Butler v. Rose, 80-1412

• Decision Date: 13 August 1982
• Docket Number: No. 80-1412,80-1412
• Citation: 686 F.2d 1163
• Parties: Robert C. BUTLER, Petitioner-Appellee, v. Jim ROSE, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1163

686 F.2d 1163

Robert C. BUTLER, Petitioner-Appellee, v. Jim ROSE, Warden, Respondent-Appellant.

No. 80-1412.

United States Court of Appeals Sixth Circuit.

Argued April 26, 1982.

Decided Aug. 13, 1982.

William M. Leech, Jr., Atty. Gen. of Tenn., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Tenn., for respondent-appellant.

Larry D. Woods, Nashville, Tenn. (Court-appointed), for petitioner-appellee.

Before EDWARDS, Chief Judge, and LIVELY, ENGEL, KEITH, MERRITT, BROWN, ^* KENNEDY, MARTIN, JONES, CONTIE and KRUPANSKY, Circuit Judges.

LIVELY, Circuit Judge.

The district court granted relief to the petitioner in this habeas corpus case and

this court reversed on appeal. Butler v. Thompson, (6th Cir. 1982). ¹ The judges of this court then voted in favor of rehearing en banc. Rule 14, Rules of the Sixth Circuit provides: "The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket as a pending appeal." Following supplemental briefing the appeal was argued orally to the full bench and submitted for decision.

I.

The petitioner was convicted of rape following a jury trial in the criminal court of Knox County, Tennessee. Butler was a 34-year-old male instructor in sociology at the University of Tennessee at the time of the events which formed the basis of the charge of rape. The complainant, Jean Hudson, was an 18-year-old female student in one of Butler's classes. The Tennessee Court of Criminal Appeals summarized the evidence as follows:

The evidence adduced at trial showed that on October 7, 1976, Jean Hudson, a student at the University of Tennessee in Knoxville, took a sociology test in the office of the defendant, the course instructor. The test had been scheduled for the following day for the whole class, but by previous arrangement Ms. Hudson was allowed to take it early to permit her to accompany her brother to Memphis to visit their parents.

Upon concluding the examination, Ms. Hudson asked Butler about one question, and Butler then engaged her in a discussion, telling her that he enjoyed talking with his students and having them participate in various unspecified experiments. After several minutes of this general conversation during the course of which Butler had been asking Ms. Hudson about her opinions on various matters, he asked her how she would react if a black male approached her and said "let's screw," to which Ms. Hudson replied that she would find such behavior offensive without regard to the man's race. Thereupon, Butler invited his student to participate in an experiment of an undefined nature with him, to which she agreed.

The prosecutrix testified that Butler placed two chairs in a closet in his office and had Ms. Hudson sit in one while he closed the door and sat in the other. In the dark he told Ms. Hudson to perform fellatio, which she refused to do, believing that the experiment was designed to study her response in such a situation. This belief was dispelled, however, when the appellant announced that he was "into violence" and produced a sharp object which he said was a knife and which he held against the victim's neck, threatening to cut her throat if she did not cooperate. After several minutes of fellatio, the appellant made Ms. Hudson stand up while he removed her jeans and panties, then had her sit on his lap so that he was able to have intercourse. Ms. Hudson braced her hands against the wall at about shoulder level during this latter part of the ordeal.

The appellant ultimately relaxed, opened the door and released his victim, according to her unrefuted testimony. Ms. Hudson put her clothes back on, retrieved her purse and books from the desk in the office and walked to the office door, at which point the appellant intercepted her and held his foot against the door, blocking it as she started to open it to leave. He asked her why she didn't stick around for him to get her reaction to his "experiment," but she responded by using both hands to pull the door open. She did not run as she escaped, fearful that Butler would chase her, but she chose the longer route out of the building so as to avoid the possibility of being entrapped in a stairwell near the instructor's office.

Upon returning to her dormitory room, Ms. Hudson disclosed these facts to her roommate, at whose urging Ms. Hudson contacted the university police. An officer took the prosecutrix to the university Butler did not testify. The only positive evidence adduced by the defense was testimony by a woman who was in class with Butler from 4:00 to 5:15 p. m. on the day in question, roughly one and one-half to two hours after the conduct in question. This witness testified that while in her presence Butler behaved normally.²

hospital, where she was examined and released. On separate occasions she told that policeman and a second officer who handles rape cases for the university what had happened. Each recounting of the events was highly consistent with the others. Detective Phillips testified that she observed a discoloration on Ms. Hudson's neck while the victim was talking to her.

II.

A.

The petitioner's conviction was affirmed by the Tennessee Court of Criminal Appeals and certiorari was denied by the Supreme Court of Tennessee. Butler was represented by counsel at the trial and on appeal. Following denial of certiorari by the Supreme Court of Tennessee Butler filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Middle District of Tennessee. Though the named respondent was the warden of a state prison having Butler in his custody, we will refer to the respondent-appellant in this opinion as "the state."

B.

In his pro se application for habeas relief the petitioner listed five grounds: (1) Improper argument by the prosecuting attorney in which defense counsel was accused of attempting to defraud the jury; (2) impermissible reference by the prosecuting attorney in his closing argument to the fact that petitioner had not testified; (3) failure of the state to prove guilt by a preponderance of the evidence; (4) the punishment imposed by the jury (life imprisonment) was "unreasonable and arbitrary"; (5) error by the trial court in refusing to receive evidence concerning the method of selecting jurors. The district court found that claim (2) was meritorious and did not consider the other grounds asserted by the petitioner. However, the district court did consider "cumulative factors" which were found to support its conclusion that relief was proper, though these "factors" were not included in the specific grounds on which the petitioner based his claim.

C.

Petitioner was very specific with respect to ground (2) in his application.

The State's Attorney committed prejudicial error in final argument by making reference to the fact that the petitioner presented no proof to refute the State's proof. At page 188 of the Bill of Exceptions beginning at line 9 through 15, and then on page 190, line 10 through 15, the State's Attorney commented on the petitioner's failure to testify. Also, the trial judge's cautionary instruction given to the jury at that time reemphasized the Assistant District Attorney's comment on the petitioner's failure to testify.

The two statements referred to and relied upon by petitioner are the following:

Well, I submit to you, ladies and gentlemen, that you cannot allow that to happen in this case. Mr. Butler is an instructor and you have got to tell him as Bill of Exceptions, page 188, lines 9-15 (emphasis in original).

an instructor he cannot do this and get away. He cannot do this and just get back and have an attorney say, "ah, she is just not telling the truth." Without putting one witness to show why she might be telling otherwise or how she might be telling otherwise.

Apparently what Mr. Ellis is saying is that in a rape case we are just going to always say it is just made up and put on no proof to show why it was made up or anything to indicate the witness is lying in any way and then you just can't convict, couldn't convict in any rape case.

Bill of Exceptions, page 190, lines 10-15.

Immediately following the second statement, defense counsel made his only objection in the following colloquy:

MR. ELLIS: Your Honor, I normally wouldn't object to that in argument, but I think that he has categorized some things into an area of protection that we have. He is classifying all the witnesses. I think he is going to have to qualify that. Because the defendant is under no obligation to testify. But yet under his argument he would be included in that class of witnesses.

THE COURT: He is not commenting on that, in my opinion, Mr. Ellis, and he is not entitled to comment on it. And the Court will charge that the defendant has the right not to testify.

MR. ELLIS: Thank you, Your Honor.

MR. GILL: I am referring to independent witnesses outside the party, Your Honor.

THE COURT: Why don't you make that clear to the jury?

III.

A.

The state contends the district court erred in granting relief on the basis of issues which had not been raised in the state courts. This argument refers to the district court's reliance on "cumulative factors," and seeks to apply to this situation the Supreme Court's recent decision requiring complete exhaustion of state remedies. See Rose v. Lundy, --- U.S. ----, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). In Rose v. Lundy, the Court held that district courts must dismiss "mixed petitions"-those containing unexhausted as well as exhausted claims-rather than deciding the exhausted ones and dismissing the unexhausted ones. 102 S.Ct. at 1199, 1205. We do not read Rose v. Lundy as requiring a court of appeals to direct dismissal of a habeas corpus petition because the district court relied in part on issues which it raised, sua sponte, rather than relying solely on...