# Opposition Brief — Sargent v. Woodard

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 1112

## 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,
V.
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

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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

B.

1.

2.

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

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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,
V.
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

bo

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.

I
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.

8

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

10

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.

11

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.

12

II
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
denied.

Dated: August 30, 1985
Respectfully submitted,

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0211%3A2. Public record. Not legal advice.