820 F.2d 1137 (11th Cir. 1987), 86-7162, Lindsey v. Smith

Docket Nº:86-7162.
Citation:820 F.2d 1137
Party Name:Michael LINDSEY, Petitioner-Appellant, v. Fred SMITH, Commissioner, Alabama Department of Corrections, J.D. White, Warden Holman Unit, Respondents-Appellees.
Case Date:June 12, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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820 F.2d 1137 (11th Cir. 1987)

Michael LINDSEY, Petitioner-Appellant,

v.

Fred SMITH, Commissioner, Alabama Department of Corrections,

J.D. White, Warden Holman Unit, Respondents-Appellees.

No. 86-7162.

United States Court of Appeals, Eleventh Circuit

June 12, 1987

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Louis E. Braswell, David A. Bagwell, Mobile, Ala., for petitioner-appellant.

John Gibbs, William Whatley, Ed Carnes, Asst. Attys. Gen., Montgomery, Ala., for respondents-appellees.

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

Before TJOFLAT, VANCE and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

Michael Lindsey, an Alabama prisoner under sentence of death, appeals the denial by the district court of his petition for habeas corpus. The district court denied relief on grounds that several of appellant's claims are procedurally barred and that the remaining claims are without merit. We conclude that appellant has not demonstrated that he is entitled to habeas relief. Accordingly, we affirm. 1

I. BACKGROUND

Appellant was convicted in 1982 for the December 1981 murder of Rosemary Rutland, a 63-year-old widow. Mrs. Rutland was killed in her home by stabbing and a pistol shot. She had been gagged and her hands bound behind her; her house was ransacked. Appellant, a neighbor of Mrs. Rutland, was arrested the morning following the murder after he attempted to use credit cards belonging to the victim.

Appellant's first trial was declared a mistrial after the jury twice informed the judge that it could not reach a verdict. On retrial, appellant's wife and other members of his household testified that on the evening of the murder appellant made a series of trips to bring household items into their home, but that he refused to state where he had obtained the merchandise. These items were identified at trial as belonging to the victim. An eleven-year-old boy who lived in appellant's house testified also that he saw appellant driving the victim's car on the night of the murder and that he saw a pistol stuffed into appellant's pants. The only evidence discovered inside the victim's home to link appellant to the crime was his palm print on an air pump found in an open suitcase in a bedroom.

The most significant evidence against appellant at the second trial was testimony by Officer Hubert Bell that appellant had given an unrecorded statement in which he admitted killing Mrs. Rutland. Bell stated that appellant confessed to him immediately following a recorded session during which appellant was questioned by several officers. He testified that he and appellant were awaiting the arrival of guards to transfer appellant back to the jail when appellant admitted that he had killed the

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victim because she recognized him when she discovered him robbing the house. In the recorded statement given only minutes before, appellant told the officers that "Bob," a man who had given him a ride the day before, had burglarized Mrs. Rutland's home. He said that "Bob" had given him the victim's credit cards and had handed him stolen goods across the fence that separated the victim's yard from appellant's. In the recorded statement, appellant denied any knowledge of the murder. At appellant's first trial, the recorded statement was admitted into evidence, but Bell did not testify and the unrecorded murder confession was not otherwise introduced.

At the second trial the jury found appellant guilty of capital murder and recommended by a vote of eleven to one that the judge sentence him to life in prison. The judge, however, found that "aggravating factors far outweigh[ed] any mitigating factors," and imposed the death penalty. 2 The verdict and sentence were upheld on appeal. Lindsey v. State, 456 So.2d 383 (Ala.Crim.App.1983), aff'd sub nom. Ex parte Lindsey, 456 So.2d 393 (Ala.1984), cert. denied, 470 U.S. 1023, 105 S.Ct. 1384, 84 L.Ed.2d 403 (1985).

After the Alabama Supreme Court set an execution date, appellant's state court trial counsel filed a petition for writ of error coram nobis in Alabama circuit court. The court denied the petition without a hearing and without opinion. The Alabama Supreme Court denied a stay of execution pending appeal to that court, and appellant immediately filed his petition for habeas corpus in federal district court. Only hours before the scheduled execution, the district court entered a stay.

In his petition for federal habeas corpus, appellant asserts numerous claims challenging the constitutionality of various aspects of the guilt phase of his trial, his sentencing, and the Alabama capital punishment statute. 3 After accepting the state's waiver of exhaustion, 4 see Granberry v. Greer, --- U.S. ----, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987); Thompson v. Wainwright, 714 F.2d 1495 (11th Cir.1983), cert. denied, 466 U.S. 962, 104 S.Ct. 2180, 80

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L.Ed.2d 562 (1984), the district court determined that appellant was procedurally barred from asserting several claims that had not been raised at trial or on direct appeal as required by Alabama law. 5 The court dismissed either for failure to state a claim or on the merits all the remaining claims 6 except one alleging ineffective assistance of counsel. 7

The court subsequently held an evidentiary hearing to determine whether appellant could establish cause under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), to justify federal habeas review of the claims barred by state procedural rules. 8 The court also considered whether appellant's trial counsel was ineffective under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Based on facts developed at the hearing, the court concluded that cause did not exist to excuse appellant's procedural bar and that the efforts of appellant's trial attorneys did not deprive appellant of his constitutional right to effective assistance of counsel. The court consequently denied the petition.

II. PROCEDURAL BAR

On appeal, appellant contends that the district court erred in finding him procedurally barred from raising several of his claims and in denying his remaining claims on the merits. On the issue of procedural bar, appellant notes that the state court that denied his coram nobis petition did not clearly indicate that it relied on procedural grounds, but instead simply marked the petition "denied." Thus, he asserts, the claims must be presumed to have been resolved on the merits and therefore properly before the federal habeas court. See Oliver v. Wainwright, 795 F.2d 1524, 1528-29 (11th Cir.1986). The state argues that the district court properly found the claims to be procedurally barred despite the failure of the coram nobis court to indicate its reliance on state procedural rules. The state contends that because the Alabama courts have consistently applied their rules of procedural default, the coram nobis court could not have reached the merits of appellant's claims. See Preston v. Maggio, 705 F.2d 113, 116-17 (5th Cir.1983), cert. denied, 471 U.S. 1104, 105 S.Ct. 2334, 85 L.Ed.2d 850 (1985).

Whether a state court's denial without opinion of a petitioner's claims should be construed by a federal habeas court as a decision on the merits is a question that this court has agreed to consider en banc. See Hargrave v. Wainwright, 804 F.2d 1182 (11th Cir.1986), reh'g en banc granted, 809 F.2d 1486 (11th Cir.1987); see also Reed v. Ross, 468 U.S. 1, 8 n. 5, 104 S.Ct. 2901, 2906 n. 5, 82 L.Ed.2d 1 (1984) (declining

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to consider effect of state court's failure to rely explicitly on procedural bar). We need not await resolution of this issue, however, to reach a decision in this case.

One of the federal habeas claims asserted by appellant was not raised in the state coram nobis proceedings, and thus properly was found by the district court to be procedurally barred. In his fourth amended habeas petition, appellant, who is black, contended that the exclusion of blacks from his jury by the use of peremptory strikes by the prosecutor was part of a broader, consistent pattern of racially based exclusions and therefore constituted an equal protection violation under the standards set forth in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In his state coram nobis petition, however, appellant alleged only that the prosecutor used peremptory strikes to exclude blacks from the jury at his own trial. By failing to allege a systematic exclusion of blacks from juries in trials other than his own, appellant did not state a facially sufficient Swain claim. See id. at 221-22, 85 S.Ct. at 836; cf. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (recognizing equal protection violation based upon racially discriminatory strikes only in defendant's own trial); Griffith v. Kentucky, --- U.S. ----, 107 S.Ct. 708, 710-11, 93 L.Ed.2d 649 (1987) (discussing distinctions between prima facie claims under Batson and Swain); Allen v. Hardy, --- U.S. ----, 106 S.Ct. 2878, 2879, 92 L.Ed.2d 199 (1986) (same). The state court's summary denial of the peremptory strike claim contained in the coram nobis petition thus cannot be construed as a decision on the merits of the Swain claim that appellant now attempts to assert. See Allen v. Hardy, 106 S.Ct. at 2881 n. 4, aff'g 577 F.Supp. 984, 987 (N.D.Ill.1984).

Moreover, appellant never raised a facially sufficient Swain claim before any state court. At trial, appellant's attorney cited Swain in objecting to the prosecutor's peremptory strikes of black venire members, but he did not allege the systematic discriminatory exclusions necessary to establish a Swain...

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