Barefoot v. Estelle

PETITIONER: Thomas A. Barefoot
RESPONDENT: W.J. Estelle, Director, Texas Department of Corrections
LOCATION: Bell County District Court

DOCKET NO.: 82-6080
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 463 US 880 (1983)
ARGUED: Apr 26, 1983
DECIDED: Jul 06, 1983
GRANTED: Jan 24, 1983

Douglas M. Becker - on behalf of Respondent
Jack Greenberg - on behalf of NAACP Legal Defense and Educational Fund, Inc., as amicus curiae
William E. Gray, Jr. - on behalf of Petitioner

Facts of the case

On November 14, 1978, a Texas jury in Bell County found Thomas A. Barefoot guilty of the murder of a police officer. A separate sentencing hearing was held before the same jury to determine whether the death penalty should be imposed. The prosecution called two psychiatrists to the stand who testified that Barefoot was likely to commit further acts of violence and would remain a danger to society. The jury sentenced Barefoot to death. Barefoot appealed to the Texas Court of Criminal Appeals and argued that the use of the psychiatrists to testify as to future conduct was unconstitutional because psychiatric testimony cannot accurately predict future dangerousness and is likely to produce erroneous convictions. He also argued that this specific testimony was unconstitutional, as neither psychiatrist had personally examined Barefoot. The Texas Court of Criminal Appeals affirmed the conviction and sentence.

Barefoot’s execution was scheduled for September 7, 1980. A stay of execution was granted by the Supreme Court pending the filing and disposition of a petition of certiorari. The petition was denied, and Barefoot’s execution was rescheduled for October 1981. The Texas Court of Criminal Appeals denied Barefoot’s application for habeas corpus, and he filed a petition for habeas corpus in district court. The district court granted a stay of execution pending action on the petition, and later denied the petition and vacated the stay of execution. The district court also issued a certificate of probable cause that would allow Barefoot to continue the appeals process. The Texas Court of Criminal Appeals again denied Barefoot’s petition for habeas corpus and motion for a stay of execution. Barefoot appealed to the U.S. Court of Appeals for the Fifth District for a stay of execution, pending the consideration of his appeal of the denial of his petition for habeas corpus, and the Court of Appeals denied the motion.


(1) Did the district court err in rejecting the habeas corpus petition on the merits?

(2) Did the U.S. Court of Appeals for the Fifth Circuit correctly deny a stay of execution of the death penalty pending appeal of the district court’s judgment?

Media for Barefoot v. Estelle

Audio Transcription for Oral Argument - April 26, 1983 in Barefoot v. Estelle

Warren E. Burger:

We will hear arguments next in Barefoot against Estelle.

Mr. Greenberg, you may proceed whenever you are ready.

Jack Greenberg:

Mr. Chief Justice, and may it please the Court, I shall argue first as a friend of the Court on the issue of standards for granting stays of execution on denials of petitions for writ of habeas corpus in capital case, and Mr. Gray shall argue for the Petitioner on the merits of the case with regard to the admissibility of the psychiatric testimony.

I would first like to commence with a brief review of the chronology of the case, because it bears upon an important issue with regard to the stay, and that is whether counsel acted diligently or dilatorily.

The Petitioner in this case, Thomas Barefoot, was convicted in November, 1978, of homicide, and he litigated his case in the state courts on direct review, and then to this Court, and then on state post-conviction relief for approximately three years, and on October 6th, 1981, he completed his proceedings in the state system, and less... approximately a week later, on October 14th, he filed his case in the United States District Court.

That case was resolved a year later in the District Court on November, 1982, and on December 3rd, the District Court granted a certificate of probable cause and permission to proceed in forma pauperis, and on December 4th it vacated a stay which it had theretofore granted.

Shortly thereafter, on December--

William H. Rehnquist:

Mr. Greenberg, do those two actions strike you as being at all inconsistent?

Jack Greenberg:


On December 20th, the District Court set the date of execution for January 25th, 1983.

Texas has a doctrine which does not permit litigation in its state courts as long as proceedings are pending in the federal courts, and some newly discovered evidence appeared, as well as an additional state court matter, which had not been exhausted, and so Mr. Gray went back into the state courts on December 20th on state habeas corpus which was denied on December 21st.

However, he was not notified of this denial until January 7th.

A week thereafter, he filed his petition in the United States Court of Appeals for the Fifth Circuit, on January 14th.

He received a telephone call on January 17th telling him to appear for a hearing on the application for stay on January 19th.

He appeared in court on January 19th.

The panel which had Judge Brown on it informed him that Judge Brown was ill and Judge Randall was substituting for Judge Brown, and it was stated in open court that Judge Randall had showed up at the last moment, didn't know anything at all about the case.

The record on the... of the state court proceedings had not yet been filed in federal court.

The record of the federal habeas court proceedings was just then filed.

There was a letter from counsel which was turned over to the court saying that the American Psychiatric Association desired to file a friend of the court brief on the important issue of the admissibility and the significance of the psychiatric testimony in this case, which was based upon a response to a hypothetical question.

The hearing on the stay was concluded.

Twenty-four hours later, a 16-page opinion was issued denying the stay and setting forth as a standard for granting a denial of stay whether or not Petitioner had established a substantial likelihood of success on the merits.

In essence, this--

Warren E. Burger:

I have a little difficulty, Mr. Greenberg, tracking the matter of the substitution of the judge.

How is that relevant to any issue here?

Jack Greenberg:

--Such preparation as the judge might have been able to make even on that short notice was not possible for Judge Randall, who just showed up at the last moment, certainly through not fault of her own.

Warren E. Burger:

Well, you must be aware that, for example, one Justice of this Court for many years came on the bench without knowing anything but the name of the case, and did so deliberately.

You suggest that disqualifies a judge from participating?

Jack Greenberg:

No, I certainly was not suggesting it was a disqualification, but certainly it was an indication of not adequate opportunity for study and reflection on a matter that was complex and difficult.

Warren E. Burger:

But a matter that had been through the state court systems up to that time.

Jack Greenberg:

The matter had been through the state court system, but Petitioner had a Congressionally mandated statutory right to federal habeas corpus review of his constitutional claims in the federal courts and had not yet had that.