Revised August 30, 2001
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 99-40539
RONFORD LEE STYRON, JR.,
Petitioner-Appellant,
VERSUS
GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of Texas
August 15, 2001 Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Ronford Lee Styron, Jr., seeks a certificate of appealability
(“COA”) on twelve issues to appeal the district court’s denial of
his application for habeas corpus and seeks relief from the denial
of his petition for habeas corpus. The district court considered
and rejected a certificate on these twelve issues although it
granted a COA on four other issues. For the reasons that follow,
1 we deny Styron’s requests for a COA, and we affirm the denial of
habeas relief.
I. Facts and Procedural History
Appellant Ronford Lee Styron, Jr., was convicted of the
capital murder of his eleven-month old son, Lee Hollace Styron, and
sentenced to death. The medical evidence introduced at trial
indicated that the victim died as a result of subdural hemorrhaging
caused by trauma to the head. The evidence revealed that the child
had suffered at least three distinct blows to his head, any one of
which could have caused his death. Medical testimony indicated
that the blows appeared to have been inflicted contemporaneously.
Styron testified that he punched the victim in the head one time
and did not offer any explanation as to how the victim received
multiple bruises on his head.
Other medical evidence revealed the victim sustained retinal
hemorrhages consistent with repeated episodes of shaken-baby trauma
and multiple rib fractures within at least two weeks prior to his
death. Testimony established that Styron squeezed the victim’s
stomach approximately three weeks before his death. Other
testimony revealed that Styron had on numerous occasions physically
abused the victim. The child had been taken to the hospital on
three prior occasions: once for a cut lip, once for a broken leg,
and once for treatment of a seizure disorder.
Styron was indicted by the grand jury of the 75th District
2 Court of Liberty County, Texas. Count I of the indictment alleged
that Styron, on or about October 23, 1993, in Liberty County,
Texas, intentionally and knowingly caused the death of Lee Hollace
Styron, an individual under six years of age, by striking and
hitting the child’s head with his fist, by causing the child’s head
to strike and hit an object, and by manner and means unknown.
Count II of the indictment charged Styron with murder, alleging
essentially the same conduct as did Count I. Count III alleged
injury to a child. The 75th District Court found Styron to be
indigent and appointed Walter F. Fontenot to represent him on
November 2, 1993.
At the request of the State, without notice to Styron or his
attorney and without a hearing, the action was transferred by the
75th District Court to the 253rd District Court of Liberty County.
On January 4, 1994, the 253rd District Court, on Styron’s motion,
appointed Gary W. Bunyard as additional counsel. On January 5,
1994, Styron filed a pre-trial motion to quash the indictment
contending that the government manipulated the transfer to secure
a more favorable forum in which to prosecute the action. On May
10, 1994, after a hearing, the trial court denied the motion to
quash.
Styron was tried before a jury upon a plea of not guilty. His
defense was based upon a lack of intent to harm or to kill the
child. The defense presented evidence that Styron was in fact a
loving father to the victim; however, the jury convicted Styron of
3 capital murder on October 24, 1994.
On October 27, 1994, the punishment phase of the trial was
presented to the jury. The State produced numerous witnesses who
testified about their knowledge of Styron’s reputation and
behavior. Four witnesses testified of his propensity to instigate
fights. One witness testified that Styron provoked a fight with a
boy who could not fight back because of a bad arm, and that Styron
hit the boy several times before the witness grabbed Styron.
Styron’s high school principal and assistant principal both
testified that he had a reputation for violence. A Dayton police
officer, Shannon Spear, testified that Styron had violently
attacked another boy while in the seventh grade, attacked a man on
a freeway, and punched his sergeant while in the Army.
Curtis Wills, a psychologist called as a witness by the
defense, testified that he could not predict whether Styron was
likely to commit future criminal acts. On cross-examination, Wills
testified that the results of the Minnesota Multiphasic Personality
Inventory (MMPI) indicated that Styron was hostile, was aggressive,
and was a person who harbored grudges. Wills further testified
that Styron was the type of person who tends to be diagnosed with
an anti-social personality.
Dr. Gripon, a psychiatrist, testified for the State. After a
review of the offense reports, Styron’s statements, and the results
of the MMPI, in response to a hypothetical question Dr. Gripon
testified that in his opinion Styron was a continuing threat to
4 commit future acts of violence.
After the hearing, the jury answered affirmatively the first
special sentencing issue as to whether Styron posed a continuing
threat to society. The jury answered negatively the second special
sentencing issue as to whether mitigating circumstances warranted
a sentence of life imprisonment rather than the imposition of a
death sentence. Accordingly, the trial court sentenced Styron to
death in accordance with Texas law.
Styron appealed to the Texas Court of Criminal Appeals. The
conviction and sentence were affirmed in an unpublished opinion
issued October 30, 1996. Styron v. State, No. 72,001 (Tex. Crim.
App. 1996). The Court of Criminal Appeals appointed James F.
Keegan to represent Styron on state habeas corpus review.
Application for writ of habeas corpus was filed, raising forty-
three grounds for relief. Ex parte Styron, No. 20,278-A. Without
a hearing on the state writ, the state trial court adopted the
findings of fact and conclusions of law submitted by the State and
recommended that relief be denied. The Court of Criminal Appeals,
without discussion or analysis, adopted the trial court’s findings
and conclusions in a one-page opinion and denied habeas corpus
relief in an unpublished order. Ex parte Styron, No. 37,058-01
(Tex. Crim. App. 1998).
Styron filed a federal petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The United States District Court for
the Eastern District of Texas denied his motion for summary
5 judgment and writ of habeas corpus, lifted the stay of execution,
and granted respondent’s motion for summary judgment. Styron v.
Johnson, No. 6:98 CV 338 (E.D. Tex. 1999). The district court
issued COA on four of twenty-one issues requested by Styron.
II. Application for COA
A. Issues and Standard of Review
Styron now seeks from this court COA for twelve additional
issues on which to appeal the district court’s denial of habeas
relief. Since Styron filed his habeas application in the district
court after April 24, 1996, we apply the Anti-Terrorism and
Effective Death Penalty Act of 1996 (AEDPA). See Lindh v. Murphy,
521 U.S. 320, 336 (1997); Green v. Johnson, 116 F.3d 1115, 1119-20
(5th Cir. 1997). The AEDPA provides that “[u]nless a circuit
justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals from -- (A) the final
order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court . . .
.” 28 U.S.C. § 2253(c)(1)(A). Only if the applicant makes a
“substantial showing of the denial of a constitutional right” may
a COA issue, and any such COA shall indicate the specific issue or
issues that satisfy this showing. Id. § 2253(c)(2). “A
‘substantial showing’ requires the applicant to ‘demonstrate that
the issues are debatable among jurists of reason; that a court
could resolve the issues (in a different manner); or that the
6 questions are adequate to deserve encouragement to proceed
further.’” Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996),
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)),
overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997);
see also Rudd v. Johnson, No. 00-11173, 2001 WL 726411, *1 (5th Cir.
June 28, 2001); Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir.
2000)(citing Slack v. McDaniel, 120 S.Ct. 1595, 1603-04 (2000)).
“Our determination requires deference to the state habeas court's
adjudication of [Styron’s] claims on the merits, unless that
adjudication: (1) ‘was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States,’ § 2254(d)(1), or (2)
constituted an ‘unreasonable determination of the facts in light of
the evidence presented in the State court proceeding,’ §
2254(d)(2).” Wheat v. Johnson, 238 F.3d 357, 360 (5th Cir. 2001).
“We resolve doubts about whether to grant a COA in [Styron’s]
favor, and we may consider the severity of his penalty in
determining whether he has met his ‘substantial showing’ burden.”
Hill v. Johnson, 210 F.3d 481, 484 (5th Cir. 2000) (citing Fuller
v. Johnson, 114 F.3d 491, 495 (5th Cir. 1997)).
In this case, the district court declined to certify seventeen
of twenty-one issues advanced by the petitioner. Styron seeks in
this court certification on twelve of those seventeen issues. The
twelve issues are as follows:
Issue 1: Styron’s conviction for capital murder pursuant to
7 former Texas Penal Code § 19.03(a)(7) violated the prohibition
against ex post facto laws of Article I, § 10, Clause 1 of the
United States Constitution.
Issue 2: Conviction for capital murder pursuant to former
Texas Penal Code § 19.03(a)(7) denied Styron due process of law
guaranteed by the Fourteenth Amendment of the Constitution.
Issue 3: Failure of the trial court to instruct the jury that
a guilty verdict for capital murder could be returned only if the
evidence established beyond a reasonable doubt that all the
elements of the offense were committed on or after September 1,
1993, violated the prohibition against ex post facto laws of
Article I, § 10, Clause 1 of the Constitution.
Issue 4: Failure of the trial court to instruct the jury that
a guilty verdict for capital murder could be returned only if the
elements of the offense were committed on or after September 1,
1993, denied Styron due process of law guaranteed by the Fourteenth
Amendment.
Issue 5: Failure of the trial court to instruct the jury that
a guilty verdict for capital murder could be returned only if the
elements of the offense were committed on or after September 1,
1993, denied Styron the right to trial by jury guaranteed by the
Sixth and Fourteenth Amendments.
Issue 6: Transfer of cause No. 20,278 from the 75th District
8 Court of Liberty County to the 253rd District Court of Liberty
County at the request of the State, but without notice to Styron or
his attorney, denied Styron due process of law guaranteed by the
Fourteenth Amendment.
Issue 7: His absence, in violation of Texas Code of Criminal
Procedure article 28.01, from the pretrial proceeding at which the
75th District Court granted the request of the State to transfer
his cause to the 253rd District Court denied Styron due process of
law guaranteed by the Fourteenth Amendment.
Issue 8: Transfer of the cause from the 75th District Court
to the 253rd District Court at the request of the State, but
without notice to Styron or his attorney, denied Styron the right
to counsel guaranteed by the Sixth and Fourteenth Amendments.
Issue 9: Attack by the State upon the integrity of attorney
Walter P. Fontenot denied Styron due process of law guaranteed by
the Fourteenth Amendment.
Issue 10: Attack by the State upon the integrity of attorney
Walter P. Fontenot denied Styron the right to counsel guaranteed by
the Sixth and Fourteenth Amendments.
Issue 11: In violation of the Sixth and Fourteenth
Amendments, Styron was denied effective assistance of counsel at
trial.
Issue 12: In violation of the Sixth and Fourteenth
Amendments, Styron was denied effective assistance of counsel on
appeal.
9 Of these twelve issues presently under consideration for COA,
none makes a substantial showing of the denial of a constitutional
right.
B. Analysis
For ease of discussion and analysis, similar issues will be
grouped together.
1. Issues 1 through 5
Styron complains that since the statute under which he was
convicted of capital murder became effective on September 1, 1993,
the failure of the trial court to instruct the jury that all
elements of the offense had to be committed on or after that date
operated to subject Styron to an ex post facto law and to deny him
due process of law. However, the defense neither objected to the
jury charge nor requested an alternative charge along the lines
Styron now asserts as crucial.
Styron’s assertion that “there was considerable evidence at
Styron’s trial that elements of the offense were committed before
September 1, 1993" is not supported by the record. There was
evidence that the victim had suffered physical abuse for several
months prior to his death on October 26, 1993, but the medical
evidence revealed that the victim suffered three nearly
simultaneous but distinct traumas to the head approximately three
days prior to his death, any of which could have caused the
fatality. Styron admitted to punching the child once on October
10 23, 1993, and there was no evidence that any acts of abuse prior to
this date contributed to the victim’s death.
Moreover, the indictment properly alleged that the murder took
place “on or about” October 23, 1993, and the jury charge tracked
the language of the indictment:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 23rd day of October, 1993, in Liberty County, Texas, the defendant, RONFORD LEE STYRON, JR., did then and there intentionally or knowingly cause the death of an individual, namely, Lee Hollace Styron, an individual under six years of age, by striking or hitting the head of Lee Hollace Styron with Ronford Lee Styron, Jr.’s fist or by causing the head of Lee Hollace Styron to strike or hit an object or by manner and means unknown to the Grand Jury, then you will find the defendant guilty of capital murder as charged in Count I of the indictment.
There was no evidence from which the jury could have found that
actions by Styron prior to September 1, 1993, were the cause of
death. The complained-of jury instruction properly charged the
jury as to the temporal element of the offense. Styron’s complaint
on these issues is without merit.
Finally, in order for Styron’s conviction to violate the ex
post facto prohibition, the statute under which he was convicted
would have to punish as a crime an act previously legal when
committed, make more burdensome the punishment for a crime after
its commission, or remove a defense available according to the law
when the act was committed. See Dobbert v. Florida, 432 U.S. 282,
292 (1977) (citing Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)).
The statute under which Styron was tried and convicted did none of
11 these things as the jury reasonably found that the offense was
committed after its effective date of September 1, 1993.
In sum, these issues raised by Styron do not make a
substantial showing of the denial of a constitutional right as
required under the AEDPA. A COA will not issue.
2. Issues 6 through 8
Styron complains that the transfer of the cause from the 75th
District Court of Liberty County, the district court from which the
grand jury handed down the indictment, to the 253rd District Court
of Liberty County, at the request of the State, without notice to
or in the presence of either Styron or his attorney and without a
hearing, violated Styron’s rights to due process of law and to
counsel.
Petitioner’s motion to quash the indictment on these grounds
was denied by the 253rd District Court after a hearing on May 2,
1994. At that hearing testimony showed that between 1977 and 1991
indictments were assigned randomly by the district clerk to either
the 75th or the 253rd District Court. The testimony further showed
that in 1992 the district clerk began to assign indictments to the
court in which the prosecutor handling the case was assigned, and
that the District Attorney’s practice was to randomly assign cases
to prosecutors. However, in this case, Prosecutor Anne Streit was
assigned to Styron’s case, and she was assigned to the 253rd
District Court. The evidence suggests that when the District
12 Attorney’s office informed the clerk that Streit was prosecuting
the case, the clerk’s office informed the judge in the 75th
District Court, who then transferred the case to the 253rd District
Court without a hearing and without notice to either Styron or his
attorney.
The Texas Court of Criminal Appeals found that the transfer
was effected pursuant to prosecutorial discretion and that Styron
failed to produce exceptionally clear proof that the discretion had
been abused.
The district court found no due process violation given that
Styron failed to demonstrate that he was in any way prejudiced by
the lack of hearing and notice of the transfer, and because the
trial court hearing on the motion and the appellate and state writ
process afforded Styron a full and fair hearing on this matter.
The district court also found no violation of the right to counsel
since an administrative act transferring the case was not a
criminal proceeding in which the rights of Styron might be affected
because the act of transfer was not a “critical stage” in the
prosecution.
a. Right to Counsel
The right to counsel attaches “at or after the initiation of
adversary judicial proceedings against the defendant.” United
States v. Gouveia, 467 U.S. 180, 187 (1984). This right extends to
critical pretrial proceedings as “the accused is guaranteed that he
13 need not stand alone against the State at any stage of the
prosecution, formal or informal, in court or out, where counsel’s
absence might derogate from the accused’s right to a fair trial.”
United States v. Wade, 388 U.S. 218, 226 (1967). The court must
“analyze whether potential substantial prejudice to defendant’s
rights inheres in the particular confrontation and the ability of
counsel to help avoid that prejudice.” Id. at 227. In Gouveia,
the Supreme Court characterized the situations where the right
extends as instances where “the results of the confrontation ‘might
well settle the accused’s fate and reduce the trial itself to a
mere formality.’” 467 U.S. at 189 (internal citations omitted).
As such, the Court has found a violation of the right to counsel
where counsel was not notified or allowed to confer with his client
prior to a pretrial psychiatric interview later used at the
sentencing phase. Estelle v. Smith, 451 U.S. 454 (1981); see also
Mempa v. Rhay, 389 U.S. 128, 135 (1967) (holding that counsel must
be appointed at a proceeding where certain legal rights like appeal
may be lost).
The transfer of Styron’s case was an administrative matter and
not a “critical” proceeding. Counsel’s absence did not derogate
from a fair trial; indeed, Styron does not even argue that he was
denied a fair trial or that the effect of the transfer pervaded the
entire proceeding. See Satterwhite v. Texas, 486 U.S. 249, 257
(1988)(distinguishing cases “in which the deprivation of the right
to counsel affected–-and contaminated-–the entire criminal
14 proceeding” and applying harmless error standard). He merely makes
an amorphous argument that he required aid in knowing whether to
oppose a transfer. Styron has failed to show prejudice or that the
presence of counsel would have eliminated any prejudice. There is
no indication of misconduct, animus, or discrimination by the
This court has refused to find a violation of the right to
counsel at a pretrial confrontation during which a defendant was
photographed outside the presence of counsel because “the right to
counsel at all stages of the proceedings is not absolute.” Smith
v. Puckett, 907 F.2d 581, 583 (5th Cir. 1990). Likewise, here the
right is not absolute. The transfer did not affect any substantial
rights, see Mempa, 389 U.S. at 134, because Styron was still
afforded a fair trial. See Childress v. Johnson, 103 F.3d 1221,
1225 (5th Cir. 1997). The mere absence of counsel at an
administrative process is not sufficient to show a deprivation of
a constitutional right. Accordingly, no COA will issue because
Styron has failed to make the requisite substantial showing of the
denial of a constitutional right.
b. Due Process
“The constitutional right to presence is rooted to a large
extent in the Confrontation Clause of the Sixth Amendment, but we
have recognized that this right is protected by the Due Process
Clause in some situations where the defendant is not actually
15 confronting witnesses or evidence against him.” United States v.
Gagnon, 470 U.S. 522, 526 (1985). However, the Supreme Court has
limited this right by holding that there is a due process right to
be present “‘whenever his presence has a relation, reasonably
substantial, to the fulness of his opportunity to defend against
the charge . . . [T]he presence of a defendant is a condition of
due process to the extent that a fair and just hearing would be
thwarted by his absence, and to that extent only.” Id. (citing
Snyder v. Massachusetts, 291 U.S. 97, 105-06, 108 (1934)). Having
recognized this limit, the Court in Gagnon held that the presence
of four defendants and their attorneys during an in camera
discussion between a judge, juror, and another attorney was not
required to ensure “fundamental fairness or a ‘reasonably
substantial . . . opportunity to defend against the charge.’” Id.
at 527 (internal citations omitted). In Kentucky v. Stincer, 482
U.S. 730, 745 (1987), the Court determined that a defendant’s due
process right is the right to be present “at any stage of the
criminal proceeding that is critical to its outcome if his presence
would contribute to the fairness of the procedure.” In Stincer,
there was no violation of due process for a defendant to have been
excluded from a competency hearing concerning two witnesses because
the defendant gave no indication that his presence “would have been
useful in ensuring a more reliable determination as to whether the
witnesses were competent to testify.” 482 U.S. at 747.
Styron has failed to show deprivation of a constitutional
16 right. Although he argues that he was not given notice or an
opportunity to object to the transfer, he nevertheless fails to
demonstrate “that his presence at the [transfer] would have
contributed to the fairness of the proceeding. He thus fails to
establish, as an initial matter, the presence of a constitutional
deprivation.” Stincer, 482 U.S. at 747 n.21. As the district
court acknowledged, the transfer was a purely administrative
matter, and Styron’s presence would not have had a reasonably
substantial relation to his opportunity to defend against the
charge. See Gagnon, 470 U.S. at 526.
This court has faced a similar issue in United States v. Osum,
943 F.2d 1394 (5th Cir. 1991). There, the court addressed the
propriety of a transfer requested by the government to a judge who
had previously presided over the trial of codefendants. Id. at
1398. First recognizing that a defendant does not have a
constitutional right to trial within a particular division of a
judicial district, and, a fortiori, before a particular judge, the
court emphasized that a court may not transfer a case if a
defendant makes a strong showing of prejudice. Id. at 1399. The
court held the transfer to be valid, even though the government
specifically chose the transferee judge. Id. at 1400. “Although
the transfer of a case to a different judge upon request of the
government is not something we would endorse as routine practice,
we cannot in this case, given the existence of a valid reason
supporting transfer and no showing of prejudice by the defendant,
17 say that the district court abused its discretion.” Id. In this
case, the transfer was an administrative matter, and unlike Osum,
the transferee court’s only connection to the matter was the fact
that the prosecutor to whom the case was randomly allotted was
assigned to that court. Styron makes no showing of prejudice based
on the transfer or his lack of presence thereat. See United States
v. Allen, 633 F.2d 1282, 1294 (9th Cir. 1980) (“They have no basis,
however, to advance as error any alleged violation of the Northern
District of California’s Random Assignment Plan unless they can
show actual prejudice.”).
Therefore, applying the proper standard under the AEDPA, we
conclude that Styron has failed to make the requisite substantial
showing of the denial of a constitutional right under the Sixth and
Fourteenth Amendments. Accordingly, no COA will issue on Styron’s
claims related to the transfer.
3. Issues 9 and 10
Styron complains that testimony at the guilt/innocence phase
of the trial by Wallace Clark, Styron’s brother, that Styron’s
attorney (Walter P. Fontenot) had told Clark to lie to the grand
jury, and that playing a portion of a recording of Clark’s grand
jury testimony to that effect, denied Styron due process of law and
the right to counsel.
Prosecutorial misconduct is not a ground for relief unless it
casts serious doubt upon the correctness of the jury’s verdict.
See United States v. Hernandez-Guevara, 162 F.3d 863, 874 (5th Cir.
18 1998). This court has previously identified three factors to be
considered: 1) the magnitude of the prejudicial effect of the
remarks; 2) the efficacy of any cautionary instruction given by the
judge; and 3) the strength of the evidence supporting the
conviction. United States v. Casel, 995 F.2d 1299, 1308 (5th Cir.
1993), vacated on other grounds by Reed v. United States, 510 U.S.
1188 (1994). Only where improper prosecutorial comments
substantially affect the defendant’s right to a fair trial do they
require reversal. See United States v. Diaz-Carreon, 915 F.2d 951,
956 (5th Cir. 1990). Under these standards and viewing the
testimony as a whole in its proper context, the alleged
prosecutorial misconduct did not so infect the trial with
unfairness as to deny due process of law.
Styron objects to the content of the statements made by Clark.
However, this testimony was elicited by the prosecutor as prior
inconsistent statements for impeachment purposes. Because the
testimony was admissible evidence under Rule 801(e)(2)(D) of the
Texas Rules of Evidence, because the injurious statements were made
by the witness and not by the prosecutor, and because cross-
examination of Clark by the defense mitigated the prejudice by
pointing out that Clark had erred in attributing to Fontenot the
statements of another attorney not involved in the defense, the
alleged misconduct did not infect the trial with unfairness in
violation of due process.
As a result, Styron fails to make the showing required under
19 the AEDPA for the issuance of a COA on the claim of a due process
violation. Finally, as the alleged misconduct did not in any way
prejudice Styron’s right to counsel under the Sixth Amendment, that
claim has no merit.
4. Issues 11 and 12
Styron complains that he was denied effective assistance of
counsel at trial because of his counsel’s failures to object (1) to
certain voir dire statements by the State regarding punishment (the
weighing of mitigating evidence against aggravating factors); (2)
to Styron’s trial pursuant to a capital murder statute not
effective at the time all elements of the crime were committed or
to jury instructions that did not expressly condition guilt upon
the finding beyond a reasonable doubt that all elements were
committed after the statute’s effective date; and (3) to the
State’s impeachment of Clark. He further complains that on appeal
his appellate counsel failed to pursue these issues or to allege
ineffective assistance of counsel at trial, and that such failures
constitute ineffective assistance of counsel on appeal.
To establish ineffective assistance of counsel, a defendant
must show that counsel’s performance was deficient and that the
deficient performance prejudiced his defense--that the errors were
so serious as to deprive the defendant of a fair trial, that is, a
trial the result of which is reliable. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). Only a “showing that counsel
made errors so serious that counsel was not functioning as the
20 ‘counsel’ guaranteed by the Sixth Amendment” suffices. Id. This
court has concluded that only if counsel’s acts “fell beneath an
objective standard of reasonable professional assistance” has he
failed to function as counsel guaranteed by the Sixth Amendment.
Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993).
There is a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance or
sound trial strategy. See Strickland, 466 U.S. at 689. The
petitioner must identify the acts or omissions of counsel that are
alleged to be outside the bounds of reasonable professional
judgment, and the court must then determine whether, in light of
all of the circumstances, the identified acts or omissions were
outside the range of professionally competent assistance. Id. at
690.
Because a criminal defendant is constitutionally entitled to
the effective assistance of counsel on direct appeal as of right,
see Lombard v. Lynaugh, 868 F.2d 1475, 1479 (5th Cir. 1989), the
Strickland standard applies to claims of ineffective assistance of
counsel by both trial and appellate counsel. See Strickland, 466
U.S. at 687; United States v. Merida, 985 F.2d 198, 202 (5th Cir.
1993).
We adopt the district court findings that in light of all of
the circumstances and considering the affidavit of Styron’s trial
21 counsel, Gary W. Bunyard,1 the identified acts and omissions were
within the wide range of reasonable professional assistance or
sound trial strategy. Styron has failed to show that counsel’s
trial performance was deficient, that it prejudiced his defense, or
that he was deprived of a fair trial therefrom.
Each of the grounds underlying the alleged errors by counsel
on appeal have been discussed previously and found to lack merit.
Therefore, appellate counsel’s failure to pursue relief on those
bases does not constitute ineffective assistance of counsel since
no prejudice resulted therefrom and because the reliability of the
result of the appeal was not undermined thereby.
Accordingly, as each of the grounds raised to establish
ineffective assistance of counsel at trial and on appeal have been
resolved against Styron by this court, Petitioner has failed to
make a substantial showing of the deprivation of a constitutional
right. No COA will issue with respect to these issues.
III. Review of Certified Issues
1 Mr. Bunyard’s affidavit affirmed the following: he and Mr. Fontenot were of the view that the voir dire statement by the prosecution that the second issue called for a weighing of the mitigating circumstances against the aggravating circumstances was a proper statement of the law under Texas Code of Criminal Procedure article 37.071 § 2(e) and that the jury charge given accurately tracked this provision; no ex post facto challenge was made because the evidence of life threatening injuries occurred in late October 1993, after the criminal statute’s effective date; and, the trial strategy adopted by Fontenot and Bunyard to counter the impeachment testimony of Clark was to call Fontenot as a witness during the defense case in chief since Clark’s testimony had been impeached to the point of being unreliable.
22 A. Cruel and Unusual Punishment Challenges
A COA was granted on the issue of whether Styron’s conviction
violated the cruel and unusual punishment clauses of the Eighth and
Fourteenth Amendments. In Arave v. Cheech, 507 U.S. 463, 470
(1993), the Supreme Court held that “to satisfy the Eighth and
Fourteenth Amendments, a capital sentencing scheme must ‘suitably
direc[t] and limi[t]’ the sentencer’s discretion ‘so as to minimize
the risk of wholly arbitrary and capricious action.’” (citing Lewis
v. Jeffers, 497 U.S. 764 (1990)). The Court has set out a two-part
test to determine the constitutionality of a death penalty scheme,
examining both the eligibility decision and selection decision.
Tuilaepa v. California, 512 U.S. 967 (1994). As Styron attacks
only the eligibility requirement, only that portion of the test is
relevant. “To render a defendant eligible for the death penalty in
a homicide case, we have indicated that the trier of fact must
convict the defendant of murder and find one ‘aggravating
circumstance’ (or its equivalent) at either the guilt or penalty
phase.” Tuilaepa, 512 U.S. at 972 (internal citations omitted).
“As we have explained, the aggravating circumstance must meet two
requirements. First the circumstance may not apply to every
defendant convicted of a murder; it must apply only to a subclass
of defendants convicted of murder. Second, the aggravating
circumstance may not be unconstitutionally vague.” Id. (internal
citations omitted).
Styron argues that former Texas Penal Code § 19.03(a)(7), now
23 Texas Penal Code § 19.03(a)(8),2 violates the prohibition against
cruel and unusual punishment because the age of a victim does not
establish a principled basis for distinguishing defendants under
the constraints of Arave. He asserts that there is no principled
basis for distinguishing between a defendant who murdered a child
under the age of six from one who murdered an older child. We
disagree. Under the test presented in Tuilaepa, the aggravating
circumstance for capital murder of murdering a child under the age
of six is constitutionally sufficient. First, it does not apply to
every defendant convicted of murder; it applies only to a certain
subclass of defendants. See Tuilaepa, 512 U.S. at 972. Second, it
is not unconstitutionally vague. See Henderson v. State, 962
S.W.2d 544, 563 (Tex. Crim. App. 1997) (“The child-murder provision
meets both tests: murderers of children under six is a subclass of
murderers in general, and ‘children under six’ is a clear and
definite category.”). On the contrary, the statute is very clear
unlike other statutes which the Supreme Court has found to be
vague. See, e.g., Maynard v. Cartwright, 486 U.S. 356 (1988)
(holding “especially heinous, atrocious, or cruel” to be vague).
The “vagueness review is quite deferential.” Tuilaepa, 512 U.S. at
973.
Styron misses the mark when he argues that under the Eighth
2 Texas Penal Code § 19.03(a)(8) provides: “A person commits an offense [of capital murder] if he commits murder as defined under Section 19.02(b)(1) and: the person murders an individual under six years of age.”
24 Amendment, conviction and imposition of the death penalty for the
murder of a child under six years old is arbitrary. “A vague
propositional factor used in the sentencing decision creates an
unacceptable risk of randomness, the mark of the arbitrary and
capricious sentencing process prohibited by Furman v. Georgia.”
Id. at 974-75 (emphasis added). Texas Penal Code § 19.03(a)(7),
now Texas Penal Code § 19.03(a)(8), has no such vague propositional
factor and is not arbitrary. See Godfrey v. Georgia, 446 U.S. 420,
428 (1980) (“A capital sentencing scheme must, in short, provide a
‘meaningful basis for distinguishing the few cases in which [the
penalty] is imposed from the many cases in which it is not. This
means if a State wishes to authorize capital punishment it has a
constitutional responsibility to tailor and apply its law in a
manner that avoids arbitrary and capricious infliction of the death
penalty. Part of a State’s responsibility in this regard is to
define the crimes for which death may be the sentence in a way that
obviates ‘standardless [sentencing] discretion.’”) (internal
On a more general level, the Supreme Court upheld the Texas
death penalty scheme insofar as it narrowed the definition of
capital murder to circumstances in which there was “at least one
statutory aggravating circumstance in a first-degree murder case
before a death sentence may even be considered.” Jurek v. Texas,
428 U.S. 262, 276 (1976). Murdering a child under six is a
sufficiently narrow statutory aggravating factor. Therefore, we do
25 not find a violation of the prohibition against cruel and unusual
punishment.
B. Equal Protection Challenge
Styron contends that conviction for capital murder under
former Texas Penal Code § 19.03 (a)(8) denied him equal protection
under the Fourteenth Amendment when it limited capital murder to
circumstances where the victim is under six years old. First, he
contends that the statute should be reviewed under strict scrutiny
because it impinges on a nebulous right of “freedom from the
arbitrary and capricious infliction of punishment.” However,
besides our resolution of the arbitrary and capricious issue, the
Supreme Court has never afforded this “right” the protection of
strict scrutiny. The Fifth Circuit, led by the Supreme Court’s
decision in Gregg v. Georgia, 428 U.S. 153 (1976), was convinced
that “equal protection clauses do not require a higher level of
scrutiny for legislative classifications that may result in the
death penalty. Thus, [petitioner’s] claims are to be assessed
under a rational basis test.” Gray v. Lucas, 677 F.2d 1086, 1104
(5th Cir. 1982). Despite Styron’s argument that age-based capital
murder statutes should be reviewed under a strict scrutiny
analysis, “[a]ge classifications, unlike governmental conduct based
on race or gender, cannot be characterized as ‘so seldom relevant
to the achievement of any legitimate state interest that laws
grounded in such considerations are deemed to reflect prejudice and
antipathy.’” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 83
26 (2000) (quoting Cleburne v. Cleburne Living Center, Inc., 473 U.S.
432, 440 (1985)). “[A]ge is not a suspect classification under the
Equal Protection Clause. States may discriminate on the basis of
age without offending the Fourteenth Amendment if the age
classification in question is rationally related to a legitimate
state interest.” Id. (internal citations omitted).
Styron next contends that the Texas statute cannot withstand
even rational basis scrutiny because Texas has no legitimate
interest in granting greater protection to children under six than
to other children and adults. Rational basis scrutiny was clearly
set out in Kimel, 528 U.S. at 84. “States may discriminate on the
basis of age without offending the Fourteenth Amendment if the age
classification in question is rationally related to a legitimate
state interest . . . . [W]e will not overturn such [government
action] unless the varying treatment of different groups or persons
is so unrelated to the achievement of any combination of legitimate
purposes that we can only conclude that the [government’s] actions
were irrational.” Id. (internal citations omitted).
The Texas Penal Statute is constitutional under rational basis
scrutiny. First, there is a clear governmental interest in
protecting young children. As the Texas Court of Criminal Appeals
has eloquently stated, “Children are deemed to warrant protection
because of their inexperience, lack of social and intellectual
development, moral innocence, and vulnerability.” Henderson, 962
S.W.2d at 562. Secondly, the decision of the Texas legislature to
27 declare the age limit of six years is rationally related to the
interest of protecting children. It is inherently difficult to
draw a line of demarcation, id.; however, the Texas legislature
cannot be said to have acted irrationally. As was testified
concerning this statute, children under six are usually still at
home and are vulnerable to caregivers, as exactly was the case
here. See SB 13, Public Hearing, Senate Criminal Jurisprudence
Committee, March 3, 1993. Using the six-year age limit is a
rationally related means to accomplish Texas’s end: protecting
young children.
Alternatively, we agree with the district court that this
claim is barred by Teague v. Lane, 489 U.S. 288 (1989), as it seeks
application of a new constitutional rule of criminal procedure.
C. Due process and fair and impartial jury challenges
A COA was granted on the issues of whether an alleged
misstatement by the prosecution during voir dire denied Styron a
fair and impartial trial as guaranteed by the Sixth and Fourteenth
Amendments and due process as guaranteed by the Fourteenth
Amendment. Eight of twelve jurors were told during voir dire that
the second question submitted in the punishment phase of the trial
should only be answered affirmatively if the mitigating evidence
outweighed the aggravating evidence. Texas Criminal Procedure
Article 37.071 actually instructs the court to answer the following
issue:
28 Whether, taking into consideration all of the evidence,
including the circumstances of the offense, the
defendant’s character and background, and the personal
moral culpability of the defendant, there is a sufficient
mitigating circumstance or circumstances to warrant that
a sentence of life imprisonment rather than a death
sentence be imposed.
Styron contends that a mitigating circumstance might be sufficient
to warrant life imprisonment without outweighing the aggravating
circumstances.
However, Styron, as he readily admits, failed to object to the
voir dire questioning. “The ‘Texas contemporaneous objection rule
constitutes an adequate and independent state ground that
procedurally bars federal habeas review of a petitioner’s claims.’”
Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir. 1999) (internal
citations omitted). “In all cases in which a state prisoner has
defaulted his federal claims in state court pursuant to an
independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of
justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). If
Styron overcomes the procedural bar, he still must demonstrate that
“the prosecutors’ comments ‘so infected the trial with unfairness
29 as to make the resulting conviction [or sentence] a denial of due
process.” Rogers v. Lynaugh, 848 F.2d 606, 608 (5th Cir. 1988)
(internal citations omitted). “This Circuit has developed the
following test of constitutional error when a generic due process
violation is asserted: ‘The test applied to determine whether a
trial error makes a trial fundamentally unfair is whether there is
a reasonable probability that the verdict might have been different
had the trial been properly conducted.’” Id. at 609 (quoting
Kirkpatrick v. Blackburn, 777 F.2d 272, 278-79 (5th Cir. 1985)).
Although he never clearly addresses cause or prejudice, Styron
does assert that his attorney failed to object to the voir dire
questioning because he misunderstood the question and thought that
the state was presenting accurate law. This reason, however, is
not sufficient cause. The Fifth Circuit found that if an attorney
“had ‘no reasonable basis upon which to formulate a constitutional
question,’ the default is excusable.” Landry v. Lynaugh, 844 F.2d
1117, 1120 (5th Cir. 1988). An attorney’s personal alleged
misconceptions about the law do not rise to the level of a “change
in federal law.” Id. Furthermore, Styron fails to demonstrate
prejudice. The state never referred back to voir dire in its
closing arguments, and the court submitted the special issue as
dictated by Texas Criminal Procedure Article 37.071. In
interpreting the mitigation issue, a Texas court has described it
as “the weighing of mitigating evidence[,] . . . a subjective
determination undertaken by each juror.” Morris v. State, 940
30 S.W.2d 610, 614 (Tex. Crim. App. 1996).
Styron also fails to show a risk of fundamental miscarriage of
justice. Although he argues that the evidence presented during the
punishment phase concerning his dysfunctional childhood and history
of abuse was considerable, nevertheless the jury still received the
proper instruction immediately before punishment deliberations.3
See Thompson v. Lynaugh, 821 F.2d 1054, 1061 (5th Cir. 1987)
(holding, despite prosecutor’s misstatement of the law during voir
dire, there was no constitutional error because the court properly
instructed the jury in accordance with law). Because Styron has
failed to overcome the procedural bar, we decline to address the
merits of his claim of violation of his right to a fair and
impartial jury and right to due process.
IV. Conclusion
For the foregoing reasons, we deny Styron’s request for a COA
on all issues, and we affirm the district court’s denial of habeas
relief on the issues of the prohibition against cruel and unusual
punishment, equal protection, fair and impartial jury, and due
process.
Application DENIED; judgment AFFIRMED.
3 Styron even admits that the jurors took a poster board printed with Texas Criminal Procedure Article 37.071 § (2)(e) on it with them into the jury room during their deliberations.