Clark v. Rose
Decision Date | 16 March 1984 |
Docket Number | Civ. A. No. 3:83-0766. |
Citation | 611 F. Supp. 294 |
Parties | Stanley Barham CLARK, Petitioner, v. Jimmy C. ROSE, etc., Respondent. |
Court | U.S. District Court — Middle District of Tennessee |
Scott Daniel, Murfreesboro, Tenn., for petitioner.
Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Nashville, Tenn., for respondent.
The petitioner Mr. Stanley Barham Clark applied pro se to this Court for the federal writ of habeas corpus, claiming that he is in the custody of the respondent-warden pursuant to the judgment of July 27, 1979 of the Circuit Court of Rutherford County, Tennessee in violation of the Constitution. 28 U.S.C. § 2254(a). Annexed to his application is Mr. Clark's affidavit that he is unable to pay the cost of this proceeding or give security therefor and a statement of his belief that he is entitled to redress. 28 U.S.C. § 1915(a). Accordingly, he hereby is
AUTHORIZED to commence and prosecute this proceeding without prepayment of fees or costs or giving security therefor. Id.
The applicant claims he exhausted remedies available to him under the law of Tennessee, 28 U.S.C. § 2254(b), by his direct appeal of his judgment of conviction to the Court of Criminal Appeals of Tennessee, which affirmed such judgment on July 27, 1981, and by applying for permission to appeal farther, which application was denied by the Supreme Court of Tennessee. He contends inferentially that he presented fairly to those Courts his federal claims of violations in his trial of:
—his right not to "be compelled in any criminal case to be a witness against himself," Constitution, Fifth Amendment; Smith v. Estelle, 602 F.2d 694, 704 (5th Cir.1979), reh. den., 606 F.2d 321 (1979), aff'd. sub nom. Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) ();
—his right "to have the Assistance of Counsel for his defence," Constitution, Sixth Amendment; "a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him" Pointer v. State of Texas, 380 U.S. 400, 406-407, 85 S.Ct. 1065, 106910, 13 L.Ed.2d 923 (1965), although a defendant's right "to be informed of the nature and cause of the accusation against him" did not require the state of Tennessee to furnish him with its proof in its original form, Bosley v. State, 218 Tenn. 134, 401 S.W.2d 770, 7711 (1966); and,
—his right not to be deprived by the state of Tennessee "of * * * liberty * * * without due process of law," Constitution, Fourteenth Amendment; Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 24596, 61 L.Ed.2d 39 (1979) ( )
On examination for purposes of preliminary consideration, it thus does not appear plainly from the face of the applicant's petition that he is not entitled to relief in this Court at this time. Rule 4, 28 U.S.C. fol. § 2254. Therefore, it hereby is ORDERED:
1. that the respondent-warden file an answer or other pleading within 43 days herefrom, id., the noticed slow-movement of the mail providing good cause for additional time, 28 U.S.C. § 2243; Rule 81(a)(2), F.R.Civ.P.; and,
2. that the clerk of this Court serve forthwith by certified mail on the respondent-warden (or his successor) and the attorney general and reporter of Tennessee a copy of the petition herein and of this order, Rule 4, supra.
ENTER:
ON MOTION TO FILE ANSWER OUT-OF-TIME ORDERS
It hereby is
ORDERED that counsel for the petitioner1 file within 20 days herefrom2 a brief addressing the issue:
Whether the jury instructions of the trial judge regarding the presumption of malice, see Transcript, vol. 8 at 1086, 1087-1089, were constitutionally deficient under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 39 2450, 61 L.Ed.2d 39 (1979), and, if so, whether such error was harmless.
See Phillips v. Rose, 690 F.2d 79 (6th Cir. 1982) and Engle v. Koehler, 707 F.2d 241 (6th Cir.1983), cert. grant., ___ U.S. ___, 104 S.Ct. 231, 78 L.Ed.2d 224 (1983).
This is an application by a state-prisoner for the federal writ of habeas corpus. 28 U.S.C. § 2254(a). The petitioner Mr. Stanley Barham Clark was convicted on July 20, 1979 in the Circuit Court of Rutherford County, Tennessee of murder in the first and second degrees.1Inter alia,2 Mr. Clark contends that certain instructions given the jury shifted effectively the burden of proving malice, an essential element of the crimes charged, from the prosecution to him, in violation of his right to due process of law, Constitution, Fourteenth Amendment. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).3 Under the law of this Circuit, such contention has merit.
On the cold, rainy night of December 30, 1978, Mr. Charles Browning and his companion Ms. Joy Faulk were shot to death at near point-blank range while they sat in the cab of Mr. Browning's pickup-truck in a rural area of Rutherford County, Tennessee. Ms. Faulk's two young daughters Mitzi and Michelle, ages 6 and 3, respectively, were with their mother at the time of the shooting and were found afterward wandering along a roadway in search of assistance. The petitioner, a former live-in boyfriend of Ms. Faulk who had threatened to kill her if he ever caught her with another man, was charged with two counts of murder in the first-degree. His trial began on July 16, 1979 and was presided over by the Honorable William S. Russell.4
The Court of Criminal Appeals of Tennessee characterized the case against Mr. Clark as substantially circumstantial5 and involving " * * * a somewhat complicated domestic situation. * * * " State of Tennessee, appellee, v. Stanley Barham Clark, appellant, unpublished opinion of February 27, 1981 in no. 79-106-II. Such appellate Court summarized the evidence thusly:
The trial-judge instructed the jury6 that in order to find the petitioner guilty of murder in the first degree, the State must have proven beyond a reasonable doubt inter alia:
Transcript, pp. 1084-1085. As to the lesser-included offense of murder in the second-degree, the jury was instructed that the State must have proven beyond a reasonable doubt inter alia that the killing "was malicious" and that malice "is an essential ingredient" of second-degree murder. Ib., at 1086. Additionally, the trial judge charged:
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