Petition — Ross v. Reed

RECEIVED

MAY 2.0 1981

80-6 70) | SUPREME COURT, US.

No.

1N THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

DANIEL ROSS,

Petitioner,

AMOS REED, er al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BARRY NAKELL

School of Law

University of North Carolina

Chapel Hill, North Carolina

(919) 933-5106

Counsel for Petitioner

QUESTIONS PRESENTED

Whether petitioner's failure to challenge on appeal from his pre-

Mullaney v. Wilbur state court conviction of second degree murder

the trial court's instructions unconstitutionally shifting to him

the burden of persuasion on the issues of malice and self-defense

worked a forfeiture of his right to raise the issue on federal habeas

corpus.

Whether petitioner was denied effective assistance of counsel on

appeal from his pre-Mullaney v. Wilbur state court conviction of second

degree murder because his attorney failed at that time to raise the

issue of the trial court's instructions shifting to him the burden

of persuasion on the issues of malice and self-defense.

If the Seilere to raise a due diecees visiatien on appeai from a

state court conviction generally precludes raising the issue on federal

habeas corpus, whether petitioner's case meets the cause and pre-

judice exception to such a procedural bar.

Whether the state appellate court decided the merits of the due process

issue even though petitioner did not expressly raise it so that there

is no state procedural bar to its federal habeas corpus review.

TABLE OF CONTENTS

QUESTIONS PRESENTED. . . 2. see eevevesevrecveeeeeve fb

TABLE OF CONTENTS 2. wet ew te RC em ewe Cw ee ees SC

TABLE OF AUTMORITIBS 2 ww ct hee wee eee wee tet ee

OPINIONS BELOW. . 2. 2+ ese ceeecre ses ee eee 8 are 5

JURISD IGT ee 6 8 oe 6 0 eS 6 We Oe kL 69) 68s Be @ 6..0.05 5 F

CONSTITUTIONAL PROVISION INVOLVED. . . . «© «© © © © © w& ee 5

STATEMENT OF THE CASE. . cs ececsneceevesneaseeetsonoes J

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW IS IN DIRECT CONFLICT WITH THE HOLDING

IN THIS COURT'S DECISION IN FAY V. NOIA AND RAISES THE

WOLDING. . we cecevenpeeeve ernie ®

II. THE DECISION RELOW IS IN CONFLICT WITH THE DECISION OF

TWO OTHER CIRCUITS HOLDING THAT EVEN IF FAILURE TO COMPLY

WITH A STATE RULE REQUIRING ISSUES TO BE RAISED ON APPEAL

WERE GENERALLY TO CONSTITUTE A BAR TO FEDERAL HABEAS CORPUS,

THE CIRCUMSTANCES OF THIS CASE MEET THE "CAUSE AND PRE-

JUDICE” EXCEPTION TO SUCH A BAR. . 2. 2. 2 ee eevee vee 8

COMCLNCION.. « 0 0 0 0 0 6d 00) 0-0 s eats & eee. oe eee

APPENDIX A. . Opinion of the Court of Appeals

APPENDIX B . . Opinion of the District Court

APPENDIX C . . Order of the North Carolina Supreme Court in

State v. Hancock, No. 105 PC (Nov. 30, 1978)

=,

TABLE OF AUTHORITIES

Cases

— Page

Cole v. Stevenson,

620 F.2d 1055 (4th Cir.), cert. den., 101 S.Ct. 545 (1980).

Collins v. Auger,

577 F.2d 1107 (8th Cir. 1978), cert. den., 439 U.S.1133(1979) .

Cooper v. Fitzharris,

586 F.2d 1235 (9th Cir. 1978), cert. den. 440 U.S. 974 (1979) .

County Court of Ulster County v. Allen,

442 U.S. 140 (1979). :

Davis v. United States,

441 U.S. 233 (1973).

Estelle v. Williams,

425 U.S. 501 (1976).

Everette v. Stephenson,

No. 78-6059 (4th Cir. July 9, 1980).

Fay v. Noia,

372 U.S. 391 (1963).

Francis v. Henderson,

eC. S Sok ol: A ee sy be Met ek ae ey Me ee ea ee

Gardner v. Florida,

430 U.S. 349 (1977). .

Griffin v. California,

390 U.S. 609 (1965).

Hankerson v. North Carolina,

432 U.S. 233 (1977).

Jimenez v. Estelle,

557 F.2d 506 (Sth Cir. 1977) .

Johnson v. Zerbst,

304 U.S. 458 (1963)... +--+ ue ee ee i Oo ee ee oe eee

Mullaney v. Wilbur,

421 U.S. 684 (1975).

O'Connor v. Ohio,

385 U.S. 92 (1966) .

Ohio v. Robert,

100 S. Ct. 2531 (1980) .

Owen v. City of Independence,

100 S$. Ce. 1398 (1980). ws we eo eee eer erererres

State v. Cole,

280 N.C. 398, 185 S.E. 2d 833 CEO sES. kel a le tabs

State v. Cause,

227 N.C. 26, 40 S.E. 2d 463 CIOGB 6 oid ee 6 2,08 29 <8: «

State v. Hancock,

No. 105 PC (N.C. Supreme Court Nov. 30, 1978)... +++ >

State v. Hankerson,

288 N.C. 632, 220 S.E. 24 575 (1975),

Rev'd, 432 U.S. 233 (1977) . 2 2. ee © 2 ee we ee ee

~§-

TABLE OF AUTHORITIES

Cases Page

State v. Harris,

Bae Gis Rs 16) SOM Oeme 20.200 CRRIORe Kile el vie 6 0 ele we

State v. Johnson,

Sar ata er Oa. Boks. Be’ Cee <Lameels sb se 6s ee

State v. Sparks,

Re Molen Oaks BOF Ors: 20 eke CLO7E) 0.a. 6 8 86 8 8s

State v. Ross,

Bie. ete - ets ACP Debs OE Cre. ChOOn) « 60s eS

Tyler v. Phelps,

622 F.2d 172 (Sth Cir. 1980) .

United States v. Brown,

oe SA ea ee rr

United States v. Frady

Gre meee ee aeous Gils .Jeeeds 6 0 Se 0 bLe 8 eee eee ee ee

Wainwright v. Sykes,

Ban Bie Fe BEET) 6 he ae ole, 82%. 828 8 otacevee 6 e088

Wynn v. Mahoney,

600 F.2d 448 (4th Cir.), cert. den., 100 S. Ct. 423 (1979) .

Statutes

28 U.S.C. § 1254(1) SO EP ee er ee a OSE bo eee es 8 68

N.C. Gen. Stat., § 7A-451(a) (35) (1979 Cum Supp.).

Bits. Goma. MERE s a BO Ra Beate) RIO) « 6160 66 be ee ee et ee ae

Rule 46, North Carolina Rules of Civil Procedure. .

Rule 10(a), North Carolina Rules of Appellate Procedure. ...

ole

OPINIONS BELGW

The opinion of the Court of Appeals is unpublished and is reproduced

as Appendix A. The Order and Judgment of the District Court are not reported

and are reproduced as Appendix B.

JURISDICTION

The judgment of the Court of Appeals for the Fourth Circuit was entered

on April 1, 1981. The ‘urisdiction of th‘s Court is invoked under 28 U.S.C,

$1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Due Process Clause of the Fourteenth Amendment to the Constitution

provides as follows: "(N)or shall any State deprive any person of life,

liberty, or property, without due process of law... ."

STATEMENT OF THE CASE

Yetitioner Daniel Ross was convicted at the March 17, 1969

Session of the WakeCounty Superior Court, after a jury trial, of second

degree murder in the killing of his wife. At his trial, %oss raised the

defense of self-defense and the partial defense of lack of malice. The

trial court instructed the jury that Ross had the burden of proving both

defenses.*

Ross appealed his conviction to the North Carolina Supreme Court,

which affirmed it on October 15, 1969. State v. Ross, 275 N.C. 550, 169

S.E. 2d 875 (1969). Although Ross did not expressly challenge on his

appeal -- which was decided more than five and one-half years before this

Court's decision in Mullaney v. Wilbur, 421 U.S. 684 (1975) -~ the con-

stitutionality of the instructions imposing the burden of proof on hin,

the State Supreme Court held that the trial "court charged fully and

correctly on the burden and intensity of the proof required to support

each of the permissible verdicts of guilty... ." 275 N.C. at 554, 169

S.E. 2d at 878.

lithe District Court, referring to page 51 of the Record on Ross'

Appeal, stated that "the trial judge departed from the then customary

charge and instructed the jury that the state had the burden to satisfy

the jury beyond a reasonable doubt that the killing had not been in

self-defense." The trial court, however, expressly told the jury, at

pages 42 and 50 of the Record on Ross‘ Appeal, that the burden of proof

on self-defense was on Ross. The point is not critical, however, because

the District Court agreed that the trial court unconstitutionally imposed

on Ross the burden of proof on lack of malice.

Thereafter this Court filed its opinion in Mullaney v. Wilbur, 421 U.S.

684 (1975). On June 17, 1977, this Court held in Hankerson v, North Carolina,

432 U.S. 233 (1977), that Mullaney applies retroactively, contrary to the

decision of the North Carolina Supreme Court in State v. Hankerson, 288 N.C.

632, 220 S.E.2d 575 (1975).

On December 2, 1977, Petitioner filed in the Superior Court a Petition

for « Writ of Post-Conviction Review in which he challenged his conviction

on the ground that it was obtained in violation of due process because the

burden of proof on the issues of self-defense and lack of malice were uncon-

stitutionally imposed upon him, relying upon Mullaney and Hankerson. On

December 29, 1977, the Superior Court entered an Order denying that Petition.

On January 9, 1979, Petitioner filed a Petition for Certiorari seeking review

of that decision in the North Carolina Court of Appeals. By order of February 23,

1978, that Court denied the Petition.

Petitioner promptly filed a Petition for a Writ of Habeas Corpus in the

United States Court for the Eastern District of North Carolina, raising the

same issues. The District Court stayed the action pending the Fourt Circuit's

en banc decision in Cole v. Stevenson, 620 F.2d 1055 (4th Cir.), cert. Den.,

101 S. Ct. 545 (1980). On October 21, 1990, after Cole was decided by a 6-3

vote and this Court denied certiorari with three Justices voting to grant,

the District Court dismissed the Petition. Petitioner timely appealed to

the United States Court of Appeals, which summarily dismissed the appeal on

April 1, 1981,

REASONS FOR GRANTING THE WRIT

I,

THE DECISION BELOW IS IN DIRECT

CONFLICT WITH THE HOLDING IN THIS

COURT'S DECISION IN FAY v. NOIA

AND RAISES THE IMPORTANT QUESTION

OF THE CONTINUING VALIDITY OF THAT

HOLDING,

The issues presented in this case involve the continuing validity of

this Court's landmark precedent in Fay v. Noia, 372 U.S. 391 (1963), and arise

as a result of this Court's decision in Wainwright v. Sykes, 433 U.S. 72 (1977).

See also, Francis v. Henderson, 425 U.S. 536 (1976); Davis v. United States, 411

U.S. 233 (1973). They involve the questions of whether the rule of Wainwright v.

Sykes as to the federal habeas corpus effect of a failure to comply with a state

contemporaneous objection rule at trial applies also to modify the

Fay v. Nota direct holding regarding the federal habeas corpus effect

of a non-deliberate failure to raise an issue on a state appeal, and, if so,

of the meaning of the new "cause and prejudice” standard, The Fourth Circuit,

by a 6-3 vote of the Court sitting en banc in Cole v. Stevenson, supra, held

that this Court overruled Fay v. Noia in footnote 8 in Hankerson, even though

six days after deciding Hankerson it expressly declared that "we leave for

another day" the question of the continuing validity of Fay v. Noia. Wainwright

v. Sykes, supra at 88 n,12. Three Justices voted to grant certiorart in Cole.

In Fay v. Noia, this Court held that a state criminal defendant's failure

to appeal from his conviction -~ as long as it was not a deliberate by-pass of

state remedies -- was not a bar to federal post-conviction review.

In the present case, Petitioner did not incur any procedural defaults at

trial, and he did appeal his conviction in the state courts. His appeal was

completed more than five years before this Court announced its decision in

Mullaney v. Wilbur, however, and Petitioner did not then expressly raise the

issue that was later settled in Mullaney. As Chief Judge Haynsworth recognized

in his dissenting opinion in Cole, "Fay's holding squarely fits this case”

and provides that the federal courts should entertain Petitioner's habeas corpus

action, 620 F.2d at 1074.

It is clear that any effort by Petitioner to have raised the issue on his

pre-Mullaney appeal would have been futile. Aftex Petitioner's conviction had

been affirmed the North Carolina Supreme Court rejected similar arguments in

other cases. State v. Sparks, 285 N.C. 631, 643, 207 $.E.2d 712, 719 (1974);

.

State v. Harris, 23 N.C. App. 77, 80, 208 S.E.2d 266, 268 (1974). Moreover,

after Mullaney was decided the North Carolina Supreme Court held that it did

not apply retroactively. State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975),

rev'd, 432 U.S. 233 (1977). Thus, the State is insisting in Petitioner's

case on a futile formality. Yet, es this Court recently held: "The law does

not require the doing of a futile act." Ohio v. Robert, 100 S.Ct. 2531, 2543

(1980).

Indeed, the North Carolina Supreme Court on its own motion did in fact

pass upon the adequacy of the burden of proof instructions, In rejecting that

contention, the District Court focused only on one sentence in which the North

C: ,lina Supreme Court said: "The court charged fully and correctly on

the burden and intensity of the proof required to support each of the

verdicts of guilty.” State v. Ross, 275 N.C. 550, 554, 169 S.E.2d 875, 878, (1969).

The District Court overlooked the following sentence: "While the defendant

did not point out and assign as error any particular or designated portion

of the charge as required by appellate rules, we have examined the charge

and conclude it is in accordance with legal requirements and is unobjection- '

able.” Id, Because the State Supreme Court thus denied Petitioner's appeal

on this issue on the merits and not on the basis of a procedvral default,

there is no state procedural bar to its federal court review on habeas corpus.

County Court of Ulster County v. Allen, 442 U.S, 140, 154 (1979). See also,

Wynn v. Mahoney, 600 F.2d 448, 450 n.1 (4th Cir.), cert. den., 100 S. Ct. 423

(1979). ("We have no occasion to decide the Wainwright question since North

Carolina explicitly waived that point in oral argument of this appeal.")

Il.

THE DECISION BELOW IS IN CONFLICT

WITH THE DECISIONS OF TWO OTHER CIRCUITS

HOLDING THAT EVEN IF FAILURE TO COMPLY

WITH A STATE RULE REQUIRING ISSUES TO

BE RAISED ON APPEAL WERE GENERALLY TO

CONSTITUTE A BAR TC FEDERAL HABEAS CORPUS,

THE CIRCUMSTANCES OF THIS CASE MEET THE

"CAUSE AND PREJUDICE” EXCEPTION TO SUCH A BAR.

This Court has recognized an exception to the federal forfeiture con-

sequence of a state procedural lapse even where it has generally permitted

the forfeiture. In Francis v. Henderson the Court said simply that the

exception requires a showing of cause for the state procedural failure and

“also a showing of actual prejudice.” 425 U.S. at 542, Im Wainwright v. Sykes,

the Court noted:

The 'cause'-and -'prejudice’ exception of the Francis

rule will afford an adequate guarantee, we think that

the rule will not prevent a federal habeas court f rok

adjudicating for the first time the federal constitutional

claim of a defendant who in the absence of soch an

adjudication will be the victim of a miscarriage of

justice.”

433 U.S. at 90-91. The Court said that “precise content may be given those

terms by later cases." Id. at 91. This case presents the Court an occasion

to elaborate on that standard, and thereby to give needed guidance to the

lower courts in its application.

There was good cause for petitioner's failure to raise the issue on appeal

because there was not yet an authoritative judicial decision recognizing the

*

validity of the issue. Petitioner did appeal on other grounds so it is

evident that he’vas not deliberately avoiding the issue.

In O'Connor v. Ohio, 385 U.S. 92 (1966), the defendant contended "that

the prosecutor's comment upon his failure to testify during his trial for

larceny violated the constitutional right to remain silent." Id. at 92,

He relied on Griffin v. California, 390 U.S. 609 (1965), which was decided

after the defendant had exhausted his state appeals without raising the issue

and was seeking review in the United States Supreme Court. This Court held

“that in these circumstances the failure to object in the state courts cannot

bar the Petitioner from asserting this federal right . .. . Defendants can no

more be charged with anticipating the Griffin decision than can the States. .. -

Thus, his failure to object to a practice which Ohio had long allowed cannot

strip him of his right to attack the practice following its invalidation by

this Court." Id, at 93. Cf., Oven v. City of Independence, 100 S. Ct. 1398,

1419 (1980) (Powell, J., with Burger, C.J., Stewart and Rehnquist, J.J.,

dissenting).

The prejudice requirement is also satisfied in this case. Prejudice

flows from the erroneous standard of proof imposed on the jury's decision

regarding the instructions on both malice and self-defense. The constitutionaily

erroneous instruction by the trial court "'raises serious questions about the

accuracy'’ of the jury's verdict. Hankerson v. North Carolina, supra at 243,

As this Court held in Hankerson, "We do not . . . readily assume that juries

fail to understand the instructions they have been receiving in North Carolina.”

Hankerson v. North Carolina, supra at 244 »n.8.

‘

The decision below is in direct conflict with recent decisions of the

Fifth end District of Columbia circuits. In Tyler v. Phelps, 622 F.2d 172

,

(Sth Cir. 1986), and United States v. Frady, 631 F.2d 506 (D.C. Cir. 1980),

* In the Hankerson case itself, Hankerson did not raise the Mullaney issue

on appeal to the State Court of Appeals, in his appeal papers to the North

Carolina Supreme Court, or in his brief in the North Carolina Supreme Court.

Three weeks after Mullaney was decided, Hankerson moved to amend the record

to raise the Mullaney issue. The North Carolina Supreme Court granted that

motion only eight days before oral argument in the case.

See also, State v. Hancock, No. 105 PC (N.C. Supreme Court, Nov. 30, 1978).

In Hancock, the North Carolina Supreme Court awarded post-conviction relief on

Mullaney grounds. In his appeal to the North Carolina Court of Appeals Hancock

did not raise that issue even though Mullaney was decided while the appeal was

pending. He tried to appeal further to the North Carolina Supreme Court and

to reise the issue at that stage, still, like Hankerson, too late under the

letter of the North Carolina rules, The North Carolina Supreme Court dismissed

the appeal. A copy of its later order nevertheless granting post-conviction re-~

lief is attached as Exhibit C.

Those circuits held that "cause" for the failure to comply with a rule

requiring a contemporaneous objection to jury instructions is satisfied if

the defense attorney did not object because he was unaware of the grounds for

doing so -- especially where the law establishing those grounds had not yet

been decided. In Phelps, the Fifth Circuit held:

"Though ‘cause’ was undefined in the Sykes opinion, sub~

sequent decisions have given meaning to the term. Several

courts have indicated that ineffective counsel short of

that necessary to make out a Sixth Amendment claim, will.

satisfy the ‘cause’ prong. See Collins v, Auger, 577 F.2d

1107, 1110 n.2 (8th Cir. 1978) (dictum), cert. denied,

439 U.S. 1133 (1979); Cooper v. Fitzharris, 586 F.2d 1325

(9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974 (1979).

Jimenez v. Estelle, 557 F.2d 506, 511 (Sth Cir. 1977) (dictum).

We agree with the sentiment expressed in Collins v. Auger

. « « that a lack of knowledge by trial counsel that the

actions of the trial judge constituted a due process violation

is sufficient cause for failure to object.?

"We find this definition of the ‘cause’ element of

Sykes to be completely consistent with the policies stated

by the Sykes court. By not binding # defendant to obvious

mistakes by his trial counsel we are not permitting

counsel to sandbag, but only giving relief to defendants

when the erroneous, nontactical decisions by counsel

result in prejudice."

Footnote 7: “In United States v. Brown, (D.C. Cir.

1980) (46 U.S.L.W. 2698) in the context of discussing the

‘cause’ prong of Rule 12, Fed. R. Crim. P., the court

Stated:

"*Even when counsel's performance is generally

competent, however, he may, through oversight or

ignorance, fail to present a substantial con-

stitutional claim. Binding a defendant to the

materially deficient judgment of his attorney

would be a senseless penalty in most cases

because most defendants lack the legal sophistication

to monitor their attorney's performance.'"

622 F.2d at 172. Frady was a federal, not a state case. Otherwise, it is

squarely on point with the present case because it too involved the

application of a new decision after the defendant's trial holding that

the instructions given at the trial, without objection, were erroneous.

The Court ruled:

“at the time of his trial, the erroneous instructions were

standard, Thus, appellant's counsel had every right to

assume that any objection to the instructions would have

been futile. To rule otherwise would be to suggest that

trial counsel should object to all jury instructions in

anticipation of changes in the constitutionality, of jury

instructions. Such # suggestion borders on the absurd.”

636 F.2d at 512. Of course, in the present case, petitioner's attorney

did not in fact anticipate the Mullaney decision. See also, Gardner v.

Florida, 430 U.C. 349, 361 (1977):

"Nor do we regard this omission by counsel [the failure to

request access to the full pre-sentence report) as an

effective waiver of the constitutional error in the record.

. . (T)here is no basis for presuming that the defendant

himself made a knowing and intelligent waiver, or that counsel

could possibly have made a tactica) decision not to examine

the full report.”

CONCLUSION

Like most federal habeas corjus actions since Stone v. Powell,

42B U.S. 465 (1976), the present case raises issues that involve the factual

integrity of the adjudication of guilt in the state court. Although

petitioner was concededly convicted at an unfair trial in which due process

violations substantially impaired the truth-finding process, the Court of

Appeals held that his conviction should be upheld simply because he did

not raise the issue on appeal, even though he did appeal and even though

he did raise the issue in the state courts as soon as this Court decided

Mullaney and held chat it applied to his trial. That decision is contrary

to the holding of Fay v. Noia, and is not supported by any federally

cognizable policy or any legitimate state interest.

For the foregoing reasons, petitioner respectfully requests that the

Court issue a writ of certiorari to review the judgment of the Fourth

Circuit.

Respectfully submitted,

School of Law

University of North Carolina

Chapel Hill, North CaroJina

Attorney for Petitioner

Barry Nakell

CERTIFICATE OF SERVICE

1 certify that I have served one copy of the foregoing Petition for

Writ of Certiorari and Motion for Leave to Proceed in Forma Purperis, by

mailing them, first class postage prepaid, addressed as follows:

Mr. Richard N, League ~

Assistant Attorney General

P.O, Box 629

Raleich, N.C. 27602 |, Loe?

Date:

te: May ay 1981 Barry Nakell

‘ttorney for Petitioner

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION ony

meats Peg

DANIEL ROSS, het sane:

Petitioner, ; No. 78-62-HC

)

vs. )

) ORDER

)

AMOS REED, etc., et al., ; O43

Respondents. )

This petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 is before the court for a ruling after having been stayed

pending the Fourth Circuit's decision in Cole v. Stevenson,

20 F.2d 1055 (4th Cir. 1980). After Cole the parties were ordered

to file written arguments applying the Cole opinion to this case.

The parties have so responded and the case is now ripe for decision.

Petitioner hoss was convicted of first-degree murder in 1968.

On direct appeal he excepted to certain aspects of the trial judge's

charge to the jury. In his Assignment No. 9, he contended that the

trial court should have charged the jury as to the law of involun-

tary manslaughter. In his Assignment No. 10, he contended that the

court did not properly define self-defense. (Record on Appeal to

N. C. Supreme Court, p. 57). He did not except to that portion of

the charge where the judge placed upon the defendant the burden to

rebut a presumption that an intentional killing is done unlawfully

and with malice. (Record on Appeal, p. 42.) Furthermore, the

trial judge departed from the then customary charge and instructed

the jury that the state had the burden to sat‘sfy the jury beyond a

reasonable doubt that the killing had not been in self-defense.

(Record on Appeal, p. 51.) In considering petitioner Ross’ appeal

of jury instruction errors, the North Carolina Supreme Court stated:

“The court charged fully and correctly on the burden and intensity

of the proof required to support each of the permisslble verdicts

of guilty; and that the failure of the state to carry the burden

required a verdict of not guilty.” State v. Ross, 275 N.C. 550,

5°4, 169 S.E.2d 675 (1969).

E xwiéer A

Ross contends that these assignments of error adequately raised

the Mullaney issues on his direct appeal to permit him to avoid the

procedural default bar announced in Cole. It is clear from the

record, however, that he did not clearly present the Mullaney issues

as required by the North Carolina Supreme Court Rule 19 (3). See,

e.g., State v. Jackson, 284 N.C. 383, 200 S.E.2d 596 (1973), motion

for reconsideration denied, 293 N.C. 260, 247 S.E. 2d 234 (1977).

The issue presented is whether the North Carolina Supreme Court, by

addressing Ross’ contentions in such a broad fashion, waived its

own rule and considered the Mullaney issue sua sponte.

The North Carolina Supreme Court has at times waived its rule

that asserted errors be clearly presented and has proceeded to the

merits of asserted errors in jury instructions where those errors

had not been clearly presented. E.g., State v. Freeman, 295 N.C.

210, 244 S.E.2d 680 (1978); State v. Rigsbee, 285 N.C. 708, 208

S.E.2d 670 (1974). Im such cases the Supreme Court's waiver is

explicitly acknowledged. In the present case the Supreme Court did

not explicitly waive its rule and cannot reasonably be said to have

actually considered the Mullaney issue despite the broad language of

the holding.

Accordingly, plaintiff's motion to file exhibits is granted,

defendant's motion to dismiss is granted, and this action is hereby

dismissed.

SO ORDERED.

/ ce Y/

UNITED STATES DISTRICT sugft .4

October YI, 1980. feeds: hb popes oun

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UNITED STATES COURT OF APPEALS

No. 80-8344

Daniel Ross,

Appellant,

Amos Reed, etc. and

Attorney General of the

State of North Carolina,

Appellees.

Appeal from the United States District Court for the Eastern Dis-

trict of North Carolina, at Raleigh. F. T. Dupvree, Jr., District

Judge.

Submitted: January 27, i981 Decided: April 1, 1981

Before HAYNSWORTH, Chief Judge; WINTER and ERVIN, Circuit Judges.

(Daniel Ross, Appellant Pro Se. Richard N. League, Assistant At-

torney General, for the Appellees.)

7

* te

PER CURIAM:

A review of the record and the district court's opinion

discloses that an appeal from its order refusing habeas corpus

relief pursuant to 28 U.S.C. § 2254 would be without merit. Be-

cause the dispositive issues recently have been decided authori-

tatively, we deny a certificate of probable cause to appeal,

dispense with oral argument, and dismiss the appeal on the rea-

soning of the district court. Ross v. Reed, C/A No. 78-62-HC

(E.D.N.C., Oct. 22, 1980).

DISMISSED.

~~

No. 105 PC ; TWENTY-SECOND DISTRICT

DAVIDSON COUNTY

SUPREME COURT OF NORTH CAROLINA

Fall Term 1978

Se a ee eee Oe a a er eee

STATE OF NORTH CAROLINA

ORDER AWARDING NEW TRIAL

UPON DEFENDANT'S PETITION

FOR FURTHER REVIEW

Vv

BILLY LEE HANCOCK

Defendant petitioned Davidson Superior Court for

post-conviction relief on the ground that at his trial for

second degree murder at the 17 March 1975 session of that

court the trial court unconstitutionally placed the burden

of proving the absence of malice in order to reduce his

crime to manslaughter, sand self-defense in order to excuse it

altogether upon the defencant. From a denial of this petition

Gefendant applied for a writ of certiorari to the Court of

Appeals which was likewise denied on 9 October 1978. He peti-

tions us for further review of that denial.

The issue of self-defense, was properly presented at

Gefencant's trial. The trial judge in his jury instructions

placed the burden of proving this defense upon the defendant.

Although cefencant dic not assign this as error in his appeal

to the Court of Appeals, which found no error in nis trial,

State v. nancock, 28 N.C. App. 149, 220 S.E. 2d 167 (17 Deceinber

1975), Gefencant did seek to appeal to this Court on the ground,

among otners, that the yury instructions in his trial violated

Mullancy v. Wilbur, 421 U.S. 684 (9 June 1975) as interpreted

foe Sot ether Ve Mieviherecen, PUN NLC. 692, 220 BN. 20 GIG CVT tarda

BUTS). Marv bang clertereia bined Lin Mevetbere piece Pte thie eed bereey nebo

was not retroactive, we allowed the state's motion to dismiss

Gefendant's appeal. In Hankerson v. North Carolina, 432 U.S.

233 (1977), the United States Supreme Court determined that we

had erred in Geclining to hold the Mullaney rule fully retro-

active.

E xH16 17 Cc,

-2-

Inasmuch, therefore, as defendant Gia seek to raise or.

direct appeal to this Court, and before the judgment against

him was final, the question of the constitutionality of the

trial judge's instruction placing the burden on defendant to

prove self-defense and the Court being of the opinion that in

light of Mullaney v. Wilbur, Supra, and Hankerson v. North

Carolina, supra, his appeal on that ground should have been

allowed and defendant awarded a new trial, the Court having

permitted the defendant Hankerson to raise the same question

for the first time in this Court, State v. Hankerson, Supra,

now, therefore, it is

ORDERED by the Court in conference that defendant's

petition for further review be allowed for the sole purpose of

further ordering that defendant be and he is hereby awardec a

new trial. See orders earlier entered in various cases at 293

N.C. 259-263 (1977).

This the 29th day of Wovember, 1978. ¥¢

a 7 ; rr i /

VW ; '

For the Court

The foregoing order is issued over my hand and the seal

of the Supreme Court this 30th cay of November, 1978.

_trbak Merge

John Rk. "Morgan

Clerk of the Supreme Court

of North Carolina

cc: seete Carolina Court of Appeals

Charles F. Lambeth, Jr., Attorney at Law

Ms. Kaye R. Webb, Associate Attorney

Mr. Hugh Shepherd, Clerk of Superior Court

Mr. H. W. Zimmerman, Jr., District Attorney

A TRUE COPY

JOHN R, MORGAN

CLERK OF THE SUPREME COURT

OF NORTH CAROLINA ;

OLPUTY CAA

0»