135 F.3d 311 (5th Cir. 1998), 97-60243, Billiot v. Puckett

Docket Nº:97-60243.
Citation:135 F.3d 311
Party Name:James E. BILLIOT, Petitioner-Appellee, v. Steve W. PUCKETT, Commissioner, Mississippi Department of Corrections, and James V. Anderson, Superintendent, Mississippi State Penitentiary, Respondents-Appellants.
Case Date:February 12, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 311

135 F.3d 311 (5th Cir. 1998)

James E. BILLIOT, Petitioner-Appellee,

v.

Steve W. PUCKETT, Commissioner, Mississippi Department of

Corrections, and James V. Anderson,

Superintendent, Mississippi State

Penitentiary, Respondents-Appellants.

No. 97-60243.

United States Court of Appeals, Fifth Circuit

February 12, 1998

Page 312

John C. Henegan, Larry Leroy Tyner, Jr., Butler, Snow, O'Mara, Stevens & Cannada, Jackson, MS, Joseph G. Margulies, Minneapolis, MN, for Petitioner-Appellee.

Marvin L. White, Jr., Jackson, MS, for Respondents-Appellants.

Appeal from the United States District Court for the Southern District of Mississippi.

Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Respondents appeal the district court's order granting appellee's petition for a writ of habeas corpus as to his sentence of death. For the reasons set forth below, we REVERSE and REMAND for further proceedings.

I.

On January 29, 1982, petitioner, James E. Billiot, was indicted for capital murder by a Hancock County, Mississippi grand jury. The indictment charged that, on November 26, 1981, Thanksgiving Day, Billiot, using an eight-pound sledgehammer, bludgeoned to death his step-father, mother, and fourteen-year old step-sister. In addition, the indictment alleged that the murder of Billiot's step-father, Wallace Croll, Jr., occurred contemporaneously with a robbery upon him. After Billiot's motion for a change of venue was granted, he was tried and convicted of capital murder and sentenced to death by a jury on December 2, 1982, in Harrison County, Mississippi. With respect to the death sentence, the jury returned the following verdict:

We, the jury, unanimously find that the aggravating circumstances of

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(1) capital murder was committed while the Defendant, James Billiott [sic], was engaged in the commission of the crime of robbery.

(2) James Billiot committed the capital murder in an especially heinous, atrocious and cruel manner,

sufficient to impose the death penalty, and that there are insufficient mitigating circumstances to outweight [sic] the aggravating circumstances, and we unanimously find that the Defendant should suffer death.

Tr. Vol. VII, at 1134-35.

In 1984, the Mississippi Supreme Court, on direct appeal, affirmed both Billiot's conviction and death sentence and denied his request for a rehearing. Billiot v. State, 454 So.2d 445 (Miss.1984). Subsequently, on February 18, 1985, the United States Supreme Court denied Billiot's petition for a writ of certiorari. Billiot v. Mississippi, 469 U.S. 1230, 105 S.Ct. 1232, 84 L.Ed.2d 369, reh'g denied, 470 U.S. 1089, 105 S.Ct. 1858, 85 L.Ed.2d 154 (1985). The Mississippi Supreme Court, upon motion by the State, then set Billiot's execution for May 15, 1985. On April 16, 1985, however, the Mississippi Supreme Court stayed the execution to allow Billiot to file state post-conviction papers. On October 30, 1985, the Mississippi Supreme Court denied petitioner's request for post-conviction relief, Billiot v. State, 478 So.2d 1043 (Miss.1985), and, on December 4, 1985, denied his petition for rehearing. After the United States Supreme Court denied certiorari, Billiot v. Mississippi, 475 U.S. 1098, 106 S.Ct. 1501, 89 L.Ed.2d 901 (1986), the Mississippi Supreme Court, upon motion by the State, set Billiot's execution date for May 7, 1986.

On April 28, 1986, Billiot filed his original petition for a writ of habeas corpus in the United States District Court for the Southern District of Mississippi. Among other things, Billiot claimed that he was presently insane and therefore incompetent to be executed. On September 10, 1986, in light of the Supreme Court's decision in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), the district court ordered that the petition be held in abeyance until Billiot refiled his petition for state post-conviction relief and thereby exhaust his insanity claim. Billiot then filed a second petition for state post-conviction relief. On review, the Mississippi Supreme Court, sitting en banc, found that Billiot was entitled to an evidentiary hearing before the circuit court of the First Judicial District of Harrison County on the limited issue of his claimed present insanity. Billiot v. State, 515 So.2d 1234, 1235 (1987).

On November 14 and 15, 1988, the circuit court held an evidentiary hearing on Billiot's insanity claim, and, on May 16, 1989, the court issued its findings of fact and conclusions of law, in which it found Billiot presently sane under the standards set forth in Mississippi Code Annotated § 99-19-57(2)(a) & (b), and Ford v. Wainwright. In May 1991, the circuit court denied Billiot's motion to alter and amend the judgment. On February 16, 1995, the Mississippi Supreme Court affirmed the decision of the circuit court, Billiot v. State, 655 So.2d 1 (Miss.1995). Finally, on January 22, 1996, the United States Supreme Court denied certiorari. Billiot v. Mississippi, 516 U.S. 1095, 116 S.Ct. 818, 133 L.Ed.2d 762 (1996).

Having, at long last, exhausted his state law claims, Billiot's petition for a writ of habeas corpus was once again before the district court. In his amended and supplemental petition, 1 Billiot asserted multiple claims related to his original conviction and sentence, as well as claims related to the state proceedings on his alleged present insanity. 2

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2

In reviewing Billiot's petition, the district court first addressed Billiot's claim that his death sentence should be vacated because the "cruel, heinous, and atrocious" aggravating circumstance, as given, was constitutionally infirm. The district court agreed and, relying on Wiley v. Puckett, 969 F.2d 86, 94 (5th Cir.1992), held that "the writ is due to be issued unless the State of Mississippi initiates the appropriate proceedings in state court within a reasonable time after the issuance of this opinion." In the alternative, the district court held that Billiot was entitled to relief on this ground even if Wiley did not apply because the error was not harmless

Page 315

under either Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), or Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Recognizing "the strong possibility that the Mississippi Supreme Court [would] remand petitioner's cause for resentencing," see Wilcher v. State, 635 So.2d 789, 791 (Miss.1993) (remanding for resentencing after noting that, as a matter of state law, it lacked the authority to either reweigh the aggravating and mitigating circumstances or conduct harmless error analysis), 3 the district court declined to reach Billiot's other claims relating to the sentencing phase of his trial. 4 The district court did, however, address the claims relating to the guilt phase of Billiot's trial, all of which were denied. Because Billiot has not appealed the district court's denial of his claims relating to the guilt phase, the sole issue before this court is whether the district court properly concluded that Billiot was entitled to habeas relief because the "cruel, heinous, and atrocious" aggravating circumstance was constitutionally infirm.

II.

In death penalty lexicon, Mississippi is known as a weighing state. In such a state, in order for a jury to return a sentence of death, it must find that the applicable statutory aggravating circumstances outweigh any applicable statutory or non-statutory mitigating circumstances. Stringer v. Black, 503 U.S. 222, 229-30, 112 S.Ct. 1130, 1136, 117 L.Ed.2d 367 (1992). In part, this weighing process furthers the important Eighth Amendment purpose of ensuring that the defendant receives an individualized sentence. Id. at 230, 112 S.Ct. at 1136. When a jury in a weighing state relies on an invalid aggravating circumstance in deciding to impose the death penalty, however, the sentencing process violates the Eighth Amendment because it "creates the possibility not only of randomness but also of bias in favor of the death penalty." Id. at 235-36, 112 S.Ct. at 1139; accord Clemons v. Mississippi, 494 U.S. 738, 752, 110 S.Ct. 1441, 1450, 108 L.Ed.2d 725 (1990). Nonetheless, the Supreme Court has held that the state courts can cure such an error either by reweighing the aggravating and mitigating circumstances or by performing constitutional harmless error analysis. Stringer, 503 U.S. at 232, 112 S.Ct. at 1137.

In this case, the jury found that two statutory aggravating circumstances existed, one of which was that the murder was committed in an "especially heinous, atrocious, or cruel manner." As the State concedes, the "heinous, atrocious, and cruel" aggravating circumstance, as given, was unconstitutionally vague. See Stringer, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992); Clemons, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). The State further concedes that the Mississippi Supreme Court failed to cure the error on direct appeal. It nonetheless argues that under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the district court had both the authority and the obligation to conduct its own harmless error analysis before granting habeas relief. As we have noted in numerous opinions, in Brecht, the Supreme Court, relying on the principles of comity, federalism, and finality, held that trial type error will not serve as a basis for federal habeas relief unless the error "had a substantial and injurious effect or influence in determining the jury's verdict." Id. at 636-38, 113 S.Ct. at 1721-22; e.g., Shaw v. Collins, 5 F.3d 128, 132 (5th Cir.1993). Because the error occasioned by the sentencer's consideration of a vague aggravating circumstance is...

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