Glass v. Blackburn

• Decision Date: 12 June 1986
• Docket Number: No. 85-4499,85-4499
• Citation: 791 F.2d 1165
• Parties: Jimmy L. GLASS, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary at Angola, Louisiana, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1165

791 F.2d 1165

Jimmy L. GLASS, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary at

Angola, Louisiana, Respondent-Appellee.

No. 85-4499.

United States Court of Appeals, Fifth Circuit.

June 12, 1986.

M. Michele Fournet, Baton Rouge, La., for petitioner-appellant.

Henry N. Brown, Jr., Dist. Atty., 26th Judicial Dist., Benton, La., William J. Guste, Atty. Gen., State of La., Baton Rouge, La., for respondent-appellee.

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

Before POLITZ, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

Sentenced to death by a jury for the murders of Newton and Earline Brown on Christmas Day, 1982, Jimmy L. Glass petitions for a writ of habeas corpus, 28 U.S.C. Sec. 2254. The district court denied the petition and refused to issue a certificate of probable cause, which Glass now seeks from this court, 28 U.S.C. Sec. 2253. We deny the requested certificate of probable cause, dismiss the appeal, and vacate the stay of execution heretofore entered.

Background

At approximately 8:00 p.m. on December 24, 1982, Glass and Jimmy Wingo escaped from the Webster Parish jail in Minden, Louisiana. The two later broke into the Browns' residence in the nearby town of Dixie Inn, robbed the Browns, ransacked their home, and before making their getaway in the Browns' automobile, shot and killed the two helpless victims. The next day, one of the Browns' children found his dead parents, bound and gagged in their bed and shot through the head. ¹ Wingo was flushed out of the woods in Texas and arrested on January 5, 1983. ² Glass fled to San Diego, California, where he was arrested on January 6, 1983.

On January 8, 1983, after receiving the requisite Miranda ³ warnings and signing a waiver, Glass was questioned in San Diego by two Louisiana police officers dispatched to escort him back to Louisiana. Glass told the officers that he shot the Browns but that he did so because Wingo had forced him to.

Glass waived extradition and was voluntarily returned to Louisiana on January 9, 1983. On the following day, without any questioning or prompting from the officers, Glass expanded his account by telling the officers that he had shot the Browns only after Wingo had pointed a shotgun at him, threatened to kill him, and told him that because he (Glass) had mentioned Wingo's name in earshot of the Browns as they ransacked the home that he (Glass) would have to kill them. Glass never sought suppression of his inculpatory statements but, rather, used them in support of his defense based on duress. He consistently asserted that Wingo had forced him to kill the Browns. He so testified at trial.

Indicted for murder, Glass pleaded not guilty and not guilty by reason of insanity. Because of extensive local publicity, the trial was moved 200 miles south to Lafayette, Louisiana. During pretrial proceedings, pursuant to La.C.Cr.P. arts. 644 and 650, the presiding judge appointed a two-doctor sanity commission. One psychiatrist specifically testified that Glass was legally sane both at the time of the interview and at the time of the offense. The second psychiatrist specifically addressed Glass's sanity at the time of the interview and concluded that he was competent to stand trial and assist in his defense. This doctor, in the judgment of the Supreme Court of Louisiana, implicitly attested to Glass's mental state at the time of the murders. ⁴

Glass and Wingo were separately tried. Glass's defense was lack of willfulness because of Wingo's coercion. After a five-day trial on the guilt phase, the jury convicted Glass of capital murder. The penalty phase of the trial continued the next day.

At the penalty phase, the state relied on the evidence previously adduced and the written reports of the members of the sanity commission. La.C.Cr.P. art. 645. Glass testified and also offered the testimony of: (1) a criminal justice expert concerning the adaptability of 20-year-old men to life sentences; ⁵ (2) an Episcopalian minister as an expert on Christian ethics and morals on the subject of murder and the taking of human life and, on the basis of two interviews, on Glass's remorsefulness; and (3) Glass's mother. After deliberating for several hours, the jury returned sentences of death for both murders. The Louisiana Supreme Court affirmed. State v. Glass, 455 So.2d 659 (La.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2159, 85 L.Ed.2d 514, reh'g denied, --- U.S. ----, 105 S.Ct. 3516, 87 L.Ed.2d 645 (1985). State post-conviction relief was denied, leading to the instant federal habeas petition.

Analysis

Petitioner's very able counsel present twelve issues in their effort to secure a certificate of probable cause and, ultimately, a writ of habeas corpus. After a studied examination of each, we find none meritorious.

1. Psychiatric examination

Citing Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), Glass maintains that he was deprived of his constitutional right to an independent psychiatric examination because the examination and report of only one of the two members of the sanity commission specifically considered his legal sanity at the time of the murders. Even were we to assume that the Supreme Court of Louisiana erred, and that the second doctor did not testify to sanity at the time of the offense, Ake would give Glass little succor.

In Ake the defendant had pleaded not guilty by reason of insanity and, because he was unable to afford a psychiatric examination, had requested that the state provide one. The State of Oklahoma refused Ake's request. Ake was convicted and sentenced to death. The Supreme Court reversed, holding that

when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist ..., [and] we leave to the States the decision on how to implement this right.

470 U.S. at ----, 105 S.Ct. at 1097, 84 L.Ed.2d at 66.

Glass sought and secured the appointment of a sanity commission. He was examined and both doctors reported on his then-current mental capacity; one expressly and one implicitly concluded that he was also sane at the time of the murders. The rule of Ake requires that Louisiana assure Glass "access to a competent psychiatrist" 470 U.S. at ----, 105 S.Ct. at 1097, 84 L.Ed.2d at 66.

In addition to the sanity commission, Glass had available upon request the services of an independent psychiatrist who would have been paid with public funds available to the Indigent Defender Board to assist indigent defendants. We were informed at oral argument that this had been done for Jimmy Wingo and could have been done for Glass. Glass also could have requested a second sanity commission. See State v. Collatt, 477 So.2d 177 (La.App.1985).

The psychiatric evaluation actually provided Glass satisfied Ake. That which was available exceeded the requirements. No more was constitutionally required.

2. Suppression of statements

Glass contends that his trial was tainted by the admission into evidence of the inculpatory statements made to the officers in San Diego on January 8, 1983 and in Minden on January 10, 1983. This claim, first raised in the state collateral attack, was rejected by the court without comment. Glass claims that his confessions were inadmissible because they were given without a knowing and inteligent waiver of his right to counsel. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The district court held that Glass's waiver of counsel was knowing and intelligent. Alternatively, the district court held that Glass had waived the issue by failing to seek suppression of the statements at trial.

Agreeing with the court a quo that Glass has waived this issue, we do not reach its merits. Under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), a federal court may not consider a habeas claim challenging a state conviction when that claim is barred under state law because of the petitioner's failure to comply with state procedural rules, unless the petitioner shows adequate cause for the timely failure to object and actual prejudice. See also Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Preston v. Maggio, 705 F.2d 113 (5th Cir.1983).

Our analysis begins with an inquiry whether the Edwards claim is barred on procedural grounds. We answer this query by reference to the rules designed to fathom whether a state court rejection of a claim without comment was on the merits or because of a procedural bar. We recently surveyed and summarized these rules in Webb v. Blackburn, 773 F.2d 646 (5th Cir.1985). Initially, we must "determine how the [Louisiana] courts apply their various procedural default rules to particular cases." Id. at 650. Louisiana courts require strict adherence to the contemporaneous objection rule to the content of a witness's testimony and to the admission of evidence of a confession. La.C.Cr.P. art. 841; State v. McCloud, 357 So.2d 1132 (La.1978); State v. Hebert, 443 So.2d 613 (La.App.1983), writ denied, 444 So.2d 1215 (La.1984). It appears certain that the claim was rejected by the Louisiana courts for procedural default.

Since we conclude that the claim was not rejected on the merits by the Louisiana courts, we must view the Edwards claim under the dual prongs of adequate cause and actual prejudice. We conclude that Glass has not shown, because he cannot show, that his trial counsel acted without...