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Russell v. Collins

decided as corrected: August 13, 1993.

CLIFTON CHARLES RUSSELL, PETITIONER-APPELLANT,
v.
JAMES A. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Northern District of Texas. D.C. DOCKET NUMBER CA-1-87-0010-W. JUDGE Sam R. Cummings

Before King, Smith, and Wiener, Circuit Judges.

Author: Wiener

WIENER, Circuit Judge.

In this petition for writ of habeas corpus pursuant to 28 U.S.C. §§ 2241, 2245, Petitioner-Appellant Clifton Charles Russell appeals the district court's denial of his habeas petition. On appeal, Russell challenges the constitutionality of his sentencing proceeding which culminated in imposition of the death penalty. After careful consideration of the issues raised by Russell, we discern no reversible error and affirm.

I

FACTS AND PROCEEDINGS

Russell was convicted of the capital murder of Hubert Otha Tobey, killed in the course of a robbery. After Russell and a companion robbed Tobey of his money and his automobile, Russell struck him over the head with a large piece of concrete and inflicted numerous knife wounds as well, including one to the jugular vein. Russell and two other men, Michael Wicker and William Battee, Jr. subsequently were arrested outside a mall for public intoxication. Police traced the car and connected it to Tobey, whose body had been discovered by then. The police then seized Battee's tennis shoes and Russell's pants, underwear, shirt, and shoes, all of which had blood on them. The car's interior also contained blood stains.

Russell was tried and convicted for capital murder. During the sentencing phase of the trial, the state introduced evidence regarding Russell's poor reputation in the community, his tendency towards violence making him dangerous to society, and opinion testimony suggesting that he was not a likely candidate for rehabilitation.

In response, Russell presented five witnesses, four of whom were members of various church organizations that opposed the death penalty per se. In addition, Russell's mother, Jo Ann Lacy, testified to Russell's troubled childhood and incidents of violence against him. Specifically, she recounted an incident during which Russell's stepfather beat him severely with a baseball bat in response to Russell's allegations that the shooting of his mother nine months earlier by his stepfather had not been accidental. Russell required surgery to mend his broken facial bones. Mrs. Lacy also testified that Russell did not meet his biological father until he was seven and never had a real father figure. Finally, she stated that Russell had suffered as a child because of his mixed racial parentage.

Despite the testimony of Mrs. Lacy, the jury affirmatively answered the first two special issues submitted pursuant to Texas law: whether the defendant acted deliberately, and whether he posed a future danger to the community. Accordingly, the Judge sentenced Russell to death. Russell's conviction and sentence were automatically appealed to the Texas Court of Criminal Appeals, which affirmed the conviction and sentence. Russell next pursued his state habeas remedy, which was denied. Finally, Russell filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Texas and received an evidentiary hearing. Russell's proceedings were stayed, however, pending the Supreme Court's consideration of Penry v. Lynaugh.*fn1 This stay was eventually lifted and the magistrate Judge entered his findings, Conclusions, and recommendation, followed by supplemental findings. The district court adopted the report, dismissing the petition and withdrawing the stay of execution. Russell timely appealed.

II

ANALYSIS

A. Standard of Review

"In considering a federal habeas corpus petition presented by a petitioner in state custody, federal courts must accord a presumption of correctness to any state court factual findings. . . . We review the district court's findings of fact for clear error, but decide any issues of law de novo."*fn2 Evaluation of a petitioner's constitutional ...


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