CRIMINAL PROCEDURE
by Timothy W. Floyd·
I.
II.
INTRODUCTION.....
A
A.
B.
C.
D.
E.
F.
G.
H.
III.
REVIEW OF
FIFI'H
••••••
•••••••••
•.••••
CIRCUIT DEATH PENALTY CASES
The United States Supreme Court's Modern Death
Penalty Jurisprudence .. ... .................... ...........
Penry v. Lynaugh and the Possible Unconstitutionality of the Texas Statute
Penry Claims Before the Fifth Circuit
Procedural Default
1. In General
2. Procedural Default of Penry Claims
3. Penry Claims Raised for the First Time in
the Fifth Circuit
4. Procedural Default of Claims other than Penry
Claims
5. Procedural Default by the State
Age and Retardation
Retroactivity................................................
Ineffecitve Assistance of Counsel....................
Conclusion
,
..
..
FOURTH AND
FIFI'H AMENDMENT CASES
A. Fourth Amendment
1. Warrants
2. Warrantless Searches
B. Fifth Amendment
I.
493
494
494
500
502
506
506
509
510
511
513
513
514
519
524
525
525
525
527
529
INTRODUCTION
This article on Criminal Procedure will focus on the death
penalty cases decided by the Fifth Circuit during the period June
1, 1989 through May 31, 1990. Death penalty cases are a small
fraction of the total number of cases decided by the Fifth Circuit,
yet death penalty cases place demands on the court disproportionate
• Associate Professor of Law, Texas Tech University; B.A., Emory University, 1977;
M.A., 1977; J.D., University of Georgia, 1980.
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to the actual number of cases decided. The law governing these
cases is very complex, and each case carries obvious importance
(and often urgency) to the parties involved. As a result, appeals of
habeas corpus actions brought by persons sentenced to death in
Texas, Louisiana and Mississippi, including motions for stays of
execution, constitute a significant portion of the court's workload.
Those demands continued during the survey period.
This year, there are two additional reasons that a review of the
death penalty cases decided by the court is appropriate. First, at
the outset of the survey period the United States Supreme Court
decided Penry v. Lynaugh,l a case which cast doubt on the constitutionality of the Texas death penalty statute. Accordingly, in almost
every death penalty case from Texas (which constitute a majority
of the death penalty cases before the court) the Fifth Circuit was
faced with claims that the death sentence was unconstitutional under
Penry.
Second, various bills designed to alter the procedures in the
trial, appeal and postappeal proceedings in death penalty cases have
recently been considered by Congress. 2 Each of the various proposals
in Congress included incentives for states to appoint competent
counsel for death penalty defendants either at the trial stage or on
appeal, or both. 3 Accordingly, this review of the capital cases
decided by the Fifth Circuit during the survey period will focus
particularly on the performance of counsel at trial and on appeal.
In every death penalty case decided by the Fifth Circuit during
the survey period, the court decided issues related to the performI. 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989).
2. See, e.g., H.R. 4002, Wist Cong., 2d Sess., 136 CONGo REc. H364 (daily ed. Feb.
7, 1990) (proposing bill, in part, "to reform habeas corpus procedures in death penalty
cases").
3. In 1989, a special committee appointed by the Chief Justice (generally known as
the Powell Commission after its chair, retired Justice Lewis F. Powell) issued a report and
recommendations concerning federal habeas corpus review of death sentences. The recommendations would limit capital defendants to one habeas corpus petition in federal court
and would establish time limits on the process. For states to take advantage of the new
system, they must provide competent counsel at the postconvietion stage.
The Judicial Conference of the United States amended those proposals to reflect the
American Bar Association's position of requiring mandatory minimum standards for qualifications and compensation of counsel at all stages, including the trial. Both of these
proposals to reform habeas corpus proceedings, and several others, were considered by both
Houses during the Wist Congress. Separate versions of habeas reform were passed by both
houses. Ultimately. however, none of the proposals were included in the crime bill that
finally passed. The issue is certain to be reconsidered in the new Congress.
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ance of the lawyer at trial or on appeal. In several cases, the court
was faced with a claim that trial counsel rendered ineffective assistance in violation of the sixth amendment. 4 In many other cases, a
petitioner in a habeas corpus case before the Fifth Circuit attempted
to have the court reach the merits of an issue, only to have the
court hold that it would not reach the merits of the claim because
the lawyer failed to make a contemporaneous objection at trial or
had not raised the issue on direct appeal or in postconviction
proceedings in state court. S
After reviewing the death penalty cases in detail, this article
will deal briefly with miscellaneous cases in other areas of criminal
. procedure. 6 As usual, the Fifth Circuit decided an enormous number
of criminal cases on direct appeal from the district courts. Only a
few cases deciding issues under the fourth and fifth amendments
will be discussed.
II.
A.
A
REVIEW OF FIFTH CIRCUIT DEATH PENALTY CASES
The United States Supreme Court's Modern Death Penalty
Jurisprudence
In 1972, in Furman v. Georgia,7 the Supreme Court effectively
held unconstitutional the death penalty statutes of all states. s The
opinion for the Court was a short per curiam opinion, followed by
five concurring and four dissenting opinions. 9 Although a majority
of the Court held unconstitutional the death penalty statutes before
the Court, it did not hold that the death penalty was unconstitutional
under all circumstances. 10
4. See infra notes 217-65 and accompanying text.
5. See infra notes 98-179 and accompanying text.
6. See infra notes 270-322 and accompanying text.
7. 408 U.S. 238 (1972). Companion cases to Furman were Branch v. Texas and Jackson
v. Georgia.
8. See id. at 239-40.
9. See id.
10. Justices Brennan and Marshall, and possibly Justice Douglas, would have held that
the death penalty violates the eighth amendment under any circumstances. ld. at 305
(Brennan, J., concurring); id. at 370-71 (Marshall, J., concurring); id. at 240 (Douglas, J.,
concurring). Justice Stewart and Justice White made clear that they were not prepared to
hold all death penalty statutes unconstitutional. ld. at 307-08 (Stewart, J., concurring); id.
at 310-11 (White, J., concurring).
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In Furman, the Court held that current death penalty laws
violated the eighth amendment ban on cruel and unusual punishment
because they gave jurors too much discretion in deciding whether
to impose a death sentence. 11 Accordingly, the Court found that
imposition of the death penalty in the absence of guidelines to
juries was arbitrary, even "wanton" and "freakish."12 In addition,
for several justices, evidence that the death penalty had been imposed in a discriminatory manner contributed to the determination
that capital punishment was unconstitutional. 13
Shortly after Furman was decided, many states adopted new
statutes designed to pass constitutional muster .14 These states followed several different approaches in attempting to pass death
penalty statutes that would satisfy the concerns expressed by the
Supreme Court. Some states, including Georgia and Florida, passed
statutes that specified certain aggravating circumstances which must
be present for a judge or jury to impose a death sentence, and also
specified that certain mitigating factors must be considered before
a sentence of death may be imposed. 15 Other states, including North
Carolina and Louisiana, passed statutes that made the death penalty
mandatory for certain crimes under certain circumstances. 16
Texas passed a unique death penalty statute in that it defined
capital murder to include only certain types of murders. 17 Moreover,
11. See id. at 31Q..1I (White, J., concurring).
12. [d. at 309-10 (Stewart, J., concurring) ("These death sentences are cruel and unusual
in the same way that being struck by lightning is cruel and unusual.").
13. See id. at 257 (Douglas, J., concurring); see id. at 364-65 (Marshall, J., concurring).
14. See generally Gregg v. Georgia, 428 U.S. 153, 179·80 (1976) (discussing post-Furman
statutes).
IS. See e.g., Gregg v. Georgia, 428 U.S. 153, 163-64 (1976); Proffitt v. Florida, 428
U.S. 242, 247-48 (1976).
16. See e.g., Woodson v. North Carolina, 428 U.S. 280, 286 (1976); Roberts v.
Louisiana, 428 U.S. 325, 328-29 (1976).
17. The Texas Penal Code states:
(a) A person commits an offense if he commits murder as defined under Section
19.02(a)(I) of this code and:
(I) the person murders a peace officer or fireman who is acting in the lawful
discharge of an official duty and who the person knows is a peace officer or
fireman;
(2) the person intentionally commits the murder in the course of committing
or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault,
or arson;
(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the
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a capital murder trial in Texas is bifurcated; in the first phase of
the trial, the jury must determine the guilt or innocence of the
accused. 18 If the defendant is convicted of capital murder, the trial
court holds a separate hearing to determine whether the defendant
receives a sentence of death or life imprisonment. 19 At the sentencing
phase of a capital murder trial, the jury must answer three questions,
or "special issues." The three special issues are:
(1) whether the conduct of the defendant that caused the death
of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would
result;
(2) whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the
provocation, if any, by the deceased. 20
The jury does not expressly decide whether the defendant is sentenced to death; the jury's sole function at the sentencing phase of
the trial is to determine whether the state has proven each special
issue beyond a reasonable doubt. 21 If the answer to all special issues
is "yes," then the court must sentence the defendant to death. 22
In 1976, the Supreme Court reviewed several of the states'
statutes that had been passed since 1972. In Gregg v. Georgia23 and
Proffitt v. Florida,24 the Court upheld statutes that focused the
promise of remuneration;
(4) the person commits the murder while escaping or attempting to escape
from a penal institution;
(5) the person; while incarcerated in a penal institution, murders another who
is employed in the operation of the penal institution; or
(6) the person murders more than one person:
(A) during the same criminal transaction; or
(B) duri.ng different criminal transactions but the murders are committed
pursuant to the same scheme or course of conduct.
(b) An offense under this section is a capital felony.
TEX. PENAL CODE ANN. § 19.03 (Vernon 1989).
18. TEX. CODE CRIM. PROC. ANN. art. 37.07 (Vernon 1981 & Supp. 1991).
19. [d. art. 37.071 (Vernon Supp. 1991).
20. [d.
21. [d.
22. [d.
23. 428 U.S. 153 (1976).
24. 428 U.S. 242 (1976).
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sentencer's attention on certain aggravating and mitigating factors.
The Court found that statutes such as Georgia's and Florida's
directed and limited the jury's discretion "so as to minimize the
risk of wholly arbitrary and capricious action. "25
On the same day, the Court also upheld the Texas statute. In
Jurek v. Texas,26 the Court held. that although Texas had not
adopted a list of statutory aggravating circumstances, the limiting
of capital murder to five categories served much the same purpose. 27 .
In addition to narrowing the circumstances under which a death
sentence may be imposed, however, the Court held that a capital
sentencing system must allow the sentencer to consider mitigating
evidence. 28 Although the special issue format of the statute did not
explicitly speak of mitigating circumstances, the Supreme Court
found that the statute did allow consideration of mitigating evidence. 29 The Supreme Court emphasized that the Texas Court of
Criminal Appeals, in the only two cases affirming death sentences
under the new statute, had construed the statute to allow for
consideration of mitigating evidence. 3o The Supreme Court upheld
the Texas statute, therefore, on the understanding that the jury was
required "to consider whatever evidence of mitigating circumstances
the defense [could] bring before it. "31
The Supreme Court also emphasized the importance of mitigating evidence in Woodson v. North Carolina3 2 and Roberts v.
Louisiana33 -cases which were decided at the same time as Gregg
and Jurek. In those cases, the Court held unconstitutional state
laws that mandated death sentences upon conviction of certain types
of offenses. 34 Mandatory death penalty statutes did not "fulfill
Furman's basic requirement by replacing arbitrary and wanton jury
discretion with objective standards to guide, regularize, and make
rationally reviewable the process for imposing a sentence of death. "35
25.
26.
27.
28.
428 U.S. at 189.
428 U.S. 262 (1976).
See id. at 271.
Id. at 272.
29. Id.
30. Id. at 273.
31. Id.
32. 428 U.S. 280 (1976).
33. 428 U.S. 325 (1976).
34. See 428 U.S. at 305; 428 U.S. at 336.
35. 428 U.S. at 303.
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Because of the "fundamental respect for humanity underlying the
[e]ighth [a]mendment," the sentencer must be allowed to consider
the character and record of the individual offender and the circumstances of the particular offense. 36
Thus, although the Supreme Court has not required any particular statutory scheme in order to impose capital punishment, in
Gregg and its companions and in subsequent cases the Court has
made clear two requirements. First, the procedures used under a
statute must minimize the risk of arbitrary or capricious application,
and second, the process and decision to impose the death penalty
must be amenable to rational review. In Godfrey v. Georgia,37 the
Court held that the statutory scheme must effectively "channel the
sentencer's discretion. "38 According to the Court, each scheme must
provide clear and objective standards, specific and detailed guidance
and an opportunity for rational review of the process for imposing
a death sentence; otherwise, a statutory scheme will suffer from the
constitutional infirmity of unguided discretion as found in Furman. 39
The Supreme Court has since imposed a second requirement
on state statutory schemes: the defendant must be allowed to present
relevant mitigating evidence that might justify imposing a lesser
sentence. Since Woodson and Roberts, the Court has expanded the
principle that the defendant has a constitutional right to present
and have considered mitigating evidence. In Lockett v. Ohio,40 the
Court held that· a capital defendant has a constitutional right to
present both statutory and nonstatutory mitigating evidence. Mitigating evidence must be releva~t, but may include evidence of any
aspect of the defendant's character, background or record. 41 In
Eddings v. Oklahoma,42 the Court reversed a death sentence because
36. [d. at 304.
37. 446 U.S. 420 (1980).
38. [d. at 428.
39. [d. However, in Walton v. Arizona, _ _ U.S. _ _ , 110 S. Ct. 3047, III L.
Ed. 2d 511 (1990) and Lewis v. Jeffers, _ _ U.S. _ _ , 110 S. Ct. 3092, III L. Ed.
2d 606 (1990), the Court, while paying lip service to Godfrey, signaled a retreat from the
principle that a statutory scheme must channel the sentencer's discretion. In those two cases,
the Court held that definitions of terms in instructions on aggravating circumstances need
only give the jury "some guidance" to pass constitutional muster. See _ _ U.S. at _ _ •
110 S. Ct. at 3057, III L. Ed. 2d at 529.
40. 438 U.S. 586 (1978).
41. [d. at 604.
42. 455 U.S. 104 (1982).
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the trial judge refused to review nonstatutory mitigating evidence
of the defendant's emotional disturbance and troubled family history.43 The trial judge concluded as a matter of law that he could
not consider nonstatutory mitigating evidence. 44 The Supreme Court
held that the judge's ruling was indistinguishable from instructing
a jury to disregard the mitigating evidence.45
Read together, Lockett and Eddings hold that the defendant
cannot be restricted from presenting mitigating evidence, and the
factfinder must consider any relevant mitigating evidence presented.
The extent to which the defendant has the right to present nonstatutory mitigating evidence is further illustrated in Skipper v. South
Carolina. 46 There, the Court held unconstitutional the exclusion of
nonstatutory mitigating evidence of the defendant's good behavior
during incarceration between the time of arrest and sentencing. 47
B.
Penry v. Lynaugh and the Possible Unconstitutionality of the
Texas Statute
Notwithstanding the opinion in Jurek v. Texas, the subsequent
Supreme Court cases on a defendant's right to present and have
considered mitigating evidence cast doubt on the constitutionality
of the Texas statute. As noted above, the Court based its decision
in Jurek in part on the assumption that the Texas courts would
construe the statute as allowing the defendant to present and have
considered any mitigating evidence. 48 In light of Lockett and Eddings, however, at least one commentator asserted that the Texas
statute was unconstitutional because, contrary to the Court's expectation in Jurek, the special issue format did not allow a jury to
give effect to whatever mitigating evidence the defense wished to
proffer. 49
In Franklin v. Lynaugh,50 decided in 1988, the Supreme Court
for the first time faced an argument that the Texas statute prevented
43.
See id. at 113-14.
44.
45.
46.
[d. at 109.
[d. at 114.
476 U.S. 1 (1986).
See id. at 7.
See supra note 31 and accompanying text.
47.
48.
49. See Benson. Texas Capital Sentencing Procedure after Eddings: Some Questions
Regarding Constitutional Validity, 23 S. TEX. L.J. 315, 331 (1982).
50.
487 U.S. 164 (1988).
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the jury from considering certain mitigating evidence-specifically,
the state's stipulation to the defendant's lack of disciplinary infractions while in prison. 51 A plurality of the Court, however, rejected
the claim on the ground that the Court had previously held that
the Texas statute adequately allowed a jury to consider mitigating
evidence. 52 Justice O'Connor concurred in the result on the ground
that the only mitigating evidence offered by the defendant-his
prison record-could be fully considered by the jury in answering
the second special issue. 53 However, Justice O'Connor indicated that
had the defendant presented mitigating evidence beyond the scope
of the special issues, the "instructions would have provided the
jury with no vehicle to express its 'reasoned moral response' to that
evidence. "54 A majority of the justices in Franklin indicated that
the constitutionality of the Texas statute remained dependent on
whether juries were permitted to consider fully any mitigating
evidence relevant to the defendant's background and character. 55
In 1989, the Court in Penry v. Lynaugh56 again considered
whether the Texas statutory scheme enabled the jury to give effect
to all relevant mitigating evidence. In Penry, the defendant presented
arguably mitigating evidence of two kinds: evidence of mental
retardation-specifically that he had a mental age of a six and onehalf year old, and a history of severe abuse as a child. 57 The Court,
in an opinion by Justice O'Connor, held that merely allowing the
defendant to present the mitigating evidence was insufficient. 58
Rather, the special issues format was unconstitutional in Penry
because it did not provide the jury with a vehicle for expressing
"its reasoned moral response" to that evidence. 59 The Court held
that in light of the mitigating evidence presented, Penry was entitled
to additional jury instructions that would allow a juror to give
effect to a conclusion that Penry was less morally culpable or
51.
52.
53.
54.
[d.
[d.
[d.
[d.
at 177.
at 182.
at 185.
(quoting California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concur-
ring».
55.
See id. at 188.
56.
57.
58.
59.
492 U.S. 302,
[d. at _ ,
[d. at _ ,
[d. at _ ,
109
109
109
109
S.
S.
S.
S.
Ct.
Ct.
Ct.
Ct.
2934, 106 L. Ed. 2d 256 (1989).
at 2942, 106 L. Ed. 2d at 271.
at 2951-52, 106 L. Ed. 2d at 284.
at 2948, 106 L. Ed. 2d at 282.
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otherwise undeserving of death because of his family background
or personal circumstances. 60 Unlike Franklin, the Court found that
the second special issue, whether the defendant would be a continuing threat to society, did not allow the jury to consider the
mitigating evidence. 61 In fact, the mitigating evidence was "a twoedged sword"; the evidence might make a jury more likely to
answer the second special issue on future dangerousness in the
affirmative. 62
C.
Penry Claims Before the Fifth Circuit
After Penry was decided on June 26, 1989, in almost every
death penalty case from Texas before the Fifth Circuit, the petitioner
raised a claim that Penry rendered his death sentence unconstitutional. To assert a Penry claim, the petitioner must argue that the
jury instructions at his trial impermissibly restricted the jury's
consideration of relevant, mitigating evidence. 63 A petitioner may
not rely upon Penry, however, unless there was some mitigating
evidence before the jury. In addition, the evidence must go beyond
the scope of the special issues. In Penry itself, the defense at trial
offered mitigating evidence that fell into two categories: first, that
Penry was retarded; and second, that Penry was subjected to severe
physical abuse as a child. 64 During the survey period, the Fifth
Circuit decided in several cases how much and what kind of mitigating evidence is required to give rise to a valid Penry claim.
One point is clear: the Penry holding is not limited solely to
those defendants who are mentally retarded. In Mayo v. Lynaugh,65
Mayo's trial counsel did not present any evidence that Mayo was
mentally retarded. 66 However, counsel did present several witnesses
who testified to the traumatic circumstances of Mayo's upbringing. 67
60.
61.
[d. at _ _ , 109 S. Ct. at 2952, 106 L. Ed. 2d at 284.
[d. at _ _ , 109 S. Ct. at 2939-40, 106 L. Ed. 2d at 281.
See id. at _ _ , 109 S. Ct. at 2949, 106 L. Ed. 2d at 282.
62.
63. See Mayo v. Lynaugh, 893 F.2d 683, 688-90 (5th Cir. Jan. 1990), modified, 920
F.2d 251 (5th Cir. Dec. 1990), petition for cert. filed, _ _ U.S.L.W. _ _ (U.S. Mar. 18,
1991) (No. 90-1492).
64. Penry v. Lynaugh, 492 U.S. 302, _ _ , 109 S. Ct. 2934, 2941, 106 L. Ed. 2d
256, 271 (1989).
65. 893 F.2d 683 (5th Cir. Jan. 1990), modified, 920 F.2d 251 (5th Cir. Dec. 1990),
petition for cert. filed, _ _ U.S.L.W. _ _ (U.S. Mar. 18, 1991) (No. 90-1492).
66. [d. at 689.
67. [d. at 688.
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The evidence showed that Mayo's father began beating Mayo when
he was four or five years old, that physical and verbal abuse of
Mayo was continuous throughout his childhood and that at the time
of Mayo's sentencing his father was in prison for having raped a
child. 68 In addition, several witnesses testified to Mayo's various
good works, his religious faith and his artistic ability and interests. 69
The court held that it was not essential under Penry to prove mental
retardation. 70 Rather, Mayo had presented sufficient "constitutionally mitigating evidence" to warrant additional jury instruction. 71
The somewhat unusual procedural history of Mayo v. Lynaugh
before the Fifth Circuit is worth noting to illustrate the impact of
the Supreme Court's Penry decision on Fifth Circuit cases. The
original panel decision of the Fifth Circuit in Mayo v. Lynaugh 72
was released four days after the Supreme Court issued its opinion
in Penry. In rejecting Mayo's argument that the Texas statute
unconstitutionally prevented the jury from considering all relevant
mitigating evidence, the panel had held simply that precedents of
the circuit had settled the constitutionality of the Texas statute. 73
On petition for rehearing in light of the Supreme Court's Penry
decision, the panel first held that the evidence that had been
presented by Mayo at trial was insufficient to raise a Penry claim,
stating that Mayo had not sufficiently articulated "how the jury
was unable to express its reasoned moral response and give effect
to his mitigating evidence. "74 After a second petition for rehearing,
and five months after its second opinion, the panel issued a third
opinion which held that Mayo had in fact presented sufficient
constitutionally mitigating evidence to warrant additional jury instruction, and reversed the district court's denial of a writ of habeas
corpus. 7S
In Graham v. Collins,76 the Fifth Circuit again considered what
kind of mitigating evidence is sufficient under Penry to require
68.
69.
70.
71.
72.
[d.
[d.
[d. at 689.
[d.
882 F.2d 134 (5th Cir. June 1989).
73. See id. at 321-23.
74. Mayo v. Lynaugh, 883 F.2d 358, 360 (5th Cir. Sept. 1989).
75. Mayo v. Lynaugh, 893 F.2d 683, 689-90 (5th Cir. Jan. 1990), modified, 920 F.2d
251 (5th Cir. Dec. 1990), petition jor cert. filed, _
U.S.L.W. _ _ (U.S. Mar. 18, 1991)
(No. 90-1492).
76. 896 F.2d 893 (5th Cir. Mar. 1990), reh'g granted, 903 F.2d 1014 (5th Cir. June
1990).
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additional jury instructions. In Graham, the mitigating evidence at
issue was proof of the defendant's youthful age at the time of the
crime. 77 Graham was seventeen years old at the time the murder
was committed. 78 The state argued, however, that Graham was not
entitled to a special instruction because evidence of youth and a
difficult home life is not relevant beyond the scope of the statutory
questions. 79 The court specifically rejected the argument that the
mitigating value of youth, without more, is fully covered by the
two issues of the Texas verdict. 80 The court held that adolescence
alone is a possible constitutional mitigating factor against a sentence
of death. 81 Accordingly, the defendant was entitled to special instructions to the jury to give effect to the mitigating factor of
youth. 82 Judge Jolly dissented on the ground that the defendant's
youth presented no mitigating factor beyond the special issues. 83
The court has since voted to rehear Graham en banc. 84
If Mayo and Graham indicate that some petitioners may get
relief under Penry, Russell v. Lynaugh 8S made clear that not all
defendants may take advantage of the Penry holding. If a capital
defendant did not present mitigating evidence at the trial of the
case, then Penry has no applicability. 86 And at least some types of
mitigating evidence can be fully considered by the jury within the
context of the special issues. In Russell, the court noted "that the
only evidence offered at trial that was even arguably mitigating was
presented to the jury in the context of the second special issue. "87
77.
78.
[d. at 894.
[d. at 897.
79.
[d.
80. [d. at 897-98.
81. [d. at 898.
82. See id.
83. [d. at 899 (Jolly, J., dissenting).
84. Like Mayo, the procedural history of Graham is worth noting: the Fifth Circuit
originally decided against the defendant, Graham v. Lynaugh, 854 F.2d 715 (5th Cir. 1988),
then the Supreme Court vacated and remanded for reconsideration in light of Penry v.
Lynaugh, see Graham v. Lynaugh, _ _ U.S. _ _ , 109 S. Ct. 3237, 106 L. Ed. 2d 585
(1989), then the panel on remand granted relief, and then the entire court vacated the panel
opinion and voted to rehear the case en bane, Graham v. Collins, 903 F.2d 1014 (5th Cir.
June 1990).
85. 892 F.2d 1205 (5th Cir. Dec. 1989), petition for cert. filed, _ _ U.S.L.W. _ _
(U.S. June 1, 1990) (No. 89-7679).
86. See infra notes 91-97 and accompanying text.
87. 892 F.2d at 1214.
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Trial counsel argued to the jury that Russell had lived for some
years without committing crimes. 88 According to the court, "this
crime-free period in Russell's background was specifically proffered
in the context of the second special issue.' '89 As the Supreme Court
held in Franklin v. Lynaugh, the jury could give full mitigating
effect to that evidence by answering "no" to the second issue on
future dangerousness. 90
Another case in which the Fifth Circuit rejected a Penry claim
was DeLuna v. Lynaugh. 91 In that case the court held that the
petitioner could not take advantage of the Penry holding because
his trial counsel deliberately chose not to present any mitigating
evidence. 92 The court found that the trial lawyer made a tactical
choice not to present mitigating evidence because it would have
opened the door to the state's presenting evidence that otherwise
would have been inadmissible. 93 The court went on to note that, in
addition, the' 'kind of and quantum of mitigating evidence appellant
now claims he would have offered" would not have been sufficient
to require additional instructions under Penry. 94 Counsel stated that
he would have offered evidence of the defendant's past difficulties
of drug and alcohol abuse, his personal background, his youth and
his mental condition. 95 The Fifth Circuit noted that the defendant
was not retarded (but was at worst "borderline") and that he was
not abused as a child. 96 It remains unclear, then, exactly what "kind
and quantum" of mitigating evidence the Fifth Circuit considers
sufficient to trigger Penry's requirement of additional jury instructions. 97
88. [d.
89. [d.
90. See id. at 1215. The impatience of some members of the court with death penalty
cases is reflected in the following sentences from the first paragraph of the opinion: "As is
usually true in most of these death penalty cases, Russell's innocence is not even remotely
suggested. As is also true in most of these cases, the wheels of justice have moved very,
very slowly over more than a decade." [d. at 1206-07.
91. 890 F.2d 720 (5th Cir. Jan. 1990).
92. [d. at 722.
93. [d.
94. [d.
95. [d.
96. [d.
97. The en bane decision of the court in Graham v. Collins may decide that question.
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Procedural Default
1.
In General
In many cases during the survey period, the petitioner sought
to raise a claim that his death sentence was unconstitutional under
Penry, only to be faced with an argument from the state that the
claim should not be considered by the court because of the doctrine
of procedural default. 98 In addition to cases in which the petitioner
raised a claim under Penry, the state argued in many other death
penalty cases that the Fifth Circuit should not reach the merits of
the petitioner's claims because the petitioner's trial or appellate
counsel had arguably waived the claim in state court. 99 The doctrine
of procedural default, therefore, is of central importance in death
penalty cases.
The doctrine of procedural default in federal habeas corpus
cases precludes the federal court from reaching the merits of a
habeas claim if the state court did not rule on the merits due to a
procedural default. loo Procedural default results when, because of a
state procedural rule, the state court refuses to rule on the merits
of the claim. lol The default, then, is an independent and adequate
state ground supporting the judgment. 102 Default commonly results
from a defendant's failure to follow a state's rules requiring the
defendant to make a contemporaneous objection to particular improprieties at trial or requiring that certain issues be raised by the
defendant on direct appeal in the state system. I03
Under some circumstances, however, federal habeas courts may
ignore a state procedural bar and rule on the merits of a petitioner's
claim. 104 If the petitioner can show "good cause" for and "prejudice" from the default, the federal court may rule on the merits of
98. See infra notes 124-44 and accompanying text.
99. See, e.g., Mayo v. Lynaugh, 893 F.2d 683, 685 (5th Cir. Jan. 1990), modified, 920
F.2d 251 (5th Cir. Dec. 1990), petition for cert. filed, _
U.S.L.W. _
(U.S. Mar. 18,
1991) (No. 90-1492).
100. See Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977).
101. [d. at 82.
102. [d.
103. [d.
104. [d. at 83.
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the claim. lOS In addition, federal courts are not bound by a potential
procedural bar if the state court ignored the bar and reached the
merits of the petitioner's claim. lC>6 Finally, the state procedural
ground will not bar a federal court from reaching the merits unless
the procedural rule is consistently and regularly followed by the
state courts. 107 State courts may not avoid deciding federal issues
by invoking procedural rules that they do not apply evenhandedly
to all similar claims. lOS
A case illustrating various aspects of the doctrine of procedural
default is Hill v. BiackYJ9 One issue in Hill was whether Mississippi's
contemporaneous objection rule had been "consistently or regularly
applied" in death penalty cases. 110 In Hill, the petitioner argued
that the prosecution made an unconstitutional argument before the
jury at his trial. 111 The prosecutor told the jury that their decision
on the verdict and sentence would not be the "last word" on the
matter because the decision would be appealed. 1I2 Although this
kind of argument was later held to be unconstitutional by the
United States Supreme Court in Caldwell v. Mississippi,1I3 Hill's
trial counsel did not object to the prosecutor's argument at trial. I14
On direct appeal, the Mississippi Supreme Court did not reach the
merits of the "last word" argument, on the grounds that Hill had
not objected to the argument at trial. llS In federal district court,
the state argued that Hill's Caldwell claim was procedurally barred. 116
105. [d. The full scope of the procedural default doctrine is best seen in Smith v.
Murray, 477 U.S. 527 (1986). In that case, the defendant claimed that his rights under the
fifth amendment had been violated by the admission of a psychiatrist's testimony in clear
violation of the ruling in Estelle v. Smith, 451 U.S. 454 (1981). See 477 U.S. at 531. The
Supreme Court presumed the existence of harmful constitutional error, but refused to reverse
because Smith's lawyer had failed to raise the issue on appeal to the Virginia Supreme
Court. [d. at 538. Michael Smith was then executed by the State of Virginia.
106. Harris v. Reed, 489 U.S. 255, 262 (1989).
107. Johnson v. Mississippi, 486 U.S. 578, 587 (1988).
108.
[d.
109. 887 F.2d 513 (5th Cir. Oct. 1989), supplemented, 891 F.2d 89 (5th Cir. Dec. 1989),
vacated, _ _ U.S. _ _ , III S. Ct. 28,112 L. Ed. 2d 6 (1990).
1l0. [d. at 516.
Ill. [d. at 518.
1l2. [d.
113. 472 U.S. 320 (1985).
1l4. 887 F.2d at 518.
115.
1l6.
[d.
[d. at 516.
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The district court, however, reached the merits of the claim and
granted habeas corpus relief because "the contemporaneous objection rule had not been consistently applied in death penalty criminal
cases in Mississippi." 117
The Fifth Circuit reversed the district court's grant of habeas
corpus, holding that a review of Mississippi cases showed that the
contemporaneous objection rule had in fact been consistently or
regularly applied. u8 Thus, the federal courts were bound to honor
the procedural default ruling of the Mississippi Supreme Court. 119
The Fifth Circuit noted that, in cases of plain error, the Mississippi
Supreme Court does disregard the contemporaneous objection rule. 120
However, that did not amount to "haphazard and arbitrary" application. 121 The Fifth Circuit went on to determine in Hill that the
prosecutor's argument was not "plain error. "122 Accordingly, the
Fifth Circuit held that the Mississippi Supreme Court was justified
in applying the Mississippi contemporaneous objection rule. 123
Subsequently, the United States Supreme Court vacated the
Fifth Circuit's opinion and requested further consideration in light
of its decision in Clemons v. M;ss;sS;pp;.I24 In Clemons, the Supreme
Court held that the Constitution does not prevent a state appellate
court from upholding a death sentence that is based in part on an
invalid or improperly defined aggravated circumstance either by
reweighing the aggravating and mitigating evidence or by harmless
error review. However, the Court vacated the judgment and sentence
of death and remanded the case to the Mississippi Supreme Court
because it was unclear whether that court had correctly employed
either method. The Supreme Court's opinion remanding Hill to the
Fifth Circuit does not give that court any instructions; however, it
does not appear that the Supreme Court expressed disapproval of
the Fifth Circuit's holding on the procedural default issue. 12S
117. [d.
118. [d. at 517.
119. [d.
120. [d. at 516.
121. [d.
122. [d.
123. [d. at 518.
124. 494 U.S. _ , 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990).
125. [d. at _ , 110 S. Ct. at 1451, lOS L. Ed. 2d at 742.
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509
Procedural Default of Penry Claims
Death penalty cases arising out of Texas in which the petitioner
raised a claim under Penry frequently included an argument by the
state that the Penry claim was procedurally barred. 126 In Selvage v.
Lynaugh,127 decided in 1988 before the Supreme Court decided
Penry, the Fifth Circuit held that a Penry-type claim was procedurally barred because it was not raised by trial counsel. The
Supreme Court remanded Selvage to the Fifth Circuit after it decided
Penry, with instructions to determine whether Selvage's Penry claim
would be considered procedurally defaulted by the Texas Court of
Criminal Appeals. l28 The Fifth Circuit in turn certified the question
in Selvage to the Texas Court of Criminal Appeals: would the Texas
court consider a failure to object to the instructions or to request
additional instructions a bar to reviewing the claim on appeal in
the Texas Court of Criminal Appeals?129 Until the Texas court
answers the question, the outcome of several cases now pending
before the Fifth Circuit remains in doubt.
Before the Fifth Circuit certified the question in Selvage, it had
found several Penry claims to be procedurally barred. For example,
in Fierro v. Lynaugh,130 the petitioner had presented certain mitigating evidence at trial but had neither objected to the jury instructions nor requested an instruction on mitigating evidence. 13I On
direct appeal, the Texas Court of Criminal Appeals found that
because Fierro had failed to object or request an instruction on
mitigating evidence, "[n]othing is presented for review" as to the
issue. 132 The Court of Criminal Appeals did not stop there; it went
on to address the Penry argument on the merits and rejected it. 133
126. See, e.g., Selvage v. Lynaugh, 842 F.2d 89, 93 (5th Cir. 1988), vacated sub nom.
Selvage v. Collins, _ _ U.S. _ _ , 110 S. Ct. 974, 108 L. Ed. 2d 93 (1990).
127. 842 F.2d 89 (5th Cir. 1988), vacated sub nom. Selvage v. Collins, _ _ U.S.
_ _ , 110 S. Ct. 974, 108 L. Ed. 2d 93 (1990).
128. Selvage v. Collins, _ _ U.S. _ _ , _ _ , 110 S. Ct. 974, 974-75, 108 L. Ed.
2d 93, 94 (1990).
129. Selvage v. Collins, 897 F.2d 745, 745 (5th Cir. Mar. 1990).
130. 879 F.2d 1276 (5th Cir. Aug. 1989).
131. [d. at 1281.
132. [d.
133. See id. The reader will note that Fierro was decided prior to the Supreme Coun's
holding in Penry. Compare Fierro v. State, 706 S.W.2d 310 (Tex. Crim. App. 1986), cert.
denied, _ _ U.S. _ _ , 110 S. Ct. 1537, 108 L. Ed. 2d 776 (1990) with Penry v. Lynaugh,
492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989).
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Fierro argued before the Fifth Circuit that, under Penry, the
trial court should have instructed the jury on how to use his
mitigating evidence. 134 The Fifth Circuit held, however, that Penry
did not require that Fierro be given a new trial. 13s According to the
Fifth Circuit, the state court had clearly and expressly rested its
judgment on the state procedural default. 136 The fact that the court
also reached the merits of the argument was deemed simply an
alternative holding. 137
Fierro's counsel also argued that even if the claim was procedurally barred, the default could be excused because there was good
cause for not objecting. 13s Fierro argued that at the time of his
trial, the constitutionality of the Texas capital sentencing scheme
was settled. 139 Only after the Supreme Court decided Franklin v.
Lynaugh l40 was the issue revived, in the sense that Justice O'Connor's concurring opinion foreshadowed the Court's holding a year
later in Penry. 141 The Fifth Circuit pointed out, however, that in
Penry the Supreme Court clearly indicated that it was not announcing a new rule on the issue of mitigating evidence; thus, there was
no cause to excuse Fierro's trial counsel from raising the objection
at trial. 142 Moreover, the Fifth Circuit noted, "if counsel in Franklin
and Penry could be aware of the issue and raise it appropriately,
so could counsel in [Fierro]." 143
Penry Claims Raised for the First Time in the Fifth Circuit
Petitioners in Texas death penalty cases who do not raise the
Penry issue in habeas proceedings in the federal district court are
not allowed to raise the claim for the first time before the Fifth
Circuit. l44 In Buxton v. Lynaugh,14S the petitioner had not raised
3.
134. 879 F.2d at 1281.
135. [d. at 1282.
136. [d. at 1281.
137. See id. (relying on Harris v. Reed, 489 U.S. 255 (1989».
138. [d.
139. [d.
140. 487 U.S. 164 (1988).
141. 879 F.2d at 1281.
142. See id. at 1282.
143. [d.
144. Buxton v. Lynaugh, 879 F.2d 140, 148 (5th Cir. July 1989), cert. denied,
U.S. _ _ ,110 S. Ct. 3295, III L. Ed. 2d 803 (1990).
145. 879 F.2d 140 (5th Cir. July 1989), cert. denied, _ _ U.S. _ _ , 110 S. Ct.
3295, III L. Ed. 2d 803 (1990).
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his Penry claim in federal district court in his habeas petition. l46
Accordingly, the Fifth Circuit refused to address the merits of the
claim for the first time on appeal. I47 The petitioner had argued that
he in fact did raise, "however inartfully," the issue of whether
mitigating evidence can be considered under the scheme of capital
punishment. l48 The court found, however, that although Buxton
had challenged the constitutionality of the Texas capital punishment
system in his habeas petition, his constitutional challenge was based
entirely on the fact that this system, according to statistical studies,
produced racially discriminatory results. 149 The Fifth Circuit refused
to read that claim so broadly as to encompass a claim under
Penry. ISO
4. Procedural Default of Claims other than Penry Claims
Procedural default was also an issue in capital cases before the
Fifth Circuit regarding claims other than Penry claims. For example,
in Paster v. Lynaugh,ISI the petitioner argued that he was sentenced
to death in violation of Booth v. Maryland. 1S2 Booth prohibits the
prosecutor in a death penalty case from presenting evidence of the
emotional impact on the families of the victims. 1S3 At Paster's trial,
the state had presented testimony of the members of the victim's
family regarding the emotional impact on them, and the prosecutor
argued that the jury should consider the impact of the crime on
the victim's family.ls4 Paster's trial counsel, however, objected
neither to the testimony nor to the prosecutor's closing argument. 1SS
In a state habeas corpus proceeding, the state trial court found that
the Booth v. Maryland claim was procedurally barred under state
law. IS6 That finding was affirmed by the Texas Court of Criminal
Appeals. JS7 Accordingly, the Fifth Circuit held that the Booth v.
146. [d. at 148.
147. [d.
148. [d.
149. See id.
ISO. See id.
lSI. 876 F.2d 1184 (5th Cir. June 1989). cerro dismissed, _
272, 107 L. Ed. 2d 177 (1989).
152. 482 U.S. 496 (1987); 876 F.2d at 1187.
153. See 482 U.S. at 502.
154. See 876 F.2d at 1187.
ISS. [d.
156. [d.
157. [d.
U.S. _ , 110 S. Ct.
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Mary/and claim was procedurally barred on federal habeas review,
and did not reach the merits of the claim. ls8
Similarly, in Russell v. Lynaugh,IS9 the court refused to reach
the merits of petitioner's claim that the trial court unconstitutionally
sustained the state's challenge for cause to a particular venire
member. l60 Under Wainwright v. Witt,I61 a potential juror's opposition to the death penalty does not disqualify a juror unless it
substantially impairs that person's ability to serve as a juror. 162 The
circuit court, however, did not reach the merits of the claim on the
ground that the Texas Court of Criminal Appeals had found that
the claim was procedurally barred. 163 Under Texas law, failure to
object at trial to the exclusion of a juror constitutes a waiver of
the righLI64 The Fifth Circuit found that it was "absolutely clear"
that the Texas Court of Criminal Appeals applied the state procedural bar in rejecting all of the petitioner's claims under Witt. 16S
In dissent, Judge Johnson contended that the federal court was
not foreclosed from reaching the merits of the Witt claim,166 The
Supreme Court held in Harris v. Reedl67 that procedural default
does not bar consideration of a claim unless the last state court
rendering judgment in the case "clearly and expressly" states that
its judgment is based on a state procedural bar .168 According to
Judge Johnson, the last state court rendering a judgment on Russell's petition, the Texas Court of Criminal Appeals, did so without
a written order .169 Affirming without opinion "cannot and does not
constitute a clear and express statement that the state court based
its denial on the procedural bar. Absent such a clear and express
statement, this court must proceed to the merits of the claim. "170
158. [d. at 1188.
159. 892 F.2d 1205 (5th Cir. Dec. 1989), petition for cert. filed, _ _ U.S.L.W. _ _
(U.S. June I, 1990) (No. 89-7679).
160. See id. at 1210-11.
161. 469 U.S. 412 (1988).
162. [d. at 431 n.ll.
163. 892 F.2d at 1207.
164. See Drinkard v. State, 776 S.W.2d 181, 184 (Tex. Crim. App. 1989).
165. 892 F.2d at 1210.
166. [d. at 1219 (Johnson, J., dissenting).
167. 489 U.S. 255 (1989).
168. [d. at 256.
169. 892 F.2d at 1217 (Johnson, J., dissenting).
170. [d.
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Reaching the merits of the Witt claim, Judge Johnson found that
the juror had been unconstitutionally excluded. l7l
5.
Procedural Default by the State
An interesting variation on the procedural default issue arose
in Mayo v. Lynaugh. l72 As noted above, the court held that the
petitioner raised a valid claim under Penry, and accordingly granted
the petition for the writ of habeas corpus. 173 In its briefs to the
Fifth Circuit, the state argued that Mayo's Penry claim was procedurally barred. 174 The state, however, did not raise its procedural
default argument either in the district court or in its original
argument before the Fifth Circuit. 17s The state only raised the
procedural default point in its petition for rehearing of the Fifth
Circuit's original decision on appeal. 176 According to the Fifth
Circuit, "the blame for the lack of consideration of the procedural
default issue in the district court and on the initial appeal must rest
with the state. "177 Thus, in addressing Mayo's Penry claim, the
Fifth Circuit did not determine whether there had been a procedural
default by Mayo in state court. 17S
E.
Age and Retardation
In Penry, the Supreme Court held that it is not per se unconstitutional to execute someone who is mentally retarded. 179 In Stanford v. KentuckY,I80 the Court held that the eighth amendment does
not prohibit the execution of someone solely because he is sixteen
or seventeen years of age at the time of the crime. lSI
171. Id. at 1222 (Johnson, J., dissenting).
U.S.L.W._
172. 893 F.2d 683 (5th Cir. Jan. 1990), petition for cert. filed, _
(U.S. Mar. 18, 1991) (No. 90-1492).
173. Id. at 686.
174. Id.
175. Id.
176. Id.
177. Id. at 687.
178. See id.
179. Penry v. Lynaugh, 492 U.S. 302, _ , 109 S. Ct. 2934, 2958, 106 L. Ed. 2d
256, 292 (1989).
180. 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989).
181. Id. at _ , 109 S. Ct. at 2980, 106 L. Ed. 2d at 326.
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In Prejean v. Smith,182 the Fifth Circuit faced the question of
whether it is unconstitutional to execute someone who was both
mentally retarded and seventeen years of age at the time of the
offense. Prejean conceded that the Supreme Court had held that
mental retardation alone is not an absolute bar to the death penalty,
and that the eighth amendment does not prohibit the execution of
someone solely because he was seventeen years of age at the time
of the offense. 183 However, he argued that neither the Fifth Circuit
nor the Supreme Court had considered a case where the defendant
was both mentally retarded and seventeen years of age. l84 The Fifth
Circuit rejected the argument, holding that the jury could constitutionally render a death sentence in Prejean's case. 18' As long as
the jury was able to consider the combined mitigating effect of his
youth and his mental retardation, a jury could constitutionally
impose the death penalty on such an individual. 186
F.
Retroactivity
Another important doctrine in the law of federal habeas corpus
is retroactivity. In Teague v. Lane,187 decided shortly before the
beginning of this survey period, the Supreme Court greatly limited
the scope of federal habeas corpus review. In Teague, the Supreme
Court held that new constitutional rules of criminal procedure will
not be applicable to those cases which have become final before
the new rules are announced. 188 In other words, those persons whose
convictions have been affirmed on direct appeal before a new rule
has been announced may not seek relief under that new rule in a
habeas corpus proceeding. 189 Moreover, a petitioner in a habeas
corpus proceeding may not urge a court to adopt a new rule; if he
is to obtain relief, it must be under a rule that existed before his
conviction became final. 190 Essentially, then, the Court in Teague
182.
108 L.
183.
184.
185.
186.
187.
188.
189.
190.
889 F.2d 1391 (5th Cir. Nov. 1989), cert. denied. _
Ed. 2d 964 (1990).
[d. at 1402.
U.S. _ . 110 S. Ct. 1836,
[d.
[d.
[d.
489 U.S. 288 (1989).
[d. at 305-06.
See id. at 306.
[d.
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adopted a categorical rule of nonretroactivity for habeas corpus
review. 191 The Court held that a decision qualifies as "new" "if
the result was not dictated by precedent existing at the time the
defendant's conviction became final. "192
In Penry, however, the majority of the court agreed that Penry's
claim that the jury was not allowed to consider his mitigating
evidence was not a "new rule." 193 Accordingly, Penry's claim was
considered by the Court on the merits. Because the Supreme Court's
decision in Penry was not considered to be a "new rule," petitioners
in habeas corpus may argue that Penry applies to them even though
their convictions became final before the Supreme Court decided
Penry.
In Sawyer v. Butler,l94 the Fifth Circuit was faced with the
issue of whether Caldwell violations should retroactively benefit
defendants. In Sawyer, the en bane court held that the rule in
Caldwell v. Mississippi,19~ prohibiting the prosecutor from telling
the jury that they were not the "last word," was a new rule when
it was decided by the Supreme Court in 1985. 196 Therefore, a
Caldwell claim could not be considered by a court on habeas corpus
if the petitioner's conviction had become final before the Supreme
Court's decision. Sawyer was affirmed by the Supreme Court in
June, 1990,197
The intersection of the Teague v. Lane and Sawyer v. Smith
retroactivity/new rule principle with the "cause and prejudice" test
191. The Court did recognize two narrow exceptions: rules which place certain conduct
beyond the state's power to criminalize and those "bedrock procedural rules" that significantly enhance the accuracy of the factfinding process. [d. at 311.
192. [d. at 301 (emphasis in the original).
193. Penry v. Lynaugh, 492 U.S. 302, _ _ , 109 S. Ct. 2934, 2945, 106 L. Ed. 2d
256, 275. The Court also reached the merits of Penry's claim that mentally retarded people
should be exempt from execution (and rejected the claim) [d. at _ _ , 109 S. Ct. at 2952,
106 L. Ed. 2d at 286-87 (1989). The Court found that this claim was "new," but held thaI
it fell under a narrow exception recognized in Teague: conduct beyond the state's power to
criminalize or punish by death. [d.
194. 881 F.2d 1273 (5th Cir. Aug. 1989), a//'d sub nom. Sawyer v. Smith, _ _ U.S.
_ _ , 110 S. Ct. 2822, III L. Ed. 2d 193 (1990).
195. 472 U.S. 320 (1985).
196. 881 F.2d at 1291.
197. Sawyer v. Smith, _ _ U.S. _ _ , 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990).
In two other death penalty cases from the 1989-90 term the Court indicated that it will take
a very broad view of what is a "new rule" within the meaning of Teague. See Butler v.
McKellar, _ _ U.S. _ _ , 110 S. Ct. 1212, 108 L. Ed. 2d 347 (1990); Saffle v. Parks,
_ _ U.S. _ _ , 108 S.Ct. 1190, 108 L. Ed. 2d (1990).
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for excusing a procedural default leaves some petitioners in capital
cases caught in a bind. Under Teague, a petitioner in a habeas
corpus proceeding may not avail himself of a new rule decided after
his conviction became final}98 Where the court finds that a claim
is based on a new rule, therefore, the court will not reach the merits
of the petitioner's claim. On the other hand, for claims which are
based upon subsequent decisions which do not establish a new rule,
the petitioner may avail himself of the subsequent decision.
Nevertheless, if the state claims that an issue has been procedurally defaulted by the petitioner due to a failure to object at
trial, the petitioner can overcome the procedural default by showing
"good cause" for the failure to object. l99 In the typical case where
the state contends that a Penry claim has been procedurally barred,
the petitioner may contend that good cause excused trial counsel's
failure to object to the instructions at trial on the ground that
Penry had not yet been decided and a reasonable trial lawyer could
not have known that the issue would be valid. Both the Supreme
Court and the Fifth Circuit have made abundantly clear, however,
that Penry was not a new rule. 2°O Therefore, as to Penry claims,
trial counsel would not have "good cause" for their failure to
object.
The interplay of the two doctrines, retroactivity and procedural
default, places additional demands on defense counsel at the trial
of a death penalty case. It is now clear that habeas corpus petitioners
may not argue that a procedural default by trial counsel should be
excused by the existence of a new rule; that is, it will not do to
argue that trial counsel did not object because he could not reasonably have foreseen a change in the law. If the claim in habeas
corpus is in fact based on a new rule created after petitioner's
conviction became final, the claim is not cognizable in habeas
corpus.
Moreover, the Penry cases demonstrate that defense counsel
must make objections at trial even where the law appears settled
against the objection. Although Jurek and other appeals to the
Fifth Circuit and Texas Court of Criminal Appeals held that the
198. Teague v. Lane. 489 U.S. 288. 299 (1989).
199. Wainwright v. Sykes. 433 U.S. 72. 84 (1977). The petitioner must also show
prejudice. [d. at 87.
200. See supra note 194 and accompanying text.
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Texas statute was constitutional, the Supreme Court's holding in
Penry that the statute could be unconstitutional as applied was
found not to be a "new rule. "201 Thus, petitioners whose lawyers
did not object at trial may have their otherwise meritorious Penry
claim procedurally barred. Only those lawyers who made contemporaneous objection in the face of overwhelming adverse case
authority (and no authority in support) preserved the claim on
behalf of their clients.
In addition, the defendant must have presented mitigating evidence that went beyond the special issues. Given the special issue
format, evidence such as that in Penry can be a "two-edged sword,"
because it may make the jury more likely to find that the defendant
will be dangerous in the future. 202 Before Penry was decided, the
law was clear that no instruction on mitigating evidence would be
given. Thus, as a tactical decision, many lawyers chose not to
present mitigating evidence of either mental retardation or defect,
or of a violent and deprived childhood.
The dilemma for trial counsel was illustrated in May v. Col203
Iins.
The petitioner submitted the affidavit of a neurologist and
a psychiatrist in support of his habeas petition. 204 The affidavit
stated that May was physically abused by his father from the time
he was three or four years old, and on at least one occasion was
beaten to unconsciousness. 2os The doctor "found 'demonstrable and
significant neurological brain damage' that 'probably resulted from
head injuries, malnutrition and other fetal damage, and [his] other
medical problems.' "206 May's trial counsel, however, submitted an
affidavit stating that at the time of trial he neither developed nor
presented evidence of May's disadvantaged background and mental
impairments because it only would serve to bolster the state's case
on future dangerousness. 207 Given no assurance that an instruction
on the effect of mitigating evidence would be given, he was effec-
201. [d.
202. Penry v. Lynaugh, 492 U.S. 302, _ , 109 S. Ct. 2934, 2949, 106 L. Ed. 2d
256, 281 (1989).
U.S. _ , 111 S. Ct. 770,
203. 904 F.2d 228 (5th Cir. June 1990), cert. denied, _
112 L. Ed. 2d 789 (1991).
204. [d. at 231.
205. [d.
206. [d.
207. [d. at 232.
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tively precluded from presenting the mitigating evidence. 208 The Fifth
Circuit rejected the claim, holding that because May's lawyer made
a tactical decision not to present mitigating evidence at trial, Penry
did not require relief.209 The Fifth Circuit had previously held that
a deliberate failure to introduce mitigating evidence "does not come
within the requirements of Penry. "210
In a concurring opinion, Judge Reavley agreed that the death
sentence must be affirmed because of controlling precedent. 211 However, he wrote separately to express his view regarding the "injustice
produced through the Texas sentencing scheme and the contradictory
federal law that has upheld that scheme. "212 According to Judge
Reavley, any competent defense attorney would have decided, as
did May's counsel, to withhold the mitigating evidence rather than
present the evidence and bolster the state's case on future dangerousness. 213 He stated:
Counsel's tactical decision, wise and necessary at the time, may
be considered imprudent today because of an unpredictable change
in the law. The important reality is that May's jurors were
prevented from hearing extremely probative evidence on his
moral culpability and on the appropriateness of a death sentence.
Consequently, May has been deprived of the sentencing jury's
fully informed judgment of his crime and his character. He has
been caught in a web spun of words and logic that, in the end,
has deprived May of his constitutional rights, a deprivation that
may cost him his life. 214
Although Judge Reavley was surely right that the federal law on
the Texas sentencing scheme has been contradictory, Penry is clear
that in cases where mitigating evidence goes beyond the special
issues, the Texas scheme has been unconstitutionally applied. Where
the unconstitutional scheme prevented the lawyer from presenting
constitutionally mitigating evidence, the defendant has been deprived
of his constitutional rights. It is difficult to see why such a defendant
is not entitled to relief.
208.
209.
210.
211.
212.
213.
214.
See id.
See id.
[d. (quoting DeLuna v. Lynaugh, 890 F.2d 720, 722 (5th Cir. Dec. 1989).
[d. (Reavley, J., concurring).
[d.
See id. at 234.
[d.
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519
Ineffective Assistance of Counsel
The sixth amendment 215 guarantees the right to effective assistance of counsel in criminal prosecutions. In Strickland v. Washington,216 the Supreme Court established a two-pronged test to
govern ineffective assistance claims. The defendant has the burden
of showing: (1) that counsel's performance fell below an objective
standard of reasonableness, and (2) that there is a reasonable
probability that counsel's performance caused the petitioner prejudice. 217 In other words, the petitioner must prove that "but for"
counsel's errors, the result of the proceeding would have been
different.
In several death penalty cases before the Fifth Circuit in the
survey period, petitioners raised claims that their trial counsel had
rendered ineffective assistance. In Romero v. Lynaugh,218 a federal
district court granted a writ of habeas corpus on the ground that
petitioner's trial counsel rendered ineffective assistance. The federal
district court found that Romero's trial counsel failed to offer any
argument at the punishment phase of the trial. 219 The entire argument was as follows: "You are an extremely intelligent jury. You've
got that man's life in your hands. You can take it or not. That's
all I have to say.' '220 The district court held that the failure to
present any argument at the sentencing phase was so patently
unreasonable as to constitute a deficiency under the first prong of
Strickland. 221 In addition, the court concluded that there was a
reasonable probability that, absent this deficiency, the jury would
have sentenced Romero to life imprisonment rather than death. 222
The district court found that the lawyer could have argued that
Romero was a teenager, that he was intoxicated at the time of the
offense and that his family background might have mitigated the
punishment. 223 The district court was persuaded that "the decision
215. U.S. CONST. amend. VI.
216. 466 U.S. 668 (1984).
217. [d. at 687.
218. 884 F.2d 871 (5th Cir. Oct. 1989), cert. denied, _
1311, 108 L. Ed. 2d 487 (1990).
219. [d. at 872.
220. [d. at 875.
221. [d. at 876.
222. [d.
223. [d. at 876-77.
U.S. _ , 110 S. Ct.
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not to present a more extensive argument at punishment precluded
the jury from considering any mitigating factors and waived [Romero's] constitutional rights guaranteed by Lockett. ... "224
The Fifth Circuit reversed, finding that the efforts of Romero's
trial counsel met the constitutional standard of effective counsel. 225
The court first noted that "our judicial scrutiny of counsel's performance must be highly deferential. "226 In addition, the court
stated that "We are to make every effort to eliminate the 'distorting
effect of hindsight' . . .. Finally, 'we are to indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.' "227 The Fifth Circuit noted that
Romero's trial counsel was experienced, and that the lawyer did
engage in substantial preparation for trial. 228 As to the failure to
make a closing argument, the court noted that all the arguably
mitigating evidence was before the jury.229 Accordingly, the question
was whether the lawyer's "dramatic ploy" at the penalty phase of
the trial "fell off the constitutional range. "230 The court concluded:
Given his difficult situation, we are not prepared to fault [counsel's] effort to highlight the heavy responsibility of the jury by
not burdening them with the obvious and avoiding the risk of
losing them by arguing the absurd. To do so comes close to
insisting on a pro forma argument in every case. Had the jury
returned a life sentence the strategy might well have been seen
as a brilliant move. That it did not does not mean that it was
outside the range of reasonable professional assistance. 231
Even where the trial lawyer specifies in detail the deficiencies
in his performance at trial, the Fifth Circuit is not disposed to
engage in "hindsight." In Prejean v. Smith,232 the petitioner raised
a sixth amendment right to effective representation of counsel claim,
and cited several specific deficiencies in his trial counsel's performance. 233 As part of petitioner's case in federal habeas corpus, he
224. [d. at 876.
225. See id. at 878-79.
226. [d. at 876.
227. [d. (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984».
228. [d. at 877.
229. [d.
230. [d.
231. [d.
232. 889 F.2d 1391 (5th Cir. Nov. 1989), cert. denied, _ _ U.S. _ _ , 110 S. Ct.
1836, 108 L. Ed. 2d 964 (1990).
233. See id. at 1397-98.
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presented an affidavit from his original trial counsel, which, according to the Fifth Circuit, "recites a litany of 'I did nots' and
'in hindsight I should haves.' "234 The Fifth Circuit found that each
deficiency asserted by the lawyer was in fact within the range of
reasonably competent represention. 235 The court went on to note:
This self-deprecation by [the lawyer) is both uncalled for and
inaccurate. The reason Dalton Prejean faces death at the hands
of the state of Louisiana is because he murdered a peace officer
of that State who stopped his defectively lighted car while he
was driving drunk. Killing an officer who was in the process of
taking a drunken driver off the highways has got to be one of
the hardest of all crimes to defend. 236
The court thus appeared to hold that it would be impossible for
Prejean to satisfy the second prong of Strick/and; that is, given the
clear evidence of Prejean's guilt, even the most effective counsel
could not have affected the outcome of the trial.
In Russell v. Lynaugh,237 the court rejected an effective assistance of counsel claim on grounds similar to those in Prejean. 238 In
Russell, the petitioner alleged that his trial counsel failed to discover
alibi witnesses who could have testified in the guilt or innocence
phase of the trial and character witnesses who could testify in the
punishment phase. 239 Because the federal district court did not give
Russell an evidentiary hearing, the standard of review in the Fifth
Circuit was whether Russell's allegations, if proved, would establish
the right to habeas relief. 240 In response to Russell's claims that
minimal investigation would have revealed childhood friends and
Russell's minister as helpful character witnesses, the court replied:
"Given the weakness of such testimony when juxtaposed with the
overwhelming evidence of guilt, the horrifying nature of the crime,
and the abundant impeachment material available to the state, his
lawyer acted reasonably in not putting these witnesses on the
stand. "241
234. Id. at 1401.
235. See id.
236. [d.
237. 892 F.2d 1205 (5th Cir. Dec. 1989), petition for cert. filed, _ _ U.S.L.W. _ _
(U.S. June 1, 1990) (No. 89-7679).
238. See id. at 1216.
239. Id. at 1213.
240. Id.
241. Id.
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The Fifth Circuit appears to hold lawyers for the clearly guilty
to a lesser standard of constitutional effectiveness. The Supreme
Court's opinions in Lockett, Eddings and Penry clearly hold that
the capital defendant has a constitutional right to have any relevant
mitigating evidence considered by the sentencer. No matter how
overwhelming the evidence of the defendant's guilt or how horrifying the nature of the crime, the sentencer must consider any
evidence which might indicate that a life sentence is more appropriate for this individual than death. 242 Thus, statutes that provide
mandatory death sentences for some crimes are unconstitutional. In
holding that there is no obligation for defense lawyers to present
or argue the effect of mitigating evidence in certain cases, the Fifth
Circuit is eroding the protections afforded by the Supreme Court
in Penry. A good example is the language quoted· above from
Romero. 243 The Fifth Circuit, in assuming that any argument would
have been "pro forma," believed that no one could have found
anything good to say about Jesus Romero. In the absence of any
argument from his lawyer, the jury must have assumed the same
thing.
In addition, the Russell opinion demonstrates that the burden
is on the petitioner to be quite specific in identifying conduct by
the lawyer that was ineffective and to demonstrate how that conduct
affected the outcome of the trial. Russell argued that his lawyer
was burdened by a conflict of interest in that the lawyer had a
continuing attorney-client relationship with one of the state's witnesses. 244 The court found, however, that there was no "actual"
conflict of interest, and that there was no evidence that the crossexamination of that witness was affected by the relationship.24S As
an additional allegation of ineffective assistance, Russell claimed
that his lawyer's performance was diminished by alcohol. 246 The
court did not discuss that claim at all, except to hold simply that
"Russell does not show that [the] alcohol use, if true, deprived
Russell of a fair trial. "247
242. See supra notes 42-54 and accompanying text.
243. See supra notes 219-32 and accompanying text.
244. Russell v. Lynaugh, 892 F.ld 1205, 1213 (5th Cir. Dec. 1989), petition for cert.
filed, _ _ U.S.L.W. _
(U.S. June I, 1990) (No. 89-7679).
245. [d. at 1213-14.
246. [d. at 1213.
247. [d.
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Cases in which the state contends that claims are barred by
procedural default may in turn give rise to a claim of ineffective
assistance of counsel. In Hill v. Black,248 as noted above, the Fifth
Circuit held that the petitioner's claim under Caldwell v. Mississippi
was procedurally barred.249 The petitioner also contended, however,
that the failure of his trial counsel to object to the prosecutor's
"last word" argument constituted ineffective assistance of counsel. 2SO The Fifth Circuit rejected that claim as well, on the ground
that the failure to object, even if such failure constituted deficient
performance by counsel, did not prejudice Hil}.251 The court found
that Hill did not prove that the jury would have decided his case
differently had the lawyer made the objection. 252
In one capital case during the survey period, the court did not
reject an ineffective assistance of counsel claim. In Loyd v. Smith,m
after an evidentiary hearing in a state habeas corpus proceeding,
the state court concluded that the performance of counsel at the
sentencing phase of the original trial was constitutionally deficient
under the first prong of Strickland. 254 The claim stemmed from
Loyd's trial counsel's failure to investigate evidence of Loyd's
mental state. 255 The state habeas court made specific factual findings
that counsel was deficient in not exploring the statutory mitigating
circumstances and in not making a concerted attempt to engage the
services of independent psychiatrists. 256 However, because the state
court concluded that such deficiency did not prejudice Loyd, it
denied habeas relief. 2S7 Withqut conducting a new evidentiary hearing, the federal district court concluded that, contrary to the finding
of the state court, counsel did not perform in a deficient manner. 2S8
According to the district court, "Loyd's counsel was under no duty
248. 887 F.2d 513 (5th Cir. Oct. 1989), supplemented, 891 F.2d 89 (5th Cir. Dec. 1989),
vacated, _
U.S. _ _ • 111 S. Ct. 28, 112 L. Ed. 2d 6 (1990).
249. [d. at 516-17.
250. [d. at 522-23.
251. [d. The Supreme Court vacated the decision on other grounds. See supra notes 12425 and accompanying text.
.
252. 887 F.2d at 523-24.
253. 899 F.2d 1416 (5th Cir. Apr. 1990).
254. [d. at 1421.
255. [d. at 1421-22.
256. [d. at 1423.
257. [d.
258. [d.
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to search for an expert who would testify according to Loyd's
wishes. "259
On appeal, the Fifth Circuit reversed the district court and
remanded for further consideration. 26O The Fifth Circuit found that
the district court had failed to give proper deference to the state
court's factual findings with respect to the ineffective assistance of
counsel claim. 261 According to the Fifth Circuit, the state court
found that Loyd's trial counsel was not aware that evidence of
mental disease or defect which did not reach the level of insanity
may nevertheless be admissible as mitigating evidence in a death
penalty trial. 262 The Fifth Circuit held that the federal district court
was required to give deference to those factual findings in order to
determine whether there was deficient performance under the first
Strickland prong and prejudice under the second prong. 263 Although
the Fifth Circuit found that the district court was correct in its
finding that counsel did not have a duty to search for an expert to
testify according to the defendant's wishes, the district court's
reliance upon that principle was deemed "incongruous" in light of
trial counsel's ignorance of the law regarding mitigating evidence. 264
Ultimately, whether there is ineffective assistance of counsel
under the sixth amendment is a question of federal law. Nevertheless, Loyd shows that findings of fact can be crucial in answering
that question. Loyd is also significant in that at least one panel of
the Fifth Circuit has held that a failure to investigate and offer
mitigating evidence may under certain circumstances constitute ineffective assistance of counsel.
H.
Conclusion
This review of the death penalty cases has focused on two
areas. The first was an examination of the impact of the Supreme
Court's decision in Penry v. Lynaugh. 265 Concerns that all death
row inmates in Texas would get immediate relief were unfounded.
259.
260.
261.
262.
263.
264.
265.
[d. at 1424.
[d. at 1426.
[d.
[d.
[d. at 1427.
[d. at 1426.
See supra text accompanying notes 65-97.
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The Fifth Circuit was indeed faced with claims in many Texas death
penalty cases that Penry required that the death sentence be set
aside. In only two cases did the Fifth Circuit hold that Penry
required relief. One of those cases, Graham v. Collins, has been
vacated and will be reheard by the court en banc. 266 In the other,
Mayo v. Lynaugh, although the opinion has not been vacated, the
mandate has not been issued. Penry did not require relief in the
other cases for two reasons: either the defendant did not present
sufficient mitigating evidence that went beyond the special issues,
or the court held that the Penry claim was procedurally defaulted
because of a failure to object to the instructions or to request
additional instructions.
Second, this review of death penalty cases focused on the
performance of trial counsel and examined how that performance
affected the issues before the Fifth Circuit. 267 The court's approach
to the performance of trial counsel depends on the context. In
claims by the petitioner of ineffective assistance of counsel, the
court was content with extremely low standards for trial counsel. 268
On the other hand, in claims by the state that a claim is barred by
a procedural default by the defendant's trial counsel, the Fifth
Circuit held trial lawyers to a very strict standard. The court is
consistent in one respect: whatever the issues, the current Fifth
Circuit is very unlikely to reverse a death sentence.
III.
FOURTH AND FIFTH AMENDMENT CASES
A.
Fourth Amendment
1.
Warrants
In a case of first impression, the Fifth Circuit held in Bennett
v. City of Grand Prairie269 that courts could consider polygraph
266. See supra note 84.
267. See text accompanying notes 216-65.
26g. Since 1984. in thirty-two death penalty habeas corpus cases in which the petitioner
alleged ineffective assistance of counsel, the Fifth Circuit denied relief in thirty-one cases
and granted relief in one case. Coyle, Effective Assistance: Just a Nominal Right? 12 Nat'l
L.J., June 11, 1990, No. 40, at 42.
269. 883 F.2d 400 (Sth Cir. Sept. 1989).
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evidence in determining probable cause to issue an arrest warrant. 270
Although polygraph evidence is inadmissible at trial because the
jury may give it undue weight, the court found that a magistrate
is less likely than a juror to be misled" as to the weight of the
evidence. 271 The court also noted that warrants may be supported
by evidence that would be inadmissible at trial, such as hearsay. 272
Bennett was a civil rights case under 42 U.S.C. section 1983, but
the court's holding makes clear that in the Fifth Circuit polygraph
evidence can be considered in determining probable cause to issue
an arrest warrant. 273
The court considered the sufficiency of a search warrant in
United States v. Alva. 274 The warrant authorized the search of a
house and "any and all motor vehicles found parked" on the
premises. 275 While the warrant was being executed, a vehicle arrived
at the house. 276 The owner and lessor of the premises, Mr. Alva,
arrived in his pickup truck and parked within fifteen feet of the
house. 277 As Alva entered the house, he was detained while the
search was being executed. 278 Meanwhile, another officer searched
the truck and discovered a gun inside the glove compartment. 279 At
his trial for being a felon in possession of a firearm, Alva unsuccessfully moved to suppress the gun on the ground that the warrant's
language did not include vehicles that arrived at the premises after
the search had begun. 280
On appeal, the court affirmed, holding that the language of
the warrant included the truck. 281 The court stated that Alva's
reading of the warrant language "unnaturally cramps the warrant's
temporal authority. Searches do not take place in an instance; they
occur over a period of time, sometimes many hours. "282 The court
270.
271.
272.
273.
274.
275.
276.
277.
278.
279.
280.
281.
282.
[d. at 406.
See id. at 405.
[d.
[d. at 406.
885 F.2d 250 (5th Cir. Sept. 1989).
[d. at 251.
[d.
[d.
[d.
[d.
[d.
[d. at 252.
[d.
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held that the officers are limited only to areas they reasonably
believed could contain the items described in the warrant. 283
In United States v. Peden,284 the issue was the particularity of
a warrant authorizing a search of the home of a suspected pedophile. 285 The warrant authorized the seizure of visual depictions of
minors engaging in sexually explicit conduct, including books, magazines, films, videos, correspondence and other documents related
to the purchase or trading of child pornography, and United States
Customs Service seizure notifications relating to previous child
pornography seizures. 286 Following cases from the Fourth and Ninth
Circuits,287 the Fifth Circuit found that this warrant was specific
enough to satisfy the fourth amendment's particularity requirement. 288 The court found that the description left "little doubt as
to the type of material to be seized, and [provided] the searching
officers with a sufficiently objective standard to follow in conducting the search. "289
2.
Warrantless Searches
In United States v. Muniz-Melchor,290 the issue was whether a
border patrol agent who tapped on the side of a large propane tank
had conducted a "search" within the meaning of the fourth amendment.291 The tank was anchored to the bed of a pickup truck
stopped at an immigration check point. 292 The agent tapped the
tank to discover whether the tank had been penetrated to hide
contraband. 293 Finding this to be an issue of first impression, the
court held that the tapping was not a search; therefore, the fact
that the agent lacked grounds for search at that point did not taint
283. [d.
284. 891 F.2d 514 (5th Cir. Dec. 1989).
285. See id. at 516.
286. [d.
287. United States v. Dornhofer, 859 F.2d 1195 (4th Cir. 1988), cert. denied, 490 U.S.
1005 (1989); United States V. Rabe, 848 F.2d 994 (9th Cir. 1988).
288. 891 F.2d at 520.
289. [d. at 518.
290. 894 F.2d 1430 (5th Cir. Feb.), cert. denied, _
U.S. _ , 110 S. Ct. 1957, 109
L. Ed. 2d 319 (1990).
291. See id. at 1434.
292. [d. at 1432.
293. [d.
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the subsequent searches of the tank which revealed a quantity of
marijuana. 294
The Fifth Circuit distinguished, on two grounds, Arizona v.
Hicks,295 in which the Supreme Court held that a search occurred
when an officer picked up a piece of stereo equipment to read the
serial number. First, the search in Hicks was of a residence, and
one generally has a substantially greater expectation of privacy in
the home rather than in an auto. 296 Second, the court emphasized
that, by moving the stereo equipment to view its serial numbers,
the officer was revealing something that previously had been left
concealed by the defendant. 297 On the other hand, the court found
it "difficult to say" that Muniz-Melchor, by mounting a large
propane tank in the open bed of his pickup truck, reasonably
expected that no one would tap the side of the exposed tank. 298
In United States v. Sheppard,299 a border patrol agent leaned
his head inside a vehicle while questioning its occupants about their
citizenship.3°O As he did so, he detected the odor of burnt marijuana. 301 The defendant then consented to a search, which yielded
a large brick-shaped object the agent was certain contained drugs. 302
When the defendant was told that he would be detained, he sped
away.303 After he was captured, a search of the defendant's car
yielded a large quantity of cocaine. 304 On appeal, the Fifth Circuit
assumed without deciding that the agent's leaning inside the car
was an unreasonable search. Nevertheless, the court held that the
initial illegality was sufficiently attenuated by the driver's consent
to search and his subsequent flight. 305 Accordingly, the court held
that exclusion of the fruits of the search was not required. 306
294.
295.
296.
297.
298.
299.
300.
301.
302.
303.
304.
305.
306.
See id. at 1433-35.
480 U.S. 321 (1987).
894 F.2d at 1436.
[d.
[d.
901 F.2d 1230 (5th Cir. May 1990).
[d. at 1231.
[d.
[d.
[d.
[d.
See id. at 1235-36.
[d. at 1237.
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In United States v. DeLeon-Reyna,307 the Fifth Circuit dealt
with the scope of the good faith exception to the exclusionary rule.
A border patrol agent stopped a pickup after being told by his
dispatcher that the license plate was registered to a truck .of a
different year, make and type. 308 In fact, the truck's registration
was perfectly proper, but the dispatcher had misunderstood the
agent when he called in the license plate. 309 Finding that the agent
had been negligent when he used letters rather than code names,
the court held that the good faith exception did not apply.310 The
court emphasized that a good faith belief must be reasonable. 31l
Where the officer acts negligently, he cannot be said to act reasonably.312 The court has voted to rehear DeLeon-Reyna en banc and
has vacated the panel's opinion. 313
B.
Fifth Amendment
In United States v. Harrell,314 the Fifth Circuit held that a man
detained and questioned about importation of illegal aliens at an
Immigration and Naturalization service office near an airport immigration checkpoint was not "in custody" for purposes of the
fifth amendment. m Accordingly, statements the suspect made in
the interview before he had been given Miranda warnings were
admissible against him. 316 The court concluded that a reasonable
person in the defendant's position would not have felt his freedom
of movement was restrained to the degree usually associated with
formal arrest. 317 The court relied upon United States v. Bengivenga,318 in which the Fifth Circuit had held that immigration deten-
307.
1990).
308.
309.
310.
311.
312.
313.
314.
112 L.
315.
316.
317.
318.
898 F.2d 486 (5th Cir. Apr. 1990), reh'g granted, 908 F.2d 1229 (5th Cir. Aug.
[d. at 487.
[d.
[d. at 488.
[d. at 489-90.
[d.
United States v. DeLeon-Reyna, 908 F.2d 1229 (5th Cir. Aug. 1990).
U.S. _ , 111 S. Ct. 101,
894 F.2d 120 (5th Cir. Jan. 1990), cert. denied, _
Ed. 2d 72 (1990).
[d. at 124.
[d. at 125.
[d. at 124.
845 F.2d 593 (5th Cir. 1988) (en bane), cert. denied, 488 U.S. 924 (1988).
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tions are typically not the equivalent of formal arrests. 319 The court
further noted that the length of this interrogation session-over an
hour-did not render it custodial, and emphasized that the damning
admissions occurred early 'in the interview. 320
319. ld. at S98.
320. See 894 F.2d at 124.
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