Petition — Evans v. Mississippi
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83-6413
— ‘Lod Geb. 3,195
SUPREME COURT OF THE UNITED STATES
October Term, 1983
eee Tt TT TTT TT ttt
CONNIE RAY EVANS,
Petitioner,
_—
THE STATE OF MISSISSIPPI,
Resrondent.
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF MISSISSIPPI
BSBVSSsSsStssFSSFSSSSSSSSSSSSSSSSHSSSSSSSSSSSSSSSSSSSSISSSSSSTSSSTsIs=
ISAAC BYRD
Owens & Byrd
P.O. Box 19
Jackson, Mississippi 39205
(601) 352-8443
SHIRLEY PAYNE
P.O. Box 1725
Jackson, Mississippi 39215
(615) 352-7059
STEVEN L. WINTER*
$9 Hudson Street
16th Floor
New York, New York 10013
(212) 219-1900
ATTORNEYS FOR PETITIONER
*counsel of Record
Table of Contents
Questions Presented ..... cece ccccceccecececeseeses
Table of Authorities ........... Cocccccoseccoves cece
Opinion Below .....ccccccceeces coecce eectececccoces
JUEFIBSGICCION Coccccccccccccccccccccccccccccccccccce
Constitutional and Statutory Provisions
TNVOLVEd ccccccccccccccccccccccccccccccccesccece
Statement of the CaS€ .... cece ccccccccccccsesccers
A. Course of ProceedingS .......2eeeeeeccces
B. Facts Supporting Petitioner's Claims ....
(1) Petitioner's Chalienge to
Mississippi's Newly Extended
and Retroactiveiy Applied
Procedural Default Rule ............
(2) Petitioner's Challenge to the
Mississippi Capital Sentencing
Scheme as Arbitrary and Dis-
CEIMINECOEY cccccsccccccscccesevesses
Reasons for Granting the Writ ........ccceeecececess
z. The Court Should Grant the Writ to
Determine Important Questions
Regarding the Use of State Procedural
Rules to Insulate FPederal Claims From
Review on the Merits by Either the
State or the Federal Judiciary ..........
A. The Retroactive Application
of a Rigid Procedural Default
Rule is not an Adequate and
Independent State Grourd ...........
B. A Procedural Default Rule
Adopted for the Purpose of
Preventing Later Federal
Review ot Federal Claims
Cannot Serve as an Adequate
and Independent State Ground .......
II. The Court Should Grant the Writ to
Determine the Degree to Which Racial
Factors May Still Influence the
Operation of the Mississippi Capital
Sentencing Scheme ........... cocccccece eee
CONCLUSION 266 bet 0-00 0% Sree ee ee ae ee ee ree ee oe
atie
12
i5
15
15
19
21
23
QUESTIONS PRESENTED
l. May Mississippi's recent extension of its procedural
aefault rule to death cases serve as an independent and adequate
state ground barring review of fundamental federal constitu-
tional questions when:
a) The extension is applied retroactively and
irregularly, in the teeth of more than fifty years of state
law; and
b) The extension was adopted for the purpose of
evading federal habeas corpus review of asserted federal
claims?
ae Should the death sentence imposed on petitioner,
who is Black, be set aside because it is a product of a
capital sentencing scheme that discriminates on the basis of
race in visclation of the eighth and fourteenth amendments?
Cases:
Table of Authorities
Augustine v. State, 29 So.2d 454 (Miss. 1947) .....
Barr v. City of Columbia, 378 U.S. 146 (1964) .....
Bass v. Estelle, 705 F.2d 121
(Sth Cit. 1983) eeeeeeeeeeeneeeeeneneeneeweneeeenneeee
Bell v. State, 360 So.2d 1206
(Miss. 1978) “eee vueeeeneeeeeeeeeneeeneeeeneeeeeeneeeee
Bell v. Watkins, 381 So.2d 118
(Miss. 1280) eeeeeeeeeeeeeeneeneeeeneneeeneeneeeeeeeee
Bouie v. City of Columbia, 378 U.S. 347 (1964) ....
Briscoe v.
Lahue,
U.S. ’
TO Sc OE CEONS) 066056600 0b006606eesanvsaes
Caidwell v.
Miss. (Nov.
Carter v. State,
21 So.2d 404
Chambers v. Mississippi, 410 U.S.
Coburn v. State,
168 So.2d 123 (1964)
Culberson v.
499 (Miss.
Davis v.
Drake v. State,
89 So.2d 593
Edwards v. Thigpen,
(Miss. 1983)
Engle v. Isaac,
Evans
State,
26,
State,
1980)
Wechsler,
v. Mississippi,
No. 54,285
1983)
523
198 Miss.
(1945)
284 (1973)
250 Miss. 684,
eeeeeeveeeeeeereeeeeeeeeeeeee
379 So.2d
eeeeeeeveeeeeneeeewpreeeeeeeeeeeeeee
263 U.S. 22 (1923)
eeeeevneveeeeeee
228 Miss.
(1956)
589,
433 So.2d 906
eeeneeevreeeeeevneeeeeeeneeeeeeeeeeeeevree
456 U.S. 107 (1982)
eoeeeveveeeeeeeeee
Osis td
77 L.Ed.2d 314 (1983) eoeeeeveveeeeeeeeeeeveeeeeeeeee
Evans v. State, 441 So.2d 520
(Miss. 1983) eeeeneene3enseeneeneneeneeeeeneneeeeeeeneeeeneee
Evans v. State, 422 So.2d 737
(Miss. 1982) e*eneeoeveeeenseeeneneeeeeneeneeeneeneeneeeeeeete
Fisher v. State, 145 Miss. 116,
110 So. 361 (1926) e*eeeeene@ensenseeneeeeeneeeeeeneeeeeeteee
Fondren v. State, 199 So.2d 625
(Miss. 1967)
- iii -
22
11,19
5,18
15,18,20
5,9,16
4,8,10,11,passim
4
2-3
passim
Cases:
Francis v. Henderson, 425 U.S.
536 (1976) e*eeeseeeeeeeeeeeeeneneeneeneeeneeeeeeeneeeeee
Furman v. Georgia, 408 U.S. 238 (1972) wsesseseveese
Gipson v. State, 203 Miss. 434,
35 So.2d 327 (1948) e*eeeoeeeeeeeeeeeeneeeeeeeeeeeeee
Granviel v. Estelle, 655 P.2d 673
(Sth Cir. 1981), cert. denied, 455
U.8. 1003 (1982) eeeeoeeeeeeeeeeeneeeeeeeeeeeeneeeee
Hathorn v. Lovorn, 457 U.S. 255 (1982) .w.cccesecees
Henry v. Mississippi, 379 U.S. 443 (1965) .w..seeees
Hill v. State, 432 So.2d 427
(Miss. 1983) eeeeseeeeeneeeeneeeeneneeeneeeneeeeeneeeeeee
Irving v. State, 228 So.2d 266
(Miss. 1968) COS SCO OOSSESSOEHOSEEOSCEHE CEC HEEOOOHSEESES
Irving v. State, 361 So.2d 1360
(Miss. 1978) cert. denied, 441 U.S.
913 (1979) e*eeoeeoeeeeeeneeneteeeeneeneeneneneeeeeneneneneeeeneeeee
Jackson yv. State, 337 So.2d 1242
(Miss. 1976) e*eeeeneteeeeeeneenrteeneneneeeneeeeneeeeeeeeee#e
Jones v. Barnes, U.S. P
77 L.Ed.2d 987 (1983) e*eeeeeneeneeneeneeneeeeneeeeneeee
Jordan v. State, 365 So.2d 1198
(Miss. 1978) eeeeeeeneeeneeeeeneeneeneeeeneneneeeeeeeeee
In re: Jordan, 390 So.2d 584
(Miss. 1980) e*eeeeneeneeeeeeeeneeneeeneeeeeneneeeeeeee#e
Laney v. State, 421 So.zd 1216
(Miss. 1978) eeeeeeeeeeeeeeeneeneeeeeeeeeeneeeeeeee
McLaughlin v. Florida, 379 U.S. 184 (1964) ........
Musselwhite v. State, 212 Miss. 526
54 So.2d 911 (1951) e*eeeenereneeeeneeneeeeeeneeeneeeeee
NAACP v. Alabama ex rel Flowers,
377 U.S. 288 (1964) eeeneeeeeeeeeeeneeneeeeneeeeeeee
NAACP v. Alabama ex rel. Patterson,
357 = & 449 (1964) e*eeeeeeeeneeneeeeeneeeneeeneneeeee
Pruett v. Thigpen, No. 54,000
(Miss. Jan. ll, 1984) e**eeeeeeeneeneneeeneeeeeeneeeeee
Read v. State, 430 So.2d 832
(Miss. 1983) PY PRO ee Fe EN ee a ae
-iv-
Page
16
14,21
6,19
14
17
22
17,19
11
10
Cases: Page
Reddix v. State, 381 So.2d 999 (Miss.),
cert. denied, 499 U.S. 986 (1980) eeneeeeeeneeneeee 6
Russell v. State, 226 Miss. 885,
85 So.2d 585 (1956) eeeeee3eeseneeieeeeeneeeeneeeneeneeee 6
Shaffer v. State, 46 So.2d 545
(Miss. 1950) e*eeeeeeeneeneeneeeeneeeeneeeeneeeneneeeneeee 6
Smith v. State, 419 So.2d 563
(Miss. 1982) eoeeeseoeoeveeeveeeeeeeeeeeeeneeeneeeneeeeeeenee Pe
Smith v. State, 434 So.2d 212
(Miss. 1983) e*eeeeseeneeneeeeeneneeeneeneeeneeeneeeeeneeneeee passim
Spencer v. Zant, P.2d ’
No. 82-8408 (lith Cir.) (pending
rehearing On BANC) cccccccccccccecceccccccccccecs 22
Staub v. City of Baxley, 355 U.S. 313 (1958) ...... 17
Stephens v. Kemp, No. A-~455
(Dec. 13, 1983) eoeeeeeeeeeeeeeeeeeeeeneeeeeeeenenene 22
Sullivan v. Little Hunting Park,
396 U.8.- 229 (1969) wccccccccccccesescese ecccecce 18
Thomas v. State, 358 So.2d 131l
(Miss. 1978) e*eeeneseeeenseeeeeneeeneteeneneeeeeeneeneneeeneeee 5
Voyles v. State, 362 So.2d 1236
(Miss. 1979) eeeeseieeeeeeeeeeeeneeeeneneeneeneeneeneeneeee Tp VO, tie te
Wainwright v. Sykes, 433 U.S. 72 (1977) wcccccccces 19
Walker v. City of Birminghan,
388 Ves 307 (1967) eeeeeeveeeeeneeeeeeeeeeeeeeeee 16
Ward v. Love County, 253 U.S. 17 (1920) ........... 20
Washington v. State, 361
So.2d 6l (Miss. 1978) eer venwrewreeeeeneenenereeneeeeenree 7
Wheat v. State, 420 So.2d 229
(Miss. 1982) eeeeeeeeeeeeneeeeneeeeeeeneeeeeeeeeeee 4,5,8
Wheat v. Thigpen, 431 So.2d 486
(Miss. 1983) eeneenetneneeeeeneeeneteeeeeneeeneeeeeeneeeeee passim
Wiley v. State, No. 54,642
(Miss. Jan. 4, 1984) eee eeeeeeeeenereeeeeneeeeeneeeee 33,32, 49
Williams v. Georgia, 349 U.S. 375
(1955) eee eeeeeeeeeeeeeeneeeeeeeeeeeeeeeeeeeeeeese 20
Wright v. Georgia, 373 U.S. 284 (1963) .......c204. 16,17
Cases: Page
Yick Wo v. Hopkins, 118 U.S. 356
(1886) eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 21
Zant v. Stephens, U.S. ’
77 L.Ed.2d 235 (1983) eoeeeeeeeeeeeeeeeeeeeeeeeee 21
Statutes and Rules
im Constitution _ Eighth Amendment eee3uene e#efteenenseee#e agar
U.S. Constitution - Fourteenth Amendment ......eee- 2,a%
28 G.8.C-« 5 2254(d) eee eeneeeeneeeneeeneteeneeeeeneeeeeneeee 3,8
§ 99-19-1011 and § 99-19-105
Miss. Cond Ann. (Supp. 1982) w.cceceeecssecececs 2,7
Rule 6(b), Rules of the Mississippi
Supreme Court eoeeeoeeeeeeeeeneeeeneeeeeneeneeeneneeeeeee 2,4-5,11
Other Authorities
"Courts Study Link Between Victims Race
and Imposition of Death Penalty”,
New York Times, p. A. 18, Col. l
(Jane S, 1984) wcccccccccccccccccccccccccscecccecs 13
NAACP Legal Defense and Educational
Pund, Inc., Death Row USA ..cccceccccscccceseces 14
Hill, The Forefeiture of Constitutional Rights .... 19
-vi-
—— ee ee Oe ree
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1983
eee tt Tt ttt tt ttt ttt
CONNIE RAY EVANS,
Petitioner,
-y-
THE STATE OF MISSISSIPPI,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF MISSISSIPPI
SSCSSSSssSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSs SSSSSSSSSSSSSSSESISS
Petitioner, CONNIE RAY EVANS, prays that a writ of certiorari
issue to review the decision of the Supreme Court of Mississippi
on November 30, 1983, denying leave to file a petition for a
writ of error coram nobis challenging his death sentence.
OPINION BELOW
The opinion of the Supreme Court of Mississippi is
reported at 441 So.2d 520 (Miss. 1983). It is set out in the
Appendix at pp. A. 1 - A.15.
JURISDICTION
The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1257(3). The judgment of the Supreme Court of Mississippi
was entered on November 30, 1983. A timely request for re-
hearing was filed on December 11, 1983, and was denied on
January 25, 1984.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves the eighth amendment to the Constitution,
which provides:
Excessive bail shall not be required,
nor excessive fines imposed, nor cruel
and unusual punishments inflicted;
and the fourteenth amendment to the Constitution, which pro-
vides in relevant part:
(Nlor shall any State deprive any person
of life, liberty, or property, without
due process of law; nor deny any person
within its jurisdiction the equal pro-
tection of the laws.
It also involves §§ 99-19-101 and 99-19-105, Miss. Code
Ann. (Supp. 1982), which are set out in the appendix at pages A.
20 - A. 22, and Rule 6(b) of the Rules of the Supreme Court of
Mississippi, which provides in relevant part:
No error not distinctly assigned shall
be argued by counsel except upon request
of the Court, but the Court may, at its
option, notice a plain error not assigned
or distinctly specified.
STATEMENT OF THE CASE
A. Course of Proceedings
Petitioner and another person were charged with
the robbery and murder of Arun Pahwa, an Indian national who
worked as an attendant in his brother's store. On October
12, 1981, petitioner pled guilty to capital murder in the
Circuit Court of the Pirst Judicial District of Hinds County,
Mississippi. He was sentenced to death on October 13, 1981.
On November 3, 1982, the Supreme Court of Mississippi
affirmed the conviction and sentence. Evans v. State, 422
So.2d 737 (Miss. 1982); A. 69. Rehearing was denied on December
15, 1982. This Court denied certiorari on May 16, 1983. Evans v.
Mississippi, _—««~U.S. ___, 77 L.Ed.2d 314 (1983), and there-
after denied rehearing.
A motion for leave to file a petition for a writ of error
coram nobis, together with the petition, was filed in the
Mississippi Supreme Court on July 1, 1983. The petition raised
numerous errors under state law and the federal Constitution
that, petitioner alleged, vitiated his sentence of death. On
November 30, 1983, the Mississippi Supreme Court rendered an
opinion denying all of petitioner's claims on procedura.
grounds. It held that those claims which had been raised on
direct appeal were res judicata and that those which had not
were barred by principles of proceaural default. Evans v. State,
A. 3 - A. 4. None of petitioner's federal or state law claims
were addressed on the merits.
Justice Robertson, joined by Justices Hawkins and Prather,
dissented. The dissent noted that the majority decision
"renders the writ of error coram nobis an empty form of action."
A. 5. It recounted the history of the writ in Mississippi, A.
5 - A. 7, pointing out that prior Mississippi cases had
entertained and granted relief in coram nobis cases presenting
issues not raisea on direct appeal. A. 6 - A. 7 (citing
Fondren v. State, 199 So.2d 625 (Miss. 1967)). The dissent
lays bare the underlying purpose of tne newly extended Miss-
issippi procedural default rule:
It is important to understand the reasons
why the State urges that the issues tendered
be disposed of on procedural grounds orly.
The State's articulated motivation is to
short-circuit anticipated federal court re-
view via nabeas corpus under 28 U.S.C. § 2254.
The State is saying we should hold Evans’
claims procedurally barred, not because such
would promote the interests of justice, but
rather that such would pull the rug out from
under Evans when he ultimately seeks federal
review of his case. The State not only
asks that we refuse to aadress Evans' claims
on their merits but unashamedly further seeks
our aid in avoiding litigation of Evans’ ...
federal constitutional claims in any federal
court.
A. 12 (footnote omitted; emphasis in original). 1/
Petitioner filed a timely motion for rehearing. He
asked the Mississippi court inter alia to reconsider whether it
should invoke new procedural bars in cases involving fundamental,
substantive federal constitutional rights. The motion for
rehearing was denied on January 25, 1984. A. 18.
B. Facts Supporting Petitioner's Claims
(1) Petitioner's Challenge to Mississippi's
Newly Extended and Retroactively Applied
Procedural Default Rule:
The facts supporting this claim are found in the
decisions and records of cases before the Mississippi Supreme
Court. In petitioner's case, that court invoked a rule that
the failure to raise an issue on direct appeal constitutes a
waiver, barring review of the issue on coram nobis. A. 3.
In doing so, it relied upon a trio of 1983 cases that first
articulated such a rule as one to be applied uniformly in all
death penalty cases. A. 3 (citing Edwards v. Thigpen, 433
So.zd 906 (Miss. 1983); Wheat v. Thigpen, 431 So.2d 486
(Miss. 1983); Smith v. State, 434 So.2d 212 (Miss. 1983)).
But until last year, this has never been the
law of Mississippi. While Mississippi did apply a proced.iral
default rule in routine criminal appeals -- see Rule 6(5) of
l/ In the omitted footnote, Justice Robertson noted the
anomalous result of the decisions ir Wainwright v. Sykes, 433
U.S. 72 (1977), and Engle v. Isaac, 456 0.s. 107 ELE a
State defendant either gets two Dites at the appie or none at
all. He noted the result in death cases: that “the defendant
will be dispatched to the gas chamber without anyone ever
having considered on the merits his federal constitutional
claim.” A. 12 n. 13.
the Rules of the Supreme Court of Mississippi; Thomas v.
State, 358 So.2d 1311 (Miss. 1978); Coburn v. State, 250 Miss.
684, 168 So.2d 123 (1964) -- it was not applied in death
penalty cases. For at least fifty-seven years, Mississippi
has employed a heightened degree of scrutiny in death penalty
cases, expressly rejecting the usual procedural default
rules. Thus, in Pisher v. State, 145 Miss. 116, 110 So. 361
(1926), the Mississippi Supreme Court reversed a conviction and
death sentence based on an illegally obtained confession
despite the absence of a contemporaneous objection. It did so
because “constitutional rights of a person on trial for his
life rise above mere rules of procedure.” Id., 145 Miss. at
116, 110 So. at 365.
Pisher was not an “occasional act of grace" by
a court that ordinarily applies state procedural default
rules. See Bass v. Estelle, 705 F.2d 121, 122 (5th Cir.
1983) (on rehearing). To the contrary, it was the progenitor
of a doctrine that was uniformly applied in death cases until
last year. Since Fisher, the Mississippi court has consistently
reviewed in death cases alleged errors that were not the
subject of a contemporaneous objection in the trial court.
See, e.g., Carter v. State, 198 Miss. 523, 528, 21 So.2d 404
(1945); Musselwhite v. State , 212 Miss. 526, 59, 54 So.2d
911, 914-15 (1951); Culberson v. State, 379 So.2d 499, 506
(Miss. 1980); Smith v. State, 419 So.2d 563, 568 (Miss. 1982);
2
Wheat v. State, 420 So.2¢ 229, 239 (Miss. 1982).
2/ In Wheat, appellant raised five assignments of error.
Id., 420 So.2d at 232. The court noted that assigment
number 3, concerning instructions not given, had not been
preserved below. But it also found no error on the merits.
Id. at 239. Then, after examining appellant's five assignments,
the court discussed whether the instructions that were given
were adequate. Id. at 240-41. The court stressed no less
than three times that it carefully “considered,” "reviewed,"
and “stud(ied] the entire record...." Id. at 240-41.
More importantly, the Mississippi Supreme
Court has applied this principle not only to review alleged
errors that were not properly preserved below, but also to
search the record for errors not raised on direct appeal and to
decide them on the merits. In Gipson v. State, 203 Miss. 434,
35 So.2d 327 (1948), for example, appellate counsel assigned no
errors and filed no brief. The court nevertheless adjudi-
cated the appeal: "Consistent with the policy which this
court has imposed upon itself in death cases, we have not
dismissed the appeal but have in the interest of justice
examined the record, lest by some chance and patent error,
the extreme penalty may be unjustly exacted." Id., 203
Miss. at 437, 35 So.2d at 328. Accord Augustine v. State,
29 So.2d 454 (Miss. 1947) ("We have searcned the record in
vain for some ground on which to reverse the conviction.");
Shaffer v. State, 46 So.2d 545 (Miss. 1950); Russell v.
State, 226 Miss. 885, 85 So.2d 585 (1956); Drake v. State;
228 Miss. 589, 89 So.2d 593 (1956). Even where counsel has
filed a brief and raised some issues, Mississippi has eschewed
the rule requiring that all issues be raised on direct appeal
and has not applied normal procedural default rules to cases
involving the death sentence. Racher, it has applied a stan-
dard of review in death cases that led it "in search of errors
not assigned ...," Reddix v. State, 381 So.2d 999, 1013 (Miss.),
cert. denied, 499 U.S. 986 (1980), “without necessary regard
to whether technical basis for preserving error was made by
counsel." Irving v. State, 361 So.2d 1360, 1363 (Miss.
1978), cert. denied, 441 U.S. 913 (1979). This standard has
been apriied not as a matter of judicial grace, but as
pert of “the requirements for appeal and review by this
Court of all capital murder convictions...." Voyles v.
State, 362 So.2d 1236, 1237 (Miss. 1979) (emphasis added);
see § 99-19-105, Miss. Code Ann. (Supp. 1982). Accord Laney
v. State, 421 So.2d 1216, 1217 (Miss. 1978); Wheat, 420 So.2d
at 240-41 (see n. 2, supra); Smith, 419 So.2d at 574; Washing-
ton v. State, 361 So.2d 61, 66 (Miss. 1978); Bell v. State,
360 So.2G 1206, 1215 (Miss. 1978); Irving v. State, 228 So.2d
266, 268 (Miss. 1968).
The clearest illustration of the principle
that procedural defaults in failing to assign errors on direct
appeal in death cases do not operate as a waiver is in the
opinions of the Mississippi Supreme Court in coram nobis
proceedings. In Bell v. State, 360 So.2d 1206 (Miss. 1978),
the death sentenced appellant raised only three issues on
appeal. “Although not argued as error on appeal,” the Miss-
issippi Supreme Court “raised [four other matters] and discussed
them of its own motion.” Id., 360 So.2d at 1215. In his
petition for a writ of error coram nobis, Bell challenged his
conviction and sentence on twenty-three grounds of error. Of
these twenty-three, two had been raised by Bell on direct
appeal, four had been raised by the court on direct appeal, and
seventeen were presented to the Mississippi court for the first
time. The Mississippi Supreme Court “carefully and meticulously
considered each allegation" on the merits. Bell v. Watkins,
381 So.2d 118, 199 (Miss. 1980). Similarly, the death sen-
tenced appellant in Jordan v. State, 365 So.2d 1198 (Miss.
1978), raised ten issues on direct appeal. The Mississippi
Supreme Court affirmed, noting that: "No reversible error
has been pointed out by counsel, or revealed by our pains-
taking scrutiny of the entire record.” Id., 365 So.2d at
1207. On coram nobis, Jordan raised three new claims. The
Mississippi Supreme Court rejected them on the merits without
regard to the fact that they had not been raised on direct appeal.
In re Jordan, 390 So.2d 584 (Miss. 1980).
The rule that failure to raise an issue on
direct appeal in a death case does not constitute a waiver
-- manifested by the "painstaking scrutiny" afforded on direct
appeal and its concommitant, the refusal to view waiver as
barring collateral attack on coram nobis, -- was consistently
applied both at the time of petitioner's sentencing trial in
1981 and at the time of his direct appeal in 1982. See, e.g.,
Smith, 419 So.2d at 568, -74; Wheat, 420 So.2d at 240-41.
Then, in Edwards v. Thigpen in 1983, the Mississippi Supreme
Court reversed course. Id., 433 So.2d at 907-09. Justice
Robertson's dissent belcw bares the motivation for this
abrupt change, A. 12; the record of the proceedings in
Edwards provides ample corroboration.
In his Response to Application for Leave to
File a Petition for Writ of Error Coram Nobis and/or Writ of
Habeas Corpus in Edwards, set out in the Appendix to this
petition, the Mississippi Attorney General exhorted the
Mississippi Supreme Court that: "The time has come in light
of certain events which have transpired within recent history
tor this Court to review its charted course in capital
cases and to reconsider certain concepts...." A. 24. The
Attorney General first reviewed federal habeas corpus law
regarding 28 U.S.C. § 2254(d), A. 25- A. 29, exhaustion of
state remedies, A. 29 - A. 33, and procedural default. A. 35
3/ Although Wheat v. Thigpen, 431 So.2d 486 (Miss. 1983),
was reported first, it was decided after Edwards; in fact,
it cited and relied on Edwards. Wheat, 431 So.2d at 487.
- A. 43. Then, in a section entitled "Are We Going To Stay
the Charted Course or Are We Going to Crash Upon the Rocky
Shores of the Federal Judiciary," A. 43, the Attorney General
pointed out that in five of the first six Mississippi death
cases to reach federal habeas corpus, the writ was granted
on the basis of issues that had been raised for the first time
on coram nobis. A. 46. He urged the court to recognize that
"the power to halt this trend and recoup control ... waits
but to be firmly seized." Id. Arguing that: "Should this
Court continue to enforce the 'no holds barred' concept
embodied in the Irving - Culberson - Laney line of cases ...
it will ultimately abdicate its position as the Supreme
Court of the State of Mississippi and vest that authority in
the United States Court of Appeals for the Fifth Circuit...,"
A. 46 - A. 47, the Attorney General told the court that: “It
is time to fish or cut bait." A. 48. “(T]he suggested
course of action? Stripped of all rhetoric, the State simply
urges this Court to issue a strong statement to the federal
judiciary that it will enforce its own rules of procedure
and strictly adhere to them.” Id.
The Mississippi Supreme Court responded with
an opinion that rigidly invoked procedural bars on every
issue. The same approach was taken in Wheat v. Thigpen, 431
So.2d at 488-89, and Smith v. State, 434 So.2d at 215, when
these cases came up on coram nobis, despite the fact that
prior non-waiver rules had been applied in both cases when
on direct appeal. See Wheat, 420 So.2d at 240-41; Smith,
419 So.2d at 568, 574.
In the latter two cases, the Mississippi
Supreme Court also illustrated the Catch-22 nature of
its newly extended procedural bars. In both Smith and Wheat,
the Mississippi court went through its litany of procedural
bars: res judicata for those issues raised on direct appeal,
procedural default for those not raised. But, on the issue
of effective assistance of counsel, which was first raised on
coram nobis, the court performed an intellectual somersault.
It held that issue procedurally barred not because peti-
tioners had failed to raise it on direct appeal but because
-- having applied the requirement of total review noted in
Voyles -- it had purportedly decided that issue on appeal
despite the fact the the issue was neither assigned as error
nor briefed on appeal. Smith, 434 So.2d at 219;” meat,
431 So.2d at 488-89. The court took this tack in spite of its
own holding in Read v. State, 430 So.2d 832 (Miss. 1983),
that the defendant could at his election raise a claim of
ineffective assistance of counsel either on direct appeal or
On coram nobis. Id. at 836.
Thus, when petitioner Evans filed his request for
coram nobis relief below, the Attorney General could and
did cite Smith, Wheat, Edwards, and Hill v. State, 432 So.2d
427 (miss. 1963) (direct appeal in death case), for the
4/ In Smith, the court performea the same feat with regard
to a challenge to the instructions at the penalty phase.
IZd., 434 So.2d at 217.
The court also went out of its way to construct a
"stipulation" that the ineffectiveness claim could be deter-
mined on the basis of the original trial record as a predicate
to its “res judicata" ruling. 434 So.2d at 219. There was
no such stipulation, as is demonstrated by the court's own
opinion. The petition alleged that Smith's lawyer had failed
adequately to investigate or prepare the case, id., matters
that necessarily cannot be determined from the original trial
record. Moreover, although it does not appear from the
court's opinion, Smith had explicitly requested an evidentiary
hearing on the ineffectiveness claim, thus demonstrating that
he made no "stipulation" that the claim could be determined
on the face of the original trial record.
proposition that “[rjlecent application of this [procedural
default) rule bears out its sustained persuasion whether the
case involves non-capital adjudications or the penalty of
death." Response to Application for Leave to Pile a Petition
for Writ of Error Coram Nobis at 9 (August !1, 1983) (emphasis
added). In urging that the court hold all of Mr. Evans's
claims procedurally barred, the Attorney General did not
specify any state interest as supporting the bar, but aid
advise the court that it should be careful and explicit
in its invocation of procedural bars because the “small
phrases 'procedurally barred' or ‘on the merits’ utterly
control the form and extent of the review which will ul-
timately follow a state court ruling." Id. at 12.
Yet, the Mississippi Supreme Court's latest
decisions evidence inconsistency regarding tne application of
procedural default rules in death cases. In Pruett v.
Thigpen, No. 54,000 (January 11, 1984), the court applied the
Edwards - Wheat - Smith trilogy to hold all issues not
raised on direct appeal procedurally barred in coram nobis.
But when the appellant in Calawell v. State, No. 54,285
(November 26, 1983), raised an issue that had not been
assigned as error on appeal as required by Rule 6 of the
3/
Rules of the Mississippi Supreme Court, Justice Broom's
&/
prevailing opinion first noted tre procedural lapse,
S/ It had been the subject of a contemporaneous objection in
the trial court.
o/ In fact, there was no majority in Caldwell; the court
Split 4-4, one judge having recused nimself. As a result,
the equally divided court affirmed the imposition of the
Geath penalty. Justice Broom's opinion was for the four who
voted to affirm.
The issue in dispute in Caldwell is the same issue that
won a reversal of the death sentence in Wiley (but not the
issue in Wiley whose procedural posture is discussed below).
. + age Whe rehearing in Caldwell was denied on February 1,
984. A. 19.
Slip op. at 12, and then nevertheless clearly discussed and
decided the issue on the merits. Id. at 12-14.
Similarly, in Hill v. State, the court refused
to consider on direct appeal an issue that was not the subject
of a contemporaneous objection at trial. Based on the record,
it presumed that the failure to object was a tactical choice.
Id., 432 So.2d at 439-40. But in Wiley v. State, No. 54,642
(January 4, 1984), the court dealt with an issue in the same
posture in quite a different way. Although it noted that the
issue was not properly preserved below, relying on the coram
nobis opinion in Smith, it nevertheless discussed the merits
in both the paragraph preceding the waiver discussion and the
sentence immediately following it. Slip op. at 4.
(2) Petitioner's Challenge to the Mississippi
Capital Sentencing Scheme as Arbitrary and
Discriminatory:
Petitioner's coram nobis petition raised
the federal constitutional claims that his death sentence
should be invalidated because Mississippi's capital sentencing
scheme was being applied in an arbitrary and discriminatory
manner. The Attorney General's primary response was that both
claims were devoid of factual support. Response to Applica-
tion at 40-42. As a secondary ground for disposing of the
claims, the Attorney General argued that the arbitrariness
issue had been resolved on direct appeal and was res judicata,
id. at 41, and that the racial discrimination issue was
7/ On the question of racial discrimination, he asserted
that the Mississippi death row was, at that time, evenly
divided with 17 blacks and 17 whites. He also noted that two
of the blacks were sentenced to death for killing blacks;
that two whites were sentenced for killing a black; and that
a white woman was sentenced for killing a white male. Id. at
42.
- 12 -
barred because not raised on direct appeal. id. at 42 n. 8.
The Mississippi Supreme Court rejected both claims on the
ground that they were barred because not raised on direct
appeal. A. 4; but compare Evans v. State, 422 So.2d at 747;
A. 79 (on direct appeal, death sentence held “not excessive or
disproportionate ... and even-handed").
The effect of the Mississippi Supreme Court's
decision is, of course, to deny petitioner an evidentiary
hearing on this issue. This is of critical importance
because the issue requires further factual development.
Recently available data suggest that race plays a significant
part in capital sentencing in Mississippi. Published reports
indicate that there is a statistically significant disparity
in rates of capital sentencing ‘n Mississippi based on the
race of the vipean.” Of the 847 reported homicides in
Mississippi over a five year period, death sentences were
meted out in 8.2% of the white victim cases but only .08% of
the more numerous black victim ona.” Indeed, although
the black victim homicides outnumber the white victim cases
by a margin of 3 to l, the white victim death sentences
8/ "Courts Study Link Between Victim's Race and Imposition
of Death Penalty," New York Times p. Al8, col. 1 (January 5,
1984). The article reports a recent study by Samuel Gross
and Robert Mauro that studied 17,000 homicides in eight
states ‘including Mississippi) between January l, 1976, and
December 31, 1980. The data referred to in the petition
were obtained from this study.
9/ During this period, there were 639 black victim homicides
and only 208 white victim homicides.
Although the data do not include the homicide in this case,
which involved a victim from India, the basic issue is the same.
While Mississippi originally segregated its orientals, this prac-
tice changed by the early fifties: "Originally classed with
blacks, they are now viewed as essentially 'white.'" J.W. Loewen,
The Mississippi Chinese: Between Black and White 2 (Harv. Univ.
Press 1971); see id., at 93 (Chinese integrated into white schools);
R.S. Quan, Lotus Among the Magnolias: The Mississippi Chinese 124,
139 (Univ. Press of Miss. 1982)(housing and school integration).
- 13:<
outnumber those imposed in black victim cases by 3.4 to 1.
This disproportion increases when the race of the suspect is
also considered: 25% of the blacks who killed whites received
the death sentence as compared to only 4.2% of the many more
whites who killed other whites.” Controlling for homicides
during the commission of a felony, the report indicates that
32.5% of the felony, white victim homicide cases resulted in
death sentences while only 9.5% of the felony, black victim
11/
homicide cases did.
10/ There were 167 white on white killings, accounting for 7
death sentences, and only 40 black on white killings, which
resulted in 10.
11/ The Attorney General's factual assertions below (see
note 7 supra) do no more than create an issue that requires
evidentiary hearing for its resolution. Petitioner does
not know the source of the Attorney General's reported 17/17
black/white breakdown of death row at one point in time.
According to all available figures, blacks have always
cutnumbered whites on Mississippi's death row. At the time
of the decision in Furman v. Georgia, 408 U.S. 238 (1972),
Mississippi had 8 blacks and 1 white on the row. Under
Mississippi's first post-Furman statute, blacks continued to
be sentenced to death in disproportionate numbers. At the
time the Mississippi Supreme Court decided Jackson v. State,
337 So.2a 124Z (Miss. 1976), remanding all Mississippi death
cases for retrial and resentencing, there were 16 known
blacks and 3 known whites on the row. The race of four other
condemned inmates at that time is unknown. NAACP Legal
Defense & Educational Fund, Inc., Death Row USA 4 (July 2,
1976). Under post-Jackson procedures and the 1977 statute,
blacks again outnumbered whites on death row. On June 20,
1979, there were 9 blacks and 4 whites. Death Row USA at 7
(June 20, 1979). In the following years there were 7 blacks
and 4 whites, id. at 9 (June 30, 1980); 12 blacks and 5
whites, id. at 10 (June 20, 1981); 20 blacks and 10 whites,
id. at 10 (June 20, 1982); 20 blacks and 15 whites, id. at 1l
(June 20, 1983). Since last June, the black/white ratio has
remained essentially the same: 21/16 in August; 22/17
in October; and 21/16, with one Asian, in December. Id. at
ll (August 20, October 20, and December 20, 1983). Meanwhile,
68% of the death sentences affirmed by the Mississippi
Supreme Court since Jackson have been in cases of black
defendants (15 of 22 affirmances).
The disparity between the Attorney General's 17/17
figure and the 21/16 figure reported in Death Row USA for the
most closely corresponding date, i.e., August 1983, is
evidently the result of the fact that the Attorney General
did not count three of the blacks whose death -sentences had
been vacated as a result of pending federal habeas corpus
-14<-
REASONS FOR GRANTING THE WRIT
I. | THE COURT SHOULD GRANT THE WRIT TO DETERMINE
IMPORTANT QUESTIONS REGARDING THE USE OF
STATE PROCEDURAL RULES TO INSULATE FEDERAL
CLAIMS FROM REVIEW ON THE MERITS BY EITHER
THE STATE OR THE PEDERAL JUDICIARY
The Court has “consistently held that the question
of when and how defaults in compliance with state procedural
rules can preclude ... consideration of a federal question
is itself a federal question." Henry v. Mississippi, 379
U.S. 443, 447 (1965). Since Henry, it has had occasion to
consider whether irregularly applied Mississippi procedural
rules may serve as an adequate and independent state ground
barring federal review. Hathorn v. Lovorn, 457 U.S. 255,
261-65 (1982); see also Chambers v. Mississippi, 410 U.S.
284, 303-08 (1973) (White, J., concurring). This case presents
important federal questions regarding Mississippi's recent
attempt to insulate its death penalty judgments from federal
review by means of a newly adopted and retroactively
applied procedural default rule.
A. The Retroactive Application of a Rigid
Procedural Default Rule is not an Adequate
ara Inaepenuent State Ground:
Prior to the 1983 trilogy of Edwards, Wheat,
and Smith, Mississippi had an historic doctrine of heightened
scrutiny in death cases. This doctrine took three forms.
11/ continued
proceedings and one black whose death sentence had been
vacated by the Mississippi Supreme Court but whose case was
tnen pending on rehearing. In light of the purpose and
effect of the decision below to restrict federal habeas corpus
claims for Mississippi condemned inmates, it is particularly
Significant that of the first six Mississippi caees to go
into federal habeas, the writ was grantea in five; and, of
those five, four involved blacks who had been convicted of
killing whites.
- 15-
The Mississippi Supreme Court adjudicated allegations of
error that had not been the subject of a contemporaneous
objection in the trial court. See, e.g., Culberson, 379
So.2d at 506. When errors were not assigned on appeal, the
court nevertheless reviewed the record to ascertain if there
was reversible error. See, e.g., Voyles, 362 So.2d at 1237.
On coram nobis, it considered each claim without regard to
whether it had been raised on direct appeal. See, e.g., Bell
v. Watkins, 381 So.2d at 199.
In the 1983 trilogy, the court not only abandoned
the prior rule but also applied its new procedural default
canons retroactively to cases that had been decided on direct
appeal when the former rule was still in effect. The Miss-
issippi court has thus created
a situation where a state court has followed
a regular past practice of entertaining
claims in a procedural mode, and without
notice has abandoned that practice to the
detriment of a litigant who finds his claim
foreclosed by a novel procedural bar....
{A] procedural requirement has been sprung
upon an unwary litigant when prior practice
did not give him fair notice of its existence.
Walker v. City of Birmingham, 388 U.S. 307, 319 (1967) (citing
Barr v. City of Columbia, 378 U.S. 146 (1964), and Wright v.
Georgia, 373 U.S. 284, 291 (1963)). This Court has only
invoked procedural default when the procedural rule applied
at the time of the default. See, e.g., Francis v. Henderson,
425 U.S. 536, 537 and n. 1 (1976). Accord Granviel v. Estelle,
655 F.2d 673, 679 (Sth Cir. 1981), cert. denied, 455 U.S.
1003 (1982) ("We cannot enforce against Granviel a contemporaneous
objection rule that did not even exist at the time of his
trial."). To do otherwise would be to violate basic notions
- 16 -
of due process. See Bouie v. City of Columbia, 378 U.S.
347, 354 (1964).
The unfairness of a retroactive application
of a forfeiture rule is patent. “Novelty in procedural
requirements cannot be permitted to thwart review in this
Court applied for by those who, in justified reliance on
prior aecisions, seek vindication in state courts of their
federal constitutional rights.” NAACP v. Alabama ex rel.
Patterson, 357 U.S. 449, 457-58 (1958); accord Wright v.
Georgia, 373 U.S. at 291; NAACP v. Alabama ex rel Flowers,
377 U.S. 288, 351 (1964); Staub v. City of Baxley, 355 U.S.
313, 318-20 (1958). A Mississippi lawyer handling the
appeal of a death case might quite reasonably have relied on
the explicit statements of the Mississippi Supreme Court in
Voyles ana Irving and decided to nighlight several issues in
his assignments of error and brief while omitting others.
Cf. Jones v. Barnes, U.S. , 77 LeEd.2d 987, 994
(1983). He could do so secure in the knowledge that, if he
misjudged the importance of an error raised below, the court
would still adjudicate the issue as part of its mandatory
search cf the reenia In the context of a claim of racial
discrimination in the administration of a capital sentencing
statute, counsel would have even more reason to rely on
established doctrine and not raise it on direct appeal.
Pirst, he could reasonably expect that the proportionality
review required by the Mississippi statute would suffice to
12/ Similarly, he could do so confident that, if the court
Gid not address the error sua sponte, there would still be no
waiver of the client's rights and the claim could be raised
on coram nobis. .
~ 17 «
neutralize any racial factors that may have entered into the
defendant's sentence. Moreover, he could reasonably decide
that a claim of racial discrimination would make little
sense when based on a barren record, that it would be more
appropriate in collateral proceedings where the fects could
be developed. Since Mississippi law left these options open
at the time of petitioner's direct appeal, he cannot now be
said to have committed a procedural default by relying
on them.
Even if petitioner is incorrect about the
apparent consistency of the pre-Edwards law, the rigid Edwards
procedural default standard would not bar federal review
because it is “based on a standard ... much stricter than
that which could have been extracted from the earlier ...
cases" Sullivan v. Little Hunting Park, 396 U.S. 229,
245 (1969) (Harlan, J., Burger, C.J., and White, J., dis-
senting). It cannot be disputed that there was a substan-
tial line of Mississippi precedent suggesting that the normal
procedural rules are suspended in capital cases. Even if
these cases were to be viewed as a category of exceptions to
a broader rule, see Chambers v. Mississippi, 410 U.S. at
13/
303-07, “a local procedural rule, although it may now
appear in retrospect to form part of a consistent pattern of
procedures to obtain appellate review, cannot avail the
13/ Justice White's opinion in Chambers identified an ex-
ception to the Mississippi contemporaneous objection rule in
non-capital cases based on the fundamental nature of the
right asserted. He traced this doctrine back through a line
of non-capital cases to Carter v. State, 21 So.2d at 404.
Chambers, 410 U.S. at 304-07. Carter, 3 capital case, derived
this doctrine from the 1926 Fisher rule that “constitutional
rights of a person on trial for his life rise .above mere
rules of procedure." Fisher, 110 So.2dG at 365.
- 18 -
State here, because petitioner cannot fairly be deemed to
have been apprised of its existence." NAACP v. Alabama ex
14/
rel. Patterson, 357 U.S. at 457.
Indeed, even if Mississippi had a clear pro-
cedural default rule applicable to death cases, it could not
serve as an adequate and independent state ground. The
Court's decisions "stress that a state procedural ground is
not ‘adequate’ unless the procedural rule is ‘strictly or
regularly followed.' ... State courts may not avoid deciding
federal issues by invoking procedural rules that they do not
apply evenhandedly to all similar claims." Hathorn, 457
U.S. at 262-63 (quoting Barr v. City of Columbia, 378 U.S.
at 149). The pre-Edwards cases such as Voyles and Irving;
the application of the procedural default rule in Wheat and
Smith when it had not been applied in those very cases on
direct appeal; the reverse application of the Voyles doctrine
of complete review to Wheat and Smith in coram nobis to bar,
as res judicata, ineffective assistance of counsel claims that
had not) been raised on direct appeal; and the Mississippi
Supreme Court's recent reversions in Caldwell and Wiley
establish the hopeless inconsistency and irregularity of any
purported Mississippi procedural default rule.
B. A Procedural Defaul* Rule Adopted for the
Purpose of Preventing Later Federal Review
of Federal Claims Cannot Serve as an Adequate
and Independent State Ground:
In this case, the Court should “inquire
14/ At the very least, the unclear nature of the state
procedural law should constitute cause under Wainwright v.
Sykes, 433 U.S. 72 (1977). See Hill, The Forfeiture of
Constitutional Rights in Criminal Cases, 78 Colum. L. Rev.
1050, 1076-78 (1978) (forfeiture should be overlooked where:
"The lawyer's mistake was attributable to the seriously
uncertain state of the procedural law....").
- 19 -
whether the enforcement of a procedural forfeiture serves
«+. a@ state interest. If it does not, the state procedural
rule ought not be permitted to bar vindication of important
federal rights." Henry, 379 U.S. at 447-48. See also Chambers
v. Mississippi, 410 U.S. at 290 n. 3 ("we have no occasion
to decide whether -- if such a [state procedural] ground
exists -- its imposition in this case would serve any ‘legitimate
state interest.'") (quoting Henry, supra). A procedural
default rule that is adopted for the purpose of frustrating
federal review of federal constitutional claims cannot serve
as an independent and adequate state ground for the most
obvious reason: It is not an independent state ground if it
is not based on any legitimate state policy or consideration.
Rather, it is a transparent effort to oust the federal courts
of their jurisdiction based on a hostility to the federal
claim. "A purported state ground is not independent and
adequate ... where the circumstances give rise to an inference
that the state court is guilty of an evasion -- an interpretation
of state law with the specific intent to deprive a litigant
of a feaeral riyht.” Wiliians v. Georgia, 349 U.S. 375,
3949 (1955) (clark, J., dissenting). See, e.g., Davis v.
Wechsler, 263 U.S. 22 (1923); Ward v. Love County, 253 U.S 17
(1920). The Court should grant the writ to determine whether
-- based on the extraordinary origin of the state ground as
made clear by the dissent below and the genesis of the rule
in Edwards -- the Mississippi rule falls in this exceptional
category.
- 20 -
II. ‘THE COURT SHOULD GRANT THE WRIT TO DETERMINE
THE DEGREE TO WHICH RACIAL FACTORS MAY STILL
INFLUENCE THE OPERATION OF THE MISSISSIPPI
CAPITAL SENTENCING SCHEME
The decision below would foreclose petitioner's
claim that the Mississippi capital sentencing scheme continues
to discriminate on the basis of racial factors. It would do
so although petitioner has never had an opportunity to
develop or present the facts t'iat would establish the con-
tinuing influence of racial factors in violation of the
eighth and fourteenth amendments.
It should be indisputable that:
If a statute that authorizes the discretionary
imposition of a particular penalty for a par-
ticular crime is used primarily against defendants
of a certain race, and if the pattern of use
can be fairly explained only by reference to
the race of the defendant, the Equal Protection
Clause of the Fourteenth Amendment forbids con-
tinued enforcement of that statute in its existing
form. Cf. Yick Wo. v. Hopkins, 118 U.S. 356
(1886).
Furman v. Georgia, 408 U.S. 238, 389 n. 12 (1972) (Burger,
C.J., dissenting); accord id. at 250-56 (Douglas, J., con-
curring). No capital sentencing statute could stand under
the eighth amendment if it "attached the ‘aaggravating' labei
to factors that are constitutionally impermissible or totally
irrelevant to the sentencing process, such as the race ...
of the defendant...." Zant v. Stephens, U.S. ae
L.Ed.2d 235, 255 (1983).
Similarly, a capital sentencing scheme that explicitly
attached an aggravating label to the victim's race would, on
its face, violate both the eighth and fourteenth amendments.
In this context, where the power of the State
weighs most heavily upon the individual ...,
~ 21 «
we must be especially sensitive to the policies
of the Equal Protection Clause which, as re-
flected in congressional enactments dating from
1870, were intended to secure “the full and equal
benefit of all laws and proceedings for the
security of persons and property” and to subject
all persons “to like punishment, pains, penal-
ties, taxes, licenses, and exactions of every
other kind, and to no other.”
mcLaughlin v. Florida, 379 U.S. 184, 192 (1964)(quoting 42
U.S.C. § 1981). Here, the available data suggest that,
while Mississippi may have a legitimate state interest in
imposing Gceath to avenge murder, it is in fact exercising
that power to avenge the murder of whites and not blacks.
While blacks constitute 75% of the murder victims, only 23%
of the aeath sentences are meted out in black victim cases.
This denies blacks “the full and equal benefit of all laws
-.. for the security of persons...." Ia. See Briscoe v.
Lahue, __ U.S. __, 75 L.Ed.2d 96, 109 (1963). When, moreover,
the race of the defendant is also factored in, a more stark
and classic pattern of discrimination emerges. Amongst those
similarly situated (i.e., those who kill whites), blacks are
sentenced to death at a rate five times greater than whites,
even though white orfenders in this category outnumber blacks
by a ratio of 4 tol. This certainly subjects blacks like
petitioner to "(un]like punishment [and] pains", id., in
violation of the eighth and fourteenth amendments.
The Court has recently granted a stay of execution
in a case that presents similar questions concerning the
operation of the Georgia statute. Stephens v. Kemp, No. A-455
(Dec. 13, 1983) (stay granted pending determination of Spencer
v. Zant, Zant, F.2d , No. 82-8408 (llth Cir.) (pending
rehearing en banc)). The Court should grant certiorari and,
- 22 -
together with these cases, consider here the extent to which a
facially valid capital sentencing scheme may continue to be
influenced by impermissible racial factors.
CONCLUSION
For the foregoing reasons the petition for a writ of
certiorari should be granted.
Respectfully submitted,
‘ fe ¥X
~amac--f ee
ies ——
“ISAAC BYRD
Owens & Byrd
P.O. Box 19
Jackson, Mississippi 39205
(601) 352-8443
SHIRLEY PAYNE
P.O. Box 1725
Jackson, Mississippi 39215
(615) 352-7059
STEVEN L. WINTER*
99 Hudson Street
16th Floor
New York, New York 10013
ATTORNEYS FOR PETITIONER
x
Counsel of Record
- 23 -
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1983
CONNIE RAY EVANS,
Petitioner,
-v-
THE STATE OF MISSISSIPPI,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE MISSISSIPPI SUPREME COURT
SHIRLEY PAYNE
P.O. Box 1725
Jackson, Mississippi 39215
(615) 352-7059
STEVEN L. WINTER*
16th Floor
99 Hudson Street
New York, New York 10013
(212) 219-1900
Attorneys for Petitioner
*Counsel of Record
520 Miss. 441 SOUTHERN REPORTER, 2d SERIES
Connie Ray EVANS
%;
STATE of Mississippi.
No. 53754.
Supreme Court of Mississippi.
Nov. 30, 1983.
Petitioner, who was convicted in the
Circuit Court, Hinds County, William F.
Coleman, J., and sentenced to death, which
judgment and sentence were affirmed on
appeal, applied for leave to file petition for
writ of error coram nobis. The Supreme
Court, Roy Noble Lee, J., held that: (1)
those contentions which were not alleged as
error and presented on direct appeal could
not be raised for first time on application
for leave to file petition for writ of error
coram nobis and were procedurally barred,
and (2) those contentions which were
presented and argued on direct appeal and
decided adversely to petitioner could not be
relitigated on application for leave to file
petition for writ of error coram nobis.
Application denied.
Robertson, J., dissented and filed opin-
ion, in which Hawkins and Prather, JJ.,
joined.
L. Criminal Law @997.7
Question whether aggravating circum-
stance of commission of murder in especial-
ly heinous, atrocious, and cruel manner was
established by the evidence was fully and
finally litigated on direct appeal from con-
viction, and could not be relitigated in cor-
am nobis proceeding.
2 Criminal Law ¢=9972
Contention with respect to finding of
aggravating circumstance of commission of
offense for purpose of avoiding lawful ar-
rest, not having been alleged as error and
presented on direct appeal from conviction,
could not be raised for first time on applica-
tions for leave to file petition for writ of
error coram nobis, and was procedurally
barred.
3. Criminal Law 997.7
Contention with respect to finding of
aggravating circumstance that petitioner
was under sentence of imprisonment at
time of offense, having been presented and
argued on direct appeal from conviction,
couid not be reiitigated on petition for writ
of error coram nobis, and was procedurally
barred.
4. Criminal Law 997.7
Contentions relating to admussion of
color slide evidence, testimony of victim's
brother, and police and pathologist testimo-
ny, all regarding nonstatutory aggravating
circumstances, were presented to the Su-
preme Court on direct appeal from convic-
tion and decided adversely to petitioner,
and, therefore, could not be relitigated on
petition for writ of error coram nobis and
were procedurally barred.
EVANS v. STATE Miss. 52]
Cite as 441 So.2d 528 (Mina 1963)
5. Criminal Law 9972
Failure of petitioner to allege as error
the admission of evidence of bullet and
victim's belongings to the Supreme Court
on direct appeal from conviction precluded
petitioner from raising issue for first time
on petition for writ of error coram nobis
and was procedurally barred.
6 Criminal Law 997.7
Contention relating to failure of trial
court to give jury instruction limiting con-
sideration of aggravating circumstances,
having been alleged as error and briefed on
direct appea] and rejected by the Supreme
Court, could not be relitigated on petition
for writ of error coram nobis, and was
procedurally barred.
7. Criminal Law 997.7
Contentions that trial] court erred in
removing juror with scruples against capi-
tal punishment and that prosecuting attor-
ney’s argument constituted misconduct,
both having been presented on direct appeal!
from conviction and found to be without
merit, were res judicata, could not be reliti-
gated on petition for writ of error coram
nobis, and were procedurally barred.
& Criminal Law 9972
Numerous contentions relating to, inter
alia, sufficiency of indictment, refusal to
permit defense witness to testify in mitiga-
tion of sentence, absence of presentence
report, inadequacy of trial judge's report,
and propertionality review structure, not
having been raised or presented on direct
appea! from conviction could not be raised
for first time on petition for writ of error
coram nobis and were procedurally barred.
9. Criminal Law 9972
Contentions that death sentence was
disproportionate and arbitrary and that
death penalty in Mississippi is imposed in
discriminatory manner, not having been
presented on direct appeal from conviction,
were unpreserved and procedurally barred
in proceedings on petition for writ of error
coram nobis.
Solomon Osborne, Greenwood, for appel-
lant.
Bill Allain, Atty. Gen., Amy D. Whitten,
William S. Boyd, III, Sp. Asst. Attys. Gen.,
Jackson, for appellee.
En Banc.
ON APPLICATION FOR LEAVE TO
FILE PETITION FOR WRIT OF
ERROR CORAM NOBIS
ROY NOBLE LEE, Justice, for the
Court:
Connie Ray Evans was convicted in the
Circuit Court of the First Judicial District
of Hinds County, Mississippi, and sentenced
to suffer death, according to the law of the
State of Mississippi. That judgment and
sentence were affirmed by a unanimous
decision of the Mississippi Supreme Court
on November 3, 1982, and petition for
rehearing was ‘denied December 15, 1982
Evans v. State, 422 So.2d 737 (Miss.1982).
The facts recited in the opinion reflect that
during the evening hours of April &, 1981,
Evans and his accomplice met and made
plans to rob RJ. Food Store located on
Lynch Street in Jackson, Mississippi. Ev-
ans stated to his accomplice that they might
have to kill the storekeeper during the rob-
bery. The next day, Evans and the accom-
plice robbed the store and clerk of approxi-
mately $400.00, and, in the process, Evans
shot and killed the clerk.
A petition for a writ of certiorari to the
Supreme Court of Mississippi was filed in
the United States Supreme Court and that
court denied the petition on May 16. 198
Petition for rehearing was filed and also
was denied. Application for Leave to File
Petition for Writ of Error Coram Nobis was
filed on July 1, 1983, setting out eighteen
(18) grounds for relief, each of which we
address hereinafter.
I.
Unlawful Application of Statutory
Aggravating Factors
A. The State's Use in Petitioner’s Case
of the Statutory Provisions that the
Murder was “Especially Heinous,
Atrocious and Cruel.”
{1] This ground was presented to the
Court on direct appeal from Evans’ convic-
522 Miss.
tion and sentence and was resolved by the
Court in the following response:
In the case sub judice, the victim was
forced to kneel on the floor behind the
counter with a .38<caliber revolver point-
ing at his head, he was made to stand up
at gunpoint and open the cash register,
and again was forced to kneel on the
floor with the revolver still pointing at
his head. He was physically assaulted by
one of the robbers emptying his pockets,
all oceurring over a short period of time.
From those facts, the jury could consider
mental torture and aggravation which
the victim probably underwent, and to
determine whether or not the murder un-
der al] the facts and circumstances was
especially heinous, atrocious or cruel.
Even though it may be said that the facts
of the homicide do not pass constitutional
muster on the aggravating circumstances
of being especially heinous, atrocious or
cruel, three (3) other aggravating circum-
stances were proved by overwhelming ev-
idence. [Evans v. State, 422 So.2d 743}
Thus, the matter having been fully and
finally litigated on direct appeal, it is res
adjudicata, may not be relitigated in a cor-
am nobis proceeding, and is procedurally
barred.
We note that Evans argues on this point
in his petition that “Moreover, as expressly
acknowledged by this Court in its review of
petitioners’s case on direct appeal, there
was wholly insufficient evidence to support
the jury’s reliance upon this aggravating
circumstance in imposing a death sentence
on petitioner.” The argument is misplaced.
The response clearly sets out that the ag-
gravating circumstance of being especially
heinous, atrocious or crue! was properly
submitted for the consideration of the jury
and for its determination. The phrase
“Even though it may be said that the facts
of the homicide do not pass constitutional
muster on the aggravating circumstance of
being especially heinous, atrocious or cruel,
...” is a different way of saying “Assum-
ing arguendo, ...” or “Even though it may
be argued, ...” or “For the sake of argu-
ment, ...”
441 SOUTHERN REPORTER, 2d SERIES
B. The State's Use in Petitioner's Case
of the Statutory Provision that Peti-
tioner’s Offense was Committed for
the Purpose of “avoiding ... lawful
arrest” as an Agpravating Circum-
stance
[2] This contention was not alleged as
error and presented on direct appeal. The
issue may not now be raised for the first
time on this application for leave to file the
petition for writ of error coram nobis, and
it is procedurally barred. Smith v. State,
434 So.2d 212 (Miss.1983); Edwards v. Thig-
pen, 433 So2d 906 (Miss.1983); Wheat v.
Thigpen, 431 So.2d 486 (Miss. 1983).
C. The Use of the Statutory Provision
that Petitioner was “under sentence
of imprisonment’ at the Time of the
Offense as an Aggravating Circum-
stance
[3] This contention was presented and
argued to the Court on direct appeal (Ev-
ans, supra, at 741), it may not be relitigated
again on this petition and is procedurally
barred.
Il.
Interjection of Evidence Based on Non-
Statutory Aggravating Circumstances
A. Color Slide Evidence
B. Testimony of Victum’s Brother
C. Police and Pathologist Testimony
[4] The contentions A, B, and C were
presented to this Court on direct appeal and
were decided adversely to petitioner.
Therefore, they may not be relitigated on
this petition and are procedurally barred.
D. Evidence of Bullet and Victim's Be
longings
[5] Petitioner did not allege as error or
present same to this Court on direct appeal,
the issue may not now be raised for the
first time on the petition and is procedural-
ly barred. (Smith, supra; Edwards, supra;
and Wheat, supra ).
EVANS v. STATE
Miss’ 523
Cite as 441 So.2d 528 (Miss. 1963)
E. Failure to Give a Jury Instruction
Limiting Consideration of Aggravat-
ing Circumstances
(6] This contention was alleged as error
and briefed on direct appeal and was reject-
ed by the Court. It may not now be reliti-
gated on this petition and is procedurally
barred. (Evans, supra, at 745).
III.
Other Constitutional Errors in the
Sentencing Tria!
1. Removal of Juror with Scruples
Against Capital Punishment
2. The Prosecuting Attorney’s Pervasive
Pattern of Misconduct
(7] Evans contends that the lower court
erred (1) in removing a juror with scruples
against capital punishment, and (2) the
prosecuting attorney's argument constitut-
ed error. Both of these contentions were
presented to this Court on direct appeal and
were found to be without merit. (Evans,
supra, at 740, 746). They are res adjudica-
ta, may not be relitigated on this petition
and are procedurally barred.
3. The Absence of a Finding of Intent to
Take Life
4. The Absence of Notice of Aggravat-
ing Circumstances
5. Refi to Allow Petitioner's Witness
to Testify on His Behalf Violated Pe-
titioner’s Rights under the Eighth
and Fourteenth Amendments
6. The Absence of a Presentence Report
7. Imadequacy of the Tra! Judge's Re
port
8. Inadequacy of Appellate Review Pro-
cedures
{8} Evans relies upon Enmund v. Fiori-
da, 458 U.S. 782, 192 S.Ct 3368, 73
L.Ed.2d 1140 (1982), and contends (3) tnat
he did not kill, attempt to kill, or inu -d
* that a killing take place during the robbery,
and that the death penalty should not have
1. Enmund was rendered July 2, 1982. Evans
been imposed. In Engie v. Isaac, 456 US.
107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982),
the court held:
Where the basis of a constitutional claim
is available, and other defense counsel
have perceived and litigated that ciaim,
the demands of comity and finality coun-
se] against labeling alleged unawareness
of the objection as cause for a procedural
default. (456 U.S. at 134, 102 S.Ct at
1575, 71 L.Ed.2d at 804).’
He contends that (4) the indictment al-
leged no aggravating circumstances and
that the omission violated his rights under
the Fourteenth and Sixth Amendments of
the United States Constitution, (5) the low-
er court's refusa! to permit his witness to
testify in mitigation of the sentence violat-
ed his Eighth and Fourteenth Amendment
rights, (6) the absence of a pre-sentence
report constituted error, (7) the inadequacy
of the trial judge's report was error, and (8)
Mississippi's proportionality review struc-
ture is inadequate and prejudicial w him.
None of these contentions listed here
were raised or presented on the direct ap
peal, and they are procedurally barred.
Smith, supra; Edwards, supra; Wheat, su-
pra.
9. Arbitrariness of the Death Penalty in
Mississippi
10. Discriminatory Aspects of the Death
Penalty in Mississippi
{9} Evans contends that (9) his sentence
is disproportionate and arbitrary and (10)
the death penalty in Mississippi is imposed
in a discriminatory manner. Those cunten-
tions were not presented on the direct ap-
peal, they are unpreserved and are proce-
durally barred. Smith, supra; Edwards,
supra; Wheat, supra.
We are of the opinion that the Applica-
tion for Leave to File Petition for Writ of
Error Coram Nobis in the Circuit Court of
the First Judicial District of Hinds County,
Mississippi, should be denied.
APPLICATION DENIED.
was sentenced to death October 15, 198!
524 Miss.
PATTERSON, CJ., WALKER and
BROOM, PJJ., and BOWLING, and DAN
M. LEE, JJ., concur.
ROBERTSON, HAWKINS and PRATH-
ER, JJ., dissent.
ROBERTSON, Justice, dissenting:
1.
For at least two decades the writ of error
coram nobis has been a post-conviction form
of action through which prisoners of the
state have filed constitutional challenges to
their convictions and sentences. We have
venerated this writ, for it fulfills our felt
obligation to assure that po person experi-
ences the sting of the state’s penal sanc-
tions inconsistent with the constitution.
Secondary but also important is our fed-
eralism context. Wher Mississippi's prison-
ers have been admonished that their com-
plaints may not be heard in federal court
until all viable state remedies have been
exhausted, we have insisted that this state
affords such a remedy. We have pro
claimed it plain, adequate and speedy. Asa
responsible partner in our federal system
we would be remiss if we did not afford
state prisoners such a remedy.
Today's decision renders the writ of error
coram nobis an empty form of action. It is
still on tye books. There is simply not
much of any importance it may be used for
After today we have no plain, adequate
and speedy post-conviction remedy for adju-
dication of constitutional issues. Today's
decision makes clear that, if such issues are
presented at trial and on direct appeal, they
are barred on error coram nobis as res
judicata. If such issues are not presented
at trial and on direct appeal, they are
deemed waived Al! constitutional claims
are thus precluded from post-conviction re-
view. Today's decision unmistakably holds
1. Let me emphasize st the ovtset that i unre
servedly join those who would “streamline and
441 SOUTHERN REPORTER, 24 SERIES
that the writ of error coram nobis is no
longer a viable form of post-conviction ac-
tion for the litigation of a prisoner's consti-
tutional claims no matter how meritorious
those claims may be. The writ has become
an ambassador without portfolio. .
Because our action today is so out of
keeping with my understanding of our judi-
cial responsibilities in cases such as this, |
respectfully dissent and set fc:th my rea-
sons at some length.
Il.
A.
We recall the standing the writ of error
coram nobis has had.'
Though it was available at common law,
the writ of error coram nobis has a statuto-
ry base in this state. Miss.Code § 99-35-
145 (1972). This statute became law over
thirty years ago. Miss.Laws, ch. 250 (1952)
It was passed out of the legislature's “cog-
nizance of the need to establish an adequate
post-conviction remedy". Smith v. State,
155 So.2d 494, 495 (Miss. 1963).
In Windom v. State, 192 So.2d 689 (Miss.
1966), for example, the Court described the
coram nobis remedy in this language:
This Court has provided a plain, ade-
quate and speedy post-conviction remedy
for adjudication of all issues that may be
raised under the Constitution of the Unit-
ed States or the Constitution of Mississip-
pi
192 So.2d at 691.
This language was quoted and cited with
approval in Love v. State, 221 So.2d 92, 94
(Miss.1969). In Love the Court went on to
insist that:
“... This state has an adequate post-
conviction remedy for an application for
relief by persons convicted of crime.
§ 2255. See also. Rule 8l(e), Miss.R-Civ.P..
which arguably abolishes all remedial writs.
substituting motions. I write here in the con-
text of recent history wherein the wnt of error
coram nobis has been the only viable posi-<con-
vicuion form of acuon available after affirm-
ance on direct appeal in this Court
EVANS +. STATE Miss. 525
(Cite as 44] $0.24 520 (Mies 1963)
Even the most hardened criminals are not
denied a ‘full-blown hearing’”
221 So.2d at 95. [Emphasis added].
The office of the writ of error coram
nobis as this state’s form of action designed
to accommodate post-conviction considera-
tion of constitutional issues was reiterated
in Nelson v. Tullos, 323 So.2d 539 (Miss.
1975).
In this jurisdiction relief for a defend-
ant who claims to have been convicted as
the result of a deprivation of his constitu-
tiona] rights is by writ of error coram
nobis. As this Court pointed out in Botts
v. State, 210 So.2d TT7 (Miss.1968):
The function of a writ of error coram
nobis is to bring to the court’s attention
some matter or fact which does not
appear on the face of the record which
was unknown to the court or the par-
ties at the time, and which, if known,
and properly presented, would have
prevented the rendition of the original
judgment. The violation of defend-
ant’s constitutional right to be repre-
sented by counsel! constitutes ground
for granting a writ of error coram no-
bis to correct a former judgment. 18
2 We are, of course, in no way bound by the
regard
the views gxpressed by the United States Dis-
trict Court for the Northern District of Missis-
sippi in King v. Cook, 287 F.Supp. 269 (N.D
Miss.1968). King was an exhaustion of reme-
dies case. A state prisoner was seeking federal
habeas corpus relief. As a prerequisite to his
federal action, he had to “exhaust” any state
remedies “available” and “effective”. 287
F.Supp. at 272. [Esphasis added) In this
context U.S. District Judge Claude F. Clayton
made these comments regarding Mississippi's
error coram nobis remedy
... [A) writ of error coram nobis in Missis-
sippi is of broad scope and range, partucular-
ly giving cognizance to violauon of consutu-
United States Court of Appeals for the Fifth
Circuit, and observed that the Court of Ap
... tp holding that the state procedures
might not be bypassed. applauded the “far
reaching” act as an effective remedy for se
AmJur.2d Coram Nobis § 17 (1965).
(210 So.2d at 779).
Accord Clayton v. State, 254 So2d 874,
875 (Miss.1971); Allred v. State, 187
So.2d 28, 30 (Miss.1966).
323 So.2d at 543.
As recently as 1982 we shenneed that the
writ of error coram nobis is the form of
remedy available to one mounting a “collat-
eral attack based upon constitutional de-
fects ... [in his] conviction”? Phillips v.
State, 421 So.2d 476, 483 (Miss. 1982).
B.
Through the error coram nobis procedure,
this Court has repeatedly allowed presenta-
tion of constitutional issues which could
have been litigated at trial or on direct
appeal but for various reasons were not
Fondren v. State, 199 So.2d 625 (Miss.
1967) typically reflects the office of our
writ of error coram nobis. Thomas Ear!
Fondren had been tried and convicted of
burglary. This Court had affirmed on the
merits. Fondren v. State, 253 Miss. 241, 175
So.2d 628 (1965). Two years later Fondren
sought release via writ of error coram no-
curing state court review of federal chal-
lenges to state convictions. It is the conclu-
sion of this court that the statutory scheme
vided by Georgia. 287 F.Supp. at 272.
The Distnct Court concluded with this lan-
guage
Thus it is seen that Mississippi, in enacting
§ 1992.5, had a comprehensive procedure for
the rehearing of criminal! cases, wherein er
tors of a constituuona! nature have occurred.
as early as 1952. at which time Georgia stil’
severely restncted the scope of its post-con
po ae og OE
twenty Why the majority has found f. desira-
ble or appropriate to restrict that view has not
been explained
526 Miss.
bis. He assigned an alleged denial of his
constitutional right to trial before a jury
drawn from a fair cross-section of the com-
munity. He alleged that in fact black per-
sons had long been excluded systematically
from juries in his county and that this
exclusion rendered constitutionally infirm
his conviction and sentence. This Court
granted relief on the merits. Fondren v.
State, supra, 199 So.2d at 626-627. In Fon-
dren the systematic exclusion claim was not
held procedurally barred. Fondren had not
timely raised the issue at trial. He had not
assigned it as error on direct appeals. In
spite of these failures, when the case
reached this Court two years later via error
coram nobis, we reached the merits and
granted relief. There was no waiver of the
claim “since the proof shows that he [Fon-
dren} was not advised of his rights by prior
counsel”. 199 So.2d at 626.
What is important about Fondren is that
the constitutional infirmity in Fondren’s
conviction is in fact just as procedurally
barred as is Evans’. Evans procedural! de-
fault is qualitatively the same as Fondren’s,
no more, no less. Fondren's “barred” con-
stitutional claim was considered on its mer-
its. Why Fondren does not require similar
treatment of Connie Ray Evans’ constitu-
tiona! claims escapes me.
Cc
—
There is another context in which we
have routinely ignored so-called “procedural!
bars” and allowed prisoners to present their
constitutional claims via error coram nobis.
These cases have arisen when the prisoner
has pleaded guilty, had his plea accepted
and been sentenced. Later he seeks error
coram nobis relief on constitutional
grounds. The plea of guilty constitutes a
waiver of an accused's most basic constitu-
tional rights. Boykin v. Alabama, 395 U.S.
238, 243 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274,
279 (190.., Phillips v. State, 421 So.2d 476,
479 (Miss.1982). We have nevertheless pro-
ceeded to adjudicate the merits of such
cases—almost routinely. See, e.g., Echoies
v. State, 254 Miss. 133. 180 So.2d 630 (1965)
(prisoner allowed to challenge sufficiency of
441 SOUTHERN REPORTER, 2d SERIES
indictment even though he voluntarily
pleaded guilty and waived his rights).
Arguably there is a qualitative difference
in the Echoles waiver and that involved
here. Echoles’ guilty plea was knowing and
voluntary on his part. Evans’ “waiver” un-
dergirding the majority's view is predicated
upon the inactions of counsel in which no
one could say Evans was a knowledgeable
participant. If Echoles was entitled to be
heard on the merits of his claim, Evans is
even more certainly similarly entitled.
Ill.
Connie Ray Evans, II] has now presented
to this Court his petition for a writ of error
coram nobis. He charges that his death
sentence is infected with no less than six-
teen infirmities, each said to be of constitu-
tional dimension. He has done this via an
application adequate under Rule 38, Miss.
Sup.Ct. Rules, an application which lays
bare much flesh to many of his substantive
claims
The majority holds each of Evans’ claims
procedurally barred, apparently accepting
the State’s candid and (to my mind) shock-
ing insistence that:
Any relative merit which might be
found in the [sixteen constitutional]
claims is afforded no consideration where
the machinery f«> preserving the claim
has gone unused.
State’s Brief, p 11. [Emphasis added]
The majority would have Evans die, not
because the proceedings at tmai and on
direct appeal were fundamentally fair or
constitutionally adequate, but because his
lawyer goofed. We have here no sugges-
tion that defense counsel chose deliberately
to bypass the trial and appellate process.
The State does not argue that defense coun-
sel eschewed presenting these sixteen con-
stitutional claims as a matter of conscious
trial tactics. Connie Ray Evans, the center
and subject of this kafkaesque nightmar.
no doubt has not the slightest comprehen-
sion of his lawyer's inaction at tmal or our
action here. Decisions that life be taken
should be made of more solid stuff.
EVANS v. STATE Miss. §27
Cite as 441 So.2d 528 (Misa 1963)
The majority opinion is, | submit with Consider the logic implicit in the majority
sincerest respect and deference, in grave opinion Alleged violations of constitution-
error on two fronte—first, in its unjust a! and other rights must be objected to at
impact on the man whese life is here om the trial aiid then raised as assigned errors if
line; and, second, in its complete eviscera- they are to be preserved for consideration
tion of the coram nobis post-conviction rem- on their merits on direct appeal. If error is
edy. tot properly preserved, then such error may
Make no mistake about the implications ot—says the majority—be asserted as a
of the procedural bar the majority would basis for post-conviction relief because of
impose upon Connie Ray Evans. It pre- procedural bar. If, however, the defendant
sumes that, in at least sixteen different preserves the error, the majority nonethe-
particulars, Evans’ rights secured by the less denies post-conviction proceedings be-
Constitution of the United States may have cause al] such preserved errors have been
been violated. No matter. The majority reviewed on direct appeal and are thus res
holds that Evans must die, his sixteen fed- judicata’ The majority opinion allows nei-
era! constitutional claims never having been ther preserved nor unpreserved error to be
considered on their merits by anyone raised for post-conviction review. [If this be
What state interest requires such a fateful the law, it is difficult to imagine why we
step wholly escapes me! ever thought it necessary to have a post-
Second, and to my mind even more dis- conviction remedy for the litigation of con-
turbing, are the institutional ramifications stitutional claims at all.‘
of the majority opinion. The writ of error J
coram nobis, as we have heretofore known IV.
it, has been substantially eviscerated’ Af- The dissent I register here is undergirded
ter today’s decision, there is no post-convic- by a powerful principle well stated hy this
tion relief available in this Court on ques. Court over thirty years ago in Brooks v.
tions of criminal constitutional! law’ ¢ State, 209 Miss. 150, 46 So.2d 94 (1950).
3. Presumably the writ may stil] be used to
present ineffective assistance of counsel!
claims. Read v. State, 430 So.2d 832, 836-842
(Miss. 1962). It may also continue to serve its
common law function as a form of action
through which a prisoner may call to the
court aftention some matter of fact not ap
pearing on the face of the record and unknown
at the time of trial. Petition of Broom. 25)
Miss. 25, 32-33, 168 So.2d 44, 48 (1964): Allred
vy. State, 187 So.2d 28, 30-31 (Miss. 1966). Nei-
son v. Tullos, 323 So2d 539, 543 (Miss.1968)
4. This case must be confined to its procedural
context: tna! on the merits ending im coavic-
tion and sentence, affirmance on direct appeal.
followed by an application here for post-convic-
tion relief via writ of error coram nobis. Of
course, all post-conviction applications by
death row inmates are likely to be made in this
procedural context. | trust no one will suggest
any implied modification or repeal of the habe-
as corpus provided in RULE 8.07 of
Uniform Criminal Rules of Circuit Court Prac-
made to a circuit court’ By way of contrast
we are here concerned with cases where this
Court last had junsdiction and where hereto
fore the writ of error coram nobis initially
sought here was the only viable remedy. See
Rule 38, Miss.Sup.Ct. Rules
5S. Let me be clear that | wholly agree that res
judicata does set in once an issue has been
finally adjudged on its ments and affirmed on
direct appeal in such cases the defendant has
had his day in court on any such issue. Of
course where a man's life ts om the line rt
would seem appropriate for the Court to recog-
509, 102 S.Ct. 1198, 71 LEd2¢ 379 (1962), the
Today's decision makes clear that you
lead a horse to water but you cannot make
528 Miss.
Constitutional rights in serious criminal
cases rise above mere rules of procedure.
209 Miss. at 155, 46 So.2d at 97.
This principle was restated with approval in
Gradsky v. State, 243 Miss. 379, 384, 137
So.24 820, 821 (1962). Its current vitality is
attested by the Court's recent decisions in
Read v. State, 430 So2d 832, 837 (Miss.
1983); and Richardson v. State, 436 So.2d
790, 791 (Miss.1983). See also, my dissent-
ing opinion in Hil] v. State, 432 So2d 427,
443-451 (Miss. 1983).
This principle has force for a more funda-
mental reason: it is intuitively and demon-
strably just The point is graphically illus-
trated by imagining the converse principle:
In serious criminal cases, fundamental con-
stitutional rights are subordinated to mere
rules of procedure. No court would con-
sciously embrace such an exhaltation of
form over justice, yet such is the inescap-
able implication of the majority opinion
There is a practical reason why strnct
adherence to the spirit of Brooks is so im-
portant here. Death penalty litigation has
become highly specialized. Few Mississippi
lawyers have even a surface familiarity
with the seemingly innumerable refine-
ments put on Gregg v. Georgia, 42% US.
153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and
progeny.’
We*have reviewed the record in numer-
ous death penalty cases in recent years.
Generally, we find that a vigorous all-out
defense is made, although there are excep
tions. Generally speaking, the Mississippi
Bar has reason to te proud of the vigor and
competence with which its members have
defended capital cases. On points that
arise regularly in criminal cases of al! de-
scriptions—change of venue, insanity de-
fense, pretrial motions to suppress state-
7. For a survey of these “refinements” see my
article Fleshing Out the Premises and Proce
dures for Capital Murder Trails. 8 Voir Dire 6
(1982).
8. This situation is analogous to that in the
Fondren case discussed above. Fondren v
State, 199 So.2d 625 (Miss.1967). In Fondren.
defense counsel at tria! and on direct appeal no
doubt was unfamiliar with the then evolving
“systematic exclusion” issue
441 SOUTHERN REPORTER, 2d SERIES
ments and evidence, trial tactics generally,
jury instructions, and the like—our bar has
performed well. What happens frequently,
however, and what has happened in this
case, is that—as a conventional criminal
case—the case was well tried. In spite of
this, numerous important and highly techni-
cal death penalty issues were not raised.
Most of the sixteen issues presented on this
petition are issues which have resulted in
death sentences being vacated in other
cases. These are points of law with which
the average Mississippi criminal defense
lawyer has no familiarity.’
Nothing said here suggests any inference
that we here deal with ineffective assist-
ance of counsel. Nonetheless, there can be
no doubt that counsel's ignorance of the
constitutiona! issues at stake in a capital
case is responsible for many procedural de-
faults here. It follows to my mind that we
ought decide these cases on the merits of
the issues tendered, procedural niceties to
the contrary notwithstanding.
V.
The majority opinion relies on a trilogy of
recent decisions as supporting the proposi-
tion that we now have a blanket rule re-
quiring enforcement of procedural bars on
constitutional claims asserted in death pen-
alty cases via application for writ of error
coram nobis. Edwards v. Thigpen, 433
So.2d 906 (Miss.1983).° Wheat v. Thigpen.
431 So.2d 486 (Mis:.1983;. and Smith +
State, 434 So2d 212 (Miss.1983). In my
view, none of these cases is nearly so broad.
Despite the fact that the majority offers
Edwards as a case in which the blanket rule
requiring procedural] bar was invoked, only
six of seven assignments of error in Ed-
wards were treated as either res judicata ”
9. 1 specially concurred in Edwards expressing
briefly reservauons comparable to those | ex-
press here at more length Edwards v. Thig-
pen. supra. 433 So2d at 909.
10. Technically speaking. res judicata is a form
of procedural bar It 1s one which does not
senously concern me because in such situa-
tions the prsoner has had a full dress adjudica-
tion of his consututiona: claims on their ments
EVANS v. STATE Miss 529
Chie as 441 S024 526 (Misa 1963)
or procedurally barred. The fifth assign-
ment of error—whether Edwards possessed
an intent to kill—was treated unequivocally
on the merits. 433 So.2d at 908 The issue
could have been found res judicata as the
direct appeal opinion discussed the suffi-
ciency of evidence for finding that Edwards
was the killer. 413 So.2d at 1013. The
issue also could have been found procedur-
ally barred because the issue—both at trial
and on direct appeal—was “less than pre-
cisely framed” and thus not preserved. 433
So.2d at 908. Even though such methods
for disposing of the issue on procedural
grounds were available, the court, nonethe-
jess, reached the merits. Obviously, no
“blanket rule” is enunciated by this case.
In Wheat v. Thigpen, five of the points
raised on post-conviction proceeding: sad
been previously decided by this Court on
direct appeal. Cf. Wheat v. State, 420
So.2d 229, 232 (Miss.1982). Three other is-
no court will ever consider the ments of the
constututional claim.
ll. 434 So.2d at 215. The cases cited in Smith
and their sctual holdings are as follows. In
Court stated:
It should have been raised in the lower
sues—alleged improper closing argument at
the guilt phase, alleged improper jury in-
structions at the sentencing phase, and al
leged improper closing argument at the sen-
tencing phase—were neither preserved at
trial nor presented to this Court on direct
appeal. Wheat holds the three unpreserved
claims procedurally barred. Nothing in the
opinion, however, attempts to articulate a
rule going beyond the facts of the particu-
lar case. Nothing in Wheat purports to
announce a general rule requiring enforce-
ment of procedural bars precluding litiga-
tion of all constitutional claims in al] death
penalty post-conviction proceedings.
In Smith v. State, 434 So.2d 212 (Miss.
1983), the Court cites a number of cases for
the proposition that this Court holds that
post-conviction relief is not available on is
sues which could or should have been liti-
gated at trial or on appeal.’ Neither
imagnation can it be said that Rogers stands
for the proposiuion that constitutional issues
not presented at tnal or on appeal are forever
foreclosed froin consideration on coram nobis
In Rogers the Court did make thus staternent
It has been said that the mght to issue @
writ of error coram nots is founded on the
inherent power of the court over its judg-
ments and proceedings. See Hawie v State,
121 Miss. 197, 8&3 So 158
240 Miss. at 619, 128 So.2d at 551
In Kennard v. State, 246 Miss. 209, 148 So2d
660 (1963). the relief was denied on grounds
that
This is a re-argument of the case on the
merits of that issue It was fully discussed in
our onginal decision affirming the conviction
24€ Miss at 21, 148 So2d at 66)
In other words. the rejecuon or coram nobis
relief in Kennard was on res judicata grounds.
not om grounds that the issue had act been
preserved
In Gordon v. State, 160 So2d 73 (Miss. 1964),
the Court found a waiver of the constitutional
issue pertaining to the systematic exclusion of
tially in the nature of finding that the failure to
raise the issue in a timely manner was either a
been reversed on precisely this juror-exciusion
issue. 243 Miss. 750, 753, 140 So2d 88 89
(1962), cited in 160 So2d at 74. Gordon made
no showing “on the merits” of this claim. 160
So.2d at 76. Given “all of these circumstanc-
es." the Court found a waiver of the consttu-
tional issue. This sort of careful consideration
530 Miss.
Smith, nor Edwards nor Wheat, hold that
fundamental constitutiona! issues—that are
neither raised at trial nor assigned as error
on direct appeal—are foreclosed from pre-
sentation on post-conviction; such a holding
would necessitate overruling many prior
cases. See Hill v. State, 432 So2d 42%,
443-451 (Miss.1983) (Robertson, J., dissent-
ing).
VI.
The majority relies on Engle v. Isaac, 456
U.S. 107, 102 S.Ct 1558, 71 LEd2d 78
1983), in support of the proposition that
petitioner's constitutional claims not
presented at trial or preserved on direct
appeal should be deemed procedurally
barred. This citation is out of place. Isaac
literally concerns another world.
Isaac articulates principles to be applied
by federal courts, not state courts. In
Isaac, a federal court is being asked to
interfere with the final judgment of the
highest court of a state. By way of con-
trast, Evans asks this Court in effect to
reconsider its own prior fina] judgment,
something we have inherent authority to
do. Wetzel v. State, 225 Miss. 450, 483, 76
So.2d 194, 198 (1954); Rogers v. Jones, 240
Miss. 610, 128 So.2d 547. 551 (1961).
so
of the “cause” (deliberate by-pass) and the
“prejudice” (issue was frivolous) is an intelli-
gent and reasonable manner for evaluating
post-conviction claims by the state that issues
ought be held procedurally barred
In Irving v. State, 194 So.2d 239 (Miss 1976)
the application for a wnt of coram nobis al-
leged matters which had been considered on
dhrect appeal and were thus res judicata The
opinion of the Court makes no reference to
constitutional issues and, accordingly offers no
support for any broad application of procedural
bar
In Auman v. State, 285 So2d 146 (Miss
ty. 285 So2d at 147.
Bel! v. Watkins, 381 So.2d 118 (Miss.1980). is
than four umes”. 38] So.2d at 119. Despite
res judscata opuons, the Court chose instead to
441 SOUTHERN REPORTER, 24 SERIES
The dominant interest underlying the
Isaac principle is comity—the federal
court's comity obligation to respect the
competence of state courts and the finality
of state adjudications. Isaac is describing
the circumstances under which a federal
court should be reluctant to interfere with a
final judgment of this Court. This is
what—and all—that is said in the sentence
from Isaac quoted by the majority.
Isaac is wholly irrelevant when this Court
is being asked to reconsider its own judg-
ment. There are no comity considerations
present. We are on the other side of the
Isaac situation. Not one word in Isaac, not
one thought articulated in the opinion, has
the slightest application to the question of
whether a state court ought hear, on post-
conviction proceedings, constitutional claims
not timely presented on direct appeal. We
fashion our own rule on this question.
Despite the total inapplicability of the
decision in Isaac to this Court, an examina-
tion of the facts in Isaac—facts under
which state, procedural bars may be en-
forced—is instructive. Isaac is not a death
penalty case. The Supreme Court of the
United States has repeatedly held that
death is different.” In its “death is differ-
find issues “lacking in merit”. 381 So2d a
119 That we are not the only ones to so read
* the Bel! opimon is made evidence in Bei! v
Wtalans, 692 F.2d 999, 1003-04! (Sth Cir
1982;
Callahan v State. 426 So.2d 80! (Miss 1983)
states a combination res judicata /deliderate
by-pass rule 426 So.2d at 803 Furst, the
Court emphasizes that, “The writ of error cor-
am pobis will not be allowed to relitigate ques-
tions of law or fact already decided by this
Court [on direct appeal) 426 So2d at 803
Second. the Court emphasizes thal pouts
may not be raised on post-conviction proceed-
ings which were deliberately held back at the
time of direct appeal. 426 So.2d at 803. Suf-
there has been a deliberate by-pass.
dissenting opinion in Hill v. State, 432 So2d
427, 450. 45] (Miss. 1983)
12. Concurnng in Furman v. Georgia, 408 U.S
238, 92 S.Ct. 2726, 33 LEd.2d 346 (1972), Jus-
uce Stewart wrote
ll
EVANS v. STATE Miss 53]
Cie op 441 So.28 538 (Mies 1963)
ent” cases, the Court has articulated inter-
present in non-capital cases. Because the
penalty is qualitatively different in severity
and finality from any ot‘er punishment
known to our law, it makes no sense that
the procedural rules of Isaac should be ap-
plied the same as in non-capita/ cases
VIL.
It is important to understand the reasons
why the State urges that the issues ten-
dered be disposed of on procedural grounds
only. The State's articulated motivation is
to short-circuit anticipated federal court re-
view via habeas corpus under 28 U.S.C
§ 2254. The State is saying we should holc
Evans’ claims procedurally barred, not be-
cause such would promote the interests of
justice, but rather that such would pull the
rug out from under Evans when he ulti-
mately seeks federal review of his case."
The penalty of death differs from al) other
forms of criminal] punishment, not in degree
but in kind It is unique in its total urevoca-
bility It is unique in its rejection of renabib-
tation of the convict as a basic purpose of
criminal justice. And it is unique, finally, in
its absolute renunciation of al) that is embod-
os te Gel aaah ie eee. 408 U.S
306, $2 S.Ct at 3760, 33 LEd2d at 388
This theme, the unique nature of the death
, Georgia. supra.
408 UsS. at 287-289, 92 S.Ct. at 2751, 3752.
33 LEd 2d 376-378 (Brennan, J., concurnng).
Gregg v. Georgia, 428 U.S. 153. 187-188. 96
S.Ct. 2909. 2931, 49 LEd2d 859 (1976)
Woodson v. North Carolina. 428 U.S 280
305, 96 S.Ct 2978, 2991. 49 LEd2¢c 944
(1976); Gardner v. Flonda. 430 US 349
357-358, 97 S.Ct 1197, 1204-05, 51 LEd2d
393, 402 (1977); Coker v. Georgia, 433 U.S
584, 598, 97 S.Ct 2861, 2869, 53 LEd2d 982
(i977), Lockett v. Ohio, 438 U.S. 586, 604
605, 98 S.Ct. 2954, 2964-65, 57 LEd 2d 973.
989-990 (1978), Beck v. Alabama, 447 U.S
625, 638, 100 S.Ct. 2382, 2390, 65 LEd2d
392, 393, 403 (1980); and California v. Ra-
mos, — US. ——, —, 103 S.Ct. M4.
3451, 77 LEd 2d 1171, 1179 (1983).
13. The courts of the United States, led by the
Supreme Court of the United States, have cre-
ated an anomalous, if not absurd, posture for
federal post-conviction litigation. If a state
court adjudicates the merits of a substantive
federal constitutional claim, then federal courts
The State not only asks that we refuse to
address Evans’ claims on their merits but
unash nedly further seeks our sid in avoid-
ing li..gation of Evans’ sixteen federa/ con-
stitutional claims in any federa/ court.
The Attorney General and this Court
have become interested in invoking proce-
dura! Lars in death penalty cases only in
recent years. Prior to the death penalty
moratorium which covered the last half of
the 1960s and most of the 1970s, procedural
bars in death penalty cases were unheard
of. For a collection of authorities to this
effect, see my dissenting opinion in Hill v.
State, 482 So2d 427, 443-45 (Miss. 1983).
A -review of recent history is instruc-
tive—and reveals our affection for proce-
dural bars to be particularly unseemly.
In seven cases, those of Richard Gerald
Jordan,“ Johnny Lewis Washington, Jim-
my Lee Voyles, Charlies Sylvester Bell,”
John Buford Irving,” Larry Jones and
have full power to “review” the federal claim
In such instances, the state pnsoner gets two
separate adjudicauons on the merits of his fed-
eral consutuuional claim—one in the state
courts, the other in the federal courts. On the
other hand, if the state court rejects the federal
constitutional claim by reason of some proce-
dural default of the prisoner, it is clear, at least
in non-capital cases, that the federal courts will
regard une state procedural bar as an indepen-
dent and adequate state ground and, according-
ly. refuse to hear the merits of the prisoner's
substanuve federal constitutional claim See,
e.g. Wainnght v. Sykes, 433 U.S. 72, 97 S.Ct
2497, 53 LEd.2d 594 (1977), and Engle v. Isaac.
456 U.S. 107, 102 S.Ct 1558, 7] LEd2d 783
(1982) If such a rule be applied in death
penalty cases, then the defendant will be dis
patched to the gas chamber witnou! anyone
ever having considered on the merits his feder-
a) constituuonal claim.
14. Jordan v. State, 365 So2d 1198 (Miss.1978)
1S. Washington v. State, 361 So2d 61 (Miss
1978)
16 Voyies v. State, 362 So.2d 1236 (Miss.1978)
17. Bell v. State, 360 So2d 1206 (Miss.1978)
18. Irving v. State, 36! So.2d 1360 (Miss.1978)
19. Jones v. State, 381 So.2d 983 (Miss.1980)
12
Willie Reddix.” we have affirmed final
judgments of conviction and sentences of
death. We have thereafter denied coram
nobis and other post-conviction relief in
each of these cases. Subsequently, in each
of these cases, for one reason or another,
courts of the United States have vacated
the death sentences.” In each case, a fed-
eral court has held that imposition and
carrying out of the sentence of death would
be inconsistent with one or more provisions
of the Constitution of the United States.
In doing so, however, the federal judiciary
has in no way interfered with any of our
prerogatives on questions of state law. In-
deed, the federa) judiciary has bent over
backwards in grarting to us full berth on
questions of state law. See, for example,
the federal judiciary’s response to our argu-
ably dubious rewriting of an earlier death
penalty statute in Jackson v. State, 337
So.2d 1242 (Miss.1976): see Jordan v. Wat-
kins, 681 F.2d 1067, 1077-78 (5th Cir.1982);
Bel] v.- Watkins, 692 F.2d 999, 1010 (5th
Cir.1982); Irving y. Hargett, 518 F.Supp.
1127, 1133-34 (N.D.Miss.1981). It is in thus
context that we are presented with an un-
disguised demand that this Court assume an
adversary position.
We sit as the highest court of the State
of Mississippi, the court of last resort on al!
questions of state law. By virtue of the
Supremacy Clause, we are obligated faith-
fully to enforce, not to subvert, the Consti-
tution of the United States as the supreme
law of the land. Bolton v. City of ge
ville, 253 Miss. 656, 666, 178 So.2d 667, 672
(1965), Sanders v. State, 429 So.2d 245, 248,
251 (Miss.1983). The best way to insulate
20. Reddix v. State, 38] So.2d 999 (Miss. 1980)
21. See Washington v. Watians, 655 F2d 1346
(5th Cir.1981); Jordan v. Watkins, 68! F2d
1067 (Sth Cir.1982), clarified sub nom. Jordan
v. Thigpen, 688 F.2d 395 (Sth Cir.1962); Bell v.
Watkins, 692 F.2d 999 (Sth Cir.1982), Voyles v.
Watkins, 489 F.Supp. 901 (N.D.Miss. 1980}; Irv-
ing v. Hargett, 518 F.Supp. 1127 (N.D.Miss.
1981); Reddix v. Thigpen, 554 F.Supp. 1212
(S.D.Miss.1983); Jones v. Thigpen, 555 F.Supp
870 (S.D.Miss.1983). The one case left undis-
turbed by federal post-conviction review was
that of Jimmy Lee Gray. See Gray v. Lucas.
677 F.2d 1086 (Sth Cir. 1.82)
441 SOUTHERN REPORTER. 2d SERIES
our decisions from federal “tampering” is to
get the cases might here. If this means
reading the decisions of the Supreme Court
of the United States and of the United
States Court of Appeals for the Fifth Cir-
cuit as they are. rather than as we wish
they were, so be it.
This State has an important interest in
the enforcement of its capital murder stat-
ute, specifically including the death penalty
portion thereof. That interest is not served
by the Attorney General's continued insis-
tence that we blink at federa] constitutional
rights vested in those accused of capital
crimes. Death penalty litigation is in a new
era. It is still evolving. Because human
life is at stake, this evolution is necessarily
a tortuous process. As a major participant
in that process, we would serve best the
legitimate interests of this State and its
people by washing our own linen, rather
than pretending that it’s not dirty and then
reacting with a fit of pique when the feder-
al courts hold to the contrary.
We ought be no more offended that fed-
eral court: have the final say on questions
of federal constitutional law than are the
federal courts about the fact that we have
the fina! say on questions of state law. See
Erie Railroad Co. v. Tompkins, 304 U.S. 64,
58 S.Ct. 817, 82 L.Ed. 1188 (1938) and proge-
ny. Indeed the federal judiciary’s defer-
ence to our interpretations of state law has
been most ungrudging. Set, e.g., Jordan +
Watkins, 681 F.2d 1067, 1077-1080 (5th Cir.
1982}; Walters v. Inexco Oi] Company, 670
F.2d 476 (5th Cir.1982). It would seem to
22. | am very much aware of the implications of
what | write here for this Court and the work-
load shouldered by its members and staff.
Death pared pn Bose pe created senous insti-
ee a state and federal,
They consume more time
542
phony rsclow Tokman v. State, 435 So.2d
, 673 (Miss.1963). Still when a man's life is
burden too back-breakang to bear.
13
EVANS v. STATE
follow that we ought give 2 comparable
respect to the competence of the federal
Judiciary in questions of federal law.
solemn responsibility is to decide each case
as though there were no other court To
the extent that we act out of interest in
what some other court may do in the fu-
ture, we demean ourselves. We are judges,
not advocates.
That seven out of the first eight of our
cases to be reviewed in the federal courts
resulted in the sentence of death being va-
cated ought to tell us that we have not been
doing something right. Emphatically, this
is not an occasion for our becoming advo-
cates and devising procedural mechanisms
for the blatantly obvious purpose of reduc-
ing the chances that death sentences af-
firmed here may be vacated by a federal
court. Our obligation on our oaths is to
decide carefully the merits of each constitu-
tional claim tendered by each person sen-
tenced to die. Our eye must be affixed to
justice, not slanted toward Wainwright v.
Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed_2d
594 (1977), and Engie v. Isaac, 456 U.S. 107,
102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).
VIII.
We have emphasized above that the state
does have an interest in the finality of
criminal proceedings. We here flesh out
what that means.
Once a criminal conviction has been final-
ly affirmed in this Court and the time for
further direct review has expired, the
state's finality interest vests. It is by no
means unreasonable or unfair that at this
point an additional burden be placed upon
the prisoner. Still we perceive no course of
logic which would yield the conclusion that
finality w the only interest then at stake.
If it be shown that the prisoner's conviction
or sentence be infected by substantial viola-
tions of rights secured by the Constitution
or laws of the United States or of this
state; and if it further be shown either that
had these violations not occurred. the prro-
ceedings at trial would have been substan-
tally more favorable to the prisoner or,
that there exists good cause why the points
were not raised on appeal; then the force
of the state's finality interest is overcome
A review of all of our cases makes clear
that this Court has taken a flexible, and
admittedly not altogether consistent, ap
proach to post-conviction proceedings On
the one hand, there is much to be said for a
continuation of this flexibility. On the oth-
er hand, we submit that the administration
of justice wil] be enhanced by announcing
general principles to be applied.
Whenever a prisoner, who has been final-
ly convicted in the courts of the State of
Mississippi and whose conviction has been
finally affirmed by this Court, seeks post-
conviction relief in this Court, and where
such prisoner claims that his conviction and
sentence have been infected by violations of
rights secured to him by the Constitution of
the United States or by the Constitution
and laws of the State of Mississippi, and
where the issues presented had not previ-
ously been tendered on direct appeal, the
prisoner should be required to show either
(a) that there exists good cause why the
point was not procedurally preserved at tri-
al, or raised on direct appeal, or both, as the
case may be,
or
(b) that the nights violations asserted did
in fact subject him to a substantial detri-
ment at triai, that is, had the rights viola-
tions not occurred, the trial process—as dis-
tinguished from its outcome—would likely
have been more favorable to him than it
was.
_ Beyond that, there is no sound reason
why this Court should erect a procedural
rule which would bar it from noticing, on
direct appeal or on post-conviction proceed-
ings, plain error. This Court's first duty is
to administer justice.
Wainwright v. Sykes and Engie v. Isaac
were never intended to encourage and insu-
14
534 Mis
late state court uvesponsibility. Rather,
they are a part of a fundamental shift in
emphasis wichin our system, whereby great-
er responsibility for the adjudication of sub-
stantive constitutional rights is being as-
sumed ty the highest courts of the several
states Without doubt the most certain
way to assure that the charter will be re-
voked is for the states to default in their
responsibilities.
ln my view, our decision on Evans’ peti-
tion should be as follows:
First, with respect to all claims asserted
which were adjudicated on their merits on
direct appeal, the petition shoukd be dis-
missed The previous adjudication is final.
Res judicata precludes relitigation in the
courts of this state.
Second, with respect to non-constitutional
claims which either (a) were not properly
preserved at trial or (b) were not presented
on direct appeal, those claims have been
effectively waived. In its supervisory ca-
pacity over its own judgments, this Court
has the capacity to notice errors of this sort
Our piain error rule applies here equally as
it does on direct appeal. Suffice it to say
that in the case at bar I detect no alleged
non-constitutional errors sufficiently plain
to be noticed here.
Third, with respect to those claims assert-
ed by Evans which are of constitutional
dimensions, federa) or state, and with re-
spect to which the claim either was not
timely preserved at tria] and/or presented
on direct appeal, we should hear Evans’
claims provided he can demonstrate either
cause or prejudice. Again, the Court re-
tains plain error powers even though nei-
ther cause nor prejudice be shown.
x.
Today we hold that Connie Ray Evans
must die We hold this though Evans has
presented to us sixteen reasons of constitu-
tional proportions why his sentence is un-
lawful The net effect of today’s decision is
that no court may ever consider the merits
of any of Evans’ points He must die not
because he has been «.victed and sen-
tensed consistent with the constitution, but
because his lawyer made mistakes.
Today's opinion, with deference to my
colleagues, turns back the clock. Today we
announce an abdication of our responsibil.
ities to administer justice to persons within
our jurisdiction. We turn our back on re.
sponsible federalism.
In Allred v. State, 18 So2d 2 (Miss
1966) we posed the question:
What remedy then is open to a defendant
in the state courts, who claims to have
been convicted because the State obtain-
ed his conviction by violating his constitu-
tional rights? 187 So.2d at 30.
Today's answer is loud and unequivoca!:
NONE!
HAWKINS and PRATHER, JJ., join in
this dissent.
15
IN THE SUPREME COURT OF MISSISSIPPI
NO. 53,754
CONNIE RAY EVANS
STATE OF MISSISSIPPI
ORDER RESETTING EXECUTION DATE
It appearing unto the Court that a stay of
execution in this cause was granted pending final
disposition of an Application for Leave to File Petition
aid Application was denied;
IT IS, THEREFORE, ORDERED that Wednesday,
December 21, 1983, be and the same is hereby set as
the date of execution of the death penaltv as provided
by law.
ORDERED this the 30th day of November, 1983.
eS AIRES CCURT OF: SSE CEST ee
Se) $3,794
IN RE COXNLE RAY EVANS
ORDER STAYING EXECUTION
The Court having considered the Application for
Stay of Execution filed by the appellant/petitioner, the
date of execution now being set for December 21, 1983,
has filed a Petition for Rehearing pursuant to Miss. Sup.
IT IS, THEREFORE, ORDERED that the execution of
a>pellanct/petitioner be stayed pending final dispesition
IT IS FURTHER ORDERED that the Clerk of this Court
ify counsel fer eppellant/petitioner and the State of
“Mississippi, along with the proper state and local officials,
a
as
¢ T xcys
Pag!
©. AK. gf
IN THE SUPREME COURT OF MISSISSIPPI
DECISIONS HANDED DOWN JANUARY 25, 1984
(Continued - Page t7
WALKER, P.J. Cont'd):
55,015 mitfon Pharr, Dalton R. Frenks and Melvin
CC-2104
PATTERSOR, C.
Jeffords, Jr. v. State; Circuit. Leflore; Motion
to Dismiss Appeal Overruled.
James L. Hooten v. State; Petitioner's Motion
that Trial Counsel be Appointed to Handle
Petitioner's Appeal Overruled. Motion to be
Transferred to Parchman and Assigned to
Chaplain's Office Overruled. Circuit Court of
Jackson County Authorized to Inquire into
Indigency co betitioner and Appcint Appellate
Counsel if Necessary.
J.
54,068
54,596
Frank Whitten, Jr. v. State; Circuit, Benton,
Reversed and Remanded for a New Trial
Thomas M. Boutwell v. Randy Blacklidge, Alex
Ware and Jones & Ware, Inc.; Circuit,
Harrison; Affirmed
THE COURT SITTING EN BANC:
53,017
$3,754
53,801
$3,825
53,916
54,205
Edward Earl Johnson v. State; Motion to Fix Day
of Execution Sustained. Thursday, March 1,
1984, Set for Execution of the Death Penalty
in the Manner Provided by Law
Connie Pay Evans v. State; Circuit, Hinds;
Petition for Rehearing on Application for Leave
to File Petition for Writ of Error Coram Nobis
Denied. Robertson, Hawkins and Prather, JJ.,
Dissent.
Firet Nat'l Bank of baa Vicksburg, MS.,
and D. W. Ellis, Trustee v. Michael B aruthers
and Rebecca R. Caruthers; Chancery, Warren;
Petition for Rehearing Denied. Patterson, C.J.,
Broom, P.J., Roy Noble Lee, Prather and
Robertson, JJ., Concur. Bowling, Hawkins and
Dan Lee, JJ., Dissent
Reserve Life Ins. Co. v. Henry McGee; Circuit,
Rankin; Petition for Rehearing Denied. Broom,
P.J. and Walker, P.J., Dissent.
In the Matter of the Last Will and Testament of
Sarah Kennebrew, Dec'd: Laverne Webster, et al.
v. Lee Kennebrew and Campbell Kennebrew;
Chancery, Hinds; Petition for Rehearing Denied.
Bowling and Dan Lee, JJ., Not Participating.
Allen R. Yates, M.D., et al. v. City of Jackson,
Mississippi; Circuit, Hinds; Petition for
Rehearing Denied.
Marion Albert Pruett v. Morris Thigpen, Coom'r
Miss. Dept. of Corrections, et al.; Circuit,
Hinds; Petition for Rehearing Denied Subsequent
to Denial of Leave to File a Petition for Writ
of Error Coram Nobis on January 11, 1984.
Charley Newson v. Aaron E. Henry and Ruth
Armstr Ross, Executrix of Est. of L. A. Ross,
Jr., Dec'd; Cirevit, Coshoma; Petition for
Rehearing Denied.
A, le
~
IN THE SUPREME COURT OF MISSISSIPPI
ROBERTSON, J.
Misc.
#1656
55,031
BOWLING, J
x 54,355
Robert Lee Russell v. Warden, Miss. Dept. of Correc-
tions and the yo of pitiessenipes Peticion for
Writ of Habeas Corpus Denied.
Alvin Culberson v. State; Circuit, Harrison; Amended
Motion and Suggestion of Diminution Sustained.
Robert W. Vaughn v. State Farm Mutual Automobile Ins.
Co.; Circuit, Washington; Reversed and Remanded
ROY NOBLE LEE, J.
x 54,723
54,725
$3,754
54,565
59,447
WALKER, P.J
54,109
54,674
William Thomas S@ich v. State; Circuit, Pontotoc;
Conviction of Five Counts of Armed Robbery and
Sentences of Life Imprisonment, Sentences to Run
Concurrently, Affirmed on Direct A 1; Cross-
Appeal Sustained as to Assignment i
Joseph Carl Brinson v. Betty Lee Brinson; Chancery,
Rankin; Affirmed.
In Re: Connie Ray Evans v. State; Motion to Fix
Dav of Execution Sustained. Wednesday, February 15,
1984, Set for Execution of the Desth Penalty in the
Manner Provided by Law.
Martha H. McIlwain v. Cecil Mcliwain; Motion for
Award of Attorney's Fees and Costs Sustained in
the Amount of $375.00 for Services in this Court.
Barbara Kaye Bush v. C. Nolon Bush, Motion to Strike
Brief of Appellee Overruled. Appellee’s Motion for
Attorney's Fees Overruled.
Sarah Elizabeth Wilson v. Phillip E. Wilson; Motion
to Strike Opinicn and Final Decree Passed for
Consiceration of che Case on tie Merits
Judy Clara Carter Wooten, Karla Jeanne Wooten, By Her
Mother and Next Friend, Judy Clara Carter Wooten, and
Carl Edward Wooten, Jr., By His Mother and Nexc
Friend, Judy Clara Carter Wooten v. Yazoo Valley
Electric Power Ass'n; Circuit, Warren, Affirmed.
Willie James Stewart v. State; Circuit, Sunflower;
Denial of Complaine agsinst Eddie Lucas, et al.
Affirmed.
PATTERSOK, C.J.
53,945
Frank Gholar v. State, Circuit, Jefferson Davis;
Petition for Leave to File Out-of-Time Petition
for Rehearing and Motion to Recall Mandate and
Record on Appeal Denied.
THE COURT SITTING EN BANC:
54,285
Bobby Caldwell v. State; Circuit, DeSoto; Petition
for Rehearing Denied. Walker, P.J3., MOOR, F.d.,
Roy Noble Lee and Bowling, JJ., Concur. yg
C.J., Dan Lee, Prather and Robertson, JJ., Dissenc.
Hawkins, : Pr Not Participating.
a. 19
SEPARATE SENTENCING PROCEEDING LO DETERMINE
PUNISHMENT IN CAPELAL CASES
§ 99-19-101. Jury to determine punishment in capital cases
in separate sentencing proceeding; aggravating and miti-
gating circumstances to be considered.
(1) Upon convicuon or adjudiatuon of gaunt of 4 detendant of
capital murder or other capital offense, the court shall conduct a
separate sentencing proceeding to determine whether the deten-
dant should be semtemed to death of lite unprsonment. The
proceeding shall be conducted by the tral judge betore the tral
jury as soon as practicable. If, through mipossibility of mability,
the trial jury is unable to reconvene tor 4 hearing on the issue of
penalty, having determined the guilt of the accused, the trial judge
may summon a jury to determine the issue of the impositon of
the penalty. If the tal jury has been waived, or if the detendant
pleaded guilty, the sentencing proceeding shall be conducted
before a jury impaneled for that purpose. In the proceeding,
evidence may be presented as to any matter that the court deems
relevant to sentence, and shall include matters relating to any ol
the aggravating or mitigating circumstances. However, this subsec-
tion shall not be construed to authorize the introduction of any
evidence secured in violation of the Constituuons of the United
States or of the state of Mississippi. The state and the defendant
and/or his counsel shall be permitted to present arguments for or
against the sentence of death.
(2) After hearing all the evidence, the jury shall deliberate on
the following matters:
(a) Whether sufficient factors exist as enumerated in subsection
(7) of this section,
(b) Whether sufficient aggravating circumstances exist as enu-
merated in subsecuon (5) of this secuon;
(c) Whether suthcient mitigating circumstances exist as enumer-
ated in subsection (6) of this section, which outweigh the aggravat-
ing circumstances found to exist; and
(d) Based on these considerations, whether the defendant
should be sentenced to life imprisonment or death.
(3) For the jurv to impose a sentence of death, 1 must unani-
mously find in writing the following:
(a) That suthcient factors exist as enumerated in subsection (7)
ol this section;
(b) That suthcient aggravating circumstances exist as enumer-
ated in subsection (5) of this section; and
(c) That there are insuthcient miugating circumstances, as enu-
merated in subsection (6), to outweigh the aggravating circum-
stances.
In each cause in which the jury imposes the death sentence, the
determination of the jury shall be supported by specific written
findings of fact based upon the circumstances in subsections (5)
and (6) of this secuon and upon the records of the trial and the
sentencing proceedings. If the jury does not make the findings
requiring the death sentence, the court shall impose a sentence of
life impnsonment.
(4) The judgment of convicuon and sentence of death shall be
subject to automatic review by the supreme court of Mississippi
within sixty (60) days after certification by the sentencing court of
enure record, unless the ume is extended for an additianal period
by the supreme court for good cause shown. Such review by the
supreme court shall have priority over all other cases and shall be
heard in accordance with rules promulgated by the supreme court.
(5) Aggravating circumstances shall be limited to the following:
(a) The capital offense was committed by a person under
sentence of imprisonment.
(b) The detendant was previously convicted of another capital
ottense or of a felony involving the use or threat of violence to the
person.
(CC) 60 Getta aww) Ssenw es OTe oo Ee eee
many persons.
(d) The capital offense was committed while the defendant was
engaged, or was an accomplice, in the commission of, or an
attempt to commit, cr flight after commuung or altempung to
commu, any robbery, rape, arson, burglary, kidnapping, aircraft
piracy, sexual battery, unnatural intercourse with any child under
the age of twelve (12), or nonconsensual unnatural intercourse
with mankind, or felonious abuse and/or bauery of a child in
violauon of subsection (2) of secon 97-5-39, or the unlawiul use
or detonation of a bomb or explosive device
(e) Uhe capital offense was commuted for the purpose of
avoiding or preventing a lawful arrest or effecung an escape trom
custody
(t) The capital offense was committed tor pecuniary gain
(y) The capital offense was commited to disrupt or hinder the
lawful exercise of ans governmental function or the enforcement
ot laws
(h) The capital offense was especially heinous, atrocious or
cruel
(6) Mitigating circumstances shall be the following:
(a) The defendant has no sigmfcant history of prior cnminal
activity
(b) The offense was committed while the defendant was under
the influence of extreme mental or emouonal disturbance.
(c) The victum was a participant in the defendant's conduct or
consented to the act
id) The defendant was an accomplice in the capital offense
committed by another person and his participation was relatvels
minor
ie) The defendant acted under extreme duress or under the
substantial domination of another person.
(f) The capacity of the defendant to appreciate the criminality of
his conduct or to conform his conduct to the requirements of law
was substanualls impaired.
(g) The age of the defendant at the ume of the crime
(7) In order to return and impose a sentence of death the jury
must make a written finding of one or more of the following
(a) The defendant actualls killed:
(b) The defendant attempted to kill:
(c) The defendant intended that a killing take place:
(d) The defendant contemplated that lethal force would be
emploved.
SOURCES: Laws, 1977, ch. 458, § 2; 1983, ch. 429, § 2, eff from and after
passage (approved March 29, 1983).
§ 99-19-105. Review by supreme court o! imposition of
death penaity.
(1) Whenever the death penalt, 1s imposed. and upon the
judgment becoming final in the tal court. the sentence shall be
reviewed on the record by the Mississippi Supreme Court The
clerk of the tal court. within ten (10) days after recening the
transcript, shall transmu ihe entire record and transcript to the
Mississippi Supreme Court together with a notice prepared by the
clerk and a report prepared by tne tral yudge The notice shall set
forth the utle and docket number of the case. the name of the
defendant and the name and address of his attorney. a narrative
statement of the judgment. the offense. and the punishment
prescribed. The report shall be in the form of a standard quesuon-
naire prepared and supplied by the Mississipp: Supreme Court, a
cop, of which shall be served upon counsel for the state and
counsel for the defendant
(2) The Mississipp: Supreme Court shall consider the punish-
ment as well as any errors enumerated by way of appeal
(3) With regard to the sentence, the court shall determine:
(a) Whether the sentence of death was imposed under the
influence of passion, prejudice or any other arbitrary factor;
(b) Whether the evidence supports the jury's or judge's finding
of a statutory aggravating circumstance as enumerated in section
99-]9-101. and
(c) Whether the sentence of death 1s excessive or disproportion-
ate to the penalty imposed in similar cases, considering both the
crime and the defendant.
(4) Both the defendant and the state shall have the mght to
submit bnefs within the ume provided by the court. and to present
oral argument to the court.
(5) The court shall include in its decision a reference to those
similar cases which it took into consideration. In addition to its
authority regarding correcuion of errors, the court. with regard to
review of death sentences. shall be authorized to
(a) Affirm the sentence of death; or
(b) Set the sentence aside and remand the case for modification
of the sentence to imprisonment for life.
(6) The sentence review shall be in addition to direct appeal, if
taken, and the review and appeal shall be consolidated for consid-
eration. The court shall render its decision on legal errors enu-
merated, the factual substantiation of the verdict, and the validity
of the sentence.
SOURCES: Laws, 1977, ch. 458, §4, eff from and after passage (approved
April 13, 1977).
IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI
SEPTEMBER 1982 TERM
LEO E. EDWARDS PETITIONER
VERSUS NO. 53,298
STATE OF MISSISSIPPI RESPONDENT
RESPONSE TO APPLICATION FOR LEAVE
TO FILE A PETITION FOR WRIT OF ERROR
CORAM NOBIS AND/OR WRIT OF HABEAS
CORPUS
BILL ALLAIN, ATTORNEY GENERAL
BY: AMY D. WHITTEN
SPECIAL ASSISTANT ATTORNEY GENERAL
AND . ;
BY: WILLIAM S. BOYD, III
SPECIAL ASSISTANT ATTORNEY GENERAL
—_——-n" THE SUPREME COURT OF THE STATE OF MISSISSIPPI
LEO E. EDWARDS PETITIONER
VERSUS NO. 53,298
STATE OF MISSISSIPPI RESPONDENT
RESPONSE TO APPLICATION FOR LEAVE
TO FILE A PETITION FOR WRIT OF
ERROR CORAM NOBIS AND/OR ;
WRIT OF HABEAS CORPUS é
The time has come in light of certain events which have
transpired within recent history for this Court to review it
charted course in capital cases and to reconsicer certain con-
cepts which, according to recent Federal decision, slace the
State in an untenable position. The present petition is stereo-.
typical of other cases which currently suggest the analysis
voiced herein.
To set the State's position in proper perspective it is
first necessary to elaborate uron the interaction of the
State/Federal concept as viewed throuch the lens of 28 U.S.C.
§ 2254, habeas corpus of prisoners in State custody. These
comments are significant in that they specifically deal with
comity and how this Court by its actions and findings can bind
the federal courts to a particular course of conduct and action.
te BASIC PRINCIPLES UNDERLYING
THE STATE/FEDERAL CONCEPT
UNDER 28 U.S.C. § 2254
The well-spring of federal authority to intervene into
state criminal proceedings is found at 28 U.S-C. § 2254. This
authority to intervene is, however, not unfettered. Of course,
federal habeas courts may only decide questions arising under
the Constitution of the United States. Tollett v. Henderson,
411 U.S. 258, 36 L.Ed.2d 235, 93 S.Ct. 1602 (1973). Conversely,
the federal courts lack authority to decide questions founded
upon independent and adequate state substantive Ar procedural
grounds. Henry v. Mississippi, 379 uU.s. 443, 13 L.Ed.2d 408,
85 S.Ct. 564 (1965).
In this context, let us examine the cornerstone upon which
the State will erect its case. |
A. State Court Determinations
_ Of Pact are Binding Upon
the Federal Courts
28 U.S.C. § 2254(d) provides:
"(d) In any proceeding instituted in
@ federal court by an application for a
writ of habeas corpus by a person in
custody pursuant to the judgment of a
state court, a determination after a hear-
ing on the merits of a factual issue, made
by a state court of competent jurisdiction
in a proceeding to which the applicant for
the writ and the state or an officer or
agent thereof were parties, evidenced by
a written finding, written Opinion, or
other reliable and adequate written indicia,
shall be presumed to be correct, unless the
applicant shall establish or it shall other-
wise appear, or the respondent shall admit -
"(1) that the merits of the factual
Gispute were not resolved in the state
court hearing;
"(2) that the fact-finding precedure
employed by the state court was not ade-
quate to afford a full and fair hearing;
"(3) that the material facts were not
adequately developed at the state court
hearing;
"(4) that the state court lacked
jurisdiction of the subject matter or
over the person of the applicant in the
state court proceeding;
"(S) that the applicant was an in-
digent and the state court, in depriva-
tion of his constitutional right, failed
to appoint counsel to represent him in
the state court proceeding;
"(6) that the applicant did not re-
ceive a full, fair, ane adequate hearing
in the state court proceeding; or
"(7) that the applicant was otherwise
denied due process of law in the state
court proceeding;
"(8) or unless that part of the re-
cord of the state court proceeding in
which the determination of such factual
issue was made, pertinent to a determina-
tion of the sufficiency of the evidence
to support such factual determination, is
produced as provided for hereinafter, and
the federal court on a consideration of
such part of the record as a whole con-
cludes that such factual determination is
not fairly supported by the record:
"And in an evidentiary hearing in the pro-
ceeding in the federal court, when due
proof of such factual determination has
been made, unless the existence of one or
more of the circumstances respectively set
forth in paragraphs numbered (1) to (7),
inclusive, is shown by the applicant,
otherwise appears, or is admitted by the
respondent, or unless the court concludes
pursuant to the provisions of paragraph
numbered ($8) that the record in the state
court proceeding, considered as a whole,
does not fairly support such factual deter-
mination, the burden shall rest upon the
applicant to establish by convincing evi-
dence that the factual determination by
the state court was erroneous."
In Sumner v.. Mata, 449 0.S. 539, 66 B.84.246 722, 10L $.Cé.
764 (1981), the Supreme Court addressed the question of factual
findings entered by State appellate courts. The Court heid:
It is obvious from a literal reading of the
above that § 2254(d) is applicable to the
present situation although it has been con-
tended that this should not be the case
where a state appellate court, as opposed
to a trial court, makes the pertinent fac-
tual findings. We, however, refuse to
read this limitation into § 2254(d). Ad-
mittedly, the California Court of Appeal
made the factual determination at issue
here and it did so after a review of the
trial court record. Nevertheless, it
clearly held a “hearing” within the mean-
ing of § 2254(d). Both respondent and
the state were formally before the court.
Respondent was given an opportunity to be
heard and his claim received plenary con-
sideration even though he failed to raise
it before the trial court. After respon-
dent presented his case to the state
appellate court, that court concluded in
a written opinion that “the facts of the
present case" did not adequately support
respondent's claim. Since that court was
requested to determine the issue by re-
spondent, we do not think he may now be
heard to assert that its proceeding was
not a “hearing” within the meaning of §
2254(d).
Section 2254(d) applies to cases in which
a state court of competent jurisdiction
has made "a determination after a hearing
on the merits of a factual issue.” It
makes no distinction between the factual
determination of a state trial court and
those of a state appellate court. Nor
does it specify any procedural requirements
that must be satisfied for there to be a
“hearing on the merits of a factual issue,”
other than the habeas applicant and the .
state or its agent be parties to the pro- t
ceeding and that the state-court determina- 7
tion be evidenced by "a written finding,
written opinion, or other reliable and ade-
quate written indicia.” Section 2254(d) by
its terms thus applies to factual determina-
tions made by state courts, whether the
court be a trail court or an appellate court.
Cf£. Swenson v. Stidham, 409 U.S. 224, 230,
34 L.Ed.2d 431, 93 S.Ct. 359 (19720. This
interest in federalism recognized by Congress
in enacting § 2254(d) requires deference by
federal courts to factual determinations of
all state courts.
Id., at 545-547, 66 L.Ed.2d at 730-731.
Continuing, the Court in Sumner I addressed the question of
federal disagreement with state court findings:
When it enacted the 1966 amendment to 28 U.S.C.
§ 2254 (28 0.S.C.S. § 2254], Congress specified
that in the absence of the previously enumerated
factors one through eight, the burden rests on
the habeas petitioner, whose case by that time
has run the entire gamut of a state judicial
system, to establish “by convincing evidence
that the factual determination of the state
court was erroneous." 28 U.S.C. § 2284/4)
(28 U.S.C.S. § 2254(d)]. Thus Congress meant
to insure that a state finding not be overturned
merely on the basis of the usual “preponderance
of the evidence” standard in such a situation.
In order to ensure that this mandate of Congress
is enforced, we now hold that a habeas court
should include in its opinion granting the writ
the reasoning which led it to conclude that any
of the first seven factors were present, or the
reasoning which led it to conclude that the state
finding was “not fairly supported by the record.”
Such a statement tying the generalities of §
2254(d) to the particular facts of the case at
hand will not, we think, unduly burden federal
habeas courts even though it will prevent the
use of the “boilerplate” language to which we
have previously adverted. Moreover, such a
statement will have the obvious value of enabl-
ing courts of appeals and this Court to satisfy
themselves that the congressional mandate has
been complied with. No court reviewing the grant
of an application for habeas corpus should be
left to guess as to the. habeas court's reasons
for granting relief notwithstanding the provisions
of § 2254(d). C£. Greater Boston Television Corp.
v. PCC, 143 U.S. App. DC 383, 444 F.2d 841, 851
(1970).
Summer I, supra, at 551-552, 66 L.Ed.2d at 733-734.
One would think the foregoing a rather clear and concise
statement of law. On remand the Ninth Circuit apparently did
not perceive it as such and without reciting any reason, entered
findings that were once again at odds with those of the Cali-
fornia Supreme Court. Once again on certiorari the United
States Supreme Court reversed. -- ois
We have again reviewed this case and conclude
that the Court of Appeals apparently misunder-
stood the terms of our remand. Nor did it com-
ply with the requirements of § 2254. We agree
with the Court of Appeals that the ultimate
Guestion as to the constitutionality of the
pretrial identification procedures used in this
case is a mixed question of law and fact that is
not governed by § 2254. In deciding this ques-
tion, the federal court may give different
weight to the facts as found by the state court
and may reach a different conclusion in light
of the legal standard. But the questions of
fact that underlie this ultimate conclusion are
governed by the statutory presumption as our
earlier opinion made clear. Thus, whether the
witnesses in this case had an opportunity to
observe the crime or were too distracted; whether
the witnesses gave a detailed, accurate descrip-
tion; and whether the witnesses were under pres-
sure from prison officials or others are all
questions of fact as to which the statutory pre-
sumption applies. :
Of course, the federal courts are not necessarily
bound by the state court's findings. Section
2254(d) permits a federal court to conclude, for
example, that a state finding was “not fairly
supported by the record.” Sut the statute does
require the federal courts to face up to any dis-
agreement as to the facts and to defer to the
state court unless one of the factors listed in
section 2254(d) is found. Although the distinc-
tion between law and fact is not always easily
drawn, we deal here with a statute that requires
the federal courts to show a high measure of
deference to the fact findings made by the state
courts. To adopt the Court of Appeals’ view
would be to deprive this statutory command of :
its important significance.
Our remand directed the Court of Appeals to re-
examine its findings in light of the statutory
presumption. We pointed the way by identifying
certain of its findings that we considered to be
at odds with the findings of the California
Court of Appeal. We asked the Court of Appeals
to apply the statutory presumption or explain
why the presumption was not applicable in view
of the factors listed in the statute. The Court :
of Appeals did neither. Accordingly, we again t
must remand. Again we note that "we are not to :
be understood as agreeing or disagreeing with the
majority of the Court of Appeals on the merits of
the issue of impermissibly suggestive identitica-
tion procedures.” 449 U.S., at 552, 66 L.Ed.2d
722, L101 S.Ct. 764.
Sumner II, 71 L.Ed.2d at 486-487.
See also: Gray v. Lucas, 677 F.2d 1086 (5 Cir. 1982) (Fifth
Circuit decided two key issues involving intent and a confession
based upon the binding determination of fact made by this Court
under the mandate of Sumner I.)
Consequently, should this Court during the course of any
proceeding, either on direct appeal or in a collateral proceed-
ing, enter a factual finding or summary, then the federal courts
are forever bound by such unless one of the eight exceptions
noted in § 2254(d) is found.
B. State Prisoners are Required
to Fairly Present the Substance
of Their Claims to the Appropriate
State Courts Before Entering the
Federal Forum
Perhaps the second most significant concept in the field of
post-conviction relief to come out of the United States Supreme
Court in recent years is the doctrine of exhaustion of available
A. 29
State remedies for all claims raised in a federal habeas peti-
tion. The first, in the opinion of the undersigned, is the
means by which encless prisoner-litigation is quashed, namely
the doctrine of procedural forfeiture as embodied in Wainwright
v. Sykes, 433 U.S. 72, 53 L.Ed.2d 594, 97 S.Ct. 2497 (1977
).
In 1978 the United States Court: of Appeals for the Fifth
Circuit initiated the concept of total exhaustion. In Galtieri
v. Wainwright, 582 FP.2d 348, 355 (5 Cir. 1978) (en banc),
the
Court was confronted with a situation where, as in most habeas
petitions, some of the claims had been raised on direct appeal
but one in particular had not. In requiring dismissal without
prejudice, the Court held:
The policy in this circuit is that a federal
a@istrict court must dismiss without prejudice
a “mixed” petition for a writ of habeas corpus
filed by a state prisoner. West v. Louisiana,
478 F.2d 1026, 1034 (Sth Cir. 1973), att'd re-
garding exhaustion en banc, 510 F.2d 363 (5th
Cir. 1975). A “mixed” petition is one that
asserts both exhausted claims and unexhausted
claims that do not fit an exception to the ex-
haustion doctrine; that is, some of the claims
have not been presented to the state court
system so that the custodial state has not yet
had an opportunity to correct all of the alleged
constitutional errors.
In Rose v. Lundy, U.S. » 71 L.Ed.2d 379, 102
s.Ct.
(1982), this rule was applied nationally. Expounding upon
the policy consideration underpinning the rule of total exhaus-
tion the Court held:
The exhaustion doctrine is principally de-
signed to protect the state courts' role
in the enforcement of federal law and pre-
vent disruption of state judicial proceed-
ings. See Braden v. 30th Judicial Circuit
Court of Kentucky, 410 U.S. 484, 490-491,
35 L.Ed.2d 443, 93 $.C&. 1123 (1973).
Under our federal system, the federal and
state “courts [are] equally bound to guard
and protect rights secured by the Constitu-
tion.” Ex parte Royall, supra, at 251, 29
L.Ed. 868, 6 S.Ct. 734. Because “it would
be unseemly in our dual system of government
for a federal district court to upset a
state court conviction without an opportu-
nity to the state courts to correct a con-
stitutional violation,” federal courts apply
ee |
the doctrine of comity, which “teaches that
one court should defer action on causes pro-
perly within its jurisdiction until the courts
of another sovereignty with concurrent powers,
and already cognizant of the litigation,
have had an opportunity to pass upon the
‘ matter.” Darr v. Burford, 339 U.S. 200, 94
L.Ed. 761, 70 S.Ct. 587 (1950). See Duckworth
v. Serrano, 454 U.S. , 70 L.Ed.2d 1, 102
S.Ct. 18 (1981) (per curiam) (noting that the
exhaustion requirement “serves to minimize
friction between our federal and state systems
of justice by allowing the state an initial
opportunity to pass upon and correct alleged
violations of prisoners’ federal rights").
A rigorously enforced total exhaustion rule
will encourage state prisoners to seek full
relief first trom the state courts, thus
giving those co.+‘:s the first opportunity
to review all claims of constitutional error.
As the number of prisoners who exhaust all
of their federal claims increases, state
courts may become increasingly familiar with
and hospitable toward federal constitutional
issues. See Braden v. 30th Judicial Circuit
Court of Kentucky, supra, at 490, 35 L.Ed.2d
443, 93 S.Ct. 1123. Equally as important,
federal claims that have been fully exhausted
in state courts will more often be accompanied
by a complete factual record to aid the federal
courts in their review. Cf. 28 U.S.C. § 2254
(ad) (28 U.S.C.S. § 2254(d)] (requiring a
federal court reviewing a habeas petition to
presume as correct factual findings mace by
a state court).
U.S. _, 71 L.Ed.26 3897-388.
In this same context, and of particular importance in the
consideration of the matter sub judice, is the situation, as is
so often found, where the prisoner raises questions of state
law on direct appeal and then in a post-conviction petition
recasts his arguments in constitutional terms to gain the keys
to the federal courthouse. This situation was addressed in
the landmark case of Picard v. Conner, 404 U.S. 270, 30 L.Ed.2d
438, 92 S.Ct. 509 (1971).
We emphasize that the federal claim must
be fairly presented to the state courts.
If the exhaustion doctrine is to prevent
“unnecessary conflict between courts
equally bound to guard and protect rights
secured by the Constitution,” Ex parte
Rovall, supra, at 251, 29 L.Ed. at 871,
it is not sufficient merely that the :
federal habeas applicant has been through
the state courts. The rule would serve
no purpose if it could be satisfied by
raising one claim in the state courts and
another in the federal courts. Only if
the state courts have had the first op-
portunity to hear the claim sought to be
vindicated in a federal habeas proceeding
does it make sense to speak of the exhaus-
tion of state remedies. Accordingly, we
have required a state prisoner to present
the state courts with the same claim he
urges upon the federal courts. See Darr
v. Burford, supra, at 203, 94 L.Ed. at 766;
David v. Burke, 179 U.S. 399, 401-403, 45
L.Ed. 249, 250, 251, 21 S.Ct. 210 (1900).
Respondent challenged the validity of his
indictment at every stage of the proceed-
ings in the Massachusetts courts. As the
Court of Appeals pointed out, 434 F.2d, at
674, this is not a case in which factual
allegations were made to the federal courts
that were not before the state courts, see,
e.g., United States ex rel. Boodie v. Herold,
349 F.2d 372 (CA2 1965); Schiers v. California,
333 F.2d 173 (CA9 1964), nor a case in which
an intervening chance in federal law cast the
legal issue in a fundamentally different light,
see, e.g., Blair v. California, 340 F.2d 741
(CAS 1965); Pennsylvania ex rel. Raymond v.
Rundle, 339 F.2d 598 (CA3 1964). We therefore
put aside consideration of those types of cases.
The question here is simply whether, on the
record and argument before it, the Massachusetts
Supreme Judicial Court had a fair opportunity
to consider the equal protection claim and to
correct that asserted constitutional defect in
respondent's convicticn. We think net.
Until he reached this Court, respondent never
contended that the method by which he was
brought to trial denied his equal protection
cf the laws. Rather, from the outset respondent
consistently argued that he had been improperly
indicted under Massachusetts law and to the ex-
tent he raised a federal constitutional claim
at all, that the indictment procedure employed °
in his case could not be approved without refer- .
ence to whether the Fifth Amendment's require-
ment of a grand jury indictment applied to the
states. He adverted to the Fourteenth Amendment
solely as it bore upon that submission. The
eGual protection issue entered this case only
because the Court of Appeals injected it.
Recently, the nation's highest court elaborated upon the
principles formulated in Picard. Its comments in Anderson v.
Harless, 0.8 . , 74 L.Ed.2d 3, 6-8 (1982), are of
significant import to the topic now under consideration.
The United States Court of Appeals for the
Sixth Circuit affirmed. Harless v. Anderson,
664 F.2d 610 (1982). The court held that
respondent's claim had been properly exhausted
in the state courts, because respondent had
presented to the Michigan Court of Appeals
the facts on which he based his federal claim
and had argued that the malice instruction
was “reversible error.” See People v. Harless,
78 Mich. App., at 748, 26D. Wt, at a3 the , ae 63. F
court also emphasized that respondent, in his
brief to the Michigan Court of Appeals, had
cited People v. Martin, 392 Mich. 553, 221 N.W.
2d 336 TIS7a) = a decision predicated solely on
state law in which no federal issues were de-
cided, but in which the defendant had argued
broadly that failure to properly instruct a
jury violates the Sixth and Fourteenth Amend-
ments. In the view of the United States Court
of Appeals, respondent's assertion before the
Michigan Court of Appeals that the trial court's
malice instruction was erroneous, coupled with
his citation of People v. Martin, supra, pro-
vided the Michigan courts with sufficient op-
portunity to consider the issue encompassed by
respondent's subsequent federal habeas petition.
We reverse. In Picard v. Connor, 404 U.S. 270
(1971), we made Clear that 28 U.sS.c. § 2254 re-
quires a federal habeas petitioner to provide
the state courts with a “fair opportunity” to
apply controlling legal principles to the facts
bearing upon his constitutional claim. Id.,
at 276-277. It is not enough that all the
facts necessary to support the federal claim
were before the state courts, id., at 277, or
that a somewhat similar state-Iaw claim was
mace. See, e.c., Gayle v. LeFevre, 613 F.2d
21 (CA2 1580); Paullet v. Howard, 634 F.24 117,
119-120 (CA3 1980); Wilks v. Israel, 627 F.24
32, 37-38 (CA7), cert. deniec, 445 u.s. 1086
(1980); Connor v. Auger, 595 F.2d 407, 413
(CA8), cert. denied, 444 u.s. 851 (1979). fn
addition, the habeas petitioner must have
"fairly presented" to the state courts the
“substance” of his federal habeas corpus claim.
Picard, supra, at 275, 277-278. See also Rose -
v. Lundy, U.S. ’ (1982). .
In this case respondent argued on appeal that
the trial court's instruction on the element
of malice was “erroneous.” He offered no
Support for this conclusion other than a
citation to, and three excerpts from, People
v. Martin, supra - a case which held at,
under Michigan law, malice should mot be im-
plied from the fact that a weapon is used.
See Petn for Cert 47a-49a, Sla-53a. Not sur-
prisingly, the Michigan Court of Appeals inter-
preted respondent's claim as being predicated
on the state-law rule of Martin, and analyzed
it accordingly.. 78 Mich. App., at 748-750, 261
N.W.2d, at 43. :
The United States Court of Appeals concluded
that “the due process ramifications” of re-
spondent's argument to the Michigan court
“were self-evident,” and that respondent's
“reliance on Martin was sufficient to present
the state courts with the substance of his due
process challenge to the malice instruction
for habeas exhaustion purposes.” 664 F.2d,
at 612. We disagree. The District Court based
its grant of habeas relief in this case on the
doctrine that certain sorts of “mandatory pre-
sumptions” may undermine the prosecution's
burden to prove guilt beyond a reasonable doubt
and thus deprive a criminal defendant of due
process. See Sandstrom, ra; In re Winship,
397 U.S. 358 (1570). The of isoaata
affirmed on the same rationale. However, it
is plain from the record that this constitution-
al argument was never presented to, or considered
by, the Michigan courts. Nor is this claim even
the same as the constitutional claim advanced in
Martin - the defendant there asserted a broad
federal due process right to jury instructions
that “properly explain" state law, 392 Mich., at
558, 221 N.W.2d, at 339, and did not rely on the
more particular analysis developed in cases such
as Sandstrom, supra.
Therefore, when one considers the position of the federal
judiciary on questions of this nature, the principles of res
judicata noted in Miss. Code Anno. § 99-35-145 (1972), Auman v.
State, 285 So.2d 146 (Miss. 1973), Wetzel v. State, 225 Miss.
450, 76 So.2a 194 (1955), and Rule 8.07, Miss. Unif. Crim. R.
Cis. Ct. Prac. (1979), come sharply into focus. Such epitomizes
the symbiotic relationship between the concepts of total exhaus-
tion and the Wainwright v. Sykes doctrine of procedural for-
feiture.
Recognizing this symbiotic relationship, the Supreme Court °
in the case of Engle v. Isaac, U.S. P n. 28, 102
S.Ct. 1558, 1570, n. 28, 71 L.Ed.2d 783 (1982), obviated the
necessity of a return to the state courts where the question
would be procedurally barred. The Court stated:
As we recognized in Sykes, 433 U.S. at
78-79, 97 S.Ct. at 2 , the problem of
waiver is separate from the question of
whether a state prisoner has exhausted
state remedies. Séction 2254(b) re=-
quires habeas applicants to exhaust those
A. 34
eee
Stated simply,
quire a state prisoner to return to the state courts when
remedies “available in the courts of the
state." This requirement, however, refers
only to remedies still available at the time
of the federal petition. See: #8 hrey v.
Cade, 405 U.S. 504, 516, 97S. ‘cee eae
TUS5, 31 L.Ed.2d 394 (1972); Fay v. Noia,
372 U.S. 391, 435, 83 S.ct. 872, 847, 5
L.Ed.2d 837 (1963). Respondents, of course,
long ago completed their direct appeals.
Qhio, moreover, provides only limited col-
lateral review of convictions; prisoners
May not raise claims that could have been
litigated before judgment or on direct
appeal. See: Ohio Rev. Code. Ann. §
2953.2l(a) (1975 ; Collins v. Perini, 594
F.2d 592 (CA6 1979); Keener v. Ridenour,
594 F.2d 581 (CA6 197 ince respondents
could have challenged the constitutionality
ef Ohio's traditional self-defense instruc-
tion at trial or on direct appeal, we acree
with the lower courts that state collateral
relief is unavailable to respondents and,
therefore, that they have exhausted their
state remedies with respect to this clain.
claim would be procedurally barred.
there is no need for a federal court to re-
his
The importance of a clear and unequivocal rule regarding
post-conviction presentation of new grounds for relief is ob-
vious. Let us consider the federal rules regarding such.
Cc. Bar to Federal Review
Without question, the law is now crystal clear that a
federal court is barred from considering claims on habeas re-
view which rest on an adequate foundation of state substantive
or procedural law. Henry v. Mississippi, 379 U.S. 443,
13
L.Ed.2d 408, 85 S.Ct. 564 (1965); Davis v. United States, 4ll
U.S. aaa
Henderson,
Wainwricht
36 L.Ed.2d 216, 93 S.Ct. 1577 (1973); Francis v.
425 U.S. 536, 48 L.Ed.2d 149, 96 S.Ct. 1708
(197
v. Sykes, 433 U.S. 72, S3 L.Ed.2d 594, 97 S.Ct.
(1977); Engle v. Isaac, U.S.
, 71 L.Ed.2d 783,
S.Ct. 1558 (1982); United States v. Frady, U.S.
L.Ed.2d 816, 102 S.Ct. 1584 (1982).
Specifically,
102
6);
2497
if a state prisoner is required by state law
to raise a timely challenge to a particular point or proceeding
and fails to do so he is barred from raising the claim ina
federal habeas proceeding absent a showing of “cause” and “actual
prejudice". Francis v. Henderson, supra; Wainwright v. Sykes,
supra. This failure to timely raise a challenge has been vari-
ously referred to as waiver, Wainwright v. Sykes, supra, default,
Engle v. Isaac, supra, or forfeiture, Evans v. Maggio, 557 F.2d
430 (S Cir. 1977); Forman v. Smith, 633 F.2d 634 (2 Cir. 1980).
Waiver as noted in Sykes is qualitatively different from
the waiver discussed in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822,
9 L.Ed.2d 837 (1963). Confronting this distinction for the
first time in Forman v. Smith, 633 F.2d 634, 638 (5 Cir. 1980),
the Fifth Circuit held:
This Court has not previously determined
whether the stancards of Fay v. Noia,
supra, or Wainwright v. Sykes, supra,
govern the availability in a haseas corpus
challenge of a constitutional claim not
raised on direct appeal from a state
court conviction. The issue was noted in
Gale v. Harris, 580 F.2d 52, 53, n. 1 (2d
Cir. 1978), cert. denied, 440 U.S. 965,
99 $.ct. 1515, 59 flEd-%d 781 (1979), but
its resolution was not necessary for de-
cision cf that case. This appeal poses
the issue directly because there was no
Geliberate by-pass and hence petitioner's
constitutional claim would be available
under Noia but, as will appear, we con-
clude that his claim is not available
under Sykes.
Both Noia and Sykes cast the issue in terms
of waiver, but 1t 1s apparent that the two
decisions assign different meanings to
that concept. Noia uses the traditional °
test for determining waiver of a constitu- .
tional right, whether there has been "an
intentional relinquishment or abandonment
of a known right or privilege”, Johnson v.
zerbst, 304 U.S. 458, 464, 58 S.Ct. °
, 32 L.Ed. 1461 (1938), for determin-
ing whether a deliberate by-pass of an
available state court remedy has occurred.
372 U.S. at 439, 83 S.Ct. at 849. - Sykes
shifts the inquiry away from an examination
of the petitioner's knowledge and intention
concerning assertion of his claim, and in-
stead focuses on whether he in fact had a
justifiable reason:for not asserting his
claim. In the absence of such a reason, the
claim is deemed to be forfeited, regardless
of whether the petitioner, or his counsel
acting for him, consciously intended to
waive a claim known to exist. Even if a
justifiable reason exists, Sykes also deems
the claim to be forfeited eatess the peti-
tioner can show that the failure to assert
it caused his “actual prejudice”. 433 U.S.
at 91, 97 §.Ct. at 2508. We think the in-
tegrity of the term “waiver” will be better
maintained in this context if it is used,
as in Noia, to mean intentional relinquish-
ment of a Known right, and if the term "“for-
feiture” is used to describe what occurred in
Sykes, where legal consequences were attached
to a petitioner's omission. See: Indiciglio
v. United States, 612 F.2d 624, 630, na. rt
r. , cert. denied, 445 U.S. 933,
100 S.Ct. 1326, 53 Lied. 2d 768 (1980);
Spritzer, Criminal Waiver, Procedural Default
and the Burger Court, 1so U.Pa.L.nev. 473
(l578); Westen, Away from Waiver: A Rationale
for the Forfeiture of Constitutional Rights
in Criminal Procedure, /5 Mich.L.Rev. Tita
wa.
A precise definition of “cause” has never been formulated,
Wainwricht v. Sykes, supra, and the courts have apparently been
satisfied to approach the problem on an ad hoc basis. Engle
v. Isaac, supra. One point is certain, however, the cause
standard cannot be satisfied by the contention that the objec-
tion would have been futile. Engle v. Isaac, supra; Wainwright
v. Henry, U.S. , 50 U.S.L.W. 3981 (1982), reversing
Henry v. Wainwright, 661 F.2d 56 (5 Cir. i981).
Similarly, prisoners will not be heard to complain of parti-
cular errors where a proper challenge was not laid where there
existed some foundation in law for an objection at the time.
Engle v. Isaac, supra: Arnold v. Wainwright, supra. As the Court
held in Engle, supra, 102 §.Ct. at 1573, “later discovery of a
constitutional defect unknown at the time of trial does not in-
variably render the original trial fundamentally unfair." The
unencouraging status of the law at the time of the trial is not
cause sufficient to excuse an otherwise lawful and final state
procedural waiver. Dumont v. Estelle, 513 F.2d 793 (5 Cir.
1975).
In this same vein, claims of ineffective assistance of counsel
do not constitute cause. In Lumpkin v. Ricketts, 551 F.2d 680
(§ Cir. 1977), the Fifth Circuit held:
This assertion must be rejected, however,
for, if accepted, it would effectively
eliminate any requirement of showing
cause at all. If a petitioner could not
demonstrate any legitimate. cause, he would
only have to raise the spectre of ineftfec-
tive assistance of counsel to get his
challenge heard.
Id., at 683.
See also: Washington v. Estelle, 648 P.2a 276 (5 Cir. 1981);
Cooper v. Fitzharris, 586 P.24 1325 (9 Cir. 1978) (en banc);
Indiviglio v. United States, 612 F.2d 624 (2 Cir. 1979); Tyler
v. Phelps, 643 F.2a 1095 (1981) (wherein on petition for rehear-
ing the panel declined to hold, as it originally had, that an
allegation of ineffective assistance of counsel, chouch not in
the nature of a Sixth Amendment violation, might satisfy "cause”.)
Likewise, the courts have not rendered a precise definition
of prejudice, Wainwright v. Sykes, supra; Engle v. Isaac, supra,
but have been adamant in the contention that there must be a
"strong showing of actual prejudice.” Dumont v- Estelle, 513
F.2d 793, 797 (5 Cir. 1975); Wainwright v. Sykes, supra; Encle
v. Isaac, supra; Henderson v. Kibbe, 431 U.S. 145, 52 L.Ed.2da
203, 97 $.Ct. 1730 (1977); Sparkman v. Estelle, 672 F.2d 559
(5 Cir. 1982).
In Henderson v. Kibbe, supra, the Court defined prejudice
in the giving of erroneous jury instruction as:
The question in such a collateral proceeding
is “whether the ailing instruction by itsel£
so infected the entire trial that the result-
ing conviction violates due process,“ Cupp
v. Naughten, 414 U.S. at 147, 38 L.Ed.2d 368,
94 $.Ct. 396, not merely whether "the instruc-
tion is undesirable, erroneous, or even *un-
iversally condemned,'" id., at 146, 38 L.Ed.2¢
368, 94 S.Ct. 396, 431 U.S. at 154, 52 L.Ed.2d
at 212, 97 S.Ct. 1730.
i l....._
In Sparkman v. Estelle, supra, at 562, the Court set the
standard for an erroneous evidentiary admission as:
Finally, even if admission of Botley'’s testi-
mony was error, petitioner would not be en=-
titled to federal habeas relief unless the
evidence so infected the trial as to deny
fundamental fairness. The testimony must
have been "'material in the sense of a
crucial, critical, highly significant factor'”
to justify habeas relief. (Citations omitted).
Irrespective of the label adopted, the meaning is the same.
If a prisoner is required to raise a timely challenge or perform
a certain act and fails to do so he is barred from raising such
in a federal habeas proceeding absent a showing of “cause” and
"actual prejudice”.
The concept of waiver does not mean a state court may not
comment on the state of a particular area of the law on its own.
As an added note for practical application purposes, in Ratcliff
vy. Estelle, 597 F.2d 474 (5 Cir. 1979), the Court addressed the
issue of alternative rulings on a particular point; i.e., a
ruling invoking the procedural bar then fer the benefit of the
bench and bar elaborating on the merits.
In the instant case, there is no doubt that
the procedural default rule was applied in
state court. The state trial court squarely
held that petitioner had failed to make a
timely objection to the grand jury array.
It then went on do discuss the merits, ap~
parently with a view to disposing of all
issues in the event it was in error on the
procedural point. Without written order
the Texas Court of Criminal Appeals denied
petitioner's application based on the find-
ings of the trial court.
It is fair to assume that the appellate
court applied the procedural default rule.
First, the language in the trial court
opinion regarding procedural default is ab-
solute and there is no subsequent language
which would qualify or compromise it. Second
it is well settled that a court will not
reach a constitutional question if it can
rest its decision on nonconstitutional
grounds. See Rescue Army v.- Municipal
Court, 331 U.S. 545, ST Stee iT t. 105; ST L.Ed.
[666 (1947). See generally Nowak, Rotun=
da & Young, Constitutional Law 83-85 (1978).
—_—<— <= ==
Third, there is no question that the trial
court correctly applied Texas law on the
procedural issue.
Id., at 478.
What woes become vitally important, however, is that the
state court clearly and specifically invoke the procedural bar
prior to its substantive comments.
D. State Procedural Rules
That Bar Review Herein
Like the Federal courts the Mississippi courts will not
recognize errors or objections unless a timely challenge is
raised. United States v. Sanders, 639 F.2d 268 (5 Cir. 1981);
United States v. Miller, 600 P.2a 498 (5 Cir. 1979); Parker v. ;
State, 367 So.2d 456 (Miss. 1976); Martin v. State, 354 So.2d
1114 (Miss. 1978); Strincer v. State, 279 So.2d 156 (Miss. 1973).
oe
Lixe its federal counterparts, Rules 30 and 52, — Fed. R. Crim.
P., the state practice is based upon specified rules of proce-
dure.
L/
Rule 30: Instructions
At the close of the evidence or at such earlier
time during the trial as the court reasonably
directs, any party may file written requests that
the court instruct the jury on the law as set forth
in the requests. At the same time copies of such
requests shall be furnished to adverse parties.
The court shall inform counsel of its proposed ac-
tion upon the requests prior to their arguments to
the jury, but the court shall instruct the jury after
the arguments are complete. No party may assign as e
error any portion of the charge or omission there-
from unless he objects thereto before the jury re-
tires to consider its verdict, stating distinctly
the matter to whi
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