Gibson v. Spalding, No. 80-3522

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WALLACE and TANG; WALLACE
Citation665 F.2d 863
PartiesGlenn Ruphert GIBSON, Plaintiff-Appellee, v. James SPALDING, Slade Gorton and Dixie Lee Ray, Defendants-Appellants.
Decision Date30 October 1981
Docket NumberNo. 80-3522

Page 863

665 F.2d 863
Glenn Ruphert GIBSON, Plaintiff-Appellee,
v.
James SPALDING, Slade Gorton and Dixie Lee Ray, Defendants-Appellants.
No. 80-3522.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted July 8, 1981.
Decided Oct. 30, 1981. *
Rehearing and Rehearing En Banc Denied Jan. 5, 1982.

Page 864

J. Robin Hunt, Seattle, Wash., for defendants-appellants.

John B. Midgley, Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WALLACE and TANG, Circuit Judges, and STEPHENS, ** District Judge.

WALLACE, Circuit Judge:

Spalding, et al. (the State), appeal from an order of the district court granting a writ of habeas corpus to Gibson pursuant to 28 U.S.C. § 2254. The State contends that Gibson's failure to object to a constitutionally infirm jury instruction during trial or on direct appeal prevented the district judge from granting this collateral relief. We disagree and affirm.

I

On May 29, 1974, a jury found Gibson guilty of murder in the second degree resulting from the death of a female hitchhiker. Gibson appealed his conviction on grounds other than the one asserted in his petition for writ of habeas corpus. The Washington State Court of Appeals affirmed his conviction in an unpublished opinion on June 9, 1975. On that same day, the United States Supreme Court decided Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 308 (1975) (Mullaney), in which the Court held that a jury instruction requiring malice aforethought to be presumed from an intentional homicide unless the defendant proved that he acted in the heat of passion on sudden provocation violated the due process clause of the Fourteenth Amendment. The Court found that such an instruction improperly shifted the burden of persuasion from the prosecution to the defense. 1 The Mullaney decision was published the next day in United States Law Week, 43 U.S.L.W. 4695 (1975). The following day, the Criminal Law Reporter printed the full text and a summary and analysis of the decision. (1975) 17 Crim.L.Rep. (BNA) 1041-42; 3063. Although a similar instruction was given to the jury in Gibson's trial, there was no objection during trial and no assignment of error in his initial appeal.

Gibson, still assisted by counsel, filed a petition for review before the Washington Supreme Court on August 20, 1975, but once more the jury instruction was not raised as an issue. The Washington Supreme Court summarily rejected Gibson's petition on October 7, 1975. Despite the four month interval between the Mullaney decision and the Washington Supreme Court's action, there was no attempt to seek reconsideration of the state Supreme Court's denial of Gibson's petition.

In March of 1978, Gibson filed a personal restraint petition-the Washington equivalent of a habeas corpus petition. He raised for the first time his contention that the jury instruction given at his 1974 trial violated Mullaney, and thus entitled him to a new trial. The Washington Court of Appeals denied his habeas corpus petition in an unpublished opinion on April 9, 1979. The court also denied Gibson's motion for reconsideration of its decision. In September of 1979, the Washington State Supreme Court summarily denied Gibson's petition for review of the court of appeals' decision.

Gibson then sought federal habeas corpus relief pursuant to 28 U.S.C. § 2254. His sole ground for relief was that the trial court erred in giving the challenged instruction

Page 865

which, he contends, was condemned by Mullaney. The district court assigned the case to a magistrate who recommended that the district court grant petitioner's relief. The district court accepted the magistrate's findings without comment, and issued an alternative writ requiring Gibson's release or retrial.
II

The State argues that Gibson's failure at both his trial and on direct appeal to attack the suspect jury instruction was not excused by "cause" or "prejudice" sufficient to invoke the exception to Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Sykes). In Sykes, the Court held that a federal habeas petitioner is barred from asserting that federal constitutional law was violated in a state court proceeding when that assertion was not resolved on the merits in a state proceeding due to the petitioner's own failure to raise it there, as required by a state contemporaneous objection rule. The Court found that absent a showing of "cause" for the failure to object and actual "prejudice" to the petitioner from the alleged constitutional violation, federal habeas relief was precluded by the state procedural default.

Washington courts have developed a similar procedural rule on the appellate level. The Washington Supreme Court has held that "issues which could have been raised on appeal but were not, may not be used as grounds for a collateral attack on a criminal judgment." Petition of Myers, 91 Wash.2d 120, 122, 587 P.2d 532, 533 (1978) (en banc), cert. denied, 442 U.S. 912, 99 S.Ct. 2828, 61 L.Ed.2d 278 (1979). Here, there was no objection during trial or on direct appeal. Gibson argues, however, that we must carefully scrutinize the procedural ground that the state proposes as a bar to federal habeas review. He contends that the procedural rule involved in the instant case does not qualify as an "adequate" state ground because: (1) state review was refused on state procedural, rather than federal substantive grounds; (2) the rule did not give adequate notice at the time of the default that failure to raise the claim would be a waiver; (3) the rule was unforeseeable; (4) the rule is not a contemporaneous objection rule because it applies to a failure to object made on appeal; and (5) the rule is applied inconsistently and arbitrarily.

We recently examined the applicability of the Sykes rule to a similar factual situation in Myers v. Washington, 646 F.2d 355 (9th Cir. 1981) (Myers). There, the habeas petitioner challenged a jury instruction similar to the instruction involved...

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9 practice notes
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 15 d4 Abril d4 1982
    ...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 discouraging defense attorneys from omitting arguments i......
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 7 d5 Janeiro d5 1983
    ...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 and remanded, --- U.S. ----, 102 S.Ct. 2229, 72 L.Ed.2d 842 (1982). Applying Sykes in this setting accrues the dual a......
  • Reed v. Ross, No. 83-218
    • United States
    • United States Supreme Court
    • 27 d3 Junho d3 1984
    ...1982); Collins v. Auger, 577 F.2d 1107, 1110, and n. 2 (CA8 1978); Myers v. Washington, 702 F.2d 766, 768 (CA9 1983); Gibson v. Spalding, 665 F.2d 863, 866 (CA9 1981); Ford v. Strickland, 696 F.2d 804, 817 (CA11 1983); Sullivan v. Wainwright, 695 F.2d 1306, 1311 (CA11 1983). See generally C......
  • Hughes v. Idaho State Bd. of Corrections, No. 84-3523
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 25 d4 Setembro d4 1986
    ...to raise an issue on appeal were vacated by the Supreme Court for further consideration in light of Engle. Id. (citing Gibson v. Spalding, 665 F.2d 863, 865 (9th Cir.) (Sykes' interests in enforcing state contemporaneous objection rule not implicated in a procedural default consisting of a ......
  • Request a trial to view additional results
9 cases
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 15 d4 Abril d4 1982
    ...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 discouraging defense attorneys from omitting arguments i......
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 7 d5 Janeiro d5 1983
    ...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 and remanded, --- U.S. ----, 102 S.Ct. 2229, 72 L.Ed.2d 842 (1982). Applying Sykes in this setting accrues the dual a......
  • Reed v. Ross, No. 83-218
    • United States
    • United States Supreme Court
    • 27 d3 Junho d3 1984
    ...1982); Collins v. Auger, 577 F.2d 1107, 1110, and n. 2 (CA8 1978); Myers v. Washington, 702 F.2d 766, 768 (CA9 1983); Gibson v. Spalding, 665 F.2d 863, 866 (CA9 1981); Ford v. Strickland, 696 F.2d 804, 817 (CA11 1983); Sullivan v. Wainwright, 695 F.2d 1306, 1311 (CA11 1983). See generally C......
  • Hughes v. Idaho State Bd. of Corrections, No. 84-3523
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 25 d4 Setembro d4 1986
    ...to raise an issue on appeal were vacated by the Supreme Court for further consideration in light of Engle. Id. (citing Gibson v. Spalding, 665 F.2d 863, 865 (9th Cir.) (Sykes' interests in enforcing state contemporaneous objection rule not implicated in a procedural default consisting of a ......
  • Request a trial to view additional results

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