Fleming v. Kemp

• Citation: 837 F.2d 940
• Decision Date: 27 January 1988
• Docket Number: No. 86-8476,86-8476
• Parties: Son H. FLEMING, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 940

837 F.2d 940

Son H. FLEMING, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification

Center, Respondent- Appellee.

No. 86-8476.

United States Court of Appeals, Eleventh Circuit.

Jan. 27, 1988.

Kathryn O'Shields Shapiro, Powell, Goldstein, Frazer & Murphy, Kenneth A. Shapiro, Paul, Hastings, Janofsky & Walker, Atlanta, Ga., for petitioner-appellant.

Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before FAY, JOHNSON and CLARK, Circuit Judges.

PER CURIAM:

Son H. Fleming was scheduled for execution on June 27, 1986. On June 25, 1986, the United States District Court for the Middle District of Georgia dismissed Fleming's second federal habeas corpus petition on "abuse of the writ" grounds and thus refused to grant Fleming a stay of execution. Fleming v. Kemp, 637 F.Supp. 1547 (M.D.Ga.1986). On June 27, 1986, this panel stayed Fleming's execution because he presented at least one substantial ground properly before this Court upon which he might be entitled to relief. Fleming v. Kemp, 794 F.2d 1478 (11th Cir.1986). Without reaching the merits of Fleming's petition, this panel stayed Fleming's execution pending the Supreme Court's decision in Griffith v. Kentucky, --- U.S. ----, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). We now reach the merits and affirm the district court.

I.

Fleming was convicted of murdering the police chief of a small South Georgia town and sentenced to death in 1977. On direct appeal, the Georgia Supreme Court reversed the death sentence because the trial judge erred in instructing the jury in the sentencing phase. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977). In a second sentencing trial a jury again recommended the death penalty and the court sentenced Fleming accordingly.

After Fleming failed to win further relief on direct appeal, see Fleming v. State, 243 Ga. 120, 252 S.E.2d 609 (1979), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979), and in state postconviction proceedings, he filed his first federal habeas corpus application with the United States District Court for the Middle District of Georgia. That court denied the writ, Fleming v. Zant, 560 F.Supp. 525 (M.D.Ga.1983), and on appeal a divided panel of this Court affirmed. Fleming v. Kemp, 748 F.2d 1435 (11th Cir.1984), reh'g en banc denied, 765 F.2d 1123 (11th Cir.1985). The Supreme Court denied certiorari, Fleming v. Kemp, 475 U.S. 1058, 106 S.Ct. 1286, 89 L.Ed.2d 593 (1986), and rehearing. Fleming v. Kemp, 475 U.S. 1132, 106 S.Ct. 1665, 90 L.Ed.2d 206 (1986).

The Superior Court of Butts County, Georgia, thereafter denied Fleming's second state habeas application, and the Georgia Supreme Court refused to grant a certificate of probable cause to appeal. Fleming then filed his second federal habeas petition, giving rise to the present case.

II.

A. Michigan v. Jackson Claim

Fleming argues that his Sixth and Fourteenth Amendment rights were violated when at his resentencing the prosecutor presented statements obtained in police interrogation after Fleming was formally charged and had requested the assistance of counsel. Fleming argues that Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), applies retroactively and thus provides "new law" precluding an abuse of the writ finding. On the merits, Fleming argues he has established a Jackson violation. The district court held that even if Jackson represented a change in law, Fleming had not shown a Jackson violation. 637 F.Supp. at 1553. We affirm the district court.

1. Abuse of the Writ?

Fleming raised this claim in his first federal habeas petition before the district court, but did not pursue the claim on appeal. In staying Fleming's execution, this panel determined that these facts mean that this petition is a successive petition. Fleming, 794 F.2d at 1482-83. This panel also set forth the test for determining whether abuse of the writ is present and whether the "ends of justice" excuse that abuse:

If the ground was previously addressed in a federal habeas proceeding, the petitioner must demonstrate that the decision was not on the merits or the ends of justice would be served by reconsideration of the merits. The "ends of justice" are defined by objective factors, such as whether there was a full and fair hearing on the original petition or whether there was an intervening change in the facts of the case or the applicable law.

Id. at 1481-82 (quoting Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.1985)).

No doubt exists that this ground was raised in a previous proceeding and that the decision was on the merits. Thus, abuse is excused only if the "ends of justice" so require. ¹ No doubt exists that as to this claim there was a full and fair hearing on the original petition and that no intervening change in the facts of the case has occurred.

Fleming argues, however, that the Supreme Court decision in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), presents an "intervening change in the applicable law," thus excusing any abuse of the writ problems. This Court must determine (a) if Jackson did indeed "change the law" and (b) if so, whether Jackson applies retroactively to Fleming's case.

a. Intervening Change in Law?

In Jackson, the Supreme Court held that, "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." 106 S.Ct. at 1411. This holding represented a recognition that the decision in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which was based on the Fifth Amendment, applied with even "greater force" to Sixth Amendment claims. Jackson, 106 S.Ct. at 1411. Jackson thus provides a "bright-line" rule that differs from prior Sixth Amendment cases which focused on whether defendants validly waived their right to counsel. Id. at 1408. This suffices to constitute an intervening change in the law. ²

b. Jackson's Retroactivity

Having established that Jackson represents an intervening change in the law, the question arises whether Jackson applies retroactively to Fleming's case--a case of collateral attack. Supreme Court decisions concerning retroactivity exhibit a dichotomy depending upon whether the case is final (i.e., under collateral attack) or pending on direct review. Last Term, the Court provided a "bright-line" rule that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." Griffith v. Kentucky, --- U.S. ----, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (emphasis added). Because Fleming's case is final, Griffith provides no support.

The Supreme Court has continued to apply a three-prong test in determining whether new constitutional rules governing criminal prosecutions should apply retroactively for cases on collateral review: (1) the purpose to be served by the new standards, (2) the extent of the reliance by law enforcement authorities on the old standards, and (3) the effect on the administration of justice of a retroactive application of the new standards. ³

In Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), the Court applied the three-prong test and held that Edwards does not apply retroactively to cases on collateral review. ⁴ Although Jackson is an extension of Edwards into the Sixth Amendment context, Stumes does not a fortiori require a holding of nonretroactivity for Jackson. ⁵

i. Purpose Served by the New Standard

In Stumes, the Court recognized that it has consistently held retroactive new rules going to the "heart of the truthfinding function." 465 U.S. at 645, 104 S.Ct. at 1343. The Stumes Court noted that although Edwards was not entirely unrelated to the accuracy of the final result, Edwards only set forth a prophylactic rule designed to implement preexisting rights, a type of rule usually not applied retroactively. Id. at 644-45, 104 S.Ct. at 1342. Jackson has similar purposes; it creates a prophylactic rule designed to implement preexisting rights. Consequently, under this prong, retroactivity appears disfavored.

ii. Prior Law Enforcement Reliance

In Stumes, the Court found Edwards not to have been "clearly" or "distinctly" foreshadowed, even though it was not a "clear break" with the past. The Court thus found the reliance interest of law enforcement officials compelling. Id. at 649-50, 104 S.Ct. at 1344-45. Similarly, Jackson did not represent a "clear break." Jackson, however, was clearly foreshadowed by Edwards, especially because Edwards heavily relied on Sixth Amendment precedent. Thus the reliance interest is considerably less with Jackson and retroactivity seems favored. ⁶

iii. Administrative Effect

In Stumes, the Court asserted that "a disruptive effect on the administration of justice ... [w]e can only guess at" counseled against retroactivity. Id. at 650, 104 S.Ct. at 1345. Given that Jackson was foreshadowed and given that police officials are aware of how difficult it is to introduce statements once a defendant has asserted his right to counsel before a judicial officer, few cases likely will raise this issue. Cf. Jackson, 106 S.Ct. at 1413 (Rehnquist, J., dissenting) ("The Court does not even suggest that the police commonly deny defendants their Sixth Amendment right to counsel. Nor, I suspect, would such a claim likely be borne out by empirical evidence."). Consequently, this limited "disruptive effect" supports holding Jackson retroactive.

Whether to apply Jackson retroactively inevitably involves a balancing process. In light of the "presumption of retroactivity," Stumes, 465 U.S. at...