Cole v. Stevenson, No. 78-6211

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, and SPROUSE; WIDENER; MURNAGHAN; Thus, in terms of strict logic; HAYNSWORTH, C. J., and WINTER; HAYNSWORTH; I concur in the dissenting opinion of MURNAG
Citation620 F.2d 1055
PartiesJames Lewis COLE, Appellee, v. L. V. STEVENSON, Superintendent; and Attorney General of the State of North Carolina, Rufus L. Edmisten, Appellants.
Docket NumberNo. 78-6211
Decision Date05 May 1980

Page 1055

620 F.2d 1055
James Lewis COLE, Appellee,
v.
L. V. STEVENSON, Superintendent; and Attorney General of the
State of North Carolina, Rufus L. Edmisten, Appellants.
No. 78-6211.
United States Court of Appeals,
Fourth Circuit.
Argued Oct. 2, 1979.
Decided May 5, 1980.

Page 1056

Richard N. League, Asst. Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen. of North Carolina, Raleigh, N. C., on brief), for appellants.

Barry Nakell, University of North Carolina School of Law, Chapel Hill, N. C., for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, and SPROUSE, Circuit Judges.

WIDENER, Circuit Judge:

The petitioner, James Lewis Cole, was convicted in a North Carolina State court of second degree murder. After a series of State appeals, which will be discussed in more detail below, Cole filed a petition for a writ of habeas corpus in the federal district court, alleging that the State trial court improperly instructed the jury by placing the burden on the defendant to prove self-defense and an absence of malice, and that this shifting of the burden of proof violated the due process clause of the Fourteenth Amendment as construed in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The district court granted the petition. As we construe Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), we are of opinion the prisoner is barred from litigating his claim on federal habeas corpus because in his direct appeal he (1) failed to except to the alleged error in the jury instructions in his assignments of error on appeal as required by North Carolina Rule of Appellate Procedure 10(a) and (b)(2), 1 and (2) failed to

Page 1057

otherwise raise the issue in his appeal. These two failures foreclosed both direct and collateral attack of the conviction in North Carolina courts, and are an adequate and separate State ground for denying relief. We therefore reverse.

During the trial, Cole's attorney did not object to the jury instructions on the ground that they improperly shifted the burden of proof to the defendant. This lack of objection, however, would not prevent the issue from being raised on appeal, for North Carolina does not have in this setting a contemporaneous objection rule requiring objection to jury instructions at trial to preserve the question for appeal. See State v. Gause, 227 N.C. 26, 40 S.E.2d 463 (1946). But North Carolina Rule of Appellate Procedure 10 does require exceptions to jury instructions to be made after trial if they are to be preserved for appellate review. 2 Cole's counsel did not except at this stage of the proceeding and also made no effort to present the issue on direct appeal. On the issues that were presented, the North Carolina Supreme Court affirmed Cole's conviction, rendering its formal written opinion. State v. Cole, 280 N.C. 398, 185 S.E.2d 833 (1972). Cole subsequently filed a petition for post conviction collateral relief in the State court, which was denied. He did not appeal from this denial. Three years later Mullaney was decided, and in 1977 the Supreme Court applied this decision retroactively in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). Shortly after Hankerson was decided, Cole again sought State collateral relief. This petition was denied by the trial court, and Cole petitioned the North Carolina Supreme Court for review of this decision. The court denied the petition, but without prejudice to his right to seek review in the North Carolina Court of Appeals, which was done. The Court of Appeals affirmed the decision of the lower court on October 3, 1977, basing its holding on Cole's failure to raise the issue on direct appeal. See North Carolina Code § 15-217; State v. White, 274 N.C. 220, 162 S.E.2d 473 (1958). 3 The North

Page 1058

Carolina Supreme Court denied certiorari. Cole then filed his petition for habeas corpus in the federal district court. 4

The district court granted the petition on the merits. In reaching its decision, the court apparently reasoned that the petition was not barred by Wainwright because that decision did not apply to the facts of this case, and that even if Wainwright did apply, its cause and prejudice exception had been met. Cole v. Stevenson, 447 F.Supp. 1268 (E.D.N.C.1978). The court went on to state that the procedural default in this case was the defendant's failure to appeal the denial of State post-conviction relief to the North Carolina Court of Appeals (apparently referring to the first petition for collateral relief in the State court), and held that since the constitutional right in question was not "acknowledged" at the time of direct appeal the petitioner could not have been expected to raise the issue at that time. 447 F.Supp. at 1272 and n. 10.

We believe the district court misconceived the actual procedural fault. While Cole might be said to be excused from further appeal in order to satisfy exhaustion requirements, the failure to appeal although fruitless would have no effect on the application of Wainwright. The North Carolina Court of Appeals was in fact appealed to and in fact refused to hear the merits of Cole's claim on collateral attack because he had not assigned the ground here complained of as error or otherwise raised the issue on direct appeal. Even if Cole had attempted to present the question on direct appeal, he would not have been allowed to do so because he did not properly except to the instructions in his assignments of error as required by Rule 10. Thus, Cole's failure was two-fold. His petition for collateral relief was denied because

Page 1059

he did not choose to present the issue on direct appeal and because of the default he did not meet the procedural requirements of § 15-217. However, any effort to present the issue would have failed in any event because he did not comply with Rule 10. Thus, Cole failed to comply with both Rule 10 and § 15-217. Having mandatory requirements to perfect the direct appeal, Cole did nothing. He is thus barred from presenting the question to North Carolina courts under valid provisions of State law.

The issue thus presented in this case is whether Cole's dual failure which barred State court review of this aspect of his conviction should also bar federal habeas corpus relief. In resolving this issue, the central question is whether this case is governed by Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). In Fay, The Supreme Court held that a State procedural bar arising from a failure to appeal would not prevent federal habeas corpus review unless a "deliberate bypass" of state remedies had occurred. 372 U.S. at 438, 83 S.Ct. at 848. However, language in Fay went beyond this holding and adopted the deliberate bypass standard as the test for the sufficiency of State procedural bars to federal habeas corpus review. Fay, of course, represents a major exception to the normal rule that a separate state ground for decision will bar review of the federal questions in a case. See, e. g., Pennsylvania v. Ware, 406 U.S. 910, 92 S.Ct. 1606, 31 L.Ed.2d 821 (1972); Fox Film Corp. v. Muller, 296 U.S. 207, 56 S.Ct. 183, 80 L.Ed. 158 (1935); Murdock v. City of Memphis, 20 Wall. (87 U.S. ) 590, 22 L.Ed. 429 (1875). Subsequent Supreme Court decisions have restricted the broad language in Fay, not as a diminution of the power of a federal court in habeas corpus proceedings, but based on the developing recognition that in the interests of comity between federal and State courts, federal habeas corpus review of State court decisions should be somewhat restrained. The question now is, is the exercise of the power appropriate? Francis, infra, 425 U.S. pp. 538-539, 96 S.Ct. pp. 1709-1710. One means of fostering these notions of comity has been to substitute the cause and prejudice test spelled out in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), for the deliberate bypass standard adopted in Fay. We need not review the development of this test since it has been discussed in detail elsewhere. Wainwright, supra ; Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). For our purposes it is sufficient to say that the cause and prejudice test has been applied to bar federal habeas corpus review of State convictions where the defendant later challenged the makeup of the grand jury without objecting on that ground prior to trial as required by State law, Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), and where the defendant later challenged the voluntariness of his confession without objecting when the confession was introduced, Wainwright, supra.

The Supreme Court has not decided where the final line between Wainwright and Fay will be drawn, but whatever the full effect of Wainwright may turn out to be, it has restricted Fay to some extent or other because its holding was grounded on "an independent and adequate state procedural ground which would have prevented direct review" of "contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure." 433 U.S. at 87, 97 S.Ct. at 2507 (emphasis in original). While the rule of Fay, that an independent State ground will not bar review unless deliberate bypass is found, has been changed by Wainwright to the rule that it will bar review unless cause and prejudice is found, and we do not take into account the facts of a particular case, we need not engage in any difficult line drawing between Fay and Wainwright in deciding the case at bar for in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), decided only six days before Wainwright, the Supreme Court clearly indicated that the separate...

To continue reading

Request your trial
46 practice notes
  • Smith v. Dixon, Nos. 91-4011
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 21, 1994
    ...first time in a post-conviction proceeding unless failure to raise was for reasons beyond the defendant's control); Cole v. Stevenson, 620 F.2d 1055, 1060-61 (4th Cir.) (same), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980). In addition, the official commentary accompanyi......
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 15, 1982
    ...1977). Other circuits have applied Sykes in the same fashion. See Forman v. Smith, 633 F.2d 634, 640 (2d Cir. 1980); Cole v. Stevenson, 620 F.2d 1055 (4th Cir. 1980); Gibson v. Spalding, 665 F.2d 863, 866 (9th Cir. 1981). Applying Sykes in this setting accrues the dual advantage of discoura......
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 7, 1983
    ...Forman v. Smith, 633 F.2d 634, 640 (2d Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1710, 68 L.Ed.2d 204 (1981); Cole v. Stevenson, 620 F.2d 1055 (4th Cir.), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980); Gibson v. Spalding, 665 F.2d 863, 866 (9th Cir.1981), vacated......
  • Reed v. Ross, No. 83-218
    • United States
    • United States Supreme Court
    • June 27, 1984
    ...N.C.App. 527, 244 S.E.2d 696 (1978); State v. White, 274 N.C. 220, 162 S.E.2d 473 (1968). See 704 F.2d 705 (CA4 1983); Cole v. Stevenson, 620 F.2d 1055, 1057-1059 (CA4 1980). Respondent argues that the North Carolina procedural bar is inapplicable in this case because the North Carolina Sup......
  • Request a trial to view additional results
46 cases
  • Smith v. Dixon, Nos. 91-4011
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 21, 1994
    ...first time in a post-conviction proceeding unless failure to raise was for reasons beyond the defendant's control); Cole v. Stevenson, 620 F.2d 1055, 1060-61 (4th Cir.) (same), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980). In addition, the official commentary accompanyi......
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 15, 1982
    ...1977). Other circuits have applied Sykes in the same fashion. See Forman v. Smith, 633 F.2d 634, 640 (2d Cir. 1980); Cole v. Stevenson, 620 F.2d 1055 (4th Cir. 1980); Gibson v. Spalding, 665 F.2d 863, 866 (9th Cir. 1981). Applying Sykes in this setting accrues the dual advantage of discoura......
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 7, 1983
    ...Forman v. Smith, 633 F.2d 634, 640 (2d Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1710, 68 L.Ed.2d 204 (1981); Cole v. Stevenson, 620 F.2d 1055 (4th Cir.), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980); Gibson v. Spalding, 665 F.2d 863, 866 (9th Cir.1981), vacated......
  • Reed v. Ross, No. 83-218
    • United States
    • United States Supreme Court
    • June 27, 1984
    ...N.C.App. 527, 244 S.E.2d 696 (1978); State v. White, 274 N.C. 220, 162 S.E.2d 473 (1968). See 704 F.2d 705 (CA4 1983); Cole v. Stevenson, 620 F.2d 1055, 1057-1059 (CA4 1980). Respondent argues that the North Carolina procedural bar is inapplicable in this case because the North Carolina Sup......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT