Petition for Writ of Certiorari — Smith v. Black

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No.

IN THE

Supreme Court of the United States

OcToBER TERM, 1990

WILLIE ALBERT SMITH,

Petitioner,

VS.

LEE ROY BLACK, Commissioner,

Mississippi Department of Corrections, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Bruce D. ANGIOLILLO

Counsel of Record

JOHN J. KENNEY

Davin E. MASSENGILL

SIMPSON THACHER & BARTLETT

(A partnership which includes

professional corporations)

Attorneys for Petitioner

Willie Albert Smith

425 Lexington Avenue

New York, New York 10017-3909

(212) 455-2000

January 22, 1991

QUESTIONS PRESENTED FOR REVIEW

1. Where the only eyewitnesses who

testified against a prisoner at trial

gave material false testimony on the

stand and, contrary to their trial

testimony, could not identify Petitioner

Willie Albert Smith as a participant in

the crime, is it appropriate for a court

to refuse to consider that prisoner's

challenge to his conviction on the sole

ground that the prisoner has failed to

prove prosecutorial knowledge of the

perjury?

2. Should a court refuse to find a

due process violation when a prosecutor

negligently uses material perjured

testimony, in light of the fact that it

is clearly established law under Brady v.

Maryland and its progeny that the

negligent suppression of material

evidence is an adequate ground for a due

process claim?

3. Should a federal court apply the

non-retroactivity principle enunciated in

Teague v. Lane to a rule of law

referenced in Clemons v. Mississippi,

when the principle from Clemons upon

which Petitioner relies was (a)

established by state law prior to

Clemons; (b) settled law years before

Petitioner's conviction; and (c) the cure

for an independent error?

4. Does the non-retroactivity

principle enunciated in Teague v. Lane

apply to a change in state law?

5. Should a federal court apply the

non-retroactivity principle of Teague v.

Lane where the state legislature has

legislated a result directly contrary to

Teague?

6. Does the fundamental protection

against execution without individualized

consideration implicate bedrock

procedural elements crucial to the

accuracy of a death sentence, and

therefore constitute an exception to

Teague?

wx Does the State waive its right

to rely upon the Teague v. Lane defense

when it fails to raise the defense on its

own in any of its briefs to any court and

only thereafter relies upon the defense

when raised by the Court of Appeals sua

sponte?

PARTIES TO THE PROCEEDING

The petitioner in this action is

Willie Albert Smith. The respondents in

this action are Lee Roy Black,

Commissioner, Mississippi Department of

Corrections, Steven Puckett,

Superintendent, Mississippi State

Penitentiary, and the State of

Mississippi.

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .. . . © «© « © « © « WV

TABLE OF AUTHORITIES ...... . viii

CITATIONS TO OPINIONS BELOW or oe 2 or a

JURISDICTION . . «© «© «© «© © © © «© «© «© © 2

CONSTITUTIONAL AND STATUTORY PROVISIONS 3

STATEMENT OF THE CASE ......-..-e. 4

REASONS FOR GRANTING THE WRIT... . 18

I. THE PROSECUTOR'S USE OF PERJURED

EYEWITNESS TESTIMONY VIOLATED

PETITIONER'S RIGHT TO DUE

PROCESS OF LAW .... ++... «~ 18

A. The Opinion Below Conflicts

With The Better Reasoned Second

Circuit Decision Of Sanders v.

Sullivan « ws ws we ee wee 19

i. Petitioner's conviction

was founded upon material

perjured testimony which

was credibly recanted . 21

e The Sanders decision

is better reasoned,

as it focuses upon

fairness to the accused,

not upon prosecutorial

culpability « « 2 & « s 26

If.

3 The rationales for

requiring evidence of

prosecutorial misconduct

are unconvincing ... 29

B. The Prosecutor's Negligent

Use Of Material, Perjured

Eyewitness Testimony Violated

Due Proces6SB ... + +e... 31

i. The Fifth Circuit's

reliance upon Mooney to

justify its refusal to

correct the due process

violation in this case is

inappropriate ..... 31

2. A refusal to afford due

process relief when

perjured testimony as

been negligently used

creates an explicit

conflict with Brady and

G8 progeny . ss. «ss 2 33

3. The prosecution negligently

used perjured eyewitness

testimony to obtain

both a conviction and

a jury-imposed

sentence of death... 36

THE FIFTH CIRCUIT ERRED IN

FAILING TO REVIEW THE

UNCONSTITUTIONAL USE OF THE

"ESPECIALLY HEINOUS, ATROCIOUS

OR CRUEL" AGGRAVATING

CIRCURSSANGE cs + + © 6 &8 6 & «@ @ 39

vii

A. The Fifth Circuit Is In Direct

Conflict With The Mississippi

Supreme Court's Ruling In

Jomnnmam TIT . « 8s tw te te 8

Re Johnson III is the law in

Mississippi ......

2. A change in state law

does not implicate

Teague v. Lane concerns

B. Mississippi Specifically

Permits Habeas Petitioners To

Rely On "New Law" ... .

c. Clemons Did Not Announce

is The right to

individualized treatment

is settled law

2. Under the central

principle of Clemons this

case should be remanded

to the Mississippi

Supreme Court .....

D. Clemons Constitutes An

Exception To Teague v. Lane

E. Respondent Has Waived Any

Teague v. Lane Argument

CONCLUSION

viii

TABLE OF AUTHORITIES

Cases

Baker v. Carr, 369 U.S. 186 (1962) . 30

Billiot v. State, 515 So. 2d 1234

(Mies. 1987) « «ee sss eveess S82

Brady v. Maryland,

373 U.S. 83 (1963) a7, Ad, 26,

. . . . . . . . . . . . . . 27, 33-36

Braxton v. Estelle, 641 F.2d 392

Stn Cis. Gait A 2963) . 2 « e+ « « 33

Buitrago v. Scully, 705 F. Supp.

952 (S.D.N.¥. 1989) . « «© «© «© «© «© «© 2

Burks v. Egeler, 512 F.2d 221

(6th Cir.), cert. denied,

423 U.S. 937 (1975) . «© « « « « ai, 33

Burnett v. Illinois, 619 F.2d 668

(7th Cir.), cert. denied, 449

U.S. 860 (31960) . « «© © «© © © «© ss 40°32)

Clemons v. Mississippi, U.S.

» 210 S&S. Ce. 1441 (1990) ... 41-64

Clemons v. State, 535 So. 2d 1354

(Miss. 1988), vacated and

remanded by ~ U.S. °

110 S. Ct. 1441 (1990) ...... 46

Collins v. Youngblood, 0.8.

,» 110 S. Ct. 2715 (1990) .. 24, Ga

Curran v. Delaware, 259 F.2d 707

(3d Cir. 1958), cert. denied, 358

0.8... 346 (4999) «© «= ws «+ te oe 6 6 o 6

Cuyler v. Sullivan, 446 U.S.

De CREGO es) Li. ee ne a 6

Davis v. Maynard, 911 F.2d 415

(ime fae. 2eee) kkk ple ee eS a

De La Rosa v. Lynaugh,

817 F.2d 259 (5th Cir. 1987) ... S86

Durley v. Mayo,

BOL Webs Bf? (1956) « sw ew ew ow ew ts) 68D

Eddings v. Oklahoma,

455 U.S. 104 (1982) .... 42, 43, 54

Erie Railroad Co. v. Tompkins,

2064 U.8. SO 12008) oO se ee: ~ OO

Furman v. Georgia,

66 U.B. 2236 Casa} <cice ¢ s ©. eo 60

Giglio v. United States,

S08 U8. S50 Cag ret aw ke ee eee OO

Godfrey v. Georgia,

446 U.S. 420 (1980) a3, SS... 57,

a ae a a ae ae ca ae a ee ee a ee er

Hanrahan v. Greer,

896 F.2d 241 (7th Cir. 1990) xe ow TR

Hawkins v. Lynaugh, 844 F.2d 1132

(5th Cir.), cert. denied,

465 U.S. 900 (2968) .« 2 «6 6 © © « 33

Hili_ ¥v..Blieack, .. U.S. ,

bik Ss. CO. 9S: (1990) ar ay ae ae a a

Hill v. McMackin, 893 F.2d 810

GEM Cie. SOON). oe Sk ee es

Hopkinson v. Shillinger,

888 F.2d 1286 (10th Cir. 1989),

cert. denied, U.S. ,

110 S. Ct. 3256 (1990) eer oe

Irving v. State, 498 So. 2d 305

(Miss. 1986), cert. denied, 481

U.S. 1042 (1987) .

Jackson v. Wainwright,

390 F.2d 288 (5th Cir. 1968)

Johnson v. Mississippi,

466 U.S. S78 (i966) . © « « « «

Johnson v. State, 508 So. 2d

1126 (Miss. 1987)...

Johnson v. State, 547 So. 2d 59

(Miss. 1989) (en banc)

cae et or Se ioe hee ee ee 50, 51-52,

Jones v. Kentucky, 97 F.2d 335

(6th Cir. 1938) .

Kampshoff v. Smith, 698 F.2d 581

(2d Cir. 1983)

Lewis v. Jeffers,

U.S. ,

110 S. Ct. 3092 (1990)

Lindley v. Hamilton, 883 F.2d 360

(5th Cir. 1989)

Lockett v. Ohio,

438 U.S. 586 (1978) 42,

Maynard v. Cartwright,

486 U.S. 356 (1988) 43, 50

oa er ee any. O2%

45-49

57, 64

20, 28

Mayo v. Lynaugh, 893 F.2d 683

Mooney v. Holohan,

294 U.S. 103 (1935) at, 24°

. a o . * . _ * o eo a . . . _ 34,

Muniz v. Procunier, 760 F.2d 588

(5th Cir.), cert. denied, 474

UeSe- B34 (APBS) - @ ws @ ow ow tw ew HB,

Neal v. State, 525 So. 2d 1279

a at) wwe ee oe USCS @

Newlon v. Armontrout,

885 F.2d 1328 (8th Cir. 1989),

cert. denied, U.S. ,

110 S. Ct. 3301 (1990) ‘ « « « ) Gy

Penry v. Lynaugh, U.S. ‘

109 S. Ct. 2934 (1989) .....

Riley v. State, 93 Nev. 461,

567 P.2a 475 (Nev. 1977) ... . 27-

Saffle v. Parks, U.S. ,

110 S. Ct. 1257 (1990) ; +e oe woe

Sanders v. Sullivan, 863 F.2d

218 (2a Cir. 1988) 19-21, 26-

ress *s &« & & 6 + © % 30,

Sanders v. Sullivan, 900 F.2d 601

(2d Cir. 1990) <

Shuler v. Wainwright, 491 F.2d 1213

(5th Cir. 1974) ‘ oa

Selvage v. Collins, 897 F.2d

745 (Sth Cir. 1990)... 8O,°R8:

xii

Skipper v. Wainwright, 598 F.2d 425

(5th Cir.) (per curiam), cert.

denied, 444 U.S. 974 (1979) ... . 33

Smith v. Black, 904 F.2d 950

[eee e EOE 6S 6 6 «0 »« «© - passim

Smith v. Black, 912 F.2d 1465

Cer GT re se « « » « « « 2, 18

Smith v. State, 419 So. 2d 563

(Miss. 1982), cert. denied, 460

U.S. 1047 (1983) ao, “81,

ee as SS 2" ee ee ee Sa, 22, 56

Smith v. State, 434 So. 2d 212

DTC S Th Se) 6 6 «6 « « « « 15

Smith v. State, 457 So. 2d 911

DPCP CCIOET CS « «6 «6 © « »« «© 16

Smith v. State, 492 So. 2d 260

re fry

Smith v. State, 500 So. 2d 973

DPPC T ET SL 5s 6 » © « »« « 17

Smith v. Thigpen, 689 F. Supp. 644

(S.D. Miss. 1988), aff'd,

ey ae ay Ae oe

Stringer v. Black, e.6. :

110 S. Ct. 1800 (1990) an « © e 54

Stringer v. Jackson, 862 F.2d

1108 (5th Cir. 1988), vacated

and remanded, U.S. __,

110 S. Ct. 1800 (1990) 45, 46, 49

ea eee @ -@ @ »e« » « -« a. ao, 63

Sumner v. Mata,

PPPOE SD 5 5 «. 6 «© «© «© «© 29

xiii

Teague v. Lane,

489 U.S. 288 (1989) .....«.. 42-64

United States v. Agurs,

427 U.S. 97 (1976) oe 8 26-27, 34-35

United States v. Bagley,

473 UsBe GOF (CAPER) « & we © 34, 36

United States v. Bortnovsky,

879 F.2d 30 (2d Cir. 1989) ie a ae

United States v. Langford, 802 F.2d

1176 (9th Cir. 1986), cert. denied,

463 0.6. 2008 (2967). 6%. + se ©6« 622

USLIFE Corp. v. United States

Life Ins. Co., 560 F. Supp.

1302 (H.O. TOM. 1963) « «© we « o wo 6B

Walton v. Arizona, U.S. ‘

110 S. Ct. 3047 (1990) ‘-*e* ese « * 61

Watkins v. Sowders, 449 U.S.

383 4398) Sk eee ee

Zant v. Moore,

469 U.S: G39 (ides) «© «© « © se 6 so) 6B

Zant v. Stephens,

436 U.6. @20 (i982) « «© «& «© wo « 50, 36

xiv

Constitutional Provisions

Eighth Amendment ...... . 3, 59-60

Fourteenth Amendment ......... 3

Statutes

28 U.S.C. § 1254(1) a ee ee ee ee ee ee

Se VUsGeGs | 2O08 4 “so 8 ee 6 oe Oa

Miss. Code Ann. § 9°9-39-23(6)

Pee, TONS ee a as ea SO ee

Miss. Code Ann. § 99-39-27(9)

es tg te Ce ee ae

Other Authorities

Carlson, False or Suppressed

Evidence: Why a Need for the

Prosecutorial Tie?,

1969 Duke L.J. 1171 ...e- are oe

Comment, Rethinking the Standara

for New Trial Motions Based Upon

Recantations as Newly Discovered

Evidence, 134 U. Pa. L. Rev.

1433 S100 «4:40 ee

Murray, Convictions Obtained by

Perjured Testimony: A Comparative

Review, 27 Ohio State L. J.

202 (2966) 2 ae ttt te te RS,

Note, I Cannot Tell a Lie:

The Standard for New Trial

in False Testimony Cases,

83 Mich. L. Rev. 1925 (1985) . 2G,

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

WILLIE ALBERT SMITH,

Petitioner,

Vv.

LEE ROY BLACK, Commissioner,

Mississippi Dept. of Corrections, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Petitioner, Willie Albert Smith

("Petitioner"), requests that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals for

the Fifth Circuit in Smith v. Black, 904

F.2d 950 (5th Cir. 1990). Petitioner is

currently under sentence of death in the

State of Mississippi.

CITATIONS TO OPINIONS BELOW

The opinion of the Court of Appeals

for the Fifth Circuit affirming the

judgment of the District Court for the

Southern District of Mississippi, dated

June 26, 1990, is reported at 904 F.2d

950 (5th Cir. 1990), and is set forth as

Appendix A. The opinion of the Court of

Appeals for the Fifth Circuit denying

Petitioner's suggestion for rehearing en

banc and petition for rehearing, dated

August 24, 1990, is reported at 912 F.2d

1465 (5th Cir. 1990), and is set forth as

Appendix B.

The order of the District Court of

the Southern District of Mississippi,

dated June 13, 1988, is reported at 689

F. Supp. 644 (S.D. Miss. 1988), and is

set forth as Appendix C.

JURISDICTION

)

The orders of the United States Court

of Appeals for the Fifth Circuit were

entered on June 26, 1990 and August 24,

1990. On November 12, 1990, Petitioner

sought, and this Court granted, an

extension of time to file this petition

for writ of certiorari. This petition is

filed within the extension granted by

this Court. The jurisdiction of this

Court is invoked under 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves the Eighth and

Fourteenth Amendments to the United

States Constitution, which provide, in

pertinent part:

Excessive bail shall not be required,

nor excessive fines imposed, nor

cruel and unusual punishments

inflicted.

[NJor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny

to any person within its jurisdiction

the equal protection of the laws.

This case also involves §§ 99-39-

27(9) and 99-39-23(6) of the Mississippi

Code, which are set forth as Appendix H.

STATEMENT OF THE CASE

Events of March 15, 1981

At approximately 5:00 a.m. on the

morning of Sunday, March 15, 1981, about

an hour before dawn, Kenneth Thomas and

James Wells were driving by a Tote-Sum

convenience store in Jackson, Mississippi

(E43-49, 64-65; F110-14).+ They later

testified that they saw a black man

struggling with a white woman in the

parking lot of the store, near a small

red car (E45-51, 64-67; F16-18, 102-05,

110-14). The struggling figures were at

least 60 feet away from the moving car

(F61-66). The man's body was obstructed

from view (F41-46). Wells was drunk

(F19-26).

Thomas and Wells kept driving (E45-

53). After searching for a store to cash

1/ All cites (e.g., Al, Bl) refer to the

separately bound appendix submitted herewith.

a check (E43-49, 64-65), they drove back

by the Tote-Sum store, where they saw

Sgt. Oatis of the Jackson police in the

parking lot (E54-55, 68-71, 88-91). As

the police radio report and Oatis' notes

confirm (F91-101, 145-50), Thomas told

Oatis all that he had seen: a black man

struggling with a white woman near a

small red car (E64-67; F110-14).

Approximately forty-five minutes

later, at 5:45 a.m., a Ford Pinto

automobile approached the store, turned

around and began to drive away (E92-93).

Sgt. Oatis stopped the car and saw a

tennis shoe inside matching one he had

seen in the parking lot. He arrested the

driver, Petitioner (E92-102).

Petitioner told Sgt. Oatis the car

belonged to Edward Charles McDonald, who

lived near Petitioner's home. The police

took Petitioner to McDonald's house

(E107-08). McDonald admitted that it was

his car. He said that he and others had

been at a party with Petitioner until

about 4 a.m., when he loaned the car to

Petitioner and went home to bed. He took

the police to Petitioner's house (E107-

08), which was within walking distance.

The police entered and found Mrs.

Robert's purse, sweater and other

personal belongings. They found her body

in a wooded area some distance away

(F106-09).

The Failed Lineup

The next day, the police took Thomas

to a line-up that included Petitioner.

Thomas could not identify him. Wells was

not even asked to try to identify anyone. _

Thomas and Wells gave statements to the

police stating that they could not

identify the man in the Tote-Sum parking

lot (F75-77, 84-86).

Pretrial Proceedings

Petitioner was subsequently indicted

for robbery-murder, a capital crime. His

family retained John Gregg to defend him.

The prosecutor for Hinds County was

district attorney Ed Peters.

Gregg asked for discovery of all

exculpatory materials in the State's

files, including the names of any

informants who were eyewitnesses. He

received a few excerpts from the police

report, but he was not given the written

statements by Thomas and Wells that they

could not identify Petitioner. He was

also not given the police records showing

that Thomas and Wells told Sgt. Oatis

that all they had seen was a black man

with a small red car. Nor was he told

that Kenneth Thomas was an informant for

the Jackson police.

Until the day before trial, Peters

had a circumstantial case. While there

was some physical evidence tying the

victim to Petitioner's apartment, Peters

did not have any eyewitness evidence

proving that Petitioner abducted Mrs.

Roberts, or was involved in her death.

At the coram nobis hearing, Peters

testified that he was well aware that the

absence of eyewitness testimony linking

Petitioner to the crime was a problem,

because jurors place great weight on

eyewitness testimony (F78-80).

When jury selection began on July 27,

1981, Peters still did not have an

eyewitness to the crime. The trial jury

included four jurors who swore during the

voir dire they would not convict

Petitioner without eyewitness testimony

tying him to the crime (E7-28, 39-42;

F78-83).

Thomas and Wells See the Light

While Peters was facing this problen,

an investigator for the district

attorney, Lt. Bartlett, was solving it

for him. Bartlett talked to Thomas and

Wells. He questioned Thomas about his

inability to identify Petitioner. When

Thomas again said he could not identify

the man in the parking lot, Bartlett took

out five pictures. One of them was of

Petitioner (F47-55). Each picture had a

name on the back (id.; F120-22). Thomas

looked at them and chose the picture of

Petitioner by the name on the back (F10-

15, 51-55). Bartlett then took Wells

aside and told him Thomas had not been

able to identify the man. Wells knew the

name of the defendant. He chose the

picture of Petitioner by the name on the

back (F27-40, 125-26).

Bartlett took Thomas and Wells to

meet Peters and Assistant District

Attorney Vaughan Davis. Bartlett told

Peters and Davis that Thomas and Wells

would supply the necessary eyewitness

testimony. Thomas had an additional

incentive to please the prosecutors. He

was serving a 22 year probation for armed

robbery and was a police informer.

Both Davis and Peters had read the

police report. They knew that it was an

hour before dawn when Thomas and Wells

drove by the Tote-Sum parking lot, that

Thomas and Wells had repeatedly said they

could not identify the man in the parking

lot, and that Thomas could not pick him

out of a lineup the day after the crime.

However, neither Peters nor Davis

questioned Thomas' and Wells' sudden

conversion.

The State's Continuing Failure to

Disclose Exculpatory Information

Even after Peters had his eyewitness

testimony, he did not give Gr 3g the

police reports that showed (i) that

Thomas and Wells could not identify

anyone the day after the crime, and (11)

that all Thomas or Wells told anyone was

that they saw a black man, whom they

could not otherwise describe, near a

small red car. Nor did he tell Gregg

that Thomas was an informant for the

Jackson police.

The Trial: The In-Court Identification

Both Thomas and Wells took the stand

at the trial, pointed to Petitioner and

said that he was the man they saw in the

Tote-Sum parking lot (E58-61, 72-73).

They did not show any doubt about the

identification (E60-61, 82-83).

Gregg's cross-examination was

crippled. While he had reports of

interviews of Thomas and Wells by his son

and Petitioner's sister, in which Thomas

and Wells said they could not identify

Petitioner, Gregg did not have Thomas'

and Wells' written statements and the

police reports contradicting their

testimony. He also did not know that

Thomas was a police informant.

As he had at an earlier suppression

hearing, Petitioner testified and denied

guilt and any involvement in the crime.

Summations

Reflecting the importance of

eyewitness evidence, both sides discussed

the testimony at length during summation.

Gregg's summation was devoted almost

entirely to an attack on the credibility

of Thomas and Wells.

The prosecutor told the jury, among

other things, that it should credit the

testimony of Thomas and Wells. To rebut

Gregg's claim that Thomas and Wells were

influenced by an improper photo show-up,

Assistant District Attorney Davis

referred to Wells' testimony that he had

been left alone in the room with the

pictures (E118-20). This despite the

fact Lt. Bartlett, who was in the court-

room during Wells' testimony, later tes-

tified that Wells was never left alone in

the room (E62-63, 78-81; Fii5-22). The

State did not tell the jury that the pic-

tures had names on the back (E118-20).

The Sentencing Hearing

The jury found Petitioner guilty of

robbery-murder, based on the perjured

testimony. But the prosecutor had to

convince the jury to sentence Petitioner

to die. The perjured testimony was a

Significant boost, since the same jury

that determined guilt would determine

sentence. They had seen and heard Thomas

and Wells point to Petitioner and say,

"That's the man."

However, even with the eyewitness

testimony, the prosecutor was concerned

about removing any residual doubts the

jury harbored from the guilt phase that

would make them less likely to sentence a

man to die. Substantial additional

evidence, including evidence of the

uncharged crime of rape, was introduced

during the sentencing phase of the trial.

The court instructed the jury that it

must find any mitigating circumstances

outweighed by at least one of three

aggravating factors: that the murder was

committed during a robbery, for pecuniary

gain or that it was "especially heinous,

atrocious or cruel". No instruction was

given explaining or limiting these terms

(E121-27). On July 30, 1981, the jury

returned a sentence of death.

£2

Post-Trial Proceedings

Petitioner's conviction was affirmed.

Smith v. State, 419 So. 2d 563 (Miss.

1982), cert. denied, 460 U.S. 1047

(1983). A motion in the State Court for

leave to file a petition for writ of

error coram nobis was denied. Smith v.

State, 434 So. 2d 212 (Miss. 1983).

Petitioner filed a petition for a writ of

habeas corpus in the United States

District Court for the Southern District

of Mississippi, Jackson Division, CA-J83-

0573(B), in August, 1983.

Counsel for Petitioner thereafter

obtained evidence showing that the

State's two alleged eyewitnesses perjured

themselves at the trial. Petitioner

sought and was granted permission to file

a petition for writ of error coram nobis

in the state court based on evidence of

perjury by the only two alleged

eyewitnesses. In re Smith, 457 So. 2d

911 (Miss. 1984). After a hearing in the

Circuit Court of Hinds County, the

petition was denied. On appeal, the

Mississippi Supreme Court unanimously

determined that the two eyewitnesses

perjured themselves at trial. The court

held, however, that the perjured

testimony by the State's only

eyewitnesses was harmless error. Smith

v. State, 492 So. 2d 260, 264-67 (Miss.

1986). In August, 1985, based on

information learned after filing the

petition, Petitioner moved in the

Mississippi Supreme Court for post-

conviction relief on two other issues:

(1) the prosecutor's racially

discriminatory use of peremptory

challenges; and (2) the prosecutor's

failure to produce the police file at or

before trial which would have revealed

exculpatory material, in violation of

Brady v. Maryland, 373 U.S. 83 (1963).

The motion was denied. Smith v. State,

500 So. 2d 973 (Miss. 1986).

In April, 1987, Petitioner filed an

amended petition for writ of habeas

corpus in the District Court pursuant to

28 U.S.C. § 2254. On June 13, 1988,

without argument or an evidentiary

hearing, the District Court denied the

petition. Smith v. Thigpen, 689 F. Supp.

644 (S.D. Miss. 1988). Petitioner's

Motion to Alter or Amend the Judgment was

denied on August 26, 1988. The Fifth

Circuit affirmed the District Court's

decision. Smith v. Black, 904 F.2d 950

(5th Cir. 1990).

On July 30, 1990, Petitioner filed an

application for leave to file a motion to

vacate or set aside the death sentence in

the Mississippi Supreme Court, and

simultaneously filed a motion to defer

proceedings in the Fifth Circuit.

On August 24, 1990, the Fifth Circuit

denied Petitioner's motion to defer

proceedings, suggestion for rehearing en

banc and petition for rehearing. Smith

v. Black, 912 F.2d 1465 (5th Cir. 1990).

Petitioner's application for leave to

file a motion to vacate or set aside the

death sentence is still pending in the

Mississippi Supreme Court. The stay of

execution remains in effect.

REASONS FOR GRANTING THE WRIT

I. THE PROSECUTOR'S USE OF PERJURED

EYEWITNESS TESTIMONY VIOLATED

PETITIONER'S RIGHT TO

DUE PROCESS OF LAW

The court below held that the State's

continued reliance upon perjured

testimony after a witness has credibly

recanted material testimony does not

amount to constitutional error in the

absence of affirmative prosecutorial

misconduct at the time the perjured

testimony was given. Smith, 904 F.2d at

961-962 (A29-34). This holding conflicts

directly with the better reasoned opinion

of the Second Circuit in Sanders v.

Sullivan, 863 F.2d 218 (2d Cir. 1988)

(when material eyewitness testimony is

later credibly recanted, due process is

violated, even where there is no evidence

of prosecutorial misconduct). The

decision below is also inconsistent with

the requirements set forth in Brady v.

Maryland, 373 U.S. 83 (1963), and its

progeny.

A. The Opinion Below Conflicts With

The Better Reasoned Second Circuit

Decision of Sanders v. Sullivan

The court below holds that "for use

of perjured testimony to constitute

constitutional error, the prosecution

must have knowingly used the testimony to

obtain a conviction." Smith, 904 F.2d at

961 (A29). The court, therefore,

declined to set aside either the

conviction or the sentence of death, even

though both were based on the same

perjured testimony. This holding

contradicts Sanders v. Sullivan, 863 F.2d

218, 222 (2d Cir. 1988), in which the

Second Circuit held that despite evidence

of prosecutorial misconduct, a defendant

is denied due process when "a credible

recantation of the testimony in question

would most likely change the outcome of

the trial and a state leaves the

conviction in place."* The Sanders case

2/ This continues to be the established law of

the Second Circuit. See e.g., Sanders v.

Sullivan, 900 F.2d 601, 605 (2d Cir. 1990);

United States v. Bortnovsky, 8/79 F.2d 30, 33

n.4 (2d Cir. 1989); Buitrago v. Scully, 705

F. Supp. 952, 9357 (S.D.N.Y. 1989).

The decisions among the other circuits vary

widely on this issue. Compare Curran v.

Delaware, 259 F.2d 7/07, 713 (3d Cir. 1958),

cert. denied, 358 U.S. 948 (1959); Jones v.

Kentucky, 9/7 F.2d 335, 338 (6th Cir. 1938)

(continued... )

deals only with a conviction and not with

a jury-imposed sentence. The Fifth

Circuit itself explicitly takes note of

the circuit conflict. Smith, 904 F.2d at

962 (A35).

1. Petitioner's conviction was

founded upon material

perjured testimony which

was credibly recanted

Petitioner's case falls squarely

within the area of conflict between the

Second and Fifth Circuits. The perjured

eyewitness testimony can only have had a

great impact upon the outcome of both the

guilt and sentencing phases of

Petitioner's trial. Further, the

credibility of the recantations of Thomas

and Wells has been clearly established.

This is therefore an appropriate case in

2/(...continued)

with Burnett v. Illinois, 619 F.2d 668, 674

(7th Cir.), cert. denied, 449 U.S. 680

(1980); Burks v. Epeler, 512 F.2d 221, 229

(6th Cir.), cert. denied, 423 U.S. 937

(1975).

which to resolve the circuit conflict

outlined above.

Thomas and Wells were the only two

eyewitnesses to testify at Petitioner's

trial. Their testimony had a striking

impact on both Petitioner's conviction

and sentence. Four jurors, during the

process of jury selection, said that they

would not convict the Petitioner in the

absence of eyewitness testimony (E7-28,

39-42). Further, the prosecutor who

tried the case later testified at a

hearing before the trial court that he

could not get a death sentence without

eyewitness testimony (F78-83) .*

3/ Such statements only serve to underscore the

generally accepted principle that eyewitness

testimony has a dramatic effect on the minds

of jurors. See Watkins v. Sowders, 449 U.S.

341, 352 (1981) (Brennan, J. dissenting)

(citing E. Loftus, Eyewitness Testimony at 19

(1979)); see also United States v. Langford,

802 F.2d 1176, 1182 (9th Cir. 1986), cert.

denied, 483 U.S. 1008 (1987); Kampshoff v.

Smith, 698 F.2d 581, 587 (2d Cir. 1983).

i anneal a

This eyewitness testimony is also the

only evidence tying Petitioner to the

scene of the initial abduction of the

victim. Without the perjured testimony

of Thomas and Wells, the only description

of the perpetrator at the Tote-Sum store

is that he was a black male driving a

small red car. Petitioner denied at

trial that he had any involvement in the

crime. Absent the eyewitness testimony,

the trial evidence is consistent with

this position as well as the

participation of one or more other

people. For example, the evidence is

consistent with Edward Charles McDonald's

presence and participation in the

abduction -- indeed, McDonald owned the

"small red car." Moreover, given the

distances and other details of the crime,

the participation of more than one person

in the abduction and murder is likely.

Under the prosecution's theory of the

crime, Smith abducted Mrs. Roberts at

approximately 5 a.m., forced her into the

Pinto, drove the three miles back to his

home in a car that was largely incapable

of high speeds, robbed her, raped her

repeatedly, strangled her, dragged her

body out of the house seventy-five yards

into the woods, and returned to the scene

of the crime within 45 minutes (E103-04,

105-06, 109-10, 116-17; F95-101). Both

the statement of the jurors regarding the

necessity of eyewitness testimony and the

lack of other evidence connecting

Petitioner with the scene of the

abduction make clear that the eyewitness

testimony purporting to establish that

Petitioner abducted Mrs. Roberts from the

Tote-Sum store is highly material to his

conviction, as well as to his sentence.

It is equally clear that this

testimony was credibly recanted by both

Thomas and Wells. The Mississippi

Supreme Court found that the recantations

were sufficient to establish that Thomas

and Wells perjured themselves at trial.

Smith v. State, 492 So. 2d 260, 264

(Miss. 1986).*/ Similarly, the Fifth

Circuit stated that the testimony of

Thomas and Wells "is cast into the

severest doubt by their after-trial

recantations. ..." Smith, 904 F.2d at

962 (A333). A circuit conflict is

4/ The court held that "the evidence adduced at

the [coram nobis] hearing clearly shows one

thing -- Thomas and Wells lied when they made

the in-court identifications of Smith as the

assailant they saw that morning." Id. Judge

Barbour, in turn, held that he did not need

to determine whether Thomas and Wells lied.

Smith, 689 F. Supp. at 657 (C59) ("it is

immaterial whether the identifications were

in fact perjury"). Moreover, federal courts

must presume the correctness of fact findings

by state appellate courts, particularly when

the federal court is reviewing the same

record considered by the state court. Sumner

v. Mata, 449 U.S. 539, 547-49 (1981).

therefore directly presented in this

case.

2. The Sanders decision is better

reasoned, as it focuses upon

fairness to the accused, not

upon prosecutorial culpability

This Court stated in United States v.

Agurs, 427 U.S. 97, 110 (1976), that the

correct focus in suppression of evidence

cases is upon "the character of the

evidence, not the character of the

prosecutor." The Court made a similar

statement in Brady v. Maryland, 373 U.S.

83, 87 (1963) (focus is upon the

materiality of the evidence suppressed).

Further, both Agurs and Brady

explicitly hold that the level of

culpability of the prosecutor is

irrelevant in determining whether there

has been a due process violation. See

Agurs, 427 U.S. at 110 ("{n]Jor do we

believe the constitutional obligation is

measured by the moral culpability or the

willfulness of the prosecutor"); Brady,

373 U.S. at 87 (suppression violates due

process "irrespective of the good faith

or bad faith of the prosecution"). In

fact, Brady construes Mooney v. Holohan,

294 U.S. 103 (1935), the primary case

relied upon by the Fifth Circuit, as

holding that prosecutorial misconduct is

irrelevant to the determination of a due

process violation. The Brady Court

stated that "[t]he principle of Mooney v.

Holohan is not punishment of society for

misdeeds of a prosecutor but avoidance of

an unfair trial to the accused." 373

U.S. at 87. This statement indicates the

Court's previous determination that the

use of material perjured testimony

constitutes a violation in the absence of

prosecutorial misconduct.

5/ Other courts and commentators apree. See,

: . oo: @ o ? re ,r4

€ a ’ Sande rs is Sul L1Van, oA) 4 _ Zd LLO ZL4

Moreover, whatever its utility,

proving prosecutorial misconduct is

extraordinarily difficult. Absent a

prosecutor's admission that he knowingly

used perjured testimony, circumstantial

evidence must be used to rebut the pros-

ecutor's claims of his own innocence. *

Further, the line between prosecutorial

involvement and innocence in the subor-

nation of perjury is not always clear.

One commentator argues that incentives to

5/(...continued)

(2d Cir. 1988); Jones v. Kentucky, 97 F.2d

335, 338 (6th Cir. 1938); Riley v. State, 93

Nev. 461, 567 P.2d 475, 476 (Nev. 1977);

Comment, Rethinking the Standard for New

Trial Motions Based Upon Recantations as

Newly Discovered Evidence, 134 U. Pa. L. Rev.

1433, 1447-49 (1986); Note, I Cannot Tell a

Lie: The Standard for New Trial in False

Testimony Cases, 83 Mich. L. Rev. 1925, 1934

(1985) (hereinafter "False Testimony");

Carlson, False or Suppressed Evidence: Why a

Need for the Prosecutorial Tie?, 1969 Duke

L.J. 1171, 1187; Murray, Convictions Obtained

by Perjured Testimony: A Comparative Review,

27 Ohio State L. J. 102, 106 (1966).

See Carlson at 1185; Murray at 107.

testify, while apparently innocent offers

by the prosecutor, may encourage the use

of perjured testimony.”

3. The rationales for requiring

evidence of prosecutorial

misconduct are unconvincing

The two primary arguments against

applying due process principles to

instances of perjury in the absence of

prosecutorial misconduct -- that the

unknowing use of perjury by the

prosecution does not constitute "state

action" and that such a rule would

undermine the finality of convictions --

are not persuasive.

Whatever the knowledge of the

prosecution at the time of trial, the

Mississippi Supreme Court has found that

perjury occurred at Petitioner's trial.

The State is thus on notice that it

tried, convicted, continues to

i See False Testimony at 1942-43.

incarcerate and plans to execute a man

whose conviction and sentence are based

on perjured eyewitness testimony. As it

has been established that state

complacency in the face of clear

injustice can fulfill the state action

requirement, Baker v. Carr, 369 U.S. 186

(1962); Cuyler v. Sullivan, 446 U.S. 335

(1980), there is ample evidence on this

record to find that the state action

requirement has been met.

With respect to the finality of

judgments, it must be remembered that

before a conviction can be overturned,

evidence of perjury must be convincingly

presented. Moreover, the perjury in

question must be material in order for a

court to find a constitutional error.

8 / See Durley v. Mayo, 351 U.S. 277, 291 (1956)

(Douglas, J., dissenting); Sanders, 863 F.2d

at 224. The commentators agree. See, e.g.,

Murray at 106.

Thus, including all perjury within the

ambit of due process protection would

have only a slight impact upon the

finality of judgments. Sanders, 863 F.2d

at 225.

B. The Prosecutor's Negligent Use Of

Material, Perjured Eyewitness

Testimony Violated Due Process

1. The Fifth Circuit's reliance

upon Mooney to justify its

refusal to correct the due

process violation in this

case is inappropriate

In the opinion below, the court cited

Mooney for the proposition that in order

"for use of perjured testimony to

constitute constitutional error, the

prosecution must have knowingly used the

testimony to obtain a conviction."

Smith, 904 F.2d at 961 (A229). However,

this interpretation of the holding in

Mooney is inaccurate. In Mooney, the

Court held that due process was violated

when a prosecutor knowingly used perjured

testimony. However, nothing in the

Mooney decision limits the holding to the

intentional use of perjury. The opinion

does not mention the unintentional use of

perjured testimony because such a

situation was not presented. In fact,

the Court stated, in sweeping language,

that due process "in safeguarding the

liberty of the citizen against

deprivation through the action of the

State, embodies the fundamental

conceptions of justice which lie at the

base of our civil and political

institutions." Mooney, 294 U.S. at 112.

Further, courts which limit Mooney to

cases of prosecutorial knowledge of

perjury generally do so without

articulating their reasons. This is

particularly true of the opinions of the

Fifth Circuit.* Those opinions that

have justified the Mooney "rule" have

relied upon those rationales discussed

and criticized supra Point I.A.3. See,

e.g., Burks v. Egeler, 512 F.2d 221, 229

(6th Cir.), cert. denied, 423 U.S. 937

(1975). Thus, the Mooney decision does

not provide a strong basis for the Fifth

Circuit's rule limiting due process

relief to cases of intentional use of

perjury.

2. A refusal to afford due process

relief when perjured testimony

has been negligently used

creates an explicit conflict

with Brady and its progeny

The line of cases starting with Brady

adopt a sliding scale approach to the

issue of what level of prosecutorial

9/ See, e.g., Hawkins v. Lynaugh, 844 F.2d 1132,

1141 (5th Cir.), cert. denied, 483 U.S. 900

(1988); Braxton v. Estelle, 641 F.2d 392, 395

(5th Cir. Unit A 1981); Skipper v.

Wainwright, 598 F.2d 425, 427 (5th Cir.)(per

curiam), cert. denied, 444 U.S. 974 (1979).

culpability is necessary to make out a

valid due process claim. These cases

hold that as the materiality of improper

evidence increases, the scienter

requirement decreases.** Thus, in the

context of suppressed evidence, courts

have held that negligent conduct may give

rise to a due process violation.

Moreover, the Brady line of cases has

implicitly held that Mooney should be

interpreted as applying a negligence

standard, stating that "[t]jhe principle

of Mooney v. Holohan is not punishment of

society for misdeeds of a prosecutor but

avoidance of an unfair trial to the

accused." Brady, 373 U.S. at 87.

As the Brady opinion indicates, the

Brady doctrine itself springs from the

O/ See United States v. Bagley, 4/73 U.S. 66/7

(1985); United States v. Agurs, 42/7 U.S. 9/7

(1976); Giglio v. United States, 405 U.S. 150

(1972).

Mooney decision. In fact, the Court has

construed the use of perjured testimony

as being encompassed by the Brady

doctrine because Mooney, like Brady,

addresses the problem of the submission

of improper evidence to the jury. The

Court has therefore held that the use of

perjured testimony comprises one of the

"tests" under the Brady line. See United

States v. Agurs, 427 U.S. 97, 103-04

(1976).

None of the cases in the Brady line

address why the negligent use of perjured

testimony should be different from, for

example, negligently suppressed evidence.

Therefore, cases that limit Mooney's

holding to the Knowing use of perjured

testimony fail to confront what amounts

to a gap or inconsistency in the law

governing prosecutorial misconduct.

Moreover, several courts have recognized

that the Brady line of cases reflects

this Court's belief that the withholding

of exculpatory or impeachment evidence is

just another variation on the use of

perjured testimony to obtain a

conviction.2+

3. The prosecution negligently

used perjured eyewitness

testimony to obtain both a

conviction and a jury-imposed

sentence of death

Circumstantial evidence that the

prosecutor at Petitioner's trial did

actually know that the only two eye-

witnesses were lying is overwhelming.”

11/ See Shuler v. Wainwright, 491 F.2d 1213, 1220

n.22 (5th Cir. 1974); Jackson v. Wainwright,

390 F.2d 288, 295 (5th Cir. 1968); see also

United States v. Bagley, 473 U.S. 667, 678-80

(1985) (citing Agurs).

(1) The pictures from which Thomas and

Wells ultimately identified the

Petitioner had the Petitioner's name

on the back (F115-22);

(2) Thomas' and Wells' trial testimony was

inconsistent with their prior

knowledge, recorded on at least four

(continued... )

12/(...continued)

(3)

(4)

(5)

(6)

separate occasions: the radio

broadcast, their signed statements,

the failed lineup, and interviews by

Petitioner's relatives (E/4-77, 82-83;

F56-60, 87-90, 110-14, 133-35, 145-

50) ;

Thomas and Wells repeatedly stated to

police and prosecutors that they did

not get a good enough look at the

perpetrator to identify him (F1-9, 67-

71, 130-32, 136-38);

Wells was not given a chance to

identify Petitioner at the failed

lineup because the district attorney

elected not to ask him to pick out the

perpetrator after Thomas had failed to

identify the Petitioner (E84-85; F136-

38);

by the time Thomas and Wells finally

identified Petitioner, his name and

face had appeared frequently in the

local media (El-6, 29-30, 31-34, 35-

38) ;

at the time of his sudden realization

that he could identify Petitioner,

Thomas was a police informant on 22

years probation for armed robbery,

making him peculiarly susceptible to

prosecutorial pressure (E56-57; F/2-

14, 139-44);

the police report reflects that the

police officer whose written report

contained Thomas' and Wells' "detailed

(continued... )

Moreover, there was direct evidence that

the prosecutor was willing to mislead the

jury through false testimony if it would

bolster the State's case.+* These facts

demonstrate that whether or not

Petitioner met the Fifth Circuit's test

12/(...continued)

observations" of the perpetrator and

his vehicle failed to convey those

observations when he broadcast a

description of the alleged perpetrator

and vehicle immediately after speaking

with Thomas and Wells (F145-50) (This

report was not available to

Petitioner's trial counsel. (See

Smith, 904 F.2d at 965 (A48))); and

(8) Petitioner was dressed in a blue

prison uniform at the time he was

identified in court (E/2-73).

While all of the material listed above was

known to the prosecutors, only points "(5)"

and "(8)" were known to the jury.

The prosecutor allowed Wells to testify that

he had been left alone to review Petitioner's

photograph (E86-8/7), and even argued this

point in his closing argument in support of

Wells' credibility (E118-20), although the

investigating officer, Bartlett, who was

present in the courtroom at the time of

Wells' testimony, testified that this was not

true (E62-63, 78-81: F115-29).

for establishing prosecutorial knowledge,

he certainly established that the

prosecutor negligently used perjured

testimony, and his due process rights

were accordingly and undeniably violated.

There is simply no justification for

simultaneously applying a negligence

standard to the suppression of evidence

and a knowledge standard to the use of

perjured testimony. Petitioner submits

that this anomaly has been created by

historical accident and respectfully

suggests that the Court grant certiorari

to determine that the negligent use of

perjured testimony constitutes a

violation of due process of law.

II. THE FIFTH CIRCUIT ERRED IN FAILING TO

REVIEW THE UNCONSTITUTIONAL USE OF

THE "ESPECIALLY HEINOUS, ATROCIOUS OR

CRUEL" AGGRAVATING CIRCUMSTANCE

The jury at Petitioner's trial was

charged that it had to find at least one

of the following three aggravating

circumstances beyond a reasonable doubt:

(1) the murder was committed during a

robbery; (2) the murder was committed for

pecuniary gain; or (3) the murder was

"especially heinous, atrocious or cruel."

It was not given any instruction

explaining or limiting the term "heinous,

atrocious or cruel." (E121-27).

The jury was instructed that it could

only sentence Petitioner to death if it

found beyond a reasonable doubt that the

accumulated aggravating circumstances

outweighed the mitigating evidence.

On direct appeal, the Mississippi

Supreme Court found no error in the trial

court's instruction submitting "heinous,

atrocious or cruel" to the jury without

any limitation. The Mississippi Supreme

Court, therefore, never reached the

question of whether the sentence of death

was invalid because this jury instruction

violated Godfrey v. Georgia, 446 U.S. 420

(1980). Smith, 419 So. 2d at 568. The

Mississippi Supreme Court should

therefore be given the opportunity to

address this issue, and the Fifth

Circuit's failure to give it the

opportunity to do so is a violation of

the principles of both comity and due

process.

In Clemons v. Mississippi, U.S.

__, 110 &. Ct. 1441 (1990), this Court

upheld the proposition that even in a

"weighing" State like Mississippi, it is

constitutionally permissible for an

appellate court (as opposed to a jury) to

reweigh the aggravating and mitigating

circumstances where a jury-imposed death

sentence is based in part on an invalid

aggravating circumstance. Nevertheless,

the Court remanded Clemons to the

Mississippi Supreme Court, because it

found that the opinion under review could

be read as creating an "automatic" rule

that, when an aggravating circumstance

relied upon by the jury has been

invalidated, the sentence may be affirmed

as long as there remains one valid and

undisturbed aggravating circumstance.

The Court stated that such an automatic

affirmance rule in a weighing state would

be invalid under Lockett v. Ohio, 438

U.S. 586 (1978), and Eddings v. Oklahoma,

455 U.S. 104 (1982), for it would not

give defendants the necessary

individualized treatment that would

resuit from actual reweighing.

The Fifth Circuit's opinion in the

present matter holds subject to the non-

retroactivity principle announced in

Teague v. Lane, 489 U.S. 288, 109 S. Ct.

1060 (1989), that portion of this Court's

Clemons opinion which states that an

automatic affirmance rule in a weighing

state would be invalid under Lockett and

Eddings.+” The Fifth Circuit therefore

found that it was not necessary to

address the fact that Petitioner's jury

was allowed to consider the unlimited

aggravating circumstance, "especially

heinous, atrocious or cruel," which this

Court held unconstitutionally vague in

Maynard v. Cartwright, 486 U.S. 356

(1988)-.2/

14/ This Court denied petitioner's application

for a writ of certiorari to review the

Mississippi Supreme Court's denial of his

direct appeal on March 21, 1983. See Smith

v. State, 419 So. 2d 563 (Miss. 1982), cert.

denied, 460 U.S. 1047 (1983). Petitioner is

therefore entitied to rely on Lockett and

Eddings.

15/ Petitioner continues to maintain that Maynard

is available to him because the result was

"controlled" by Godfrey. See Davis v.

Maynard, 911 F.2d 415, 418 (10th Cir. 1!

Newlon v. Armontrout, 885 F.2d 1328, 13

(8th Cir. 1989), cert. denied, U.S. _-_

110 S. Ct. 3301 (1990). The Fifth Circuit

= or san al

(conctinuecd..

This holding fails to take account of

pre-Clemons state law, and is also in

direct conflict with both the letter and

spirit of the Clemons opinion. Moreover,

it fails to address the fact that

virtually all of the evidence presented

by the prosecution during the sentencing

hearing was admissible solely in support

of the unconstitutional aggravating

circumstance, "especially heinous,

atrocious or cruel." Further, as two

recent decisions of this Court make

clear, this portion of Clemons

constitutes an exception to Teague v.

Lane. Finally, the Fifth Circuit erred

in raising the Teague issue sua sponte;

Respondent can and has intentionally

waived the non-retroactivity defense.

15/(...continued)

did not address this issue See Smith, 904

r ( * a 4 Oe a

dv —* 4 2 . O88 cok

r ~ < G a 4 is 4 ( coe ' 44 ,

A. The Fifth Circuit Is In Direct

Conflict With The Mississippi

Supreme Court's Ruling In

Johnson III

1. Johnson III is the law in

Mississippi

The Fifth Circuit's holding that this

Court made "new law" in Clemons when it

noted the invalidity of an "automatic

affirmance" rule, is predicated upon

prior Fifth Circuit case law. That prior

Fifth Circuit case law includes, "most

recently," Stringer v. Jackson, 862 F.2d

1108 (5th Cir. 1988), vacated and

remanded, £U.S. __, 110 S. Ct. 1800

(1990), “recognizing the Mississippi

practice of sustaining verdicts when

supported by at least one valid

aggravating circumstance." Smith, 904

F.2d at 984 (A146-47). The Fifth

Circuit's reliance on Stringer was

erroneous.

In a more recent Mississippi Supreme

Court case, Johnson v. State, 547 So. 2d

59 (Miss. 1989) (en banc) (Johnson IIT),

the Mississippi Supreme Court made clear

that Stringer had misapprehended

Mississippi law, or, at least, that

Mississippi law has changed since

16/

Stringer. Specifically, the

Mississippi Supreme Court in Johnson III

held that, in light of this Court's

decision in Johnson v. Mississippi, 486

U.S. 578 (1988), invalidating one of

several aggravating circumstances:

There are two courses open to this

Court: (1) remand this cause to the

circuit court of Pike County for

another sentencing hearing, or (2)

16/ Petitioner has repeatedly argued that

Stringer, which preceded both Johnson III and

Clemons v. State, 535 So. 2d 1354 (Miss.

1988), misapprehended Mississippi law, and

that a much more logical reading of the pre-

Johnson Mississippi cases is that the

presence of a valid aggravating circumstance

may, but, depending upon the individual

circumstances, need not, save an invalid

aggravating circumstance.

make the decision ourselves as to

wheth2r to reimpose the death penalty

or reduce Johnson's sentence to life

because of the invalidation of this

aggravating circumstance which was

considered by the original trial

jury.

Johnson III, 547 So. 2d at 59-60.

Neither of these "two courses" is an

automatic affirmance. Moreover, the

Mississippi Supreme Court chose the

course of remanding for a new sentencing

hearing.

Indeed, when the "automatic

affirmance" issue was raised during oral

argument before this Court in Clemons,

counsel for the State of Mississippi --

the very same counsel who represents the

Respondents in this case -- argued

repeatedly that Mississippi has no "flat,

automatic rule":

THE COURT: Does it [Mississippi]

have just a flat, automatic rule, so

long aS one aggravating circumstance

remains, it will affirm a death

penalty?

MR. WHITE: No, Your Honor.

THE COURT: No?

MR. WHITE: That has been most

recently graphically pointed out in

the remand in Johnson v. Mississippi.

THE COURT: But does it have an

automatic rule that if there are two

aggravating circumstances, and one

drops out, that it will affirm --

MR. WHITE: No, I don't think there

is any automatic rule in effect

here. .. .4

Because Johnson III made clear even

prior to Clemons that, whatever

Mississippi's pre-Stringer redemptive

practice may have been, Mississippi's

current practice is not to rely upon an

"automatic affirmance," under the Erie

doctrine the Fifth Circuit should have

applied Johnson III regardless of whether

Clemons is "new law" as compared with

See Transcript of oral argument in Clemons,

at 22-23 (emphasis added) (D1-5).

Stringer.+* Petitioner should not be

deprived the benefit of Johnson III

Simply because a federal court applying

earlier ambiguous state court rulings

incorrectly interpreted those state court

rulings to require a result subsequently

held unconstitutional .*

2. A change in state law does

not implicate Teague v. Lane

concerns

Clearly, a decision of the

Mississippi Supreme Court which either

changes or clarifies existing state law

cannot impose a new obligation upon

Mississippi, and therefore be subject to

the non-retroactivity rule of Teague v.

18/ See Erie Railroad Co. v. Tompkins, 304 U.S.

64 (1938); see also Lindley v. Hamilton, 883

F.2d 360, -362-63 (5th Cir. 1989); Muniz v

Procunier, 760 F.2d 588, 589-90 (Sth Cir.),

cert. denied, 474 U.S. 934 (1985).

19/ This Court in Clemons made no specitic

finding regarding the status of Mississippi

law. Clemons, U.S. at -_, £20 5. Ct. at

450.

Lane -- Mississippi has imposed any such

new obligation upon itself. The due

respect for comity which is the rationale

underlying Teague therefore requires a

result directly opposite from the result

obtained by ignoring Johnson III. Put

another way, a change in state law does

not implicate Teague v. Lane concerns. A

due respect for comity requires that the

Mississippi Supreme Court be given the

opportunity to take appropriate action

under current Mississippi law.”

B. Mississippi Specifically

Permits. Habeas Petitioners

To Rely On "New Law"

The Mississippi legislature has

legislated a result directly contrary to

Teague in its Post-Conviction Collateral

Relief Act, under which specifically

20/ See Maynard v. Cartwright, 486 U.S. 4356, 365

(1988):;. Zant v. Stephens, 456 U.S. 410

(1982): Selvapge v. Collins, 89/7 F.2d 745 (5th

Cir. 1990); Muniz, 760 F.2d at 589-90.

"excepted from [the prohibition on

successive petitions] are those cases in

which the prisoner can demonstrate either

that there has been an intervening

decision of the supreme court of either

the state of Mississippi or the United

States which would have actually

adversely affected the outcome of his

conviction or sentence .. ." Miss. Code

Ann. § 99-39-27(9) (Supp. 1988). See

also Miss. Code Ann. § 99-39-23(6) (Supp.

1988). It is manifestly the case that

the Mississippi legislature may choose a

different rule than that promulgated in

Teague. See Collins v. Youngblood,

U.S. , 110 S. Ct. 2715, 2718 (1990)

(Teague is not jurisdictional).

Obviously, the "intervening decision

of the supreme court of . . . the United

States" in Clemons v. Mississippi, and of

the Mississippi Supreme Court in Johnson

III, “actually adversely affect the

outcome of [Petitioner's]...

sentence." Therefore, under Mississippi

law Petitioner is entitled to rely on

Johnson III and Clemons notwithstanding

the non-retroactivity principle announced

21/

in Teague v. Lane.

Cc. Clemons Did Not Announce

A New Rule

1. The right to individualized

treatment is settled law

At the outset, it is critical to

recognize that the issue accepted for

review in Clemons v. Mississippi --

"(djoes the Eighth Amendment permit an

appellate court to save a sentence of

death by reweighing aggravating and

mitigating factors where the authority

21/ See Neal v, State, 525 So. 2d 12/9, 1288

(Miss. 1987) (applying intervening decision

Billiot v. State, 515 So. 2d 1234 (Miss.

1987. (same); Johnson v. State, 508 So. 2d

1126, 1128 (Miss. 1987) (same); Irving v.

State, 498 So. 2d 305, 315 (Miss. 1986)

(same), cert. denied, 481 U.S. 1042 (19%

for capital sentencing under state law

rests exclusively with the jury?" --

necessarily assumes that the State in

Clemons did not apply an "automatic

affirmance" rule. Indeed, as noted

above, when the "automatic affirmance"

issue was raised during oral argument

before the United States Supreme Court in

Clemons, counsel for the State of

Mississippi repeatedly argued that

Mississippi has no "flat, automatic

rule."

This history is important, because it

puts in context this Court's reference in

Clemons -- a post-Teague case -- to the

invalidity of an “automatic affirmance"

rule. Without fanfare, the Court simply

observed that requiring individualized

weighing of all mitigating factors and

valid aggravating circumstances was

mandated by, and has been settled law

since Lockett v. Ohio, 438 U.S. 586

(1978), and Eddings v. Oklahoma, 455 U.S.

104 (1982) .%

Indeed, this Court plainly recognized

that the invalidity cof an automatic

affirmance rule is unaffected by Teague

in Stringer v. Black, U.S. ke

S. Ct. 1800 (1990), when it granted the

writ of certiorari, vacated the Fifth

Circuit's judgment in Stringer v.

Jackson, 862 F.2d 1108 (5th Cir. 1988),

and remanded Stringer for reconsideration

in light of Clemons. See also Hill v.

Black, “eS . 211-8. Ce. 98 (1990)

(remanding to Fifth Circuit for

reconsideration in light of Clemons

despite argument by the State that

Clemons was held non-retroactive in Smith

v. Black). Logically, had there been a

See Clemons. U.S. at 110 8. Ct. at

retroactivity problem with Clemons, this

Court would have either denied the writ

of certiorari, or, at a minimum, remanded

with specific instructions to consider

the Teague issue.

2. Under the central principle of

Clemons this case should be

remanded to the

Mississippi Supreme Court

Clemons is only important to the

present litigation because the

Mississippi Supreme Court in Smith v.

State’ erred in finding no Godfrey»

violation in the use of the "especially

heinous, atrocious or cruel" aggravating

circumstance,’ and accordingly made no

23/ See Zant v. Moore, 489 U.S. 836 (1989).

Alternatively, the Supreme Court's remand in

Stringer must evidence the Court's view that

a state may waive the Teague v. Lane defense.

See Point II1.E.

<4 419 So. 2d 563 (Miss. 1982)

257 See Godfrey v. Georgia, 446 U.S 620 (1980

26 See Maynard v. Cartwright, 486 U.S 36

(1988).

iene

effort to determine the validity of

Petitioner's death sentence in light of

that violation. See Smith, 419 So. 2d at

568, 574. Therefore, under the central

principle in Clemons, the Fifth Circuit

should have given the Supreme Court of

Mississippi the opportunity to decide, in

the first instance, whether Petitioner's

death sentence should be carried out

despite the invalidity of one of its

aggravating circumstances. 2

Clearly,

granting the Mississippi Supreme Court

the opportunity to clarify and apply its

appellate review procedures after a

finding of constitutional error, as this

a |

see Clemons, U.S. at.., 110 S. Ct. at

1451. See also Maynard v. Cartwright, 486

U.S. 356, 365 (1988); Zant v. Stephens, 456

U.S. 410 (1982); Selvage v. Collins, 897 F.2d

745 (Sth Cir. 1990); De La Rosa v. Lynaugh,

817 F.2d 259, 268 n.17 (5th Cir. 1987) ("The

process by which the state elects, or is

required by law, to reform De La Rosa's

sentence is a matter of state law").

Court did in Clemons, cannot implicate

Teague v. Lane concerns. "2°

-Moreover, even assuming arguendo that

there was a change in Mississippi law

caused by Clemons v. Mississippi, that

change was not of the type contemplated

by Teague. The constitutional error in

Clemons was that the jury relied upon a

vague aggravating circumstance, in

violation of the Eighth Amendment as

interpreted in Godfrey v. Georgia, 446

U.S. 420 (1980). The alleged automatic

affirmance rule was an attempt by the

28/ Alternatively, the Fifth Circuit should have

certified the following two questions to the

Mississippi Supreme Court: (1) did Johnson

ill and/or Clemons v. Mississippi represent

(in the case of Johnson III) and/or require

(in “he case of Clemons) a change in

Mississippi law with respect to the effect of

an invalid aggravating circumstance; and (2)

if Johnson III and/or Clemons did

represent/require a change in Mississippi

law, does Mississippi law nevertheless

entitle a habeas defendant to rely upon that

new law? See Selvage v. Collins, 897 F.2d

745 (5th Cir. 1990); see also supra note 21.

appellate court to cure the Godfrey

error. Again, the interest in comity

which underlies Teague is not violated by

giving a state the opportunity to clarify

and apply its appellate review procedures

after a finding of constitutional error.

D. Clemons Constitutes An

Exception To Teague v. Lane

Petitioner submits that the portion

of Clemons on which he relies implicates

bedrock procedural elements crucial to

the accuracy of the determination of

whether Petitioner should have been

sentenced to death. Indeed, virtually

all of the evidence presented by the

prosecution during the sentencing hearing

-- including the evidence of rape’

29/ This rape charge was utterly unexpected. The

indictment charged robbery-murder. It did

not charge rape, although rape-murder is a

capital crime. At no time in the voir dire

or in the guilt phase did the prosecutor

claim that Petitioner raped the victim.

Indeed, the prosecutor carefully avoided any

(continued... )

was admissible solely in support of the

unconstitutional aggravating

circumstance. This portion of Clemons

therefore constitutes an exception to

Teague v. Lane.=/

Indeed, both Maynard and Clemons

implicate the most fundamental rule of

Eighth Amendment jurisprudence: capital

sentencing procedures must "provide a

‘meaningful basis for distinguishing the

few cases in which [the death penalty] is

imposed from the many cases in which it

is not.'" Godfrey, 446 U.S. 420, 427

29/(...continued)

such claim because, as he candidly admitted,

he could not prove rape. (E1l11-15). Ali

reticence disappeared, however, at the

sentencing hearing.

30/ See Teague, 489 U.S. at 307, 311-16; see also

pattia Vv. Fares, U:3.~ ., £50 S. Ce.

1257, 1263 (1990) ("watershed rules of

criminal procedure implicating the

fundamental fairness and accuracy of the

criminal proceeding" are applied

retroactively despite their novelty).

(1980) (quoting Furman v. Georgia, 408

U.S. 238, 313 (1972)).

In Lewis v. Jeffers, u.S8. "3

110 S. Ct. 3092 (1990), decided after the

Fifth Circuit issued its opinion, this

Court stated:

Our capital punishment doctrine is

rooted in the principle that "'[t]he

Eighth and Fourteenth Amendments

cannot tolerate the infliction of a

sentence of death under legal systems

that permit this unique penalty to be

wantonly and. . . freakishly

imposed'" . . . . “where discretion

is afforded a sentencing body on a

matter so grave as the determination

of whether a human life should be

taken or spared, that discretion must

be suitably directed and limited so

as to minimize the risk of wholly

arbitrary and capricious action."

This principle requires a State to

"channel the sentencer's discretion

by 'clear and objective standards'

that provide 'specific and detailed

guidance,' and that 'make rationally

reviewable the process for imposing a

sentence of death.'"

Jeffers, U.S. at » £26 8. CS. Ot

3099 (citations omitted).

In Walton v. Arizona, U.S. ;

110 S. Ct. 3047 (1990), also decided

after the Fifth Circuit issued its

opinion in the present case, Justice

Scalia underlined the centrality of the

principle of limited discretion in

capital sentencing:

[W]e have routinely read Furman as

standing for the proposition that

"Channeling and limiting . .. the

sentencer's discretion in imposing

the death penalty" is a "fundamental

constitutional requirement," Maynard

v. Cartwright, 486 U.S. 356, 382

(1988), and have insisted that States

furnish the sentencer with "'clear

and objective standards' that provide

‘specific and detailed guidance,' and

that 'make rationally reviewable the

process for imposing a sentence of

death.'"

Walton, U.S. at , a0 SB. Ce. af

3060-61 (Scalia, J., concurring).

This Court could not send a clearer

Signal that the Godfrey/Maynard/Clemons

line of cases, which enforces the central

principle of Eighth Amendment

jurisprudence, implicates bedrock

procedural elements which must be applied

on habeas review of death sentences.

E. Respondent Has Waived

Any Teague v. Lane Argument

Respondent's brief to the Fifth

Circuit discussed neither the

retroactivity of Maynard nor the Teague

decision, though it post-dated both.

Further, in a supplemental brief filed

this spring, after Clemons, Respondent

again failed to mention Teague or to

suggest that there was any question

regarding the retroactivity of Maynard or

Clemons. Respondent has therefore waived

its right to rely on the Teague doctrine

31/

in this case. The only two circuits

to embrace the idea that Teague may be

See Collins v. Youngblood, — U.S. __, 110

S. Ct. 2715, 2718 (1990); Hanrahan v. Greer,

896 F.2d 241, 245 (7th Cir. 1990); see also

Mayo v. Lynaugh, 893 F.2d 683, 686-87 (5th

Cir. 1990) (state waived issue of procedural

default by waiting until filing of petition

for rehearing to raise the claim).

"thy

raised sua sponte do so either without

careful reasoning or for reasons that are

inapplicable here.** In the year that

has passed since these decisions, the

Teague doctrine has become sufficiently

well established that Respondent has

waived the issue by failing to raise it.

Moreover, in both Stringer and

Clemons, Respondent argued that

Mississippi had been performing a

reweighing/harmless error analysis as a

matter of Mississippi law. Accordingly,

Respondent should be barred from

asserting that Maynard and Clemons

constitute new rules in Mississippi under

the doctrine of judicial estoppel, which

bars a party from advocating a position

in one forum that is contrary to a

32/ See Hill v. McMackin, 893 F.2d 810, 813 (6th

Cir. 1989) (no reason given); Hopkinson vy

Shillinger, 888 F.2d 1286, 1288 (10th Cir.

1989), cert. denied, B.S. 4 | Pee Be OK

3256 (1990) (Teague still novel).

position it asserted in a different

forum. See, e.g., USLIFE Corp. v. United

States Life Ins. Co., 560 F. Supp. 1302,

1305 (N.D. Tex. 1983).

Even before his direct appeal became

final, it was unconstitutional under

Godfrey for Petitioner's jury to have

received a naked “especially heinous,

atrocious or cruel" instruction. See

Davis v. Maynard, 911 F.2d 415, 418 (10th

Cir. 1990); Newlon v. Armontrout, 885

F.2d 1328, 1333 (8th Cir. 1989), cert.

denied, _-'U.S. _—, 110 S. Ct. 3301

(1990). Moreover, Mississippi itself has

made clear that it has no “automatic

affirmance" rule. Petitioner, therefore,

suggests that the Court grant certiorari

to determine that Johnson III and Clemons

are not subject to Teague v. Lane, or at

least that the Mississippi Supreme Court

should be given the first opportunity to

decide how best to cure the Godfrey error

at Petitioner's trial.

CONCLUSION

For all the reasons set forth above,

the petition for certiorari. should be

granted.

January 22,

Respectfully submitted,

Bruce D. Angiolillo

Counsel of Record

John J. Kenney

David E. Massengill

SIMPSON THACHER & BARTLETT

(a partnership which includes

professional corporations)

425 Lexington Avenue

New York, New York 10017-3909

(212) 455-2000

Counsel for Petitioner

Willie Albert Smith

1991

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