Bates v. Blackburn

• Citation: 805 F.2d 569
• Decision Date: 10 December 1986
• Docket Number: No. 86-3397,86-3397
• Parties: Norman BATES, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, et al., Respondents- Appellees. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 569

805 F.2d 569

Norman BATES, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, et al., Respondents- Appellees.

No. 86-3397

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Dec. 10, 1986.

Rehearing and Rehearing En Banc Denied Jan. 7, 1987.

Norman Bates, pro se.

William A. Marshall, Michael E. McMahon, Asst. Dist. Attys., New Orleans, La., for respondents-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, GARWOOD and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

Norman Bates appeals from the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. In this appeal Bates contends that several due process violations and ineffective assistance of counsel during his state criminal prosecution justify habeas relief, and, therefore, the district court erroneously denied his writ. Having considered Bates' allegations, we are unpersuaded that he deserves habeas relief and thus affirm the district court.

I.

Norman Bates is a state prisoner currently serving a life sentence at the Louisiana State Penitentiary in Angola, Louisiana. On November 22, 1976, Bates and a fellow employee at Braswell Motor Freight Company, Jack McGraw, got into an argument in the company's New Orleans terminal parking lot. The argument between the two centered on seniority and the number of truckloads McGraw was obtaining. Donald Beter, who was working as a dock foreman on the evening of November 22, witnessed the confrontation. As the two men argued, Beter heard a shot and noticed that McGraw was wounded in the chest. Beter also heard McGraw shout, "The son of a bitch shot me, he shot me." ¹ Beter immediately called the police and Bates remained at the terminal until they arrived.

On December 9, 1976, Bates was indicted by an Orleans Parish Grand Jury for first-degree murder. At trial Bates testified that the argument with McGraw had become very heated, that he acted only in self-defense, and that he had not intended to kill McGraw but only wound him. The trial judge instructed the jury on the elements of first degree murder and those of the lesser responsive verdicts. Under the Louisiana scheme of responsive verdicts, the jury could return a verdict of either guilty as charged, guilty of second-degree murder, guilty of manslaughter, or not guilty. La.Code Crim.Proc.Ann. art. 814 (West Supp.1986). On November 5, 1977, the jury found Bates guilty of second-degree murder. He was subsequently sentenced to life without benefit of probation, parole, or suspension of sentence for forty years. He perfected an appeal of his conviction, and the Louisiana Supreme Court affirmed the conviction without opinion. State v. Bates, 377 So.2d 1258 (La.1979) (mem.).

In 1983 Bates filed a petition for writ of habeas corpus in the Orleans Criminal District Court based upon violations of his federal constitutional rights of due process of law and effective assistance of counsel. The petition was denied without opinion. On appeal the Louisiana Supreme Court denied Bates habeas relief again without opinion. State ex rel. Bates v. Maggio, 457 So.2d 10 (La.1984) (mem.). Having exhausted his state court remedies, as the state concedes, Bates proceeded to the federal district court in Louisiana seeking habeas relief. The district court denied Bates petition for relief. Shortly thereafter the court issued a certificate of probable cause to appeal and allowed Bates to proceed in forma pauperis. Bates perfected an appeal to this court.

II.

Bates raises four grounds for habeas relief: (1) denial of due process of law because the verdict is contrary to the evidence adduced during his trial; (2) denial of due process in that the trial court incorrectly instructed the jury on specific intent so that the burden of proving every element of the crime was shifted; (3) denial of due process of law by the trial judge's failure to properly instruct the jury as to how many jurors must concur in reaching a responsive verdict; and (4) ineffective assistance of counsel.

A.

Bates' first contention presents a two-fold issue. The first is whether his conviction for second-degree murder is constitutionally infirm, and, the second is whether he is barred under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), from successfully asserting this infirmity, if any, in a federal forum.

At the time Bates shot McGraw, Louisiana defined first-degree murder as "the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm." La.Rev.Stat.Ann. Sec. 14:30 (West 1976), now amended and reprinted in, La.Rev.Stat.Ann. Sec. 14:30 (West 1986). Second-degree murder was defined at that same time as "the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill." La.Rev.Stat.Ann. Sec. 14:30.1 (West 1976), now amended and reprinted in, La.Rev.Stat.Ann. Sec. 14:30.1 (West 1986). The Louisiana court instructed the jury as to the first-degree murder charge against Bates and to the responsive verdicts, including second-degree murder. Bates' attorney made no objection to the charge despite the fact that Louisiana has a contemporaneous objection rule in criminal proceedings. See La.Code Crim.Proc.Ann. art. 841 (West 1986).

In his habeas petitions in both state and federal courts Bates has asserted that his conviction for second-degree murder is not supported by sufficient evidence and therefore violates the dictates of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). ² The district court found that Bates' conviction for second-degree murder was not supported by any evidence that Bates killed McGraw while engaged in the perpetration or attempted perpetration of one of the enumerated felonies set out in section 14:30.1. The district court concluded that Bates' conviction for second-degree murder violated due process standards as articulated in Jackson v. Virginia.

We, however, as the district court also found, need not and cannot reach the merits of Bates' claim because Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), bars Bates' sufficiency-of-evidence claim. ³ In Sykes the Supreme Court considered the availability of federal habeas corpus to review a state inmate's constitutional claim where the petitioner had failed to comply with a state "contemporaneous objection" rule. The Court held that when a procedural default bars litigation of a constitutional claim in state court, federal courts are precluded from addressing the merits and federal habeas relief is unavailable absent a showing of cause for the noncompliance and some actual prejudice resulting from the alleged constitutional violation. Id. at 84, 97 S.Ct. at 2505. See also Reed v. Ross, 468 U.S. 1, 13, 104 S.Ct. 2901, 2909, 82 L.Ed.2d 1, 13 (1984); Engle v. Isaac, 456 U.S. 107, 131, 102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982); Webb v. Blackburn, 773 F.2d 646, 649 (5th Cir.1985). See generally Wright, Miller & Cooper, Federal Practice and Procedure Sec. 4266, at 679-82 (1978) (discussing Sykes and its effects on federal habeas relief). The Sykes rule is based upon respect for state sovereignty, finality of judgments, accuracy of decision, and trial integrity. Price v. King, 714 F.2d 585, 587 (5th Cir.1983); see also Preston v. Maggio, 705 F.2d 113, 115 (5th Cir.1983).

This court outlined the analytical approach for application of Sykes in Preston v. Maggio, 705 F.2d at 115. We stated:

After Sykes then, a federal habeas court is called upon to make the following analysis before relief may be granted. First, it must decide whether the state court applied the procedural bar in denying the petitioner's federal constitutional claim. Second, assuming that a state court applied the procedural bar, the federal court must consider whether there was adequate cause for the petitioner's failure to comply with the procedural rule. And third, assuming adequate cause, the federal court must decide whether the petitioner suffered actual prejudice from the alleged constitutional violation before habeas relief may be granted. Cause-and-prejudice analysis is, therefore, triggered only if the federal court determines that the state courts have refused to hear a petitioner's federal constitutional claim because of a state law procedural default.

Id. at 115 (citations omitted); see also Glass v. Blackburn, 791 F.2d 1165, 1169-70 (5th Cir.1986); Webb v. Blackburn, 773 F.2d 646, 649 (5th Cir.1985); Price v. King, 714 F.2d 585, 587 (5th Cir.1983).

Applying the above analysis, we first determine whether the Louisiana courts applied their contemporaneous objection rule as a procedural bar in denying Bates' alleged constitutional claim. The determination of whether a state procedural bar was invoked by the state courts is made on a case-by-case basis. Where the state court is silent as to its reason for denying relief, the absence of reliance on an available procedural ground does not mandate a conclusion that the decision was not based on procedural grounds. Preston, 705 F.2d at 116. Likewise, the mere availability of a procedural ground does not compel a conclusion that this ground formed the basis for the court's holding. Id. at 116. Where the state courts have been silent on the grounds for their denials of habeas relief, we consider: (1) whether the state court has used the procedural default of contemporaneous objection in similar cases to preclude review of a claim's merits; (2) whether the history of the case suggests that the state courts were aware of the procedural default; and (3) whether...