A Federal District judge today blocked the execution of a condemned killer just 10 hours before he was to die by injection for murdering a jeweler in Beaumont, Tex.
The judge, Howell Cobb, issued the stay after meeting with Sam Dunn, an attorney for Elliot Rod Johnson, the convicted killer. Mr. Dunn said his client had received ineffective legal counsel in his trial.
Judge Cobb did not say how long the stay of execution would be in effect.
Mr. Johnson, a 26-year-old resident of Port Arthur, Tex., was convicted in 1983 and sentenced to die in the April 8, 1982, slaying of Joseph Granado, 67, who was shot at close range when Mr. Johnson and three accomplices robbed Mr. Granado's jewelry store.
If Mr. Johnson had been executed, he would have been the 50th person to be put to death in the United States since 1976, when the Supreme Court restored the death penalty.
Elliott Rod Johnson,
Petitioner-Appellant,
No.
86-2404
Federal Circuits, 5th
Cir.
July 18, 1986
Appeal
from
the
United
States
District
Court
for
the
Eastern
District
of
Texas.
Before
CLARK,
Chief
Judge,
and
WILLIAMS
and
HIGGINBOTHAM,
Circuit
Judges.
PER
CURIAM:
This
cause
is
on
appeal
from
an
order
of
the
district
court
denying
an
initial
request
for
federal
habeas
corpus
relief
to
Elliott
Rod
Johnson.
Johnson
has
filed
an
application
in
this
court
for
an
original
writ
of
habeas
corpus,
a
stay
of
execution
and
leave
to
proceed
in
forma
pauperis.
We
pretermit
a
ruling
on
the
application
for
habeas
corpus
but
grant
the
stay
and
certificate
of
probable
cause
to
appeal.
Johnson
was
convicted
of
capital
murder
for
the
killing
of
Joe
Angel
Granado
while
in
the
course
of
committing
or
attempting
to
commit
the
offense
of
armed
robbery.
At
the
punishment
phase
of
his
trial,
the
death
sentence
was
imposed.
The
Texas
Court
of
Criminal
Appeals
affirmed
the
conviction
and
sentence.
Johnson
v.
State,
691
S.W.2d
619
(Tex.Crim.App.1984).
Petition
for
writ
of
certiorari
to
the
Supreme
Court
of
the
United
States
was
denied
on
October
7,
1985.
Johnson
v.
Texas,
---
U.S.
---,
106
S.Ct.
184,
88
L.Ed.2d
152
(1985).
On
December
3,
1985,
Johnson
filed
an
application
for
stay
of
execution
and
writ
of
habeas
corpus
in
the
district
court.
A
stay
of
execution
was
granted.
Upon
review
of
the
record
and
pleadings,
the
district
court
issued
a
memorandum
opinion
on
May
23,
1986,
635
F.Supp.
685.
The
opinion
carefully
dealt
with
each
of
Johnson's
contentions
under
the
law
of
the
Supreme
Court
and
this
Circuit
as
it
existed
at
that
time.
Since
that
time,
however,
the
Supreme
Court
has
granted
a
petition
for
writ
of
certiorari
in
McCleskey
v.
Kemp,
---
U.S.
---,
106
S.Ct.
3331,
92
L.Ed.2d
737.
The
writ
was
limited
to
five
of
the
questions
presented
by
the
petition,
all
of
which
relate
to
Johnson's
contention
in
the
present
case
that
the
death
penalty
in
Texas
has
been
discriminatorily
imposed
against
defendants
of
ethnic
minority
extraction,
poor
persons,
males,
and
defendants
accused
of
killing
caucasians.
The
full
meaning
of
the
grant
of
certiorari
in
McClesky
is
opaque.
However,
it
is
sufficient
to
create
a
question
as
to
the
continued
viability
of
this
court's
prior
ruling
in
Evans
v.
McCotter,
790
F.2d
1232
(5th
Cir.1986)
and
Prejean
v.
Maggio,
765
F.2d
482
(5th
Cir.1985).
That
question
is
one
this
court
should
examine
to
determine
whether
it
is
now
debatable
among
jurists
of
reason
that
this
court
could
resolve
the
issue
in a
different
manner.
Barefoot
v.
Estelle,
463
U.S.
880,
893,
n.
4,
103
S.Ct.
3383,
3394,
n.
4,
77
L.Ed.2d
1090
(1983).
We
need
not
decide
whether
we
would
grant
a
certificate
of
probable
cause
and
stay
of
execution
based
solely
on
the
Supreme
Court's
action
in
McClesky
because,
in
addition,
Johnson
presented
a
document
to
this
court
which
called
the
court's
attention
to
alleged
errors
clearly
delineated
in
the
trial
record
with
regard
to
an
instruction
given
by
the
trial
court,
the
text
of
which
is
set
out
below.
Although
framed
as a
challenge
that
the
court's
action
constituted
a
constructive
amendment
of
the
indictment,
Johnson's
argument
clearly
presents
the
issue
dealt
with
by
the
Supreme
Court
in
Enmund
v.
Florida,
458
U.S.
782,
102
S.Ct.
3368,
73
L.Ed.2d
1140
(1982).
Enmund
held
that
the
Eight
Amendment
forbids
imposition
of
the
death
penalty
on
one
who
"aids
and
abets
a
felony
in
the
course
of
which
a
murder
is
committed
by
others
but
who
does
not
himself
kill,
attempt
to
kill,
or
intend
that
a
killing
take
place
or
that
lethal
force
will
be
employed."
Id.
at
797,
102
S.Ct.
at
3376.
The
trial
judge
charged
the
jury
in
the
guilt
phase
of
Johnson's
trial
that
a
person
commits
murder
if
he
intentionally
or
knowingly
causes
the
death
of
an
individual
and
that
he
commits
capital
murder
if
he
commits
murder
and
he
intentionally
commits
the
murder
in
the
course
of
committing
or
attempting
to
commit
robbery.
But,
he
went
on
in
that
same
guilt
phase
to
instruct
the
jury
that:
If,
in
the
attempt
to
carry
out
a
conspiracy
to
commit
one
felony,
another
felony
is
committed
by
one
of
the
conspirators,
then
all
conspirators
are
guilty
of
the
felony
actually
committed,
although
having
no
intent
to
commit
it,
if
the
offense
was
committed
in
furtherance
of
the
unlawful
purpose
and
was
one
that
should
have
been
anticipated
as a
result
of
the
carrying
out
of
the
conspiracy.
(Emphasis
supplied)
That
instruction,
objected
to
by
Johnson
at
trial,
directly
contradicts
the
first
two
instructions
in
that
it
would
permit
the
jury
to
convict
for
murder
without
finding
the
element
of
intent.
This
inconsistency
was
pointedly
developed
before
the
trial
jury
by
the
final
guilt-phase
arguments
of
counsel
for
defendant
and
the
State.
Whether
this
contradiction
constitutes
an
Enmund
error
or
was
corrected
in
the
penalty
portion
of
the
trial
through
the
jury
interrogatory
requirements
of
the
Texas
capital
sentencing
scheme
is
unclear
to
this
court
and
is
another
ground
upon
which
we
grant
Johnson
a
certificate
of
probable
cause
to
appeal
and
stay
the
execution.
The
respondents
contend
that
this
issue
was
not
raised
in
the
district
court
and
therefore
we
may
not
consider
it
in
connection
with
the
present
motion.
This
is
not
entirely
correct.
The
matter
was
expressly
raised
at
Johnson's
trial,
as
stated
above.
It
was
not
mentioned
in
the
opinion
of
the
Texas
Court
of
Criminal
Appeals,
and
was
not
dealt
with
by
the
district
court.
The
application
we
consider
today
is
more
than
a
request
to
review
the
decision
of
the
district
court.
It
independently
asserts
that
Johnson
is
about
to
be
put
to
death
as a
result
of a
legal
proceeding
conducted
contrary
to
the
Constitution
of
the
United
States.
We
recognize
that
comity
principles
of
exhaustion
could
affect
whether
the
issue
will
be
dealt
with
at
this
time,
but
that
remains
to
be
decided
if
failure
to
exhaust
is
urged
by
the
State.
The
procedural
posture
of
the
matter
before
us
requires
that
we
act
now
to
grant
a
part
of
the
relief
sought.
The
certificate
of
probable
cause
to
appeal
is
granted.
O.L.
McCotter,
Director
of
the
Texas
Department
of
Corrections
and
Jerry
Peterson,
Warden,
Ellis
Unit,
Texas
Department
of
Corrections
are
ordered
to
stay
the
execution
of
Elliott
Rod
Johnson,
now
scheduled
for
dawn
on
July
23,
1986,
pending
further
order
of
this
court.
We
pretermit
all
other
issues
which
may
be
raised
on
appeal.
CERTIFICATE
OF
PROBABLE
CAUSE
AND
STAY
OF
EXECUTION
GRANTED.
Elliott Rod Johnson,
Petitioner-Appellant,
No.
86-2404
Federal Circuits, 5th
Cir.
November 12, 1986
Appeal from the United
States District Court
for the Eastern District
of Texas.
Before CLARK, Chief
Judge, WILLIAMS and
HIGGINBOTHAM, Circuit
Judges.
CLARK, Chief Judge:
Elliot Rod Johnson
appeals to this court
from the district
court's denial of
federal habeas corpus
relief. We affirm the
denial of relief and
dissolve the stay of
execution issued by this
court.
Johnson was convicted of
capital murder for the
killing of Joe Angel
Granado while in the
course of committing or
attempting to commit the
offense of armed robbery.
He was sentenced to
death at the punishment
phase of the trial. The
Texas Court of Criminal
Appeals affirmed the
conviction and sentence.
Johnson v. State, 691
S.W.2d 619 (Tex.Crim.App.1984).
Petition for a writ of
certiorari to the United
States Supreme Court was
denied on October 7,
1985. Johnson v. Texas,
--- U.S. ----, 106 S.Ct.
184, 88 L.Ed.2d 152
(1985). On December 3,
1985, Johnson filed an
application for stay of
execution and writ of
habeas corpus in the
district court. A stay
of execution was granted.
On May 23, 1986, the
district court entered a
final order and issued a
memorandum opinion
denying Johnson's
application for habeas
relief and dissolving
the stay of execution.
Johnson v. McCotter, 635
F.Supp. 685 (E.D.Tex.)
Johnson then filed in
this court an
application for an
original writ of habeas
corpus, a stay of
execution, and leave to
proceed in forma
pauperis. We
pretermitted a ruling on
his application, but
granted the stay and a
certificate of probable
cause to appeal. Johnson
v. McCotter, 794 F.2d
1011 (5th Cir.1986).
Johnson appeals on two
grounds. First, he
contends that the death
penalty is
discriminatorily imposed
in Texas against black
defendants convicted of
killing a person of a
different race. Second,
Johnson argues that the
trial court's
instructions in the
guilt and sentencing
phases of the trial
allowed the jury to
sentence him to death
without first finding
that Johnson himself
killed, attempted to
kill, or intended to
kill anyone. This
court granted Johnson a
certificate of probable
cause to appeal and stay
of execution in part
because we were
uncertain about the
effect of the Supreme
Court's grant of
certiorari in McCleskey
v. Kemp, 753 F.2d 877
(11th Cir.1985) (en banc),
cert. granted, --- U.S.
----, 106 S.Ct. 3331, 92
L.Ed.2d 737 (1986).
McCleskey raises the
issue of discriminatory
imposition of the death
penalty on blacks
convicted of killing
whites. Since that time,
however, this court has
determined that the
grant of certiorari in
McCleskey is not a
sufficient ground to
grant a defendant a stay
of execution. Wicker v.
McCotter, 798 F.2d 155
(5th Cir.1986). But see
Watson v. Blackburn, 798
F.2d 872, 872 (5th
Cir.1986) (Johnson, J.,
dissenting). We are
bound by the law of our
Circuit. We deny
Johnson's application
for a stay of execution
pending the Supreme
Court's decision in
McCleskey.
Johnson's second
contention presents the
issue dealt with by the
Supreme Court in Enmund
v. Florida, 458 U.S.
782, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982).
Enmund held that the
Eighth Amendment forbids
imposition of a death
sentence on one who "aids
and abets a felony in
the course of which a
murder is committed by
others, but who does not
himself kill, attempt to
kill, or intend that a
killing take place or
that lethal force will
be employed." Id. at
797, 102 S.Ct. at 3376.
During the guilt phase
of Johnson's trial, the
trial judge instructed
the jury as follows: If,
in the attempt to carry
out a conspiracy to
commit one felony,
another felony is
committed by one of the
conspirators, then all
conspirators are guilty
of the felony actually
committed, although
having no intent to
commit it, if the
offense was committed in
furtherance of the
unlawful purpose and was
one that should have
been anticipated as a
result of the conspiracy.
Johnson objected to this
instruction at trial.
This
court granted Johnson a
certificate of probable
cause to appeal the
issue of whether this
instruction constitutes
an Enmund error or
whether it was corrected
in the sentencing phase
of the trial. Johnson,
794 F.2d at 1012. The
state urges that this
Enmund issue was not
presented to the
district court and is
raised for the first
time on appeal. As we
noted in our previous
consideration of this
claim, Johnson, 794 F.2d
at 1012-13, this
contention is not
entirely correct since
Johnson did in fact
object at trial. It is
true that neither the
United States district
court nor the Texas
Court of Criminal
Appeals dealt with the
Enmund issue. Because
the circuit has recently
and definitively dealt
with this issue, we
pretermit any
determination of whether
Johnson has fully
exhausted this argument
or has properly
preserved the issue for
appeal and reach the
merits. This
court has held that
Enmund prohibits "the
execution of a person
for the uncontemplated
... act of an accomplice
in the course of
committing a non-capital
felony...." Skillern v.
Estelle, 720 F.2d 839,
846 (5th Cir.1983), cert.
denied,
During the punishment
phase of Johnson's
trial, the court
submitted to the jury
the following special
issue:
whether the conduct of
the defendant 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....
The
jury answered this issue
in the affirmative. The
issue Johnson raises is
controlled by our
decision in Skillern,
720 F.2d at 848.
Skillern involved the
identical special issue
at the sentencing phase
of a Texas capital
murder trial, and this
court found no Enmund
violation. We deny
Johnson's application
for relief on this
ground. The
judgment appealed from
is affirmed. The stay of
execution previously
issued by this court is
dissolved. The
application for a
further stay of
execution pending the
Supreme Court's decision
in McCleskey is denied.
AFFIRMED, Previous Stay
Dissolved, Further Stay
DENIED.
v.
O.L. Mccotter, Director,
Texas Department of
Corrections, Jerry
Peterson, Warden, Ellis
Unit Texas Department of
Corrections,
Respondents-Appellees.
v.
O.L. Mccotter, Director,
Texas Department of
Corrections, Jerry
Peterson, Warden, Ellis
Unit Texas Department of
Corrections,
Respondents-Appellees.