Carey Kerr v. Rick Thaler, Director

Filing 511160264

Carey Kerr v. Rick Thaler, Director

Doc. 511160264

Case: 09-70030

Document: 00511160264

Page: 1

Date Filed: 06/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
June 30, 2010 N o . 09-70030 Lyle W. Cayce Clerk

C A R E Y D KERR, P e t it io n e r - Appellant v. R I C K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION, R e s p o n d e n t - Appellee

A p p e a l from the United States District Court for the Northern District of Texas U S D C No. 4:06-CV-372

B e fo r e BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. P E R CURIAM:* C a r y Kerr (spelled "Carey Kerr" in some court records) was convicted of c a p it a l murder and sentenced to death. Kerr brought an application for a writ o f habeas corpus in the appropriate federal district court. The application was d e n ie d and so was a Certificate of Appealability ("COA"). Upon review of his a p p lic a t io n here, we also DENY a COA.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Dockets.Justia.com

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No. 09-70030 I n March of 2003, a jury in Tarrant County, Texas convicted Kerr of s e x u a lly assaulting and murdering Pamela Horton. The Texas Court of

C r im in a l Appeals affirmed Kerr's conviction. During the pendency of his appeal, K e r r sought a writ of habeas corpus in a Texas trial court, which was denied. Subsequently, he petitioned the district court for habeas relief under 28 U.S.C. § 2254. The court determined that Kerr had not made an adequate showing of e n tit le m e n t to a writ of habeas corpus. It further denied a COA. I n order to appeal the district court's denial of habeas relief, a petitioner m u s t obtain a COA either from the district court or from this court. 28 U.S.C. § 2253(c)(1)(A). We will grant a COA only if the petitioner makes "a substantial s h o w in g of the denial of a constitutional right." Id. § 2253(c)(2). That showing r e q u ir e s a petitioner to "demonstrate that reasonable jurists would find the d is t r ic t court's assessment of the constitutional claims debatable or wrong." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation omitted). When habeas r e lie f is denied on procedural grounds, "a COA should issue when the prisoner s h o w s , at least, that jurists of reason would find it debatable whether the p e t it io n states a valid claim of the denial of a constitutional right and that ju r is t s of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "Any d o u b t regarding whether to grant a COA is resolved in favor of the petitioner, a n d the severity of the penalty may be considered in making this determination." ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir. 2007) (citation omitted). K e r r seeks a COA on the grounds that his constitutional rights were v io la t e d in these ways: (1) the indictment failed to set forth aggravating factors la t e r submitted as special issues; (2) the prosecution was not required to d is p r o v e mitigation beyond a reasonable doubt; (3) the grand jury was not r e q u ir e d to consider the aggravating factors warranting the capital murder c h a r g e ; (4) the instructions did not inform the jury of the consequences of its 2

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No. 09-70030 f a i l u r e to agree on a special issue; (5) the trial court rejected Petitioner's r e q u e s te d jury charge on a special issue relating to future dangerousness; (6) the fu t u r e dangerousness special issue did not properly charge the burden of proof; a n d (7) the current method of execution by lethal injection violates the Eighth A m en d m en t. W e will group some of his arguments for analysis. A. D e fe c ts in the Indictment K e r r 's first and third claims allege deficiencies in the indictment. Specifically, Kerr asserts that his Fifth and Fourteenth Amendment rights were v io la t e d because the indictment failed to allege aggravating factors that were la t e r submitted to the jury in the punishment phase of his trial. Kerr relies on t h e Fifth Amendment's right to a grand jury indictment in support of this a r g u m e n t . He also cites one of our decisions which held that aggravating factors r e n d e r in g a defendant eligible for the death penalty in a federal prosecution m u s t be stated in the indictment. See United States v. Robinson, 367 F.3d 278, 2 8 8 (5th Cir. 2004). A s the district court noted, however, the right to a grand jury indictment h a s not been extended to the States through the Fourteenth Amendment. See A lb r ig h t v. Oliver, 510 U.S. 266, 272 (1994). Indeed, in Robinson, we addressed o n ly the requirement of a grand jury indictment in a federal prosecution. See R o b in s o n , 367 F.3d at 288. Although Kerr argues that the grand jury clause " c o u ld and should be" extended to the states, neither the Supreme Court nor this c o u r t has done so to date. To the extent that Kerr argues that the inadequate indictment im p e r m is s ib ly expands the prosecutor's discretion to seek the death penalty, he h a s not identified any precedent depriving state prosecutors of that discretion. Accordingly, reasonable jurists would not find the district court's resolution of t h e s e claims to be debatable or wrong. 3

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No. 09-70030 B. B u r d e n of Proof for the Mitigation Special Issue Kerr alleges that his Sixth and Fourteenth Amendment rights to a jury t r ia l were violated because the State was not required to prove beyond a r e a s o n a b le doubt that no sufficient mitigating evidence warranted a sentence less t h a n death. In Texas, once a defendant is found guilty of capital murder, the jury m u s t answer two special issues unanimously to impose death. See Tex. Code C r im . Proc. Ann. art. 37.071 § 2. The first assesses the "future dangerousness" o f the defendant, which the State is required to prove beyond a reasonable doubt. Id. § 2(c). The jury is asked "[w]hether there is a probability that the defendant w o u ld commit criminal acts of violence that would constitute a continuing threat t o society." Id. § 2(b)(1). If answered in the affirmative, the jury next addresses is s u e s of mitigation, asking "whether, taking into consideration all of the e v id e n c e , including the circumstances of the offense, the defendant's character a n d background, and the personal moral culpability of the defendant, there is a s u ffic ie n t mitigating circumstance or circumstances to warrant that a sentence o f life imprisonment without parole rather than a death sentence be imposed." Id. § 2(e)(1). The mitigation issue assigns no burden of proof. If the jury answers " y e s ," the defendant receives a life sentence. Id. § 2(g) If it answers "no," the p u n is h m e n t is death. Id. R e l y i n g on Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v. A r iz o n a , 536 U.S. 584 (2002), Kerr asserts that a jury must be required to find a lack of mitigation beyond a reasonable doubt in order to impose death. We d is a g r e e . We have previously addressed the necessity of an assigned burden of p r o o f for the mitigation special issue in Texas's death penalty scheme. See Rowell v . Dretke, 398 F.3d 370, 376-78 (5th Cir. 2005). We observed in Rowell that no S u p r e m e Court or Circuit precedent requires mitigation to be proved beyond a r e a s o n a b le doubt. Id. Consequently, we concluded that relief was not available u n d e r the AEDPA standard. Id. Kerr's claim in this regard is foreclosed. See 4

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No. 09-70030 a ls o Avila v. Quarterman, 560 F.3d 299, 314-15 (5th Cir. 2009) (finding that the c o u r t was bound by precedent to reject petitioner's argument that the jury was r e q u ir e d to find a lack of mitigating evidence beyond a reasonable doubt). C. J u r y Instructions About Failure to Agree on a Special Issue K e r r claims that his due process rights, as well as his Eighth and F o u r t e e n t h Amendment rights, required that the jury be instructed on the c o n s e q u e n c e s of failing to agree on the special issues alleged in the punishment p h a s e . The crux of Kerr's complaint is that jurors were not informed that a single " h o ld -o u t" juror could prevent the imposition of the death penalty and effectuate a life sentence. The Texas sentencing scheme requires a unanimous "yes" as to t h e future dangerousness issue and a unanimous "no" on the mitigation issue in o r d e r to impose the death penalty. Tex. Code Crim. Proc. Ann. art. 37.071 § 2 (d )(2 ) & (e). The statute also requires that ten or more jurors vote together to a n s w e r the future dangerousness issue "no" or the mitigation issue "yes" ­ either o f which would result in a life sentence. Id. The statutory instruction does not in fo r m the jury that a failure to meet the "ten vote" requirement results in a de fa c t o life sentence. T h e Supreme Court has previously rejected this argument. Jones v. United S ta te s , 527 U.S. 373, 381-83 (1999). The Court concluded that a jury need not be t o ld what happens procedurally when a verdict cannot be reached. While the jury m a y not be "affirmatively misled regarding its role in the sentencing process," a c o u r t is not required to instruct the jury "as to the consequences of a breakdown in the deliberative process." Id. at 381-82. The instruction in this case accurately r e c it e d the governing law. Kerr's claim that the court's failure to instruct the ju r y on the effect of a deadlock is without merit.

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No. 09-70030 D. D e n ia l of Kerr's Requested Jury Instruction on the Future Dangerousness S p e c ia l Issue K e r r 's habeas petition argued that the trial court improperly rejected Kerr's r e q u e s te d jury charge on the burden of proof for the future dangerousness special is s u e in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. However, Kerr has not identified where in the record he requested a special in s t r u c t io n on this issue nor an instance where the court rejected it. He also did n o t argue on direct appeal or when seeking state habeas relief that any such in s t r u c t io n was refused. Habeas relief is precluded where the applicant has not e x h a u s t e d his state court remedies. See 28 U.S.C. § 2254(b). Kerr's claim is t h e r e fo r e unexhausted and procedurally barred. E. T h e Burden of Proof on the Future Dangerousness Special Issue K e r r further asserts that the use of the word "probability" in the future d a n g e r o u s n e s s special issue impermissibly lowers the State's burden of proof. As p r e v io u s ly discussed, the State must prove future dangerousness beyond a r e a s o n a b le doubt. The word "probability," Kerr claims, is unconstitutionally vague. Kerr cites no authority supporting his theory that reasonable jurists could d is a g r e e that the wording of the special issue lowers the burden of proof. A claim n o t adequately briefed is deemed abandoned. Yohey v. Collins, 985 F.2d 222, 2242 5 (5th Cir. 1993). Moreover, we have previously refused to entertain an

id e n tic a l argument, because its application would violate the anti-retroactivity d o c t r in e of Teague v. Lane, 489 U.S. 288, 316 (1989). See Rowell, 398 F.3d at 3777 8 . Pursuant to Teague, Kerr may not obtain habeas relief based on rules of c o n s t it u t io n a l law not yet announced at the time his conviction became final. Teague, 489 U.S. at 310. Granting relief here would require retroactive

a p p lic a t io n of a new rule of constitutional law on federal habeas review. Because

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No. 09-70030 n o court has previously found the wording of Texas's future dangerousness s p e c ia l issue to be unconstitutionally vague, Kerr is not entitled to relief. F. T h e State's Use of Pancuronium Bromide in its Execution Process I n his final argument, Kerr insists that Texas's use of pancuronium b r o m id e in the lethal injection process violates the Eighth Amendment p r o h ib it io n against cruel and unusual punishment. This claim is foreclosed by t h e Supreme Court's decision in Baze v. Rees, 553 U.S. 35 (2008), in which the C o u r t upheld the constitutionality of using pancuronium bromide in lethal in je c t io n s . Kerr's argument is thus without merit. K err has not demonstrated that reasonable jurists would debate the district c o u r t's resolution of his claims. Accordingly, we DENY a COA.

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