Gray v. Lucas, 83-4404

• Decision Date: 15 July 1983
• Docket Number: No. 83-4404,83-4404
• Citation: 710 F.2d 1048
• Parties: Jimmy Lee GRAY, Petitioner-Appellant, v. Eddie LUCAS and the State of Mississippi, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1048

710 F.2d 1048

Jimmy Lee GRAY, Petitioner-Appellant, v. Eddie LUCAS and the State of Mississippi, Respondents-Appellees.

No. 83-4404.

United States Court of Appeals, Fifth Circuit.

July 15, 1983.

Stephen J. Ellmann, Dennis N. Balske, Montgomery, Ala., Stanfield & Holderfield, Merrida P. Coxwell, Jr., Jackson, Miss., for petitioner-appellant.

William Boyd, Sp. Asst. Atty. Gen., Jackson, Miss., for respondents-appellees.

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

Before POLITZ, TATE and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Jimmy Lee Gray, a Mississippi prisoner awaiting execution, appeals from the district court's order denying him habeas corpus relief. We affirm.

Background

In October 1976 petitioner Jimmy Lee Gray was indicted by a grand jury of Jackson County, Mississippi, in the murder of a three year-old girl. In a bifurcated jury trial, Gray was convicted and sentenced to death. On appeal, the Mississippi Supreme Court reversed the conviction and remanded the case for a new trial. Gray v. State, 351 So.2d 1342 (Miss.1977). On retrial, Gray was again convicted of capital murder and sentenced to death. The Mississippi Supreme Court affirmed both the conviction and the death sentence. Gray v. State, 375 So.2d 994 (Miss.1979). The United States Supreme Court denied Gray's petition for writ of certiorari. Gray v. Mississippi, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 847 (1980), rehearing denied, 448 U.S. 912, 101 S.Ct. 30, 65 L.Ed.2d 1174 (1980).

Gray filed his first applications for writ of error coram nobis and stay of execution before the Mississippi Supreme Court in July 1980. After the state court's summary denial of the writ, Gray filed a petition for habeas corpus in federal district court. The court conducted an evidentiary hearing with respect to several of Gray's twenty-two claims of constitutional violation, denying relief. A panel of this court affirmed. Gray v. Lucas, 677 F.2d 1086 (5th Cir.1982), panel rehearing and rehearing en banc denied, 685 F.2d 139 (5th Cir.1982). The Supreme Court denied certiorari, --- U.S. ----, 103 S.Ct. 1886, 76 L.Ed.2d 815 (1983), rehearing denied, --- U.S. ----, 103 S.Ct. 3099, 76 L.Ed.2d --- (1983). On May 11, 1983, the Mississippi Supreme Court set the execution date for July 6, 1983.

Newly-Presented Claims for Relief

On June 22, 1983 Gray submitted to the Mississippi Supreme Court a Motion for Stay of Execution along with a new application for leave to file a Petition for Writ of Error Coram Nobis. In addition Gray submitted numerous exhibits, in the form of affidavits, supporting the factual allegations of his claims. Gray's petition raised the following seven ¹ claims for Coram Nobis relief, re-stated as re-urged on federal habeas review:

Claim One

PETITIONER IS PRESENTLY INSANE. BECAUSE THE EIGHTH AND FOURTEENTH AMENDMENTS PROHIBIT THE EXECUTION OF AN INSANE PERSON, PETITIONER'S EXECUTION SHOULD BE STAYED

Claim Two

THE TRIAL JUDGE IMPOSED AN IMPROPER BURDEN OF PROOF ON THE PETITIONER AT THE PENALTY

PHASE OF HIS TRIAL WHEN HE INSTRUCTED THE JURY THAT "YOU SHALL WRITE INTO YOUR VERDICT ALL OF THE MITIGATING CIRCUMSTANCES WHICH YOU UNANIMOUSLY FIND TO EXIST IN THIS CASE BY A PREPONDERANCE OF THE EVIDENCE," IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION

Claim Three

THE PROSECUTION'S REPEATED REFERENCES TO PETITIONER'S FUTURE DANGEROUSNESS AND TO THE POSSIBILITY HE WOULD BE RELEASED FROM PRISON AND KILL AGAIN IF GIVEN A LIFE SENTENCE, IN CLOSING ARGUMENT OF THE PENALTY PHASE, INJECTED AN ARBITRARY FACTOR, INTO THE JURY'S SENTENCING DECISION, IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS

Claim Four

IN LIGHT OF THE SUPREME COURT'S RECENT GRANT OF CERTIORARI ON THE ISSUE OF WHAT FORM OF PROPORTIONALITY REVIEW, IF ANY, IS CONSTITUTIONALLY REQUIRED IN CAPITAL CASES, THIS COURT SHOULD GRANT THE APPLICATION IN ORDER TO WITHHOLD JUDGMENT ON THIS ISSUE UNTIL SUCH TIME AS IT CAN DETERMINE WHETHER THE NARROW METHOD USED BY THE MISSISSIPPI SUPREME COURT TO REVIEW PETITIONER'S CASE PASSES CONSTITUTIONAL MUSTER

Claim Five

PETITIONER WAS SENTENCED TO DEATH ON THE BASIS OF AN UNCONSTITUTIONALLY VAGUE AGGRAVATING FACTOR, THAT THE OFFENSE WAS ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL

Claim Six

PETITIONER'S EVIDENCE ESTABLISHES THAT MISSISSIPPI'S LETHAL-GAS METHOD OF EXECUTION CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT, IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION

Claim Seven

PETITIONER'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION

On June 29, 1983, the Mississippi Supreme Court denied all requested relief without benefit of an evidentiary hearing. The court's final order stated, in pertinent part:

The Application for Leave to File a Petition for Writ of Error Coram Nobis, filed June 22, 1983, Petition for Writ of Error Coram Nobis, which includes eight specific grounds, Motion for Stay of Execution pending consideration thereof, and briefs in support of the above, have been considered by the Court, sitting en banc, and it is determined they should each be denied.

It is, therefore, ordered that the Application for Leave to File a Petition for Writ of Error Coram Nobis and Petition for Writ of Error Coram Nobis are hereby denied. It is further ordered that the Motion for Stay of Execution of Sentence, heretofore ordered for July 6, 1983, is denied.

On June 29, 1983, Gray filed the instant Petition for Writ of Habeas Corpus in the federal district court, asserting the same claims as had been submitted to the Mississippi Supreme Court in the recent coram nobis petition. At oral argument the next day, Gray applied for a Stay of Execution and moved for an evidentiary hearing on the merits of his claims. The district court denied Gray's applications for a stay of execution and for certificate of probable cause. While granting Gray's application to proceed on appeal in forma pauperis, the district court withheld ruling on Gray's motion for an evidentiary hearing and petition for habeas corpus. Gray filed a notice of appeal from the district court's denial of a stay of execution.

On July 2, 1983, this court granted Gray's motion for certificate of probable cause and ordered the execution stayed pending further order of the court. Thereafter the State of Mississippi filed in the United States Supreme Court a motion to vacate this court's stay. The court denied the motion.

On July 6, 1983, the Supreme Court issued Barefoot v. Estelle, --- U.S. ----, 103 S.Ct. 3383, 76 L.Ed.2d --- (1983), (No. 82-6080), which pronounced, inter alia, the standards by which the federal appellate courts are to rule on an application for stay of execution and the procedures to be followed. Noting that this court's stay was entered in part because the Barefoot opinion was forthcoming but not yet issued, the state filed in this court a motion to vacate the stay of Gray's execution. In considering the state's motion, we recognized that Barefoot articulated no barrier to our vacating the stay. We ascertained, however, that we would be unable before the scheduled execution deadline to resolve the question of Gray's entitlement to an evidentiary hearing. Accordingly, we ordered that the requests for stay and the merits of Gray's habeas corpus claims be consolidated and heard after appeal from the district court's final judgment was perfected.

The district court dismissed Gray's petition on July 8, 1983. Gray noticed an appeal. We shall consider each of Gray's claims individually, ² after first noting the standard of review.

Standard of Review

Several guiding principles are common to the issues and we pause at the outset to state them, thereafter drawing upon them as the issue at hand requires. Our overarching guide is Barefoot v. Estelle, --- U.S. ----, 103 S.Ct. 3383, 76 L.Ed.2d --- (1983). The court instructed:

Second and successive federal habeas corpus petitions present a different issue [from the first petition]. "To the extent that these involve the danger that a condemned inmate might attempt to use repeated petitions and appeals as a mere delaying tactic, the State has a quite legitimate interest in preventing such abuses of the writ." Brief of Amicus Curiae NAACP Legal Defense and Educational Fund, Inc. 41. Rule 9(b) of the Rules Governing Sec. 2254 Cases states that "a second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief ... [or if] the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." See Sanders v. United States, 373 U.S. 1, 18 [83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148] (1963); Advisory Committee Note to Rule 9(b) 28 U.S.C., p. 273. Even where it cannot be concluded that a petition should be dismissed under Rule 9(b), it would be proper for the district court to expedite consideration of the petition. The granting of a stay should reflect the presence of substantial grounds upon which relief might be granted.

The court by footnote gave added meaning to its requirement that a petitioner make "a substantial showing of the denial of [a] federal right" the court noted:

In requiring a "question of some substance," or a "substantial showing of the denial of [a] federal right," obviously the petitioner need not show that he should prevail on the merits. He has already failed in that endeavor. Rather, he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are "adequate to deserve encouragement to proceed further."

Claim One

Gray contends that his execution should be stayed because of his present insanity. Based upon affidavits presented to the Supreme Court of Mississippi and the federal district court, and found in the record...