# Petition — Evans v. Mississippi > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1761%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 1264 ## Text 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: 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). —_— -Ed. (1968). Having categorically stated that she couldn't follow the testimony and instructions of the court, we think that the juror was correctly excluded. The fact that upon questioning by defense counsel, Hibler stated she would try to be a “fair” juror did not qualify her in this case. Similar argument was made in Edwards v. State, supra, n. l, but there the sentence was Lire imprisonment whereas here the sentence is death. Thus, the two cases are not precisely analogous. For an excellent explanation of the proper method of bringing the death penalty to the attention of the special venire in capital cases, see Armstrong v. State, 214 So.2d 589 (Miss. [568). Petitioner now apparently seeks to relitigate the challenge to Juror Hibler. As was previously stated, the writ does not lie to relitigate matters finally decided by this Court. Auman v. State, supra; Wetzel v. State, Miss. » 76 So.2a 846 (1955); Miss. Code Anno. § 99-35-145 (1972). As for juror Hopkins, if petitioner had desired to challenge the removal for cause due diligence dictated that he should have done so at both the trial level and on direct appeal. . Auman v. State, supra; Holloway v. State, supra. Inasmuch as the question should have been properly preserved and presented on direct appeal and was net, the Court must under its own rules construe the point as forfeited. PROPOSITION (2) The second ground, although somewhat a variation of the first ground, is raised here for the first time. The question, therefore, requires an examination of the pertinent factors to A. 53 determine if through the exercise of due diligence the question could have been raised on direct appeal. Obviously, the events of which petitioner complains occurred during the trial of this matter. Concomitantly, a record could have been made at that time. In this same context, the cases cited by petitioner, Witherspoon v. Illinois, 391 U.S. 510 (1968); Hovey v. Superior Court, 616 P.2d 1301 (Sup. Ct. Cal. 1980), Duren v. Missouri, 439 U.S. 357 (1978); Ballew v. Georgia, 435 U.S. 223 (1978); Guisley v. Wheeler, 637 F.2d 525 (8 Cir. 1980) and People v. Wheeler, 583 P.2d 748 (Cal. 1978), had been decided at the time of trial. Therefore, no recognizable excuse exists for the failure of counsel to raise these precise issues either at the trial level or on direct review, and it is pre- cluded from review by this Court. Auman v.- State, supra; Holloway v. State, supra. The comments on this subject in the recent case of Callahan vy. State, 419 So.2d 165, 171 (Miss. 1982), are appropriate. Pursuant to the requirements of Mississippi Supreme Court Rule 6(b), we cannot consider such arguments there that were not presented to the lower court, or were not preserved in the lower court and were not advanced on ap~- peal to this Court. Clearly, petitioner did not raise this precise issue on direct appeal, and a post-conviction writ may not be used as a sub- stitute. Holloway v.. State, supra- PROPOSITION (3 The question raised in ground three was presented to this Court in Point Three of petitioner's brief on direct appeal. The decision on direct appeal is res judicata. Speaking to this point, this Court heldr Thirdly, the defendant argues that he was denied a constitutionally fair trial be- cause the state was allowed to show a “separate and distinct crime.” His conten- tion is that the lower court erred in allow ing Officer David Williams to give hearsay testimony that the appellant had threatened to kill a woman over some money. The matter came up when the state, in presenting its case in chief, offered the testimony of Officer David Williams who was called for his testimony regarding his seizure of a pistol from the defendant which was later establish- ed to be the weapon used in the murder of the deceased Dixon. The testimony in question of Officer Williams was as follows: Q. About what time was this? A. Approximately 3:00 o'clock in the morning. Q. Just continue as to what was happening at that time. A. At that time we were engaged in a brief ‘ conversation with Mr. Preddie Tubbs when we received information that an individu- al was across the street at a rooming : house in the doorway with a weapon and the individual stated that he was gonna kill a girl over some money. Following the above testimony, the defendant ob- jected and the jury was excluded while the matter was considered by the judge and the lawyers. At that time, defense counsel agreed to the court's offer to admonish the jury to disregard the state- ment. The court admonished the jury not to let the testimony in question “have any bearing” on their verdict and the record clearly shows that each juror raised his hand indicating his will- ingness to follow the court's admonishment. The record does not indicate that the state inten- tionally elicited the hearsay report, but only asked Officer Williams, “What was happening at that time.” Our rule is that absent a showing to the contrary, jurors are presumed to follow the court's direction with regard to testimony. Hughes v. State, 376 So.2d 1349 (Miss. 1979); Satter V. state, 375 So.2d 1039 (Miss. 1979); Grey ua Boece: 375 So.2d 994 (Miss. 1979); ev. , 340 So.2d 727 (Miss. 1976). We think the record clearly shows that the challenged testimony was not elicited to estab- lish its truth or to establish that the defendant killed Dixon. As to the taking of the gun from the defendant, defense counsel stated, “We have no qualms with that." No motion or request for a mistrial was made by the defense and the court granted the defense all that was requested. In view of the context of the testimony and the court's admonishment of the jurors, the argument does not warrant reversal. Edwards v. State, supra, at 1009-1010. a. 35 Since a writ of error coram nobis does not lie to relitigate matters previously decided, the point, to say the least, lacks merit. Auman v. State, supra; Wetzel v. State, supra. PROPOSITION (4) The fourth ground alleges a Fourteenth Amendment Due Process violation based upon the State's closing argument t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1761%3A1. Public record. Not legal advice.