Selvage v Lynaugh Brief for Petitioner

    No. 87-6700

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1989

JOHN HENRY SELVAGE,
Petitioner,

- v -
JAMES A. LYNAUGH,
Director, Texas Department 
of Corrections,

Respondent.

On Writ of Certiorari to the United 
States Court of Appeals for the Fifth

Circuit

BRIEF FOR PETITIONER

DAVID CUNNINGHAM 
1927 Norfolk 
Houston, TX 77098 
(713) 520-7701

JULIUS L. CHAMBERS 
*RICHARD H. BURR, III 
GEORGE H. KENDALL 
STEVEN W. HAWKINS 
99 Hudson Street,

16th Floor 
New York, NY 10013 
(212) 219-1900

Counsel for Petitioner
♦Counsel of Record



QUESTION PRESENTED

At the time petitioner was tried, was 
there "cause" for not raising a claim 
based upon arguments later accepted in 
Penrv v . Lvnauah. 106 L.Ed.2d 256 (1989);
and if not, would the application of a 
procedural bar to this claim result in a 
"'fundamental miscarriage of justice,'" 
Smith v. Murray. 477 U.S. 527. (1986)?

1

i



TABLE OF CONTENTS

PAGES
STATEMENT OF THE CASE...................... 2

A. Course of Prior Proceedings.... 2
B . Material Facts................... 5

i. Facts Which Were Presented
at Trial................... 5

ii. Penalty Phase Argument and
Instruction............... 12

iii. Facts Revealed in the 
Habeas Corpus Proceedings 
Which Were Not Presented To 
The Jury

SUMMARY OF ARGUMENT....................... 31
ARGUMENT................................... 3 3

I. NO ADEQUATE AND INDEPENDENT 
STATE GROUND BARS MR.
SELVAGE'S PENRY
CLAIM............................3 3

A. Texas Law Excuses the 
Failure of a Criminal 
Defendant to Raise at Trial a 
Constitutional Claim 
Which Had Not Been 
Recognized at the Time 
of Trial But Is 
Subsequently Vindicated by 
This Court................. 37



B. Any State-Law Bar
Would Not Be "Adequate,"
as It Is Enforced
Neither Consistently
nor Strictly; Nor
Would It Be "Independent,"
as It Depends upon a
Federal Constitutional
Ruling.........................46

II. MR. SELVAGE'S FAILURE TO RAISE A 
PENRY CLAIM AT TRIAL SHOULD BE 
EXCUSED FOR "CAUSE" SINCE THAT 
CLAIM WAS NOT REASONABLY 
AVAILABLE TO
COUNSEL.........................54

III. THE APPLICATION OF A 
PROCEDURAL BAR TO MR.
SELVAGE'S PENRY CLAIM WOULD 
R E S U L T  IN A F U N D A M E N T A L  
MISCARRIAGE OF
JUSTICE............. ...........80

A. The Concept Of
"Fundamental Miscarriage 
Of Justice" Cannot Be 
Limited To Constitutional 
Violations Which Have 
"Probably Resulted In The 
Conviction Of One Who Is 
Actually Innocent"............ 80

B. The Penry Error In 
Mr. Selvage's Trial 
I n v o l v e s  A F u n d a m e n t a l  
Miscarriage Of
Justice........................90

I iii



i. The Penry Violation 
in Mr. Selvage's 
Trial................ .91

ii. The Penry Error
Deprived Mr. Selvage 
of the "Basic Trial 
Process" Guaranteed 

to A Capital
Defendant...............101

iii. The Penry Error in Mr. 
Selvage Case Precluded 
the Jury's Consideration 
of the Most Compelling 
Mitigating Circumstances 
That Can Be
Proffered.............. 106

iv. The Penry Violation
in Mr. Selvage's Case 
Probably Resulted 
in the Imposition 
of the Death 
Sentence on One 
Who Is Actually 
Undeserving of
It.......................110

CONCLUSION.............................. 116

l
iv



TABLE OF AUTHORITIES
Cases: Page
Adams v. State,

577 S .W.2d 717
(Tex. Cr. App. 1979) ......50, 62,

74
Adams v. Texas,

448 U.S. 38 (1988) ........43, 63
Ake v. Oklahoma,

470 U.S. 68 (1985) ........52, 53
Barr v. City of Columbia,

378 U.S. 146 (1964) .......47, 52
Batson v. Kentucky,

476 U.S. 179 (1986) .......46
Blackledge v. Perry,

417 U.S. 21 (1974) ........74
Blansett v. State,

556 S.W.2d 322
(Tex. Cr. App. 1977).......61

Boddie v. Connecticut,
401 U.S. 371 (1971) .......101

Boulware v. State,
542 S .W.2d 677
(Tex. Cr. App. 1976).......37, 43

Brown v. Allen,
344 U.S. 443 (1952)........74

Burgett v . Texas,
389 U.S. 105 (1967)........43

v



Caldwell v. Mississippi, 
472 S.W.2d 320 (1985) 106

California v. Brown,
479 U.S. 538 (1987)........ 109, 115

Callins v. State,
No. 69,023, (Tex. Cr.
App. Sept. 27, 1989)...... 44

Chambers v. State,
568 S.W.2d 313
(Tex. Cr. App. 1978)...... 40

Chitwood v. State,
703 S .W.2d 360
(Tex. Ct. App. 5th
Dist. 1986)................. 38

Clark v. State,
717 S .W.2d 910
(Tex. Cr. App. 1986)...... 50

Collins v. State,
548 S .W.2d 368
(Tex. Cr. App. 1976)....... 61

Collins v. Texas,
'430 U.S. 959 (1977)
(table)...................... 71

Connecticut v. Johnson,
460 U.S. 73 (1983).......   .105

Cuevas v. State,
641 S.W.2d 558
(Tex. Cr. App. 1982)........37, 43

Desist v. United States,
394 U.S. 244 (1969).........76, 79

vi



Downs v . Dugger,
514 So.2d 1069
(Fla. 1987)................. 100

Duckworth v. Serrano,
454 U.S. 1 (1981)............74

Dugger v . Adams,
103 L.Ed.2d 435
(1989).......................51, 106

Eddings v. Oklahoma,
455 U.S. 104 (1982)......... 103, 105

107
Emmund v. Florida,

458 U.S. 782 (1982)........ 97
Engle v. Isaac,

456 U.S. 107 (1982)........ passim
Estelle v. Smith,

451 U.S. 454 (1981.)........ 38, 87
Ex parte Casarez,

508 S.W.2d 620
(Tex. Cr. App. 1974).......37, 43

Ex parte Chambers,
688 S.W.2d 483
(Tex. Cr. App. 1984).......passim

Ex parte Demochette,
633 S .W.2d 879
(Tex. Cr. App. 1982).......40

Ex parte Flores,
537 S .W.2d 458
(Tex. Cr. App. 1976) ......43

Ex parte Granviel,
561 S .W.2d 503

vii



(Tex. Cr. App. 1978)....... 61
Ex parte Hall,

546 S.W.2d 303
(Tex. Cr. App. 1977)...... .43

Ex parte Martin,
479 S.W.2d 280
(Tex. Cr. App. 1972)....... 43

Ex parte Ropollo,
550 S.W.2d 869
(Tex. Cr. App. 1977)....... 43

Ex parte Sanders,
580 S.W.2d 383
(Tex. Cr. App. 1979)....... 37

Ex parte Taylor,
484 S .W.2d 748
(Tex. Cr. App. 1972)...... 37

Ex parte Turner,
542 S .W.2d 187 ■
(Tex. Cr. App. 1976)...... 44

Ex parte Woods,
745 S .W.2d 21
(Tex. Cr. App. 1988)...... 40

Field v. State,
627 S .W.2d 714
(Tex. Cr. App. 1982)...... 39

Fierro v. State,
706 S .W.2d 310
(Tex. Cr. App. 1986)...... 51

Ford v. Wainwright,
477 U.S. 399 (1986)......... 108

Francis v. Henderson,
viii



425 U.S. 536 (1976) 54
Frank v . Mangum,

237 U.S. 309 (1915)........112
Franklin v. Lynaugh,

101 L.Ed.2d 155
(1988) ...... 94, 99

Gholson v. State,
542 S.W.2d 395
(Tex. Cr. App. 1976).......61

Gholson v. Texas,
432 U.S. 911 (1977)
(table)..................... 71

Granviel v. Estelle,
No. CA-4-78-115 
(N.D. Tex. Jan. 26,
1979)........................66, 71

Granviel v. State,
552 S.W.2d 107
(Tex. Cr. App. 1976)......... 61

Granviel v. Texas,
431 U.S. 933 (1977)
(table)......................71

Hargrave v. Dugger,
832 F.2d 1528
(11th Cir. 1987)............ 78

Harmon v. State,
527 So.2d 182
(Fla. 1989).................100

Harris v. Reed,
103 L.Ed.2d 308
(1989) ..................... .35

ix



Hartfield v. State,
645 S .W.2d 463
(Tex. Cr. App. 1980).......43

Hathorn v . Lovorn,
457 U.S. 255 (1982) ........36

Henry v. Mississippi,
379 U.S. 443 (1965)........35

Herb v. Pitcairn,
324 U.S. 117 (1945)........52

Hitchcock v. Dugger,
481 U.S. 393 (1987).............77, 107

Hovey v. Elliot,
167 U.S. 409 (1897)........101-02

In Re Winship,
397 U.S. 358 (1970)........ 67

James v . Kentucky,
466 U.S. 341 (1984).......47

James v. State,
772 S .W.2d 84
(Tex. Cr. App. 1989)...... .46

Johnson v. Mississippi,
100 L.Ed.2d 575
(1988)...................... 35

Johnson v. State,
691 S.W.2d 619
(Tex. Cr. App. 1984)...... 50

Jones v. Barnes,
463 U.S. 745 (1983).......72-73

Jurek v. Texas,
428 U.S. 262 (1976).......passim

x



60, 61, 
74

King v. State,
552 S .W.2d 105 
(Tex. Cr. App. 1977)

King v. Texas,
434 U.S. 1088 (1978) 
(table).................

Kuhlmann v. Wilson,
477 U.S. 436 (1986)---- --- Ill, 112

Livingston v. State,
542 S.W.2d 655
(Tex. Cr. App. 1976)---

Lockett v. Ohio,
438 U.S. 586 (1978)___

Mathews v. State,
768 S .W.2d 731
(Tex. Cr. App. 1989)... ___ 46

Moore v. State,
542 S .W.2d 664
(Tex. Cr. App. 1976)... ___ 39

Motley v. State,
773 S .W.2d 283
(Tex. Cr. App. 1989)... ___ 50

Muniz v. Procunier,
760 F.2d 588
(5th Cir. 1985)........ --- 41,

46
42,

Murray v. Carrier,
477 U.S. 478 (1986)___

NAACP v. Alabama ex 
rel. Patterson,

xi



Nix v. Whiteside,
475 U.S. 157 (1986).........74

Obryan v. State,
591 S.W.2d 464

. (Tex. Cr. App. 1979).......61
Ocker v. State,

477 S.W.2d 288
(Tex. Cr. App. 1972).......43

Penry v . Lynaugh,
106 L.Ed.2d 256
(1989).......................passim

Powell v. State,
742 S.W.2d 353
(Tex. Cr. App. 1987).......41

Quinones v. State,
592 S .W.2d 933
(Tex. Cr. App. 1980).......63, 64,

74
Reed v. Ross,

468 U.S. 1 (1984).......... passim
Roberts v. LaVallee,

389 U.S. 40 (1967)......... 74
Rose v. Clark,

478 U.S. 570 (1986)........passim
Selvage v. State,

680 S.W.2d 17
(Tex. Cr. App. 1984).......97

Skipper v. South Carolina,
476 U.S. 1 (1986).......... 93, 107,

108, 109

357 U.S. 449 (1958)........78

xii



Smith v . Murray,
477 U.S. 527 (1986)....... passim

Smith v. State,
540 S.W.2d 693
(Tex. Cr. App. 1976)...... 39

Sosa v. State,
769 S.W.2d 909
(Tex. Cr. App. 1989).......50

South Carolina v. Gathers,
104 L.Ed.2d 876
(1989)............ ......... 107

State v. Sonnier,
402 So.2d 650
(La. 1981).................. 100

Stewart v. State,
686 S .W.2d 118
(Tex. Cr. App. 1984).......49

Teague v. Lane,
103 L.Ed.2d 334
(1989)...................... 75, 88

104
Thompson v. Dugger,

515 So.2d 173
(Fla. 1987).................77

Tison v. Arizona,
481 U.S. 137 (1987)....... 109

United States v. Johnson,
457 U.S. 537 (1982)....... 56

Wade v. Mayo,
334 U.S. 672 (1948)....... 74

xiii



Wainwright v. Sykes,
433 U.S. 72 (1977)......... 34,

Washington v. Texas,
388 U.S. 143 (1967)........ 44

Williams v. State,
622 S.W.2d 116
(Tex. Cr. App. 1981).......51

Williams v. State,
674 S .W.2d 315
(Tex. Cr. App. 1984).......48

Williams v. State,
773 S.W.2d 525
(Tex. Cr. App. 1988).......46

Witherspoon v. Illinois,
391 U.S. 510 (1968)........43

Woodson v. North Carolina,
428 U.S. 280 (1976)........103

Zant v. Stephens,
462 U.S. 862 (1983)........116

Other Authorities:
Friendly, Is Innocence

Irrelevant? Collateral 
Attack on Criminal 
Judgments, 38 U. Chi. L.
Rev. 142 (1970)............ 88

Ledewitz, Procedural 
Default in Death 
Penalty Cases: Fundamental
Miscarriage of Justice 
and Actual Innocence,
24 Crim. L. Bull. 379 
(1989) 82



CITATION TO OPINION BELOW
The order of the District Court 

d e n y i n g  h a b e a s  c o r p u s  relief is 
unreported. JA 63-67. The opinion of the 
Court of Appeals is reported as Selvage v. 
Lvnaugh. 842 F.2d 89 (5th Cir. 1988). JA
68-82.

JURISDICTION
The judgment and opinion of the Court 

of Appeals were entered March 28, 1988.
The petition for writ of certiorari was 
filed on March 29, 1988, and certiorari
was granted on October 10, 1989.
Jurisdiction is based upon 28 U.S.C. § 
1254(1).

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

This case involves the Eighth and 
Fourteenth Amendments to the Constitution 
of the United States, which are set out in 
the Appendix hereto. It also involves 
Tex. Code. Crim. Proc. Ann. art. 37.01



(Vernon 1981) , which is also set out in 
the Appendix.

STATEMENT OF THE CASE 
A. Course of Prior Proceedings 
Mr. Selvage was convicted of capital 

murder on February 8, 1980, and was
sentenced to death on February 11, 1980,
in the District Court for the 230th 
Judicial District, Harris County, Texas. 
His conviction and sentence were affirmed 
by the Texas Court of Criminal Appeals on 
July 11, 1984. Selvage v. State. 680
S.W.2d 17 (Tex. Crim. App. 1984). No 
petition for certiorari was filed.

Mr. Selvage thereafter filed a 
petition for habeas corpus in the United 
States District Court for the Southern 
District of Texas. Relief was denied 
October 6, 1986, and the Fifth Circuit
affirmed July 23, 1987. Selvage v.
Lvnaugh. 823 F.2d 845 (5th Cir. 1987).

2



Certiorari was denied October 2, 1987. 
Selvaae v. Lvnauah. 98 L.Ed.2d 268 (1987).

On January 21, 1988, Mr. Selvage 
filed a state habeas corpus petition. On 
March 14, 1988, the District Court for the 
230th Judicial District recommended denial 
of the petition. JA 29-37. On March 21, 
1988, the Texas Court of Criminal Appeals 
adopted the recommendation. Ex parte 
Selvage. No. 16, 884-02? JA 38-39.

On March 22, 1988, Mr. Selvage 
activated a petition for habeas corpus 
which had previously been lodged in the 
United States District Court for the 
Southern District of Texas. JA 7-28. On 
March 25, 1988, the District Court entered 
orders dismissing three of Mr. Selvage's 
four claims, withholding adjudication of 
the fourth claim because it presented an 
issue then pending before the en banc 
Fifth Circuit in King v. Lvnaugh. 828 F.2d

3



257 (5th Cir.)/ reh. en banc granted. 828 
F.2d 269 (5th Cir. 1987), and granting a 
stay of Mr. Selvage's execution scheduled 
for March 30, 1988. JA 63-67. The state 
moved the Fifth Circuit to dissolve the 
stay of execution, and Mr. Selvage 
appealed from the dismissal of the three 
claims and sought a stay of execution on 
appeal if the District Court's stay was 
dissolved. On March 28, 1988, the Fifth
Circuit granted the state's motion, denied 
Mr. Selvage's request for a stay, and 
denied a certificate of probable cause. 
Selvage v. Lvnauah. 842 F.2d 89 (5th Cir. 
1988); JA 68-82.

On March 29, 1988, this Court granted 
a stay of execution, Selvage v. Lvnauah. 
No. A-741, and on October 10, 1989, it
granted certiorari, limited to the 
question which —  as rephrased by the 
Court —  is set out at page i supra. JA

4



83.
B. Material Facts

i. Facts Which Were Presented 
at Trial

Sometime before the end of July, 
1979, Wilbur Kelly told Carl Marlborough, 
that Kelly and John Selvage planned to 
commit several robberies. R. 2688, 2715- 
16.1 On July 30, 1979, Kelly and Selvage, 
along with Brenda Joseph, entered 
Ventura's Jewelry in Houston to commit one 
of the robberies Kelly had mentioned.

Stephen Ventura, the owner of the 
store, felt uncomfortable when these three 
people entered because they had been in 
the store earlier and were not regular 
customers. R. 2296. Deputy Sheriff A1 
Garza of the Harris County Sheriff's

1 References to the record on appeal filed ‘in 
the Texas Court of Criminal Appeals in connection 
with the direct appeal are to "R," followed by the 
page number of the sequentially paginated record as 
a whole.

5



Department was in the store that 
afternoon. He was a friend of Ventura and 
had stopped to use the phone. R. 2294. 
Deputy Garza was in plain clothes but was 
wearing his badge on his belt and his 
service revolver. Id. Ventura told Garza 
about his discomfort. R. 2296. Garza 
came to one of the store's counters, 
removed his coat, "obviously" displayed 
his badge and gun, and began waiting on 
one of the three people. R. 2298, 2302. A 
few moments later, Ventura heard a 
gunshot, felt Garza slump against him, and 
immediately ran to a rear office to 
retrieve a gun. R. 2305-2306. He heard 
more gunshots and glass breaking; then he 
began shooting at the men in the store. 
R. 2306-2307. Ventura chased the men as 
they fled from the store; he shot at them; 
they both shot at him. R. 2308-2312. The 
men got to a car and drove off. Id.

6



thisDeputy Garza had been killed in
incident; no one else was injured.2

Neither Mr. Ventura nor anyone else 
in the store saw which person fired the
shot that killed Deputy Garza.3 R. 23 63, 
2395, 2445. However, Ken Roberts, an
employee who was present, and Mr. Ventura 
both made significant observations about 
the demeanor of Wilbur Kelly and John
Selvage during the course of the 
incident. Roberts testified that he knew 
that one of the men involved in the
Ventura's robbery had been killed a few 
days after the robbery. R. 2433. He was 
not surprised to learn that the man killed

2 Deputy Garza died from a single gunshot 
wound, which entered the right side of his neck and 
exited the left side, severing his subclavian 
artery. R. 2727-2728.

3 As revealed by an examination of the 
bullets recovered from the store, shots were fired 
by two guns other than Ventura's. R. 2758-2760. 
None of the bullets could be identified as the one 
that killed Deputy Garza. R. 2567-2568.

7



was Wilbur Kelly, because Kelly "seemed 
like the wilder of the two when they were 
in the store." Id. Ventura remembered
that Kelly seemed to be the leader because 
he was calmer and talked more than 
Selvage, who was nervous. R. 2352-53. 
But Roberts was particularly troubled by 
Kelly's reckless demeanor: "[H]e acted
stranger than the other man [Selvage]."

I&*.
During the penalty phase, the state 

offered additional evidence. Two prior 
federal convictions of Mr. Selvage were 
introduced, one for possession of 
controlled substances, the other for 
conspiracy to commit bank robbery. R. 
2894. In neither case was there any 
indication that any person was harmed.
The state also called a witness from the 
New Orleans Sheriff's Department, Captain 
Ronald Cherry. He told the jury that on

8



July 22, 1975, while incarcerated in a
Louisiana state facility, Selvage escaped.
R. 2897. On cross-examination, he
revealed that, in attempting to escape, 
Selvage fell several floors and sustained 
s i g n i f i c a n t  i n j u r i e s  r e q u i r i n g  
hospitalization. No escape from the 
institution was effectuated. R. 2902.

Finally, the jury heard two witnesses 
implicate Mr. Selvage in a July 26, 1979
robbery/murder at a '"Stop-and-Go" store in 
Houston.4 5 Michael McWilliams told the 
jury that he was working at the Stop-and- 
Go convenience store when a person he 
identified as Selvage entered with another 
black male and demanded money from the 
register. R. 2834-45.^ McWilliams was

4 Mr. Selvage was never formally charged with 
or tried for this crime.

5 There was no dispute that the other person 
involved in this incident was Wilbur Kelly. See R. 
2973 (prosecutor arguing that Selvage and Kelly had 
committed the Stop-and-Go robbery four days before

9



ordered to the back room and later placed
in a small bathroom. Id. After hearing 
the assailants searching for money, 
McWilliams heard gunshots. He waited a 
while in the bathroom and then went to the 
front of the store, where he saw a 
customer who had been shot. Id. Neither 
McWilliams nor Al Bell, another customer 
in the store at this time, saw which of 
the robbers shot the customer (who later 
died). R. 2881.

The defense offered Mr. Selvage's 
sister, Audrey Picou, as its primary 
witness in mitigation. Picou initially 
described her brother's upbringing. She 
told the jury that Selvage had been

the Ventura's robbery). Consistent with the 
observations of the respective roles and demeanors 
of Kelly and Selvage in the Ventura's robbery, 
McWilliams testified that Kelly was the first person 
to pull out a gun and to order him around. R. 2838. 
While Kelly was emptying the cash register Selvage 
was just watching; he did not have a gun out at that 
time. Id.

10



raised in a very close, religious family 
and, unlike other children they knew, had 
been exposed to the arts and music. R. 
2895-2912. In school he was an "A" and 
"B" student. Id. Throughout his early 
and school years, he was a happy, normal 
child.

In 1968, Ms. Picou recalled, Mr. 
Selvage was drafted into the military. 
When he was discharged not quite two years 
later, he came back a very different 
person. R. 2911. In her terms "he came 
back in a straight jacket." R. 2910. He 
had become addicted to heroin and spent 
several months in military hospital 
treatment centers. Id. When he finally 
returned to New Orleans, he was not able 
to work for a period of time, but later 
found work at a gas station. R. 2910-11.

She testified further that she had 
never seen Mr. Selvage exhibit violent

11



behavior and she opined that he was a 
peaceful person. R. 2912, 2921. This was 
consistent with their family, she said: no 
other family member had ever been 
arrested. R. 2912-13. She also opined 
that Mr. Selvage had the strength of 
character to be rehabilitated. R. 2914.6

ii. Penalty Phase Argument and 
Instruction

The defense case in relation to 
special issue one7 rested on the absence 
of evidence that Mr. Selvage shot Deputy 
Garza or anyone else. R. 2947-48, 2951-
52. Defense counsel relied upon the 
absence of evidence to argue that Selvage

6 The only other defense witness was Dr.  ̂
Garcia, director of mental health services for 
Texas Department of Corrections, R. 2924, 
described the rehabilitative programs offered by 
Department of Corrections to inmates.

7 "Do you find from the evidence beyond a 
reasonable doubt whether the conduct of the 
defendant, John Henry Selvage, that caused the death 
of the deceased was committed deliberately and with 
the reasonable expectation that the death of the 
deceased or another would result?" JA 4.

12



did not shoot anyone and thus did not 
deserve to die. R. 2952. Counsel 
conceded that even though Selvage did not 
shoot anyone, the jury could answer 
special issue one "yes." R. 2951 ("there 
is no question that under the law you have 
got the option to execute John Selvage"). 
However, he urged the jury not to do so as 
a matter of "conscience." Id.

In response, the prosecution argued 
that it did not matter whether Selvage 
actually shot A1 Garza. The requirement 
of special issue one that "the conduct of 
the defendant ... that caused the death of 
the d e c e a s e d  [be] ••• committed 
deliberately," JA 4, was satisfied because 
there was evidence that Mr. Garza was
killed deliberately —  even though one
could not say whether the killer was
Wilbur Kelly or John Selvage —  and
because Selvage had engaged in other

13



deliberate criminal acts during the course 
of the crime: planning the robbery, arming 
himself, and shooting at people other than 
Garza. R. 2968-71. The prosecutor 
conceded, " [w]e can't say the bullet came 
out of ... the defendant's gun...." R. 
2970. However, he twice reiterated that 
the "deliberately committed conduct" 
aspect of special issue one did not 
require that Selvage be the one who fired 
the fatal shot so long as Selvage engaged 
in other deliberate acts in furtherance of 
the crime. R. 2972, 2973.

The prosecutor then argued that the 
second aspect of issue one, which focused 
on the defendant's "reasonable expectation 
that the death of the deceased or another 
would result," JA 4, was readily 
established by two facts: the act of 
taking a loaded gun into a store to commit 
a robbery, and Mr. Selvage's experience

14



four days before the Ventura's robbery 
when, during the armed robbery of the 
Stop-and-Go market, someone was killed.
R. 2973.

On the basis of this analysis, the 
prosecution argued that the jury had no 
choice but to answer special issue one 
"yes." "The only proper answer to the 
first question is yes. That is the only 
proper answer based on the evidence." Id.

The prosecution's case in relation to 
special issue two® rested on Mr. Selvage's 
convictions of federal crimes, his 
attempted escape in New Orleans, and his 
participation in the Ventura's and Stop- 
and-Go robbery-murders. R. 2974-75.

The defense sought to put Mr. 
Selvage's criminal acts in perspective by 8

8 "Do you find from the evidence beyond a 
reasonable doubt whether there is a probability that 
the defendant, John Henry Selvage, would commit 
criminal acts of violence that would constitute a 
continuing threat to society?" JA 4.

15



emphasizing that they did not begin until 
he returned from the military "in a strait 
jacket" due to drug addiction, after which 
he "started engaging in a life of crime." 
R. 2945. His addiction was portrayed as 
the primary factor underlying his criminal 
activity:

This drug situation, I am not 
going to come into you and say 
it wasn*t John Selvage that was 
convicted before —  it was the 
drugs —  that's what did it. He 
had no free will of his own.

R. 2957.
iii. Facts Revealed in the 

Habeas Corpus Proceedings 
Which Were Not Presented To 
The Jury

In the subsequent state and federal 
habeas corpus proceedings, facts were 
discovered which were highly material to 
the appropriateness of a death sentence 
for Mr. Selvage. These facts demonstrated 
that Mr. Selvage was far more disabled—  

mentally, emotionally, and physically—

16



than the trial evidence revealed, and that 
it was more likely that Wilbur Kelly, not 
Selvage, fired the shot that killed Deputy 
Garza. Most of these facts were developed 
through new investigation, but some had 
emerged at a pretrial hearing on Mr. 
Selv a g e ' s  motion to suppress his 
confessions. They are presented here 
because they bear upon the Court's 
"fundamental miscarriage of justice" 
inquiry.

There was substantial evidence to 
support Audrey Picou's penalty trial 
testimony that her brother came back from 
the military addicted to drugs. On the 
day before he was arrested,9 Mr. Selvage 
injected both an amphetamine (Preludin) 
and heroin. R. 683, 686-87, 776-77. The

9 Mr. Selvage was arrested on August 10, 1979 
in New Orleans, ten days after the Ventura's Jewelry 
store robbery. He was from New Orleans and returned 
there after the robbery.

17



New Orleans police officers who arrested 
him suspected that he was under the 
influence of drugs, because he was "a 
little incoherent on occasion[,] ... 
nodding in and out", R. 532 (Det. 
Albright), "lackadaisical[,] ... kind of
slowed down [,] —  [and] [d]rifting in
and out of reality," R. 571 (Det. Miller). 
Further, there was substantial evidence of 
chronic drug use and addiction. In the 
suppression hearing, Mr. Selvage testified 
that he was using $200 to $3 00 worth of 
drugs every day. R. 780. Objective 
evidence'of his addiction was apparent to 
the police. He displayed some of the 
symptoms associated with heroin withdrawal 
—  stomach cramps, extreme thirst, and a 
craving for something sweet, R. 532, 539, 
633, 652-53 —  and he had needle marks on
his arms. R. 652.

However, an addiction to mind-and-

18



mood-altering drugs was not the only 
disability suffered by Mr. Selvage. He 
also suffered from severe mental illness 
and from the effects of brain damage. 
Together with his drug addiction, these 
disabilities led him to become associated 
with a highly aggressive, reckless, 
violent man like Wilbur Kelly, and made 
him vulnerable to participating with Kelly 
in the crimes for which he was sentenced 
to death.

By the time of the robberies in
Houston, Mr. Selvage had suffered the
symptoms of psychosis for nearly a decade. 
These symptoms were first documented in 
April, 1970, when Mr. Selvage was only 
nineteen years old. He was medically 
discharged from the Air Force at that time 
because he was becoming psychotic. The 
examination which precipitated his 
discharge revealed that Mr. Selvage was

19



seen on an emergency basis because "[he] 
rammed his fist through a window in an 
attempt to catch the people that he 
thought were 'spying' on him." Appendix A 
to the federal habeas petition.10 The 
examination further revealed that Mr. 
Selvage "felt people were watching him 
everywhere on base," "admitted hearing 
whispering voices at night over the past 
few weeks and . . . that these voices were 
talking about him," experienced "frequent 
ideas of reference,"11 had a "blunted 
affect," and as a result of these things, 
"had difficulty sleeping at night and

10 The petition, without the appendices, is 
at JA 7-28.

11 An "idea of reference" is "[a]n idea, less
firmly held than a delusion, that events, objects, 
or other people in the person's immediate 
environment have a particular and unusual meaning 
specifically for him or her." American Psychiatric 
Association, Diagnostic and Statistical Manual of 
Mental Disorders 399 (3d Ed. Revised 1987)
[hereafter, "DSM-III-R"].

20



performing his duties at work." Id. 12
Thereafter, when Mr. Selvage was 

incarcerated for a federal conviction in 
the latter half of the 1970*3, Bureau of 
Prisons mental health personnel diagnosed 
h i m  as s u f f e r i n g  from "paranoid 
schizophrenia." Appendix B to the habeas 
petition.13

In December, 1987 and again in 
January, 1988, Mr. Selvage was examined by 
a psychiatrist, Dr. James R. Merikangas. 
On the basis of Selvage's "well-documented 
history of psychosis from at least 1969 or 
1970", a history of "severe head

12 Mr. Selvage's symptoms are characteristic 
of the delusions, hallucinations, peculiar ideas, 
affect, and impairment in every day functioning 
associated with paranoid schizophrenia. See DSM- 
HI-R, at 194-95, 197.

13 From the date of this diagnosis in 
January, 1977, until his release from federal 
custody in late 1978, Mr. Selvage was given daily 
therapeutic doses of Thorazine, a drug often used in 
the treatment of schizophrenia.

21



iv&lii&iSAiiiiSiXiifi-.

injury,"14 the continuing treatment of 
Selvage with anti-psychotic medications 
and anti-seizure medication on death row, 
and his own examination of Selvage, Dr. 
Merikangas concluded that Selvage still 
suffered from a psychotic illness, and, in 
addition, from brain dysfunction. 
Appendix D to the habeas petition, at 3.

Dr. Merikangas' diagnosis was 
confirmed in evaluations of Mr. Selvage 
that were conducted at the request of the 
state during the pendency of Selvage's 
state habeas petition in February, 1988. 
Dr. John Nottingham, the state's 
psychiatrist, noted that on February 9, 
1988, Selvage "does still appear to have 
evidence of delusional thinking in regards 
to his concept of various personalities

14 Mr. Selvage's severe head injury was 
documented "in the [medical] records as a skull 
fracture, as the result of a fall from a multiple 
story building." Appendix D to the habeas petition, 
at 2.

22



taking over his mind and body and he
indicates that at times he has auditory
hallucinations.” Appendix C, attached to
Petitioner's Supplemental Memorandum in
Support of Motion to Stay Execution, March
23, 1988, filed in the United States
District Court for the Southern District
of Texas (No. H-86-0166), at page 4. Upon
r e v i e w i n g  S e l v a g e ' s  history, Dr.
Nottingham concluded, "It would appear
that the subject does have a long standing
history of mental illness which has
reflected itself in overt psychosis at
various times.” Id. • Similarly, the
state's psychologist, Dr. Jerome Brown
noted the following:

M e n t a l  status examination 
reveals the defendant to still 
exhibit a number of symptoms of 
severe mental illness including 
the delusional belief that his 
body is inhabited by several 
personalities, the continuing 
e x p e r i e n c e  of a u d i t o r y  
h a l l u c i n a t i o n s ,  and his 
tendency to answer questions in

23



a very talkative, somewhat 
rambling fashion. In addition, 
the defendant does have a 
significant past psychiatric 
history and describes his
current difficulties in a manner 
that makes them credible.

Appendix D, o p . cit.. supra, at page 3.15
In light of Mr. Selvage's history and

the unavailability of treatment at the
time of the Ventura's Jewelry robbery, Dr.
Merikangas concluded that Selvage was
suffering "from a psychosis as well as
other disorders at the time of the crime."
Appendix D to the habeas petition, at 3-4.
Further, he concluded that the psychosis,
together with the impairments of drug
intoxication and brain damage, would have
substantially impaired Selvage's capacity
to appreciate the wrongfulness of his

15 Mr. Selvage's medical records since his 
incarceration on death row are consistent with the 
views of the forensic experts. Prison personnel 
have frequently recorded his experiencing "bizarre 
and apparently psychotic delusions," JA 21, "somatic 
delusions," id.. and paranoid delusions accompanied 
by hallucinations, JA 21-22.

24



criminal conduct and to refrain from
engaging in such conduct at that time.
Id.. at 4. As he explained,

According to John, he was high 
on heroin and amphetamines at 
t h e  t i m e  of the crime. 
Amphetamines alone can induce a 
paranoid state and generate 
i n c r e a s e d  motor activity, 
resulting in paranoid ideation 
and violent acts which may be 
completely spontaneous or in 
response to command hallucina­
tions. The kind of brain injury 
that John has probably suffered 
would have compounded both the 
drug-induced paranoia and his 
pre-existing psychosis, for such 
an injury lowers one's ability 
to modulate and resist strong 
impulses. The severity of 
John's psychosis would likely 
have caused him to misperceive 
simple gestures as threats and 
to act on them without any basis 
in reality.

Appendix D to the habeas petition, at 4.
This analysis was relevant on the 

assumption that Mr. Selvage was the person 
who fired the fatal shot at Deputy Garza: 
if Selvage did fire that shot, he likely 
did so because he misperceived Deputy

25



Garza as threatening him. But Dr.
Merikangas also determined that Selvage's
disabilities could have played a very
different role during the Ventura's
robbery. They could, if various
conditions were present, have caused him
to go along passively with a scenario in
which Wilbur Kelly, rather than Selvage,
was the primary aggressor. As Dr.
Merikangas explained:

While these combined factors 
could have produced a violent, 
uncontrolled outpouring of 
aggressive behavior, John's use 
of heroin could have mollified 
his aggression —  if the dosage 
were high enough —  and taken 
away his will to act. In this 
state, without the ability to 
perceive the external world 
accurately and make appropriate 
j udgments in response to it 
because of his psychosis, John 
could have been peculiarly 
susceptible to the coercion, 
influence, and designs of 
others.

Appendix D to the habeas petition, at 4.
Dr. M e r i k a n g a s '  a l t e r n a t i v e

26



formulation of the potential effects of 
Mr. Selvage's disabilities at the time of 
the crime takes on added significance in 
light of other evidence not considered by 
Selvage's trial jury: evidence that
Wilbur Kelly, rather than Selvage, 
actually killed Deputy Garza. Dr. 
Merikangas' observation that Mr. Selvage's 
disabilities could have made him a passive 
follower at the time of the Ventura's 
robbery —  relatively unaggressive and 
vulnerable to Kelly's domination or 
influence —  is quite consistent with 
witnesses' observations of Kelly and 
Selvage during both the Ventura's and the 
Stop-and-Go robberies. So is evidence 
relating to the arrest of Selvage and 
attempted arrest of Kelly in New Orleans 
ten days after the robbery of Ventura's 
Jewelry.

On August 10, 1979, police offers

27



tried to arrest Wilbur Kelly in New
Orleans, where he was wanted for the
commission of two other murders. John
Selvage, who had returned to New Orleans 
shortly after the Ventura's robbery, was 
arrested first, at 4:30 a.m. that day, for 
his participation in the Ventura's and 
Stop-and-Go robberies in Houston. R. 500, 
503, 536. The New Orleans officers who 
arrested Selvage were primarily interested 
in .apprehending Kelly, due to the 
Louisiana murders, R. 536, and their 
strong belief that Kelly was "a killer." 
R. 547. Thus, their questioning of 
Selvage was directed to learning where 
Kelly might be found. R. 547. Selvage 
gave the officers this information. R. 
523. Thereafter, at approximately 7:30 
a.m., New Orleans officers located Kelly 
and, in attempting to arrest him, engaged 
him in a shootout which ended when he was

28



killed. R. 536, 546-47.
Late in the afternoon on the same

day, two Houston police officers, E.T.
Yanchak and C.W. Kent, arrived in New
Orleans to interrogate Selvage about the 
two robbery-murders in Houston. Based on 
their previous investigation, they
believed that Wilbur Kelly had fired the 
fatal shot in the Ventura's Jewelry
robbery. As Detective Yanchak testified,

Q. [At] th [ at ] time ... you knew 
from the statements taken from 
Eugene Wadis, Peanuts and Brenda 
Joseph that they said Wilbur 
Kelly did the shooting of A1 
Garza?

A. Yes sir.
Q. In your mind you knew Wilbur

Kelly did the shooting of Albert 
G a r z a  a c c o r d i n g  to the 
statements you had?

A. Yes sir.
R. 653. Detective Kent agreed that "there 
was no doubt about who did the killing," 
for he had "sufficient statements that

29



Wilbur Kelly had killed Albert Garza." R. 
629.

For this reason, at the commencement 
of the interrogation of Mr. Selvage, 
Detective Kent told Selvage that Wilbur 
Kelly had been killed in a shootout with 
the New Orleans police that day. R. 614. 
He then told Selvage that if Kelly had 
fired the fatal shot at Officer Garza, he 
should get "the heat off his back" and 
tell the police what happened. R. 614-15; 
653. Mr. Selvage responded by giving two 
confessions. In the first, he confessed 
to participating in the robbery of the 
Stop-and-Go market with Wilbur Kelly. In 
the second, he described his participation 
in the robbery of Ventura's Jewelry. He 
admitted firing his gun during the 
Ventura's robbery, but he said that Wilbur 
Kelly was the person who killed the people

30



in each robbery.16
SUMMARY OF ARGUMENT

Mr. Selvage's death sentence did not 
reflect a "reasoned moral response" to the 
evidence because the sentencing process 
failed to provide his jury with a vehicle 
to give mitigating effect to the evidence 
that he was addicted to mood-and-mind 
altering drugs at the time of the crime, 
and that he did not kill Deputy Garza.

The state courts' refusal to review 
this Penrv claim on the merits does not 
amount to an "adequate and independent 
state law ground" precluding merits review 
in this Court. Penrv invokes a long- 
recognized exception to the Texas 
contemporaneous objection rule that now 
allows the claim to be entertained on its

16 Even though the trial judge overruled Mr. 
Selvage's motion to suppress the confessions, R. 
884, the prosecution did not thereafter introduce 
them at trial.

31



merits. In addition, because the Texas 
default rule has seldom been applied to 
bar untimely Penrv-tvoe claims, the state 
law ground is not "adequate." Further, 
since the state courts' default rule 
requires consideration of whether Penrv 
announced a rule that was not recognized 
previously by the state court, the state 
law ground is not "independent."

In any event, Mr. Selvage shows cause 
for his failure to raise his Penrv claim 
at his 1980 trial. By that time, the 
Texas Court of Criminal Appeals, relying 
upon decisions from this Court, had held 
repeatedly and unequivocally that no 
instructions beyond the special issues 
were needed to permit mitigation to be 
fully considered under the Texas capital
scheme. No court decision from other
states, or the federal courts, was
available to help counsel construct an

32



argument to question in 1980 this hard- 
and-fast rule.

A miscarriage of justice will occur 
if the Court fails to review the Penrv 
violation, which precluded the jury from 
taking into account the reasons Selvage 
should not have been sentenced to death, 
the most important constitutional 
requisite for a capital sentencing 
decision. But for this error, the jury 
would not have voted for death, ,for all 
the relevant evidence, including evidence 
not known to the jury, showed that 
Selvage's participation in the crime was 
induced and shaped by severe mental 
illness and that he killed no one.

ARGUMENT
I. NO ADEQUATE AND INDEPENDENT 

STATE GROUND BARS MR. SELVAGE'S 
PENRY CLAIM

Mr. Selvage presented his Penrv17

17 Penrv v. Lvnaugh. 106 L.Ed.2d 256 (1989).
33



claim for the first time in postconviction 
proceedings. Following the recommendation 
of the state habeas judge, the Texas Court 
of Criminal Appeals held that Selvage's 
failure to raise the claim at trial 
constituted a procedural default. See. 
JA. 34-35; 38-39. For this reason the
court below, finding no "cause" for the 
default, refused to entertain the Penrv 
claim on the merits.18 JA. 77-78

Before reaching the "cause" inquiry 
under Wainwriaht v. Svkes. 433 U.S. 72 
(1977), this Court must first conclude 
that the inquiry is necessary. A 
precondition to "cause and prejudice" 
analysis under Svkes is the existence of a 
state procedural bar that constitutes an

18 The Fifth Circuit concluded: "a Federal 
habeas court cannot review a claimed error in the 
conduct of a state criminal trial when the state has 
refused review in reliance on its contemporaneous 
objection rule, absent cause and prejudice for 
failure to object. We find no legal cause for the 
absence of an objection." Id.

34



adequate and independent state-law ground 
for refusing to entertain a federal habeas 
petitioner's constitutional claims. 
Harris v. Reed. 103 L.Ed.2d 308 (1989).
Thus, the threshold question for the Court 
to "consider [is] whether [Texas] ... law 
provides an adequate and independent state 
ground for the refusal to vacate 
petitioner's sentence." Johnson v. 
M i s s i s s i p p i . 100 L.Ed.2d 575, 585
(1988).19

There are two reasons why this Court 
should not uncritically accept the state 
court's now-outdated conclusion that 
Selvage's Penrv claim is procedurally 
barred. First, because that conclusion 
preceded Penrv. it is no longer viable as

19 The Court has held consistently that "the 
question of when and hew defaults in compliance with 
state procedural rules can preclude our 
consideration of a federal question is itself a 
federal question." Henry v. Mississippi. 379 U.S. 
443, 447 (1965).

35



a matter of state law after Penrv. Long- 
established Texas default jurisprudence 
provides for —  rather than forbids —  the 
belated entertainment of constitutional 
claims after they have been recognized in 
an authoritative decision of this Court 
postdating the claimant's trial. As we 
show below, no rule of Texas law 
presently bars Mr. Selvage from asserting 
his Penrv claim at this stage of the case. 
Second, ’if a state-law ground were to be 
invoked as a bar to Selvage's Penrv claim, 
its application to these circumstances 
would violate the principles that a state 
p r o c e d u r a l  r ul e  m u s t  be applied 
"evenhandedly to all similar claims," 
Hathorn v . Lovorn. 457 U.S. 255, 263
(1982), and must not be substantively 
entangled with a ruling of federal 
constitutional law, in order to qualify as 
an "adequate" and "independent" state

36



ground.
A. Texas Lav Excuses the Failure of 

a Criminal Defendant to Raise at 
Trial a Constitutional Claim 
Which Had Not Been Recognized at 
the Time of Trial But Is 
Subsequently Vindicated by This 
Court

For many years, the Texas Court of 
Criminal Appeals has recognized an 
important exception to its procedural 
default rule. As explained in Ex parte 
Chambers. 688 S.W.2d 483, 486 (Tex. Cr.
App. 1984) (Campbell, J., concurring), "a 
defendant has not waived his right to 
assert a constitutional violation by 
failing to object at trial if at the time 
of his trial the right had not been 
recognized" (emphasis added).20 This 
exception has been held to apply with

20 See also Cuevas v. State. 641 S.W.2d 558 
(Tex. Cr. App. 1982) ; Boulware v. State. 542 S.W.2d 
677 (Tex Cr. App. 1976); Ex parte Casarez, 508
S.W.2d 620 (Tex Cr. App. 1974); Ex parte Sanders, 
580 S.W.2d 383 (Tex. Cr. App. 1979) ; Ex parte 
Tavlor. 484 S.W.2d 748 (Tex. Cr. App. 1972) .

37



particular force where "the new principles 
relied upon [by the defendant] overruled 
considerable Court of Criminal Appeals 
case law, or was, in fact, quite novel and 
an objection based upon it would have been 
futile." Chitwood v. State. 703 S.W.2d 
360, 362 (Tex. Ct. App. 5th Dist. 1986) 
(emphasis added).

The Texas courts have repeatedly 
applied this exception and entertained 
otherwise defaulted constitutional claims 
after a decision of this Court has 
"overruled considerable Court of Criminal 
Appeals case law." Prior to this Court's 
decision in Estelle v. Smith. 451 U.S. 454 
(1981), for example, the Texas courts had 
frequently held that state psychiatric 
interviews with capital defendants 
r es u l t i n g  in testimony on future 
dangerousness implicated neither Fifth nor

38



Sixth Amendment interests.21 After Smith 
was handed down, the Court of Criminal 
Appeals accordingly concluded that Smith 
announced a right it had not previously 
recognized,22 and it began to entertain 
these claims on their merits without

21 See Smith v. State. 540 S.W.2d 693 (Tex. 
Cr. App.. 1976); Moore v. State. 542 S.W.2d 664 (Tex 
Cr. App. 1976) ; T.ivinaston v. State. 542 S.W.2d 655 
(Tex. Cr. App. 1976) .

22 In Field v. State. 627 S.W.2d 714 (Tex. 
Cr. App. 1982) Justice McCormick described the 
effect of Smith upon Texas law:

Both holdings in Estelle v. Smith 
changed the law in Texas. This Court 
had for years rejected claims on these 
bases. Never before had it been held 
that a court-appointed mental health 
expert must warn a defendant of his 
right to remain silent and that 
evidence adduced in the psychiatric 
interview could be used against him.
Never before had it been held that the 
defendant (sic) attorney could receive 
notice before a psychiatric interview on 
the dangerousness issue could be held.
In fact, in numerous cases this Court 
rejected the contentions that the 
proceedings used in Estelle v. Smith 
violated a defendant's rights.

627 S.W.2d at 723-24 (McCormick, J., concurring).

39



regard to whether defense counsel had 
noted a timely objection at trial. In 
case after case, it ignored capital 
defendants' failure to assert timely Smith 
claims and considered the merits of these 
claims. See, e.g.. Ex parte Demouchette. 
633 S.W.2d 879 (Tex. Cr. App. 1982) (claim 
not raised at trial or on direct appeal; 
relief granted in habeas proceedings); Ex 
parte Chambers. supra (no objection at 
trial; default found on direct appeal 
before Smith was decided, Chambers v. 
State. 568 S.W.2d 313, 325 (Tex. Cr. App.
1978) ("[n]o objection was made to any of
the testimony now challenged[,] [n]othing 
is presented for review"); full relief 
granted in habeas proceedings); Ex parte 
Woods. 745 S .W.2d 21 (Tex. Cr. App.
1 9 8 8 ) (trial counsel voiced general 
objection at 1976 trial; claim not raised 
on direct appeal; court reviewed merits of

40



claim in habeas proceedings); Povell v. 
State. 742 S.W.2d 353, 366 (Tex. Cr. App.
1987)(majority reached defaulted claim on 
merits and denied relief; dissenting 
Justice explained why the defaulted claim 
must be entertained on its merits: 
"[w]here a defect of constitutional 
magnitude has not been established at the 
time of trial, the failure of counsel to 
object does not constitute waiver[,]" 
[cites omitted][;] "[t]his is now part of
our state procedural default rule dealing 
with preservation of constitutional 
error").

The United States Court of Appeals 
for the Fifth Circuit has similarly 
applied this settled feature of Texas law. 
In Muniz v. Procunier. 760 F.2d 588 (5th 
Cir. 1985), as here, the Texas Court of 
Criminal Appeals had held a death- 
sentenced inmate's p r e - Smith claim

41



procedurally barred before the landmark 
decision of this Court establishing its 
merit. After that decision, the Fifth 
Circuit found that the bar no longer 
existed.

Under the well-established Texas 
law in 1978 and 1979 the
interview of the psychiatrist 
was held not to be testimonial 
or adversarial, thereby not 
implicating the Fifth or Sixth 
A m e n d m e n t s .  [ C i t a t i o n s
omitted.] After Estelle v.
Smith corrected these Texas 
holdings, the Texas Court of
Criminal Appeals ruled that the 
failure to object at a trial 
conducted prior to the Supreme 
Court's decision constitutes no 
waiver of Estelle v. Smith 
violations....
Where the state court has 
rejected petitioner's claim on 
grounds of procedural waiver
under an incorrect view of the 
underlying law and where the
state now applies no waiver 
under the circumstances, no 
consideration of comity would 
lead a federal court to bar the 
petitioner from presenting these 
claims.

Muniz v. Procunier. 760 F.2d at 589-90.
The same exception to procedural

42



default was held applicable in the wake of 
other decisions by this Court recognizing 
the validity of claims that Texas had 
earlier rejected. After Witherspoon v. 
Illinois. 391 U.S. 510 (1968),23 and Adams 
v. Texas. 448 U.S. 38 (1980),24 the Court 
of Criminal Appeals entertained previously 
defaulted claims and granted relief on 
them. It did so, too, after Burqett v . 
Texas . 389 U.S. 105 (1967), 25 and

23 See, e.q.. Ocker v. State. 477 S.W.2d (Tex. 
Cr. App. 1972) (granting relief on unpreserved 
Witherspoon claim); Ex parte Martin, 479 S.W.2d 280 
(Tex. Cr. App. 1972) (same); Boulware v. State, 542 
S.W.2d 677, 681-82 (Tex. Cr. App. 1976) (explaining 
Ocker and Martin).

24 See, e.q.. Cuevas v. State. 641 S.W.2d 558 
(Tex. Cr. App. 1982) (granting relief on unpreserved 
Mains claim) ; Hartfield V. State. 645 S.W.2d 463 
(Tex. Cr. App. 1980) (same).

25 See, e.q.. Ex parte Cesarez. 508 S.W.2d 
620, 622 (Tex. Cr. App. 1974) (granting relief on 
unpreserved Burnett claim); Ex parte Flores. 537 
S.W.2d 458, 459 (Tex. Cr. App. 1976) (reviewing 
merits of unpreserved Burnett claim) ; Ex parte 
Hall. 546 S.W.2d 303, 304 (Tex Cr. App.1977) (same); 
Ex parte RopoIIo . 550 S.W.2d 869, 871 (Tex. Cr. App. 
1977) (same).

43



Washington v. Texas. 388 U.S. 143
(1967).26

Since Penrv v . Lvnaugh plainly upset 
an unbroken line of Texas caselaw refusing 
to require any sort of supplemental 
instructions on mitigation despite Jurek 
v. Texas. 428 U.S. 262 (1976), and Lockett 
v. Ohio. 438 U.S. 586 (1978), 27 it is not 
surprising that the Court of Criminal 
Appeals is now treating post-Penrv claims 
exactly as it treated post-Smith claims, 
post-Witherspoon claims, and so forth. In 
its first opinion after Penrv. it reached 
the merits of ' a Penrv claim although 
noting "that appellant did not request 
a d d i t i o n a l  i n s t r u c t i o n s  regarding 
mitigating evidence during the punishment 
phase of the trial." Callins v. State,

26 See, e.g.. Ex parte Turner. 542 S.W.2d
187, 189 (Tex Cr. App. 1976) (reviewing merits of 
unpreserved Washington claim).

27 See Point II, infra.



No. 69,023 ____ S . W. 2d ___ (Tex. Cr. App.
September 27, 1989) (slip op. at 15). It
explained that "[i]n Penrv v . Lynaugh. --
the United States Supreme Court held the 
T e x a s  c a p i t a l  m u r d e r  s t a t u t e  
unconstitutional 'as applied' in the face 
of a challenge based on the lack of 
inst ru ct io ns  concerning mitigating 
circumstances," i d . at 16, and it 
therefore undertook to consider whether 
Callins' mitigating evidence, like 
Penry's, constitutionally required "an 
additional instruction to the jury." Id. 
at 17.

Since Texas law no longer holds Mr. 
Selvage's Penrv claim procedurally 
barred,28 a federal court must hear it.

2 8 Respondent cirques that two recent Court of
Criminal Appeals decisions have abandoned the rule 
of Ex parte Chambers and adopted one like that of 
Encrle v. Isaac. 456 U.S. 107 (1982). £ee
Respondent's Opposition To Motions To Certify 
Question To Texas Court of Criminal Appeals And To 
Suspend Briefing And Further Consideration of Case

45



As the Fifth Circuit wrote in Muniz v.
Procunier. supra. "no consideration of 
comity would lead a federal court to bar 
t h e  ... c l a i i [  ] " u n d e r  t h e s e  
circumstances. 760 F.2d at 590.

B. Any State-Law Bar Would Not Be 
"Adequate,11 as It Is Enforced 
N e i t h e r  C o n s i s t e n t l y  nor 
Strictly; Nor Would It Be

at 3-8, citing Williams v. State. 773 S.W.2d 525 
(Tex. Cr. App. 1988), and Mathews v. State. 768 
S.W.2d 731 (Tex. Cr. App. 1989). This is simply 
wrong. In both Williams and Mathews, the Court of 
Criminal Appeals held that because Batson v. 
Kentucky. 476 U.S. 179 (1986), did not recognize a 
new right but merely adjusted the evidentiary burden 
a criminal defendant must meet to prove an equal 
protection claim based on racial discrimination in 
jury selection, . the exception to the default rule 
recognized in Ex parte Chambers did not apply to 
such claims. While the original opinion in 
Williams could be read as suggesting that the Court 
was forsaking its own Chambers rule and adopting a 
standard more like Engle's, the majority in Mathews 
rejected this approach and asserted once again that 
Chambers correctly states Texas' default law. On 
rehearing, a majority of the Williams court accepted 
Mathews. And since Williams the Court of Criminal 
Appeals has again reaffirmed the Chambers rule, 
James v. State. 772 S.W.2d 84 (Tex. Cr. App. 1989), 
noting that "Chambers sets out the test which 
determines when a judicial decision, decided 
subsequent to a defendant's trial, relieves that 
defendant from making a contemporaneous objection." 
Id. at 101.

46



If"Independent." as It Depends 
upon a Federal Constitutional 
Ruling

T h i s  C o u r t  has c o n s i s t e n t l y  
recognized that only state rules which are 
"firmly established and regularly followed 
. . . can prevent implementation of
federal constitutional rights." James v. 
Kentucky. 466 U.S. 341, 349-350 (1984).
"State courts may not avoid deciding 
federal issues by invoking procedural 
miles that they do not apply evenhandedly 
to all similar cases." Barr v. City of 
Columbia. 378 U.S. 146, 149 (1964). 
Because the Texas courts have no "firmly 
established" or "regularly followed" rule 
barring the entertainment of claims like 
Mr. Selvage's unless raised by an 
objection at trial, any state-law bar 
interposed against his Penrv claim cannot 
be "adequate" so as to preclude a review 
of the claim on the merits.

47



We have shown in the preceding 
subsection that Texas law provides a well- 
established exemption from procedural 
default in circumstances like Selvage's, 
where a supervening decision of this Court 
upsets a chain of Texas precedents 
rejecting a federal constitutional claim. 
And indeed, even without the supervening 
decision, Texas' procedural-default rule 
is more often honored in the breach than 
in the observance.

In Williams v. State. 674 S.W.2d 315 
(Tex. Cr. App. 1984), for example, 
Williams claimed that the absence of 
instructions beyond the special issues "so 
limited the deliberateness issue as to no 
longer include proper consideration of 
m i t i g a t i n g  c i r c u m s t a n c e s  or meet 
Constitutional requirements to protect 
against 'a wanton and freakish assessment 
of the death penalty.'" Id. at 321.

48



Noting that "appellant did not request any 
charges, nor did he object to those 
given," the court nevertheless examined 
the claim and denied relief on the merits. 
Id.

In Stewart v. State. 686 S.W.2d 118 
(Tex. Cr. App. 1984), Stewart contended 
that because the Texas statute "contains 
no p r o v i s i o n s  for d i r ec ti ng  and 
instructing the jury's consideration of 
mitigating circumstances," id. at 121, it 
violates the Eighth and Fourteenth 
Amendments. After noting that "appellant 
never requested the trial court to charge 
on mitigation," the Court of Criminal 
Appeals concluded that "no jury charge 
regarding evidence of any mitigating 
circumstances was necessary since the 
questions prescribed under Article 37.071 
clearly allow the jury to grasp the 
logical relevance of mitigating evidence."

49



In several other cases before and 
after Williams and Stewart. the Court of 
Criminal Appeals has similarly overlooked 
procedural default and reached the merits 
of claims akin to Mr. Selvage's.29 
Indeed, before Selvage's case, the Court 
of Criminal Appeals had rarely indicated

Id.

29 See, e.q.. Johnson v. State. 691 S.W.2d 
619, 626 (Tex. Cr. App. 1984) (appellant claimed 
trial court's charge violated Eighth Amendment 
because it did "not clearly guide the jury in 
understanding mitigating circumstances and their 
purpose and of their option to recommend life 
imprisonment even though aggravating circumstances 
are found"; claim raised for the first time on 
appeal; court holds trial court's charge "correctly 
instructed the jury on the law"); Clark v. State, 
717 S.W.2d 910, 920 (Tex. Cr. App. 1986) (appellant 
argued lack of instructions on mitigation created 
risk that jury did not "consider and weigh" 
mitigating circumstances in answering penalty 
questions; overlooking lack of request for "any" 
instructions, court holds instructions adequate); 
Sosa v. State. 769 S.W.2d 909, 916 (Tex. Cr. App. 
1989) ("appellant argues fundamental error occurred 
when the trial court failed to instruct the jury . . 
. that they could consider mitigating circumstances 
in their deliberations on the special issues"; no 
objection; court reaches merits and denies relief); 
Motley v. State. 773 S.W.2d 283 (Tex. Cr. App. 1989) 
(same) ; see also Adams v. State. 577 S.W.2d 717, 
729-730 (Tex. Cr. App. 1979).

50



that a failure to object at trial would 
bar constitutional claims based upon the 
i n s u f f i c i e n c y  of instructions on 
mitigation.30 This pattern of decisions 
stands in sharp contrast to the Florida 
practice reviewed in Dugger v . Adams. 103
L.Ed.2d 435 (1989), where the Court found
that " [i]n the vast majority of cases, the 
Florida Supreme Court had faithfully 
applied its rule" of procedural default. 
Id. at 445 n.6. Here, the "vast majority 
of cases" shows that the Texas court has 
habitually overlooked the lack of a timely

30 In Fierro v. State. 706 S.W.2d 310, 318 
(Tex. Cr. App. 1986), Fierro contended on direct 
appeal that his death sentence should be vacated, 
inter cilia, because the trial court failed to charge 
the jury on mitigating evidence. Noting there was 
no "special requested charge on mitigating 
evidence," the court held "[njothing is presented 
for review." Id. The court thereafter looked at 
the merits of the issue and concluded " [t]here is 
nothing to show that the jury was prevented from 
considering" the mitigating evidence. Id. See also 
Williams v. State. 622 S.W.2d 116 (Tex. Cr. App. 
1981) (same).

51



objection and reached the merits of Penrv- 
like claims. Because a state court cannot 
"avoid deciding federal issues by 
invoking procedural rules that [it does]
... not apply evenhandedly to all similar 
cases," Barr v. City of Columbia, supra. 
378 U.S. at 149, any state procedural bar 
in Mr. Selvage's case would not be an 
"adequate" ground of decision.

Nor would it be an "independent" 
state ground. This Court has long held 
that "when the resolution of the state 
procedural rule depends on a federal 
constitutional ruling, the state law 
prong of the court' s holding is not 
independent of federal law...." Ake v. 
Oklahoma. 470 U.S. 68, 75 (1985). See
also Herb v. Pitcairn. 324 U.S. 117 
(1945). As we have shown above, the Court 
of Criminal Appeals does not enforce its 
contemporaneous objection rule when, inter

52



alia, decisions of this Court announce a 
right that the Texas courts had not 
previously recognized. In this respect, 
the Texas default rule works in the same 
way as the one this Court considered in 
A k e . There, Oklahoma law had been 
construed to allow review of defaulted 
claims falling in the category of 
"fundamental trial error." Federal 
constitutional error was expressly 
recognized as constituting fundamental 
error. 470 U.S. at 74-75. This Court 
rejected Oklahoma's argument that the 
refusal of the state's highest court to 
review the defaulted federal issue 
constituted an adequate and independent 
state law ground because "the State has 
made application of the procedural bar 
depend on an antecedent ruling on federal 
law.... " Id.. Here, too, the
interrelationship of state law and federal

53



constitutional rulings precludes a finding 
that any state procedural bar applied to 
Mr. Selvage would be "independent" and 
sufficient to preclude decision on the 
merits.

II. MR. SELVAGE'S FAILURE TO RAISE A 
PENRY CLAIM AT TRIAL SHOULD BE 
EXCUSED FOR "CAUSE" SINCE THAT 
C L A I M  W A S  NOT REASONABLY 
AVAILABLE TO COUNSEL

In Wainwricht v. Svkes. 433 U.S. 72 
(1977), the Court adopted the "cause and 
prejudice" . requirement of Francis v. 
Henderson. 425 U.S. 536 (1976), for all 
petitioners seeking federal habeas relief 
on constitutional claims defaulted in the 
state courts. The Svkes Court did not 
elaborate upon this requirement, but 
rather left open "for resolution in future 
decisions the precise definition of the 
' cause 1 - and- ' pre j udice' standard." 433 
U.S. at 87. Subsequently, in Reed v. 
R o s s . 468 U.S. 1 (1984), the Court

54



explained that although a "tactical" or 
"intentional" decision to forego a 
procedural opportunity normally cannot 
constitute cause, id. at 13-14, "the 
f a i l u r e  of c o u n s e l  to r a i s e  a 
constitutional issue reasonably unknown to 
him is one situation in which the [cause] 
requirement is met." Id. at 14.

Mr. Selvage submits that there was 
"cause" under Reed for his trial counsel's 
failure to make the contentions later 
vindicated in Penrv v . Lvnauqh. supra, 
because the Penrv issue was so totally 
foreclosed at the time of his trial that 
his attorney could not reasonably have 
been expected to raise it. Penrv squarely 
falls into that category of decisions 
identified in Reed as creating a claim 
that was not reasonably available to 
trial counsel beforehand inasmuch as it 
" ' disapproved] a practice this Court

55



arguably ha[d] sanctioned in prior 
cases.'" 468 U.S. at 17 (quoting United 
States v. Johnson. 457 U.S. 537, 551 
(1982)). In this situation, Reed teaches 
that whether the failure of a defendant's 
attorney to have raised an issue is 
sufficiently excused by "cause" depends 
upon "how direct this Court's sanction of 
the prevailing practice had been, how well 
entrenched the practice was in the 
relevant jurisdiction at the time of the 
defense counsel's failure to challenge it, 
and how strong the available support [was] 
from sources opposing the prevailing 
practice." Id. at 17-18.

At the time of Mr. Selvage's trial, 
two decisions of this Court appeared to 
foreclose any colorable contention that 
Texas' statutory procedure of submitting 
three "special issues" to the jury as the 
sole questions for its determination at



sentencing interfered with the Eighth and 
Fourteenth Amendments' requirement of 
consideration of mitigating circumstances.

In Jurek v. Texas. 428 U.S. 262 
(1976), the Court specifically took note 
of the Texas statute's potential for 
precluding the jury's consideration of 
mitigating circumstances, but reasoned 
that "the constitutionality of the Texas 
procedures turn[ed] on whether the 
e n u m e r a t e d  q u e s t i o n s  a l l o w [ e d ]  
consideration of particularized mitigating 
factors.” Id. at 272. The Court upheld 
the statute under' special issue number 
two, which "asks the jury to determine 
'whether there is a probability that the 
defendant would commit criminal acts of 
v i o l e n c e  that would constitute a 
continuing threat to society' if he were 
not sentenced to death," id., because

[t]he Texas Court of Criminal
Appeals has ... indicated that

57



it will interpret [the future 
dangerousness] question so as to 
allow a defendant to bring to 
the jury's attention whatever 
mitigating circumstances he may 
be able to show[.]

Id. The Court's rationale did not call 
for Texas to permit supplemental jury 
instructions; it was enough that "Texas 
law [allows] . . . the jury [to] be asked
to consider whatever evidence of 
mitigating circumstances the defense can 
bring before,it." Id. at 273.

The Court once again approved the 
Texas statute two years later in Lockett 
v. Ohio. 438 U.S. 586 (1978), while
striking down an Ohio law that permitted 
only a limited range of mitigating 
circumstances to be considered in capital 
sentencing. The infirmities of the Ohio 
law were highlighted by comparing it to 
the Texas statute approved in Jurek. The 
Court noted that the Texas statute had 
survived constitutional attack "because

58



three Justices concluded that the Texas 
Court of Criminal Appeals had broadly 
interpreted the second question —  despite 
its facial narrowness —  so as to permit 
the sentencer to consider 'whatever 
mitigating circumstances' the defendant 
might be able to show." 438 U.S. at 607 
(citing Jurek. 428 U.S. at 272-73). Thus, 
the Texas statute could not be found to 
"prevent the sentencer from considering 
any aspect of the defendant's character 
and record or any circumstances of his 
offense as an independently mitigating 
factor," Lockett. 438 U.S. at 607.

Nowhere did Jurek or Lockett say that 
Texas was constitutionally required to 
give supplemental jury instructions where 
the wording of its special issues would 
result in a jury not being able fully to 
consider particular mitigating evidence. 
To the contrary, the Court appeared to

59



hold that a Texas jury could give 
cons t i t u t i o n a l  consideration to a 
defendant's mitigating evidence within the 
framework of the statutory "special 
issues" because the Texas Court of 
Criminal Appeals had "broadly interpreted" 
these special issues. Texas courts and 
legal practitioners accordingly read Jurek 
and Lockett as sanctioning Texas' practice 
of denying any and all supplemental 
instructions that would permit its juries 
to give effect to mitigating evidence 
outside the channels of the three special 
issues.

For example, Kina v. State. 553 
S . W. 2d 105 (Tex. Cr. App. 1977), cert. 
denied. 434 U.S. 1088 (1978), squarely 
rejected the argument "that the jury will 
not have adequate guidelines to assist its 
[reasoned moral judgment] ... unless 
definitions for the terms contained [in

60



the special issues] are provided in the
jury charge." Id. at 107. The Kina court
reasoned that in Jurek this Court had
"concluded that the submission of the 
[special] issues provided by [statute] . . 
. constitutionally guided the jury's 
determination of the punishment" and, 
therefore, "[n]o special definitions of 
the terms of that statute were required." 
Id. 31

Similarly, in Ex parte Granviel. 561

31 Hie inflexibility of Texas1 practice is 
demonstrated by numerous cases, decided prior to Mr. 
Selvage's trial, in which the Texas Court of 
Criminal Appeals refused to provide any further 
definition for words and phrases within the special 
issues. See Gholson v. State. 542 S.W.2d 395, 397 
(Tex. Cr. App. 1976) (1977) (challenge to future 
dangerousness question on grounds of its vagueness 
rejected); Collins v. State. 548 S.W.2d 368, 374 
(Tex. Cr. App. 1976) (same); Granviel v. State. 552 
S.W.2d 107, 117 (Tex. Cr. App. 1976) (meaning of the 
term "a probability" in the future dangerousness 
question deemed not vague or overbroad); Blansett v. 
State. 556 S.W.2d 322, 329 (Tex. Cr. App. 1977)
(rejected claim that vagueness of future 
dangerousness question resulted in jury having 
unlimited discretion) ; Obrvan v. State. 591 S.W.2d 
464, 475 (Tex. Cr. App. 1979)(same).

61



S.W.2d 503 (Tex. Cr. App. 1978), the 
court rejected a claim that, in light of 
Texas' rigid practice of instructing 
juries in the exact wording of Article 
37.071, the Texas statute "as applied is 
unconstitutional because it prevents the 
jury from considering a defendant's mental 
condition as a mitigating factor in 
relation to the two or possibly three 
statutory special issues to be submitted 
to the jury at the penalty stage of a 
capital murder trial." Id. at 516. The 
basis for this rejection was that since 
"the jury in answering the special issues 
may properly consider all the evidence 
adduced[,]" the statute "does not prevent 
the jury from considering a defendant's 
mental condition as a mitigating factor." 
Id.

In Adams v. State. 577 S.W.2d 717 
(Tex. Cr. App. 1979), rev'd on other

62



grounds sub nom. Adams v. Texas. 448 U.S. 
38 (1980), the Court of Criminal Appeals
rejected an argument "that [mitigating] 
evidence is of no avail to the defendant 
if the jury is convinced by the evidence 
... that the punishment issues should be 
answered affirmatively," because "the 
punishment of death is [then] mandatory 
even though the jury, on the basis of the 
mitigating evidence, may believe that 
death is inappropriate." 577 S.W.2d at 
729. Citing Jurek and Lockett. the court 
concluded that it was sufficient that the 
Texas statute, in guiding the jury's 
discretion, made it possible for the 
defendant to present all mitigating 
evidence for the jury's consideration. 
Id. at 729-30.

Finally, in Quinones v. State. 592 
S . W. 2d 933 (Tex. Cr. App. 1980) —  less
than one month before Selvage's trial—

63



the court rejected a claim that "an
explanatory charge is necessary to keep
t he j u r y  from d i s r e g a r d i n g  the
[mitigating] evidence properly before it."
Id. at 947. Examining Jurek and Lockett.
the court reasoned:

Appellant correctly claims a 
right to consideration of 
mitigating circumstances by the 
jury deciding whether or not to 
impose the death penalty and he 
argues that the explanatory 
c h a r g e  he r e q u e s t e d  is 
necessary to protect this right.
W e  d i s a g r e e  w i t h  t h i s  
conclusion. The Supreme Court 
has affirmed that . . . " [w]hat
is essential is that the jury 
have before it all possible 
relevant information about the 
individual defendant whose fate 
it must determine. Texas law 
c l e a r l y  assures that all 
[mitigating] evidence will be 
adduced." [Jurek v. Texas,] 428 
U.S. at 276.... The question 
then is whether the language of 
the special issue is so complex 
that an explanatory charge is 
necessary to keep the jury from 
d i s r e g a r d i n g  the evidence 
properly before it.... The jury 
can readily grasp the logical 
relevance of mitigating evidence 
to the issue of whether there is 
a p r o b a b i l i t y  of f u t u r e



criminal acts of violence. No 
additional charge is required.

592 S.W.2d at 947.
Therefore, at the time of M r .

Selvage's trial, the Texas courts'
position was unequivocal and firmly 
settled: the "assurance upon which Jurek 
was based," Penrv. 106 L.Ed.2d at 278, had 
already been fulfilled by the procedure of 
admitting a wide range of mitigating 
evidence as pertinent to special issue 
number two. Since the Texas statute was 
unique to that State, no cases from other 
jurisdictions offered Mr. Selvage's 
counsel anv legal "tools" for presenting a 
P e n r v - t v o e  c l a i m  to the c o u r t s . 
Moreover, there was no support in federal 
caselaw for a reading of Jurek and Lockett 
that differed from the Texas courts' 
consistent reading of those decisions. 
The only federal case that ever discussed 
a challenge to Texas1 practice at the time

65



Mr. Selvage was tried also relied squarely 
upon Jurek and Lockett in rejecting that 
challenge. See Granviel v. Estelle. No. 
CA-4-78-115 (N.D. Tx. Jan. 26, 1979).
Hence, it was reasonably apparent that no 
further modification of the special-issue 
procedure, such as Texas' providing for 
supplemental jury instructions, was 
constitutionally demanded.

The situation confronting Mr. 
Selvage's counsel at the time of trial was 
thus one of total foreclosure, not mere 
"futility," as that term was used in Engle 
v. Isaac. 456 U.S. 107 (1982). In Engle, 
the Court rejected criminal defendants' 
arguments that they could not have 
realized at the time of their trials that 
the Due Process Clause was at odds with 
the Ohio statute requiring them to prove 
self-defense by a preponderance of the 
evidence and that, in any event, their

6 6



objecting to the statutory requirement at 
trial would have been futile because the 
Ohio rule had been in place for over a 
century.

The Court in Engle held that the 
legal foundation for the defendants' due 
process claim had been laid almost five 
years prior to the first of their trials 
in In re Winshio. 397 U.S. 358 (1970), 
where the Court ruled that "the Due 
Process Clause protects the accused 
against conviction except upon proof 
beyond a reasonable doubt of every fact 
necessary to constitute the crime with 
which he is charged." Id. at 364. The 
Court further noted that during those five 
years dozens of defendants in other 
states had used the Winship opinion to 
c h a l l e n g e  s u c c e s s f u l l y  t h e  
constitutionality of rules requiring them 
to bear a burden of proof —  most often,

67



r u l e s  e m b o d y i n g  w e l l - e s t a b l i s h e d  
principles of law. In light of this 
history, the Court concluded that it 
could not be said that the Engle 
defendants had lacked the legal "tools" to 
fashion their claim. 456 U.S. at 132-33.

In dismissing the contention that any 
objection to the Ohio statute would have 
been fruitless, the Court held that 
"futility ... cannot alone constitute 
cause for a failure to object at trial." 
Id. at 13 0. Under the circumstances, 
where a time-honored Ohio practice had 
been called into serious question by a' 
latter-day constitutional development and 
the Ohio courts had not yet been given the 
opportunity to reconsider settled state 
practice in the light of potentially 
supervening federal law, the Court 
observed that "[e]ven a state court that 
has previously rejected a constitutional

6 8



argument may decide, upon reflection, 
that the contention is valid," 456 U.S. at 
130, and should be given a chance to do 
so.

In stark contrast, the legal 
landscape facing Mr. Selvage's counsel 
when he tried the issue of punishment in 
F e b r u a r y  of 1 9 8 0  w a s  t o t a l l y  
uncompromising. The Court's Jurek and 
Lockett opinions had not called into 
q u e s t i o n  the T e x a s  p r a c t i c e  of 
instructing juries solely on the three 
special issues, and they could most 
readily be viewed as having sanctioned 
that practice. Jurek and Lockett had 
clearly foreclosed any challenge to the 
Texas statute's facial narrowness, and 
they had done so on the theory that the 
Texas courts' capacious reading of the 
s p e c i a l  i s s u e s  p e r m i t t e d  capital 
d e f e n d a n t s  to p r e s e n t  u n l i m i t e d

69



m i t i g a t i n g  evidence to the jury. 
Repeatedly asked to read Jurek1s and 
L o c k e t t 's m a n d a t e  of a " b r o a d  
interpretation" of the special issues as 
requiring supplemental jury instructions 
when appropriate, the Texas courts had 
consistently read Jurek and Lockett to 
mean that Texas had sufficiently complied 
with constitutional requirements by 
admitting a broad range of evidence 
bearing on the question of future 
dangerousness, and that no further jury 
instructions allowing consideration of 
mitigating evidence outsrde the framework 
of the special issues was constitutionally 
required.

Since there was no reason for Mr. 
Selvage's counsel to believe that a 
challenge to the Texas courts' holdings

70



would find favor in the federal courts,32 
his failure to raise a pre-Penrv claim in 
state court had nothing to do with 
erecting "a hedge against . . . strategic
risks," Reed. 4 68 U.S. at 14, in state
courts "unsympathetic to the claim,"
Enale. 456 U.S. at 130. He had no
"strategic motives of any sort" to 
manipulate the issue. Reed. 4 68 U.S. at 
15. Simply put, Mr. Selvage's counsel 
reasonably believed that the issue was

32 At the time of Mr. Selvage's trial, 
Granviel v. Estelle. supra, had rejected a challenge 
to Texas' practice. Moreover, this Court had denied 
certiorari on direct review of Texas decisions 
refusing to grant supplemental jury 
instructions, see King v. Texas. 434 U.S. 1088 
(1978), and rejecting challenges to the vagueness of 
the future dangerousness question. See Gholson v. 
Texas. 432 U.S. 911 (1977); Granviel v. Texas, 431 
U.S. 933 (1977); Collins v. Texas. 430 U.S. 959 
(1977). Although denials of certiorari do not 
necessarily mean that the Court is in agreement with 
the decisions belcw, reasonable counsel would have 
rarvnndpri that federal review of the issues on which 
certiorari was denied was hardly likely, because the 
Court had re-affirmed Jurek in its Lockett opinion 
within a year after the denials of certiorari in 
K i m . Gholson. Granviel and Collins.

71



• -i..' t itiassassB aiasa

"dead.” He saw no justification to raise 
a wholly frivolous claim.33 This Court 
h a s  n o t e d  t h a t ,  u n d e r  s i m i l a r  
circumstances, "we [would] actually 
disrupt state-court proceedings by 
encouraging defense counsel to include any 
and all remotely plausible constitutional 
claims that could, some day, gain
recognition." Reed. 468 U.S. at 16
(footnote omitted).

To require that Mr. Selvage's counsel 
raise a Penrv-tvpe claim at the time of 
trial would have meant that counsel was 
expected to make a legally frivolous 
contention. This Court has never
encouraged —  let alone demanded--
anything of the sort. Cf. Jones v.

33 In its pleadings submitted to the United 
States Court of Appeals for the Fifth Circuit in 
Penry. Texas had argued that the Penrv issue was 
"frivolous," Brief for Attorney General at 19, as 
well as "baseless," id*, and "without merit." Id. 
at 21, 22.

72



Barnes. 463 U.S. 745 (1983).
recognized in the context of Reed:

As it

'Appellate courts are already 
overburdened with meritless and 
frivolous cases and contentions, 
and an effective appellate 
l a w y e r  d o e s  n o t  d i l u t e  
m e r i t o r i o u s  c l a i m s  w i t h  
f r i v o l o u s  ones. Lawyers
representing appellants should 
be encouraged to limit their 
contentions on appeal at least 
to those which may legitimately 
be regarded as debatable.'

468 U.S. at 16 (quoting Judge Haynsworth
below).

S i n c e  J u r e k  and Lockett had 
apparently sanctioned Texas' special issue 
procedure, and the- Texas courts had 
repeatedly interpreted those cases as 
foreclosing any type of Penrv claim at 
the time Mr. Selvage was tried, Engle's 
command that a state court should be given 
the chance to rethink its position in 
light of federal law had been fully 
honored here. The Texas Court of 
Criminal Appeals was in fact given many

73



itso p p o r t u n i t i e s  to r e - e x a m i n e  its 
interpretation of Jurek and Lockett. It 
refused them time after time. King. 533 
S.W.2d at 107; Adams. 577 S.W.2d at 729-
30; Quinones. 592 S.W.2d at 947. At some 
point, surely, the Texas Court of Criminal 
Appeals was entitled to be taken at its 
word and no longer dunned by demands to 
change its recent decisions.34

34 See, e.q.. Roberts v. LaVallee. 389 U.S. 
40, 42-43 (1967), holding in an analogous setting 
that state courts need not be repeatedly asked to 
reconsider claims they have rejected. See also Nix 
v. Whiteside. 475 U.S. 157, 163 n.3 (1986) (Sixth
Amendment claim not pressed before Iowa Supreme 
Court deemed exhausted since further proceedings 
would be futile); Cuckworth v. Serrano. 454 U.S. 1, 
3 (1981) (exception to exhaustion requirement
recognized when "corrective process is so clearly 
deficient as to render futile any effort to obtain 
relief") ; Blackledae v. Perry. 417 U.S. 21, 23-24 
(1974) (futility found because North Carolina Supreme 
Court "had consistently rejected" similar claims) ; 
Brown v. Allen. 344 U.S. 443, 449 n.3 (1952)(in the 
exhaustion of state remedies, "we do not believe 
that Congress intended to require repetitious 
applications to state courts"); Wade v. Mavo. 334 
U.S. 672, 682 (1948)(once one of two possible
remedies has been exhausted to no avail, it is 
unnecessary, because likely futile, to invoke 
second remedy).

74



Ultimately, to be sure, this Court 
discovered the latent constitutional 
defect rooted in the application of the 
Texas statute, ruling in Penrv that 
criminal defendants are entitled to 
supplemental jury instructions when 
necessary to prevent the jury from taking 
too narrow a view of mitigating 
circumstances. The Penrv decision 
emanated from the Court's understanding of 
the promise of Jurek. "namely, that the 
special issues would be interpreted 
broadly enough to permit the sentencer to 
consider all the relevant mitigating 
evidence a defendant might present in 
imposing sentence." 106 L.Ed.2d at 276. 
Therefore, Penrv was not deemed to be "new 
law" for purposes of Teague v. Lane. 103 
L.Ed.2d 334 (1989); rather, the Court
viewed it as the kind of evolutional 
elaboration of Jurek. in the light of

75



Lockett. that should enure to the benefit 
of all capital defendants whose cases 
became final after Lockett, in order to 
respect '"the constitutional standards 
that prevailed at the time the original 
proceedings took place,'" Teague. 103 
L.Ed.2d at 353 (quoting Desist v. United 
S t a t e s  . 394 U . S .  244, 2 6 2 - 6 3
(1969)(Harlan, J., dissenting)).

Penrv read Jurek and Lockett as 
embodying the "assurance" that Texas 
capital defendants would have the 
opportunity for full consideration of 
their mitigating evidence even if Texas' 
special-issues procedure had to be altered 
to achieve this result. 106 L.Ed.2d at 
276. But between the time of Jurek and 
the time of Penrv. the Texas courts and 
legal practitioners had reasonably taken 
just the opposite view. In recognizing 
this fact, there is no inconsistency

76



between seeing that in retrospect Jurek 
foretold Penrv and seeing that in prospect 
Jurek. as interpreted by the Texas court, 
foreclosed Penrv-tvpe claims. In exactly 
the same manner, Hitchcock v. Dugger. 481 
U.S. 393 (1987) , appeared to the Court to
be a s i m p l e  and u n c o n t r o v e r s i a l  
application of Lockett; but from the 
standpoint of Florida judges and criminal 
practitioners, Hitchcock so thoroughly 
changed settled rules of state practice 
t h a t  the F l o r i d a  S u p r e m e  C o u r t  
appropriately recognized that Hitchcock 
claims could not properly be held to be 
procedurally barred for counsel's failure 
to raise them in anticipation of the 
Hitchcock decision. See Thompson v. 
D u c a e r . 515 S o . 2d 173, 175 (Fla.
1987) ("[w]e find that the United States 
Supreme Court's consideration of Florida's 
capital sentencing statute in its

77



Hitchcock opinion represents a sufficient 
change in the law that potentially affects 
a class of petitioners, including 
Thompson, to defeat the claim of a 
procedural default"). Accord. Hargrave v. 
Duaaer. 832 F.2d 1528, 1533 (11th Cir.
1987) .

An instructive parallel is the 
Court's recognition in NAACP v. Alabama ex 
rel. Patterson. 357 U.S. 449, 457 (1958),
that "a local procedural rule, although it 
may . . . appear in retrospect to form
part of a consistent pattern of procedures 
to obtain appellate review, cannot 
[constitute an independent and adequate 
state ground barring Supreme Court review]
. . ., because [litigants] . . . could not 
fairly be deemed to have been apprised of 
its existence." Similarly, the emergence 
of constitutional claims that seem 
consistent with precedent in hindsight—

78



as part of the evolutionary process 
described by Justice Harlan in Desist v. 
United States. 394 U.S. at 264, by which 
the meanings of "fundamental principles .
. . are altered slowly and subtly as 
generation succeeds generation" —  may 
nonetheless be so inconceivable to legal 
practitioners immersed in a system as to 
be beyond the range of the claims that 
they are reasonably expected to urge upon 
a court.

Because a Penrv-tvoe contention was 
such a claim at the time of Mr. Selvage's 
trial, his counsel's failure to raise the 
issue should be excused for cause.

79



III. THE APPLICATION OF A PROCEDURAL 
BAR TO MR. SELVAGE'S PENRY CLAIM 
WOULD RESULT IN A FUNDAMENTAL 
MISCARRIAGE OF JUSTICE

A. The Concept Of "Fundamental
Miscarriage Of Justice" Cannot
fie__ Limited To Constitutional
Violations Which Have "Probablv
Resulted In The Conviction Of
One Who Is Actually Innocent”

The Court has recognized that "'[i]n 
appropriate cases' the principles of 
comity and finality that inform the 
concepts of cause and prejudice 'must 
yield to the imperative of correcting a 
fundamentally unjust incarceration.'" 
Murray v. Carrier. 477 U.S. 478, 495
(1986) (quoting Engle v. Isaac. 456 U.S. 
107, 135 (1982)). Even though in most
cases, "'victims of a fundamental 
miscarriage of justice will meet the 
cause-and-prejudice standard,"' id. at 
495-96, the Court "do[es] not pretend that 
this will always be true." Id. at 496. 
In "an extraordinary case," therefore,

80



the cause andwhere "application of 
prejudice test will . . . result in a
•fundamental miscarriage of justice,'" 
Smith v . Murray. 477 U.S. 527, 537-38
(1986) (quoting Engle v. Isaac, supra)). 
the merits of an otherwise procedurally- 
barred constitutional claim must be 
decided. If the Court concludes that the 
state-court default ruling in Mr. 
Selvage's case survives Penrv as a matter 
of state law, that its application in the 
post-Penrv context constitutes an adequate 
and independent state procedural ground, 
and that .Selvage has not shown -cause for 
his default, the Court must decide whether 
his is the "extraordinary case" in which 
the miscarriage of justice exception 
should apply.

The primary definition which the 
Court has given thus far to the 
fundamental miscarriage of justice

81



exception is that it applies in cases 
"where a constitutional violation has 
probably resulted in the conviction of one 
who is actually innocent," Murray v . 
Carrier. 477 U.S. at 496, or to the 
counterpart of this category of cases in 
the capital sentencing context. Smith v. 
Murray. 477 U.S. at 537-38.35 While
Carrier might be read to hold that the 
miscarriage of justice exception is 
limited to claims involving actually 
innocent prisoners, or to prisoners 
actually undeserving of the death 
sentence, a careful reading of Carrier 
demonstrates that it does not limit the 
exception to such claims. Moreover, the

35 The ultimate factual question in a capital 
sentencing proceeding which parallels the question 
of actual innocence is whether the defendant is 
"actually [or factually] undeserving of the death 
sentence." See Ledewitz, Procedural Default in
Death Penalty Cases: Fundamental Miscarriage of
Justice and Actual Innocence. 24 Crim. L. Bull. 379, 
400 (1989).

82



exception should not be so limited, for a 
concern with the accuracy of the 
conviction or sentence is only one of the 
concerns that has informed the Court's 
judgment in other areas in which it has 
had to balance the right of a habeas 
p e t i t i o n e r  to relief against the 
procedural obstacles to obtaining that 
relief.

Carrier's particular formulation of 
the miscarriage of justice exception arose 
in r e s p o n s e  to J u s t i c e  Stevens' 
concurring opinion. See Murray v. 
Carrier. 477 U.S. at 492-97. The majority 
in Carrier interpreted his concurrence as 
calling for the application of the 
miscarriage of justice exception to any 
constitutional claim "that call[s] into 
q u e s t i o n  the r e l i a b i l i t y  of an 
adjudication of legal guilt." 477 U.S. at 
495. Noting that "the defaulted claims in

83



Enale. no less than respondent's claim in 
this case, did involve issues bearing on 
the reliability of the verdict," id..36 
the Court refused to extend the 
miscarriage of justice exception to such 
claims solely because they called into 
q u e s t i o n  t h e  a c c u r a c y  of t h e  
determination of guilt. Id.

The Court did not exclude altogether, 
however, the possibility that claims 
involving the unreliability of the 
verdict could call for application of the 
miscarriage of justice exception. In a 
case of extreme unreliability —  "where a 
constitutional violation has probably

36 In Enale. the habeas petitioner's claim was 
that the Ohio instruction requiring the defendant to 
prove self-defense impermissibly shifted the state's 
burden of proof to the defendant because in Ohio 
self-defense negates the "purposeful conduct" 
element of the crime. In Carrier, the claim was 
that the trial court deprived the defendant of due 
process by precluding him from examining the rape 
victim's statements to the police for possible 
exculpatory evidence.

84



resulted in the conviction of one who is 
actually innocent" —  the Court held that 
the miscarriage of justice exception would 
be available.

Thus, in Carrier the Court did no 
more than formulate the miscarriage of 
justice test for constitutional claims 
whose only connection to fundamental 
unfairness is the very substantial risk 
that they have caused an unreliable result 
at trial. The concept of fundamental 
miscarriage of justice, or fundamental 
unfairness, however, has never been 
limited to errors which have actually 
infected the reliability of the trial.

In formulating the doctrine of 
harmless error, for example, the Court has 
recognized that "some constitutional 
errors require reversal without regard to 
the evidence in the particular case," 
Rose v. Clark. 478 U.S. 570, 577 (1986),

85



because "some errors necessarily render a
trial fundamentally unfair." Id. The
errors which fall into this category are
errors which deprive the defendant of the
right to a "basic trial process," id. at
578 n.6, a proceeding

at w h i c h  the d e f e n d a n t ,  
represented by counsel, may 
present evidence and argument 
before an impartial jury and 
judge.

Id. at 578.
Further, in the companion procedural 

default case to Murray v. Carrier —  Smith 
v . Murray —  the Court's discussion of the 
"fundamental miscarriage of justice" 
exception to the procedural default rule 
was not focused at all on the defendant's 
"actual innocence" of the death sentence. 
Instead, it was focused on aspects of what 
the Court in Rose v. Clark called "the 
basic trial process." Thus, the Court 
c o n c l u d e d  t h a t  S m i t h ' s  claim of

8 6



constitutional error37 did not involve a 
fundamental miscarriage of justice because 
the claimed error "neither precluded the 
development of true facts nor resulted in 
the admission of false ones," 477 U.S. at 
538, and "did not serve to pervert the 
jury's deliberations concerning the 
ultimate question whether in fact 
petitioner constituted a continuing threat 
to society." Id. (emphasis in original). 
The test for fundamental miscarriage of 
justice thus was not limited to the 
Carrier question —  whether Smith was 
actually undeserving of the death sentence 
—  b u t  i n c l u d e d  w h e t h e r  t h e
constitutional error deprived him of such 
basic trial processes that it necessarily

37 Smith claimed that the admission of 
psychiatric testimony at the sentencing phase of his 
capital tried, to support a finding of future 
dangerousness violated his Fifth and Sixth Amendment 
rights in a manner later condemned in Estelle v. 
Smith. 451 U.S. 454 (1981).

87



rendered his trial unfair or its result 
unreliable.38

Similarly, in determining whether a 
state's interest in the finality of a 
criminal judgment should preclude the 
retroactive application of a "new rule" of 
constitutional law, the Court has focused 
on the rule, not on the specific, actual 
effects of its non-application in the 
petitioner's case. Teague v. Lane. 103 
L.Ed.2d at 357-59 (plurality opinion). 
Thus, in Teague the plurality held that a 
new constitutional rule would be applied

38 Notably, Judge Henry Friendly, upon wham 
the Court relied in formulating the "actual 
innocence" component of the miscarriage of justice 
exception, see Smith v. Murray. 477 U.S. at 539 
(citing Friendly, Is Innocence Irrelevant? 
Collateral Attack on Criminal Judgments. 38 U.Chi. 
L. Rev. 142 (1970)), himself disavowed the need for 
a showing of actual innocence when the 
constitutional error involves a component of the 
"basic trial process." See Friendly, o p . cit.. 
supra, at 151-53 ("one can hardly quarrel with the 
proposition that if a state does not afford a proper 
way of raising a constitutional defense at trial, it 
must afford one thereafter, and this without a 
colorable showing of innocence by the defendant").

8 8



retroactively if the failure to honor the 
n e w l y - r e c o g n i z e d  r i g h t  at t r i a l  
"undermine[d] the fundamental fairness 
that must underlie a conviction or 
seriously diminish[ed] the likelihood of 
obtaining an accurate conviction." 103 
L. Ed. 2d at 359. As in Smith v. Murray, 
the concern for fairness underlying 
retroactivity determinations was a concern 
for whether the defendant was afforded a 
"basic trial process," Rose v. Clark. 
supra. not solely a concern about the 
defendant's actual innocence.

A c c o r d i n g l y ,  the "fundamental 
miscarriage of justice" exception to the 
procedural default rule must encompass 
constitutional errors which have deprived 
the defendant of a "basic trial process," 
in addition to those which, in a 
particular case, have "probably resulted 
in the conviction of one who is actually

89



innocent."
B. The Penrv Error In Mr. Selvage's 

Trial Involves A Fundamental 
Miscarriage Of Justice

No matter what perspective the Court 
utilizes to measure the Penrv error in Mr. 
Selvage's trial, the Court will find that 
the error presents a fundamental 
miscarriage of justice. It involves a 
deprivation of the most important 
constitutional right available to a 
defendant in a capital sentencing trial: 
the right to put on a defense —  to be 
heard as to why the death sentence should 
not be imposed. It involves, in
particular, a rigid sentencing framework 
which prevented Mr. Selvage's jury from 
considering the two most powerful reasons 
for a capital sentencer not to impose the 
death sentence: severe physical, mental,
and e m o t i o n a l  d i s a b i l i t i e s  which 
substantially decrease the defendant's

90



blameworthiness for the crime, and the 
fact that the defendant did not personally 
kill or procure the death of the victim of 
the capital murder. Finally it involves a 
defendant who, on the basis of all the 
relevant evidence, does not deserve a 
death sentence. In the remainder of this 
argument, Mr. Selvage will address each of 
these perspectives in more detail after 
first discussing the substance of the 
Penrv violation in his trial.

i. The Penrv Violation in Mr.
Selvage's Trial

In Penrv. the Court agreed with the
petitioner's argument

that his mitigating evidence of 
mental retardation and childhood 
abuse ha[d] relevance to his 
moral culpability beyond the 
scope of the special issues, and 
that the jury was unable to 
express its 'reasoned moral 
response' to that evidence in 
determining whether death was 
the appropriate punishment.

106 L . E d . 2d at 280. Mr. Selvage's

91



mitigating evidence was different from the
evidence in Penrv. Selvage relied on
evidence of his drug addiction and the 
absence of any evidence that he fired the 
shot that killed Deputy Garza. Despite 
these differences, the special issues 
operated in Mr. Selvage's case just like 
they did in Penrv. Their limited scope 
foreclosed any meaningful consideration by 
the jury of the mitigating weight of this 
evidence, because the evidence "ha[d] 
relevance to [Selvage's] moral culpability 
beyond the scope of the special issues." 
Penry, supra .

The evidence of Mr. Selvage's drug 
addiction was proffered by the defense as 
relevant to special issue two. However, 
like the petitioner's mental retardation 
in Penry. this evidence was "a two-edged 
sword: it ... d i m i n i s h [ e d ]  his
blameworthiness for his crime even as it



indicate[d] that there is a probability
that he will be dangerous in the future." 
Penrv v ♦ Lvnauah. 106 L.Ed.2d at 281. To
the extent that drug addiction took away 
John Selvage's "free will," R. 2957, a 
reasonable juror certainly could have 
found that it reduced his moral 
culpability. See Skipper v. South 
Carolina. 476 U.S. 1, 13-14 (1986)
( o p i n i o n  c o n c u r r i n g  in judgment)
( " [ s ]o c i e t y 's legitimate desire for 
retribution is less strong with respect to 
... defendants who have reduced capacity 
for considered choice"). However, since 
he never committed a crime before becoming 
an addict, a reasonable juror could also 
have found that the drug addiction 
proffered as the reason he committed all 
of his crimes —  plainly made it more 
likely that he would continue to commit 
crimes. Thus, even though the evidence of

93



drug addiction diminished Selvage1s moral 
culpability, it —  like Johnny Penry's 
mental retardation —  also "suggest[ed] a 
'yes' answer to the question of future 
dangerousness." Penrv v . Lvnauah. 106
L.Ed.2d at 281. Because of this, "[t]he 
second special issue ... did not provide a 
vehicle for the jury to give mitigating 
effect to [Selvage's evidence of drug 
addiction]." Id. at 282.39

39 The evidence of drug addiction might also 
have called for a "no" answer to special issue one, 
because the effects of drug intoxication might have 
been found to reduce the deliberateness of Selvage's 
particular criminal behavior. However, the defense 
did not make this argument. In similar 
circumstances, the concurring Justices in Franklin 
v. Lvnauah. 101 L.Ed.2d 155, 173-74 (1988), found 
that the jury's ability to consider the mitigating 
evidence had to be analyzed in accord with how it 
was proffered by the defense. As proffered here, 
the evidence of drug addiction demonstrated only 
that Selvage was drawn into criminal behavior that 
was not a chosen kind of behavior; it did not 
demonstrate that his ability to engage in 
"deliberate" conduct in the course of a particular 
crime was diminished. As in Franklin. "[t]his is 
not surprising," 101 L.Ed.2d at 174 (concurring 
opinion) , because the evidence of Selvage's 
addiction did not encompass the effects of the 
particular drugs he took on the deliberateness of

94



Mr. Selvage's status as the person 
who fired the fatal shot was plainly 
relevant to special issue one. However, 
upon hearing the instruction concerning 
special issue one and the argument by 
defense counsel and the prosecutor about 
the scope of this issue, see pages 12-15, 
supra. the jury could reasonably have 
believed that even if Mr. Selvage did not 
actually kill Deputy Garza, this factor 
could not influence their consideration of 
special issue one.

The jurors were instructed without 
any elaboration by the court to decide 
"whether the conduct of ... John Henry 
Selvage, that caused the death of the 
deceased was committed deliberately and 
with the reasonable expectation that the

his conduct. Rather, it focused entirely upon his 
compulsive, unrelenting need to satisfy his 
addiction. Thus, it had no relevance to 
"deliberateness" and was relevant to "future 
dangerousness" only as an aggravating factor.

95



A' " 'JStK-Zi

death of the deceased or another would 
result." JA 4. The arguments of defense 
counsel and the prosecutor, however, 
taught the jury that the phrase "conduct 
... that caused the death of the deceased" 
had a broader meaning than the conduct 
that actually killed Deputy Garza. 
Counsel for both sides explained that the 
law allowed the jury to answer this 
question "yes" even if they believed that 
Mr. Selvage was not the actual killer. R. 
2951 (defense counsel); 2968-71, 2972, 
2973 (prosecutor). In light of this 
explanation, a reasonable juror could have 
understood the reference to Mr. Selvage's 
"conduct ... that caused the death of the 
deceased" as referring not only to any 
evidence that he actually killed Deputy 
Garza but also, more generally, to the 
evidence of his participation in the crime

96



during which Deputy Garza was killed.40 
With such an understanding of this phrase, 
a reasonable juror could then have 
believed that special issue one focused on 
whether Mr. Selvage's conduct that was 
established beyond a reasonable doubt—

40 Not only would this understanding have been 
reasonable in the context of Mr. Selvage's trial, it 
would also have been consistent with the Texas Court 
of Criminal Appeals' construction of special issue 
one in Selvage's case. On appeal, Selvage argued 
that there was no evidence that he actually killed 
Deputy Garza and thus the "yes" answer to special 
issue one could not stand. Selvage v. State. 680 
S.W.2d at 21-22. The Court rejected this argument:

[A] though there is no direct evidence 
that appellant shot the deceased, the 
evidence was sufficient to show that his 
conduct was committed deliberately and 
with reasonable expectation that death 
would result. Unlike Emmund [in Emmund 
V. Florida. 458 U.S. 782 (1982)], 
appellant used lethal force to 
effectuate a safe escape and attempted 
to kill Ventura and Roberts as they 
pursued him and his companion from the 
jewelry store. Appellant's actions 
indicate a reasonable expectation that 
the death of the deceased or another 
would result.

Id. at 22. Plainly the Court of Criminal Appeals 
also construed "conduct ... that caused the death of 
the deceased" more broadly than "actual hanicidal conduct."

97



his engaging in an armed robbery which he 
helped plan and his firing a gun at people 
other than Officer Garza during the course 
of the robbery —  was "committed 
deliberately and with the reasonable 
expectation that the death of the deceased 
... would result." Jurors who understood 
the instruction in this fashion would have 
excluded their finding that Mr. Selvage 
was not the actual killer from their 
deliberations concerning special issue 
one.41

For these reasons, Mr. Selvage's 
status as the actual killer of Deputy 
Garza, like Johnny Penry's mental 
retardation in Penrv v . Lvnauoh. "was 
relevant to the question [asked in special

41 Such jurors would thus have disregarded 
defense counsel's plea, based on this factor, to 
answer special issue one "no." They would have 
perceived counsel's plea to their "conscience" as a 
plea to disregard the task required of them in 
answering special issue one.

98



issue one], but it also 'had relevance to 
[his] moral culpability beyond the scope 
of the special verdict questio[n].'" 106
L. E d . 2d at 2 80 (quoting Franklin v. 
Lvnauah. 101 L.Ed.2d 155, 173 (1988)
(concurring opinion)). It was relevant to 
issue one if Selvage was the actual 
killer, for such status would tend to show 
that he caused the death of the deceased 
deliberately and with the reasonable 
expectation that death would result. If, 
however, the evidence tended to show that 
Selvage was not the actual killer (or 
failed to establish that he was), it would 
no longer be relevant to special issue 
one. Such a showing would nevertheless be 
highly relevant to Selvage's moral 
culpability, for the fact that someone 
participates in a felony murder as an 
accomplice or joint perpetrator but does 
not personally commit the murder is

99



Seemanifestly a mitigating factor. See 
State v. Sonnier. 402 So.2d 650, 656 (La. 
1981); Harmon v. State. 527 So.2d 182, 189 
(Fla. 1989) ; Downs v. Dugger. 514 So.2d 
1069, 1072 (Fla. 1987) . See also Lockett 
v. Ohio. 438 U.S. at 608 (sentencer must 
be allowed to give independent mitigating 
weight to "defendant's comparatively minor 
role in the offense").

The jury instructions, as reasonable 
jurors could have understood them, thus 
did not allow the jury to consider doubt 
about Mr. Selvage's status as the 
triggerman as a mitigating factor. There 
were no supplemental or explanatory 
instructions given which would have 
assured the jury's consideration of this 
factor as a mitigating circumstance.42 As

42 Counsel for Mr. Selvage did request an 
instruction which would have allowed for this, see 
JA 4, but his request was denied. R. 2938.

100



the Court explained when faced with the
same situation in Penrv.

In the a b s e n c e  of ju r y  
instructions defining [special 
issue one] in a way that would 
clearly direct the jury to 
consider fully [Selvage’s] 
mitigating evidence as it bears 
on his personal culpability, we 
cannot be sure that the jury was 
able to give effect to the 
mitigating evidence of [doubt 
about Selvage1s status as the 
triggerman] in answering the 
first special issue.

106 L.Ed.2d at 281.
ii. The Penrv Efror Deprived 

Mr. Selvage of the ’’Basic 
Trial Process” Guaranteed 
to A Capital Defendant

The most fundamental and settled
component of due process is the right to
be heard in one's defense. "The theme
that 'due process of law signifies a right
to be heard in one's defence,' ... has
continually recurred" for more than a
century in the Court's jurisprudence.
Boddie v. Connecticut. 401 U.S. 371, 377
& n.3 (1971) (citing cases) (quoting Hovev

101



V. Elliott. 167 U.S. 409, 417 (1897)). 
Denial of the right to be heard is such a 
fundamental error that it has been 
considered a denial of the "basic trial 
process" since at least the time of Hovev. 
where the Court held that "[a] sentence of 
a court pronounced against a party without 
hearing him or giving him an opportunity 
to be heard, is not a judicial
determination of his rights, and is not 
entitled to respect in any other 
tribunal." 167 U.S. at 414. The Penrv 
error in Mr. Selvage's case deprived him 
of this most fundamental right.

The right to be heard in one' s 
defense in a capital sentencing proceeding 
is the right to be heard as to why the 
death sentence should not be imposed. The 
exercise of this right is necessary to 
"ensure the reliability, under Eighth 
Amendment standards, of the determination

102



that 'death is the appropriate punishment 
in a specific case."' Lockett v. Ohio. 438 
U.S. at 601 (quoting Woodson v. North 
Carolina, 428 U.S. 280, 305 (1976)). A 
procedure which cuts off the right to be 
heard, "creates the risk that the death 
penalty will be imposed in spite of 
factors which may call for a less severe 
penalty." Lockett. 438 U.S. at 605. The 
right of the capital defendant to be heard 
is also necessary for "a system of capital 
punishment ... [to be] humane and sensible 
to the uniqueness of the individual." 
Eddinqs v. Oklahoma. 455 U.S. 104, 110 
(1982). The "fundamental respect for 
humanity underlying the Eighth Amendment," 
Woodson v. North Carolina. 428 U.S. at 
304, cannot countenance a process of 
capital sentencing which "treats all 
persons convicted of a designated offense 
not as uniquely individual human beings,

103



' '

b u t  as m e m b e r s  of a f a c e l e s s ,  
undifferentiated mass to be subjected to 
the blind infliction of the penalty of 
death." Id. Accordingly, the denial of 
the defendant's right to be heard as to 
why the death sentence should not be 
imposed both "undermine[s] the fundamental 
fairness that must underlie a [death 
sentence] [and] seriously diminish[es] the 
likelihood of obtaining an accurate 
[determination that death is the proper 
sentence in a particular case]." Teague 
v. Lane 103 L.Ed.2d at 359.

The Penrv error in Mr. Selvage's case 
deprived him of the right to be heard 
because it prevented the jury from giving 
effect to the reasons he proffered in 
support of a life sentence. A capital 
defendant's right to be heard is not 
honored simply by allowing him to present 
mitigating evidence and argument, for

104



"Lockett requires the sentencer to
listen." Eddings v. Oklahoma. 455 U.S. at 
115 n.10. As the Court explained in
Penrv. "Eddings makes clear that it is not 
enough simply to allow the defendant to 
present mitigating evidence to the 
sentencer. The sentencer must also be 
able to give effect to that evidence in 
imposing sentence." 106 L.Ed.2d at 278. 
The sentencing procedure in Mr. Selvage's 
case prevented the jury from considering, 
i.e. . giving effect to, his mitigating 
evidence as surely as if the jury had been 
explicitly directed not to consider that 
evidence.43

Accordingly, the Penrv violation in 
Mr. Selvage's case had the effect of 
"abort[ing] the basic trial process."

43 See Rose v. Clark. 478 U.S. at 580 n.8 
(condemning as fundamentally unfair, and never 
harmless, "'instructional errors that prevent a jury 
from considering an issue'") (quoting Connecticut v. 
Jchnscn. 460U.S. 73, 95n.3 (1983) (Powell, J., disparting)).

105



Rose v. Clark. 478 U.S. at 578 n.6. It 
prevented the sentencer from engaging in 
the d e c i s i o n a l  p r o c e s s  which is 
fundamental to the judgment required of 
capital sentencers by the Constitution.44

iii. The Penrv Error in Mr. 
Selvage Case Precluded the 
Jury's Consideration of the 
Most Compelling Mitigating 
Circumstances That Can Be 
Proffered

44 In light of this analysis, the Court can 
readily distinguish the constitutional error 
presented in Dugger v> Adams.' 103 L.Ed.2d 435 
(1989), from the error presented here. The error 
presented in Adams was the error considered in 
Caldwell v. Mississippi. 472 U.S. 320 (1985) : 
instructions by the trial judge and argument by the 
prosecutor diminished the jury's sense of 
responsibility for its sentencing decision. While 
this error plainly raised a question about the 
accuracy of the jury's sentencing recommendation, 
103 L.Ed.2d at 446 n.6, it did not present an error 
which interfered with the "basic trial process" 
described in Rose v. Clark: it did not compromise 
the impartiality of the jury or judge, it did not 
deprive Adams of counsel, it did not interfere with 
Adams' presentation of evidence and argument, and it 
did not —  as the error did here —  prevent the jury 
from considering issues which it constitutionally 
had to consider in order to recommend a sentence. 
Accordingly, the Court's adoption of the definition 
of "fundamental miscarriage of justice" urged by Mr. 
Selvage would in no way be inconsistent with its 
holding in Adams.

106



The Penrv error in Mr. Selvage's case 
did not just deprive him of the 
sentencer's consideration of "ordinary" 
aspects of his character, background, or 
c r i m e .  " O r d i n a r y "  m i t i g a t i n g
circumstances —  "a turbulent family 
history," Eddings v. Oklahoma. 455 U.S. at 
115; growing up in a poor family, 
Hitchcock v. Dugger, 481 U.S. at 397; 
receiving "[in]sufficient guidance and 
discipline" as a child, South Carolina v. 
Gathers. 104 L.Ed. 2d 876, 887 (1989)
(O'Connor, J. , joined by Rehnquist, C.J., 
and Kennedy, J., - dissenting); being a 
" w e l l - b e h a v e d  and w e l l - a d j u s t e d  
prisoner," Skipper v. South Carolina. 476 
U.S. 1, 4 (1986); or being "an
affectionate and caring person," South 
Carolina v. Gathers, supra; Hitchcock v. 
D u g g e r . s u p r a  —  a r e  p l a i n l y  
"'mitigating' in the sense that they might

107



serve 'as a basis for a sentence less than
death.'" Skipper v. South Carolina. 476 
U.S. at 4-5 (quoting Lockett v. Ohio. 438 
U.S. at 604). T he m i t i g a t i n g  
circumstances in Mr. Selvage's case, 
however, were qualitatively different from 
these.

The Court has recognized that severe 
mental illness can be so disabling that 
"the Eighth Amendment prohibits a State 
from carrying out a sentence of death...." 
Ford v. Wainwriqht. 477 U.S. 399, 409-410 
(1986) (plurality opinion). Mental 
illness short of that which would preclude 
the execution of a death sentence thus 
weighs heavily in favor of a life 
sentence. Such evidence "tend[s] to 
diminish the defendant's responsibility 
for his acts," making him "'deserving [of] 
less punishment....'"
Carolina. 476 U.S. at

108

Skipper v. South 
12 (Powell, J . ,



joined by Burger, C.J., and Rehnquist, J., 
concurring). Accord California v. Brown. 
479 U.S. 538, 545 (1987) (O'Connor, J.,
concurring).

Similarly, the Court has recognized 
that a defendant like Mr. Selvage, who 
neither kills nor encourages another to 
kill, is less morally culpable than an 
actual killer. As the concurring 
justices explained in Skipper v. South 
Carolina,

Such evidence obviously [bears] 
strongly on the degree to which 
the defendant [is] morally 
responsible- for h[is] crime;.- 
indeed, we have held that 
similar evidence precludes 
application of the death penalty 
for precisely this reason. 
Enmund v. Florida. 458 U.S. 782, 
798-801 (1982) .

476 U.S. at 12. While Tison v. Arizona. 
481 U.S. 137 (1987) , has made clear that
the death penalty is an available 
punishment for a person like Mr. Selvage, 
Tison does not diminish the importance of

109



: V . v ' . v , . .

one's not being the killer in assessing 
moral culpability.

B e c a u s e  t h e  t w o  m i t i g a t i n g  
circumstances which were removed from the 
jury's consideration in Mr. Selvage's case 
were the kind of circumstances which, 
under slightly different conditions, would 
have precluded the imposition of a death 
sentence altogether, they would have 
weighed very heavily in favor of a life 
sentence. The harm to Mr. Selvage from 
the jury's inability to consider and give 
effect to these circumstances is, 
t h e r e f o r e ,  q u a l i t a t i v e l y  a n d  
quantitatively greater than in a case 
involving any other kind of mitigating 
circumstance.

iv. The Penrv Violation in Mr.
Selvage 1s Case Probablv
Resulted in the Imposition
of the Death Sentence on
One Who I s A c t u a l l v
Undeserving of It

Although a condemned person should
110



not be required to show that he is
"actually undeserving of the death 
sentence" in order to demonstrate that a 
Penrv error has led to a fundamental 
miscarriage of justice in his case, Mr. 
Selvage can make such a showing if all the 
evidence bearing on this question is taken 
into account.

When the purpose of the miscarriage 
of justice inquiry is to determine whether 
the condemned prisoner actually deserves 
the death sentence, the inquiry must look 
to the factual bedrock of the sentencing 
question. All probative evidence, whether 
or not it was admitted at trial, must be 
taken into account. A plurality of the 
Court in Kuhlmann v. Wilson. 477 U.S. 436 
(1986) , recognized the need to do this in 
discussing the parallel question under 28 
U.S.C. § 2244(b), whether the "ends of 
justice" require reconsideration in a

111



successive petition of a claim previously- 
decided. The Court explained that the 
question of whether the prisoner has made 
"a c o l o r a b l e  s h o w i n g  of factual 
innocence," 477 U.S. at 454, "must be 
determined by reference to all probative 
evidence of guilt or innocence." Id. at 
454 n.17 (emphasis in original). Such an 
inquiry faithfully reflects the central 
historic purpose of the writ of habeas 
corpus: "the substance of 'justice,1 not
the form of procedures." Murray v . 
Carrier. 477 U.S. at 500 (Stevens, joined 
by Blackmun, JJ., concurring in judgment). 
To carry out this mission, "habeas corpus 
cuts through all forms and goes to the 
very tissue of the structure." Frank v. 
Mancrum. 237 U.S. 309, 346 (1915) (Holmes,
J . , dissenting).

When all of the probative evidence in 
Mr. Selvage's case, is examined, see

112



pages 17-31, supra. it provides compelling 
support for the compassionate view of the 
crime and of Mr. Selvage which began to 
emerge at trial. The mitigating
circumstances —  the doubt about whether 
Mr. Selvage shot Deputy Garza and the 
drug-based impairment of Mr. Selvage's 
ability to think and act appropriately 
which led him to commit the crimes he 
committed —  remain, but they are far more 
powerful than the evidence at trial 
suggested. Understood in light of all the 
probative evidence, the mitigating 
circumstances weigh very heavily in favor 
of a life sentence, for the real story of 
this case is a story of human frailty, not 
evil.

John Selvage was a young man whose 
life once held much promise. His family 
loved him, provided for his needs, and 
nurtured and stimulated him for the first

113



eighteen years of his life. The promise 
turned to despair, however, after Selvage 
spent two years in the military. He 
became addicted to drugs, which ate away 
his potential for a bright future and 
destroyed his youthful capacity for growth 
and creativity. He became further 
compromised by mental illness: the world
which before had been encouraging and 
enlightening became threatening and 
bewildering. Driven toward people like 
Wilbur Kelly, who could help him feed his 
addiction through the fruits of crime, 
Selvage participated in two robberies, one 
at the Stop-and-Go market, and one four 
days later at Ventura's Jewelry. In each, 
K e l l y  w a s  t h e  a g g r e s s o r ,  t h e  
triggerperson, the probable killer. 
Selvage was driven to these crimes by the 
gnawing agony of drug addiction and by the 
fear of what he perceived as an

114



increasingly threatening and hostile 
environment, not by greed or callousness 
or meanness of spirit.

In short, John Selvage probably 
killed no one, and his non-lethal 
participation in two felony-murders was a 
product of disability rather than 
purposeful conduct. There is a "belief, 
long held by this society, that defendants 
who commit criminal acts that are 
attributable to ... emotional and mental
problems, may be less culpable than
defendants who have no such excuse."
California V. Brown, 479 U.S. at 545
(0'Connor, J. , concurring) . To sustain
Mr. Selvage's death sentence in light of 
all the probative evidence would dishonor 
this foundational societal belief. It 
would treat "conduct that actually should 
militate in favor of a lesser penalty 
[than death], such as perhaps the

115



defendant's mental illness," Zant v. 
Stephens, 462 U.S. 862, 885 (1983), as an 
aggravating circumstance.

John Selvage is, accordingly, 
factually undeserving of death. Had the 
jury which sentenced him heard all the 
probative evidence and been allowed to 
give full effect to its consideration of 
the evidence, it probably would not have 
sentenced him to death. The refusal of 
the federal habeas courts to reach the 
merits of Mr. Selvage's Penrv claim has, 
therefore, resulted in a fundamental 
miscarriage of justice.

CONCLUSION
For these reasons, petitioner 

respectfully requests that the Court 
vacate the judgment and opinion of the 
Court of Appeals and remand his case, with 
instructions that the District Court grant 
the writ of habeas corpus, or in the

116



alternative, hold an evidentiary hearing 
to determine whether on the basis of all 
the probative evidence, Mr. Selvage 
deserves the death sentence.

Respectfully submitted,
JULIUS L. CHAMBERS 
♦RICHARD H. BURR, III 
GEORGE H. KENDALL 
STEVEN W. HAWKINS 
99 Hudson Street, 16th FI. 
New York, New York 10013 
(212) 219-1900

DAVID CUNNINGHAM 
1927 Norfolk 
Houston, Texas 77098 
(713) 520-7701
Counsel for Petitioner

♦Counsel of Record

117



XICIN3ddY..V.,



APPENDIX
CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

CONSTITUTION OF THE UNITED STATES 
AMENDMENT VIII

Excessive bail shall not be required, 
nor excessive fines imposed, nor cruel and 
unusual punishments inflicted.

AMENDMENT XIV
Section 1. All persons born or 

naturalized in the United States, and 
subject to the jurisdiction thereof, are 
citizens of the United States and of the 
State wherein they reside. No State 
shall make or enforce any law which shall 
abridge the privileges or immunities of 
citizens of the United States; nor shall 
any State deprive any person of life, 
liberty, or property, without due process 
of law; nor deny to any person within its 
jurisdiction the equal protection of the
laws.



STATUTES OF THE STATE OF TEXAS
Tex. Code Crim. Proc. Ann. art 37.071 

(Vernon 1981):
(a) U p o n  a f i n d in g that the 

defendant is guilty of a capital offense, 
the court shall conduct a separate 
sentencing proceeding to determine whether 
the defendant shall be sentenced to death 
or life imprisonment. The proceeding 
shall be conducted in the trial court 
before the trial jury as soon as 
practicable. In the proceeding, evidence 
may be presented as to any matter that the 
court deems relevant to sentence. This 
subsection shall not be construed to 
authorize the introduction of any 
evidence secured in violation of the 
Constitution of the United States or of 
the State of Texas. The state and the 
defendant or his counsel shall be 
permitted to present argument for or

2



against sentence of death.
(b) O n  c o n c l u s i o n  o f  t h e  

presentation of the evidence, the court 
shall submit the following issues to the 
jury:

(1) whether the conduct of the 
defendant that caused the death 
of the deceased was committed 
d el ib erately and with the 
reasonable expectation that the 
death of the deceased or another 
would result;

(2) whether there is a probability 
that the defendant would commit 
criminal acts of violence that 
would con-stitute a continuing 
threat to society; and

(3) if raised by the evidence, 
whether the conduct of the 
d e f e n d a n t  in killing the 
deceased was unreasonable in 
response to the provocation, if 
any, by the deceased.

(c) The state must prove each issue 
submitted beyond a reasonable doubt, and 
the jury shall return a special verdict of 
"yes" or "no" on each issue submitted.

(d) The court shall charge the jury
that:

3



(1) it may not answer any issue 
" y e s "  u n l e s s  it a g r e e s  
unanimously; and
(2) it may not answer any issue 
"no" unless 10 or more jurors 
agree.

(e) If the j u r y  r e t u r n s  an 
a ffirmative  finding on each issue 
submitted under this article, the court 
shall sentence the defendant to death. If 
the jury returns a negative finding on 
any issue submitted under this article, 
the court shall sentence the defendant to 
confinement in the Texas Department of 
Corrections for life.

(f) The judgment of conviction and 
sentence of death shall be subject to 
automatic review by the Court of Criminal 
Appeals within 60 days after certification 
by the sentencing court of the entire 
record unless time is extended an 
additional period not to exceed 30 days by

4



the Court of Criminal Appeals for good 
cause shown. Such review by the Court of 
Criminal Appeals shall have priority over 
all other cases, and shall be heard in 
accordance with rules promulgated by the 
Court of Criminal Appeals.

5