Wiley v. Puckett

• Decision Date: 20 July 1992
• Docket Number: No. 90-1599,90-1599
• Citation: 969 F.2d 86
• Parties: William L. WILEY, Petitioner-Appellant, v. Steve W. PUCKETT, Superintendent, Mississippi State Penitentiary, and Mike Moore, Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 86

969 F.2d 86

William L. WILEY, Petitioner-Appellant, v. Steve W. PUCKETT, Superintendent, Mississippi State

Penitentiary, and Mike Moore, Attorney General,

Respondents-Appellees.

No. 90-1599.

United States Court of Appeals, Fifth Circuit.

July 20, 1992.

Amended Aug. 5, 1992.

Coleman S. Hicks, Steven Semeraro, Covington & Burling, Washington, D.C., T.H. Freeland IV, Freeland, Freeland & Wilson, Oxford, Miss., for petitioner-appellant.

Marvin L. White, Jr., Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, Miss., for respondents-appellees.

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

Before POLITZ, Chief Judge, KING and GARWOOD, Circuit Judges.

KING, Circuit Judge:

William L. Wiley, a Mississippi prisoner under a sentence of death, appeals from the district court's denial of his petition for a writ of habeas corpus. He raises six distinct issues for our review, including a claim that his sentence should be invalidated because it was based in part on the aggravating circumstance that the murder was "especially heinous, atrocious or cruel." After hearing oral argument, ¹ we reserved decision until the Supreme Court determined whether Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the case upon which the aggravating circumstance claim was founded, could be applied retroactively to persons such as Wiley whose death sentences became final before that decision was issued. The Court has now decided in Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), that Clemons did not announce a new rule for purposes of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and so may be applied retroactively. After receiving supplemental briefing on the effect of Stringer, we are prepared to rule on all of Wiley's claims.

I. BACKGROUND AND PROCEDURAL HISTORY

On August 22, 1981, after J.B. Turner and his daughter closed the convenience store Turner operated in DeSoto County, Mississippi, Wiley emerged from a hiding place and fired three shots from a shotgun. Turner's daughter, Patricia Harvey, was injured, and Turner died on the scene. Wiley took a small money box containing $350 to $400 and fled, leaving the shotgun. Federal agents connected the shotgun to Wiley, and Wiley was eventually arrested in Memphis, Tennessee. Wiley confessed to the robbery and murder and was tried for capital murder.

Wiley was convicted of capital murder, which in Mississippi includes a murder committed in the course of a robbery, and sentenced to death. On appeal, the Mississippi Supreme Court affirmed the conviction, but reversed the death sentence because of improper comments by the prosecutor. Wiley v. State, 449 So.2d 756 (Miss.1984). The second sentencing hearing resulted in a second death sentence. This time the Mississippi Supreme Court affirmed. Wiley v. State, 484 So.2d 339 (Miss.), cert. denied, 479 U.S. 906, 107 S.Ct. 304, 93 L.Ed.2d 278 (1986) (Wiley II ). Wiley then sought post-conviction relief under the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss.Code Ann. § 99-39-1 et seq. (Supp.1991). The Mississippi Supreme Court again denied relief. Wiley v. State, 517 So.2d 1373 (Miss.1987), cert. denied, 486 U.S. 1036, 108 S.Ct. 2024, 100 L.Ed.2d 610 (1988) (Wiley III ). The court refused to hear eight of Wiley's claims because they had already been litigated on direct appeal and were thus res judicata under state law. Id. at 1377. The court refused to hear an additional eight claims on the ground that they had not been raised at trial or on direct appeal and were therefore procedurally barred. Id. at 1378. On the only claims open for review, the court held that Wiley had not been deprived of effective assistance of counsel at the trial or sentencing. Id. at 1382-83.

Wiley then initiated habeas proceedings in federal district court. The court held seven claims procedurally barred. It reviewed the remaining claims on the merits, but found that none warranted relief. In addition, it refused to grant an evidentiary hearing on Wiley's claim that he was denied effective assistance of counsel. ² We granted a certificate of probable cause to appeal.

Wiley asks us to review the following issues, all of which relate to the second sentencing hearing:

1. Whether the death sentence is invalid under the Eighth Amendment because (a) the jury was instructed to consider whether the murder was "especially heinous, atrocious or cruel" and (b) the jury found two aggravating circumstances (murder for robbery and murder for pecuniary gain) arising out of the same conduct.

2. Whether the district court erred in holding that Wiley was not entitled to an evidentiary hearing on his claim that he received ineffective assistance of counsel at the sentencing phase.

3. Whether the prosecution's exclusion of all but one black juror from the sentencing jury violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

4. Whether the prosecutor improperly referred to the character of the victim.

5. Whether several statements made by the prosecutor deprived Wiley of a fair trial.

6. Whether the introduction of photographs of the victim was unduly prejudicial.

II. AGGRAVATING CIRCUMSTANCES CLAIMS

Under Mississippi law, the jury may impose a death sentence on a person convicted of capital murder if it finds one or more statutorily defined aggravating circumstances, and then determines that the aggravating circumstance or circumstances outweigh any mitigating circumstances. Miss.Code Ann. § 99-19-101 (Supp.1991). Mississippi is, therefore, what has been termed a "weighing" state. Stringer, 112 S.Ct. at 1136. At Wiley's sentencing, the trial judge instructed the jury, over Wiley's objection, that it could consider four aggravating circumstances. These were (1) whether the capital offense was committed during the commission of an attempt to commit the crime of robbery; (2) whether the capital offense was committed for pecuniary gain; (3) whether the capital offense was especially heinous, atrocious or cruel; and (4) whether the defendant was previously convicted of a felony involving the use or threat of violence to the person. Wiley II, 484 So.2d at 350. In a written verdict, the jury stated that it found the first three aggravating circumstances. The jury further stated that the mitigating evidence did not outweigh the aggravating circumstances, and accordingly sentenced Wiley to death. Wiley II, 484 So.2d at 342. Wiley objects that his death sentence is invalid under the Eighth Amendment for two reasons: the "especially heinous" aggravating circumstance was too vague and imprecise to channel the sentencer's discretion, and the robbery and pecuniary gain circumstances were duplicative.

A. "Especially Heinous" Aggravating Circumstance

Nearly two years after Wiley's death sentence became final, the Supreme Court invalidated a death sentence in which the jury had considered the "especially heinous, atrocious or cruel" aggravating circumstance without being given a limiting instruction. Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). The Court found, first, that the language of the aggravating circumstance was so vague and imprecise as to risk imposition of the death penalty in an arbitrary and capricious manner. Id. at 364, 108 S.Ct. at 1859. Second, the Court found that the Oklahoma Court of Criminal Appeals had failed to apply a limiting construction to the vague aggravating circumstance when reviewing the defendant's death sentence. The Oklahoma court's mere conclusion that the evidence supported the jury's finding of the aggravating circumstance was, in the view of the Supreme Court, insufficient to "cure the constitutional infirmity of the aggravating circumstance." Id. Maynard was based in large part on Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), in which the Court had identified similar flaws in Georgia's use of the aggravating circumstance that the murder "was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Id. at 422, 100 S.Ct. at 1762. As in Maynard, the jury in Godfrey had been instructed only in the bare words of the statute and the state supreme court failed to apply a limiting construction to the aggravating circumstance when reviewing the death sentence. See Godfrey, 446 U.S. at 428-29, 100 S.Ct. at 1765.

Shortly after Maynard was decided, the Court was confronted with the question whether, in a weighing state, infection of the capital sentencing determination with a vague aggravating factor required invalidation of the death sentence. In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the Court answered this question in the negative but required that an appellate court reviewing the sentence focus carefully on the role the invalid factor played in the process. As in Maynard and the instant case, the Clemons jury had not received a limiting instruction further defining the concept of an "especially heinous, atrocious or cruel" killing. Implicit in the opinion was the assumption that this amounted to constitutional error. See Stringer, 112 S.Ct. at 1139; Clemons, 494 U.S. at 756 n. 1, 110 S.Ct. at 1452, n. 1 (Blackmun, J., concurring in part and dissenting in part). The questions in Clemons were whether the Sixth and Eighth Amendments barred the state appellate court from upholding the death sentence despite the jury's use of a vague aggravating factor and whether, if an appellate court could do so, the Mississippi Supreme Court had conducted the proper analysis of Clemons's sentence.

The Court first concluded in Clemons that nothing in the Sixth or Eighth Amendments prevents an appellate court that has invalidated an aggravating factor from reweighing the remaining valid aggravating factors and the mitigating...