Gray v. Lucas

Decision Date03 September 1982
Docket NumberNo. 81-4018,81-4018
Citation685 F.2d 139
PartiesJimmy Lee GRAY, Petitioner-Appellant, v. Eddie LUCAS, Warden, et al., Respondents-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Richard E. Shapiro, New Orleans, La., Albert Sidney Johnston, Jr., Biloxi, Miss., for petitioner-appellant.

Billy L. Gore, Asst. Atty. Gen., Jackson, Miss., for respondents-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(677 F.2d 1086 (5th Cir. 1982))

Before CLARK, Chief Judge, THORNBERRY and GARZA, Circuit Judges.

PER CURIAM:

In affirming the district court's denial of Jimmy Lee Gray's habeas corpus petition, we decided several issues raised by Gray that had not been addressed in the district court's opinion. Gray raises four of these issues again in this petition for panel rehearing, alleging that his initial presentation was not complete. We have reconsidered each of these questions in light of Gray's supplemented arguments but still find them to be without merit. His petition is denied.

I.

Gray was convicted of capital murder under Miss.Code Ann. § 97-3-19(2)(e). That statute applies by its terms to both intentional and unintentional killings that occur during the commission of certain felonies. Therefore, Gray argues that we must address the ticklish question whether capital punishment for an unintentional killing comports with eighth amendment standards.

We disagree. It is undisputed that at the sentencing phase of Gray's bifurcated trial the jury found beyond a reasonable doubt that Gray had killed Derissa Scales for the purpose of avoiding arrest. This finding is equivalent to a finding of intent. Taking a human life for a deliberate and particular purpose, such as to avoid arrest, is necessarily intentional murder. For this reason we affirm our earlier conclusion that we need not reach the "difficult question of constitutional law" posed by capital punishment for an unintentional killing. 677 F.2d at 1103.

II.

Gray's second contention is that, in sentencing him, the jury should have been required to find beyond a reasonable doubt that the attendant aggravating circumstances outweighed the mitigating circumstances. On this point we are persuaded by the reasoning of our sister circuit, which recently addressed this issue.

(This argument) seriously confuses proof of facts and the weighing of facts in sentencing. While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard, the relative weight is not. The process of weighing circumstances is a matter for judge and jury, and, unlike facts, is not susceptible to proof by either party.

Ford v. Strickland, 676 F.2d 434, 442 (citations omitted), reh'g en banc granted, 676 F.2d 456 (11th Cir. 1982). The reasonable doubt standard simply has no application to the weighing of aggravating and mitigating circumstances.

III.

Gray also alleges that we erred in failing to make an independent determination of the voluntariness of his confession. In our prior opinion we found that the state court rejected Gray's allegation that his confession was coerced and that we were bound by this factual determination. Gray's position here is that the state court did not disbelieve his allegation that he was threatened but rather found the threats insufficient to render his confession involuntary. Therefore, he argues that it is our duty to determine, under his version of the facts, whether the confession was voluntary.

We disagree with Gray's interpretation of the state court's opinion and adhere to our prior opinion, in which we stated: "Although the (state) court's holding (that the confession was voluntary) turned on several considerations, implicit in that holding was a rejection of Gray's version of the events leading to his confession, a conclusion which the court had already made clear in its earlier recitation of the facts." 677 F.2d at 1108 n.18. The state court's recitation of the facts completely omits Gray's allegation that his confession was coerced by threats. It is obvious that the court made a credibility choice and rejected Gray's version. We are bound by this choice.

IV.

Miss.Code Ann. § 99-19-101(5)(h) provides that one aggravating...

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