IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 94-20911

 

RAYMOND CARL KINNAMON,

Petitioner-Appellee,

versus

WAYNE SCOTT, Director,

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellant.

 

Appeal from the United States District Court

For the Southern District of Texas

 

(December 11, 1994)

Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:

I.

Raymond Carl Kinnamon seeks a stay of execution from the

federal courts. We rejected his request in his first habeas

petition on September 15, 1994. Kinnamon v. Scott, 33 F.3d 462

(5th Cir. 1994). Kinnamon filed no petition for rehearing, but, on

November 30, 1994, requested recall of the mandate, alternatively,

relief under Rule 60(b)(6), Fed. R. Civ. Proc. We denied that

request on December 8, 1994. At approximately the same time on

December 8, 1994, state trial judge Ted Poe, presiding judge of the

228th District Court, Harris County, Texas, denied Kinnamon's
2

motion for stay of execution, modification of execution date, and

"reasonable" time to file a petition for post-conviction relief

under Art. 11.07, Tex. R. Crim. Proc. Judge Poe entered 17

findings of fact. Judge Poe found, among other things, that on

September 21, 1993, this court appointed Marsha Rutenbar to

represent Kinnamon in his appeal before the Fifth Circuit; his

brief was filed on April 19, 1994. Judge Poe also noted that on

October 4, 1994, he appointed Marsha Rutenbar "to represent the

defendant in any additional state habeas litigation . . ."; that he

set the execution date 67 days hence. The court also noted that

before the motion of December 6, Rutenbar had made no request for

funds or filed any other document or pleading including an 11.07

petition; that Rutenbar had 18 months to investigate and prepare an

11.07 petition. For these reasons, Judge Poe denied the petition.

Kinnamon, through Rutenbar, on December 9, 1994, filed his

petition for post-conviction relief pursuant to 11.07 Tex. Code

Crim. Proc., and application for stay of execution and evidentiary

hearing. Judge Poe denied that petition the afternoon of December

10, 1994 and proposed findings of fact and conclusions of law for

the Texas Court of Criminal Appeals. That court, in turn, relying

on the proposed findings and conclusions, denied relief. Kinnamon

then filed his second federal habeas petition before United States

District Court Judge Hoyt. Judge Hoyt granted the request for stay

of execution and granted a right to proceed in forma pauperis. The

state appeals and moves to vacate the stay of execution.
3

II.

(claim one)

Kinnamon asserts that the state trial judge denied him due

process in defining the elements of intent in the jury

instructions. This was the sole reason specified by the district

court in its grant of a stay. We rejected this contention in

Kinnamon's first federal habeas. Kinnamon v. Scott, 33 F.3d 462,

465-66 (5th Cir. 1994). We are unpersuaded that we should again

examine this contention. Regardless, we remain unpersuaded of its

merit. The district court did not explain its other reasons for

granting a stay. We treat the claims seriatim.

We similarly rejected his claimed error in the prosecutor's

use of hypotheticals in voir dire. The claimed error rests upon

the related contention that the charge to the jury regarding intent

was erroneous. The state concluded that the issue had not been

properly preserved because Kinnamon's attorneys had failed to

exhaust their allotted peremptory challenges. We rejected this

contention in the first habeas petition because it was procedurally

barred. We also explained that any asserted ineffectiveness of

counsel in failing to meet the bar could not survive Strickland's

second prong; that the issue at trial was solely one of identity.

III.

(claim two)

Kinnamon next asserts constitutional error in his inability to

argue to the jury in sentencing that if spared the death penalty

Kinnamon would be required to serve a minimum of 20 calendar years
4

without good time before becoming eligible for parole. Kinnamon

rests this claim upon Simmons v. South Carolina, ___ U.S. ___, 114

S.Ct. 2187 (1994). If we were to ignore the absence of a

contemporaneous objection and the bar of Teague v. Lane, 489 U.S.

288 (1989), we would not extend Simmons beyond cases in which the

sentencing alternative to death is life without parole. 

IV.

(claims three through nine)

Kinnamon next brings claims of jury taint and prejudice. He

first contends that the state trial judge failed to conduct a

hearing regarding the jury's exposure to "extraneous considerations

concerning Kinnamon's access to the juror information sheets." The

contention is that juror Edwana Corley, after the court adjourned

for lunch, approached the bench. She expressed concern on her own

behalf and other jurors that defendant had access to the long-form

juror information sheets. Judge Poe immediately informed counsel

of her statement, but declined to conduct any further hearing

regarding the incident. According to the portions of the

transcript attached to the state petition for habeas corpus,

counsel had information recorded on legal size sheets regarding

members of the jury, information used in voir dire. Kinnamon was

examining papers of a legal size; the jurors thought they were the

information sheets used in voir dire. Judge Poe refused to then

conduct a hearing regarding any possible prejudice of jurors. The

trial judge observed to counsel "are you trying to tell me the jury
5

is supposed to sit over there with their eyes shut and not observe

what is going on in the courtroom?" 

That members of a jury in a capital murder case do not want

the defendant examining information concerning their home

addresses, phone numbers, etc. raises no concern of constitutional

magnitude. As we understand it, Kinnamon's contention is bottomed

on the assertion that this expression of concern signals some midtrial determination by the jury of guilt or perhaps its caution

about the defendant. We are unpersuaded. At that juncture,

Kinnamon was accused by the state of a violent capital crime. Such

a concern by a juror is consistent with an open mind regarding

guilt. Finally, the state trial heard the testimony of Corley in

a hearing on a motion for new trial. The juror denied that the

occurrence had any effect on deliberations. 

Relatedly, we find no constitutional error in the asserted

"exparte contact with the juror Corley." The contact was in open

court, at side bar, and was immediately disclosed to counsel.

Regardless, she later testified in a hearing on the motion for new

trial. Similarly, the claim that counsel was ineffective in

pursuing the point is without basis.

Kinnamon next asserts a denial of due process from a claimed

incident in which the jury was exposed to an "emotional and

prejudicial outburst" by the victim's daughter. Relatedly,

Kinnamon contends that his trial counsel was ineffective in failing

to obtain limiting instructions, to move for mistrial or otherwise

to develop the incident for appeal. 
6

According to the affidavit of Kinnamon's sister, Sandra

Crisler, at some juncture of the guilt phase of the trial only the

jury, Kinnamon, and the prosecutor were in the courtroom.

According to Crisler, the teenage daughter of the decedent entered

the courtroom and began screaming that Kinnamon had killed her

father. An unsigned "affidavit" of one of the jurors stated that

during the guilt-innocence portion of the trial the daughter of the

victim was "crying loudly and was very emotional." This juror,

Katherine Duce, observed, "I do not remember whether or not she was

saying something, but I do know she was crying loudly. Someone

took her out of the courtroom. The incident was brief, but it was

loud enough for all the jurors to hear." 

Again, we are unpersuaded that there was any prejudicial error

of constitutional magnitude. That the young girl was upset and

angry at the person accused by the state as the murderer of her

father communicated nothing new to the jury, if the incident

occurred. The state habeas judge was not persuaded that it

happened. The prosecutor, Doug Durham, swore that he had no

recollection of it, and that for the jury to have been seated in

the courtroom without the judge present would not have been

permitted and was contrary to court practice. 

Kinnamon next contends that two jurors prejudged the case and

trial counsel was ineffective in not developing the matter earlier

or preserving the point for direct appeal. Kinnamon's sister,

Sandra Crisler, and his wife, Faye Valentine, claim to have

overheard two jurors discussing the case in the women's restroom.
7

They claim by affidavit that one juror, unidentified, said to the

other that she could not hear what had been said in court, drawing

the response that it didn't matter because they already believed

the defendant was guilty. The affidavit of Faye Valentine states

that she "does not remember what Jerry Guernot [trial counsel] told

Sandra" when they reported the encounter. Stan Schneider, counsel

on direct appeal, swore in an affidavit that he spoke with trial

counsel and no mention of this was made. Finally, the state trial

judge in finding 42 stated:

The Court finds unpersuasive the eleventh-hour

affidavits of the applicant's sister, Sandra

Crisler, and his wife, Faye Valentine, which

state that, during the applicant's trial, they

overheard two unidentified women jurors saying

that they had already decided the applicant

was guilty.

We find the state trial court's rejection of this evidence to

be fairly supported by the record. There is no basis for

concluding that Schneider was ineffective in not pursuing a matter

that reasonable inquiry had not produced. Nor are we persuaded

that the affidavits of Crisler and Valentine demonstrate

fundamental unfairness in the trial. 

V.

(claim ten)

Kinnamon contends that his trial counsel was ineffective.

This claim is prefaced by counsel's claim that she has had an

inadequate amount of time to investigate the issue of effective

assistance of counsel. Rutenbar dates the opportunity for

investigation from her appointment as state habeas counsel in
8

October 1994, asserting that she was only the federal appellate

lawyer in the year preceding. She relatedly contends that she was

unable to draw on the Texas Resource Center, because the state

trial judge was hostile to the work of the Resource Center,

pointing to excerpts of a broadcast of 60 Minutes quoting Judge

Poe. The allegations of ineffectiveness are little more than

conclusions. She asserts, for example, that counsel's argument to

the jury that the sole issue was identity was constitutional error.

Why this is so we are not told. How investigation may support this

allegation we are not told. She points to the failure to offer

medical evidence of the decedent's blood-alcohol content.

Speculation continues that counsel failed to put Kinnamon's work

history into evidence in the punishment phase of the trial, arguing

that counsel was constitutionally ineffective in failing to point

out that defendant had managed to stay out of prison for the past

six years. The argument of ineffective trial counsel sums to a

claim that there may be something there, but she has not had time

to develop it. 

VI.

(claim eleven)

She also asserts that Kinnamon was denied effective assistance

of counsel on appeal. Again, the argument is speculation that

something may have been developed had she had more time. We find

no basis for granting habeas relief on such assertions.
9

VII

We end where we might well have begun--all of the allegations

in this successive petition were readily available to Kinnamon when

he first filed his federal petition. They are either matters of

record or issues readily developed with reasonable investigation.

McCleskey v. Zant, 111 S.Ct. 1454 (1991), contains no exceptions

available to Kinnamon, nor are his two justifications for omitting

these claims tenable. He first argues that he did not authorize

the filing of his first federal petition. We have earlier rejected

that contention. Second, he contends that under 21 U.S.C. §

848(q)(4)(B) he is entitled to appointment of counsel in federal

habeas. See McFarland v. Scott, 114 S.Ct. 2568 (1994). Kinnamon

at all meaningful times has had the benefit of counsel. It is by

no means clear that when federal counsel is appointed they have no

authority or responsibility to consider the development of new

issues in the event of a second habeas round. Because these issues

have not been fully developed, we have elected not to rest our

decision solely on McCleskey grounds.

The stay of execution granted by the district court is

vacated.