Gibson v. Spalding

Citation665 F.2d 863
Decision Date30 October 1981
Docket NumberNo. 80-3522,80-3522
PartiesGlenn Ruphert GIBSON, Plaintiff-Appellee, v. James SPALDING, Slade Gorton and Dixie Lee Ray, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

J. Robin Hunt, Seattle, Wash., for defendants-appellants.

John B. Midgley, Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WALLACE and TANG, Circuit Judges, and STEPHENS, ** District Judge.

WALLACE, Circuit Judge:

Spalding, et al. (the State), appeal from an order of the district court granting a writ of habeas corpus to Gibson pursuant to 28 U.S.C. § 2254. The State contends that Gibson's failure to object to a constitutionally infirm jury instruction during trial or on direct appeal prevented the district judge from granting this collateral relief. We disagree and affirm.

I

On May 29, 1974, a jury found Gibson guilty of murder in the second degree resulting from the death of a female hitchhiker. Gibson appealed his conviction on grounds other than the one asserted in his petition for writ of habeas corpus. The Washington State Court of Appeals affirmed his conviction in an unpublished opinion on June 9, 1975. On that same day, the United States Supreme Court decided Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 308 (1975) (Mullaney), in which the Court held that a jury instruction requiring malice aforethought to be presumed from an intentional homicide unless the defendant proved that he acted in the heat of passion on sudden provocation violated the due process clause of the Fourteenth Amendment. The Court found that such an instruction improperly shifted the burden of persuasion from the prosecution to the defense. 1 The Mullaney decision was published the next day in United States Law Week, 43 U.S.L.W. 4695 (1975). The following day, the Criminal Law Reporter printed the full text and a summary and analysis of the decision. (1975) 17 Crim.L.Rep. (BNA) 1041-42; 3063. Although a similar instruction was given to the jury in Gibson's trial, there was no objection during trial and no assignment of error in his initial appeal.

Gibson, still assisted by counsel, filed a petition for review before the Washington Supreme Court on August 20, 1975, but once more the jury instruction was not raised as an issue. The Washington Supreme Court summarily rejected Gibson's petition on October 7, 1975. Despite the four month interval between the Mullaney decision and the Washington Supreme Court's action, there was no attempt to seek reconsideration of the state Supreme Court's denial of Gibson's petition.

In March of 1978, Gibson filed a personal restraint petition-the Washington equivalent of a habeas corpus petition. He raised for the first time his contention that the jury instruction given at his 1974 trial violated Mullaney, and thus entitled him to a new trial. The Washington Court of Appeals denied his habeas corpus petition in an unpublished opinion on April 9, 1979. The court also denied Gibson's motion for reconsideration of its decision. In September of 1979, the Washington State Supreme Court summarily denied Gibson's petition for review of the court of appeals' decision.

Gibson then sought federal habeas corpus relief pursuant to 28 U.S.C. § 2254. His sole ground for relief was that the trial court erred in giving the challenged instruction which, he contends, was condemned by Mullaney. The district court assigned the case to a magistrate who recommended that the district court grant petitioner's relief. The district court accepted the magistrate's findings without comment, and issued an alternative writ requiring Gibson's release or retrial.

II

The State argues that Gibson's failure at both his trial and on direct appeal to attack the suspect jury instruction was not excused by "cause" or "prejudice" sufficient to invoke the exception to Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Sykes). In Sykes, the Court held that a federal habeas petitioner is barred from asserting that federal constitutional law was violated in a state court proceeding when that assertion was not resolved on the merits in a state proceeding due to the petitioner's own failure to raise it there, as required by a state contemporaneous objection rule. The Court found that absent a showing of "cause" for the failure to object and actual "prejudice" to the petitioner from the alleged constitutional violation, federal habeas relief was precluded by the state procedural default.

Washington courts have developed a similar procedural rule on the appellate level. The Washington Supreme Court has held that "issues which could have been raised on appeal but were not, may not be used as grounds for a collateral attack on a criminal judgment." Petition of Myers, 91 Wash.2d 120, 122, 587 P.2d 532, 533 (1978) (en banc), cert. denied, 442 U.S. 912, 99 S.Ct. 2828, 61 L.Ed.2d 278 (1979). Here, there was no objection during trial or on direct appeal. Gibson argues, however, that we must carefully scrutinize the procedural ground that the state proposes as a bar to federal habeas review. He contends that the procedural rule involved in the instant case does not qualify as an "adequate" state ground because: (1) state review was refused on state procedural, rather than federal substantive grounds; (2) the rule did not give adequate notice at the time of the default that failure to raise the claim would be a waiver; (3) the rule was unforeseeable; (4) the rule is not a contemporaneous objection rule because it applies to a failure to object made on appeal; and (5) the rule is applied inconsistently and arbitrarily.

We recently examined the applicability of the Sykes rule to a similar factual situation in Myers v. Washington, 646 F.2d 355 (9th Cir. 1981) (Myers). There, the habeas petitioner challenged a jury instruction similar to the instruction involved in the case before us. When Myers was tried for murder in 1957, the instruction was considered constitutional. We found that the procedural default involved in the Myers case differed substantially from the procedural default involved in Sykes. Myers involved a failure to raise on appeal a constitutional issue that had never been identified at the time of trial or at the time of direct appeal, not simply a failure to object during trial to an alleged error that should have been apparent at that time. We raised the question of the applicability of the procedural default rule in Sykes to the Myers case. Id. at 359-60. We also discussed the interests identified in Sykes that are advanced by requiring the federal habeas court to comply with a state contemporaneous objection rule. First, federal compliance "enables the judge who observed the demeanor of (the) witnesses to make the factual determinations necessary for properly deciding the federal constitutional question." Sykes, supra, 433 U.S. at 88, 97 S.Ct. at 2507. Second, were the federal habeas court not to enforce the contemporaneous objection rule, lawyers might be encouraged to "sandbag"-take their chances on a verdict of not guilty in a state trial court with the intent, if they lose, to raise the constitutional claim before a federal habeas court. Id. at 89, 97 S.Ct. at 2508. Finally, adherence to a state contemporaneous objection rule maintains integrity in the state judicial process by encouraging that state trial proceedings be as free from error as possible. Id. at 90, 97 S.Ct. at 2508. We found that none of those interests were implicated in a situation where the procedural default consists of a failure to raise on appeal a constitutional issue that was impossible for the defendant to recognize at the time the appeal was taken. Myers, supra, 646 F.2d at 359.

We then tested whether Myers met the Sykes cause and prejudice requirements, and found both clearly met. Id. at 360. However, whether we treat the Sykes rule as inapplicable to the Myers situation or consider those circumstances sufficient to satisfy the "cause" and "prejudice" requirements of Sykes is unimportant. The case before us is distinguishable from Myers. The Washington Court of Appeals affirmed Gibson's conviction on the same day that the Supreme Court held in Mullaney that a jury instruction similar to the one used in Gibson's trial was unconstitutional. With the aid of his attorney, Gibson petitioned the Washington Supreme Court for review. At that time there was no assignment of the jury instruction as error, even though the Mullaney opinion had been published in U.S. Law Week and the Criminal Law Reporter over two months previous to his petition. Two months later, the petition was denied by the Washington Supreme Court. Thus, this situation is clearly distinguishable from Myers. Gibson and his attorney had a four month period in which to raise the jury instruction issue before the Washington Supreme Court. It is possible in such a situation that a defense attorney may intentionally omit an argument while preparing his appeal with the intent of saving the issue for federal habeas consideration. In addition, adherence to the contemporaneous objection rule in the instant situation encourages the state appeals court to enforce strictly its own rule because the state court will not be faced with the possibility that a federal habeas court will later ignore the rule and decide the constitutional question "without the benefit of (the state's) views." Sykes, supra, 433 U.S. at 90, 97 S.Ct. at 2508. We need not examine in detail each of Gibson's arguments with respect to the inapplicability of the Sykes rule, as we hold it clearly applies.

We conclude, however, that Gibson has made a sufficient showing of "cause" and "prejudice" to satisfy the Sykes rule and overcome the bar to federal habeas review. He has asserted two separate...

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