Co., 333
U.S. 364, 395, 68 S. Ct. 525, 541-42, 92 L.Ed. 746 (1948);
Henderson v. Belknap (In re Henderson), 18 F.3d 1305, 1307 (5th
Cir. 1994). The question of whether counsel was constitutionally
ineffective is a mixed question of law and fact, which we review de
2 Section 7.02(a)(2) of the penal code sets forth the law of parties and provides that "[a] person is criminally responsible for an offense committed by the conduct of another if .... acting, with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other to commit the offense." Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 1989).
- 5 - novo by independently applying the law to the facts found by the
district court, unless those factual determinations are clearly
erroneous. See Salazar v. Johnson, 96 F.3d 789, 791 (5th Cir.
1996); United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994).
ANALYSIS
On appeal, the State contends that the district court erred in
three ways. First, the State argues that the district court erred
in not considering the procedural bar to Meanes’s Enmund claims.
Contained within this discussion is the State’s argument that
Meanes was not denied the effective assistance of counsel. Second,
the State argues that, even assuming that Meanes’s claims are not
procedurally barred, the district court erred in finding that
Enmund was violated. Finally, the State argues that the district
court’s factual findings were clearly erroneous. Because we find
that Meanes’s Enmund claims are procedurally barred and that the
district court erred in concluding that Meanes received ineffective
assistance of counsel, we need not address the State’s second and
third arguments.3
3 In his reply brief, Meanes does not respond in any structured way to the State’s procedural bar argument. Instead, Meanes attempts to make much of the fact that the same state court judge who presided over his first state habeas proceeding presided over his second state habeas proceeding despite Judge Hoyt’s findings in his first federal habeas case. In fact, virtually all of Meanes’s reply brief centers on this one issue. Despite our efforts, we fail to see the significance of Meanes’s argument on this point. Moreover, we note that Judge Hoyt made no reference to this claimed error in his memorandum opinion granting Meanes’s petition as to the sentencing phase of his trial. Furthermore, the overriding concern of Judge Hoyt’s in 1988 -- i.e., that Justice Robertson was not authorized under state law to preside over Meanes’s state habeas proceeding because he was then a Justice on the Fourteenth Court of Appeals -- was no longer
- 6 - It is well settled that federal habeas review of a claim is
procedurally barred if the last state court to consider the claim
expressly and unambiguously based its denial of relief on a state
procedural default. See Coleman v. Thompson, 501 U.S. 722, 111 S.
Ct. 2546 (1991); Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038
(1989); Amos v. Scott, 61 F.3d 333 (5th Cir. 1995). In this case,
the state habeas court expressly found that Meanes’s Enmund claim
was procedurally barred: “The applicant is procedurally barred from
advancing his habeas claim that the State and the trial court
improperly instructed some veniremembers during voir dire that the
law of the parties was applicable to the first special issue
because he did not make a timely objection.”4 See also Meanes v.
State, 668 S.W.2d 368, 371 (Tex. Crim. App. 1983) (direct appeal)
(“No objection was made to the allegedly improper remarks, and
nothing was preserved for review.”).
Where a state court has explicitly relied on a procedural bar,
a state prisoner normally may not obtain federal habeas relief
absent a showing of cause for the default and actual prejudice. Murray v. Carrier, 477 U.S. 478, 485, 106 S. Ct. 2639, 2644 (1986).
In general, to show cause, a petitioner must demonstrate “that some
objective factor external to the defense impeded counsel’s efforts
to comply with the State’s procedural rule.” Id. at 488, 106 S.
present when Justice Robertson presided over Meanes’s state habeas proceeding in 1995, because Justice Robertson had retired from the Court of Appeals and was sitting as a district court judge by designation. 4 As noted above, the state trial court’s findings were adopted by the Court of Criminal Appeals.
- 7 - Ct. at 2465. If a petitioner fails to show cause for his
procedural default, the court need not address the prejudice prong
of the test. See Engle v. Isaac, 456 U.S. 107, 134 n.43, 102 S.
Ct. 1558, 1575 n.43 (1982).
In its brief, the State argues that the only bases upon which
Meanes can establish cause are that Enmund announced a new rule
that was not reasonably available at the time of trial, and that
Meanes’s counsel was ineffective for failing to object to the
court’s questioning during voir dire. We agree with the State’s
characterization of the issues and, therefore, will address each of
these arguments in turn.
At the time of Meanes’s trial, Texas law provided that the law
of parties could apply to the punishment phase of the trial. See
Wilder v. State, 583 S.W.2d 349, 356-57 (Tex. Crim. App. 1979),
vacated and remanded on other grounds, 453 U.S. 902, 101 S. Ct.
3133 (1981). Thus, any objection to the questioning during voir
dire arguably would have been futile, at least with respect to
Texas law. “[T]he futility of presenting an objection to the state
courts[, however,] cannot alone constitute cause for a failure to
object at trial.” Engle, 456 U.S. at 129, 102 S. Ct. at 1573.
Instead, the claim must also be novel. Selvage v. Collins, 975
F.2d 131, 135 (5th Cir. 1992). Meanes’s argument that the Supreme
Court’s decisions in Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954
(1978), and Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978
(1976), dictate the result in this case clearly cuts against
finding that the claim was novel. To the extent that Meanes argues
- 8 - that cause is shown because Enmund was an intervening decision, we
note that a claim is not novel if “other defense counsel have
perceived and litigated that claim.” Engle, 456 U.S. at 134, 102
S. Ct. at 1575; accord Smith v. Collins, 977 F.2d 951, 956 (5th
Cir. 1992) (quoting Engle). In this respect, other defense counsel
had in fact perceived and litigated the Enmund claim at the time of
Meanes’s trial, as evidenced by the fact that counsel in Enmund
itself had raised and litigated this claim in the Florida state
court proceedings. See Enmund v. Florida, 399 So.2d 1362, 1371
(Fla. 1981) (rejecting a similar argument some three months before
Meanes’s trial), reversed, 458 U.S. 782, 102 S. Ct. 3368 (1982).
Accordingly, Meanes cannot rely on the intervening decision of
Enmund to establish cause.5
We turn next to Meanes’s argument that he received ineffective
assistance of counsel because his counsel failed to object to the
court’s questioning and instructions regarding the law of parties
during voir dire. Although ineffective assistance of counsel can
constitute cause, “counsel’s ineffectiveness will constitute cause
only if it is an independent constitutional violation.” Coleman,
501 U.S. at 755, 111 S. Ct. at 2567. Counsel is not
constitutionally deficient, however, if, at the time trial, such an
objection would have been futile in light of existing state law and
the right was not clearly established under federal law. See
5 Because of our disposition of this issue and because the State has not argued this point, we need not decide whether Enmund announced a new rule for the purposes of Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989). For a discussion of the relationship between Teague and establishing cause based on an intervening decision, see Selvage v. Collins, 975 F.2d 131 (5th Cir. 1992).
- 9 - Nichols v. State, 69 F.3d 1255, 1288 (5th Cir. 1995) (finding that
counsel was not ineffective for failing to request an anti-parties
instruction prior to Enmund because “it was not clearly established
Texas or federal law that such an instruction, if requested, was
required”). Counsel is not required “to anticipate a state
appellate court’s willingness to reconsider a prior holding” or a
federal habeas court’s willingness to “repudiate an established
rule.” Hill v. Black, 932 F.2d 369, 373 (5th Cir. 1991).
As noted above, at the time of Meanes’s trial, Texas law
permitted the law of parties to be applied to the punishment phase
of a capital case. See Wilder v. State, 583 S.W.2d 349 (Tex. Crim.
App. 1979), vacated and remanded on other grounds, 453 U.S. 902,
101 S. Ct. 3133 (1981). The Court of Criminal Appeals did not
reverse this position until three years after Meanes’s trial. See
Green v. State, 682 S.W.2d 271, 287 (Tex. Crim. App. 1984).
Moreover, Enmund was not decided until over a year after Meanes’s
trial.6
6 Meanes argues that the language relied on by the State in Wilder was dicta. We disagree. In Wilder, the Court of Criminal Appeals clearly applied the law of parties to find the evidence of the wheel man’s “deliberateness” on the basis of his co-defendant’s actions. Moreover, the Texas Court of Criminal Appeals apparently thought enough of this dicta to specifically reverse Wilder in 1984, stating: “We hold that the law of parties may not be applied to the three special issues under Art. 37.071(b). Wilder and Armour v. State, 583 S.W.2d 349 (Tex. Crim. App.1979) is overruled as far as it is inconsistent with this opinion.” Green, 682 S.W.2d at 287. Furthermore, we note that in his first state habeas petition, Meanes also apparently thought that Wilder held that the law of parties could apply to the punishment phase of a capital trial as well. In fact, he submitted eight (8) affidavits from Texas trial lawyers, each stating that they thought that Wilder held that the law of parties could apply to the punishment phase of a capital trial.
Meanes also argues that the State’s argument that Wilder provided that the law of parties applied to the punishment phase of a capital trial “flies in the face of the assurance made by the State of Texas to the Supreme Court of the United States during oral arguments in Jurek v. Texas, 428 U.S. 262 (1978), that
- 10 - Recognizing this, Meanes attempts to shift the focus from
Enmund to the Supreme Court’s earlier decisions in Lockett v. Ohio,
438 U.S. 586, 98 S. Ct. 2954 (1978), and Woodson v. North Carolina,
428 U.S. 280, 96 S. Ct. 2978 (1976). In both Lockett and Woodson,
a plurality of the Supreme Court held that the Eighth Amendment
requires an individualized sentencing decision in capital cases.
According to Meanes, Lockett and Woodson clearly brought into
question any argument that the law of parties can be
constitutionally applied in the sentencing phase of a capital
murder trial. Although we agree with Meanes that there was a
reasonable basis for making the argument that it was
constitutionally impermissible to apply the law of parties to the
punishment phase of a capital trial at the time of his trial, it
does not necessarily follow that his counsel was constitutionally
deficient for failing to raise this claim. See Smith, 977 F.2d at
960. At its core, Meanes’s argument amounts to nothing more than
an argument that, because there was no cause for his procedural
default in the sense that the claim was reasonably available based
on earlier decisions, it must necessarily follow that his counsel
was ineffective for failing to raise the argument. As we have
previously held, however, “The Supreme Court clearly rejected such
an ‘either or’ approach in Smith, 477 U.S. at 535, 106 S. Ct. at
the special scheme adopted by Texas would show a ‘real basis for distinguishing among defendants.’” What the Texas executive branch argued before the Supreme Court in Jurek, however, casts no helpful light on the fact that the Texas Court of Criminal Appeals, which has the ultimate responsibility for determining what the State criminal law is, held that the law of parties applied to the punishment phase of a capital trial.
- 11 - 2667, and Carrier, 477 U.S. at 485-88, 106 S. Ct. at 2644-45.”
Smith, 977 F.2d at 960. The inescapable fact remains that Enmund
was not decided until over one year after Meanes’s trial and that,
at the time of his trial, Texas law provided that the law of
parties applied to the punishment phase of a capital case. Given
the state of the law at that time, we cannot say that counsel’s
performance fell outside of the “wide range of professionally
competent assistance” recognized in Strickland v. Washington, 466
U.S. 668, 690, 104 S. Ct. 2052, 2066 (1984).
Having failed to show cause for his procedural default, Meanes
may nonetheless be entitled to habeas relief if he can show that
imposition of the procedural bar would constitute a “miscarriage of
justice.” Sawyer v. Whitley, 505 U.S. 333, 339, 112 S. Ct. 2514,
2518 (1992). “Where, as here, the asserted error . . . goes only
to the sentence imposed in a capital case, such a ‘miscarriage of
justice’ is not established unless it is shown ‘by clear and
convincing evidence that but for’ the asserted ‘constitutional
error, no reasonable juror would have found the petitioner eligible
for the death penalty under the applicable state law.’” Hogue v.
Johnson, 131 F.3d 466, 497 (5th Cir. 1997) (quoting Sawyer, 505
U.S. at 336, 112 S. Ct. at 2517). After an exhaustive review of
the record, we find that Meanes has not met this burden.
The substance of Meanes’s testimony at the punishment phase
and in his confession was that he agreed to participate in the
robbery only after his co-defendant had promised him that no one
would be harmed. He testified that his co-defendant shot at the
- 12 - victim with the pistol three times, fired six more shots into the
armored van from the same position, and then traded weapons with
Meanes, who was unable to pump the shotgun, and fired the shotgun
at the van nine more times. Meanes further contended that he fired
only two pistol shots during the entire robbery and that these
shots were at the driver’s side window of the armored car in an
attempt to gain entry. Meanes also argued that he never pointed
the gun at Wright or told her “Get up bitch, right now or you’re
dead.” He further testified that Santana was the only one who
approached the victim’s body and that Santana did so only at the
end of the robbery when Santana was wielding the shotgun.
Contrary to Meanes’s testimony, however, a number of
eyewitnesses testified at trial that Meanes was the one holding the
pistol, and no one identified him as holding the shotgun at any
time. Similarly, none of the eyewitnesses testified that they saw
any exchange of weapons. The eyewitness accounts contradict
Meanes’s version of events in many other important respects.
Although Meanes asserted that only Santana approached the victim’s
body and only at the end of the robbery when Meanes alleges that
Santana held the shotgun, Wright testified that she heard two shots
as the victim was shot and that a man with a pistol then knelt by
the victim and fired more shots at the van. Moreover, wet blood of
the victim’s type was found on the ammunition clip inside the
pistol, further indicating that it was the person with the pistol
who had approached the victim.
In addition, two witnesses testified that they saw both men
- 13 - shooting toward the passenger side of the van at the same time at
the beginning of the robbery and before the men even moved away
from their car. One of the men identified the man shooting the
pistol from the trunk of the car as Meanes, further contradicting
Meanes’s story that he only fired the pistol at the driver’s side
door of the van. Another witness testified that he first heard
three pistol shots, followed by two shotgun blasts two to three
seconds later, further contradicting Meanes’s claim that Santana
fired nine pistol shots in a row and then switched to the shotgun.
Given the above evidence contradicting Meanes’s story and the
extensive 83-page cross-examination by the prosecution, in which
the State demonstrated that Meanes lied a number of times, we
conclude that Meanes has fallen well short of establishing “‘by
clear and convincing evidence that but for’ the asserted
‘constitutional error, no reasonable juror would have found the
petitioner eligible for the death penalty under the applicable
state law.’” Hogue, 131 F.3d at 497 (quoting Sawyer, 505 U.S. at
336, 112 S. Ct. at 2517).
CONCLUSION
For the reasons set forth above, we find that Meanes is
procedurally barred from raising his Enmund claims in this court.
In addition, to the extent that the district court held that Meanes
received ineffective assistance of counsel, we find that decision
erroneous as a matter of law. Accordingly, the judgment of the
district court is REVERSED and judgment is RENDERED denying Meanes
- 14 - habeas corpus relief.
REVERSED; RENDERED.
- 15 -