UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 96 - 20005

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LARRY WAYNE WHITE,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, DIRECTOR, TEXAS DEPT. 

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

___________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

____________________________________________________

March 21, 1996

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges

DAVIS, Circuit Judge:

Petitioner White applies for a certificate of probable cause

to appeal the district court’s denial of habeas relief. White

claims that his pending execution will violate his eighth amendment

right to be free from cruel and unusual punishment and fourteenth

amendment right to due process of law and that he received

ineffective assistance of counsel. We vacate our stay of White’s

execution and deny White’s application for a certificate of

probable cause.

I.

In June 1979, White was convicted of the March 1, 1977 murder

of Elizabeth St. John at her apartment house, where White worked as
2

a maintenance man. The facts of the crime are accurately set out

in the opinion of the Court of Criminal Appeals originally

affirming White's conviction:

[T]he 72-year-old complainant, Elizabeth St. John, moved

from the Austin area to return to Houston, in late

February of 1977, about a year after her husband had

died. Mrs. St. John moved in with Lavelle Wasson, her

friend of 25 years, who owned some apartment complexes.

St. John was to occupy number three, an upstairs

apartment of the Airline complex which was in front of

the Wasson's house.

[White] had been employed by the Wassons to do

maintenance work at their Shepard apartment complex. On

Monday, Tuesday and part of Wednesday of the first week

in March, [White] and Wasson spent their time painting

St. John's apartment while she looked on. Her furniture

had already been moved in, so they "painted around it."

As the three left the apartment on Wednesday afternoon,

St. John pointed out a locking devise she had installed

on her door that made it impossible to turn the knob or

open the door from the outside, even with a key. Wasson

asked [White] to move a box spring mattress that was in

a hall corner across from St. John's apartment. [White]

said he would carry it out the next day.

[White] asked St. John if she were planning to stay up in

the apartment that night; she told him "yes." 

Later in the day, St. John returned to Wasson's house to

obtain envelopes and paper for writing her children, then

headed back to her apartment. [White] also came by

Wasson's house to return keys to a storage room. Before

he left, [White] told Wasson -- who was also an elderly

lady -- "Bell, that sure is a cute jumpsuit. I like

what's in it." Wasson passed the comment off. [White]

told Wasson he was going back to the Shepard Apartments.

However, before Wasson went to bed at 8:30 or 9:00 p.m.,

she noticed [White's] car was still parked in the parking

lot. She also noticed St. John's car in the lot in front

of the complex.

At approximately 10:30 p.m Wasson and her husband were

awakened by the tenant across the hall from St. John who

reported the mattress in the hall had been "completely

engulfed" in flames. After the tenant had doused the

flames and reported the incident to the Wassons, they all

returned to the hall, pulled the mattress out to a front

balcony, threw it down to the ground and poured more
3

water on it.

Wasson at this point noticed [White's] white Valiant was

still parked out front. St. John's Pinto, however, was

gone. Wasson assumed her friend had gone to visit the

people who had moved her to Houston.

Wasson had told St. John she had an early doctor

appointment on Thursday, March 3rd, but she would be up

to the apartment to measure for blinds after that. When

Wasson went to the apartment at 8:30 or 9:00 a.m., she

noticed [White's] car was still there and St. John's was

still gone. 

Because the special lock was still on the door and St.

John's car was gone, Wasson became alarmed. She went

home and told her husband they needed to see about St.

John, that something was wrong. No telephone had been

installed in St. John's apartment. Just as the Wassons

were leaving, Pat McGill, the manager of Shepard

Apartments (and [White's] boss) called and said something

that caused Wasson concern about St. John. She told

McGill to come over. 

About dusk on March 3rd, McGill and Wasson went to St.

John's apartment door. Mrs. McGill crawled through a

window, accessible from the balcony. She told Wasson,

"Bell, she's in there dead." Dave Calhoun and L. E.

Doreck of the Houston Police Department Homicide Division

were the first officers on the scene. Because of the

lock device on the door, the officers had to break it in.

The temperature in the apartment was so hot in the March

evening, it was "staggering." Calhoun discovered a gas

floor heater was on as high as it would go. The

apartment was neat; there was no sign of forced entry or

a struggle. St. John's body, clothed only in a bra,

pullover blouse and stockings which were rolled to the

ankle, was covered with a blanket. Upon uncovering the

body, Calhoun observed bruises on the chin, neck and

throat. When the body was rolled over, the officers

found a screwdriver protruding from the lower back.

Eduardo Bellas, M.D., a Harris County assistant Medical

Examiner who assisted in the autopsy, would later testify

the 92 pound, 5'4" St. John, a woman of "slight" build

had died as a result of "two mechanisms of death":

asphyxia due to strangulation; and, the penetration of

the screwdriver four inches into the diaphragm, liver and

right chest cavity. There was no evidence of defensive

wounds. Acid phosphates tests and microscopic study of

vaginal swabs revealed sexual intercourse had occurred

within 24 hours of the discovery of the body. Bellas

opined St. John had been stabbed first, then strangled,

but stated there was no way to be sure. In addition to
4

the clothing, six gold rings and small diamond stud

earrings remained on the body.

At the crime scene, Calhoun was directed to the white

Valiant in the parking lot in which [White] had recently

arrived after a trip to Florida. The National Crime

Information Center (NCIC) computer indicated the car was

"wanted." Officer Joe Herrin who was in charge of the

mobile crime scene unit, attempted to lift finger prints

off of things "the suspect would touch," such as the

front door, the screwdriver and the car "that was wanted

in another homicide." One print was lifted off a Coors

beer can found in the white Valiant.

Homicide Sergeant D. R. James went through St. John's

purse which was found in the apartment. Identification

and other papers were obtained from the purse, but

"nothing of great value." James testified he would have

checked the purse for money and valuables, and did not

recall finding any money.

Another Homicide Detective, John L. Bonds, went to the

scene the following morning, Friday, March 4th, to do

follow up investigation. He checked out the missing car

which had belonged to the victim and found it registered

to her. He entered it into the NCIC, requesting a hold

on the vehicle and any occupant for examination of

evidence. Norbent L. LeBlanc, a senior latent print

examiner, testified none of the prints lifted from the

apartment or the Valiant, other than the one off the

Coors can, could be identified as [White's}.

Three days later, at 3:23 a.m. on March 8th, Police

Officer Donald Edge of Myrtle Beach, South Carolina, was

patrolling the south end of the deserted resort town. He

observed [White] near a restaurant which was closed for

the "off season." About three feet away from [White] was

parked a light green Fort Pinto station wagon bearing

Texas tags. The driver's door was open. Edge arrested

[White], warned and searched him. Edge found a set of

keys in [White's] left front pocket; the keys fit the

ignition and doors of the Pinto.

Numerous objects were in the Pinto, "ranging from jewelry

to tools to a stereo plus clothing." The glove

compartment was open, and from it Edge obtained the car

registration papers. The car was registered to Elizabeth

St. John of Leander, Texas. 

Lieutenant Mitchell Glen Kemp was the Investigator on

call in Myrtle Beach on March 9th. He arrived on the

scene of [White's] arrest at about 3:30 a.m., then back

at the station around 4:00 a.m. For the next five hours,

Kemp was "gathering information," by computer, as well as
5

from speaking with officers in Houston by telephone

regarding [White] "and a homicide in Houston." Kemp and

his supervisor, Lieutenant Luke, interviewed [White]

starting at around 10:00 a.m. [White] waived his rights

and his inculpatory statement was reduced to writing.

The salient content of that statement, admitted before

the jury, is as follows:

The car that I was in this morning came from

Houston, Texas. I took it from the Airline

Apartments in Houston, after I choked Ms. Elizabeth

St. John and stabbed her in the back with a

screwdriver. I was drinking at the time and she

had offered to give me a bonus of $20.00 for

painting work I had done. I met Ms. St. John

through the manager of the apartments when I was

working at the apartments. I was in Houston for

about a week before I killed her. I killed Ms. St.

John a week ago Tuesday; it has been one week ago

today, and I left the screwdriver there . . . . we

had had intercourse on the couch before I killed

her. I would say that she was 52 to 56 years old

maybe . . . . After I choked her and stabbed her, I

left Houston that night and I took the stereo that

is in the car now, $45-50, a lamp, and jewelry that

is in the toolbox on the front seat. I got to

Myrtle Beach last night between 6:00 and 6:30 P.M.

and went to Dorothy's Green Bar or Green Lounge.

White v. State, 779 S.W.2d at 812-814 (footnotes deleted).

On appeal, White’s conviction and sentence were affirmed.

White v. State, 610 S.W.2d 504 (Tex. Crim. App. 1981). His state

collateral attack, filed in June 1981, was denied late that month

and his execution date was set for July 1, 1981. White then filed

an application for federal habeas relief which was granted by the

district court and affirmed by this court. White v. Estelle, 554

F.Supp. 851 (S.D. Tex. 1982). White v. Estelle, 720 F.2d 514 (5th

Cir. 1983). Our mandate issued in early 1984.

On retrial in August 1984, White was again convicted of murder

and sentenced to death. Five years later, following an automatic

appeal, the Texas Court of Criminal Appeals affirmed the second

judgment and sentence. White v. State, 779 S.W.2d 809 (Tex. Crim.
6

App. 1989). An application for a writ of certiorari was denied by

the United States Supreme Court on May 29, 1990. White v. Texas,

493 U.S. 962 (1990). White filed an application for state habeas

relief in 1990. Three and one half years later, on March 22-24,

1994, an evidentiary hearing was held on his claim of ineffective

assistance of counsel. White supplemented his petition on May 12,

1995 with an eighth amendment claim of cruel and unusual punishment

due to the inordinate delay between his sentencing and the

execution of the death penalty. After the petition had been

pending for five years, the state court trial judge entered

findings of fact and conclusions of law in July 1995 recommending

that a writ be denied. In December 1995, the Texas Court of

Criminal Appeals found that the district court’s findings of fact

and conclusions of law were fully supported by the record and

denied White a state writ of habeas corpus. 

White then filed the instant federal petition in December 1995

and the district court denied relief on January 4, 1996. A few

days later, this court granted a stay of execution pending our

consideration of White’s application for a certificate of probable

cause.

In this court, White argues that the district court erred in

rejecting three of the claims he presented to it for habeas relief.

He first complains of the length of time (17 years) that he has

been on death row. White argues that the State of Texas is

responsible for this lengthy confinement and that his continuing

incarceration and pending execution constitute cruel and unusual

punishment in violation of the eighth amendment and international
7

law. Second, White argues that the state court did not engage in

independent fact finding during his habeas evidentiary hearing and

this rendered the hearing fundamentally unfair. Finally, White

contends that he received ineffective assistance of counsel at

trial in a number of respects. He contends that his counsel:

(1)failed to investigate his background; (3)failed to obtain a

psychological evaluation despite severe symptoms of mental

disorders; and (3)failed to raise a defense of automatism or to

present evidence of White’s mental disorders, for either

culpability or mitigation purposes. White asks this court to issue

a certificate of probable cause and to reverse the district court’s

rejection of his habeas petition.

II.

To qualify for a certificate of probable cause, White must

make a “substantial showing of the denial of a federal right”

Barefoot v. Estelle, 463 U.S. 880, 893 (1983). This requires that

White “demonstrate that the issues are debatable among jurists of

reason; that a court could resolve the issues [in a different

manner]; or that the questions are adequate to deserve

encouragement to proceed further.” Id at 893 n. 4 (citations and

quotations omitted). We review White’s application in light of

this standard.

A.

White argues first that the district court erred in rejecting

his claim that he has been on death row for so long that to execute

him now would be cruel and unusual punishment in violation of the
 

1 In addition to our decision on Lackey’s second habeas

petition, discussed above, our decision on Lackey’s first habeas

petition also stands as precedent on this issue. See, Lackey v.

Scott, 28 F.3d 486, 492 (5th Cir. 1994)(Teague bars claim in

federal habeas petition that execution after lengthy imprisonment

violates Constitution because punishment is grossly out of

proportion with the crime committed). Accordingly

8

eighth amendment. 

We considered this issue in Lackey v. Scott, 52 F.3d 98 (5th

Cir. 1995). In Lackey, we vacated the district court’s stay of

execution and held that an identical claim was barred by the

nonretroactivity doctrine of Teague v. Lane, 489 U.S. 288, 310

(1989)(“new constitutional rules of criminal procedure will not be

applicable to those cases which have become final before the new

rules are announced.”). Lackey then sought a stay from the Supreme

Court. The Supreme Court issued a per curiam order granting a stay

of execution to allow the district court to hear Lackey’s petition

on the merits. White argues that the Supreme Court’s order

effectively vacated our decision in Lackey and that he now presents

us with an issue of first impression. We disagree. 

Our decision in Lackey remains the law of this circuit until

reversed, vacated or remanded. The Supreme Court’s reinstatement

of the stay in Lackey did not pass on the merits of our decision

and this panel cannot reject the controlling precedent of this

circuit in favor of White’s speculation on what the Supreme Court’s

action in Lackey could mean. A stay does not reverse, annul, undo

or suspend what has already been done or what is not specifically

stayed. Accordingly, we are bound to hold that Teague precludes

relief on White’s eighth amendment claim.1 

However, even if this court was not bound to follow Lackey we
9

would agree with the district court that Teague applies. “[A] case

announces a new rule if the result was not dictated by precedent

existing at the time the defendant’s conviction became final.”

Teague, 489 U.S. at 301. As a panel of this court noted in

Fearance v. Scott, federal courts have encountered the claim that

prolonged incarceration before execution is cruel and unusual

punishment for decades. 56 F.3d 633 (5th Cir.) cert. denied 115

S.Ct. 2603 (1995). To date, no federal court has recognized such

a theory of cruel and unusual punishment. Stafford v. Ward, 59

F.3d 1025, 1028 (10th Cir.) cert. denied 115 S.Ct. 2640(1995).

See also, McKenzie v. Day, 57 F.3d 1461 (9th Cir.) opinion adopted,

57 F.3d 1493, 1494 (en banc), cert. denied, 115 S.Ct. 1840 (1995);

Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990). White’s claim is

not new in the sense that no one has ever attempted to argue it

before. However, White can point to no precedent existing in 1990

when his conviction became final (and no precedent today) that

would require the district court to grant him habeas relief if it

finds that he has remained on death row for 17 years due to the

fault of the state. Therefore, to grant White’s petition would

require us to announce a new and retroactive procedural rule

declaring that prolonged incarceration prior to execution of the

death sentence violates the eighth amendment. Teague forecloses

such a holding. Teague, 489 U.S. at 310.

 White argues that Teague should not bar his claim because a

Lackey claim cannot ordinarily be raised on direct appeal due to

the fact that much of the delay complained of arises in postconviction proceedings. This is a valid criticism of Teague but it
10

does not alter the Supreme Court’s holding. In fact, Justice

Brennan dissented from the holding in Teague precisely because it

would “deprive [the Court] of the manifold advantages of deciding

important constitutional questions when they come to [the Court]

first or most cleanly on collateral review.” Teague, 489 U.S. at

345 (Brennan dissenting). Commentators note that, under the

mandate of Teague, even issues which, as a practical matter, could

never be raised on direct appeal are unreviewable in habeas

proceedings. See James S. Liebman & Randy Hertz, Federal Habeas

Corpus Practice and Procedure, § 25.4 at 749 (2d Ed. 1994). Even

if we accept White’s assertion that he could not have raised his

Lackey claim on direct review, we must still find it barred by

Teague.

White next argues that even if Teague bars his claims, he

falls within its exceptions. Under Teague, courts can

retroactively apply new rules to final convictions where the new

rule will: (1) place certain kinds of primary, private individual

conduct beyond the power of the criminal law-making authority to

proscribe, or prohibit a certain category of punishment for a class

of defendants because of their status or offense; or (2) require

the observance of those procedures that are implicit in the concept

of ordered liberty. Liebman & Hertz, Federal Habeas Corpus Practice

and Procedure, § 25.1 at 717; Teague, 489 U.S. at 307; Penry 492

U.S. at 330. 

White argues that he meets the first exception to Teague

because the rule that he requests would make it unconstitutional to

execute an entire class of defendants, those who due to no fault of
11

their own have been on death row for too long. See Penry v.

Lynaugh, 492 U.S. 302, 330 (1989). However, our acceptance of

White’s argument would not place any primary conduct beyond

prohibition and would not prohibit any category of punishment

currently in use for specific offenses. See, Lackey, 52 F.3d at

100. White’s argument also fails because his proposed “class” has

no innate characteristic such as insanity or mental retardation

which precludes imposition of the death penalty under the

Constitution, See Id; Ford v. Wainwright, 477 U.S. 399, 401

(1986), and is not made up of individuals whose conduct was not

eligible for punishment by death at the time of sentencing. See

Coker v. Georgia, 433 U.S. 584 (1977) (petitioner convicted of rape

not eligible for death penalty). 

White also seeks to fall under Teague’s second exception but

does not advance any argument as to how granting his claim would

require courts to follow “procedures implicit in the concept of

ordered liberty.” In fact, White’s claim demands that capital

punishment be carried out quickly in spite of the importance of

thorough factfinding in capital cases and the state’s compelling

interest in ensuring that it does not execute innocent defendants.

We agree with the State that White’s proposed rule requiring speedy

executions would not improve factfinding and is not implicit in the

concept of ordered liberty. As a result, we find that White’s

eighth amendment claim does not fall under Teague’s second

exception to the nonretroactivity rule. 

For all of these reasons we find that Teague bars White’s

eighth amendment claim. Lackey remains the law of this circuit and
12

we are bound to follow it. Further, it is undisputed that the rule

that White asks us to announce and apply in his case has never

before been embraced by a United States court. It is a new rule

and cannot be applied retroactively under Teague unless it falls

within one of two narrow exceptions, neither of which apply to

White. As a result, the district court correctly concluded that

White’s eighth amendment claim was Teague barred.

B.

Even if this court were to consider White’s eighth amendment

claim on the merits, we would not grant him the relief he seeks.

As the district court correctly noted, there are compelling

justifications for the delay between conviction and the execution

of a death sentence. The state’s interest in deterrence and swift

punishment must compete with its interest in insuring that those

who are executed receive fair trials with constitutionally mandated

safeguards. As a result, states allow prisoners such as White to

challenge their convictions for years. White has benefitted from

this careful and meticulous process and cannot now complain that

the expensive and laborious process of habeas corpus appeals which

exists to protect him has violated other of his rights. Throughout

this process White has had the choice of seeking further review of

his conviction and sentence or avoiding further delay of his

execution by not petitioning for further review or by moving for

expedited consideration of his habeas petition. 

Even if much of the delay in this case is the fault of Texas,

White cannot now complain of cruel and unusual punishment. White

made no effort to inform the Texas courts that their delay was
13

detrimental to him or to ask for expedited review of his petition

and we cannot fault them for assuming that White would be grateful

for or, at least, indifferent to the delay. White cannot expect

Texas courts to know that he wants to get on with his execution

without telling them. A motion for expedited review is also

necessary so that reviewing courts can distinguish between

strategic behavior on the part of the prisoner who quietly waits

with the hope of asserting a Lackey claim later and bona fide

claims of malicious or intentional state delay. See Fearance v.

Scott, 56 F.3d at 639. Further, White fails to allege that the

delay in his case is due to anything other than court backlog and

does not offer any evidence that Texas’ delay in considering his

petition was intentional or even negligent.

White relies on the decision of the United Kingdom’s highest

court for the proposition that “it is an inhuman act to keep a man

facing the agony of execution over a long, extended period of

time.” Pratt & Morgan v. Attorney General of Jamaica, Privy

Council Appeal No. 10 of 1993, slip op. at 16, reported at 3 W.L.R.

995, 143 N.L.J. 1639, 2 A.C. 1, 4 All E.R. 769 (British Privy

Council Nov. 2, 1993)(en banc). In Pratt, the prisoners were read

execution warrants several times in the face of repeated execution

dates which were then stayed at the last minute. White, in

contrast, prevailed on his first federal habeas challenge to his

conviction and sentence and his first execution date was vacated.

Following his second trial, White’s second execution date was set

less than 5 months ago and only after he had exhausted his remedies

in state court. White also alleges no extraordinary facts or
14

unusual conditions beyond the inevitable anxiety of waiting for an

execution date which cannot be avoided in a system of capital

punishment. See, Turner v. Jabe, 58 F.3d 924, 930 cert. denied 115

S.Ct. 2019 (1995). As a result, we are not persuaded that White

has been subject to cruel or unusual punishment.

No other circuit has found that inordinate delay in carrying

out an execution violates the condemned prisoner’s eighth amendment

rights. See e.g., Stafford, 59 F.3d at 1028 (10th Cir.); McKenzie,

57 F.3d at 1494; Free v. Peters, 50 F.3d 1362 (7th Cir.) cert.

denied, 115 S.Ct. 1397 (1995); Fearance, 56 F.3d at 639 (5th Cir.)

These courts faced claims that were raised in successive petitions

for a writ of habeas corpus while White makes his claim in his

first federal habeas appeal from his second conviction. As a

result, White does not have to show cause in order to avoid

dismissal as an abuse of writ. Nevertheless, the reasoning of the

courts which have considered Lackey claims demonstrates that even

without the procedural bar, these courts would have found the claim

meritless as we have. See Stafford, 59 F.3d at 1028 (10th

Cir.)(“We conclude that Appellant has failed to show that executing

him after fifteen years on death row, during which time he faced at

least seven execution dates, would constitute cruel and unusual

punishment”); McKenzie, 57 F.3d at 1494 (9th Cir.) (“We thus

decline to recognize Richmond’s lengthy incarceration on death row

during the pendency of his appeals as substantively and

independently violative of the Constitution”); Free v. Peters, 50

F.3d 1362 (7th Cir.) (rejecting claim that to execute petitioner

after almost two decades of pursuing appeals and collateral relief
 

2White also argues that “binding norms of international law”

compel us to follow Pratt & Morgan and strike down his death

sentence as a violation of his human rights. This argument is

meritless. White argues that since his conviction became final,

the United States has signed the International Covenant on Civil

and Political Rights and the Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment. Both of these

treaties prohibit “torture or cruel, inhuman or degrading

punishment or treatment.” However, the United States Senate filed

reservations with respect to both of these treaties which contend

that the United States understands the language in these treaties

to mean “cruel and unusual punishments” as defined by the eighth

amendment. White’s claims are barred by Teague for the same

reasons his eighth amendment claims are barred. White’s conviction

was legal under international law when it became final in 1990.

Further, even if we did consider the merits of this claim, we would

do so under the Senate’s reservation that the treaties only

prohibit cruel and unusual punishment. As we have noted above,

even on the merits, this argument would fail.

15

is cruel and unusual punishment) cert. denied, 115 S.Ct. 1397

(1995); Fearance, 56 F.3d at 639 (5th Cir.) (Fearance was not the

unwilling victim of a Bleak House-like procedural system hopelessly

bogged down; at every turn, he, without complaining about the

accumulating period on death row, sought extensions of time,

hearings, and reconsiderations.”). 

For these reasons, we conclude that White’s eighth amendment

claim would not entitle him to habeas corpus relief even if it were

not barred by Teague v. Lane.

2

III.

White next argues that his counsel was ineffective and that

the state court’s verbatim adoption of the government’s proposed

findings of fact and conclusions of law resulted in a fundamentally

unfair hearing on his ineffective assistance of counsel claim. We

affirm the district court’s ruling on these issues on the basis of
16

Judge Harmon’s well-reasoned January 4, 1996 opinion.

Conclusion

White’s eighth amendment and international law claims of

cruel and unusual punishment are barred by Teague and controlled

by our decision in Lackey. On the merits, these claims would

likewise fail because the delay that White complains of arises

from post conviction proceedings which exist to protect White and

which White, himself, requested when he petitioned for habeas

relief. 

White’s claim that his evidentiary hearing was fundamentally

unfair and his claim that his counsel was ineffective are also

meritless and we decline to issue a certificate of probable cause

on these issues for the reasons given by the district court.

For all of these reasons, we VACATE our stay of execution

and DENY White’s petition for a certificate of probable cause.