# Petition for Writ of Certiorari — Smith v. Black

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 930

## Text

90-1164¢

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

ii

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?

iv

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.

Vi

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
a

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

45

45

49

50

52

52

55

58

62

65

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

ix

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%

63

52

36

46

52

45-49
57, 64

20, 28
22

60

49

xi

Mayo v. Lynaugh, 893 F.2d 683

er
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:

29
31

20

36

57

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,

28

28

30

29

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).

10

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.

xa

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

12

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

13

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

14

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

16

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

py

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

18

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

i9

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

20

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... )

21

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).

22

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

23

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.

24

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.

25

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).

26

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

27

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

28

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.

29

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.

30

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.

31

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

32

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).

34

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).

35

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

36

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... )

37

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... )

38

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.

Io
i

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).

39

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

40

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

41

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

42

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

43

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..

44

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 ,

45

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.

46

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.

47

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?

48

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,

2

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

49

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.

50

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.

7s

"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

52

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%

53

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

54

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

55

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

56

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

ke
a |
r.

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").

57

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.

58

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... )

59

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).

60

(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).

61

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

62

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

63

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).

64

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

sr

65

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1008%3A1. Public record. Not legal advice.