Alexander v. Johnson

Revised May 10, 2000 1
UNITED STATES COURT OF APPEALS 2
FOR THE FIFTH CIRCUIT 3
4
No. 00-50101 5
CARUTHERS ALEXANDER, 6
Petitioner-Appellant, 7
v. 8
GARY L. JOHNSON, DIRECTOR, 9
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 10
INSTITUTIONAL DIVISION, 11
Respondent-Appellee. 12
Appeal from the United States District Court for the 13
Western District of Texas 14
May 5, 2000 15
Before JOLLY, DAVIS and JONES, Circuit Judges. 16
PER CURIAM: 17
Caruthers Alexander, a Texas death row inmate, seeks a 18
certificate of appealability (“COA”) to appeal the district court’s 19
denial of his petition for a writ of habeas corpus. 28 U.S.C. § 20
2253. Because Alexander’s petition runs afoul of the 21
nonretroactivity rule in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 22
1060 (1989), we deny the requested COA. 23

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1 This was Alexander’s second trial for this offense.
Alexander was previously convicted of capital murder and sentenced
to death in 1981. The Texas Court of Criminal Appeals overturned
his conviction on October 7, 1987. Alexander v. State, 740 S.W.2d
749 (Tex. Crim. App. 1987).
2 The Court of Criminal Appeals recounts in detail the
evidence supporting Alexander’s conviction. Alexander, 740 S.W.2d
at 4-5. The recitation of facts confirms that the charge against
Alexander was abundantly proved by physical evidence.
2
BACKGROUND 24
In April 1989, a jury found Alexander guilty for the 25
capital murder of Lori Bruch in the course of committing and 26
attempting to commit aggravated rape.1 Following a separate 27
hearing on punishment, the same jury affirmatively answered the 28
special questions submitted to it pursuant to former Article 37.071 29
of the Texas Code of Criminal Procedure. The trial court sentenced 30
Alexander to death. The Court of Criminal Appeals affirmed the 31
conviction and sentence in April 1993.2 Alexander v. State, 866 32
S.W.2d 1 (Tex. Crim. App. 1993). Rehearing was denied in September 33
1993, and the United States Supreme Court denied Alexander’s 34
petition for certiorari on May 16, 1994, rendering his conviction 35
final. Alexander v. Texas, 511 U.S. 1100, 114 S.Ct. 1869 (1994). 36
Alexander next filed an application for writ of habeas 37
corpus in the state trial court. The trial court entered findings 38
of fact and conclusions of law on September 21, 1996, and the Court 39
of Criminal Appeals denied relief based on these findings on 40
November 26, 1997. Alexander then moved for and received a stay of 41

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3
execution in federal district court. On July 1, 1998, Alexander 42
filed the instant habeas petition, which the district court denied 43
on November 30, 1999. Alexander’s motion to alter and amend the 44
judgment was denied on January 7, 2000, and in both orders, the 45
district court denied a COA. 46
Alexander applied for a COA with this court, and we 47
granted Alexander’s motion for stay of execution in order to 48
consider his application. 49
DISCUSSION 50
Under the Antiterrorism and Effective Death Penalty Act 51
of 1996 (“AEDPA”), Alexander must obtain a COA in order to appeal 52
the denial of his habeas petition. A COA may only be issued if the 53
prisoner has made a "substantial showing of the denial of a 54
constitutional right." 28 U.S.C. § 2253(c)(2). "A 'substantial 55
showing' requires the applicant to 'demonstrate that the issues are 56
debatable among jurists of reason; that a court could resolve the 57
issues [in a different manner]; or that the questions are adequate 58
to deserve encouragement to proceed further.'" Drinkard v. 59
Johnson, 97 F.3d 751, 755 (5th Cir.1996) (quoting Barefoot v. 60
Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 61
(1983)). See Slack v. McDaniel, ___ S.Ct. ___, 2000 WL 478879, *6- 62
7 (U.S. S.Ct. Apr. 26, 2000). In a capital case, “the severity of 63
the penalty does not in itself suffice to warrant the automatic 64
issuing of a certificate,” although the court may properly consider 65

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4
the nature of the penalty in deciding whether to allow an appeal. 66
Barefoot, 463 U.S. at 893, 103 S.Ct. at 3395. 67
Alexander argues that his rights under the Eighth and 68
Fourteenth Amendments were violated by the trial court’s refusal to 69
instruct the jury as to the effect of a hung jury. The Texas 70
sentencing statute provides that if a capital sentencing jury 71
answers “yes” to each of the punishment questions submitted, the 72
defendant will be sentened to death, but if ten or more jurors 73
answer one or more of the issues “no,” or if the jury is unable to 74
agree on an answer to any issue, the defendant will be sentenced to 75
life imprisonment. Texas Code Crim. Proc. Ann. 37.071(d)(2),f(2), 76
&(g) (Vernon Supp. 1999). The statute, however, prohibits the 77
court or the attorneys for the state or the defendant from 78
informing the jury of the effect of the failure to agree on an 79
issue. Id. In Texas, this is commonly called the “10-12 Rule.” 80
During jury deliberations at the punishment phase of 81
Alexander’s trial, the jury sent the following note to the court: 82
If jury deliberation does not produce a 12-0 83
“yes” vote, or a 10-2 “no” vote, on a special 84
issue, what other recourse does the jury have? 85
/s Foreman 86
The court replied that it was not authorized to give any additional 87
instructions on the issue. Alexander asserts that this refusal to 88
issue clarifying instructions was unconstitutional because it 89
created a false need for a nearly unanimous response to the special 90
issues. 91

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3 Under Teague, new rules of constitutional criminal
procedure will not be announced on federal habeas review unless an
exception applies. Teague, 489 U.S. at 316, 109 S.Ct. at 1078.
“[A] case announces a new rule when it breaks new ground or imposes
a new obligation on the States or the Federal Government . . . .
To put it differently, a case announces a new rule if the result
was not dictated by precedent existing at the time the defedant’s
conviction became final.” Id. at 301, 109 S.Ct. at 1070.
4 In Mills, the Supreme Court struck down a death sentence
imposed under Maryland’s capital punishment scheme because jury
instructions may have precluded the jury from considering
mitigating evidence unless the jury agreed unanimously on each
mitigating factor. See Mills, 486 U.S. at 384, 108 S.Ct. at 1870.
The Court has subsequently interpreted Mills to mean that “each
juror [must] be permitted to consider and give effect to mitigating
evidence when deciding the ultimate question whether to vote for a
sentence of death.” McKoy v. North Carolina, 494 U.S. 433, 442-43,
110 S.Ct. 1227, 1233 (1990).
5 In addition to be being barred by Teague, Alexander’s
substantive argument is meritless. The Supreme Court recently
5
This Court has considered this argument before and found 92
it barred by the nonretroactivity rule of Teague v. Lane, 489 U.S. 93
288, 109 S.Ct. 1060 (1989).3 See Webb v. Collins, 2 F.3d 93 (5th 94
Cir. 1993). Because we find Webb materially indistinguishable from 95
the instant case, we conclude that Alexander’s argument is Teague- 96
barred as well. The petioner in Webb made the same argument as 97
Alexander -- that the Texas 10-12 rule compelled the jury to vote 98
“yes” on the special issues -- and he relied on the same authority 99
-- Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860 (1988).4 See 100
Webb, 2 F.3d at 95. We concluded in Webb that the principles of 101
Mills did not dictate the rule urged by the petitioner, see Webb, 102
2 F.3d at 96, and precedent constrains us to reach the same 103
conclusion here.5
104

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rejected the theory that a district court’s failure to instruct the
jury as to the consequences of deadlock gives rise to an Eighth
Amendment violation. See Jones v. United States, 119 S.Ct. 2090,
2099 (1999). Furthermore, the Fifth Circuit has expressly rejected
the contention that Texas’s 10-12 Rule prevents jurors from
considering mitigating circumstances. See Jacobs v. Scott, 31 F.3d
1319, 1328-29 (5th Cir. 1994).
6 Alexander’s argument that the district court applied the
incorrect legal standard for granting a COA barely rates mentioning
in view of the fact that the court applied the precise standard
mandated by Fifth Circuit precedent.
6
Alexander makes two additional arguments in quest of his 105
COA. First, he urges us to allow the parties to re-brief all 106
claims in light of the Supreme Court’s recent decision in Williams 107
v. Taylor, -- S.Ct.---, 2000 WL 385369 (U.S.), which modified the 108
habeas standard announced in Drinkard v. Johnson, 97 F.3d 751, 756 109
(5th Cir. 1996). The problem with this argument is that Williams 110
is irrelevant to our disposition of Alexander’s constitutional 111
claim. Alexander’s claim is Teague-barred, separate and apart from 112
any deference to state court findings or conclusions, and any 113
argument on the Supreme Court’s modification of the Drinkard 114
standard would be unproductive. 115
Alexander also argues that the district court’s sua 116
sponte denial of COA denied him meaningful access to the courts and 117
representation of counsel.6 This argument is meritless. It is 118
perfectly lawful for district court’s to deny COA sua sponte. The 119
statute does not require that a petitioner move for a COA; it 120
merely states that an appeal may not be taken without a certificate 121
of appealability having been issued. 28 U.S.C. § 2253(c). 122

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7
Furthermore, Alexander points to no legal support for his 123
contention that his rights were violated by the district court’s 124
sua sponte denial of COA without prior briefing and argument by 125
counsel. Arguably, the district court that denies a petitioner 126
relief is in the best position to determine whether the petitioner 127
has made a substantial showing of a denial of a constitutional 128
right on the issues before that court. Further briefing and 129
argument on the very issues the court has just ruled on would be 130
repetitious. 131
CONCLUSION 132
Because Alexander’s constitional argument was foreclosed 133
by Teague, he is unable to make a substantial showing that his 134
consititional rights were denied. We therefore DENY his 135
application for a COA and VACATE the stay of execution granted by 136
this court. 137

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