Opposition Brief — Smith v. Black

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NO. 90-1164 a ee |

— OLFICE OF THE CLERK

Inu The Supreme Court of the United States

October Cerm, 1990

7 oe

WILLIE ALBERT SMITH

PETITIONER

VERSUS

LEE ROY BLACK, COMMISSIONER,

MISSISSIPPI DEPARTMENT OF CORRECTIONS

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF MISSISSIPPI

BRIEF IN OPPOSITION :

MIKE MOORE

ATTORNEY GENERAL

STATE OF MISSISSIPPI

MARVIN L. WHITE. JR.

ASSISTANT ATTORNEY GENERAL

COUNSEL OF RECORD

CHARLENE R. PIERCE

SPECIAL ASSISTANT ATTORNEY GENERAL

POST OFFICE BOX 220

JACKSON. MISSISSIPPI 39205

TELEPHONE: (601) 359 3680

)

OFFICE OF THE ATTORNEY GENERAL

COUNSEL FOR RESPONDENT

Il.

QUESTION PRESENTED

Where Petitioner's Due Process:

Rights Were Not Violated By The

Use Of The Testimony of Thomas

And Wells Certiorari Should Be

Denied.

Where The Court Below Correctly

Decided That Clemons _v. Mississippi

Created A New Rule That Will Not Be

Applied To Cases On Habeas Review

Certiorari Should Be Denied.

TABLE OF CONTENTS

QUESTION PRESENTED ....++ « «

TABLE OF CONTENTS ....+ + « «

TABLE OF AUTHORITIES .....

INTRODUCTION . . . «© « «© «© «© © © «© «

OPINION BELOW .... + « © «© «© « «

JURISDICTION .... .

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .. .

STATEMENT OF THE CASE ..... -«

Procedural History ......

Statement of Facts ......

REASONS FOR DENYING THE WRIT .

ARGUMENT ... +6 © © «© © « «

Where Petitioner's Due Process

Rights Were Not Violated By The

Use Of The Testimony of Thomas

And Wells Certiorari Should Be

DemnsieG.-+ « «6 tS Ow we Se we

II. Where The Court Below Correctly

Decided That Clemons _v. Mississippi

Created A New Rule That Wiil Not Be

Applied To Cases On Habeas Review

Certiorari Should Be Denied. os ae

(re Fo -« « « @ «@ «© wo ew elt

rr neces Gee SWAG «© «© «© 6 ee lle 56

iii

TABLE OF A RITIE

CASES PAGE

Brady v. Maryland, , 373 U.S. 667

> a ae en oe ee ee a

Burks v. Egeler, 512 F.2d 221, 229 (6th

Cir.), cert. denied, 423 U.S.

Ber COUPE ale ew ee et tl hl whl ehCUM

Butler v. McKeller, 494 U.S. ,» &k@

5. te. , 108 L.Ed.2d

SO? (1990) «2 «© =» «© © « J, 36, 44

Clemons v. Mississippi, 494 U.S. » £a8

S.Ct. 1441, 108 L.Ed.2d 725

(1990) .... 30, 35, 36, 44-50, 54

Clemons v. State, 535 So.2d 1354

[eames Rowe) «ss we wo wo ww we lw = CG

Collins v. Youngblood, 497 U.S. » age

S.Ce. Brae

111 L.Ed.2d 30 (1990) . . 32, 33, 35

Gideion v. Wainwright, 372 U.S. 335, 83

A Fe, YF

> bile. 2G FES (39682) «© se th tll !|CUKF

Giglio v. United akates, 405 U.S. 150

(ad7a)6 . « cs 2

Hill v. Black, 920 F.2d 249

Ce 3 i

In re Smith, 457 So.2d 911

ee a

Johnson v. State, 547 So.2d 59

faeees GOP) sc ew tw tw te th hl tle CU

Marcella v. United Skates, 344 F.2d 876

(9th £igr. 1965) . - » tis & wie ee

Maynard v Cartwright, 486 U.S. 356, 108

S.Ct. 1853,

100 L. Ed. 2d 372 (1988) ...-+ +... 47

Mooney v. Holohan, 294 U.S. 103

e) | eee er ae ee ee eee ee

Parker v. Dugger, 498 U.S. , 822 BGS.

, 112 L.Ed.2d 812

C29RS) 6 6 4 6 oe 6: 0 oe ee

Penry v. Lynaugh, 492 U.S. , 109 §.Ct.

1212, 106 L.Ed.2d 256 (1989) ... 14

Saffle v. Parks, 494 U.S. » L130 §.Ct.

, 108 L.Ed.2d 415 (1990) .. 14, 36,

awyer v. mith, 497 U.S. , 130 §.Ct.

, 111 L.Ed.2d 193 (1990) .. 14, 35,

Smith v. Black, 904 F.2d 111

(Stn Cir. 2990) «. - « 8, -ddg Bay hy

Smith v. Black, 904 F.2d 950 (5th Cir.

Fee ee le: + ae Se ae

Smith v. Black, 912 F.2d 1465

(Sth Che; 1909). tee ws

Smith v. Mississipp., 460 U.S. 1047

Fs ny se oh a ws

Smith v. State, 419 So.2d 563

(Meee. 1FG@p 26 2 ow we tt lt tt By ee

Smith v. State, 434 So.2d 212

(Miss. 19863) . . «+ ++» « « By 29

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

(Miss. 1986) ...++ + 2« « « « LQ

Smith v. State, 500 So.2d 973

(Ries: T3906) «. «© = e+ se verve

Smith v. Thigpen, 689 F.Supp. 644

(§.D.Miss. 1986) ...+.++e Aly 12, 29

Smith v. Thigpen, Civil Action

No. JO@3-O0573(B) . ».» «© © © «© © «© @ Qe

Smith v. United SEAERR, 358 F.2d 683 (3rd

Cir. 1966)... ; 2 ‘2s &

Smith v. Hainyxight, 741 F.2d 1248 (11th

Cir. 1984) .. ° . 6 o « o 85

em v. Black, 909 F.2d 111 har Cir.

3990) «6 te ee . : — ee

Sublivan v. Sanders, 863 F.2d 218

(2nd Cir. 1988) ..... 1@, 18, 22

Sumner v. Mata, 449 U.S. 539

Cl Se re ee a a

Sumner v. Mata, 455 U.S. 591

(igget 8 6 et et ee he Re ST

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

1060, 103 L.Ed.2d 334 (1989) .... 14,

16-18, 31, 32, 35, 44, 47-49, 52, 54

United States ex rel. Burnett v. Illinois,

619 F.2d 668, 674 (7th Cir.), cert.

denied, 449 U.S. 880 (1980) .... 15

United States v. Agurs, 427 U.S. 97

(i976) . « .s

United States v. Jones, 614 F.2 80 (5th

Cir.), cert. denied, 446 U.S.

55: (h0we) «te sw we wee ew wo sh ss GQ

Wild v. Oklahoma 187 F.2d 409 panera

Cats. Aven) ~*.- «

Wiley v. State, 517 So.2d 1373

(Miss. 1987) ..... iss es Ba

AMENDME T AND _R PAGE

OO OEONOESS nse ee ee a 8

Eighth Amendment, United States

COMBEZEOCEOR 6. st ss te th te hl hl

Fourteenth Amendment, United States

GCOMpGEEEUGEOE « 6 ct we ewe ht hl thc tS

Miss. Code Ann., § 99-39-23(6),

(Supp. 1990) «+ «© ee see evsvnev ld

Miss. Code Ann., § 99-39-27(9)

(Supp. 1990) . . « «© = « = © » a S32

O.8.6 8 FeSRtes- kk ct we ee we ee RG

vii

NO. 90-1164

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

WILLIE ALBERT SMITH,

Petitioner

versus

LEE ROY BLACK, Commissioner,

Mississippi Department of Corrections, et

al.,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

INTRODUCTION

Respondent, Lee Roy Black,

respectfully prays that the Petition for

Writ of Certiorari to the Supreme Court of

the State of Mississippi be denied in this

case.

OPINION BELOW

The opinion of the United States

Court of Appeals for the Fifth Circuit

rendered on June 26, 1990, is reported as

Smith v. Black, 904 F.2d 111 (5th Cir.

1990). A copy of this opinion is before

this Court as Appendix A to the petition

for certiorari. On August 24, 1990, a

petition for rehearing and suggestion for

rehearing en banc was denied without

opinion. Smith v. Black, 912 F.2d 1465

(Sth Cir. 1990). See, Appendix B.

JURISDICTION

Petitioner seeks to invoke the

jurisdiction of this Court under the

authority of 28 U.S.C. §1254(1), he fails

to do so.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Petitioner contends that this case

involves the application of the Eighth and

Fourteenth Amendments of the United States

Constitution and Miss. Code Ann., §§ 99-

39-27(9) and 99-39-23(6), (Supp. 1990).

See, Appendix H.

STATEMENT OF THE CASE

A. Procedural History:

On March 15, 1981, petitioner was

arrested for the capital murder of Shirley

Roberts. On June 19, 1981, an indictment

was returned in the Circuit Court for the

First Judicial District of Hinds County,

Mississippi, charging petitioner with

killing Mrs. Roberts in the course of the

commission of a robbery. On July 27,

1981, the matter was called for trial. On

July 30, 1981, after returning a verdict

of guilty of capital murder, the jury

sentenced petitioner to death in the

following verdict:

We, the Jury, find

unanimously and beyond a

reasonable doubt the following

aggravating circumstances:

1. The capital murder

was committed while the

defendant was engaged in the

commission of robbery;

ae The capital murder was

committed for pecuniary gain;

3. The capital murder was

especially heinous, atrocious or

cruel;

We, the Jury, further find

unanimously from the evidence

and beyond a_ reasonable doubt

that, after weighing the

mitigating circumstances and the

aggravating circumstances, one

against the other, that the

aggravating circumstances do

outweigh the mitigating

circumstances and that the

defendant should suffer the

penalty of death.

Tr. at 1615.

Petitioner then took his automatic appeal

to the Mississippi Supreme Court, raising

the following assignments of error:

is The trial court committed

reversible error by admitting

[sic] the prosecution to

introduce the criminal record as

being that of the defendant's

and further by not declaring a

mistrial at that point.

2. The Mississippi Code

Annotated, §§ 97-3-21 and 99-19-

101 (Supp. 1978), are

unconstitutional and violative

of the Eighth and Fourteenth

Amendments to the United States

Constitution.

3. The trial court erred in

allowing the prosecution to

exhibit gruesome photographs of

the victim to the jury for long

periods of time during the

sentence phase when the same

photographs had been previous!y

studied by the jury during the

guilt phase of the trial.

4. The verdict of "guilty" in

the guilt phase of the trial is

contrary to the great weight of

evidence.

5. The sentence of "death" in

the sentencing phase of the

trial is contrary to the great

weight of the evidence.

6. The trial court erred in

allowing the jury to find during

the sentencing phase that the

murder was committed for

pecuniary gain.

7s The trial court erred in

overruling the defendant's

Motion to Suppress evidence

taken from the defendant's

apartment, and further erred by

admitting the evidence in the

trial over the defendant's

objection.

Brief of Appellant on direct

appeal.

On August 11, 1982, the conviction

and sentence were affirmed by Mississippi

Supreme Court. A petition for rehearing

was filed and the original opinion was

modified without disturbing the

affirmance. This September 22, 1982,

modified opinion continued to adhere to

the previous ruling affirming the

conviction and sentence of death. Smith

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

I).

Represented by new counsel petitioner

filed a petition for writ of certiorari

with this Court. In this first petition

Smith raised the following grounds:

1. Where defense counsel is

competent in some of the cross-

examination of prosecution

witnesses at a capital trial but

is absolutely supine in the face

of the prosecution's aggressive

thrust at voir dire and in

closing argument and fails to

protect his client's interests

at trial against the

argumentative approach of the

prosecution, may counsel be

deemed to have rendered

ineffective assistance?

# Should the standard for

counsel's ineffective assistance

be the farce and mockery test or

should that standard be

uniformly replaced by the

"reasonable competence"

standard?

3. Where police enter a

dwelling under exigent

circumstances without a WARRANT

and briefly spot evidence on the

premises before leaving to try

to find and save a crime victim,

may they return after there

resolution of the emergency

exigent circumstances and, still

without a warrant, search for,

identify and seize evidence?

Petition for Certiorari from Direct

Appeal.

On March 21, 1983, this Court denied

certiorari. Smith v. Mississippi, 460

U.S. 1047 (1983).

On April iy 1983, petitioner

commenced his sojourn through the

intricate labyrinth of post-conviction

collateral relief with the filing of an

Application for Leave to File a Petition

for Writ of Error Coram Nobis in the Lower

Court with the Mississippi Supreme Court,

pursuant to Miss. Code Ann. § 99-35-145

(Repealed April 17, 1984). On June l,

1983, the state supreme court denied

petitioner's request for relief holding

virtually all of his claims to be

procedurally barred. On July 27, 1983,

his petition for rehearing was denied.

Smith v. State, 434 So.2d 212 (Miss.

1983) (Smith IT).

On August 1, 1983, petitioner filed a

petition for writ of habeas corpus with

the United States District Court for the

Southern District of Mississippi. A stay

of execution was entered on August 17,

1983. Further proceedings were stayed in

the District Court until such time as

petitioner further exhausted his state

court remedies. On January 31, 1984,

petitioner filed a second Application for

Leave to File a Petition for Writ of Error

Coram Nobis with the Lower Court with the

Mississippi Supreme Court. Petitioner's

allegations involved the claim that two

witnesses perjured themselves at trial.

This Court granted the application on

September 26, 1984, and ordered an

evidentiary hearing in the circuit court

on the issue. In re Smith, 457 So.2d 9l1l

(Miss. 1984)(Smith III). An evidentiary

hearing was’ held on October 10, 1984, and

the trial court issued an unpublished

opinion and order on January 16, 1985,

denying the requested relief.

Petitioner appealed this ruling to

this Court. On March 9, 1986, the denial

post-conviction relief was affirmed by the

Mississippi Supreme Court. A petition for

rehearing was denied on August 13, 1986.

Smith v. State, 492 So.2d 260 (Miss.

1986) (Smith IV).

While this second state post-

conviction petition was pending

petitioner, in August, 1985, filed yet a

third post-conviction motion in state

court. This third motion to vacate

judgment and set aside sentence was filed

under Section 99-39-1, et seq., Miss. Code

Ann. (Supp. 1984). This motion was denied

by the Mississippi Supreme Court on

November 26, 1986. Rehearing was denied

on February 11, 1987. Smith v. State, 500

So.2d 973 (Miss. 1986)(Smith V).

On April 7, 1987, petitioner amended

his federal petition for writ of habeas

corpus and reactivated the proceedings in

the Federal District Court.

On June 13, 1988, the District Court

issued its memorandum opinion and order

denying habeas corpus relief to

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

644 (S.D.Miss. 1988). Petitioner then

filed a motion to alter or amend the

judgment entered by the District Court.

This motion was denied in a _ two page

memorandum opinion and order entered

August 26, 1988. Smith v. Thigpen, Civil

Action No. J83-0573(B). From this

judgment denying habeas relief petitioner

took an appeal to the United States Court

of Appeals for the Fifth Circuit.

On June 26, 1990, the Fifth Circuit

issued an opinion affirming the judgment

of the District Court denying habeas

corpus relief. The petition for rehearing

was denied, without opinion, on August 24,

1990. Smith v. Black, 904 F.2d 950 (5th

Cir. 1990). Petitioner then requested the

Fifth Circuit to stay the mandate pending

his petition for writ of certiorari this

motion was denied on September 24, 1990.

Smith's petition for writ of

certiorari from the ruling of the Fifth

Circuit was originally due on November 23,

1990. Petitioner requested and was

granted an extension of sixty (60) days.

B. Statement of Facts:

During the early morning hours of

March 15, 1981, petitioner, kidnapped,

raped and brutally murdered Shirley

Roberts. The facts of this case are

graphically and sufficiently set for n in

the opinions of the various courts that

have considered this case. See, Smith I,

419 So.2d at 564-565; Smith v. Thigpen,

689 F. Supp. at 646-647; Smith v. Black,

904 F.2d at 956-957.

REASONS FOR DENYING THE WRIT

Petitioner has presented no federal

question of substance warranting this

Court's exercise of its discretionary

certiorari jurisdiction.

ARGUMENT

I. Where Petitioner's Due

Process Rights Were

Not Violated By The

Use Of The Testimony

of Thomas And Wells

Certiorari Should Be

Denied.

A_QUESTION OF PERJURY?

Petitioner argues that this Court

should overturn the precedent of Mooney v.

Holohan, 294 U.S. 103 (1935), holding that

there be knowing use of perjured testimony

before there is a constitutional violation

that would cause reversal of a conviction

or sentence. Petitioner would have the

Court announce a standard thet would

require reversal of a conviction or

sentence if there was a showing that there

has been a “credible recantation of the

testimony in question" that "would most

likely change the outcome of the trial and

a state leaves the conviction in place."

The rule petitioner would have this court

adopt is found in the case of Sullivan v.

Sanders, 863 F.2d 218, 222 (2nd Cir.

1988). It is clear that such a decision

would be constitute the announcement of a

new rule. This is a course of action

which this Court has clearly stated that

it will not take in a case on federal

collateral review. Teague _v. Lane, 489

U.S. , 109 S.Ct. 1060, 103 L.Ed.2d 334

(1989) and Pen v. Lynaugh, 492 U.S. ’

109 §.Ct. 1212, 106 L.Ed.2d 256 (1989).

See, Sawyer v. Smith, 497 U.S. , 110

S.Ct. , 111 L.Ed.2d 193 (1990), Butler

v. McKeller, 494 U.S. » 110 §.Ct. .

108 L.Ed.2d 347 (1990) and Saffle _ v.

Parks, 494 U.S. __ , +4110 S.Ct. __, 108

L.Ed.2d 415 (1990). Therefore, even if

the Court were of a mind to adopt such a

rule we would submit that this is not the

proper case in which such a new rule

should be announced.

There can be no question that this

would be the announcement of a new rule as

the other court's that have considered

this question have held that there must be

knowing use of perjured testimony in order

for there to be a due process violation of

constitutional dimensions. See, United

States ex rel. Burnett v. Illinois, 619

F.2d 668, 674 (7th Cir.), cert. denied,

449 U.S. 880 (1980); Burks v. Egeler, 512

F.2d 221, 229 (6th Cir.), cert. denied,

423 U.S. 937 (1975); Smith v. Wainwright,

741 F.2d 1248, 1257 (llth Cir. 1984);

United States v. Jones, 614 F.2 80, 82

(Sth Cir.), cert. denied, 446 U.S. 945

(1980); Smith v. United States, 358 F.2d

683 (3rd Cir. 1966); Marcelia v. United

States, 344 F.2d 876 (9th Cir. 1965); Wild

v. Oklahoma 187 F.2d 409, 410 (10th Cir.

1951). Since this Court and the circuit

courts that have considered this question

have held that there must be a knowing use

of perjured testimony in order to make out

a due process violation it can hardly be

said that such a claim is one of those

"bedrock" elements of criminal procedure

that represent an exception to Teague.

Likewise, the invitation to the

district court and the court’ below to

adopt a negligence standard when

considering questions of perjured

testimony would require the announcement

of a new rule on habeas review. This

course of action would also be contrary to

the precedent of Teague and its progeny.

The question remains whether the

respondent has waived this point at this

stage of the proceedings. The brief of

respondent was filed less than a month

after the decision in Teague. While not

citing Teague in its brief to the court

below respondent did argue that the

district court was correct in rejecting

"[pjetitioner's request to. . . engraft

upon [the rule of Mooney] some sort of

negligence standard." Further, respondent

pointed out that petitioner had "cited no

authority from [the Fifth Circuit] or nay

other adopting such a standard." Finally,

respondent argued that the "District Court

was correct in eschewing such an

invitation [to adopt a negligence rule] by

petitioner and hoiding that the standard

set forth in Mooney was the proper test."

Brief fox Respondent-Appellees at 12. We

submit that this argument is sufficient to

preserve the Teague argument at this

stage.

While not waiving the bar against

announcing a new rule, respondent would

point out that even Sullivan requires a

credible recantation of the trial

testimony. We submit that there has been

no such credible recantation in the came

at bar.

The ristory of the so-called perjured

testimony is important to the discussion

before the case today. The contention is

that two of the state's witnesses, Thomas

and Wells, perjured themselves at trial

when they identified petitioner as the

person they saw abducting Shirley Roberts

from the Tote-Sum store on Robinson Road

in Jackson, Mississippi on March 15, 1981.

These witnesses later recanted their

identifications in written affidavits

obtained through the questionable tactics

of the defendant's family and a private

detective agency. Based on these

affidavits the Mississippi Supreme Court

ordered an evidentiary hearing in the

trial court on the matter of whether or

not the witnesses perjured themselves at

trial and whether or not the _ state

knowingly used perjured testimony. After

a hearing on theses claims the state trial

court issued a memorandum opinion and

order finding that there had been no

perjury and that there had been no knowing

presentation of faise evidence at trial.

On appeal from this ruling, the

Mississippi Supreme Court disagreed with

the trial court and held that the

witnesses did perjure themselves.! The

state supreme court also held, that at

1 The Mississippi Supreme Court

based its finding of perjury on the fact

that Thomas and Wells’ had never recanted

their recantation.

best there was negligent use of some

perjured testimony by the prosecution, but

because of the overwhelming nature of the

remaining evidence in this case this was

not ground for reversal of the conviction

or sentence.

On habeas review in the district

court the district court held that the

standard to be applied to perjured

testimony was whether or not the

prosecution actually knew that testimony

they used was. perjured. The negligence

standard was forwarded by petitioner was

rejected. Additionally, the district

court disagreed with the finding of the

Mississippi Supreme Court regarding

whether or not Thomas’ and Wells actually

perjured themselves. He agreed with the

state trial judge that held the

evidentiary hearing in this matter that

there was no perjury. The district court

properly articulated reasons for finding

that the Mississippi Supreme Court's

findings were not fairly supported by the

record. 2

On appeai to the Fifth Circuit the

court noted the unusual circumstance of a

petitioner arguing for federal deference

and the state urging agreement with the

district court's rejection of the state

Supreme court's conclusion. However, the

court below decided it did not have to

address this question because there was no

knowing use of perjured testimony by the

state. Therefore, there was no ground for

habeas relief.

In the state of the record before

this Court it can hardly be said that

)

2 The district court recognized

that it had to make detailed findings as

to why the finding of the Mississippi

Supreme Court was not fairly supported by

the record. He did so. 689 F. Supp. 652-

657.

there has been a credible recantation of

the trial testimony. The state trial

court and the federal district court have

found that there was no perjury. The

Mississippi Supreme Court has_ held that

because the recantations go unrecanted

there must be perjury. Where there is

such a disagreement over the question of

whether or not there has even been

perjured testimony introduced at trial it

can hardly be said that there is a

credible recantation of the trial

testimony. Therefore, petitioner's

argument under Sullivan, is unpersuasive.

Likewise, petitioner's urging of a

negligence standard is with out persuasive

force. As the court below held:

Smith's argument for an

extension of the negligence

standard of United States v.

Agurs, 427 U.S. 97, 96 S.C.t

2392, 49 L.Ed.2d 342 (1976), is

not sufficiently convincing to

override this practice. As the

district court explained,

Smith's use of Giglio v. United

States, 405 U.S. 150, 152-54, 92

S.Ct. 763, 765-66, 31 L.Ed.2d

104 (1972), to support the

negligence standard is

inapposite; Giglio concerned the

particular circumstances of the

nondisclosure of a promise of

nonproseuction made in exchange

for witness testimony. Agurs

afterward reported that the rule

of Brady may "arguably" apply in

the situation in which

"undisclosed evidence

demonstrates that the

prosecution's case includes

perjured testimony and that the

prosecution knew, or should have

known, of the perjury,' but was

clear in reporting the

subsequently settled rule that

knowing use of perjured

testimony was fundamentally

unfair. 427 U.S. at 103-04, 96

S.Ct. at 2397-98. The

discussion in Agurs relied on by

Smith more precisely referred to

the materiality of nondisclosed

evidence, a subject considered

below in connection with his

Brady claim.

Reviewed under the Mooney

standard, and assuming without

deciding that the in-court

identification constituted

perjury, Smith does not

establish that the prosecution

knew. Cf. Braxton, 641 F.2d at

395. For the very reasons

detailed by the district court

toward the contention the

testimony was not perjury, 689

F.Supp. at 652-657, the

prosecutors could reasonably

have concluded that the

inconsistency of Wells and

Thomas related to a reluctance

to testify. Both evidenced a

detailed observation of the

abduction in their initial

contact with he police, although

they indicated on that occasion

and others preceding trial that

they could not identify the

culprit. Thomas, however,

contended at trial that he had

in fact recognized Smith at the

police lineup, and had so

informed the prosecution on the

first day of the trial. Thomas

coherently explained his

vacillations: he had refrained

from identifying Smith to the

prosecution because of pressure

he felt from relatives, and

likewise had told Smith's

Sisters and defense counsel's

son that he could not identify

the perpetrator, but had to tell

the truth when eh was forced to

testify under subpoena. Wells,

the eyewitness whose testimony

proved less damaging to Smith,

Simply testified that he _ had

identified Smith at his first

Opportunity to do so, in the

photographic lineup. The

credibility of these

explanations is cast into

severest doubt by their after-

’ 7

trial recantations, but the

prosecution cannot be charged

with knowledge of their latent

positions. We cannot conclude

that what appears to have been

the Mississippi Supreme Court's

conclusion that the prosecution

did not knowingly use perjured

testimony, Smith v. State, 492

So.2d at 267, was not fairly

supported by the record. Sumner

v. Mata, 449 U.S. at 551-52, 101

S.Ct. at 771.

904 F.2d at 961-962.

The court below correctly concluded

that the prosecution did not knowingly use

perjured testimony. Petitioner's reading

of United States v. Agurs, 427 U.S. 97

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

150 (1972), and Brady v. Maryland, , 373

U.S. 667 (1963), as overruling Mooney is

incorrect. Consequently, we submit that

the Fifth Circuit, the district court and

the Mississippi Supreme Court were all

correct in holding that there was _ no

knowing use of perjured testimony.

Therefor there is no relief available to

petition.

Further, respondent would reurge its

argument that the state trial court and

the federal district court were correct in

their findings that there was no perjury.

Respondent agrees with the teachings of

Sumner_v. Mata, 449 U.S. 539 (1981)

(Sumner I), holding that, generally a

finding of fact by a state court, even an

appellate court, is to be afforded a

presumption of correctness by a federal

court in a habeas proceeding. U.S.C.A.§

2254(d). However, this is not an

inviolate wall. In Sumner _v. Mata, 455

U.S. 591 (1982) (Sumner II), this Court

held:

{I]}f a federal court concluded

that the presumption of

correctness does not control, it

must provide a written

explanation of the reasoning

that led it conclude that one or

more of the first seven factors

listed in §2254 were present, or

the "reasoning which led it to

conclude that the state finding

was "not fairly supported by the

record." 449 U.S., 551, 66

L.Ed.2d, 101 S.Ct. 764.

71 L.Ed.2d at 484.

The district court fully complied with the

dictates of Sumner II making his detailed

findings as to why the Mississippi Supreme

Court's conclusion was not fairly

supported by the state court record. We

submit that the district court, like the

state trial court, was correct in his

conclusion that there was not perjured

testimony.

We would submit that the issue was

correctly decided by the court below and

certiorari should be denied.

II. Where The Court Below

Correctly Decided That

Clemons Vv. Mississippi

Created A New Rule That

Will Not Be Applied To

Cases On Habeas Review

Certiorari Should Be

Denied.

The court below was presented with a

question involving the application of the

"especially heinous" aggravating factor.

The states initial response to the

question was that the claim was

procedurally barred from consideration for

the failure to timely object at trial.

The Mississippi Supreme Court found the

claim to be procedurally barred from

consideration on state post-conviction

review stating:

At trial there was no

objection to the instruction on

the aggravating circumstance set

forth in Mississippi Code

Annotated § 99-19-101(5)(h) as

to the heinous, atrocious, or

cruel nature of the murder.

Likewise, the giving of this

instruction was not raised on

direct appeal, barring

petitioner from raising it in

post-conviction proceedings.

See Mississippi Supreme Court

Rule 42.

Smith II, 434 So.2d at 218.3

On habeas review the district court

held both in its original opinion and in

the opinion on the motion to alter or

amend that this claim was’ barred from

consideration because it was not raised at

trial or on direct appeal. Petitioner's

Claim was that "Mississippi's use of

heinousness as an aggravating factor is

not sufficiently limited." The district

court in answer held: "None of these

issues was raised at trial or on direct

appeal, and they are procedurally barred."

mith v. igpen, 689 F.2d 644, 662-663

(N.D. Miss. 1988). The procedural bar was

the basis of our response in the original

briefs filed in the court of appeals.

3 There is nothing ambiguous about

the application of the state procedural

bar to this question. Therefore, there is

no Harris v. Reed, 489 U.S. 255 (1989),

problem.

In the meantime this Court decided

the case of Clemons _v. Mississippi, 494

U.S. , 110 S.Ct. 1441, 108 L.Ed.2d 725

(1990). Petitioner requested and was

granted leave to file a supplemental brief

based on this Court's decision in Clemons.

The basis of the response of the state was

that the claim continued to be

procedurally barred from consideration for

the failure to present the claim at the

proper time andthe proper manner. This

response was filed on Apvzil 18, 1990.

On May 15, 1990, the court of appeals

requested that both parties file a reply

to the following question.

Does the claim of petitioner

that his sentence was

unconstitutionally imposed in

light of Maynard vs. Cartridge,

[sic] +86 U.S. 356 (1988), and

Clemons vs. Mississippi, 110

S.Ct. 1441 (1990), rely on

constitutional rules which are

"new" relative to the date on

which his conviction became

final, and which are the subject

of the non-retroactivity rule

Originating in Teague vs. Lane,

109 S.Ct. 1060 (1989)?

The respondent argued that the claim was

barred by Teague. Respondent also

reiterated that the claim was procedurally

Sesens in any event for the failure to

raise the claim in state court at the

proper time and the proper manner. 4

On June 26, 1990, the court below

issued its opinion holding that

consideration of the "especially heinous"

claim was barred by Teague. Smith, 904

F.2d 950 (5th Cir. 1990).°

4 We continue to assert that this

is a adequate and independent state law

ground that bars consideration of this

issue.

9 The court below decided that the

Teague inquiry should be made before an

inquiry in to whether or not the claim was

procedurally barred from review on state

law grounds. Finding that Teague, the

court concluded that it did not have to

reach the procedural bar question or the

merits of the claim.

The first question that we must

consider is whether it was proper for the

district court to raise the issue of non-

retroactivity on its own motion. The

basis of petitioner's argument is that

Collins v. Youngblood, 497 U.S. » 210

S.Ct. 2715, 113 L.Ed.2ad 30 (1990),

prohibits such action. While this court

made clear that a court "need not" raise

the Teague bar on its own motion, there is

no prohibition to one doing so. The Court

stated:

Generally speaking,

"[rjetroactivity is properly

treated as a threshold question,

for, once a new rule is applied

to the defendant in the case

announcing the rule, evenhanded

justice requires that it be

applied retroactively to all who

are similarly situated."

Teague, supra, at 300, 103

L.Ed.2d 334, 109 S.Ct. 1060.

The State of Texas, however, did

not address retroactivity in its

petition for certiorari or its

briefs on the merits, and when

asked about the issue at oral

argument, counsel answered that

the State had chosen not to rely

on Teague. Tr. of Oral arg. 4-

5. Although the Teague rule is

grounded in important

considerations of federal-state

relations, we think it is net

"jurisdictional" in the se se

that this Court, despite a

limited grant of certiorari,

must raise and decide the issue

sua sponte. Cf. Patsy v. Board

of Regents of Fla., 457 U.S.

496, 515, n. 19, 73 L.Ed.2d 172,

102 S.C.t 2557 (1982) (Eleventh

Amendment defense need not be

raised and decided by the Court

on its own motion.). We granted

certiorari to consider the

merits of respondent's ex post

facto claim, and we proceed to

do so.

111 L.Ed.2d at 38.

The clear implication from the Court's

opinion in Collins, is if the

retroactivity defense had been raised in

the briefs or even at oral argument that

the Court would have had to address the

question of retroactivity. The court

below considered the effect of Collins

before it proceeded to address the

question. The court held in footnote 12:

After Teague, which sua

sponte considered the

nonretroactivity issue based on

the suggestion on an amicus

brief, 109 S.Ct. at 1069,

circuit courts have split as to

the appropriateness of

considering Teague limitations

without the issue having been

raised by the parties. Compare,

e.g. Hill v. McMackin, 893 F.2d

810, 813 (6th Cir 1989)

(deciding application of Teague)

with Hanrahan v. Greer, 896 F.2d

241, 245 (7th Cir. 1990). The

Fifth Circuit has not explicitly

confronted the issue. Given

Teague itself and the subsequent

sua sponte resolution of Saffle

v. Parks, __ U.S. » £39

S.Ct. 1257, 1264 n. 1, 108

L.Ed.2d 415 (1990) (Brennan, J.,

dissenting), we believe the

better choice is to reach the

Teague issue now pressed by the

State. Compare Collins v.

Youngblood, — U.S. __, 110

S.Ce. 2715, 111 L.Ed.2d 30

(1990) (declining to reach

Teague question abjured by

counsel for state); Patsy v.

Board of Regents of Fla., 457

U.S. 496, S515 n. 19, 102 &.Ct.

2557, 2567 n.19, 13 L.Ed.2d 172

(1982) (complying with request

of state to pass on potential

Eleventh Amendment issue).

904 F.2d at 981.

We submit that Collins simply states that

Teague is not a jurisdictional rule that

must be raised in every case. This does

not prevent a court from raising the

question sua_ sponte. The court below

‘committed no error in raising the question

of retroactivity.

Looking to what the court below held we

find that it concluded that this Court

“limited for the first time Mississippi's

practice of supporting a death sentence on

the basis of a remaining, valid

aggravating factor." 904 F.2d at 983.

Judge King's analysis is clear and correct

in holding that Clemons represents new law

that is not available to petitioner ina

federal post-conviction setting. The

Opinion of the court below correctly

applies the constitutional standard to the

question at hand. Sawyer v. Smith, 497

U.S. , 110 S.Ct. 2822, 109 L.Ed.2d 193

(1990); Saffle v. Parks, 494 U.S. __, 110

S.Ct. 1257, 108 L.Ed.2d 415 (1990); Butler

v. McKeller, 494 U.S. » £03 -8.C6. 1212,

108 L.Ed.2d 347 (1990). A look at the

opinion of the Fifth Circuit will be

helpful as it would be hard to embellish

on the excellent analysis’ found there.

After looking at the opinion in Ciamons,

the court below held:

Saffle's reading of Lockett and

Eddings stressed that "[t]Jhere

is a simple and logical

difference between rules’ that

govern what factors the jury

ust be permitted to consider in

making its sentencing decision,

and rules that govern how the

State may guide the jury in

considering ans weighing those

factors in reaching a decision,"

and noted that rules regarding

"how [the jury] must consider

the mitigating evidence" were

not within the ambit of those

cases. _._—-s«dasU.S. at __, 110

S.Ct. at 1261; see also Sawyer

v. Smith, U.S. P , 110

S.Ct. 2822, 2828, 111 L.Ed.2d

193 (1990) ("general

proposition[s]" divined from

Lockett and Eddings

insufficiently determinative for

Teague test, aff'g Sawyer v.

Butler, 881 F.2d 1273 (5th Cir.

1989) (en banc). Mississippi's

practice neither addresses what

factors the jury may consider,

nor, in fact, any consideration

by the jury at all; the jury in

Smith's case. per instance, was

free to consider any statutory

or non statutory mitigating

evidence it chose. Mississippi

has simply developed a practice

as one component of its review

process that ignores invalid

aggravating circumstances for

the sake of valid ones.

Not until Clemons Vv.

Mississippi did the United

States Supreme Court

specifically apply Godfrey and

Maynard to the Mississippi

aggravating circumstance, and

before that application it could

at least be said that the

constitutional practice of

Mississippi's redemptive status

was ambiguous, making reasonable

for Teague purposes the rule

preceding Clemons. See Butler,

___ U.S. at > “S28 §.€8. at

1217; Saffle, U.S. at, 110

S.C.t at 1260-61. In Evans v.

Thigpen, 809 F.2d 239, 241 (5th

Cir.)(dicta), cert. denied, 483

U.S. 1033, 107 S.Ct. 3278, 97

L.Ed.2d 782 (1987), Edwards v.

Scroggy, 849 F.2d 204, 211 n.7

(Sth Cir. 1988), cert. denied,

ee, . 109 6.Ct. 1328,

103 L.Ed.2d 597 (9189), and most

recently in Stringer v. Jackson,

862 F.2d 1108, 1113-15 (5th Cir.

1990), which the Supreme Court

has vacated and remanded for

consideration in Light of

Clemons v. Mississippi, see

U.S. , 110 S.Ct. 1800, 108

L.Ed.2d 931 (1990), various

panels of this court have

sustained death sentences

premised in part on an invalid

aggravating circumstance by

recognizing the Mississippi

practice of sustaining verdicts

when supported by at least one

valid aggravating circumstance.

Under this practice, perhaps

first represented in Evans v.

State, 422 So.2d 737, 743 (Miss.

1982), cert. denied, 461 U.S.

939, 103 S.Ct. 2111, 77 L.Ed.2d

314 (1983), the Mississippi

Supreme Court typically would

recognize the problematic

constitutionality of the

"especially heinous, atrocious,

or cruel" aggravating

circumstance, possibly review

the sentence for proportionality

and under the Coleman limiting

construction of the

circumstance, and uphold the

sentence if in any event the

jury had found at least one

other valid aggravating

circumstance. See, e.g.,

Pinkney v. State, 538 So.2d 329,

355-58 (Miss.1988), vacated and

remanded for further

consideration in light of

Clemons v. Mississippi, U.S.

__, 110 S.Ct. 1800, 108 L.Ed.

931 (1990); Lanier v. State, 533

So.2d 473, 491 (Miss. 1988)

(alternative holding; sentence

vacated on other grounds) ;

Lockett v. State, 517 So.2d

1317, 1336 (Miss.1987)

(alternative holding), cert.

denied, 487 U.s. 1210, 108 S.C.t

2858, 101 L.Ed.2d 895 (1988);

Johnson v. State, 511 So.2d

1333, 1336-39 (Miss. 1987)

(alternative) rev'd sub nom.

Johnson v. Mississippi, 486 U.S.

578, 108 S.Ct. 1981, 100 L.Ed.2d

575 (1988); Stringer v. State,

500 So.2d 928, 944-45

(Miss.1986); Irving v. State,

498 So.2d 305, 314 (Miss. 1986)

(alternative holding), 481 U.S.

1042, 107 S.C.t 1986, 95 L.Ed.2d

826 (1987); Edwards v. State,

441 So.2d 84, 92 (Miss. 1983)

(alternative holding; sentence

vacated on divided opinion;

Tokman v. State, 435 So.2d 664,

670 (Miss. 1984) (alternative

holding), cert. denied, 467 U.S.

1256, 104 $.ct. 3527, 82

L.Ed. (1984).

This practice relied in

part on decisions of the Supreme

Court subsequent to Lockett and

Eddings (and subsequent by a

matter of months to the point at

which Smith's conviction became

final) that might with hindsight

be read as anticipating Clemons,

but at the time might have

appeared to confirm the

constitutionality of the

Mississippi practice. Zant v.

Stephens, 462 U.s. 862, 103

S.Ct. 2733, 77 L.Ed.2d 235

(1983), upheld a death sentence

administered under the Georgia

sentencing scheme when one of

the three aggravating

circumstances found by the jury

was subsequently held invalid by

the Georgia Supreme Court while

the other two aggravating

circumstances were specifically

upheld. Although the opinion

recognized the potential

difference attending a

"weighing" state, id. at 873

n.12, 890-91, 103 S.Ct. at 2741

n. 12, 2750, the chief import of

the decision was often viewed as

confirming the constitutional

latitude afforded the common

state practice of redeeming

death sentences when more than

one aggravating circumstance was

present, and Zant was relied

upon by this court and the

Mississippi Supreme Court in

warranting the Mississippi

practice. See, e.g., Stringer

v. Jackson, 862 F.2d at 113-14;

Lanier v. State, 533 So.2d at

491; Lockett v. State, 517 So.2d

at 1336; Johnson v. State, 511

So.2d at 1336-39; Stringer v.

State, 500 So.2d at 944-45;

Irving v. State, 498 So.2d at

314.146 Similarly, while the

plurality opinion in Barclay v.

Florida, 463 U.S. 939, 103 S.C.t

3418, 77 L.Ed.2d 1134 (1983),

might have suggested a

reservation regarding certain

circumstances in "weighing"

states, see id. at 954 n. 12,

the opinion also noted that

Florida, like Georgia, "requires

the sentencer to find at least

one valid aggravating

circumstance before the death

penalty may even be considered,"

id. at 954, 103 S.Ct. at 3427,

and ultimately upheld the

Florida scheme. Finally,

Maynard v. Cartwright left to

Oklahoma the redetermination of

sentence and recognized the

possibility that the court"would

not necessarily set aside a

death penalty where on appeal

one of several aggravating

circumstances has been found

invalid or unsupported by the

evidence." 486 U.S. at 365, 108

S.Ct. at 1860.

To the extent that these

cases contain reservations

distinguishing schemes like that

administered by Mississippi, it

cannot be said that such

distinctions represented legal

determinations that control the

outcome of Smith's case, and

certainly not so for the law

applicable at the time his

conviction became final. The

Supreme Court explicitly

acknowledged at a time prior to

that date that it would not

distinguish between functionally

Similar sentencing schemes, even

if the differences would obviate

the potential distinctions

marking a "weighing" state. See

Franklin v. Lynaugh, 487 U.s.

164, 108 S.Ct. 2320, 2331 n. 12,

101 L.Ed.2d 155 (1988) (citing

Adams v. Texas, 448 U.S. 38, 46,

100 S.Ct. 2521, 2526, 65 L.Ed.2d

581 (1980)); see also Stringer

v. Jackson, 862 F.2d at 1115

(opining that there is "no

difference, other than on in

semantics, between instructing a

jury to weigh aggravating

against mitigating circumstances

in determining the sentence in

instructing a jury to consider

all aggravating and mitigating

circumstances in deciding on the

sentence"). Of the large number

of cases which have enforced a

practice such as that of

Mississippi, the majority have

ignored fine distinctions among

the various states's capital

schemes. [Citations omitted. }

Rather than allowing the

federal judiciary a means of

reneging on its commitment to

the proposition that there is no

“one right way for a State to

set up its capital sentencing

scheme," Spaziano v. Florida,

468 U.S. 447, 464, 104 S.Ct.

3154, 3164, 82 L.Ed.2d 340

(1984), the Teague doctrine in

part tolerates the diversity of

state schemes by accepting the

fact that various jurisdictions

will not always correctly

anticipate the ultimate

constitutional significance of

every detail. Instead,

"reasonable, good-faith

interpretations of existing

precedents" are sufficient to

prevent application of new law.

Butler 110 S.Ct. at 1217; see

also Sawyer v. Smith, __ U.S.

at __, 110 §.Ct. at 2828-29

(incorrect characterization of

Supreme Court precedent by

Mississippi Supreme Court

further indicates extent to

which subsequent constitutional

ruling was not dictated.) We

hold, consequently, that the

application of Clemons to Smith

would involve the application of

a "new rule" on collateral

review, a practice normally

barred by Teague.

*6 Butler's observation

regarding the retroactivity of

judicial rhetoric is surely

appropriate to any effort to

locate the distinctions of

Clemons in Zant. In Johnson v.

Mississippi, for example, the

Court stressed its "“specific[ ]

relifance]" in that case on the

admissibility of evidence at the

sentencing hearing, 486 U.s.

578, 590, n.9, 10 S.Ct. 1981 n.

9, 100 L.Ed.2d 575 (1988), a

characterization of Zant that by

itself might well warrant

affirming Smith's sentence.

904 F.2d at 984-986.

Clearly, the Fifth Circuit applied

the proper constitutional standard when

analyzing whether or not Clemons

represents new law. There was close

adherence to the teachings of Butler and

Saffle. The decision in Clemons, setting

forth limitations on Mississippi's

practice of supporting a death sentence on

the basis of the remaining, valid

aggravating factors was not dictated by

prior precedent of this Court.

Even though the question of whether

or not Clemons, is new was answered ina

manner against petitioner's position, that

did not end the inquiry. As it was

required to do, the Fifth Circuit

continued its analysis to determine

whether or not Clemons represented a

decision that fell into one of the two

exceptions to the application of Teague.

Since, the decision in Clemons would

not decriminalize aoclass of conduct nor

would it prohibit the imposition of

capital punishment on a particular class

of individuals the first exception would

not have any application to Stringer's

case. Smith, 904 F.2d at 986.

Looking to the second exception the

Fifth Circuit held:

The second exception is for

those rare "watershed rules of

criminal procedure" which

implicate the fundamental

fairness and accuracy of the

criminal proceeding. See

Saffle, _— U.S. at _, 110

S.Ct. at 1263; Butler, 110 S.Ct.

at 1218. As the en banc court

noted in Sawyer v. Butler, 881

F.2d 1273, 1294 (Sth Cir. 1989)

(en banc), aff'd, sub nom.

Sawyer v. Smith, U.S. __,

110 §.Ct. 2822, 111 L.Ed.2d 193

(1990), this exception is

tailored to those rules designed

to redress constitutional

violations which "so distort the

judicial process as to leave one

with the impression that there

has been no judicial

determination at all, or else

skew the actual evidence crucial

to the trier of fact;s

disposition of the case," and

does not include procedurally

flawed contemplation or review

of relevant evidence. As the

Supreme Court recently observed

in Sawyer v. Smith, "[{ajJll of

our Eighth Amendment

jurisprudence concerning capital

sentencing is directed toward

the enhancement of reliability

and accuracy in some sense," but

Teague's second exception is

limited to "watershed" rules

affecting "bedrock procedural

elements." U.S. at , 110

S.Ct. at 2931. The rule on

which Smith would rely is not

such exalted stature.

Because we conclude that a

necessary component of Smith's

claim that the use of the

"especially heinous" aggravating

circumstance in his sentencing

phase was barred by Teague, we

do not consider whether that

claim has been procedurally

barred or has merit.

904 F.2d at 986-987.42

This analysis is correct. In

Clemons, the Court stated that on remand

the Mississippi Supreme Court could

preform a reweighing of the aggravating

and mitigating circumstances or it could

perform a "harmless error analysis" and

affirm a death sentence in the face of an

invalid aggravating circumstance. The

fact that the appellate court is allowed

to perform a harmless error analysis to a

Clemons error demonstrates that it is not

the "watershed" or "bedrock procedural

elements” spoken of in Teague. The Court

has usually cited Gideion v. Wainwright,

372 U.S. 335, 83 &§.Ct. 792, 9 L.Ed.2d 799

(1963) as an example of the type rule that

comes within this exception. It cannot be

said that Clemons or Maynard Vv.

Cartwright, 486 U.S. 356, 108 S.Ct. 1853,

100 L.Ed.2d 372 (1988), either one come

within this exception.

Petitioner, further contends’ that

Parker v. Dugger, 498 U.S. ; can OCs

, 112 L.Ed.2d 812 (1991), represents

the retroactive application of Clemons, to

a case on federal post-conviction review

thereby voiding the reasoning of the Fifth

Circuit. At first reading this

misconception might be entertained.

However, upon inquiry beyond the surface

we find this is not the case. Upon

inspection, the answer becomes clear. The

decision in Parker is, at best,

inconclusive as to whether Clemons should

be applied retroactively. The simple

reason for this position is that the bar

found in Teague, was never interposed as a

defense to the claim presented to the

United States Supreme Court. Teague is

not mentioned in the briefs filed by

Florida, nor was it mentioned at oral

argument of the case. 6 Therefore, Parker

does not represent precedent that causes a

6 As is noted in Florida's

petition for rehearing the issue upon

which Parker was reversed was not one of

the questions presented to the Court for

resolution.

—

conflict with the ruling of the court

below in Hill v. Black, 920 F.2d 249 (5th

Cir. 1990); Stringer v. Black, 909 F.2d

111 (5th Cir. 1990) and Smith.

In Parker, as we stated above, the

issue of retroactivity was not raised in

the briefs or at oral argument. This

Court was under no duty to raise the claim

on its own motion, a course that was

specifically declined by the State of

Texas. In the posture of the case, the

issue of the retroactivity of Clemons

never come up in Parker and the Court

chose not to address the issue on its own

motion. The decision offers no guidance

on the issue of whether or not Clemons is

to be applied retroactively.

Petitioner contends that respondent

has waived the point when it did not raise

Teague in the response to the supplemental

brief filed in the court below. However,

since the Fifth Circuit was free to raise

the retroactivity issue sua sponte it

cannot be said that the respondent has

waived the defense.

Petitioner's argument that under

state law Clemons is not new law because

the Mississippi Supreme Court, in Johnson

v. State, 547 So.2d 59 (Miss. 1989),

changed Mississippi law is not availing.

First, the Mississippi Supreme Court, in

Johnson, did not change Mississippi law.

It simply stated that it had two courses

of action open to it, remand the case to

the trial court for a new sentencing

hearing or reimpose the sentence of death

itself. There was no change in the law as

to the process the court would employ if

it chose to make the decision to reimpose

the sentence of death. This is clear as

the court cited its decision in Clemons v.

——

State, 535 So.2d 1354 (Miss. 1988), as the

basis for the decision.

In any event, this Court made plain

that "'the availability of a claim under

state law does not of itself establish

that a claim was available under the

United States Constitution.'" Sawyer, 111

L.Ed.2d at 209. In awyer, when

discussing reliance on state law to claim

that a rule is not new law, the Court

stated:

Reliance od State law cases for

the proposition that the rule

adopted in Caldwell was an old

one misapprehends the function

of federal habeas corpus. As we

have said, the "'relavant frame

of reference'" for the new rule

inquiry "'is not the purpose of

the new rule whose benefit the

[defendant] seeks, but instead

the purposes for which the writ

of habeas corpus is made

available.'" Teague, 489 U.S.,

at 306, 103 L.Ed.2d 334, 109

S.Ct. 1060 (quoting Mackey v.

United States, 401 U.S. 667,

682, 28 L.Ed.2d 404, 91 S.Ct.

1160 (1971)). Federal habeas

corpus serves to ensure that

state convictions comport with

the federal law that was

established at the time the

petitioner's conviction became

final.

111 L.Ed.2d at 209-210.

Therefore, the state of the law in

Mississippi at present is not a factor

that is considered when making the

analysis as to whether a rule is new under

Teague.

Finally, petitioner argues that the

Mississippi Post-Conviction Collateral

Relief Act, allows for consideration of

"new law" in successive petitions.

Petitioner bases that assertion on Miss.

Code Ann., § 99-39-27(9) (Supp. 1990),

which states in part that "excepted form

[the prohibition to the filing of second

Or 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. . ." This might be persuasive

without reading the case law that has

construed this provision. In Wiley v.

State, 517 So.2d 1373 (Miss. 1987), the

Mississippi Supreme Court held:

Wiley refers to the "intervening

decision" of the U.S. Supreme

Court in Booth v. Maryland, ___

U.S. _ , 107 §.Ct. 2529, 96

L.Ed.2d 440 (1987). However, an

intervening decision alone does

not preclude a waiver under

Miss. Code Ann. § 99-39-21, but

can only except the case from

the effect of the three-year

statute of limitations in §99-

39-5(2) and the prohibition of

second petitions in § 99-39-

27(9). [Emphasis added. ]

971 $0.20 at 1377.

Wiley was pursuing his first post-

conviction petition when this decision was

rendered, Smith's presently has his fourth

petition pending before the state court.

As was pointed out above this claim was

held to be procedurally barred by the

Mississippi Supreme Court in the first

post-conviction petition. Therefore, the

exception could not grant petitioner

relief.

The Fifth Circuit correctly and

properly found that "the application of

Clemons to Smith's case would involve the

application of a ‘new rule' on collateral

review, a practice normally barred by

Teague." 904 F.2d 986. Since the

decision of the court below is correct

certiorari should be denied.

CONCLUSION

For the above and foregoing reasons

the petition for writ of certiorari to the

United States Court of Appeals’ for the

Fifth Circuit in this case should be

denied.

¥ —" |

Respectfully submitted,

MIKE MOORE

ATTORNEY GENERAL

STATE OF MISSISSIPPI

MARVIN L. WHITE, JR.

ASSISTANT ATTORNEY GENERAL

(Counsel of Record)

CHARLENE R. PIERCE

SPECIAL ASSISTANT

ATTORNEY GENERAL

COUNSEL FOR RESPONDENT

Office of the Attoreny General

Post Office Box 220

Jackson, Mississippi 39025

Telephone: (601) 359-3680

IFI F SERVICE

I, Marvin L. White, Jr., Assistant

Attorney General for the State of

Mississippi, do hereby certify that I have

this day caused to be mailed, via United

States Postal Service, first-class postage

prepaid, three (3) true and correct copies

of the foregoing Brief in Opposition to

the following:

Bruce D. Angiolillo, Esquire

Simpson Thacher & Bartlett

425 Lexington Avenue

New York, New York 10017-3909

This the 5th day of April, 1909: .

c K ,

4 MA. c ( . ko)

dam L. WHITE, JR. V4,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.