The following is from the Writ of Habeas Corpus filed by Randy. The
original was scanned to a text file and pasted to the web page. A copy
is available if needed. This is word for word from the writ. <#>
refers to a footnote at before the signature section. All signatures
and court stamps are on the copy in my possession.
IN THE 226TH DISTRICT COURT OF BEXAR COUNTY. TEXAS
AND
THE TEXAS COURT OF APPEALS
EX PARTE RANDY ARROYO
CASE NO.97-CR-2457-A-W2
Applicant.
SUCCESSOR APPLICATION FOR WRIT OF HABEAS CORPUS
UNDER ARTICLE 11.071
TO THE HONORABLE JUDGE(S) OF SAID COURT:
RANDY ARROYO. properly files and presents his first Successor
Application for Writ of Habeas Corpus. and in
support, shows. as follows:
I.
Applicant Randy Arroyo was convicted of murder in this 226th District Court
of .Bexar County. Texas on March 2, 1998,
and sentenced to death on March 6, 1998.
II.
This is a successor application for writ of habeas corpus
filed and authorized under Article 11.071, §(5), and must,
pursuant to Art. 11.071, §5(b). be forwarded to the Texas Court of
Criminal Appeals prior to any disposition or ruling.
See Art. 11.071. §5(a), Tex. C. Crim. P. permits consideration of the
claims within a successor application when the
requisites of Art. 11.071, §5(a)( 1) and (2) or (3) are met such that
the application must contain sufficient specific facts establishing that.
(1) The current claims and. issues have not been nor
could have been presented previously in a timely initial application
or in a previously considered application filed under Art. 1 1.071 because
the factual or legal basis for the claim was
unavailable on the date the applicant filed the previous application;
(2) By a preponderance of the evidence, but for a violation
of the United states Constitution no rational juror could
have found the applicant guilty beyond a reasonable doubt; or
(3) By clear and convincing evidence, but for a violation
of the United States Constitution no rational juror would have answered in
the state's favor one or more of the special issues that were submitted to
the jury in the applicant's trial under
Article 37.07] or 37.0711.
This successor application is based upon a violation
of federal constitutional law that was not available to applicant on
the date the applicant filed his previous initial application, thus fulfilling
the requisite of Art. 11.071, §5(a)(I). Moreover, the violation of the
United States Constitution as applied to Mr. Arroyo fulfills the requisites
of Art. 11.071, §5(a)(2) and/or (3). The substance of Applicant's claim
is more fully set forth below.
III.
CLAIM FOR RELIEF
THE EIGHTH AND FOURTEENTH AMENDMENTS PROHIBIT EXECUTION OF JUVENILES
UNDER THE RATIONALE OF ATKINS V. VIRGINIA
The imposition of the death sentence on Randy Arroyo
violates the Eighth and Fourteenth Amendments, to the United
States Constitution because he was less than 18 years of age on the date
the offense was committed. The specific claim for
relief in this Successor Application is based upon the June 20, 2002 United
States Supreme Court decision in Atkins v.
Virginia, _U.S._, 122 S. Ct. 2242, 153 L.Ed2d 335 (U.S. 2002), interpreting
the application of the Eighth Amendment.
Mr. Arroyo's first application for writ of habeas corpus
was filed on May 31, 2000 and relief denied on October 10,
2001. Therefore, a claim that executing a person who was 17 years of age
at the time of the offense violates the Eighth Amendment was not, apart from
claims of violations of Treaties or jus cogens norms, available as
a supportable legal claim, especially with substantive support from the Supreme
Court providing interpretive analysis of the Eighth Amendment with rationale
equally applicable to prohibiting the execution of mentally retarded as well
as juvenile defendants.
The Eighth Amendment succinctly prohibits "excessive"
sanctions. Id. at 2246. It provides that,
Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
U.S. Const. Amend.
VIII.
Atkins advises that, "[t]he basic
concept underlying the Eighth Amendment is nothing less than the dignity of
man... The Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society." Atkins. 122- S.Ct.
at 2247. In interpreting and applying the Eighth Amendment, Atkins holds that
the execution of mentally retarded is unconstitutional, thus overruling Penry
v. Lynaugh. 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
.
In Penry, the Supreme Court reasoned that in 1989 there
was insufficient objective evidence of a national consensus
against executing the mentally retarded because of the very limited number
of state statutes -two -proscribing such
executions, "even when added to 14 States that have rejected capital punishment
completely, do not provide sufficient
evidence at present of a national consensus." Penry, 109 S.Ct. at 2955.
Moreover, Penry presented no evidence of jury behavior regarding sentencing
of mentally retarded nor of decisions of prosecutors. The Penry Court also
rejected the
opinion of professional associations and opinion surveys as not establishing
societal consensus. See, Id. at 2940
Reflecting upon the Penry decision, the Atkins Court
notes, "[m]uch has changed since then." Id. at 2248. The Supreme Court details
the progress of state legislative action banning execution of mentally retarded
persons in 1989 when Penry
was decided and the similar legislative action since. Sixteen additional
states since 1989 banned the execution of mentally retarded offenders, with
Texas, Virginia, and Nevada considering and adopting, to varying degrees,
similar restrictions.
See Atkins, 122 S.Ct. at 2249, fn. 16 & 17. [Texas House Bill 236
passed the Texas House on April 24, 2002, and
Senate Version S. 686 passed the Texas Senate on May 16, 2002, but Gov.
Perry vetoed the legislation on June 17,
2001.]
Revising its consideration of sufficient evidence to
assess the meaning of the Eighth Amendment as derived from evolving standards
of decency that mark a maturing society, the Court announced in Atkins that
while objective factors should be
used to the maximum possible extent, (i.e., number and direction of legislative
enactments), the Court expanded its Eighth Amendment analysis to look more
closely to indicia earlier rejected in Stanford. The Court opined,
...objective evidence, though of great importance, did
not "wholly determine" the controversy, "for the Constitution contemplates
that in the end our own judgment will be brought to bear on the question of
the acceptability of the death
penalty under the Eighth Amendment."
Atkins, 122 S.Ct. at 2247.
Importantly, the Court also shifted from rejection to
inclusion of other indicia of national consensus, including consideration
of views of:
Organizations with
Germane Expertise
[e.g.,
American Psychological Association and other Amicus].
.
Widely Diverse Religious Communities
[e.g., U.S. Catholic Conference, and others reflecting Christian, Jewish,
Muslim, and Buddhist traditions, et. al.]
World Community
[e.g., The European Union, et.al.]
Polling Data
This dramatic revision of applied rationale also undermines
another death penalty decision decided the same day as Penry
.
Stanford v. Kentucky. 492 U.S. 361, 109 S.Ct.
2969, 106 L.Ed.2d 306 (1989), challenged the constitutionality of executing
juveniles as volitive of the Eighth and Fourteenth Amendments. In assessing
whether this punishment violated the Eighth Amendment, because it is contrary
to "evolving standards of decency that mark the progress of a maturing society,"
the 1989 Stanford Court rejected the use of the very factors of which
Atkins now approves 13 years later as measures or indicia of "evolving standards
" of decency. See Stanford, 109 S.Ct. at 2971-72.
Instead, the Stanford Court restricted its review
to reliance upon what it then considered "objective" evidence such as the
number and direction of state statutes governing the death penalty, as well
as the behavior of prosecutors and juries. Noting!
then that 12 states (for 17 year old offenders) and 15 states (for 16 year
old offenders) of the 37 states then allowing the
death penalty, prohibit the execution of juveniles, and ignoring the non-death
penalty states, the Court upheld the imposition
of the death. penalty on juveniles under the then current scenario and rationale
rejecting other evidence, recited above.
Objective Evidence of National Consensus
However, with application of Atkins rationale,
the underlying basis of Stanford is undermined. Atkins accepted
the
numbers of non-death penalty states in the determination of objective evidence
as well as the number and direction of
change. Thus, in 2002 without inclusion of the 12 non-death penalty states
as referenced in Atkins, the objective evidence reflecting a national
consensus against executing both the mentally retarded juveniles under 18
is highly analogous, as follows:
Including Non-Death Penalty States:
(2) States opposed to execution of juveniles:
28
(3) States opposed to execution of the mentally retarded:
30
Excluding Non-Death Penalty States:
(4) States with explicit bar on execution of juveniles:
16
(5) States with explicit bar on execution of mentally retarded:
18
States actually executing juveniles in last nine years:
3
States actually executing mentally retarded in last nine years:
2<1>
Percentage of national population residing in states not executing .Juveniles
in last nine years:
89 %
. Percentage
of National population residing in states not executing Mentally retarded
in last nine years: 93 %
It should be noted that only 11 % of the total U.S. population
are represented by those states executing juvenile offenders within the past
9 years.<2> Thus, 89% of the population are represented by
those states prohibiting execution of juveniles, a super majority reflecting
the true consensus of the American people.
Moreover, although there has been great progress in the
number of states that bar execution of the mentally retarded from two in 1989
to 18 in 2002, this positive change functions to catch up to the national
consensus showing opposition to juvenile executions. Specifically, as of 1989
there were already 12 states barring the execution of juveniles and only
2 which barred execution of the mentally retarded. Since then, 4 additional
states have evolved to also bar juvenile executions, adding to an already
substantial number of states, not even including the non-death penalty states.
Since 1989, there has also been a recognition (which already existed concerning
juvenile executions) among states resulting in an increase 16 states barring
execution of the mentally retarded. bring the total states barring such execution
to near equal levels: 16 -Juvenile; 18 -
Mentally Retarded, and with inclusion of non-death penalty states: 28 -Juvenile;
30- Mentally Retarded.
The complaint of Justice Scalia in his dissent in Atkins
concerning the majority's concerning the majority's reliance on "trends"<3>
or directions of legislative action over the 13 years since Penry only
serves to enhance the force of argument
that the legislative bans on executing juveniles has greater enduring and
long standing force and historical consensus than the
ban on executing the mentally retarded.
Additionally, as stated above, Atkins now approves
the use of other evidence such as (1) organizations with germane experience,
(2) widely diverse religious communities, (3) world community, (4) polling
data, and (5) opinions and positions
of professional associations, which was rejected in 1989. [See Stanford,
492 U.S: at 377. Cf. Thompson v. Oklahoma,
487 U.S. 815, 830-31, n. 31,108 S.Ct. 2687,101 L.Ed2d 702 (1988)]
The same organizations, associations, religious, and
international bodies which objected to the execution of the mentally retarded
also object to the execution of those under 18 years of age.
Also, the similarities of disabilities or diminished
capacities between the retarded and juveniles is striking, inter alia,
To Understand and process Information
To Engage in Logical Reasoning
To Abstract from Mistakes
To Control Impulses
See Atkins at 2250.
Indeed, the oft-heard comment when assessing the functioning
level of a person afflicted with mental retardation is the
person has the skill level of a child. Because of the immature level of
maturity, judgment, impulse control, and reasoning, legislatures, including
Texas, have enacted statutes limiting the ability of minors (less than 18)
to enter into legal relationships
and engage in certain "adult" acts because they do not possess sufficient
maturity of judgment.
Texas law has proclaimed those under 18 years of age
to be "legal infants,"<4> without right to enter into a contract, to
marry without permission. to execute a will, to serve on a jury, to vote,
or sue or be sued without parental/guardian or next friend. involvement. or
even buy cigarettes. Tex. Civ. Practice & Remedies Code § 129.001
("the .age of majority in this
state is 18 years"); Tex. Probate Code §S7; Tex. Elections Code §
II.OO2~ Tex. Family Code § 41.001. At 18 years of
age, a person is emancipated from "the disabilities of infancy." See Tex.
Atty. Gen. Cp. 1973, H-82.
Minors "Have a very special place in life." , May
v. Anderson. 345 U.S. 520. 536 (1953) "Legislatures recognize the
relative immaturity of adolescents and ...define age based classes that
take account of this qualitative difference between
juveniles and adults." Thompson v. Oklahoma. 487 U.S. 815, 853-54
(1988) (O'Connor, J., concurring). In Thompson,
the supreme Court summarized the historically recognized basis for the special
treatment of the juvenile:
Inexperience, less
education, and less intelligence make the teenager less .able to evaluate
the consequences of his
or her conduct
while at the same time he or she is much more apt to be motivated by mere
emotion or peer pressure
than is an adult. The reasons why juveniles are not trusted
with the privileges and responsibilities of an adult also
explain why their
irresponsible conduct is not as morally reprehensible as that of an adult.
Id at 835.
A true and correct copy of the Affidavit of Bettina Wright.
LMSW-ACP, LCDC, is attached as Exhibit A hereto,
concerning generally accepted conclusions concerning adolescent development,
both psychologically and physiologically.
Yet, converse to such national acknowledgment of juvenile
limitations and the plethora of protective Texas provisions
based upon the legislative recognition of the developmental limitations
of minors under 18, the Texas Penal Code holds 17
year olds criminally responsible and subject to death. See Tex.Penal C.
§8.07(c). As such, Tex. Penal C. §8.07@ is unconstitutional because
it violates the Eighth and Fourteenth Amendments based on the rationale of
Atkins.
In evaluating relative culpability and the dual penological
goals of capital punishment, i.e., retribution and deterrence,
Atkins cites underlying considerations applicable to the mentally
retarded such as,
...a diminished
capacity to understand and process information, to communicate, to abstract
from mistakes and
learn from experience,
to engage in logical reasoning, to control impulses, and to understand the
reactions of others,
Atkins at 2251.
As with the mentally retarded, the execution of juveniles
does not serve the twin objectives of the death penalty: (1) retribution and
(2) deterrence. Based on the understanding of the limitations of the mentally
retarded, Atkins found that
executing mentally retarded individuals will not "measurably advance the
deterrent or the retributive purpose of the death penalty," Id. at 2252.
It is without serious dispute that persons under 18 years
of age are, like the mentally retarded, "more vulnerable, more impulsive,
and less disciplined than adults," and are without the same "capacity to control
their conduct and to think in
long-range terms, See Stanford v. Kentucky, 492 U.S. at 395 (Brennan,
J. Dissenting)
Moreover, recent medical and psychological studies conclude
that the formation of the prefrontal cortex, that portion of
the teenage brain responsible for impulse control, judgement, and certain
social behavior is not fully developed in the teen
years. See Teenage Brain, A Work in Progress, National Institute
of Mental Health/National Institute Heath, 2001; Brain Changes May Explain
Many Adolescent Behaviors, Associated Press, Las Vegas Review Journal,
Jan. 7, 200 I (quoting
Fulton Crews, neuroscientist at Univ. N. Carolina at Chapel Hill); Williams,
Mara: Science Finds. Neurological Clue to
Teen irresponsibility. Philadelphia Inquirer, Nov. 24. 2000; Brownlee,
Shannon, Behavior Can Be Baffling When Young Minds Are Taking Shape,
U.S. News, Aug. 1999; Weinberger, Daniel, A<5> Brain Too Young for
Good Judgment.
New York Times, Mar. 10,2001
As a result of the foregoing indicia of national consensus
in light of the Atkins decision's revision to its application of the
Eighth Amendment and the Supreme Court's analogous holding barring execution
of the mentally retarded as a violation of
the Eighth Amendment, Applicant Randy Arroyo respectfully urges this Honorable
Court to employ the Atkins rationale in declaring Tex. Penal C. § 8.07(c)
unconstitutional and also to reverse Randy Arroyo's death sentence
as both being in
violation of the Eighth and Fourteenth Amendments to the United States Constitution,
requiring a ruling that imposition of
the death penalty upon those defendant less than 18 years of age is cruel
and unusual and excessive punishment.
WHEREFORE, PREMISES CONSIDERED, Applicant Randy Arroyo,
respectfully applies to this Honorable Court
for a Writ of Habeas Corpus on the basis that imposing the death sentence
upon Applicant and those under the age of 18
years of age is a violation of the Eighth and Fourteenth Amendment, and
as such Texas Penal Code Section 8.07(c) is also unconstitutional. Applicant
Randy Arroyo is therefore illegally confined on death row awaiting execution
in violation of and contrary to the correct interpretation and application
of the United States Constitution prohibiting cruel and unusual and excessive
punishment under the Eighth Amendment which draws it meaning from the evolving
standards of decency which
mark the progress of a maturing society.
__________________
Foot notes:
<1>Texas. Oklahoma. and Virginia
<2> See U.S. Bureau of Census, 2000 Census: U.S. Population: 281,421,906;
Texas: 20,851,820; Oklahoma: 3,450,654: Virginia: 7,078,515
<3> See Atkins, 122 S.Ct at 2263
<4> Tex. Alty Gen. Op. 1975, No. H-546
<5> Director, Clinical Brain Disorders at National Institutes of Health
Respectfully submitted,
LAW OFFICES
OF ANTHONY M. SMITH
By:____________________________
Anthony M. Smith
State Bar No. 186494525
112 Villita Street
San Antonio, TX 78205
(210) 281-9000
FAX: (210) 829-0998
LAW OFFICE OF GERALD BIERBAUM
By:_____________________________
Gerald Bierbaum
State Bar No. 24025252
1744 Norfolk
Houston, TX 77098
(7 13) 522-7224
.
F AX: (713) 572-2483
ATTORNEYS FOR SUCCESSOR
APPLICANT
RANDY ARROYO
CERTIFICATE OF SERVICE
I certify that I send a true copy of the foregoing successor
application for
writ of Habeas Corpus to the Bexar County District Attorney by FAX or
first class mail on October 4,
2002.
.
________________
Anthony M. Smith
Affidavit of Bettina Wright
Psychological Theory of Child Development
Randy Main Page