Opposition Brief — Sargent v. Woodard

Supreme Court brief1986

Ask Donna

What actually matters in this document.

Text

No. 84-2028

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

WILLIS SARGENT, WARDEN CUMMINS UNIT,

ARKANSAS DEPARTMENT OF CORRECTION,

Petitioner,

BILLY JUNIOR WOODARD,

Respondent.

On Petition for Writ of Certiorari

to The United States Court of Appeals

for The Eighth Circuit

BRIEF IN OPPOSITION TO THE

PETiTION FOR WRIT OF CERTIORARI

LATHAM, WATKINS & HILLS

REED E. HUNDT, Attorney of Record

EVERETT C. JOHNSON, JR.

DAVID B. SANDALOW

1333 New Hampshire Avenue, N.W.

Suite 1200

Washington, D.C. 20036

(202) 828-4400

THOMAS M. CARPENTER

P.O. Box 390

Little Rock, AR 72203

(501) 371-4527

Attorneys for Respondent,

Billy Woodard

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

[BEST AVAILABLE COPY

AS (Soe

TABLE OF CONTENTS

Page

ee a Oe a oa wi kv eee coe end eran es ii

ee OO FI CAI onc sivas oc eed as ev cceseeces 1

I. REASONS FOR DENYING THE WRIT....... 2

A. This Court Should Deny Certiorari on the Issue

Gg eee

The Grigsby Issue Does Not Compel Review of

Be ET 6 caw dewetaewstovnrssies

This Court Should Deny Certiorari In Both

WOOGATG AMG MCC TOO 2... ccc ccscccccncess

If A Writ Of Certiorari Issues In McC ree, This

Court Should Take No Action With Respect

To The Petition in Woodard ..............

. This Court Should Deny Certiorari on the Issue

of Retroactive Application of Grigsby ........

The Eighth Circuit’s Retroactive Application

of Grigsby to Woodard Presents No Signifi-

cant Issues To This Court ................

If the Grigsby Defendants Benefit by the Rule

Announced in Grigsby, That Rule Must Also

pg re

The Eighth Circuit Correctly Held That, Un-

der Decisions of This Court, The Rule An-

nounced in Grigsby Should Be Applied Retro-

ccc sae beet eaca ws wees uEceeese

MB ee ee PO Pee ERECT RT TET OES

TABLE OF AUTHORITIES

CASES: Page

Beck v. Alabama, 447 U.S. 625 (1980) ............... 9

Brown v. Louisiana, 447 U.S. 323 (1980) ............ 7,9

Caldwell v. Mississippi, 105 S. Ct. 2633 (1985) ....... 3, 4

Desist v. United States, 394 U.S. 244 (1969) ......... 8, 10

Edwards v. Arizona, 451 U.S. 477 (1981) ............ 7

Hankerson v. North Carolina, 432 U.S. 233 (1977) ... 7, 10

Johnson v. State of New Jersey, 384 U.S. 719 (1966) .. 10

Keeten v. Garrison, 742 F.2d 129 (4th Cir. 1984), petition

for cert. filed, __. U.S. L. W. (U.S. Feb. 2,

1986) (No. BE-GIBE) 5k canoe cee dete teeeas 5

Lockhart v. McCree, 53 U.S.L.W. 3870 (U.S. May 29,

1985) (Ne. 96-3000) «sc vcawduceneeurveuesess 4, 5, 6

Mabry v. Grigsby, 758 F.2d 266 (8th Cir. 1985), petition for

cert. filed sub nom. Lockhart v. McCree, 53

U.S.L.W. 3870 (U.S. May 29, 1985)

(No. SU-3008) ...sksccedang ease cease passim

Michigan v. Long, 463 U.S. 1032 (1983) ............. 4

Payton v. New York, 445 U.S. 573 (1980) ............ 7

Shea v. Louisiana, 105 S. Ct. 1065 (1985) ............ 8

Solem v. Stumes, 104 S. Ct. 1838 (1984) ......... 9, 10, 11

Stovall v. Denno, 388 U.S. 293 (1967) ............... 10

Ulster County Court v. Allen, 442 U.S. 140 (1979) .... 3, 4

United States v. Johnson, 457 U.S. 537 (1982) .... 8, 10, 11

Wainwright v. Sykes, 4383 U.S. 72 (1977) ............. 10

Wainwright v. Witt, 105 S. Ct. 844 (1985) ............ 3

Williams v. United States, 401 U.S. 646 (1971) .... 8, 9, 10

Witherspoon v. Illinois, 391 U.S.

SOO CO sv nwceus tee dasiateaeueeeeeree. 5, 6, 7, 11

Woodard v. Sargent, 753 F.2d 694 (8th Cir. 1985) .. passim

Woodard 2. State, 273 Ark. 235, 617 S.W. 2d 861, cert.

dented, 454 U.S. 19GB CURB) <ooc ccc cv ccccccsce 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-2028

WILLIS SARGENT, WARDEN CUMMINS UNIT,

ARKANSAS DEPARTMENT OF CORRECTION,

Petitioner,

BILLY JUNIOR WOODARD,

Respondent.

On Petition for Writ of Certiorari to

The United States Court of Appeals

for The Eighth Circuit

BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

Although Petitioner's statement of the case is accurate,

Woodard’ case should not be reviewed by this Court. The

Eighth Circuit, in Woodard v. Sargent, 753 F.2d 694 (8th

Cir. 1985), held that: (1) Mr. Woodard was not procedurally

barred from challenging the death-qualification of the jury

in the guilt phase of his trial; (2) that the principle announced

by the Eighth Circuit in Vabry v. Grigsby, 758 F.2d 226 (8th

Cir. 1985), petition for cert. filed sub nom. Lockhart v.

McCree, 53 U.S.L.W. 3870 (U.S. May 29, 1985) (No.

84-1865) prohibited death-qualification of juries during the

guilt phase of capital cases; and (3) Mr. Woodard, like the

petitioners in Grigsby, was entitled to the benefit of the rule

announced in that case. Accordingly, Mr. Woodara’s death

penalty and conviction were vacated.

REASONS FOR DENYING THE WRIT

Petitioner urges upon the Court three questions:

1. Whether the Eighth Circuit erred in finding that no

procedural default barred its consideration of Wood-

ard’s sixth and fourteenth amendment claims;

2. Whether the Eighth Circuit erred in finding that

the death-qualification of Woodard’s jury violated

the sixth amendment requirement of a fair cross

section of the community and that such juries are

conviction-prone; and

3. Whether the Eighth Circuit erred in applying

Mabry v. Grigsby retroactively to Woodard’ case.

For the reasons set forth more particularly in the para-

graphs which follow, none of the questions is appropriate for

review by this Court.

A. This Court Should Deny Certiorari on the Issue of

Procedural Default

The Eighth Circuit held that Woodard’s death-qualified

jury claim was not barred from consideration in the federal

courts by virtue of a procedural default under State pro-

cedural rules. Woodard v. Sargent, 753 F.2d at 699-705.

Petitioner argues that this holding conflicts with decisions of

the Arkansas Supreme Court and that this Court should

therefore grant certiorari. Petition at 5-8.

Petitioner's argument betrays a misunderstanding of the

nature of decisions by the Arkansas Supreme Court. The

Arkansas Supreme Court has never heid that a claim of any

sort was barred from consideration in the federal courts by

virtue of a procedural default under State procedural rules,

nor could it have any occasion to do so. Questions of federal

court jurisidiction are not properly presented to or decided

in the state courts. There could be no conflict between the

decisions of the Arkansas Supreme Court and those of the

Eighth Circuit on the issue of federal court jurisdiction.

The Eighth Circuit’s decision on the issue of procedural

default is in accord with the rule that the federal courts are

not barred from reviewing issues decided by the state

courts on their merits. Caldwell v. Mississippi, 105 S. Ct.

2633 (1985); Wainwright v. Witt, 105 S. Ct. 844, 856 n.11

(1985); Ulster County Court v. Allen, 442 U.S. 140 (1979).

“The mere existence of a basis for a state procedural bar

does not deprive this Court of jurisdiction; the state court

must actually have relied on the procedural bar as an inde-

pendent basis for its disposition of the case.” Caldwell v.

Mississippi, 105 S. Ct. at 2638. In this case, the Eighth

Circuit held that the decision of the Arkansas Supreme

Court on the death-qualified jury issue was a decision on the

merits, and therefore open to review by the federal courts

on petition for a writ of habeas corpus.

Petitioner labels as “egregious” and “utterly amazing”

the Eighth Circuit’s determination that the Arkansas Su-

preme Court decided Woodard’s death-qualified jury claim

on its merits. There is, however, nothing unusual about the

Eighth Circuit’s decision. The Arkansas Supreme Court

rejected Woodard’s death-qualified jury claim without men-

tioning procedural default, despite the fact that other issues

were expressly dismissed on procedural grounds. Woodard

v. State, 273 Ark. 235, 617S. W. 2d 861, 862-63, cert. denied,

454 U.S. 1068 (1981). In such a situation, a federal court is

not compelled to assume that a claim was rejected on pro-

cedural grounds; indeed the contrary presumption may be

appropriate. See Michigan v. Long, 463 U.S. 1032, 1040-41

(1983). Examination of other decisions of the Arkansas Su-

preme Court is an appropriate method of determining that

court’s intentions in the case at bar. See, e.g., Caldwell v.

Mississippi, 105 8. Ct. at 2638-39.

In Woodard’ case, the Eighth Circuit reasonably decided

that a decision of the Arkansas Supreme Court was on the

merits. The Eighth Circuit then applied the holding of this

Court in Ulster County Court v. Allen, recently reaffirmed

in Caldwell v. Mississippi, that a state court decision on the

merits is open to review by a federal court on habeas. No

issue worthy of certiorari is presented.

B. The Grigsby Issue Does Not Compel Review of Mr.

Woodard’s Case

Petitioner argues that since Woodard is controlled by the

Grigsby decision, this Court should grant its petition and

consolidate the two cases or hold Woodard in abeyance.

Petition at 9. Although the Grigsby issue is controlling, the

petition for writ of certiorari in that case should be denied.

Alternatively, the petition in this case should be held in

abeyance, pending disposition of the Grigsby issue in Lock-

hart v. McCree.

1. This Court Should Deny Certiorari In Both Woodard

And McCree

The United States Court of Appeals for the Eighth Cir-

cuit’s decision in Woodard v. Sargent, 753 F.2d 694 (8th Cir.

1985) is a straightforward application of its earlier decision

in Mabry v. Grigsby, 758 F.2d 226 (8th Cir. 1985), petition for

cert. filed sub nom. Lockhart v. McCree, 53 U.S.L.W. 3870

(U.S. May 29, 1985) (No. 84-1865). The State of Arkansas’

petition for writ of certiorari in Lockhart v. McCree should

be denied for two reasons: (1) the Eighth Circuit’s decision in

Grigsby was correct; and (2) the apparent conflict between

the circuits does not require resolution by this Court. Since

the State’s petition in McCree should be denied, so should

the State’s petition in this case be denied.

First, the Eighth Circuit in Grigsby accepted this Court's

invitation in Witherspoon v. Illinois, 391 U.S. 510 (1968) to

analyze the Witherspoon process of death-qualification of

juries in a bifurcated death penalty proceeding. Grigsby

represents not a deviation from announced principles of law,

but rather the logical and correct resolution of an issue left

open by this Court in Witherspoon—whether death-

qualified juries are unconstitutionally conviction-prone.

Second, the apparent conflict between the decisions of the

Fourth, Fifth and Eleventh Circuits, and the Eighth Cir-

cuit’s decision in Grigsby, is not ripe for resolution by this

Court. In Witherspoon v. Illinois, 391 U.S. 510, 518 (1968)

this Court said that a sufficient presentation of evidence

might well lead to the conclusion that “death-qualified”

juries are impermissible in the guilt phase of a bifurcated

proceeding. However, in each of the cases relied upon by

Petitioner to suggest a conflict between the circuits, either

no evidentiary hearing was held or evidence before the

court was not considered in its decision.’ Thus, only the

Eighth Circuit has reached a conclusion in accordance with

‘Although considerable “evidence” was before the Fourth Circuit

in Keeten v. Garrison, 742 F.2d 129 (4th Cir. 1984), petition for cert.

filed, ___. U.S. L. W. (U.S. Feb. 2, 1985) (No. 84-6187) it was

not considered by the court in its decision.

this Court’s guidelines in Witherspoon—i.e., after an evi-

dentiary hearing. Denial of an evidentiary hearing on the

issue of the guilt prone disposition of death-qualified jury, or

ignoring the evidence adduced, is clearly contrary to this

Court’s mandate in Witherspoon. Until another circuit

reaches a decision contrary to the Eighth Circuit’s decision

in Grigsby after an evidentiary hearing, no real conflict

between the circuits exist on the ultimate question. Because

Grigsby is the first decision predicated upon evidence ad-

duced at an evidentiary hearing, it is not in conflict with

other circuits, except on the issue of entitlement to and

relevance of an evidentiary hearing. That issue is not pre-

sented by Petitioner. According!ty, the petition should be

denied.

2. If A Writ Of Certiorari Issues In McCree, This Court

Should Take No Action With Respect To = Petition

in Woodard

Even if the Court issues a writ of certiorari to the Eighth

Circuit in the case of Lockhart v. McCree, it need not grant

certiorari in Woodard. This Court’s decision in McCree will

be dispositive of the “death-qualification” issue in Woodard.*

Issuance of a writ of certiorari in Mr. Woodard’s case, and

consolidation of that case with McCree, would not aid this

Court’s resolution of the issue. Specifically, even if this

Court decides to consider the Grigsby issue, Mr. Woodard’s

case presents no additional significant issues. Accordingly,

if this Court decides to review the Eighth Circuit’s decision

in Grigsby, it should as Petitioner requests, Petition at 9,

hold the petition in this case in abeyance pending a decision

in Lockhart v. McCree.

“This Court cannot finally dispose of Woodard’s petition for a writ of

habeas corpus, even if Grigsby is reversed, since several issues per-

taining to both phases of the bifurcated proceeding were not reached

by the Eighth Circuit in Mr. Woodard’s case.

C. This Court Should Deny Certiorari on the Issue of

Retroactive Application of Grigsby

Petitioner also argues that the Eighth Circuit improperly

interpreted the decisions of this Court in “retroactively”

applying the decision in Grigsby to this case. Petition at

10-11. Petitioner's argument is without merit because: (1) no

issue worthy of certiorari is presented; (2) if the defendants

in Grigsby benefit by the Grigsby rule, it must also apply to

Woodard; and (3) the Eighth Circuit properly applied the

law as announced by the decisions of this Court in holding

that Grigsby should be applied retroactively.

1. The Eighth Circuit’s Retroactive Application of

Grigsby to Woodard Presents No Significant Issues

To This Court

This case presents to the Court no unique issues with

respect to retroactivity. Retroactivity has been discussed

by this Court on numerous occassions in accord with the

Eighth Circuit’s decision in Woodard. See, e.g., Brown v.

Louisiana, 447 U.S. 323 (1980); Hankerson v. North Car-

olina, 482 U.S. 233 (1977); Witherspoon v. Illinois, 391 U.S.

510 (1968). Woodard presents no deviation from the princi-

ples applied by this Court on numerous occasions.

Further, there is currently no conflict among the circuit

courts on the issue of retroactive application of the Grigsby

principle. Until there is a conflict among the circuits, or

some other compelling reason, there is no need for this

Court to decide the issue. This Court has often announced

constitutional principles in the area of criminal procedure

without addressing the issue of retroactivity. See, e.g.,

Payton v. New York, 445 U.S. 573 (1980); Edwards v. Ari-

zona, 451 U.S. 477 (1981). Consideration of the merits of

retroactively applying the rule announced in Grigsby to

other cases would be premature.

2. If the Grigsby Defendants Benefit by the Rule An-

nounced in Grigsby, that Rule Must Aiso Apply to

Mr. Woodard

Although the Court of Appeals correctly applied the

principle announced in Grigsby to Mr. Woodard, the court's

detailed discussion on the issue of retroactivity was un-

necessary to the disposition of Mr. Woodard’s case. The

Grigsby court implicitly decided the retroactivity issue

when it granted new trials to the habeas petitioners therein.

If the (xrigsby defendants receive the benefit of the Grigsby

rule, Mr. Woodard, too, must be granted a new trial. See

Shea v. Louisiana, 105 S. Ct. 1065, 1071 (1985). (“If the

Edwards principle is not to be applied retroactively, the

only way to dispense equal justice to Edwards and to Shea

would be a rule that confined the Edwards principle to

prospective application unavailable even to Edwards him-

self.”) Both Mr. Woodard’s case and Grigsby were consid-

ered by the Eighth Circuit at the same time. Basic consid-

erations of equity militate strongly against granting the

defendants in Grigsby the benefits of the new rule, while

denying relief to Mr. Woodard, who raised the same issues

in similar circumstances. In United States v. Johnson, this

Court noted that it:

has no power to speed up or slow down the appellate

process in the many tribunals throughout the country

to ensure similar treatment of similarly situated defen-

dants. The Court does, however, have the power to

eliminate the obvious unfairness that results when it

gives only the most conveniently situated defendant

the retrospective benefit of a newly declared rule.

457 U.S. 537, 557 n.17 (1982). See, Williams v. United

States, 401 U.S. 646, 658 (1971); Desist v. United States, 394

U.S. 244, 258-59 (1969) (Harlan, J., dissenting). The Grigsby

and Woodard appeals rose through the judicial system si-

muitaneously. The Eighth Circuit implicitly applied the

constitutional principle announced in Grigsby retroactively

to the defendants in that case by giving them the benefit of

the rule. Mr. Woodward, therefore, should be accorded the

same treatment.

3. The Eighth Circuit Correctly Held That, Under De-

cisions of This Court, The Rule Announced in

Grigsby Should Be Applied Retroactively

This Court has consistently held that consitutional princi-

ples designed to enhance the accuracy of criminal trials

should be given retroactive effect. See, e.g., Solem v.

Stumes, 104 S. Ct. 1338, 1342 (1984); Williams v. United

States, 401 U.S. 646, 653 (1971). “When an assessment of

. .. probabilities indicates that the condemned practice

casts doubt upon the reliability of the determinations of guilt

in past criminal cases, . . . the new procedural rule [must]

be applied retroactivelv.” Brown v. Louisiana, 447 U.S. at

329 (holding retroactive the rule that the sixth and four-

teenth amendments are violated if an accused is convicted of

a non-petty criminal offense by a non-unanimous six-person

jury). Nowhere is this principle more important than in

death penalty cases. See Beck v. Alabama, 447 U.S. 625,

637 (1980) (risk of prejudice which may be acceptable in a

noncapital case “cannot be tolerated in a case in which the

defendant's life is at stake”).

In this capital case, the argument for retroactive applica-

tion of the principle announced in Grigsby is compelling. The

issue in Woodard and Grigsby — whether death-qualified

juries are impartial on the issue of guilt or innocence —

“goes to the heart of the truth-finding function of a trial by

jury.” Woodard v. Sargent, 753 F.2d at 696. In contrast,

those principles that this Court has declined to apply retro-

actively to cases pending on habeas involve fourth and fifth

amendment principles designed to protect privacy interests

and to mold future police behavior. See, e.g., Solem v.

Stumes, 104 S. Ct. 1338 (1984); United States v. Johnson,

457 U.S. 587 (1982); Williams v. United States, 401 U.S. 646

(1971). Because Grigsby presents a constitutional doctrine

affecting the integrity of the truth-finding function of the

criminal trial, it must be given retroactive effect. See, ¢.g.,

Williams v. United States, 401 U.S. at 653; Hankerson v.

North Carolina, 482 U.S. at 243.

This Court has held that decisions on retroactivity must

consider “(a) the purpose to be served by the new stan-

dards, (b) the extent of the reliance by law enforcement

authorities on the oid standards, and (c) the effect on the

administration of justice of a retroactive application of the

new standards.” Stovall v. Denno, 388 U.S. 293, 297 (1967);

Johnson v. State of New Jersey, 384 U.S. 719, 727 (1966).

The purpose of the new rule is the controlling factor. See

Desist v. United States, 394 U.S. at 249.

Contrary to Petitioner’s argument, countervailing consid-

erations do not outweigh the importance of retroactively

applying the rule announced in Grigsby. Petitioner argues

that retroactive application will greatly disturb the admin-

istration of justice by opening the jail house doors. Petition

at 11. However, procedural safeguards will keep the number

of cases the rule could effect at a manageable level. The

application of the doctrine of Wainwright v. Sykes, 433 U.S.

72 (1977), of necessity, will greatly limit the impact of the

Grigsby decision. Only in those cases in which state courts

decided the death-qualified jury issue on the merits, or in

those in which “cause” and “prejudice” can be shown for a

failure to raise the issue, wiil new trials be required. Peti-

tioner offers neither argument nor evidence to suggest that

a substantial number of cases would in fact be affected by

retroactive application of this rule.

The Grigsby principle, furthermore, does not announce a

completely new rule warranting only prospective effect. See

U.S. v. Johnson, 457 U.S. at 549. Witherspoon clearly fore-

shadowed the outcome of Grigsby. Witherspoon v. Illinois,

391 U.S. at 521-23. The Eighth Circuit logically extended

the Witherspoon principle to hold that a death-qualified jury

is not impartial on the issue of guilt or innocence. This Court

in Witherspoon v. Illinois, held that

the jury-selection standards employed [at Withers-

poon’s trial] necessarily undermined the ‘very integrity

of the . . . process that decided the petitioner's fate,

and we have concluded that neither the reliance of law

enforcement officials, nor the impact of a retroactive

holding on the administration of justice warrants a

decision against the fully retroactive application of the

holding we announce today.

391 U.S. at 523-24 n.22 (citations omitted).

This Court has held that “complete retroactive effect is

most appopriate where a new constitutional principle is

designed to enhance the accuracy of criminal trials.” Solem

v. Stumes, 1048. Ct. at 1342. The Grigsby doctrine reaches

to the fundamental fairness of a trial by jury. The Grigsby

principle, as noted by the court below, raises serious ques-

tions about the reliability of verdicts rendered by juries

composed of men and women inclined to convict. Woodard

753 F.2d at 696. Thus, this is the paradigm case for retroac-

tive application. The petition for writ of certiorari on this

issue should be denied.

CONCLUSION

For the foregoing reasons, the Eighth Circuit’s decision in

Woodard v. Sargent, 753 F.2d 694 (8th Cir. 1985) is not

appropriate for review by this Court. Mr. Woodard re-

spectfully submits that the petition for writ of certiorari be