1 

### UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT



### No. 95-20689

KENNETH BERNARD HARRIS,



### Petitioner-Appellant,

versus

GARY JOHNSON, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION,



### Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

April 11, 1996

Before POLITZ, 

### Chief Judge, HIGGINBOTHAM and EMILIO M. GARZA, 

### Circuit

Judges.

POLITZ, Chief Judge:

Kenneth Bernard Harris, sentenced to death by lethal injecti on for the murder of Li sa

Stonestreet, seeks a certificate of probable cause to appeal the district court’s dismissal of his petition

for writ of habeas corpus and for an order staying his execution presently set for April 25, 1996. We

decline to issue the requested certificate and decline to order a stay.

BACKGROUND

On June 9, 1986 the police discovered the body of Lisa Stonestreet in the bathroom of her

apartment in Houston, Texas, nude except for a pair of socks and a segment of pantyhose tied around2

her left wrist. Her body was draped over the side of the bathtub with her knees and feet on the floor

and her head emersed in water in the bathtub.

Stonestreet’s apartment was in near total disarray. The investigating officers found a steak

knife in her bedroom bearing a laten t fingerprint matching Harris’ left index finger. Several pubic

hairs found on her body matched Harris’ pubic hair. An autopsy revealed that Stonestreet had been

beaten with a blunt instrument, that her wrists had been tightly bound, and that she had been manually

strangled and drowned. Sperm was found in her vagina and rectum. The autopsy disclosed no

damage to the anal sphincter, a finding consistent with anal intercourse after relaxation resulting from

unconsciousness or death.

Early in the investigation of the homicide the authorities interviewed Harris who lived, with

his girlfriend, in the next apartment. Harris then told the authorities that he did not know Stonestreet

but that he had noticed a suspicious black pickup truck near the apartment complex a week before

her death. On July 16, 1986, in its investigation of a recently burned vehicle belonging to Stonestreet,

the authorities found a palm print matching Harris’ right palm.

Harris was arrested for Stonestreet ’s murder on July 22, 1986. After receiving M iranda

warnings, Harris requested and was given permission to speak with his father. After doing so, Harris

gave several statements, confessing that he strangled Stonestreet after having consensual sex with her.

He expressed remorse for the homicide, claiming that he was under the influence of drugs at the time.

Indicted for the capital murder of Stonestreet, Harris was tried before a state jury in Harris

County, Texas. The trial lasted four and one-half months, from August 17, 1987 to January 4, 1988,

and resulted in Harris’ conviction for capital murder. The sentencing phase extended from January

5, 1988 to January 22, 1988. Harris presented evidence about his low intellectual capacity and his

childhood experiences. In addition to offering psychiatric evidence, the state called five women who

testified that they had been vict ims of sexual assaults by Harris. These unadjudicated offenses

occurred between December 10, 1985 and May 3, 1986, approximately six months and one month,

respectively, before Stonestreet’s murder. At the conclusion of the sentencing phase the juryHarris v. State, 827 S.W.2d 949 (Tex. Crim. App. 1992).

Harris v. Texas, 506 U.S. 942 (1992).

Ex Parte Harris, No. 454652-A.

Ex Parte Harris, No. 454652-A (Tex. Crim. App. 1995).

3 affirmat ively answered the two special issues posed to it and the trial court sentenced Harris to death

by lethal injection. Harris appealed his conviction and sentence t o t he Texas Court of Criminal

Appeals which abated the appeal and remanded for the limited purpose of an additional B atson

hearing. The appellate court concluded that the trial judge had erred, under cont ro lling state

precedent, by precluding defense counsel from cross-examining the prosecutor about the submitted

race-neutral reasons for the exercise of peremptory strikes of four black members of the jury venire.

The trial court scheduled a hearing, as directed by the remand order, for January 30, 1992.

Harris’ counsel appeared but informed the court that he was not ready to proceed because some of

Harris’ files had been lost. The trial court granted counsel additional time to locate or reconstruct

his files, informing counsel that the record would be returned to the Court of Criminal Appeals on

February 27, 1992 unless prior thereto he notified the court that he was ready to proceed. Counsel

did not so inform the court and, as advised, the record was returned to the Court of Criminal Appeals

which affirmed Harris’ conviction and sentence. 1 Harris filed a petition for writ of certiorari which

was denied. 2

On Harris’ state petition for writ of habeas corpus, the trial cou rt of conviction entered

detailed findings of fact and conclusions of law and recommended denial of the writ. 3 The Court of

Criminal Appeals accepted that r eco mmendation. 4 Harris then filed the instant petition under 28

U.S.C. § 2254, and mo ved for a stay of execution, discovery, and an evidentiary hearing. The

respondent moved for summary judgment. The district court granted a stay of execution. It then

considered and de nied t he mo t io ns for discovery and for an evidentiary hearing. After a full and

thorough review of the state court record the di st rict court granted the respondent’s motion forF ed.R.App.P. 22(b); Montoya v. Collins

, 988 F.2d 11 (5th Cir.), cert. denied

, 507 U.S. 1002

(1993).

Barefoot v. Estelle , 463 U.S. 880 (1983).

Drew v. Collins , 5 F.3d 93, 95 (5th Cir. 1993), c ert. denied

, 114 S.Ct. 1207 (1994) (citing

Barefoot

, 463 U.S. at 893 n.4).

J acobs v. Scott

, 31 F.3d 1319 (5th Cir. 1994) (citations omit ted), c ert. denied

, 115 S.Ct. 711

(1995).

Penry v. Lynaugh, 492 U.S. 302 (1989).

4 summary judgment, dismissed the writ application, lift ed its o rder staying execution, and denied

Harris’ motion for a certificate of probable cause to app eal. Harris now seeks from this court a

certificate of probable cause and a stay of the execution presently set for April 25, 1996.

ANALYSIS

A. Certificate for Probable Cause

We have no jurisdiction over Harris’ appeal absent a CPC. 5 To obtain a CPC, Harris must

make a substantial showing of the denial of a federal right. 6 “This standard does not require petitioner

to show that he would prevail on the merits, but does require him to show the issues presented are

debatable among jurists of reason.” 7 Further, in a capital case we properly may consider the nature

of the penalty in deciding whether to grant a CPC but, as we have observed, that fact alone does not

suffice to justify the issuance of a CPC. 8

B. Penry Claim

Harris claims that the two special issues posed did not permit the jury to make the mandated

reasoned moral response to the mitigating evidence about his mental capacity. 9 To support his P enry

claim Harris relies on the testimony of Dr. Priscilla Ray, a forensic psychiatrist, who testified t hat

Harris fell in the borderline defective or mildly defective range, as well as the testimony of Dr. Albert

Smith, a clini cal psychologist who similarly testified that Harris was “functioning in the borderline

range of mental abilit

y.” In addition to this expert testimony, Harris relies on various lay witnesses

to establish his difficult

y in learning. In its consideration of the P enry claim, the district court reliedD avis v. Scott, 51 F.3d 457, 460 (5th Cir.) (internal quo tations and ci tati ons om itted), c ert.

denied , 116 S.Ct. 525 (1995).

I d. At oral argument counsel vigorously contended that a nexus is inherent between any evidence

of mental retardati on and a crime, thus obviating a need for any additional showing. Our precedents

require otherwise. S ee e.g.

, Allridge v. Scott, 41 F.3d 213 (5th Cir. 1994), cert. denied

, 115 S.Ct.

1959 (1995); Lackey v. Scott, 28 F.3d 486 (5th Cir. 1994), cert. denied

, 115 S.Ct. 743 (1995);

Madden v. Collins, 18 F.3d 304 (5th Cir. 1994), cert. denied , 115 S.Ct. 1114 (1995).

476 U.S. 79 (1986).

Williams v. Scott , 35 F.3d 159 (5th Cir. 1994), cert. denied , 115 S.Ct. 959 (1995).

5 on the state trial judge’s factual findings in the state habeas proceedings that Harris’ IQ was estimated

at different times to be 68, 71, and 93.

As we recently noted:

The first inquiry in a Pen ry claim is whether the mitigating evidence is relevant. Phrased

diffe rent ly, does the evidence implicate the basic concern of P enry that defendants who

commit criminal acts that are attributable to a disadvantaged background, or to emotional and

ment al problems, may be less culpable than defendants who have no such excuse. . . . In

order to present relevant evidence that one is less culpable for his crime, the evidence must

show (1) a uniquely severe permanent handicap with which the defendant is burdened through

no fault of his own,

. . . and (2) that the criminal act was attributable to this severe permanent

condition. 10

Assuming arguendo that Harris’ borderline intelligence constituted the type of uniquely severe

permanent handicap required, his claim fails for lack of nexus between the mitigating evidence and

the criminal act. 11 Our review of the record reflects the lack of any such evidence. C. Batson

Claim

Harris maintains that the district court erred in granting summary judgment on his claim that

the state’s use of

four of its peremptory challenges to strike African-Americans violated the holding

of Batson v. Kentucky. 12 Summary judgment is appropriate if the record reveals the absence of a

genuine issue of material fact. 13 In making this determination, we consider the facts contained in the

s ummary judgment record, and the reasonable inferences to be drawn therefrom, in the light most

favorable to the non-movant. In applying this standard, however, we are mindful that a federal court

must accept as correct a state court’s findings of fact unles s one of the 28 U.S.C. § 2254(d)28 U.S.C. § 2254(d). Counsel for Harris contends that the district court erroneously presumed

the correct ness o f the state trial court’s findings that the strikes were not racially motivated,

vigorously submitting that: the state’s factfinding procedure was inadequate to afford a full and fair

hearing; the material facts were not developed adequately; an d he did no t receive a full, fair, and

adequate hea ring in t he state habeas proceeding. Harris rests these assertions on the state habeas

court's denial of his motion for discovery. Whereas a state court’s refusal to permit discovery in some

instances may support a conclusion that the state hearing was not full and fair, e.g.

, Moore v. Kemp

, 809 F.2d 702 (11th Cir.), cert. denied

, 481 U.S. 1054 (1987), that is not the situation in the case at

bar.

I n making this determination, we consider the particular circumstances of the case, viewed from

counsel’s perspective, in light of the then prevailing professional norms, in order to discern whether

counsel’s performance fell below an objective standard of reasonableness. S trickl and v.

Washington, 466 U.S. 668 (1984).

H arris contends that prejudice should be presumed herein based on United States v. Cronic

, 466

U.S. 648 (1984). We do not agree.

6 exceptions apply. 14

Harris contends that a genuine issue of material fact ex ist s herein as to whether the

prosecution peremptorily r eleased from the jury venire Dawnella Swan, Gloria Paul, Anthony

Hackett, and Cornine Charles because of their race. Applying the mandated presumption of

correctness, the district court did not err in its grant of summary judgment on this claim. The record

abundantly supports the finding that the peremptory strikes were prompted by considerations other

than race. In each instance the prosecutor provided, and the court accepted, race-neutral reasons

which were supported by the voir dire record. The voir dire examination consumed more than three

times as many trial days as did the trial on the merits.

D. Ineffective Assistance Claim

Harris maintains that defense counsel rendered constitutionally ineffective assistance in the

handling of the Batson issue. Specifically, Harris contends that if counsel had cross-examined the

prosecutor on the remand of the Batson issue, the challenge would have been successful. To prevail

on this constitutional claim, Harris must establish that his counsel’s performance was deficient 15 and

that such deficient performance prejudiced his defense. 16 To establish prejudice Harris must

demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of theStrickland

.

Lockhart v. Fretwell, 506 U.S. 364 (1993).

19 Ward v. Whitley , 21 F.3d 1355 (5th Cir. 1994), cert. denied

, 115 S.Ct. 1257 (1995). Rule 6

of the Federal Rules Gover ning Sect io n 2254 Cases expressly provides for discovery in habeas

proceedings if the petitioner shows “good cause.” The commentary to Rule 6 states:

Where specific allegations before the court show reason to believe that the petitioner may,

if the facts are fully developed, be able to demonstrate that he is co nfined illegally and is

therefore entitled to relief, it is the duty of the court to provide the necessary facilities and

procedures for an adequate inquiry.

20 Perillo v. Johnson , 1996 WL 125024 (5th Cir. 1996).

7 proceedings would have been different. 17 Moreover, he must establish that counsel’s errors rendered

his trial fundamentally unfair or unreliable. 18

As previously alluded to, the trial record reveals detailed questioning during the voir dire of

the prospective jurors, by both the prosecutor and defense counsel. The record also contains lengthy

argument by the prosecutor and defense counsel on each of the challenged strikes. We perceive no

reasonable probability that counsel’s cross-examination of the prosecutor would have produc e d a

different result.

E. Discovery and Evidentiary Hearing

Harris next maintains that the court à quo erred by failing to permit discovery and for not

conducting an evidentiary hearing on the Batson and ineffective assistance of counsel claims. When

ther e is a fact ual dispute which, if resolved in the petitioner’s favor, would warrant relief, and the

st at e court has not afforded the petitioner a full and fair evidentiary hearing, a federal habeas

petitioner typically is entitled to discovery and an evidentiary hearing. 19 Rule 6 of the Federal Rules

Governing Section 2254 Cases does not, however, authorize fishing expeditions. A habeas petitioner

must make sufficiently specific factual allegations; conclusionary allegatio ns will not suffice to

mandate either discovery or a hearin g. 20 The record contains no factual allegations which, if fully

developed, would have entitled Harris to relief on either claim.

F. Unadjudicated Offenses489 U.S. 288 (1989).

W illiams v. Lynaugh, 814 F.2d 205 (5th Cir.), c ert. denied , 484 U.S. 935 (1987); C allins v. Collins, 998 F.2d 269 (5th Cir. 1993), cert. denied , 114 S.Ct. 1127 (1994).

See McMillan v. Pennsylvania , 477 U.S. 79 (1986); In re Winship , 397 U.S. 358 (1970).

J ustice M arshall’s dissent from a denial of certiorari in W illiams v. Lynaugh

, 484 U.S. 935

(Marshall, J., with whom Brennan , J. jo ins, dissenting), does not support Harris’ contention that

Supreme Court precedent dictates such a holding.

8 Harris claims that the admission of the unadjudicated extraneous offenses during the

sentencing phase of his trial violated the eighth amendment as w ell as the due process and equal

protecti on clauses of the fourteenth amendment. Harris first co ntends that the admission of such

offenses violates due process because the evidence undermines the reliabilit y of the decision to impose

the death penalty. He then contends that the state must prove the unadjudicated extraneous offenses

beyond a reasonable doubt. Finally, he maintains that the admission of the unadjudicated offenses

during a capit al sentencing hearing violates equal protection because extraneous unadjudicated

offenses may not be introduced in the trials of defendants convicted of non-capital murder.

These submissions are not persuasive; they would require the announcement and application

of a new rule contrary to the holding of Teague v. Lane. 21 We previously have held that the use of

evidence of unadjudicated extraneous offenses, at the sentencing phase of Texas capital murder trials,

does not implicate constitutional concerns. 22 The authorities do not support Harris’ claim that the

Constitution requires that the state prove unadjudicated offenses beyond a reasonable doubt before

they may be used during the sentencing phase. Fully aware t hat the due process clause clearly

requires that for conviction the state must prove the elements of t he offense charged bey ond a

reasonable doubt, 23 neither we nor the Supreme Court has stated that a similar burden exists regarding

the admission of evidence of unadjudicated offenses in a capital case sentencing hearing. 24

Finally, Harris’ equal protecti on challen ge fo unders. Assuming a rguendo that capital

defendants and non-capital defendants are similarly situated, a parallel of which we are not persuaded,

any disparate treatment would be rationally related to the state's legitimate interest in assuring that25 Williams

.

9

all relevant information is presented for consideration by a capital jury in the discharge of its onerous

obligation. 25

The motions for a certificate of probable cause and for a stay of execution are DENIED.