Petition — Williams v. King

Supreme Court brief1983

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In THE

SUPREME COURT OF THE UNITED STATES

October Term 1983

ROBERT WAYNE WILLIAMS,

Petitioner,

vs.

JOGN T. KING, Secretary,

Louisiana Department of Corrections, and

ROSS Cc. MAGGIO, JR., Warden,

Louisiana State Penitentiary, Angola,

Louisiana,

Respondents.

PETITION POR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE FIFTH CiRcuIt

SAMUEL S$. DALTON, Esq.

2001 Jefferson Highway -

Jefferson, Louisiana 70121

($04) 835-4289

ATTORNEY OF RECORD

It.

Itt.

Iv.

QUESTIONS PRESENTED

What is the standard of review of constitutional issues

raised in second and successive habeas corpus petitions

under Rule 9 of the Rules Governing Section 2254 Cases?

Can the defense of “abuse of the writ" properly be held

to bar consideration of the serits of constitutionai

ismues on a habeas corpus appeal without giving the peti-

tioner an opportunity to contest that defense on the

facts in the district court?

Is it an “abuse of the writ” for a death-sentenced inmate

to renew in a second habeas corpus petition a clais

of prosecutorial misconduct in closi argument which

is indistinguishable from claims susta ned by supervening

decisions of a court of appeals of another circuit?

Does the inconsistent practice of the Louisiana Supreme

Court in conducting proportionality review of ‘capital

sentences violate the eighth and fourteenth amendments?

- i —

—_

————— —

——

JULTiISGICtiION 2... cccccceccessecscsssesserossssesees® oo =

Constitutional Provisions Involved ....-eeeeecereeeeee 2

Statement of the CaSO ..---seeeccrreerrrerrrecrrereee® 3

A. Course of the Proceedings «..---++serrrrrerrrs 3

B. Statement of the Relevant Facts ...«-+«++++-. wes Lae

I. THE COURT SHOULD GRANT CERTIORARI

OF THE WRIT MAY PROPERLY BE INVOKED

TO BAR APPELLATE CONSIDERATION OF THE

DISTRICT COURT ...-ceeececeeeeres ae cseeu ae

III. THE COURT SHOULD GRANT CERTIORARI TO

SENTENCING HEARING ...-++++++5> eceses coe AZ

Iv. THE COURT SHOULD GRANT CERTIORARI TO

REQUIRES A CONSISTENT APPROACH TO

COMPARATIVE REVIEW OF DEATH SENTENCES... 15

CONCLUSION ...--ccercceecsreererssseseeeresesee® Seer a

~—

;

is —_-——-

iH TABLE OF AUTHORITIES

| cases

Adams v. Texas, 448 U.S. 38 (1989) ...---eeneenns 000s 66 2

|| Barclay v. Plorida, __ U.S. __» $1 U.S.L.W. 5206 (Jul.

j 6, 1983) “eeeeveneneveve “ee eevee enenwenenenee “eee eneve “*eeevenve ** 13

| Berger v. United States, 295 0.S. 78 (1938S) ...seees coce

Brooks v. Prancis, Mo. 83-8028 (llth Cir. 1963) wcccoss o<

| California v. Ramos, U.S. __, Sl U.S.L.W. 5220

| (July 6, 1983) wee eee ccnceerererccecrseeraceesese .

‘| Donnelly v. DeChristoforo, 416 0.8. 637 (1974) .--eeeees

| Gregg v. Georgia, 428 U.S. 153 (1976) ...ceeececccees eee

|| mance v. Zant, 696 F.2d 940 (11th Cir. 1983) ..---+++++s

Price v. Johnston, 334 U.S. (1968) ccccccccccvcccece se

Pulley Vv. Barris, $1 0.S.L.W. 3678 (Mar. 23, 1983) “eevee

Roberts v. Louisiana, 428 U.S. 325 [12976) cccsesesoroses

Sanders v. United States, 373 U.S. 1b wnunneenncnues bee

State v. Moore, 432 So.2d 209 (La. to) a ae

State v. Narcisse, 426 So.2¢ 118 (La. 1983) ..-+++eeeees

f State v. Sonnier. 402 So.24 650 (La. 1981) ...--seeeeens

| State ex rel. Williams v. Blackburn, 369 So.2d 1249

! { D cw ctiawe Ceee bers 6 ded esa 6466 6064622005 6452068 FEE

| State v. Williams, 383 So.24 369 (La. 1980) .......-- ee

Williams v. Blackburr, 649 F.2d 1019 (Sth Cir. 1961) cc

Williams v. Maggio, 679 F.2d 381 (5th Cir. 19861)

(Omit A) (em DANG) ... ccc wwe cece e were rene eeeeeneeeee

Williams v. Louisiana, $99 U.S. 1103 (1981) .~.--+-eeeeee

Woodson v. North Carolina, 428 U.S. 280 C1976) ~cecesses

Zant v. Stephens, ___- U.S. __, $1 U.S.L.W. 4891 (Jun.

20, 1983) ccc cccccccccccecccsesesccssessseseseseses

= $85 -

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1983

ROBERT WAYNE WILLIAMS,

Petitioner,

vs.

JOHN T. KING, Secretary,

Louisiana Department of Corrections, and

ROSS C. MAGGIO, JR., Warden,

Louisiana State Penitentiary, Angola,

Louisiana,

Respondents.

PETITION POR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE FIFTH CIRCUIT

Petitioner Robert Wayne Williams respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit in this

case.

CITATION TO OPINIONS BELOW

The opinions of the Court of Appeals, Williams v. ‘

NO. 83-3647 (Sth Cir. Oct. 23, 1983), and the District Court

for the Middle District of Louisiana, Williams v. King, No.

83-1120-B (M.D. La. Oct. 21, 1983), are not yet reported.

They are attached as Appendices A and 8B, respectively.

ee ee me

JURISDICTION

Jurisdiction of the Court is invoked under 28 0.8.C.

$1254(1). ‘The judgment of the United States Court of Appeals

was entered on October 23, 1983. Timely suggestions for

;

i rehearing and rehearing en banc were denied on November 29,

| 1983

CONSTITUTIONAL AND STATUTORY

| ___ PROVISIONS INVOLVED

| This case involves the Sixth Amendment to the Constitution

of the United States, which provides in relevant part that

in all criginal prosecutions, the accused

shall enjoy the right toa ... trial, by

an impartial jury ...;

the Eighth Amendment to the Constitution of the United States,

which provides that

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and

unusual punishment inflicted;

and the Fourteenth Amendment to the Constitution of the United

States, which provides in relevant part

{[Nlor shall any State deprive any person of

life, liberty, or property without due

of law; nor deny to any person within its

jurisdiction the equai protection of the laws;

A A A ———

the Louisiana rule of court governing the review of sentences

in capital cases, which provides

Every sentence of death shall be reviewsud by

this court to determine if it is excessive.

In determining whether the santence is ex-

cessive the court shall determine:

portionate to the penalty imposed

in similar cases, considering both

the crime and the defendant;

La. S.Ct. R. 905.9.1.

This case also involves Rule 9 of the Rules Governing

Section 2254 Cases.

STATEMENT OF THE CASE

A. Course of the Proceedings

On April 18, 1979, petitioner was convicted of capital

murder in the Nineteenth Judicial District Court for the

Parish of East Baton Rouge, Louisiana, and sentenced to death.

On direct appeal, the Louisiana Supreme Court affirmed both

the conviction and sentence, State v. Williams, 383 So.2d 369

(La. 1980), and this Court deniéd review. Williams v. Louisiana,

449 U.S. 1103, reh. denied, 450 U.S. 971 (1981).

On March 20, 1981, petitioner filed an Application for

Post-Conviction Relief in the state trial court. Without

conducting an evidentiary hearing, the court dismissed his

application in an unpublished order on March 24, 1981. Two

days later, with two justices acknowledging that his claias

were substantial and one other concluding that his case

involved constitutional error, the Louisiana Supreme Court

affirmed. State ex rel. Wiliiams v. Blackburn, 396 So.24 1249

(1981).

The next day, petitioner filed a petition for a writ of

habeas corpus in the United States District Court for the

Middle District of Louisiana. On the same day, without

conducting an evidentiary hearing. in an unreported order and

judgment, the district judge denied his petition. A panel of

the United States Court of Appeals for the Fifth Circuit

agreed, Williams v. Blackburn, 649 F.2d 1019 {Sth Cir. 1981).

By a divided vote, the en banc court affirmed, Williams v.

Blackburn, 679 F.2d 381 (Sth Cir. 1982)(en banc), and this

Court denied certicrari. Williams v. Blackburn, _ U.S.

(June 27, 1983), reh. denied, __ U.S. ___ (Sept. 8, 1983}.

At that point, the state trial judge ordered petitioner's

——_—=—-

SS elite

—— en ee eee coe

—

execution to take place in the early morning hours of October

25, 1983.

Because o! significant changes in the relevant law since

filing his first habeas petition, petitioner returned to the

state trial court to file a new Application on October 4,

1963. It was denied summarily on the same day. The Louisiana

Supreme Court affirmed on October 18, 1983, and refused to

stay the impending execution.

Petitioner then filed a second habeas corpus petition in

the federal district court. On October 21, 1983, the district

judge entered an order dismissing the petition, denying a

certificate of probable cause, and refusing to stay the

execution. Williams v. King, Wo. 83-1120-B (M.D. La. Oct. 21,

1983) (Appendix A).

On appeal, with less than two days remaining befcre

petitioner's scheduled execution, the Fifth Circuit granted a

certificate of probable cause and affirmed the district court

judgment, but stayed the execution pending certiorari in this

Court. Williams v. Maggio, No. 83-3647 (Sth Cir. Oct. 23,

1983) (Appendix B). Petitioner filed timely suggestions for

rehearing and rehearing en banc. While these were still

pending, the state moved this Court to vacate the circuit

court’s stay. The Court granted the state's application,

over three dissents. Maggio v. Williams, No. A-301 (U.S. Nov.

7, 1983)(Appendix C). The state immediately obtained an order

setting petitioner's execution for December 14, 1983.

~~ am

;

The Fifth Circuit denied rehearing and rehearing en banc

on November 29, 1983, without opiaion.

B. Statement of the Rel t s

Robert Wayne Williams was tried by @ jury for the murder

of Willie Kelly. DOuring the selection of the jury, three

prospective jurors were excluded by the trial court apparently

because they expressed an unwillingness or an inability to

consider death as a possible sentence. Whether or not these

prospective jurors unequivocally stated their opposition to

the death penalty is a matter of dispute.

At the conclusion of the guilt-innocence ¢nase of Mr.

Williams's trial, the judge, pursuant to La. Code of Cris.

Proc. 809, instructed the jury on the two responsive verdicts

to first degree surder. These verdicts consisted of the

lesser included offenses of second degree murder and man-

slaughter. Significantly, the triel record does not reveal

sufficient evidence to support a finding of manslaughter in

this case.

At the final and most critical stage of the sentencing

phase of Mr. Wiiliams's trial, the prosecutor sade extensive

and seemingly deliberate use of inflammatory, misleading, and

prejudicial statements. These statements occurred throughout

the prosecutor's closing and rebuttal arguments.

The rrial record reveals that the prosecutor made re-

peated statements concerning the nature of state and federal

appellate review procedures in capital cases. At one point,

he assured the jury that they did not have the “last word” on

seatencing. See Appendix D. At another point, he stated that

the Louisiana Supreme Court was obligated to undertake a

“total and complete investigation® of the case that would

entail a review of “everything” that occurred at trial. Id.

Once this investigation was complete, he said that *(t)he

Justices on the Supreme court will review and determine ...

whether or not you [the jury] were correct or not.” Id.

The trial record also reveals that the prosecution made

inflammatory statements regarding the nationwide problem of

violent crime. Por example, after an irrelevant account of

his own small-town upbringing in rural Louisiana, the prosecu-

tor stated:

[Baton Rouge is) not the same place. Cer-

tainly not here. And we've become accustomed

to think that if you go out on the street and

walk by yourself at night, it's almost assuming

risk in these days and times, that you are going

to come to some harm, that you are going to be

mugged, robbed, something going to happen to you.

But, we at least think that we can still go to the

grocery store and shop for food without winding up

in the hospital as two people did with shot gun

wounds, or a third person in the hospital with

having been beat over the heed.

Id. Because of the general problem of urban crime, he ex-

torted the jury to put respondent to death.

[slomebody's got to put their foot down and say

we're not going to go any further. If you do this,

you're not going to come cut, we're not going to

show you mercy, we're not going to reduce anything.

Id. Moreover, he implied that, despite the fact that it had

already found the respondent guilty, the jury, as representatives

of the community, had a duty to impose the death sentence on

respondent rather than let him “get away with it.*

You're the people that set the standards

in this community. And I say this, and

this is a crime that if you will, outraged

this community. It shocked it. And the

results of this verdict will go outside

of this Court room. And you represent

what the standards in Baton Rougé is going

to be amongst the law abidiny people. Are

we going to set the standard or is Robert

Williams going to set the standard?

The trial record further reveals several instances in

which the prosecutor improperly injected his personal opinion

into the sentencing proceedings. In one instance, he described

photographs of the victia's body that were not admitted in

evidence and offered his own opinion -- based on “every (capital

case] in eight years that I've tried,” id. -- on whether

this crime was sufficiently atrocious, heinous or senseless

to warrant the death penlaty. Id. Compare State v. Sonnier,

402 So.24 650, 658 (La. 1981)( jury consideration of such

factors must be limited to whether “there was torture or

the pitiless infliction of unnecessary pain on the victia®).

In another instance, the prosecutor asserted his personal

knowledge of and experience with the death penalty in an

attempt to convince the jury to impose death. Id. (*I think

this case deserves it*). In still another instance, he opined

generally om the subject of aggravating circumstances, effec-

tively distorting the statutory meaning. Id.

At the conclusion of these final remarks, Mr. Williams

was sentenced to death. On appeal, after a comparison of

the circumstances of his case to other first degree surder

cases in the same judicial district, Mr. Williams's sentence

was affirmed.

REASONS FOR GRANTING THE WRIT

THE COURT SHOULD GRANT CERTIORARI TO CLARIFY THE

STANDARD OF REVIEW OF SECOND AND SUCCESSIVE HABEAS

PETITIONS UNDER SECTION 2254 AND RULE 9 OF THE

RULES GOVERNING SECTION 2254 CASES.

In this habeas proceeding, petitioner raises substantial

constitutional questions concerning the legality of his con-

viction and death sentence. He challenges the random and

arbitrary shifts in the Louisiana Supreme Court's approach to

proportionality review -- from district-wide review in some

cases to state-wide review in others. Compare State v. Williams,

383 So.24 369 (1980) with State v. Moore, 432 So.2d 209, 226-

27 (La. 1983); State v. Narcisse, 426 So.2d 118, 138-39 (La.

1983). He challenges the prosecutor's jury argument at the

close of the sentencing phase -- especially the prosecutor's

blatant arguments about the ability of appellate courts to

“correct” any mistakes, the public's general need for a blow

against crime, and the prosecutor's own impressions of the

reliability of the evidence (see Appendix D) -- as plainly

improper and fundamentally unfair. The question presented

is whether these claims should be foreclosed or jaundiced

on the merits because petitioner had raised others like thes

in an earlier federal habeas corpus petition.

In the earlier habeas case, petitioner had questioned

the adequacy of Louisiana's proportionality review of death

sentences, which appeared to be limited (as it plainly was

on petitioner's own appeal) to district-wide, rather than

state-wide comparative review. That claim was rejected.

See Williams v. Maggio, 679 P.24 381, 395 (Sth Cir. 1982)(en

banc), cert. denied, __ ‘U.S. ___, 103 S.Ct. 3$53 (1983).

Subsequently, howcover, the Louisiana Supreme Court handed

down opinions demonstrating 4 complete disregard for consistency

in its approach to proportionality review, by choosing 4

different scope of comparison from case to case. See State

v. Moore, 432 So.2d at 226-27; State v. Narcisse, 426 So.2d

at 138-39. In addition, this Court agreed to give plenary

consideration to the general question of proportionality

review in Pulley v. Barris, 51 U.S.L.W. 3678 (Mar. 22, 1983).

It was on the basis of. these changes in the legal landscape

that petitioner again challenged the conduct of proportionality

review by the Louisiana Supreme Court.

Similarly, mention was made of the prosecutor's closing

argument in petitioner's first federal habeas proceeding.

There, however, it was only in the context of @ claim of

ineffective assistance of defense counsel in failing to object

to the prosecutor's prejudicial remarks. Petitioner's present

Claim going to the substance of the remarks themselves turns

on supervening decisions of the Eleventh Circuit condemning

prosecutors where, as here, they use improper argument to

deflect a capital sentencing jury from its grave responsibility

for making a focused and dispassionate determination of the

defendant's fate. See especially Brooks v. Francis, Wo.

83-8028, slip op. at 12 (llth Cir. Sept. 15, 1983); Hance

v. Zant, 696 F.24 940, 950 (llth Cir. 1983). Again, it was

because of changes in the applicable law that petitioner

raised this clais.

Although the district court below made no finding pursuant

to Rule 9 that the raising of these issues was an abuse of

the writ, a majority of this Court, in an opinion vacating

the Fifth Circuit's stay, treated petitioner's issues summarily.

Justice Stevens described such treatment as the product

of the “strict standard of review" justifiably accorded second

federal habeas corpus applications. Maggio v. Williams,

slip op. at 4 (Stevens, J., concurring). Justice Stevens

explicitly and the Williams sajority apparently find issues

raised by a petitioner on a second federal habeas petition

to be thereby deserving of diminished consideration. Other

views expressed in this case and elsewhere suggest that the

Court is not resolved on the question. See Maggio v. Williams,

slip op. at 6 .. 5 and 9s. 7 (Brennan and Marshall, JJ., ;

dissenting); Autry v. Estelie, No. A-242, slip op. at 2 (U.S.

Oct. ll, 1983). Certainly, no opinion of the Court has yet

‘

| explained why, if a constitutional issue is raisable at all on

' a@ second or successor habeas petition governed by Rule 9, it

is subject to a different standard of consideration on the i

|| @erits, or what that different standard is.

It is true that the Court has recognized that habeas

Corpus petitions are subject to certain rules designed to

avoid wasteful and oppressive relitigation of issues already

Gecided or issues inexcusably withheld in earlier litigation.

“Nothing in the tradition of habeas corpus requires the

federal courts to tolerate needless piecemeal litigation, or

to entertain collateral proceedings whose only purpose is to

vex, harass, or delay.” Sanders v. United States, 373 U.S. l,

8 (1963). The rules developed by the Court, however, have

been carefully distinguished from traditional res judicata

proscriptions, and have been narrowly bounded. Those

described in Sanders and later codified by Congress in 28

U.$.C. §2244(b) and Rule 9(b) are intended only to avoid bad

faith or harassing relitigation of issues identical to claias

raised in previous petitions by the same petitioner, see 373

| U.S. at 12, 17, and of issues vexatiously withheld earlier,

see 373 U.S. at 17-18. Indeed, when the proponents of the

newest codification attempted to introduce a stricter

standard, Congress reacted swifly both by rejecting any

Standard “that gave a judge too broad a discretion to dismiss

a-second or successive petition” and by insisting that the

| No. 1471, 94th Cong., 24 Sess. $06 (1976), citing Sanders v.

hited States as indicative of “existing law.*

In light of this authority, the Court's November 7

codification be in “conformity with existing law," H.R.Rep.

| opinions in the present case send confusing signals to the

;

- 10 -

lower courts and litigants alike about the seriousness with

which successive habeas petitions will be taken. Certiorari

should be granted to clarify the subject, after plenary

consideration, of the appropriate standard of judicial review

of such petitions.

Il.

THE COURT SHOULD GRANT CERTIORARI TO DETERMINE

WHETHER THE DEFENSE OF ABUSE OF THE WRIT MAY

PROPERLY BE INVOKED TO BAR APPELLATE CONSIDE-

RATION OF THE MERITS OF A HABEAS PETITIONER'S

CONSTITUTIONAL CLAIMS, WHERE NO OPPORTUNITY

HAS BEEN APPORDED THE PETITIONER TO MAKE A

RECORD ON THAT ISSUE IN THE DISTRICT COURT.

Both section 2244 and Rule 9 contemplate that abuse of

the writ may be raised as a defense to successive petitions.

In Sanders, the Court said that

The burden is on the Government to plead

abuse of the writ ... “with clarity and

particularlity in its return to the order

to show cause.”

Id. at 17 (citing Price v. Johnston, 334 U.S. at 291-92). When

this charge is raised by a respondent, the petitioner has a

right to an appropriate hearing in district court to show why

the state's charges do not constitute an abuse. Price v.

Johnston, 334 U.S. at 292. The procedure provided by Rule

9 for resolving abuse-of-the-writ questions

conforms with Johnson v. Copinger,

420 F.2a 395 {,399) (4th Cir. $565),

where the court stated:

[T]he petitioner is obligated

to present facts demonstrating

that his earlier failure to raise

his claims is excusable and does

not amount to an abuse of the

writ. However, it is inherent

in this obligation placed upon

the petitioner that he must be

given an opportunity to make

his explanation, if he has one.

If he is not afforded such an

opportunity, the requirement

that he satisfy the court tnat

he has not abused tie writ is

meaningless. Nor do we think

that a procedure which allows

the imposition of a forfeiture

for abuse of the writ, without

o 23

eee owe

allowing the petitioner an

opportunity to be heard on the

issue, comports with the sinisus

requirements of fairness.

Advisory Committee Note to Rule 9.

Petitioner has been given no such opportunity. So hear-

ing has been held and no findings have been made by the district

court on the issue of abuse of the writ. Nevertheless, &

majority of this Court, responding to a reference to abuse

in the state's motion to vacate petitioner's stay, apparentiy

concluded that the writ had been abused. See Maggio v. Williams,

slip op. at 4. See also id. at 4 (Stevens, J., concurring).

Such a conclusion disregards the procedures envisioned by

Rule 9 and Sanders. Certiorari should be granted to determine

whether this record provides an adequate foundation to support

a finding of abuse.

e 123 <

A A A A

Itt.

THE COURT SHOULD GRANT CERTIORARI TO

DETERMINE THE PEKMISSIBLE SCOPE OF

PROSECUTORIAL ARGUMENT IN A CAPITAL

SENTENCING HEARING.

At petitioner's sentencing hearing, the prosecutor made

extensive and deliberate inflammatory, misleading and prejudicial

statements. As outlined above, he dwelled at length upon the

nature of state and federal review procedures. He exhorted the

jury to condemn petitioner as a general statement against the

problem of crime. He offered his own opinion on the reliability

of the facts, inadmissible as well as admitted. Collectively and

alone, these statements were calculated to undermine the jury

process, and violated petitioner's right to a properly informed

sentencing judgment under the eighth and fourteenth amendments.

First the prosecutor's statements purporting to describe the

appellate review process were simply inaccurate. Contrary to the

impression the prosecutor sought to convey, state appellate

review does not require a comprehensive investigation or eva-

luation of trial proceedings, nor is it undertaken to “approve” a

sentencing determination. Rather, it is undertaken in order to

consider whether a narrow range of procedural and substantive

errors were committed et trial, and is discretionary beyond the

state's high court. Moreover, these inaccuracies are likely to

have compromised the jury's unique sentencing function. See

Berger v. United States, 295 U.S. 78, 88-89 (1935) (recognizing

the jury's tendency often to defer to the presumed expertise of a

prosecutor and to accept his statements as authoritative).

- ime

Indeed, only last Term, the Court observed that "(wie expect that

sentencers will exercise the.r discretion in their own way and to

the best of their ability." Sarclay v. Plorida, u.s. ,

$1 U.S.L.W. $206, 5209 (July 6, 1983). But juries cannot be

expected to exercise that discretion properly and perform their

critical role "to the best of their ability” when they are told

that their decision does not matter. As the Court has noted:

advising jurors that a death verdict 4S «o>

not *final* may incline them to approach

their sentencing decision with less appreciation

for the gravity of their choice and for the

moral responsibility reposed in them as

sentencers.

California v. Ramos, 0.s. , Sl U.S.L.W. $220, $226 (July

6, 1983). By depreciating the gravity of the jury's roles, such

advice destroys the special “need for reliability in the deter-

mination that death is the appropriate punisment in a specific

case.* Zant v. Stephens, ‘U.S. , $1 0.S.L.W. 4891, 4897

(June 28, 1983) (quoting Woodson v. North Carolina, 428 U.S. 280,

305 (1376)). Sere, the prosecutor's obvious purpose was no less

than to relieve the jury of its awesome sentencing responsibility

Cf. Maggio v. Williams, slip op. at 3 (Stevens, J., concurring).

Second, the prosecutor's remarks regarding the general

crime problem during the sentencing phase were plainly intended

“o stir moral outrage in the jury and distract them from the

“individualized determination on the basis of the character of

the individual and the circumstances of the crime." Zant v.

Stephens 51 U.S.L.W. at 4895 (emphasis in original). Although

these comments clearly encouraged the jury to focus on matters

well beyond the individual under consideration, the district

court held that these remarks were not “fundamentally unfair.*

Widliams v. King, No. 83-1120B, slip op. at ll. On identical

= 13 <-

ee age eee

facts, however, the Eleventh Circuit recently held that such

conduct is “fundamentally unfair® at s capita! sentencing hearing

and therefore constitutionally impermissible. Brooks v. Francis,

No. 83-8028, slip op. at 12 (llth Cir. Sept. 15, 1983); Bance v.

Zant, 696 F.2d 940, 950 (llth Cir. 1983). The Eleventh Circuit

found that such remarks injected undue prejudice, personal

opinion and passion into the sentencing process. It found that

such statements would seriously jeopardize the impartiality of

the jury and the integrity of the sentence. By contrast, the

Pifth Circuit implicitly holds that such statements do not

undermine the process, and that a prosecutor's normally broad

latitude in closing argument is no less so at a capital

sentencing hearing. Williams v. Maggio, No. 83-3647, slip op. at

8 (Sth Cir. Oct. 23, 1983).

In vacating the Fifth Circuit stay, the majority stated that

petitioner challenged the prosecutor's argument, “either directly

or indirectly, in his first habeas proceeding.” Maggio v.

Williams, slip op. at 4. In his concurrence, Justice Stevens

ted that the “essence of this issue was raised in prior

proceedings.“ Id. at 3 (concurring opinion). Petitioner has

consistently maintained that his earlier “challenge” was merely a

reference in the context of a claim of ineffective assistance of

counsel. Even assuming the present claim is the same, however,

intervening decisions justify the renewal of this claim under

Rule 9(b). Since the first petition, this Court has thrice

spoken on the special importance of the integrity of the jury's

role in capital sentencing. See Barclay v. Plorida, 51 U.S.L.W.

at $209; California v. Ramos, $1 U.S.L.W. at 5226; Zant v.

Stephens, $1 U.S.L.W. at 4897. In addition, on virtually

identical facts, the Eleventh Circuit has reached an opposite

conclusion than the Fifth on what the Constitution requires. See

Brooks v. Prancis, slip op. at 12; Bance v. Zant, 696 F.2d at

950. Thus, although both the Fifth and Eleventh Circuits believe

they were applying the standard established in Donnelly

v. DeChristoforo, 416 U.S. 637 (1974), the same circumstances

lead to different cutcomes.

Because of significant intervening changes in the applicable

law, the claim was appropriately renewed in a successive peti-

tion. See Rule 9(b). Because the question is of extreme impor-

tance in the sentencing phase of a capital trial, the Court

should grant plenary consideration.

Iv.

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE CONSTITUTION RE-

QUIRES A CONSISTENT APPROACH TO COM-

PARATIVE APPELLATE REVIEW OF DEATH

SENTENCES .

In a previous federal habeas corpus proceeding, petitioner

challenged the constitutionality of Louisiana's practice of

conducting only district-wide proportionality review.

In that proceeding, the Fifth Circuit upheld the Louisiana

practice on the ground that the Court had never implied that

state-wide review is constitutionally required. Williams v.

Maggio, 679 F.2d 381, 395 (Sth Cir. 1982) (Umit A) (en banc),

cert. denied, U.S. , No. 32-5868 (Sept. 8, 1983). The

Louisiana court concluded that district-wide review “provides

adequate safeguards against freakish imposition of capital

punishment,” id., thus leaving states, in a circuit where a great

many capital prosecutions occur and death sentences result, free

to undertake proportionality review at their own instance and

within any geographical area whatsoever.

« 1§ -

o _—_—=

ee ES oe

Since the Pifth Circuit en banc decision, however, the

problem has changed in nature. The Louisiana Supreme Court has

twice accorded capital defendants some form of sore extensive,

state-wide review. State v. Moore, 432 So.2d4 209, 226-27 (La.

1983) (random comparison of first-degree surder cases state-

wide); State v. Narcisse, 426 So.2d 118, 138-39 (La. 1983)

(comparison of first-degree murder cases in two districts). The

court has offered no explanation for why these cases were treated

differently nor enunciated any standard to guide other cases.

That court's willingness to shift from one approach to another

without explanation net only highlights the absence of any

principled procedures in Louisiana for conducting proportionality

review, cf. Gregg v. Georgia, 428 U.S. 153, 204-06 (1976), but

also creates substantia] arbitrariness and disproportionality as

between Louisiana capital defendants. Such practices fail to

provide for the consistency and reliability that is so essential

to the fair and evenhanded administration of a state capital

sentencing statute. Id. at 222-23 (White, J., concurriag).

The Pifth Circuit rejected petitioner's claim in part

because, “{j]ust as a venire chosen from a cross-section of the

Community in which the crime is committed is an adequate

constitutional safeguard against arbitrary imposition of verdicts

and sentences, so a review of the murder conviction imposed

within that venire community is sufficient to insure against

arbitrary imposition of the death penalty,” Williams v. Maggio,

slip op. at 7 (quoting Williams v. Maggio, 697 F.2d at 395).

What this overlooks, of course, is the fact that the jury so

chosen may have reached an aberrant result or that different

communities may approach capital sentencing differently.

Consistent, state-wide proportionality review ensures the fair

administration of a capital sentencing statute through 2

moderating and evening effect in sentences; it is a critical

safeguard that corrects the arbitrary action of an aberrant jury

or the capricious decisions of a particular community towards

specific crimes or individuals.

Since Louisiana's unexplained and arbitrary practice cannot

assure that proportionate sentences will be meted out across the

state, this Court should consider on certiorari whether Louisiana

procedure for comparative review of death sentences comports with

the eighth and fourteenth quantesats.”

SION

The Court should grant petitioner a writ of certiorari.

Respectfully subsitted,

SAMUEL S. ° e

2001 Jefferson Highway

Jefferson, Louisiana 79121

(504) 835-4289

Counsel for Petitioner

Dated: December 3, 1983

*/ The Court has agreed to consider questions closely analogous

to those raised by petitioner namely

1. Does the Constitution, in addition to procedures

whereby trial court and jury impose death sentences,

require any specific form of “proportionality review”

by [a] court of statewide jurisdiction prior to

execution of state death judgment?

2. If so, what is [the] constitutionally required focus,

scope, and procedural structure of such review?

Pulley v. Harris, $1 U.S.L.W. 3678. See caste v. oe 692

F.2d eh) (9th Cir. i982), cert. granted, °S L.£d. 7 (1983),

= 1? -

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

ROBERT WAYNE WILLIAMS

CIVIL ACTION

NO, 83-1120-8

versus

JOHN T, KING, ET AL

JUDGMENT

_ For the written reasons assigned,

IT IS ORDERED AND ADJUDGED that the motion of Robert

Wayne Williams for a stay of execution Be-ang it is hereby

DENTED.

IT IS FURTHER ORDERED AND ADJUDGED- that petitioner's

application for e writ of habeas corpus be and it is hereby

penteD. © rp .

IF is FURTHER ORDERED AND ADJUDGED that the motion

- of Robert Wayne williams for a certificate of probable cause

be and it is hereby DENIED.

IT 1S FURTHER ORDERED AND ADJUDGED that the motion of.

Robert Wayne usTT fans vor a stay pending appeal be and tt ts

hereby DENIED. ; + . “

Baton Rouge, sectatens. October 21, 1983.

S “Ge,

UNITED STATES DISTRICT COURT -. @,

fy-é 9

MIDDLE DISTRICT oF Loutsiama “Loe

ROBERT WAYNE WILLIAMS -. . CIVIL ACTION

vERSUS* “A .- UMBEK 83-1120-8

* JOHN T. KING, SECRETARY OF THE .

DEPARTMENT OF CORRECTIONS,

STATE OF LOUISIANA, AND

ROSS MAGGIO, WARDEN, STATE “

PENT , . LOUISIANA

: ad ’ ee J ‘-! .

ot ee ye. <A . =

we . > **Ma ee * -

; ; “hue eee

‘4 ’ : 7 we *

~ FRANK J, POLOZOLA, District Judge:

eo Bia _ Robert, Wayne wifliene has. filed an application for stay -~°

: 2. = ~ a ®

: of hi's eracetion which | is scheduled “for October 25, 1983,

+o ~ - .

Eee an applicatioa for a writ of habeas corpus. For reasons

a ws aoe

a =: which follow, the Court hereby denies petitioner's application

Lee - hens a stay b of mah execution and further denies petitioner's

ere ' application for a writ “of habeas corpus. The Court also

oes finds that petitioner’ ‘ application is frivolous and without

ay x merit, and, therefore, ‘refuses to issue a certificate of

Se ‘probable cause. =

eee I. PROCEDURAL HISTORY OF THE CASE

ew, This is the second time Robert Wayne Williams has filed

an application for a stay of execution and

habeas corpus with this Court The procedural history of

this case is for the most pert set forth in the prior opinions

rertered by this Court and by the Fifth Circuit Court of

Appeals. _.. F.Supp. (M.D.La.

1981), aff. Williams v. Blackburn, 649 F.2d 1019 (Sth Cir.

Williams v. Blackburn,

1981), affirmed, rehearing en banc, Williams v. Maggio, 679

P. 24 381 (Sth Cir. 1982). Thereafter, the United States

Supreme Court de ied petitioner's application for a writ of

cértiorari. Williams v. Maggio, __ U.S. , 103 $.Ct. 3553,

77 L.Ed.24 __— (1983). Oa July 14, 1983, Justice Brennan

stayed the effect of the denial of cartiorert. On September

8, 1983, the United States Supreme Court denied petitioner's

application for a

~~,

application for a writ = cortiorart. williams v. Maggio; =..."

“U.s. *__» 103 $.Ct.. T7 b.ké. >">:

in , 33 Crt 4163 (1983).

District Court for the Parish of East Baton Rouge issued :

Warrant of Execution of Person Condemned on September 20,

: 1983, Diane taal petitioner be executed on October 25,

1983, between the hours of 12:00 °' ‘clock midnight and 3:90

a.m. Petitioner then filed an application. for a writ of

habeas corpus with the Nineteenth ) Judicial District Court

raising the very same issues he now urges in the federal

application for writ of

rehearing of the Court's denial of petitioner” Sag =

of >

2 =

a= © ©

habeas corpus now pending before this Court. On October 4,

1983, Judge Frank Foil denied petitioner's state court ap-

plication for writ of habeas corpus. On October 14, 1983,

petitioner filed an application for a writ of habeas corpus

3 te with the Louisiana Supreme Court together with a request for

“+

@ stay of execution. The Louisiana Supreme Court unanimously

denied petitioner's application for a stay of execution and

also rer denied petitioner's application for a writ

si -y, of habeas corpus. _ Petitioner then filed the pending application

- and

: sues 2. weit of habeas corpus with the United States District

o~ es ek Il. ISSUES RAISED BY PETITIONER

- ° aA; = ao ws ;

= Petitioner, x raises four. grounds for review in this

%e *. a = latest application ‘foe a stay ‘of execution and writ of |

s 2a ?; «..*% %

rhebese Carpes _ Petitioner contends that his federally protected

ae » Fas

~¥ rs » Fights were violated in the following manner:

BS “a The Louisiana Proportionality Review in

—-- ‘\@ *» deat penalty cases does not meet consti-

PR, tutional standards, and the review made

by the Louisiana Supreme Court is in-

~_ Ss. & «consistent and disproportionate under the ee

, 3° o facts and circumstances of petitioner's ~

case.

@. The death sentence was imposed as a result

. of the prosecutor's improper closing

“= argument during the sentencing phase of

{ the trial.

Ss © © )

(3) Petitioner's death sentence was ae

because the jury was instructed on al

responsive verdicts to first degree surder

even though there was no evidentiary sup-

port for a manslaughter verdict.

(4) Petitioner was deprived of an impartial

jury composed of a fair cross section of

the community insofar as the guilt or in- |

aoene ee of the trial because of the |

manner jurors were selected and impanelled.

III. STANDARD OF REVIEW IN A HABEAS CORPUS ACTION

As is previously set forth in this opinion, this is the

second application for a writ of habeas corpus filed with

this Court. Some thirteen issues were raised in petitioner's

first application. An additional four issues are raised in

= the current application. Without deciding the issue of

| whether petitioner is guilty of “abuse of the writ” insofar

as t_»: filing of successive applications for a writ of

: in rE abuse of the writ.* * * * Rule

9(b) of the Rules Governing §2254 Cases states

that ‘a second or successive petition be

dismissed if che — finds that it fails to

allege new or dif — for relief. .

{or ] the failure of the petitioner to assert

"Gg, habeas corpus is concerned, the Court shall follow the = - Ae

re See 3 "

“~ "ss" SG = guidelines set forth by the United States Supreme Court in . rie

“i Barefoot v, Estelle, _~ U.S. __, 103 8.ct. 3383, 77 L.€4.28 "S255

, 2 983) in resolving the issues raised in this latest . *

= is. application. In Barefoot, the Court stated: oe

"Second and successive federal habeas corvus . Ke

pie 54,75 petitions present a different issue. ‘To » tei

« er the extent that these involve the danger that Fe a

Su Piers _ @ condemned inmate might attempt to use repeat~- . on

ed petitions arzd eals as a mere delaying e

tactic, the State a quite legitimate interest Pe

. et

those grounds in a prior petition constituted

an abuse of the writ.’ * * * Even where it can-

not be concluded that a petition should be dis-

missed under Rule 9(b), it would be proper for

the district court to expedite consideration of

the petition. The —s of a stay should

reflect the presence of omegrtes grounds 3.

which relief might be grented.” _ 103 s. Cc. 33

It is clear that “direct ‘appeal is the prieary avenue for

review of a conviction or sentence, and death penalty cases

are 20 exception.” Id. ,103 S. Cr. at 339%. Barefoot emphasizes

that when « petitioner under. ‘teminent | threat of execution

a eal ° age

has alleged « substantial “denialiof 0.1 a. ‘federal. Fight, he must

. am _ ~~ €~ 2

be “afforded an aéeqeate opportunity to Present | the merits of

= ~ ot stay

bis argusent, and he must redety: ‘. considered ‘decision on

tk ‘Tist CGE a Ui temaiee who have

va 6 seFS, Pa we As ‘ :

‘been sentenced to death and are currently hoysed on Death

Row at the Louisiana ser "Penk tentiary | at ‘Angola has been

‘ obtatned by the- Court “and has been ‘filed in the record,

together with the ettation of each of ‘the 25 cases for which

i otge — t=. ”

- there is a reported decision by. the: Loufsiana Supreme Court.

The Court has also required the ‘State ‘of Louisiana to file a

response to petitioner’ $ application which has also been

considered by the Court. The Court has had adequate time

and means for rendition of a considered judgment on the

‘*

' ABE: oe wee t

“petitioner's s "allegations 1 aes artis otek ‘court. record bas io

“, Coben filed with this

;

merits prior to the scheduled execution date. Id., 193

S.Ct. at 3394. It is clear that whether a stay is granted

depends “on the probability of success on the merits, " Id.,

103 $.Cc. at 3392 and stays of execution are not automatic

pending the filing and consideration of |. an appeal to the

appellate court or @ petition bon 7 Et of conttanent to

the Supreme Court. "When the 7 sey of direct review - which,

if a federal question is iuvolved, includes the right to

pétition [the Peprenes | Court for. rn weit of ee apean - comes

to. an end, a presumption of. ‘finality and ‘Legality attaches to

the conviction and sentence. ; The, role of, federal habeas

proceedings, while important is assuring that constitutional

> rights are observed, is secondary and limited. " Id. 103 $.Ce.

— ss

cy eat 3391. ; Petitioner’ & case has twice been reviewed by the

ee a

be “Daited States Suprene Courts vith the latest. teview having

Seeoursdd ‘on “September s, 1983. “Thus the Court shall review

the merits of each of petitioner’ 74 ecntaaticas’

: IV. PETITIONER'S CONTENTIONS rS =

‘A. Proportionality Review of Death Sentence

Petitioner first contends t that the proportionality review

_ of his “death sentence has been c conducted in an arbitrary and

> © apeialoen manner in violation of the Eighth and Fourteenth

Amendments to the United States Constitution. Fore specifically,

petitioner contends the Louisiana Supreme Court conducted

the proportionality review in his case on a district wide

basis, State v. Williams, supr4, 383 So.2d at 374-375, while

in two other cases, State v. Narcisse, 426 So.2¢ 118 (La.

1983) and State v. Moore, 432 So.2d 209 (La. 1983),

is Louisiana Supreme Court conducted proportionality reviews on

a ste wide basis. Petitioner contends . thet the issue of

the nature and scope of proportionality review is presently

+ before the United States ne Court. _ See Pulley v.

>! Harris, 692 F.2d 1189 (9th. b Cir, 1982), cert. rented, 103 $.Ct.

> ae eta

Fa rages, 2 F “Us. 3 “S ea9e3} as 4é* Retsile. 72° U.S-__

~ ‘astry "ve Estelle.’ ——

- =

- (1383). Thus, “petitioner” “argues that « ‘stay of execution

be caited. pending a decision, we “the ‘United Stetes Supreme

3 ; Court in che Pulley eae slee, seeks te to have

os oo pew sentenging hearing 6 vais seeks ‘to have che . hae

r : *Sonirt review Petitioner D exe sent erate ‘¢ ‘state wide tas

= : basis. ~ The Court does ‘pot b e patievs the Court * is required to

. | stay a proceedings bce F pending & a decteton by the United

. Seeeee Supreme Court in che Pulley | case. On Gctober 11,

1983, the United States Supreae Court dented petitions for

_writs of gertiorart in eigen Louisiana which raised

the proportionality issue. it sey Vv _ Loutstana, 428 So.2d

420 (La. 1982), writ denied, : "0; s. — o. $s. $.Ce.

Docket No. 82- 6973); Janes Vv. / Loutsiana, 431 So. 2d 399 (La.

1983), writ denied, ___ U.S. =. $. S. Ct. Docket No. 83-

$366). Furthermore, @ new sentence : oa

- - : -_ ~ - 7

—aee S

Fa.

po written decision —_ be found on sce cases. Two" t

“> other written opinions Sqvplvans death | sentences imposed on. A BS so

that whether the standard of review is on a district-by-

hearing is not required under the facts of this case. While

the Court believes that the district-by-district proportionality

review approved and found constitutionally sound by the

Louisiana Supreme Court, by an en banc panel of the Fifth

Circuit Court of Appeals and by this Court is still constitutionally

acceptable, the Court shall grant petitioner's alternative

request to review petitioner’s death sentence on a state

wide basis. J

There are currently twenty-seven inmates on death row

at the Louisiana State Penitentiary at Angola. Of these :

twenty-seven inmates, twenty-three inmates, including the - ge of.

petitioner, have appealed their cases to the Louisiana va

Supreme Court which has written and published formal a =

Four inmates on death row are apparently still on Al * a e

: : Taease

defendants from East Baten Rouge Parish have also been PALS tae

reviewed by the Court. The Court has carefully reviewed the *~ $8

facts of each of these twenty-five published opinions in i ee

which the death penalty vas imposed. After reviewing each of eS

these 25 cases and comparing the facts set forth in these ake

cases to petitioner’s case, the Court gust and does conclude . ee

district standard or on a state wide standard, the death

penalty imposed in petitioner's case is not disproportionate

to the death penalty imposed in similar cases wherein the jury ~ BS

. . pa =F " y

found armed robbery, offenses committed in an esoecially

heinous, atrocious or cruel manner, and knowingly creating a

risk of death or great bodily harm as aggravating circumstances

as required by Article 905.4 of the Louisiana Code of Criminal

Procedure. The Court further finds and concludes that the

jury in petitioner’ s case did not act arbitrarily in comparision

with the verdicts returned by other juries in similar cases 6

in Louisiana which recommended the death penalty. In seventeen

of the twenty-five reported cases involving the death penalty

in Louisiana, the jury which recommended the death penalty

found armed robbery as one if not the only statutory aggravating

circumstance. These eaventeen death sentences were returned

in ten of the thirteer parishes wherein death sentences have

been ‘recomended by Juries. A review of the reported cases

also. ‘reveals that the two ‘other aggravating circumstances

sound by the jury to exist in petitioner’ s case were also

found to “exist by other hacen which recommended death

sentences.

—

‘The circumstances surrounding the murder committed by

the petitioner reveal a reckless disregard for the life of

other human beings. As the reported facts of this case

reveal, petitioner shot Willie Kelly, a 67-year old black

security guard, with a 12-gauge sawed-off shotgun in the

face at point blank range. After killing Mr. Kelly and

committing the arned robbery, petitioner shot two other

people in the feet.

The Court finds that the death renzity imposed in

petitioner's case is not disproportionate to the death

penalty imposed in the other sixteen cases wherein arned

robbery was found to be an aggravating circumstance considering

* the circumstances involved in petitioner’ s case.

= Therefore, the Court concludes that petitioner’ s first

~ "contention challenging the manner in which his death sentence

“weg revtewed to be without ‘merit. %

am GP : oe ~

“S°*"s>-y was the Prosecutor’ Guilty of Misconduct. During

a ae oN Closing Arguments? ..-- > Sayre; one

ae < ee ae eae ee

“Petitioner contends The peeceonter s “closing and rebuttal

arguments at the sentencing. phase” of petitioner’ s bifurcated

=<. Se:

trial constituted flagrant lafsconduct because the argument:

EF >a) ogg met a ee tended to ‘lessen

4 Tipe a“ | a eX “"

Suge o, SUTy" 9 ResrenatiLt Gy; Rae

i. - (2) contained misstatements and _ Slaxsprésentations of

eR co the law ‘oti review of aE Goa te rtd

Be av ed ek appellace, Rate a ta

Me at * ae ae ro oe

a . - (3). contained inflammatory statements to “the jury;

+ (4) eded the” “sco of Article “176

a. s ae of ¢ e Louisiana Code of Criminal Procedure: and

@t«

. J

(5) was fundamentally ‘unfatr. Pe

The standard for reviewing Prosecttorial » Siidatnbest in a

habeas corpus case is whether t “the prosecutor’ s actions are

of such a nature ar! to. render, che © trial “fundamentally unfair.

Donnelly v. Dechristoforo, 616 U.S. 637, 94 S.Ct. 1868, 40

L.Ed.2d 431 (1974). | "Donnelly teaches that in a

Section 2254 ARE E : more than undesirability or even

‘ -

‘univ ersal_ — 5°

‘-

condemnation’ must be shown unless a specific guarantee of

the Bill of Rights is involved, it must be shown that the

remarks were so prejudicial that they rendered che trial in

question fundamentally unfair." Cobb v. Wainwright, 609

F.2d 754,755 (Sth Cir. 1980). Determining whether the chal-

lenged remarks had this effect turns on an assessment of the

rem ~ks within the context of the particular trial. Jones v. Estelle,

622 F.24 124 (Sch Cir. 1980).

It must be noted that at no time did defense counsel

"lodge an cbjection to the content of the closing argument.

In most cases the Court would find that a failure to object

would constitute a waiver. See C.Cr.P. Art. 841. However,

since this is a capital case, the obligation to examine the

““ gecord for passion, prejudice or arbitrary factors wiich

2 ywould — made the sentencing hearing | _ paeneene unfair”.

e . Tv Was = = ‘ =

is proper. Ps Seek St ~

- _ . : . ?

——

LZ Applying the “fundiniamtatiy’ unfair” standard set forth

_above, the Court finds that in light of the considerable

strength of the case against Williams, the prosecutor's

comments did not reach the level which made the trial fundamentally

unfair in’ the sentepesng phase. .

Article 774 of the Loufetame Code of Criminal Procedure

mg _ provides that closing argument shali be confined to "evidence

admitted, to the lack of evidence, to conclusions of fact

that the state or defendant may draw therefrom and to the

law applicable to the case. The argument shall not appeal

ollie

~~ .

to prejudice. The state's rebuttal shall de confined to

answering the argument of the defendant.” Petitioner now

argues that the cumulative effect of the prosecutor's argument

inflicted the penalty verdict with arbitrariness, prejudice

‘+ and passion. This et gument. fs without substance or merit

and is s0t supported by the. record. An intelligent jury

could not have, reasonably believed the prosecutor was urging

thes to ignore the law and base their decision simply on

thelr emotional response t0. the’ ‘crime. The prosecutor

ae ae J *

SpE argued that ér: é addict{oo should not be considered as «

ne ie = mitigeting factor in the Sime, 2 "tha death penalty was justified

SAR Sei beenase « of its deterrent’ effect; the responsibility of the

A =p ury was serious; = chat sents particular crime justified

at Pee ¢ tmpositign ‘of the wages. eb renal gy The argument did not

we sh ~ peal te prejudice or to a Passion, ‘There was no introduction

3-2 eee arbitrary factors prc} "might Rave. tainted the verdict.

< "pe ar It is not taproper to remind a jury of its solemm obligation

ae and ” avesome_ responsibility, or the importance of the

tusk ‘at “hand. BS a

- While the prosecutor did op eaaebten give his version

of the evidence and his recommendation, he did not personally

youch for the credibility of witnesses. A review of the

\? ‘3300 closing argument nade by ‘counsel for petitioner —- Ww that

similar arguments were made {fn petitioner's defense.

Furthermore, there is no error of law in the jury

charge given by the exset judge at Both the guilt and sentencing

phases of the erial.

Therefore, the Court finds petitioner's argument that

the prosecution was guilty of improper conduct to be without

merit.

C. Was the Death Sentence Imposed in Violation of

Hopper yer 456 U.S. 605, 102 $.Cte. 2049,

(1982)?

Petitioner contends the trial judge erred because he

gave the jury an instruction on all of the responsive verdicts

to first degree murder even though there was no evidentiary

support for a manslaughter verdict. Petitioner relies on

uopper v. Evans. oupes. Such reliance is misplaced under

the facts of this case.

No objection was made to this part ‘of the jury charge

_ by the petitioner at the time of his trial. ae _-

801 of the Louisiana Code of Criminal Procedure, a party who <A

“ fatis to object toa charge “may not assign as an error the >

iAy-.¢ -

giving or failure to give a jury charge or any portion p> gia es

thereof unless an objection thereto {s made” However, the.

Court will consider petitioner's argument despite his failure he

to object.

Article 803 of the Louisiana Code of Criminal Procedure —

provides that when "a count in an indictment sets out an

offense which includes other offenses of which the accused

could be found guilty under the provisions of Article 814 or

815. the Court shall charge the jury as to the law applicable

to each offense.” When “there are several grades of an

offense contained in a single count, the Court shall charge

the

-13-

jury as to each grade of which the defendant could be found

guilty.” C.Cr.P. art. 804(B). Under Article 809, “the

judge shall give the jury a written list of the verdicts

responsive to each offense charged, wich each separately

/ stated.” Article 814(A) (1) provides that the “only responsive

verdicts which may be rendered where the indictment charges

the following offenses are: l. First Degree Murder:

Guilty. Guilty of Second Degree Murder. Cuilty of Manslaughter.

Not Guilty.” Finally, Article 814(C) provides that upon the

“potion of the state or the defense, the Court may, in its

discretion, exclude a responsive verdict listed in Subarticle

A if after all the evidence has been submitted there is no

evidence to establish that responsive verdict.” Neither the

_ state nor the petitioner requested the Court to exclude 2 "ee

stn mans Laughter as a responsive werdict. Furthermore, a review Re

e of the record fails to reveal that there was “no evidence to Fear

establish” the responsive verdict of manslaughter. The

"xt ae judge complied with the mandate set forth in Hopper v- Evans,

4 a

supra, and with Louisiana law. Thus, petitioner's argument

- .

on this issue is hereby denied.

D. | The Need for an Evidentiary Hearing to Determine o£

Whether the Jury Selected was ction Prone ae

Petitioner contends that the manner in which juries are fo

. on S|

empanelled in Louisiana makes the juries “death qualified” Coes

and conviction prone. Petitioner seeks to have an evidentiary

-14-

4 eS S the Prosecution in the “determination” ok patie,” Id., 88

: © ©

hearing to support this argument. In support of his argument,

petitioner relies on Grigsby v. Mabry, 637 F.2d 525 (8th

Cir. 1980) and the memorandum opinion in the same case

rendered by a district judge on August 5, 1983. The Court

+ finds the Grigsby case is not applicable herein, and thus,

no evidentiary hearing ts ‘required. or

; Petitioner's argument that the manner in which Louisiana

juries are empanelied makes the jury “death qualified” and

. te

“e more prone to convict was rejected by the. United States

f - “> ~Ns <2.

sets " Supreme Court in witherdone v.Tilinois 391 U.S. 510, 88

ice. 1770, 20 L.Ed. 24 778. ‘ cisesy wherein the Court concluded

v that most of the very sane. evidence and studies which petitioner

now seeks to introduce at this time were speculative at best

tas esnitg i ;

—s and in fact, “too. ‘cette ve and. fragmentary to establish

= 2s sin, $3.,* sa » <4

< —

=: 5-4 that jurors not opposed to, the 4 death penalty tend tc favor

ne et ’ ~-“ a i > -<

. —

. —~

z ee sat

S.Ct. at 17746. arse Se AP aon. ed

; Se petitioner challenged che manner in which

the fury vas expanelled in his earlier appeals and applications

- Janx. for a writ of habeas corpus... The Fifth Circuit Court of

- ~~. , 2 we TS ofr

eae Appeals in its en banc opinion devoted many pages of the

at. opinion on this issue and found the jury selection procedure

_.> to be constitutionally proper. The Court believes the jury

in this case was properly and constitutionally empane led.

= -. Therefore, ‘petitioner’ s challenge to the Jury is without

merit. . Ay.

VY SUMMARY AND CONCLUSION

The Court has very carefully and meticulously reviewed

each of the arguments urged by petitioner in this latest

application for a writ of habeas corpus. In so doing, the

Court has again reviewed the entire record, including the

state court record. The Court sust and dos: conclude that

it can find no error of any kind which would in any way cause

this Court to stay the execution of petitioner which is set

’ €or October 25, 1983, or to grant petitioner's application

for a writ of habeas corpus. This Court is totally and

completely satisfied that petitioner has been accorded all

of the constitutional rights ‘to which he is entitled under

our system of justice. Petitioner's case has been reviewed

= many occasions by any courts, judges and justices. The

ovate trial judge has reviewed the case on « motion for °

' new trial and on two seperate post-conviction applications. |.

The Louisiana Supreme Court has reviewed petitioner's application

on three separate occasions, once on direct appeal and twice

' on sptaieciens’ ter a writ of habeas corpus. This Court has

now reviewed petitioner's case on two occasions. The Fifth

Circuit Court of Appeals has ‘reviewed petitioner's case on

one occasion, which also included an en banc review by the ~

Circuit Court. The United States Supreme court has reviewed

petitioner's case on two occasions, with the last review

coming shortly over one month ago on September 8, 1983. In

fact, an application for rehearing was ates considered by

the United States Supreme Court before it rendered its

decision on September 8, 1983. Not a single court which has

reviewed petitioner's arguments on direct appeal or om ap-

plications for post conviction relief has found petitioner's

claims valid. Thus, the Court concludes it would serve no

useful purpose to delay these proceedings in order to conduct

an evidentiary hearing on petitioner's complaints.

* “Federal courts are not forums in which to

- gelitigate state trials. Even less is federal

habeas a means by which a defendant is entitled

to delay an execution indefinitely ... ‘It is

natural that counsel for the condemned in a capital

case should lay hold of every ground which, in

& their judgment, might tend to the advantage of

, their client, but the administration of justice

-'= ought not to be interfered with on mere pretexts.*”

i» Barefoot v. Estelle, supra, 103 S.Ct. at 3391.

~. The Legislature, in its wisdom, has passed legislation

f which allows juries to recommend the death penalty as one

: tt sentencing alternative in first degree murder cases. Very

; TFS deta led and constitutionally approved procedures have been

~D Vatablished by the Legislature and the courts to be followed —

~ before a jury can sceemend a death sentence. These procedures

= were carefully and meticulously followed in this case. A

jury composed of citizens of East Baton Rouge Parish has

recommended the death sentence. The Courts, including this

Court, have affirmed the judgeent of the state court. The

sentence mandated by Louisiana law should be carried out

without further delay and interference from this Court or

any other court.

Therefore, petitioner's application for a stay of

execution is denied. Petitioner's application for a writ of . -ot

habeas corpus is also denied.

~~ =~

rea - oP

e ©

VL CERTIFICATE OF PROBABLE CAUSE

Petitioner also seeks a certificate of probable cause

im order that he may file an appeal wich the fifth Circuit

Court of Appeals. A “certificate of probable cause requires

" petitioner to make a ‘substantial showing of denial of [a]

federal right. Barefoot v. Estelle, supra, 103 S.Ct. at

3394. The “severity of the penalty does not in itself suffice

to warrant the automatic issuing of a certificate.” Id.,

103 $.Ct.- at 3394. Finally, a certificate of probable cause

es “st ehould not issue where the Court finds the appeal is frivolous

es and entirely without merit.” Id., 103 S.Ct. 3394. For

“+ Bo reasons previously set forth ts this opinion the Court finds

4 «2 that since petitioner has failed to make a substantial

po eee showing of a denial of a federal right, _ petitioner's application .

aie frivolous and without merit. Therefore, petitioner's ~~

SU equese 4 for a certificate of probable cause to appeal and st ay es is, t

. ~ 42 execution pending appeal is hereby denied.

eo og VII.” ORDER OF COURT . ;

aes ws A

Se For reasons set forth above:

oho et IT IS ORDERED that the motion of Robert Wayne Williams

xs for a stay of execution be and it is ‘hereby DENIED.

as : _» IT IS FURTHER ORDERED that petitioner's application for

a writ of habeas corpus be and it is hereby DENIED.

; IT IS FURTHER ORDERED that the motion of Robert Wayne

Williams for a certificate of probable cause be and it is

hereby DENIED.

-18-

IT IS FURTHER OPDERED that the gotion of Robert Wavre

Williams for a stay pending appeal be and it is hereby

DENIED

IT IS FURTHER ORDERED that the Clerk of Court shall

immediately notify the parties of the Court's decision in

~w a. ae

this case. wa 74 an Fs.

- o So

‘7

-— —

‘Judgment shall be entered accordingly.

Baton Rouge, Louisiana, October 21, 1983.

Footnétes |

See Court Exhibit 1 entitled “Death Row Inmates”

State v. Baldwin, 388 So.2d 664 (La 1980)

State vse . 391 So.24 406 (La. 1980).

State v. Sro *, 426 So.2d 158 (La. 1983).

State v Sasha 425 So.2d 1241 (La. 1983).

ta’ ev. Felde, 422 So.24 370 (La. 1982).

re v. James, 431 So.2d 399 (La. 1983).

re Vv. , La.Supr.Ce. No. 82-KA-0097(1983).

State v. Mattheson, 407 So.2d 1150 (La. 1981).

State v. Mcnroe, 197 So.2d 1258 (La. 1981).

State v. Moore (Alvin R.), 414 So.2d 340 (La. 1982).

State v. Moore (Avery Pete”), 432 So.2d 209 (La. 1983).

State v. Narcisse a i18 (La. 1983).

State v Perry, 420 $0.2d 139 (La. 1982).

ean; 379 So.2d 240 (La. 1979).

er, 422 So.2d 95 (La. 1982).

tate v. , £92 So.2d 650 (La. 1981).

State v. Taylor, 422 So.2d 109 (La. 1982).

State v. watson, 423 So.2d 1130 (La. 1982).

Williams, 383 So.2d 369 (La. 1980).

: 553 (La. 1983).

In addition to the above cases, two additional cases

from East Baton e Parish have been considered and

reviewed by the siana Supreme Court in ted

decisions: State v. Colin Clark, 387 So.2d 1124

(La. 1980); State v. Williams, 392 So.2d 619 (La. 1980).

In each of the above cases, only the citation from

the Louisiana Supreme Court is set forth.

See Footnote 2 above.

State v. Fuller; State v. Glass; State v. Hamilton;

and State v. Kirkpatrick.

State v. Clark, supra; State v. Williams, supra.

Baldwin, Berry, Clark, David, James, Knighton, Lindsey,

Mattheson, Alvin Moore, Avery Moore, Narcisse, Perry,

Sonnier, Taylor, Watson, Robert Williams and James Williams.

East Baton Rouge, Orleans, Lafayette, Rapides, Ouachita,

St. Charles, Bossier, Jefferson, Calcasieu and St. Mary Parishes

Trial transcript pp. 282-287.

Trial transcript po. 248 et sec.; pp. 299 et sec.

midnight and

1 fle CmVi fr

scheduled to occur on Wednesday, December 14,

3:00 A.M. Central Daylight Time.

is sought pursuant to 28 U.S.C.

which was also filed today.

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IN THE

PEME RT OF THE UNITED STATES

October Term 1983

ERT WAYNE WILLIAMS,

t > , ner,

vs.

NT. KING, Secretary,

ina Department of orrections, and

> C. MAGGIO, JR., Warden,

isiana State Penitentiary, Afigola,

slana,

R lents

ATION FOR A AY OF EXECUTION

To tt rable Byron R. White, Associate Justice of

the Supreme rt of the United States and Circuit Justice

for the Fifth Circuit:

| Petitioner Robert Wayne Williams prays that an order

be entered staying the execution of his death sentence presently

1983, between

This stay

$$ 2101(f)

and 2251, pending

final disposition of his petition for a writ of certiorari,

In support of this application,

petitioner respectfully notes as follows:

aw aches me Lipthineaul Gyltne

ew, oe us ubbeler Mtr

th bee GHA. tenes Mtoe”

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7 hy

1. At a jury trial on April 18, 1979, in the Nineteenth

Judicial District Court for the Parish of East Baton Rouge,

Louisiana, petitioner was convicted of capital murder. Judg-

ment was entered fixing his punishment at death.

2. On April 17, 1980, the Supreme Court of Louisiana

affirmed petitioner's conviction and sentence on direct

appeal. State v. Williams, 383 So.2d 369 (La. 1980). His

petition for rehearing was denied on May 19, 1980, and this

Court @enied certiorari on inuary 12, 1981. Williams v.

Louisiana, 449 U.S. 1103, reh. denied, 450 U.S. 971 (1981).

3. On March 20, 1981, petitioner returned to the state

trial court and filed an Application for Post-Conviction

Relief. Without ynducting an evidentiary hearing, the court

dismissed his application in an unpublished order on March 24,

1981 Two days later, with two justices acknow.edging that

e_ a —,

his claims were substantial apd one other concluding that his

: caus

case involved constitutional error, the Louisiana Supreme

Court affirmed. State ex rel. Williams v. Blackburn, 396 So.

2d 1249 (1981).

4. The next day, petitioner filed a petition for writ of

habeas corpus in the United States District Court for the

Middle District of Louisiana. On the same day, without con-

ducting an evidentiary hear.ng, in an unreported order and

judgment, the district judge denied his petition. A panel of

the United States Court of Appeals for the Fifth Circuit

agreed, Williams v. Blackburn, 649 F.2d 1019 (Sth Cir. 19861).

By a divided vote, the en banc court affirmed, Williams v.

Blackburn, 679 F.2d 381 (Sth Cir. 1982)(en banc), and this

Court again denied review. Williams v. Blackburn, U.S.

{June 27, 1983), reh. denied, _vU.s. _ (Sept. 8, 1983).

- Be

eee

At that point, the state trial judge ordered petitioner's

executicn to take place in the early morning hours of October

25, 1983.

5. Between the commencement of petitioner's first habeas

proceedings and the actions of this Court on September 8,

1983, significant changes in the relevant law caused peti-

tioner to return to the courts for a second time to pursue

post-conviction relief. The entire history of his successive

petition spans little more than two months.

6. Petitioner filed his new Application in the state

trial court on October 4, 1983. On the same day, it was

summarily denied. The Louisiana Supreme Court affirmed on

October 18, 1983, and refused to stay the impending execution.

7. Petitioner then filed a new writ of habeas corpus in

the United States District Court for the Middle District of

Louisiana. On October 21, 1983, the district judge entered an

order dismissing the petition, denying a certificate of

probable cause, and refusing to stay the execution. Williams

v. King, No. 83-1120-B (M.D. La. Oct. 21, 1983)(Appendix A).

8. On appeal, with less than two days remaining before

petitioner's scheduled execution, te Pifth Circuit granted

the certificate of probable cause and affirmed the district

court judgment, but stayed the execution pending certiorari in

this Court. Williams v. Maggio, No. 83-3647 (Sth Cir. Oct.

23, 1983) (Appendix 4%).

9. The state moved in this Court on October 24 to vacate

the circuit court's stay. While petitioner's suggestions ‘or

rehearing and rehearing en banc on the merits were still

pending in the Fifth Circuit, this Court granted the state's

application, over three dissents. Maggio v. Williams, No. A-

301 (U.S. Nov. 7, 1983) (Appendix C).

10. The state immediately obtained an order setting

petitioner's execution for December 14, 1983.

ll. The Pifth Circuit denied rehearing and rehearing en

banc on Novesber 29, 1983, without opinion.

12. The conviction and sentence of petitioner -- indeed,

the entire course of the proceedings to date -- raise serious

and substantial federal constitutiona! questions of which

review has been sought in this Court. Among these are the

a. In a separate opinion ncurring in the

ma jority’s decision to vacate the Fifth

ircuit's stay, Justice Stevens charac-

terized the majority as “applying a strict

standard of review.* Maggio v. Williams,

No. A-301, slip op. at 4 (U.S. Nov. 7,

1983)(Stevens, J., concurring). Although

he agreed that petitioner had raised a

serious constitutional question and had

actually suffered prejudice of constitutional

limension, Justice Stevens concluded that a

“strict standard" was justified because the

“essence” of the question had appeared and

ceen rejected in prior proceedings. Id. at

4-5. This appears to be an accurate account

of the majority view. See id. at 4-5 (majority

opinion). Thus, botn the majority and Justice

Stevens imply that a lesser degree of care is

warranted where a -laim, tangentially related

to one already litigated or arising out of

the same facts, is renewed because of inter-

vening changes in the l.w.

Thi- view contradicts Sanders v. United States,

373 J.S. 1 (1963), ard Rule 9 of the Rules

Governing §2254 Cases, both of which authorities

contemplate the legitimacy of successive peti-

tions. See Autry v. Estelle, A-242, slip op.

at 2 (U.S. Oct. fy: 1983)(White, circuit

Justice). Petitioner seeks a stay until the

Court can clarify on certiorari the proper

standard of review of successive petitions.

b. Although the sta‘«+ pleaded abuse of the writ

(albeit only generally) in its opposition to

petitioner's habeas petition in the district

court, the court held no evidentiary hearing

and made no such finding. See Rule 9 advisory

ee ee ree 6

— Owe eee

ee oe

Cc ittee note. Instead, the court reached

the merits of each claim. Nevertheless, when

the atate revived its defense before this Court,

in its motion to vacate the stay, the majority

concluded that petitioner's failure to raise

certain of his claims in the earlier petition

was “inexcusable.” Maggio v. Williams, slip

op. at 4. Justice Stevens made a similar

“finding.” Id. at 4 (concurring opinion).

Such findings disregard the apparent require~

ment of Rule 9 that abuse of the writ not be

found without the petitioner being given an

pportunity in the district court to show

that in fact the writ was not abused. See Sanders

United States, 373 U.S. at 10-11; Price v.

ston, 334 U.S. 266, 291-92 (1948). Peti-

ner therefore requests a stay of execution

pending the consideration on certiorari of

the question whether an appeilate finding

that the writ was abused may properly be made

without a record from the district court on

that question.

At the close of petitioner's sentencing hearing,

the prosecutor encouraged the jury to discount

the significance of its decision to impose

death by assuring them that any mistakes would

be corrected on appeal. He also exhorted the

jury to impose death to strike a blow in the

general war on crime. As Justice Stevens ob-

served, by any measure of common sense, petitioner

was substantially prejudiced.

Nevertheless, both Justice Stevens and the

majority concluded that close scrutiny of

petitioner's constitutional objection to the

prosecutor's argument was not warranted here

because a related contention had been raised

in the earlier petition. The majority concluded

that, even though the failure to raise the

instant claim in the first petition was “in-

excusable,” the district court had done all

the Constitution required of it by con-

sidering the argument in light of Donnelly v.

De Christoforo, 416 U.S. 637 (1974). Maggio

v. Williams, slip op. at 4. Justice Stevens

thought the question “serious,” "especially

when the death penalty is at stake,” but

somehow of diminished significance in a suc-

cessive petition. Id. at 4 (concurring

opinion).

However, in the period intervening between

the first and second petitions, the Eleventh

Circuit twice found virtually identical jury

arguments unconstitutional under Donnelly.

See Brooks v. Francis, No. 83-8028, slip op.

at 12 (lith Cir. Sept. 15, 1983); Hance v.

Zant, 696 F.2d 950 (llth Cir. 1983). The

decision of the Fifth Circuit to find no error

on such closely similar facts reflects the

absence of any consistent construction of

Donnelly between the Circuits. The discrepancy

means ee difference between life and death.

. =...

}

Petitioner maintains that a change in the

law of another circuit ich raises serious

questions about the congisten’, rational

imposition of the death penalty is an appro-

priate new circumstance under Sanders to

sustain the renewal of an earlier claim.

Petitioner seeks a stay until the Court can

consider whether certiorari should be granted

to examine the circuits’ conflicting standards

for determining the constitutional limits of

prosecutorial jury argument in a capital case.

a. Petitioner has challenged the manner by which

the Louisiana Supreme Court conducts propor-

tionality review. In his earlier petition,

he objected to the failure of that court to

conduct state-wide comparative review of his

sentence. In his second petition, he expanded

the claim to include the question whether the

Louisiana high court has acted with constitu-

tionally required consistency in conducting

proportionality review, in light of intervening

decisions in which it has, without explanation,

varied the restricted scope of comparison em-

ployed in petitioner's case. See State v. Moore,

432 So. 24 209, 226-27 (La. 1983)(random com-

parison of first-degree murder cases state-wide);

State v. Narcisse, 426 So.2d 118, 138-39 (La.

i983)(comparison of first-degree murder cases

in two judicial districts rather than the customary

one). Petitioner seeks a stay until this Court

can consider whether the Constitution requires

at the least some consistent application of whatever

form of proportionality review the state selects.

13. Petitioner is presently in the custody of the Warden

of the Louisiana State Penitentiary in Angola, Louisiana. His

execution is imminent. A stay of execution would neither

prejudice the State of Louisiana nor interfere with petitioner's

custodial status. Rather, it would mereiy assure that petitioner

is not killed before the issues raised in his petition for

certiorari can be heard and determined by this Court.

‘spectfully requests an order

the disposition of his petition

J + ie Pp

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RECEIVED

IN THE OF CE OF THE CLERK

SUPREME COURT OF THE UNITED STAT _ SuPRe

October Trem 1983

ROBERT WAYNE WILLIAMS,

Petitioner,

vs.

JOHN T. KING, Secretary,

Louisiana Department of Corrections, and

ROSS C. MAGGIO, JR., Warden,

Louisiana State Penitentiary, Angola,

Louisiana,

Respondent Ss.

CERTIFICATE OF SERVICE

I hereby certify that I have served the petitioner's

Petition for A Writ of Certiorari and Application for a Stay

ef Execution upon the respondent by placing a copy in the

United States Mail, first class, postage prepaid, addressed

as fcllows:

Kay Kirkpatrick, Esq.

Assistant Attorney General

222 St. Louis Street

Suite 529

Baton Rouge, Louisiana 70801

All parties required to he served have been served,

Done this 9th day of December, 1983.

Deval L. Patrick

on behalf of

Samuel S. Dalton, Esq.

3 couRT, US.

I A AE

—_——-*

IN 7 *\ UNITED STATES COURT OF APPEALS

POR THE FIFTH CIacuit

No. 83-3647

ROBERT WAYNE WILLIAMS, U.S. COURT OF ap

Petitioner-Appellant, FI LE - -<

versus

NOV 28 1083

JOHN T. KING, Secretary

of the Department of Corrections

©» and ROSS MAGGIO, JR., Warden, | GILBERT F. GANUC} cAU

Rqutstena State Penitentiary, CLERK

. : 4 Respondents-Appellees.

-—————— @— eH eee ee ee ewe ee oe

* Appeal from the United States District Court for the

¢ a middle District of Louisiana

6** -

> din oe je

- 4 .

2te < . ; ~*~ at Oe 5 as “~ -_—-

» 2 y's SS “2 2 i PP a* o

“~

ON PETITION ‘FOR REHEARING AND “SUGGESTION FOR REHEARING EN BANC

‘

= (pinion October 23, 1983 » §$ Cir., iss, r.2d )

ES £ féa's on ates Aacte: t NOVEMBER 28, 1983 )

4. eM ' yi

> Before. BROWN, “REAVLEY. and” Biccrnporaan, Circuit Judges.

ae “Seen conta: 625 SS aR. ei? | cS

* es > Pe 1th ae : .¢. -%

28 ) The Petition for nt ‘3 ‘DENIED and no member of this

1 nor Judge in regular active service on the Court having

fe. : requested that the Court be polled on rehearing en banc, (Federal

Rules of Appellate Procedure and tocal Rule 35) the Suggestion

= oe En Banc is DENIED. :

( ‘4 The Petition ot Rehearing is DENIED and the Court having

been polled at the request of one of the members of the Court

s ,-a@nd a majority of the Circuit Judges who are in regular active

service not having voted in favor of it, (Federal Rules of

7. _

= . Appellate Procedure and Local Rule 35) the Suggestion for Re-

_ hearing En Banc is also DENIED.

( ) A member of the Court in active service having requested

@ poll on the reconsideration of this cause en banc, and a

majority of the judges in active service not having voted in az

favor of it, rehearing en banc is penfes2k'$ NOTE

SEE FRAP AND LOCAL

RULES 41 FOR STAY OF THE

PSE ae MANDATE.

JOHN R. BROWN '

nite tates Circuit Judge REEG-6

ENTERED FOR THE COURT:

Wiel.

~ plates

~<a -~ X

id Ne 7 :

“S Sy Rae ee: GILBERT FP. GANUCHEAD, Clerk

a ks. =) 6

= Hnited States Court of Appeals

Cosas October 24, 1983 ee CLI LA UD

>. TO ALL PARTIES LISTED BELOW

sat “~ Mo. 83-3647 - Pobert Wayne Williams -vs-

SF yes + _. John ?P. ng, Etc.

3 ZK “3 (~ospe wo. CA-83-1120-B) ‘

Enclosed is a revised copy of the Court's order entered

> .. in the above cause on October 23, 1983. The revision in

>: the order appears in the first sentence of the last para-

+ ~."* © graph on page eight. - eo. & Sw ‘ r ‘“

Z ° Se ,

art [= Very truly yours,

> : >,

‘ is A. 08 ‘ ,

- “he o*. « — af” . o

So Serine YT; DAO. ae

rp eR ee S ~ ree . u- s = *

ry et et a m ty a —

o.-" 2 t: 2- a st, ‘i -

Fey Feroyan

GS Salar alpen RE

as >= c=. Enclosures

=. -.s, * Honorable Frank J. Polozola’ ba oS ne

SA ATO ME. C. -Lee DuPufs, Clopk Me ate tes’ %

“~= =, Mr. Samuel S. Dalton

““s. * Mr. William J. Guste, Jr.. ra

_.. Ms. Kay Kirkpatrick F .

. bh Mr, Ross Maggio, Warden ~~ Se

at .. “Governor David C. Treen

. “_.* «Mgr. Alexander L. Stevas, Clerk .. .

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REVISED ~- October 24.963 2)

IN THZ UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT LL S. COURT DE

: FILED

Ho. 83-3647 OCT 33 £93

. ay Robert. Wayne Willians, GILBERT E GANUCHEArr

GUE SBS Petitioner- “Appellant, a

- yet ee F Sar, Ce

Ross s Masatoy Warden of the State Penitentiary,

SEES pAS: manpondent-Appelion

: led jae re ‘ ,

‘si ORE T Atte! ‘Appeal frou, the United States District Court

me cre z f Sos the Middle District of Louisiana

- : : : on :

-7"* Before, Bao, "REAVLEY, ‘and SIOCINBOTEAN, Circuit Judges

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. . . wore “9

7 ae ay z go Robert Wayne Willians seeks a certificate of probable

‘a 4. ‘cause ‘ona stay ‘of his execution now set for Tuesday, October 25,

a 1983 Deryeen the. Bours of midnight and three a.s.

a . ee $ ox ie

. ra: Serres ae Bot 085 :

ced woe ® ew, bok 4 ‘. > , <2

y. + ass Ete" = 7 > v s It.

wk are WE 2? Robert Wayne willians was convicted in the state courts

a5 2 oo.

<e2" @f Louisiana on April 13, 1979 of first degree murder and was

- “ . .

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sentenced to death by a jury. His conviction and sentence were

affficmed on direct appeal by the Louisiana Supreze Court, State

v. Williams, 383 So. 24 369 (La. 1980), and cectiocari was denied

by the United States Supreme Court, Williams v. Louisiana, 101 S.

Ct. 899 (1981),

Subsequently, petitioner filed a writ of habeas corpus

in the Louisiana state court for the Nineteenth Judicial District

on March 20, 1981. Denial of that writ was affirmed by the

Eosisioens Supreme Court on March 26, 1981. See State ex rel

willilass v. Blackburn, 369 So. 2d 1249. :

“petitioner then filed for federal habeas dorpus ‘gelief

in the District Court for the Middle District of Louisiana.

Judge Polozola denied his writ on March 27, 1981, ‘and petitioner

appealed to the United States Court of Appeals. for the Fifth

y oma

Circuit. The. original panel in the Fifth Circuit upheld, the lower

court decision, Williams v. Blackburn, 649 P22. 1019 (Sth care

1981). After | “a rehearing en banc with oral argument, the petition

was again denied in June, 1982. See Williams v. Maggio, 679 P.24

381 (5th. Cir. 1962). A petition for rehearing of the. en banc

decision was denied on August 12, 1982. Id.

_ Petitioner applied for. « : weit of certiorari in

December of 1982. That petition was! denied June : 27, 1983,

and his application for rehearing was denied on September §,

1983 (after a stay granted by Justice Brennan on July 14, 1983).

Williams v. Maggio, U.S-___, 103 S.Ct. 3553. Judge Foil, the

State Trial Judge, issued a warrant for Petitioner's execution

- r ‘

= we 4

- _

at ) =)

to take place on October 25, 1983 between the hours of twelve

midnight and three 4&.m.

= On October 4, 1983 the Petitioner filed a secone

petition for a writ of habeas corpus in the Nineteenth Judicial

District Court. That petition was denied by Judge Foil on that

&e same day.

. On October 14, 1983, the Petitioner filed a subsequent

petition for writ of habeas corpus with the Louisiana Supreme

“Court: That petition was denied on October 18, 1983.

ee at Pay On October 20, 1983, the petitioner filed this second

be-p 3 “petition for writ of habeas corpus with the United States

eis J District Court for the Middle District of Louisiana. This

2; 4 — 7

Be “.petition was denied on October 21, 1983 by Judge Polozola

i ete Ve . ~~"

eiee ina written order.

wot, ry te) a : 2 = - =

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~~ fark pone : cs ,

v7 ve & - 2% . ,

Bie Be = III. “%,

“Oe ee williass now makes four arguments: _—

fae af, 4, The Louisiana Supreme Court's practice of conducting

ee aM Airs a only district-wide, rather than state-wide,

hy proportionality review of death sentences is

- . ] -~

: a we > 2

ye" whereby trial court and_ jury “impose death sentence,

: 3) GO

unconstitutional.

2. The prosecutoc’s inflammatory remark at the close of

the sentencing phase elicited a decision based on

passion, not reason.

3. The trial judge incorrectly instructed the jury on

the ‘Lesser included offense of manslaughter, on on which

there was fo evidence. | i

4. Petitioner's jury was neither impartial, nor a

tepresentative croés-section of the eummanieg ein

violation of his sixth anendaent vights. 4 e F

‘

’

Lat +

a. 4c

‘+,

}

1. we agree with the District court with poten to claims 2, 3,

7 pitas ee

; and ‘ar and turn to claim fuaber 1. i Bae A. ntth aeoe 2

(2. In December 1982, the. Winth Ciccatt overturned, the ~. ie ieige~ 2s

cast ts a, fie, Ss ee oe ee tle tS pent Re

death sentence for lack’ of 2 proportionality Eeview.. Marris eae me ig

° 2ST oe “i

v. Pulley” 692 ¥.24 pers (ou clés 1982). ‘On March a, 1983, the =

» — +.

Supreme Court Smet certiorari to consider” two points regarding

= Cana Beare. a

“q) Does Constitution, in addition ‘to siheetees :

require any ‘specific: form of _“proportionality review”

i ae

by cour t of statewide jurfsdiction peice to execution

of state death judgment? @) “16 so, what is the

constitutionally required focus, scope, and procedural

oy © ©

structure of such review?

Pulley v. Harris, $1 0.S.L.W. 3590 (Pebruary 15, 1983, No. 82-

1095). ;

On April 22, 1983, Alabama petitioned the

Supreme Court to vacate a stay of execution granted to @

prisoner, Evans, who argued the absence of a proportionality

review of his sentencing by the Alabama courts. Over Justice

Marshall's dissent that the Court had granted plenary review of

the proportionality {issue in Barccis v. Pulley, Evans’ stay was

ty el vacated, Alabema v. Evans, 0.s. » 103 S.Ct. 1736 (1983), and

* he"was executed. ~ : ; ( Larys ote

In July , 1983, Jimmy Lee Gray appealed to this Court

. to stay bis execution, arguing, among other grounds, that:

_.s2 W:hb? S512] a light of the Supreme Court's recent grant of

vy eS) certiorari on the issue of what form of Seg gee |

* hee ® 5 ~~ seview, if any, is constitutionally r £ in capit “2

cS cases, this Court should grant the app ication ta order

~ So Ratt te withhold judgment on this issue until such time as ee

“ft can determined whether the narrow method used by the . - -—~

>, Mississippi Supreme Court to review petitioner's case _ ‘

“< ‘passes constitutional muster. ~ ;

ee? = *

” --

- ;

__*

“*.s

“-.. Gray wv. Lucas, 710 F.2d 1048, 1057 (Sth Cir. 1983). We rejected

2 _- S sa. a a “ = >% 3 - fe j - -

‘= ore that argdment, holding:

:,.- 2 | -Gray urges that we should withhold decision pending the :

i’ < st "> @eciston of the Supreme Court in Pulley v. Harris where °° <&

i= So 4 ©. it granted certiorari to determine ther review is Pees

» ~~ t >." constitutionally required and if so “what is the te * ae

LE, -. constitutionally required focus, scope and procedural ae

es: _—* <)> structure of such review.* See Pulley v Barris, cert. ~

digs ‘nf ghey Qeanted U.S. 103 S.Ct. 1425, 75 L.2d.2d 787

_~ = soa" “s) (i983). See Sl 0.S.Law Week 3590. We note that a

os Set similac claim was reised in opposition to dissolve a

_ o- stay in Alabama vy. Evans, U.S. _,103 $.Ct. 173€, 75

= - “1: _

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L.£d.24 806 (1983), but the court declined to halt the

execution.

Gray v. Lucas, 710 F.2d at 1057. On Septeader 10, 1983, the

Supreme Court denied certiorari, $2 0.S.L.W. 3169 (September 13,

1983), and Gray was snenduels

xs On Septenber 1, 1983, we refused in a divided panel to

stay the ‘execution of Balavine ‘a Loulstana prisoner, rejecting

his proportionality argument: md

-. The question Butdwin presents is whether the Louisiana

i ¥7 Supreme Court, which under the Louisiana capital

sa hishment statute réviews death sentences meted out by

cE pce juries, wiolates the federal Constitution by reviewing

_ St peers e sentences on a district-by-district rather than @

Sade S “etatewide basis. Even if the Court in Pulley decides

aes tid that proportionality ceview is constitut wo |

ae > Fequired, we find no reasonable basis for conc uding

ahr: = that the Court will require the state-wide review that

we declined to require in Williams. This conclusion is

ore. & Fas celetecces by the ental of teview, albeit now stayed,

“> SoS in Williams. a 385 oe i :

a ee ~*~ 2S ar ~_ a or RE sf

= Baldwin_yv. Maggio, - 715 F.2d 82, 155 {sth Cir. 1983) (footnote

SAP eA o 2. 2} Eats ay, —

ate tes ‘ September 27, 19834. the Suprene Court ates a

}

PR ARRAS ns Sess

2.0.8.L.W.- 3259 “(October a 1983).

™ a

; Ak NY oat On October ‘s. 1983, we we rejected the last minute plea of

"David Autzy hat Texas failed to review his death sentence for

"proportionality; noting that a sisilar claim was raised in

-‘Alabana ¥. Evans, bat that the Suprene Court had declined to halt

~ a Ome

that execution. Minutes, ‘before the ‘scheduled execution, Justice

white ‘granted. a stay, noting that, “ein view of our decision to

35 give (Barris: ve ‘Pully) ‘plenary consideration, I cannct say that

"" the [proportionality] issue lacks substance." $2 0.S.L.W. 3293

REGS Be

P © Oo

(October il, 1983).

Tc these recitations of developsents in other cases,

including actions and inactions in the Supreme Court, we woulé

ata the developeents in williams’ own case, because of a unique

fact. That fact is that the Supreme Court may well conclude the

it bas already determined that Williams’ clais No. 1 on

proportionality its without merit. In the decision of the panel

649 F.2d at 1021, we rejected Williams’ claia of inadequate

proportionality review. This was afficaed by the en banc court

where we stated:

Although the Supreme Court bas referred to statewide

reviews as commendable in the effort to insure again:

an arbitrary ingeaticen: the death penalty, it has

never implied t such review is a constitutional

requirement. Gr id

Flocida, supra; Jorek wv. Texas, 4 ° ’ s.c.

‘gh 5G, 49 L.8d. ( }). The review quoted above

yee} 22 ees yt | te safeguards against freakish

= aS mposition of capital punishment. Just as & venire

~" *2" = chosen froma cr s-section of the community in whic:

es the crime is committed {g an adequate constitutio

-_ = A « gafeguard against arbitrary imposition of verdicts &

sentences, so 2 review of the murder convictions

‘{mposed within that venire comajunity is sufficient %

ensure against arbitrary imposition of the ceath

penalty. We concur with the statement in the 1

decision vf this case that “we have beard nothing th:

«would even hint at unconstitutionality, and wholly

reject the argument.* 649 F.2d at 1021.

, Williams v. Maggio, 679 F.2d 381, 395 (Sth Cir. 1982) (en danc

On June 27, 1983, the Supreme Court denied certiorari, __0.8-_

103 $.ct. 3553 (1983). . But that was not the end of it. A ste

of the effect of the denial of certiorari was granted by Justi:

Brennan on July 14, 1983, pending determination of Williams’

rete

os 3) =)

petition for rehearing, which specifically requested that Court

to delay its decision on the petition until it Gecided Barris v.

Pulley. In the face of this and the described other developments,

the Suprese Court on Septenber 8, 1983 denied the petition for

rehearing. ;

we must issue a eartiticate of probable cause and @

stay pending full review uniess we find that reasonable jurists

could not disagree on the claims raised by the Petitioner. See

Barefoot v. Estelle, _U. Ss. Sg © 2» BS 103 s.ct. 3383,

“Bs 4, 7 L.Ed. 24 1090, 1104 n. 4 (1983).

* es we are not perecatel: that “Williams has been denied any

2 , 2Y

constitutional right to a proportionality review of his sentence.

~_ We have explicitly so held, “and as noted, the Supreme Court has

; ' not chosen to. review that Fuliag, despite Williams’ request that

. » °4

eae ~ it go 9038 Nevertheless, = eee recent actions cf the Court suggest

Paes v8

* £

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the possibility. that a coaplete ten ef the law on this matter

1 ;

omy, be ancicipated. with a person’ s life at stake, we must await

that review or further Sirections from the Supreme Court. For

that reason, ‘the requests for wongySsecte of probable cause and

stay of te GK, pending review, are granted.

* ae: “As to all claims” ve have carefully considered each

—_ -

of thea, and we expressly find ‘that each is without merit. We

AFFIRM the District Court's 2 Judgment as to each.

‘ -

r G

A Certificate of Probable Cause and Stay of Execution

are hereby GRANTED, and the judgment of the District Court is

AFFIRMED.

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_——_——— 8 oe Oe Ore row eae

eye sh COURT OF THE UNITE lee

SASHINGTON, O C 20543

NowecSer 7, 1383

Kay Kirkpatrick, Esq.

Assistant District Attorney ot 2

Nineteenth Judicial Oistrict e

Baton Rouge, Lowisiena 7030!

RE: Ross Maggio, Warden, et al.

v. Robert Wayne Williens, m -

- “Q@ >. Eel Se t

tis 4p

. ae

. pve oy

Dear Ms. Kirkpatrick: oe = “| “~ ‘ Fetes

The Court today granted the apptication to vacate the stay iad eat

of execution of sentence of death entered by the United States ta “as ae

Court of Appeals for the Fifth Circuit in order te allow the State “gts ae ae

to reschedule Williams” execution. See the attached per curian eee 1 2

opinion together with the opinion of Justice Stevens concurring . ese

in the judgrent; the opinion of Justice Brennan, with whoa Pin 2 teens»

Justice Marshall jotns, dissenting; and the dissenting opinion of 8 eS

Justice Blackaun. ~e5 PON oon, gas cet 83 +, Pe SS a aang J

; . +" PS aS = _é one « ! >< ..a0* ay TA ee a

S: €eh5-- Bn ee” cS Nery ‘traly yourks Oooo ne Fey > RS

or ALEXANDER L. STEYAS, Clerk et Sle

4 b: - : wt “ .

aoe + By wv Pee . Se

4 We te. FTF ae Nee a orate

be j Francis J. Lorsoa

Chief Deputy Clerk

Enc. 1. 5°

cc:

Samuel S. Dalton, Esq.

tun. David C. Treen ~~ ‘

Hon. Willfaw J. Guste, Jr. © >

Gilbert F. Ganucheau, Esq.

Clerk, U. S$. Court of Appéals

for the Fifth Circyvit

(your No. 83-3547)

Barbera A@uttiedge, Esq. ‘

Clerk, Suprece Court of Louistana

Loufsfana

Clerk, Distrfct Court for the Parish

of East Baton Rouse, LA

‘. ‘

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” Clerk, U.S. District Court of MO of .

SUPREME COURT OF THE UNITED STATES

Ne AD

—_—- - ——_ ——

ROSS MAGGIO, WARDEN »v. ROBERT

WAYNE WILLIAMS

ON APPLICATION TO VACATE STAY

~ « Qhewember 7, 1983)

Per Curia. S. wets ~

On October 23, 1983, less than two days be

cuit stayed the execution “pending final the Su-

preme Court” Because we agree with applicant that the

stay was improvidently imposed, we grant bis motion to va-

cate the stay and to allow the State to reschedule Williams’

execution. J. Pe yt:

Wiliams was sentenced to death for killing a security

guard while rot bing a grocery store in Baton Rouge, Louisi-

ana. His conviction and sentence were affirmed by the Lou!-

W Diam’

proved unavailing im the state courts. The Dutrict Court

held no hearing, but issued a written opinion denying Wil-

Hams’ petition. Williams v. Blackburn, 639 F. 2d 1019,

1021-1026 (CAS 1991) (Lxcorporating District Court's deci-

sion). The District Court’s judgment was affirmed by 3

panel of the Couct of Appeals for the Fifth Circus, dut an

order was entered directing thit the appeal be reheard en

"4 3 sth

ay. fs te

AW01— APPLICATION

2 MACCIC « WILLIAMS

bane. On rehearing, the en banc Court of Appeals rejected

each of Williams’ many objections to his conviction and sea-

“as tence and affirwed the judgment of the District Court. Wil-

liams ¥. Maggio, 679 F. 2d 381 (1982) (en banc). On June

27, 1983, we again desled Williams’ petition for certiorari,

— U. 8. ——-, and we denied his request for rehearing oa

+ September 8, 193, —— U. S. ——.

“4 After unsuccessfully renewing his attempt to win relief in

the state courts, Williams filed a second petition for habeas

_ viewed Wiliams’ claims and “expressly [found] that each is =

‘ " without merit.® Williams v. Magzio, No. &-3647, slip op., ) te

28S at 8 Oct 12, 1983). In light of recent actions by this Court, ~ Te >

fer ,° Appeals concluded with respect to = 24" eS

>. | Williams’ “proportionality” claim that “a complete reviewof- 9. 9 5s - GS >

_ TL ~ the law on this matter may be anticipated. Withaperson’s” = ‘

-. ° Wife at stake, we must await that review or further action

from the Supreme Court.” Jd: -

‘ ‘ ..*

a a ei ~ ie

; ——™-- Just last Term, we made clear that we would not automati-

‘ _ cally grant stays of execution in cases where the Court of Ap

we * peals hot denied a writ of habeas corpus. Barefoot v. Es-

;

“a>, "== * only if there exists “‘a reasonable probability that four mem-

a. : bers of the Court would consider the under!,ing issue sufS-

A201 APPLICATION

MACGNO « WILLIAMS 5

The grounds on which Williams would request certiorari

and

Appeals. None of these claims warrant certiorari and ple-

nary consideration in this case. Accorfingly, we

that the stay, which the Court of Appeals apparently granted

in view of the possibility that we would disagree with its anal-

ysis of the constitutional issues ralsed by Wiliams, ahoald be

claims may be summarized briefly. He argues,

that the Louisiana Supreme Court reviewed the

of his death sentence on a district-wide rather a

“.

‘’

. ‘

. ;

~~ Pad

“© om@e@e@ece

A-31-- APPLICATION

»* ae

» < dvi .

Boop!

thay 4 ;

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Vg PEE

9 oe 4

se . **

bo Rae

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Ba: FMR arta

o i. ate ah or vai

‘ ™. , ‘2 / iw Shae: ant pag r+ ¥

RD ir a eee oe Td Ge ce

a & Ws ne . ee eae WN, ‘3 at be :

s ota - ha V3. tis : “ (0 APifet. MG ot?

¢ « 3 if? ‘s Sp! eee oy oe ty i t \e , *. 4

moe Bat Bs re % ED a oes ar Mg Sa Ste tat}

ifs hee vd a ay “a oe 43 7 Py . Py Ye ‘ss : 3. >

- ‘ r, Fee AN, tee Re 3 , ” pt Pinw . . oe

SS aie Can Mh Oa | “ >) ee A teen |

. “we Se tere ak oy Ty ae

RE AR be ORAS ba ts

;

{

g 8

si!

e law, and the District Court’s review of the

‘

under stat

led &

A&-— APPLICATION

MAGOIO « WILLIAMS 5

characterized the evidence proffered by Williams or the

question whether the jury was less than neutral with respect

to guilt as tentative and framen and we cannot com |

‘ cute that abused Es discretion In refusing to hold an

. evidentiary bearing on this issue. Further review is not

warranted. al

Williams’ challenge to the Louisiana Supreme Court's pro-

portionality review also does not warrant the issuance of a

writ of certiorarL The en bane Fifth Circuit has carefully

examined the Louisiana Supreme Court's procedure and

S found that it “provides adequate safeguards against freakish

: imposition of capital punishment." Wiliams v. Magjo, 6:

re F. 2d, at 396. This conclusion was challenged in this Coart

in Williams’ petition for certiorari following the Court of Ap-

peals’ decision and {fn his motion for recons:deratice of our de-

nia! of that petition. We were, of course, fully aware af that

time that we had agreed to decide whether some form of com-

parative proportionality review is constitutionally required.

. See Pulley v. Harris, 460 U. 8. —— (1983).

= ee Since agreeing to decide this issve in Pulley, the Court has

ee Foes tae : consistently denied challenges to the Louisiara Supreme

ah Fae ~.,, - Court's proportionality review scheme that were identical to

pet = 5: ss | that raised by Williams. See Lindsey v. Lowisicna, 464

a U. S. —— (1883); James ¥. Louisiana, 464 U. S. — (1983);

Bee ton, % - Sonnier v. Louisiana, 463 U. S. ——, rehearing denied, 464

&,?:.)- ' U.S —— GSS. See also Narcisse v. Lowisicns, 4

t See ae U.S. —— (1983). Applicant asserts that his execution

(SE ‘ should be stayed because we have issued a stay in another

— ER a Louisiana death case, Baldwin v. Maggio, 464 U. S. ——

Ree Se ” « (1983). But’dar decision there turned not on the substantial-

f “ ity of appticant’s Pulley argument, but on the fact that appli-

° p-e~oF - cant raised 2 substantial challenge to the effectiveness of his

ee SE - trial counsel, similar to those we shall resolve in two cases set

oss f° 9) for argument this Term. Strickland v. Washington, 462

e UL S —— (1983 United States ¥, Conic, 459 U.S —

~ 00D... 5 0 SAN eet 7 LSS

ol 6 ey tee ee

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fo :

ers eon ee Fe 25 Bees <p Bi :

ee kit ase fa, za rm + “+ 2

= - . ae a.

AL APPL:C ATION

s MAGCIC e WILLIAMS

;

“\ same. Nor did Williams convince the lower courts that he

4 might have been prejudiced by the Louisiana Supreme

+ Court's decision to review only cases from the judicial district

"= . in which he was convicted. the District Court ex-

: amined every published of the

eget “S Gemlog & South tontaass wi

a Ces tence was not

Sabie 3. b-; Se revew was on a ee

pep o> basis, We sed io reason to disturb that Jodgment. 9

rs "oe Williams has not shown, nor could he, that the penalty im.

ake posed was disproportionate to the crimes be was convicted of

«committing: |

se ® a ul

“ ™ The District Court’s careful opinion was fully reviewed by

the Court of Appeals, which found no bas!s for upsetting the

= - District Court’s conchusion that Williams’ contentions were

i meritless. The arguments that Williams raised for the first

~ time in these are insubstantial, and the argu-

:* x ments that be has attempted to relitigate are no more

: . sive now than they were when we frst rejected them We

= .

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: .

’

MACGGIO « WILLIAMS 7

conclude, therefore, that the stay entered by the Court of

Appeals should be vacated.

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SUPREME COURT OF THE UNITED STATES

Ne AW

ROSS MAGGIO, WARDEN v. ROBERT

WAYNE WILLIAMS

OM APPLICATION TO VACATE STAY

_« (Newenber 7, 1983)

Justice STEVENS, concurring in the Judgment.

“I wont to read you some laws because something they

[the defense] said, dont sentence Uris man to death,

don’t kill this man. You see, you have the lest word on

the verdict, and it but, by far you don't have the last

word’on it f you return & The Louisiana Supreme

Court has enacted a series of statutes that I want to read

to you. What happens if you return a death penalty in

this case. Because the law that’s set up is very exact-

ing, detaited and complicated procedure for a review of

this court, the Losisians Sepreme Court, and other

courts before any death penalty can be i=posed. The

law states, 905.9, Review on Appeal, The Supreme

Court of Louisiana shall review of every sentence of

death to determine if it is excessive. The Court, by

rule, shall establish such procedures as necessary to sat-

isfy constitutional criteria for review. And, then the

¢ -

A-11--APPLICATION

2 MAGGIO » WILLIAMS

statute, they enact it. See, not necessarily, its’s manda-

tory that the Supreme Court review it. There's seven

judges on the Supreme Court, The highest Judges in

% this state. For it to be upheld, four of them will have to

the influence of passion, prejudice or any other arbitrary

: factors. If they decide it was, they can reverse and

Fel

Hitt

tht

a E

‘

;

ROBY

eri

ing both the erime and the defendant. If they dont

wr MACGIO ». WILLLAMS 3

Cs" a the Suprema Court will review, and determine their deci-

epi S mon whether or not f you decide to give him the death

a penalty, whether or not you were correct or not, but you

rag ’ see,—it use to be one.” Tr. 20-292, 296 (emphasis

5° supplied).

ee In my view, this argument the jury to err on

ce , the side of imposing the death sentence in order to “send a

reat message” since such an error would be corrected on appeal

ae (while a Efe sentence could not). I do not believe that argu-

ment accurately described the function of appellate review in

Se : ' Leuisiana The Supreme Court does not review

ye ve" + “everything” that occurred during the trial. If it finds that

sae <u ue aggravating factor supported the jury's verdict, it will

par not consider the defendant's claim that the jury improperly

it : relied upon other aggravating factors in reaching its verdict.

we eee See State v. James, 431 So. 2d 399, 405-406 (La), cert. de-

sae nied, _— U. S. —— (1983). That role was applied by the

eee Louisiana Supreme Coart in this very case. See State «

my Williams, 383 So. 2d 369, 374 (La. 1980), cert. denied, 449

o3%--" U. S 1103 (1981). While that limitation on appe“ate review

fw. is constitutionally permissible in the context of Louisiana's

See y - death penalty statute, see Zant v. Stephens, — U. 8. ——.

a oes . , A983), given the state-law premises of Loutsiana’s

OP aie = punishment scheme, see James, 431 So. 2d, at 406, it cer-

pe : “ tainly is a more limited form of appellate review than that de-

‘Dee scribed by the prosecutor. aoe a

- In_my opinion, the argument was cial to ac-

<a cused, both because it appears fo have e law and

= a because it ma have led the jury to discount its grav¢ respop-

a * a

Sir. - sibility in determining the defendant's f A prosecutor

L- should never invite a jury to err because the error may be

oe » * Gorrected on appeal That is especially true when the death

—. _ i 5 =. penalty is at stake.

<>: a5. fn ne rrbeless, because the essence of this issue was raised y

a td prior proceedings questioning the competency of trial

=: counsel—who failed to object to the argument when it was

A-311— APPLICATION

Tae ed ey

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A 301 —AFFLIC ATION

MACGIO s WILLIAMS

made the Court is justified in applying a strict standard of

review to this second federal habeas corpus application. See

Sanders ¢. United States, 373 U. S. 1, 15-17 (198). Ido not

find an adequate justification for petitioner's Galure to raise

this argument in his earlier federal habeas action. Since pe-

titioner did raise the related argument of ineffectiveness of

counsel, he was no doubt aware of this argument and may

have deliberately chosen not to raise it in the first habeas cor-

pus petition See Barefoot v. Estelle, —— U. S$. ——, ——

(1983); Rove v. Lundy, 455 U. S. 509, 520-S21 (1982) (piural-

ity opinion); Fay . Noia, 372 U.S. 391, 3-40 (1953),

Townsend v. Sain, 372 U.S. 293, 317 (1963). Moreover,

n. 8 (STEVENS, J., dissenting).

without misgivings, I concur in the Court's decision to deny

the stay application. .

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SUPREME COURT OF THE UNITED STATES

: aaon ee Ne A201

ROSS MAGGIO, WARDEN v. ROBERT

- | : : WAYNE WILLIAMS

ON APPLICATION TO VACATE STAY

: - S| Pheowenber 7, 1980)

> Jusnice BRENNAN, with whom Justice MAssHALt joins,

of execution granted by the Court of Appeals.

wo / Pas ca a 3

-* Bien if I accepted the prevailing view that the death pen-

alty may constitutionally be imposed ander certain circum

” \See Williams « Maggio. Ne S2-26s7 (CAS Oct. 23, 198. Prior to

the action of the Court of Appeals, the execution of Wiliars had Seen set

for berwces L200 a m and 3:00 a mm on Tutsday, October 75, 1953

as Suse A201 APPLICATION

. *-

> Se 2 MACCIO s WILLIAMS

condios stances, I would deny Louisiana's applicatic: in this case be

a cause Williams has raised a substantial constitutional claim

hn th, concerning the disproportionate nature of his sentence.

eae On Novernber 7, 1983, the Court will bear oral argument in

ss ie Pulley v. Harris, No. 2-106, to consider whether the Coa-

Nese c scItution requires, prior te the execution of any death sen-

ri 9 - * tence, that a court of state-wide jurisdiction determine

os” 3 = whether a death sectence is proportional to the crime com

ae Soe mitted in tight of the sentences received by similarly chai ged

ee Fs and convicted defendants in the state. Specifically, the

ae “= questions presented to the Court for review are (1) whether

ic the Constitution requires any proportionality review by a

a court of state-wide jurisdiction pr‘or to the execution of

Sega > - state death sentence and (2) if so, whether the Constitution

ngs , . requires that such review assume any particular focus, scope,

. Ss. or procedural structure. Williams maintains that the order

* Urs of the Court of Appeals staying his execution should be al-

-.*2," lowed to stand pending this Court's plenary consideration

* om bagh and disposition of the issues raised in Pulley. There is sim-

SR _-\. His commonsense position rests on several related argu- .

VERY. 42> mente. Initially, 8t is beyond dispute that the constitutional

~# =" Tip *", status of proportionality review is currently unclear. That is

aS? 5. * ~~~ undoubtedly why the Court granted the petition for a writ of

a ot certiorari in Pulley. See 460 U. S. —— (1983). It is also

why Justice Wurre, just last month, stayed the execution

aes .4 of James Darid Actry pending our decision in Pulley. See

Az... A Autry v. Estelle, 464 U.S. —— (1983) (Wurrt, J., in cham-

— bers). See also infra, at ——~ Given this uncertainty, it

fy: _ seems grossly inappropriate to allow an execution to take |

eo " place at this time if the condemned prisoner raises a non-

S ES * tence. And im this case, Williams has raised at least two -

ay. - ponfrivolous, and indeed substantial, claims concerning the

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A-301 APPLICATION

MAGGIO « WILLIAMS 3

First, Williams contends that the Supreme Court of Louisi-

ara hes denied him due process of law by undertaking only a

district. or parish-wide proportionality review in his case.

See State v. Wiliams, 353 So. 2d 369, 374-375 (La. 1980),

cert. denied, 449 U. S. 1103 (1981). He properly notes that

price opinions of this Court nave suggested that state-wide

proportionality review is required before any constitutional

death sentence may be carried out. See, @.9., Gregg v.

Georgia, 423 U. 8. 153, 198, 204-206 (1976) (opinion of Stew-

art, Powe, and Stevens, JJ.) (approving death penalty in

Georgia where eppellate cocrt examines whether the same

sentence has been imposed “‘in similar cases throughout the

state’); id, at 223 (opinion of Warre, J.) (noting with ap

proval that the state supreme court vacates the death sen-

ae eras fuites serese the State imzone B eoly rarely

for the type s Given that the neces-

cution of a condemned prisoner raising a nonfrivalous claim

° Vg + i?

"See abo Profit ¥ fe

Stewart, PowrLt, and Stevens, JJ.) (approving death penalty In Florida

where appellate review is done “by a court which, because of its statewide

Jurisdiction, can assure consistency, fairness, and ratiocalty” in the impo

4 sition of the penalty), Juret «. Tezas, 23 U. S B62, 276 (1975) (opinion of

a Rewart, Powsit. and Stevens, J3.k Lent « Stephens, —— U. s —,

4 anda 19 NSe.

*The Court does not conclude that Williams’ challenge to the discrict-

wide proportiocalty review undertaken by the state spree court is 8

frivolous or eves a norsubstantial daim: Indeed, at least one justice of

the Sapreme Court of Loutsiara has argued that the Lmited scope of such

~= fevlew does oct satiafy federal constitutional tacdarts. See Sic «

. Prejece, we nc tor peal egos 7 hhgaece eaten

* dexial of rebearing).

; .

as *

—

a."

A-DL— APPLICATION

‘4 MACGIO «. WILLIAMS

Second, even if a proportionality review limited to a sing'e

judicial district might eventually be beld to pass constitu.

tional muster, Williams notes that recent decisions of the Sa-

preme Court of Louisiana have randomly applied proportica-

ality reviews that are state-wide in scope. See, ¢. 9., Stala

% Moore, 422 So. 2d 209, 225-228 (La. 195) (limited com-

parison of first-degree murder cases state wide), State v.

Narcisse, 425 So. 2d 118, 138-139 (La 196) (similar com-

parison between several districts rather than the customary

one). The state coart’s failure to adopt any consistent ap

proach in its review of capital cases, combined with its failure

to offer any reasons for these different approaches, suggests

that his death sentence has been imposed in « capricious and

arbitrary manner. Agzin, st least until this Coyrt clarifies

" .. the need for, and potential scope of, proportionality review in

. Pulley, I find it startling that the Coart should allow this

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A simple examination of the proportionality review that

es Rae

‘fesce warranting 0 grant of certerarL” See onte, af ——." But as noted

the

r . Therefore, the Court's conclusion thst cai

raised by Wiha-s |s sot “certworthy” is directly contradicced by the

Court’s actions in Pulley. See also Baldwin « Maggio, 104 F. 2d

* Article 906.9 of the Louisiana Code of Criminal Procedure requires

. that the Supreme Court of Louisiana “reciew every sstence of death to

~ a determine f 2 is excessivy” and Erects the court to “establish such proce-

Piveg ? if <3) +o” dures as are secemary to satinfy constitutional erReria for review." La

4° . 2 ? Code Crim. Proc. Ann, Art. 905.9 (West Supp. 1983). Acting purscant to

Bev > FS that rection, the court has adopted Ra ows Rale 28, which provides in

te he see eye relevast part thet “Tin determining stether the sentence is et-rssive te

cS oe “2. qqurt shall determine . .. whethar the sentence ts Gsproportionate to the

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A-201—APPLICATION

MAGGIO « WILLIAMS B)

The review was undertaken in April 1980, when Wibams’

case was on direct appeal before the Supreme Court of Loui

siana. The court compared the circumstances of WLiams’

crime with the crimes of other capital defendants in the Nine-

teenth Judicial District for the Parish of East Baton Rouge,

Louisiana, the d'strict or parish in which Williams was tried

and convicted. At that time, only 28 murder prosecutions

had taken place in the district since January 1. 1976, the rele-

vant date under state rules on which to begin the comparison.

Of those 28 prosecutions, only 11 resulted in convictions for

first-degree murder. And of those II, only 3 defendants

. were sentenced to death. Like Williams, all three were the

actual killers in a murder taking place during the perpetra-

tion of an armed robbery. And the court conclusorily nuted

that the crimes cocumitted by the 8 defendants receiving life

imprisonment had no aggravating circumstances or some

miligating circumstances and therefore were distinguishable

from Williams’ case. But, as the state court also admitted,

Williams had no significant prior criminal record and may

have been affected by a drug-induced mental disturbance.

Therefore, the proportionality review undertaken in this

case, imited as it was to a few cases arling in a single judi-

dal district, could not ensure that simTarly situated defend-

ants throughout the state of Louisiana also had received a

death sentence.

Louisiana has a total of 40 judicial districts in which a death

sentence may be imposed. They apparently range from dis-

tricts that cover primarily rural areas to a district that covers

penatty imposed im simDar cases, considering both the crime ard the de

fendant.* Loulslara Supreme Court Rule 28, § Ke).

Moreover, the system for apceTate review in Louisiana vas nt eatonally

pecterned after the prwedure for review autSorzed by the Georg s teath-

153 (1978). See State v. Sounier, 379 So. 24 15H, 13 (La 19H. The

Georgia proceturt, of course, inchades a propordoeality revies ‘hat com-

pares a death sentence to other sentences imposed ‘Rroughout ‘he stole

Gregg «. Georgia, rupra, at 204-204, ee rupra, 2. -——.

& ©

A OL APPLICATION

4 MAGGIO » WILLIAMS

the urban center of New Orleans. Yet by allowing the Sa-

preme Court of Louisiana to limit its proportionali’y review

to a particular district, the Cou: today sanctions a practice

that undoubtedly results in different sentences for similarly

situated defendants, dependent solely upon the judicial dis-

trict in which the defesdant wastried. Thisiathe essence of

arbitrary and capricious imposition of the death penalty that

the Court has cocsistently denounced. “A constant theme of

our cases... has been emphasis on procedural protections

that are intended to ensure that the death penalty will be im-

. posed in a consistent, rational manner.* Barclay v. Florida,

43 U. S ——, —- (1993) (Stevens, J., concurring). Cen-

tral to these protections is a system that includes meaningful

appellate review for every death sentence. See, ¢.g., Zant

v. Stephens, 462 U. S. ——, —— (1983); Gregg ¥. Georzia,

gupra, at 195, 204-206 Given the existence of only one

statewide death pecalty statute approved by "ts Louisiana

state legislature, requiring that all courts and juries across

the sta'e apply uniform legal standards before imposing a

death sentence, there can be no doubt of the substantiality of

the constitutional question whether the state supreme court

may apply different standards of appellate review depending

on the judicial district involved.

In sum, Williarss has raised a substantial claim challenging

the constitutionality of his death sertence which is encom-

passed within the questions presented to the Court in Pulley

v. Herris. Given the severity and irrevocability of the death

sentence, it is shocking that the Court does not follow its nor-

mal procedures in this case. Under these procedures, the

stay of execution should be left in force pending the timely

filing of a petition for certiorari, and the final disposition in

Pulley. In

The Court offers no defensible rationale for depar*ing from

this sensible practice.’ Its action in this case is especially

—

*On several occasions, I and other members of the Court have ex-

pressed Esapproval for the * ‘growing and inexplicable readiness . . . to.

A-3OL—APPLICATION

MACCIO «. WILLIAMS 7

troubling because (1) it is based on the minimal fllirgs ass><i-

ated with a stay application, (2) it effectiv ely preempts one of

the questions presented for review in Pulley, acd (3) it ap

parently is an irrevocable decision that will result in Wi-

Hams’ execution.

Less than four weeks ago, on October 5, 1963, JusmicE

WHITE stayed the execution of a condemned prisoner who

mere hours before his execution, claimed that he had been

denied due process because the Tews Court of Criminal Ap

pea’s had failed to subject his death sentence to any propor

tlonslity review. See Autry ¥. Estelle, 4A U. S. ——- USD)

(Wurre, J., in chambers). Justice WHITE concluded that

Autry’s execution should be stayed pending disposition of

Pulley because the Court’s decision in Pulley will likely have

a bearing on the validity of that prisoner's last-minute claim

Since then, the full Court has refused to vacate that stay.

44 U.S. (1983). Incredibly, the sensible practice fol-

lowed in Autry has been rejected in this case because the Su-

preme Court of Louisiana utilized a limited proportiorality

review whereas in Autry the state court did not apply any

such review. For presest purposes, however, this is a dis

Pulley decisioc is intended to clarify.

It is no answer that the Court has consistently denied chal-

eluding Williams’ own challenge to that review in his petitioa

for certiorari on first federal habeas. 463 U. S.

For each of these denials, as is true of all denials of cetiorari,

are not decisions on the merits of the issues raised in the re-

spective petitions. More important, in none of those cases

‘Gispose of cases samruriy.’” Hutte « Davis, 4 U.S. 379, e788

(1942) (BRaocean, J., dissesting) (quoting Varru « Rivera, 44 U.S 3.

349-359 (1981) (Mansmatt, J., dissenting!) For the various reasons et-

pressed in the text, us practice proves especially disturbing in dus case

A-D1—APPLICATION

4 WAGGIO « WILLIAMS

did the Court’s denia! of certiorari involve an imminert date

of execution. In this case, by contrast, the Court's action

will allow the execution of Williams to proceed to its fatal con-

clusion even though uncertainty overhangs the c nstitutional

legitimacy of the process by which his death sentence was

affirmed.*

Nor may the Court take comfort in the fact that, in the

course of denying Wiliams’ request for habeas re‘ief, the fed-

eral District Court conducted an abbreviated state-wide pro

portionality review based on the published opinions of the Sa-

preme Court of Louisiana. Although the District Court

concluded that Williams’ sentence was not disproportionate,

that Anding is largely irrelevant to the issue raised by Wil-

Hams. The District Court’s judgment regarding the propor-

tionality of the death seatence is insuMicient because it can-

pot substitute for the state supreme court, which is

presumably more familiar than the federal court with the im-

portant nuances of the state's death-penalty jurisprudence.

Moreover, because Williams’ requested remedy oo habeas

was a reraand to the state court for a state-wide proportional-

ity review, the District Court did not have the benefit of any

arguments from counsel for Williams on how that state-wide

review should be conducted. That the District Court con-

ducted a hasty proportionality review based solely on pub-

lished opinions from the state supreme court should not be

deemed constitutionally sufficient.

Finally, the Court gives insufficient weight to the potential

prejudicial effect of the limited, district-wide review con-

ducted in Williams’ case. In fact, Williams’ habeas petition

* oder Louisiana law, “W any federal court. . . grants a stay of exec

. hoa, the trial court shall x the execution date at not less thas thirty days

par tore than forty-Gve days froe the fissolution of the stay order.” La

Rex. Stat. Ana § 15-567 (West Supp. 1983). This means that Willams’

execution can be rescheduled mere weeks after this Court bears oral argz-

mest in Pulley, at a time when it is extremely unllact; that the Court will

“have already rendered ts decision in that case

A-1— APPLICATION

MACCIO « WILLIAMS ’

has identified at least two specific ways in which he has bees

prejudiced by a district-wide, rather than a state wide, pro

poctiorality review. First, he claims that there has never

been a state-wide pattern of death sentences for persons

committing murder during armed robbery, especially when

there was a close question whether the murder was cosemit-

ted with specific intent or was simply accidental. Second,

Williams claims that his case presented mitigating circum-

starces comparable to various cases in other parts of the

state which resulted in sentences of life imprisonmert.

These are exactly the types of disparities stich a prop ctica-

ality review of proper scope would discover.

The Court, therefore, plainly offers no reason for treating

this case differently from any other stay application rusing

questions which are encompassed withiz a substantially simi-

lar case then pending on the Court's plenary docket.

Rather, “an appeal that raises a substantial const tu"ional

question is to be singled out for summary treatment solely

because the State has announced its intention to execule . . .

before the ordinary appellate procedure has run its course.”

Barefoot v. Estelle, 463 U. S. ——, —— 0553) OU 2SRALL,

J., dissenting) (emphasis in original.’

cerning the prowecutor’s argument to the jury. That argument unduly

Williams becsuse, by overstating the role of appr late review,

aarepresesiac

iasve of galt See, ¢. g., Witherspoon «. [Mingis, Ti U.S. 549. 516-518

(1s). See also Bumper ¥. North Carclina, 391 U. $ 543, 545, ard

A 3 APPLICATION

0 MACGIO + WILLIAMS

By vacating the stay granted by the Court of Appea’s and

allowing the execution of Williams to proceed, the Court is

implicitly choosing to one of tao wholly unacceptabie

alternatives. Either the prior to its full corsideration

of Pulley, is preempting any conciusion that the Constitution

mandates state-wide proportionality review, or the Court is

tional Only a®er full consideration and disposition of Pul-

ley will the Court be in a position to determine with reason-

able assurance the validity of the claims raised by Williams.

I am appalled that the Court should be unwilling to let stand

a stay of execution pending the clarification of this issue.

I dissent.

“ip

SUPREME COURT OF THE UNITED STATES

Ne At

ROSS MAGCIO, WARDEN ev. ROSERT

WAYNE WILLIAMS

ON APPLICATION TO VACATE STAY

(Nevrember 7, 1553]

Jusrice BUCcKMCN, dissenting.

I would not vacate the stay granted by the United States

Court of Appeals for the Fifth Circuit untii this Cou-t decides

Harris v. Pulley, argued on November 7, 1983. [I share

Justice Brennan's view that the resolution of the propor-

tionality issue presented in Pulley inevitably will have some

bearing on the proportionality issue raised by Robert Wayne

Williams. To be sure, the decision forthcoming in Pulley v.

Harris may or may not be favorable to Williams.

that may be, by vacating the stay, the Court today sum-

marily decides the issue against Williams and, to that extent,

pre-empts Pulley.

It seems to me that standards of orderly procedure require

that the stay of execution granted by the Fifth Circuit remain

in effect until Pulley is decided. I therefore dissent from

« what appears to be an untoward rush to Judgment in a capital

case.

“

APPENDIX D

— -— -—-

| méeultac CaouSinG sagurtat

State

eY 44. Simeve fi &cas

tL eQUL0 wwlCALY CORMERT Om «2 COUPLE OF POLNTS Taal

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sir amo LISTEN (G THE TOTALITY OF THe EVIDERCE AMO NOT MAKE

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,coaenre ga PAROLE, Tre OcPaaTaeat OF CORRECTIONS TO PROVIOE

| amy LePGa MATION MEEQEO. ME waS TO CAUSE A SENTENCE

tmves ties LOn [0 e€ COMOUCTEO AND THE aePort TO 8€ ATTACHES Ln)

Tré UNIFURA CAPITAL SENTENCE REPORT, & SePARATE OGCURENT. Two

JOC URENTS af That POINT wILl BE AEVIEWEO. That aerpoat SOES

UnTG Ime OeFenOanT’S Paton CALAINAL aCTivitYs Fani.Y

SITUATION» BACKGROUND EQUCATION, ECONORICs EAPLUYRENT STATUSs

any OTwed xckewaal Factors CONCERNING THE DEFEROANT. THE

a ne ee

acPORT Smal S& SEALED EXCEPT aS PROVIDED BeiOue OEFENSE

COUNSEL ANO The OLSTRICT ATTGANEY SMALL BE FURNISHED & COPY

—— Steves OaYS TO FALE & eRITTEN OPPOSITION TO Tre FaCTUAL

‘paren ELTHER SLOEs ANOTHER REPORT. IN ADOLTAION, THiS 15

SeCT LON FUUEe ScmTENCE KEVIE®W MEAQRANOUM, ANOTHER scpararte

aid In AVOLTAON TO THE OaleF REGUIRED ON APPEAL FOR evil

j :

| OE TERRI MalLON al Talats Ta€ OLSTRICT aTTGameY and O&FEnuaNT

$aauw Face & SENTENCE atVicw MEMURAROUA AQOKESSED IG Tre

’

‘ paurnietr 36 Tee SENTENCE BOTH $1065. Tee FOAR Sait COMFORA

Ee —_——

In 30 Faw aS aPPLiCaBie mm AEQuIAEO FOR oRLEF. THE OLSTRICT

\ arrommer in THES CASE» TYR Oe ASSESTANT DISTRICT aTtuRney, |

st foe THe OLSTRICT atTToaméeY. Tet DISTRICT aTTOaneyY Smace

FILE & Ae uaanOuF OF ena.’ OF The aTaTe in Tee TIME PROVIDED.

[He RERUEARUUR ShOek iwetuoe o— LASTER TC THiS. YOu SEE

Dueti tesee: @euuT Teese ofeee DOCURERTS. i Trina Teeae’s

sour Su Face OUT ELSTER TO Tris. &@ &AST OF EACr Frast véenet

—MUROEM Care im Tre OLSTAICT wniCr Sentence was invosed after

j sanuaat Le L97e. Tre List SHOULD [mCLUDE Tmt OOCAcT RUBEN,

| CAPT Lone cine CUMVICTEde SENTENCE aCTuacit LAPOSEOs &

;SYNOPSLa Or (HE FACTS ANe RECORD CONCERNING Trt CALME OF THE

| Der eNDART a aYnuPSIS OF THE FaCTS anO RECORD CONCERNING ThE

CALE Ur Tm€ OEFENOANT Lm THE IMSTAMT Cad€» AMO ANT OTHER

mATTER RcLaTinG Tu The GuidE LINES Im SECTION le OEFENSE

j Cuunsel 1S a€Quinev TO FILE & AERORANOUR Om SEMALF UF THE

| OEFENDAAT. Tre PERUKRANOUM SHALL AbuAESS ITSELF TO Tre Tate's

MERUKRAROLA AND AMY OTHER maATTER RELATIVE TO Tre SULOE LINES~

Tue sum TOTaLiTY IS teat THERE WAS TO BE & TOTAL PRESENTENCE

QcPual. THe OLSTRICT arTaanecy aS TO FILE eaiers AND

RERORANUUMS Lh ADDITIONe TWERE IS & TOTAL REVIEW uF cweRr’

BLAST VEGREE PURvER Case La THIS PaRISH SINCE Janvaat le 1976

i LLL LS

LOOKING aT TRE FACTS~ ano Teéme LS 4 TOTAL ano COMPLETE

| InveSTiGaTLUN Qume ON THE OEFENOANT TO DETERLNE wmeTHER UR aot

| rney wILL cet TroUm OFCISLON TO [mPOSE THE DEATH PENALTY STAAO~

Sone GALT Tren OGES AT MAKE (T TraguGnm THE LOUISIANA sTaTeé

SuPREne COURT. and Tré OEFEROANT HAS A RlGut, If mé wiSHEs -~

jan mOT SAYING THaT If*s GRANTED IN every Case. IT CuULo S8€

DentEG. IF COULD e€ aPPEALEO ALL THE wat THROUGH Tre UNITED

STATES duPachE Cuvat. You COvLo EASILY SAY wells MK-

SINGUEF EL Os LF AT*S GOT TO GO THAOUGH ALL UF THaTs whY ARE

1Oy waSTinG aba JF THES TROVOLE. IT SOUNDS LIKE if wOULO sé

ET «-

MLL LLL OO

Easice #Je Yuu TO UST Sat GIVE WIA THE LIFE Sentence a49 YOU

Can avOl0 a60uT 314 SONTHS OF euta, If vVOLusTece FUR tral

| wOnK, dae DUNT Somat abGuT AE. Itkk OC LT AMD LPEL See teat

tres Dowe. [fck Ste Taal IT*s oOmwe Ta THE LETTER oF Lae

(geCauSe i THIWa Tels Case OESEaVES iT. 30 OOn'T soaar atuuT

teat. tcc VueunTeta FUR THE STATE'S PART GF THide and iter

; 90 ifs anu ffee See Twat [T*S COME. I PROMISE TOU. SECAUSe I

| twine [mide OUGHT TO BE TwRee THINGS TOU CONSIOeM in Tris

‘case. CeaTaLalLY, Tre OEFENOANT wismeS TOU TO COme Baca )

Sue AEQCTs SmGe feat Trete’S a SITIGATING CARCUMSTANCE wrERE

[4 OOR*T Trina THERE [Se AmO GIVE HIM A LIFE SENTERCE wrheREln I

| oan't Teiwa YOU'LL FIMO a CRIME SORE AICHLY ObscavinG uF THE

| earn PemalTY, amO EVEN UF ITS ULTIMATE ENFORCEMENT, 1F IT

, Even REACHES THAT STAGE iM THIS CASE TOU SMOULD CONSIDER

THREE THINGS IN YOUR DELISERATILONS. AND AGAIN, 1 ASK TOve tF

TOUf ve Made UP YOUR AINUs I “Sa YOU TO RECONSIDER. ano i KNOW

Teal AT'S & OLFF.CULT THING Thar I aSK YOU TG 00. NOW AUCH

EASIER if LSe we ARE ATTUNED TO IT. WE ARE ATTUNED TO SHOW

MERCY LN TRIS COUNTRY, BUT THERE COMES & TIRE AMO [HERE CURES

/4 GCuIME, an I Sav THAT THIS iS IT» Treat Soneacor’s GOT Tu PUT

TwELa SuOT OO wn ANO SAY WE'RE BOT GOING TO GO AAMT FURTHER. IF

YOU OO THIS», YOU'RE NOT GOING TO COME GUT» wE'RE NOT GOinG TC

SWUe YUU MEKCTs e€*KE BOT GOING TO REDUCE ANYTHING. we kE

GOING TU OERANO THE ULTIMATE, THE MIGHEST PENALTY [mar

‘yapereag Law amO OUR LEGISLATURE WILL PERALT>» WITHIN THE

co LimeS FOR REVIEW OF THAT SENTENCE. THAT we'Ké MOT GOING

TO meuuce [T. AawO I Sav THIS IS TmE TIME TO LOOK aT Tris

CRIME. LOOK AT THREE THINGS. O10 I PROWE THE AGGRAVATING

CIRCURSTANCES. ME ARGUED THAT AATSE & OLON'T PROVE ONE OR

TwO. & OOM'T THINK AMYBOOY ARGUES THaT IT waS AN ARMED

a0eecnT. { OMY Have TO PROVE OME SO THAT STaTUTE IS TOTALLY

—

ee =

— re

TSATISFLED. AN 1 QOM'T THINK THERES amy EVIDENCE UTHER THan

| Reauitine SPECULATION» THAT ANT AITIGATING CARCURSTANCES WERE

| PROVED WHATSOEVER, BUT TaaT’S OMT 4 POINT. THaT?S THE

TEGHMLCALITY TraT 4.005 oS TO GET THIS FAR BEFORE THE JURY.

/ 4 Thine | PROWED #E waS im Twé maTUAE OF & PEACE OFFICER. IF

/¥Ou wOm'l Taiwe {| Olée TemGw THaT GmE GuT. THERE'S THREE more

Tat L GEFIMITERY PeuveO. COMNSIOER Taal FIAST, ano i Oanrt

TaINA imeae*S ANT QueSTiGms YOU Cam SAY TmaT i AMET THE

SlaTuluar <€GulRemenT. GUT, TAKING SAL Treat INTO

| CUMS ILERATIONs Ste» BE OOM*T HAVE COMPUTERS Om THIS JURTe &

due? > STILA muman SELNGS 4NQ CITIZENS. ASSUMING Tre

TECHAICAL acPeCTS uF Tee Law AME PROVENs emiCn I OuUm'T Taina

YUU MAVE anf OCUd~» THEN YOU mAVE TG LOUKs I THINKs aT Tre

TOracify UF Tne evi Sence AMO CIRCUMSTANCES AMO SAY TO

VUwadecFs Used mE DESERVE THIS PENALTY. DOES ME CestKvE

McRae uOes mt OcdeRvEe TmaS duar TO COMe GUT ANY LESSEN entaT

hE Wade TO dat Teal TrEme AME MITIGATING CiRcuNaTAncES» Tal

There IS >umt REASON. AO I OON'T THINK Treke SmOULD Be FO

| $nOwe GiVE HIM Sume —— (> (meme? Cam YOU CONCEIVE OF = if

was a Calne TraT 45 PREMEOITATEUs COMCELWED, LT waS PLANNED.

TheYs [T wan't am LAPULSe. THEY WENT OND SOdKuUwED A GUN

TREE Ok FOUR MULAS SEFORE THEY O10 Ite THEY CSTAINED Sat

MASKS» TrcY CASED TmE STORE. THEY MADE EFFURTS TU CONCEAL

| THETASELWES. ImELR OSGECTIVE wAS GAEEO, FOR BONeY WITHOUT

| WORKING FOR LT. THEY WENT Imes THEY MEANT BUSINESS» Trey Had

| ARMED, LA0€D GUNS. THE FIAST THING THEY STRUCK OM, MATSE

| tucte KELLY WASN'T & PEACE OFFICER, suTt SOMETHING ABOUT HIM

| ORew THER DIRECTLY TO MAM. AND THAT#S BECAUSE HE HAO A

| unt FoRA AMy.& GUN. CERTAINLY | [Hink We*'S im Tre SATURE OF &

tan OFFICER. Trey went TO HIN 460 ehEN HE SADE & MUVEs BARe

Trey ALLLEO MIM. TREY O1ON'T SUPPER amt SERGaSE. TheY OlOntT

TGUlT THERE AMD SAY Oiry MUr GE KALLED & Ramey LETIS JusT FORGET

TeES anO GET GUT UF RERES NOs Uneuns susT COML 45 Can SE,

twer Fieslenmé0 Treat 8088687. Sutt THIS @aM%> 1 OLOn'T Sar THIS

‘man Gea! Ime OTREA MON TO The GaGUND, GUT WETS CERTAINLY 4

PuimCiPar TO if. w8°S SCTinG Im COmCeal weiter Tre ?caSOn That

DIG. Ceetainits . trian ne SHOW OE WELD SeSPONSIOLE. E'S

-_ =

Tee ONE WHO SHOT THE SHOT Gum 4nd WIT THOSE Ofmea PEOPLE.

| ate i> The #éaS0N wHY THERET mE'S & STRANGER, & STaamGer 19

Caimi mt OLUR'T ANOw WILLIE KELL Ys OLON'T nave AATTHIine

ASAIMST eALLAE KELLY. GOGK AT GILLIE KELLY. I°A mOT, ano t

STILb» £ ARGUED TmiS BEFORE aa0 T*LL TELL YOU THIS mOws I°R

wUT PREPARED TO BELIEVE THAT WILLIE KECLY 045 UNSMAPPING 15

| STRAP. If YOU wOOK at Tre waTuRe OF THE RAN ANDO whal me GOT

| mbaseur baTG ANy He waS SURPRISED ANDO THERE BAD & RAN wifm 4

SHOT GUA LEVELEO af WIAs AMO ANOTHER UNE TKYANG IU OeT 415

sum. LF YUu LGGA at Tmé ChaaaCTén OF WILLIE KELLY? wlitleé

SELLY AaY HAVE JUST SAL0e TO MECK wlTn TrlS. L*m wOT FIitL%e

TO STANG WERE ANO JUST LET THER Gum AE OUWN OF mck Ae BACK

AMO SHOOT Ae LATER Gk WHATEVER THEY'RE FIxInG TO 00. I°F

BLXING TO Have [T UUT WITH THESE GuYS. WHATEVER HAPPENS NOee

I VON'T Came what THE CONSEQUENCES AAY BE. maYSE HE was JudsT

HELPING THER. { OON'T KNQw. YOU'LL AVE TO SEARCH THAT IN

yOUK MINO. L*vE GOT AY OPINION. AFTER THAT The TOOK Tre

anes

mOncT,s THEY SPENT ITs ECTe I nave SEEN MO REMORSE,» NO REASON

—

/$QOR ANYTHING, FOR MERCY. SOs I TRINKs It OON'T THINK YOU CAN

~—

say O8 aT ANY EXTENT SAY TmaT UNOER THESE CIRCUMSTANCES THAT

Toe STATE WAS SATISFLED THE LEGAL REQUIREMENTS PLUS NE

DESERVES LT. I°LL SAY That THE CAINE SPEARS OF PUNISHMENT. 4

one Ram, AN INTELLEGENT MOMs 27 YEARS Olds FOOK THE ACT ON

| MESSELF. THE CRANE FETS THE PUNLSAAERT, amO Peanars THe *OST

| impOaTanTs I OON*T THINK AN TSCOY SILL HAVE Ant TaQuBic OF

tia an

Fo Yj oe SS Oo y bs eget ee ieee —er =

_ 4 4 . . . .

: ea . ~ - ~

» : . me a 2, a , ‘ ,

5 . 4 ¢ c’ a >

j OLSaPPoinTnEnT VITM WMAT { WAVE SalOe SUT ACRE LAPORTAAT,

ib wMaT 1S THES VERDICT GOLNS TO REAM? YOU SEE» YOU REPRESENT A

CERTAIN SEGMENT CF OUR SOCTETY» Law ASIOLNG PEGPLE, RAISING

| FARMLLIED» WORKING FOX A LIVINGs NOT ROBBING STOKES. YOU'RE

TH€ PeGPLe THAT Set THE STANOAROS IM THES COMAUNITY. THE

JUSTICES On The SUPREME COURT WILL REVIEW, AMO DETERMINE THEIA

DECISION whETHER OR NOT LF YOU DECIOE TO GIVE MIA THE DEATH

PENALTY» WHETHER OR MOT YOU wekE CORRECT OR NOT, BUT YOu SEE»

ag LT USE TO 66 OME I UON*T THING amY OF THem LIVE Im EAST

| BaTOR RUUGE PARISH. WE WAVE GOT ONE Twat REPRESENTS EAST

SaTOm KOUGE PARLSms AMO L'R SURE HE MAINTAINS A&A OOMICILE, SUT

i we ROVeu TO STo CHARLES AVENUE. YOU'RE THE PEQPLE THAT SET

THe STANOAKOS IA THIS CORAUNITY. AMD I SAY THIS» 4nd THIS iS

ba CRIme THal IF YOU wILL» QuTRaGGeO THIS COMMUNITY. IT

one LT. ANG THe RESULTS OF THIS VERDICT wiLl GO OUTSIDE

Je This CUual KuOA. And YOU REPRESENT wHAT Tre >TanOakds in

cestuen aGue— 1S GOInG TO SE AMONGST TE ide AGIOING PEGPLE.

| ade ot GOING TO ST THE STAMDARO OR 1S 298EAT wiLLL AMS 6OiNS

ltu set Ime STamvakot 1 SaY TwaT YOu OUGHT TO Sef IT. Ano I

| trEnK TOu OUGHT Iu suST PUT YOUM FOOT OOem and sav IW THIS

CAMCUMDTANCES»s UNDER Tr.Se wETKE GOING TO SET THE STANOARD ANO

PaOmen THe STANLARD'S GOING TO SEs BHEN TOs GO UUT THERE ANO

| vou wus A MAN OOen Im & GROCERY STORE, & Law ABLOING CITIZEN»

QUT TRERE TYING TO AAKE HIS LIVING, AND YOu TERKORIZE Act

| TESE PEOPLES WE NOT GOING TO FINO MERCY» WE NOT GJING TO SOs

‘er ARYTHINGs WE ARE GOLNG TO OEAANO THAT THIy STANOAKO BE

Set» That [me RAXCAUN THe Law Can GIVE YOUs wnitn IN Tris Cade

a The OG ATH PENALTY, YOU Aft GOlne TO Face IT. anv YOU ARE

| corns TO vO ThROUGH THESE REVIEWS AND YOU ARE GOING TO THINK

| aeout It. AMO L ASK» ANO £ ASK That IF THERE'S One PERSON ON

Dtwis vue, LF THE JURY CAN¢T MAKE UP LTS AMO On THIS PART OF

‘

—~>-<~

Ile Them THe suUueGe Has TO SENTENCE THE AAm TO LIFE. amo i sav

THISs if YOU RAKE UP YOUR AIND ON THIS pakt OF iT Teal we

| QuenT TO GE1 THE OECATM PENALTY» LI A548 YOU Tu STICA TO its af

LETtS Ai GEAST ONE OF YOU UN THIS JURYs JUST ONE UF YOU THAT

i wtut Say THAT LM GOLMG TOs I'M NOT GOING TO 00 IT, 1°” NOT

; GOine TO BaCk OF OF THiS. I ASK YOU TO 00 IT. OJN*T elve If

UP, vuntl COME OvT AMD MAKE A RECOMMENDATION FOR LIFE In THiS

CaSt. anO i KNOw I[T*S & HARD THING THAT I ASA THal WOU Due |

lumOw AT'S MAROe ITS $O AUCH, LT wOULO BE SO AUCH EASIER

ANG { ASK YOU Tu 6& STRONG. PUT TEETH Im Tris COAVICTION.

LET AT Be KNOWN THAT THIS 15 GUR STANDARD. MOwe - KeeuEeST YOU

ito COME BACK wiTh THE RECJMMENOATION OF DEATH IN THIS CASE.

THANK TuU.

TmE COURTS LaOleS AND

GENTLEMEN, OO NUT VASCUSS THIS

MATTER AMONG YOURSELVES. PLEASE

RETIRE THE JURY.

THE COvnTe COUMSELs

ea EE ee

APPROACH THE BENCHe Lease. THE

COURT WILL BE AT RECESS FOR TEN

RINUTES.

Twe COURT! AS THE

STATE READY? IS THE STATE ==

MAR. SIMQUEFIELO! THE

STATE'S READY.

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53-590.

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————_

RECEIVED |

DEC 10 1983

OFFICE OF Tus CLERK

SUPREME COURT, US.

. = — — : —— .

IN THE PREME NITED STATES

Se wee 4 aay aye

ROBERT WAYNE WILLIAMS, PETITIONER

YwX~«

~ Mp IO, WARDEN, RI NDENT

eer ereeeeeeeeeeeeeeeeeeeeeeeveeeeeeeneeer eee eee

. . — > 2 : ;

I ;

e ie F ” DF

> . ‘ > : _

; , . bed , : _

" > > > , > > . . >

» > o . »-* ‘ ’

for Writ ‘ . . the tar —s ‘ € Rone ’ :

the F feh > * > > ’ . : > . Z P : e< r

give ecurity ¢t : os oe tate that ‘ f my | ty I am

unabie t pa t ts f hic f¢ : rt ; ‘ irity

+harea é — ** > ‘ ] é ant > e , ’ "re Ss

Ss we Wy ; sr * hy y > »® Y haws in * the

: :

Tué — ana ‘ 7 bo ‘Ww ré ,? a may bi ey + pay

the t f ting the said Writ f Cert rari are true.

l. Are ir ft tly employed? NO I have been incarcerated

. yo = = = = " 5 , i.

} sisiana Pri ns since January 12, 1979 anc prior

theret worked t various menial jobs for inimum waces

4 e Ss.

= uw - _A . ~ ,

2. Have } ived within the past twelve months any

° - y ~ + - ~ - =

e f 18iness, pr ession or other form of

— | oo e ~ ‘ ‘“~

elf-emp | ent, Or in the form of rent payments,

> a " ‘ * =

y a4 . ° 4 - . :

int est, } ends, or other source? NO.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.