Gray v. Lynn

• Decision Date: 20 October 1993
• Docket Number: No. 92-4502,92-4502
• Citation: 6 F.3d 265
• Parties: Dewey Spencer GRAY, Petitioner-Appellant, v. Bruce LYNN, Secretary, Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 265

6 F.3d 265

Dewey Spencer GRAY, Petitioner-Appellant, v. Bruce LYNN, Secretary, Department of Corrections, Respondent-Appellee.

No. 92-4502.

United States Court of Appeals Fifth Circuit.

Oct. 20, 1993.

Milton Dale Peacock, Monroe, LA, (court appointed), for petitioner-appellant.

Terry A. Doughty, Asst. Dist. Atty., William Robert Coenen, Jr., and Penny Wise Douciere, Rayville, LA, for respondent-appellee.

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

Before KING and BARKSDALE, Circuit Judges, and DUPLANTIER ¹, District Judge.

BARKSDALE, Circuit Judge:

Dewey Spencer Gray's appeal from the denial of habeas relief turns on whether his counsel's failure to object to a jury instruction, conceded by the State to be erroneous as to an element of the charged offense (attempted murder), constituted ineffective assistance of counsel. Concluding that it was, we REVERSE the denial of the application.

I.

On the evening of January 27, 1979, Sammy James and Patricia Gaston ² were in bed at James' residence. ³ The bedroom door opened directly onto the front porch; and at about 9:00 p.m., someone knocked on the door. When James went to the door, he saw Gray there, with a gun in his hand. ⁴ James testified that, when he opened the door, Gray "told me he was going to blow my brains out". ⁵ According to James, he believed that, at that close range, Gray was capable of carrying out the threat. Instead, Gray hit him on the side of the head with the gun, and entered the bedroom, holding the gun pointed at James. Gray struck Gaston with the gun, ⁶ and again struck James with the gun on his left forehead, causing a gash which required stitches. Gaston saw Gray hit James then, but did not see a weapon in Gray's hand.

After the two men struggled onto the front porch, Gray pointed the gun and started to shoot, and James ran away. James testified that he saw the flame (muzzle flash) when Gray fired, and James and Gaston both testified that they heard three shots. (Both testified that they were not armed.) James was not hit; he went to a neighbor's house and called the police. Gaston testified that she heard Gray come back into the house; her clothes, which were on a chair in the bedroom, were not there when the police arrived; they were later discovered in Gray's car.

While law enforcement officers were en route to the hospital with James and Gaston, they saw Gray in his vehicle, coming back toward James' house. When the deputy sheriff turned the lights on, Gray increased his speed to avoid apprehension. The deputy pursued Gray, who sped down the road to a dead end, left his car with the motor running and the door open, and ran away through the woods. Early the next morning, another deputy encountered Gray about five miles from James' residence; Gray was arrested after James identified him. A few days later, alongside the road in the vicinity of where deputies had passed the car Gray was driving the night of the incident, a deputy found a loaded gun, with four expended cartridges, and a prescription bottle with Gray's name on the label.

Gray was indicted in February 1979 for the attempted murder of James. Trial was held that December; and, after the jury found Gray guilty of attempted first degree murder, he was sentenced to 30 years imprisonment.

Gray's conviction was affirmed on direct appeal. State v. Gray, 391 So.2d 1184 (La.1980). ⁷ While that appeal was pending, Gray filed a state application for post-conviction relief in July 1980, which apparently was rejected because his conviction was on appeal. He filed for federal habeas relief in July 1981, asserting that he had been denied a speedy trial. The district court's denial of relief was affirmed by our court in early 1984, and the Supreme Court denied certiorari that November. Gray v. King, 724 F.2d 1199 (5th Cir.), cert. denied, 469 U.S. 980, 105 S.Ct. 381, 83 L.Ed.2d 316 (1984).

In December 1985, Gray filed another state application for post-conviction relief, which was dismissed in October 1986, apparently because Gray had failed to use the printed application form. In January 1987, Gray filed another state application, asserting the same claims as in his 1985 application. The record does not reflect any ruling on that application.

Gray filed the instant habeas application in late 1987, presenting numerous issues. The magistrate judge found that the delay in ruling on Gray's 1987 state application, and the State's failure to offer any explanation for the delay, justified excusing the exhaustion of remedies requirement. ⁸ In May 1989, the district court adopted the magistrate judge's recommendation, and dismissed Gray's claims on the merits. On appeal, our court affirmed the dismissal of most of the claims, but vacated that portion of the judgment dismissing claims that Gray received ineffective assistance of counsel and that the trial transcript had been altered, and remanded for further proceedings on those claims. Gray v. Phelps, 917 F.2d 562 (5th Cir.1990) (unpublished).

On remand, counsel was appointed to represent Gray. The magistrate judge conducted an evidentiary hearing and again recommended that relief be denied. Over Gray's objections, the district court adopted the recommendation and dismissed the petition. Gray appealed, and our court granted a certificate of probable cause.

II.

"To obtain review of a state court judgment under [28 U.S.C.] Sec. 2254, a prisoner must assert a violation of a federal constitutional right". Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir.1993). Gray asserts a violation of the right to effective assistance of counsel, contending that he was prejudiced by trial counsel's failure to object to an erroneous jury instruction. ⁹ The Sixth Amendment, applicable to the States through the due process clause of the Fourteenth Amendment, guarantees criminal defendants the reasonably effective assistance of counsel. ¹⁰ E.g., Johnson v. Blackburn, 778 F.2d 1044, 1049 (5th Cir.1985); Ricalday v. Procunier, 736 F.2d 203, 207 & n. 4 (5th Cir.1984).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established the now well-known, two-part test for ineffective assistance of counsel:

First, the [criminal] defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S.Ct. at 2064. Generally, both components of this inquiry are mixed questions of law and fact; accordingly, we generally "must make an independent determination of whether counsel's representation passed constitutional muster". Ricalday, 736 F.2d at 206.

A.

"In order to satisfy the first prong of the [Strickland ] test, the petitioner must show that counsel's acts 'fell beneath an objective standard of reasonable professional assistance.' " Johnson v. Blackburn, 778 F.2d at 1049 (quoting Stokes v. Procunier, 744 F.2d 475, 483 (5th Cir.1984)). We "give great deference to counsel's assistance, strongly presuming that counsel has exercised reasonable professional judgment". Ricalday, 736 F.2d at 206.

It was settled long before Gray's trial in 1979 that, under Louisiana law, the elements of attempted murder are (1) specific intent to kill a human being, and (2) an overt act in furtherance thereof. State v. Butler, 322 So.2d 189, 192 (La.1975) (citing State v Roberts, 213 La. 559, 35 So.2d 216, 217 (1948)). State v. Butler held that the specific intent to inflict great bodily harm is not an alternative to the intent to kill element. Id. at 191-93. ¹¹ This notwithstanding, the jury was erroneously instructed, without objection by Gray's counsel, that Gray could be found guilty of attempted murder if he had either the intent to kill or the intent to inflict great bodily harm:

[I]n order to convict of attempted first degree murder, you must find that the defendant attempted to kill Sammy James. And that the defendant had the specific intent to kill or inflict great bodily harm.

The jury also was instructed on the lesser offenses of attempted second degree murder, attempted manslaughter, and aggravated battery. None of those lesser offenses, as defined in the trial court's instructions, included as an element the intent to inflict great bodily harm. Immediately thereafter, the jury was instructed again that

[a]n essential element of the offense of attempted first degree murder is specific criminal intent to kill or inflict great bodily harm.

And once again, Gray's counsel did not object.

As noted, several years before Gray's trial, the Louisiana Supreme Court held in State v. Butler not only that specific intent to kill is an essential element of the crime of attempted murder, but also, that an instruction permitting a jury to find an accused guilty of attempted murder if it finds the accused "guilty of either a specific intent to kill or of a specific intent to inflict great bodily harm" is reversible error. 322 So.2d at 191, 192-93. Therefore, the failure by Gray's counsel to object to the erroneous instruction "cannot be considered to be within the 'wide range of professionally competent assistance' ". Ricalday, 736 F.2d at 207 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066).

Indeed, in light of Louisiana jurisprudence, the State does not contest Gray's assertion that the failure to object falls outside the range of professional competence. ¹² Instead, it asserts that Gray was not prejudiced by the omission.

B.

"An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error did not prejudice the...