Gunn v. Newsome

Decision Date07 August 1989
Docket NumberNo. 87-8287,87-8287
Citation881 F.2d 949
PartiesCalvin GUNN, Petitioner-Appellee, v. Lanson NEWSOME, Warden, Respondent-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

William B. Hill, Jr., Asst. Atty. Gen., Susan V. Boleyn, Atlanta, Ga., for respondent-appellant.

Steven F. Hauser, The Coca-Cola Co., Atlanta, Ga. (court appointed), for petitioner-appellee.

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


KRAVITCH, Circuit Judge:

While serving a Georgia life sentence for malice murder, Calvin Gunn petitioned the district court pro se for a writ of habeas corpus under 28 U.S.C. Sec. 2254. Gunn's sole basis for relief was that the trial court's jury instruction on the issue of intent had unconstitutionally shifted the state's burden of proof on that issue to Gunn. It was Gunn's second federal habeas petition, and he had not raised this issue in his first petition, which he had also filed pro se. The state argued that the district court should summarily dismiss the petition under Rule 9(b) of the Rules Governing Section 2254 Cases as an abuse of the writ, and opposed the petition on the merits. Taking note of Gunn's pro se status at the time he filed his first federal habeas petition and of the abstruse nature of the legal claim involved, the district court concluded that Gunn's second petition was not an abuse of the writ. Upon reaching the merits, the court found in Gunn's favor, and granted the writ unless the state retried Gunn within 120 days. The state appealed. A panel of this court agreed that the jury instruction had unconstitutionally shifted the state's burden, and that the error was not harmless; the panel was divided, however, on the abuse of the writ issue, with a majority voting to affirm the district court. 851 F.2d 1294 (1988). We determined to rehear the case in banc, and vacated the panel opinion. Id. at 1301. We now AFFIRM.


In the early evening of March 23, 1979, Eddie Williams was bowling at the Frontier Lounge in Rabun County, Georgia, with his cousin, Russell Ivester, and Michael Shirley. Some time after the match had begun, Gunn arrived and asked if he could join the game. Everyone agreed that Gunn could do so. During the bowling match, Gunn and Williams had an argument. Ivester testified that Gunn threatened to kill Williams, and Williams made similar threatening remarks to Gunn. The two had fought in the past, and they stepped outside the lounge to settle their dispute. A bartender intervened before blows were exchanged.

Gunn and Williams then left the lounge in separate vehicles. Mike Shirley accompanied Williams. Gunn followed Williams's vehicle. Williams noticed Gunn following him, and exclaimed, "I'm not going to let the son-of-a-bitch follow me everywhere. I'm going to stop and get this over with." He then pulled into a vacant parking lot, and Gunn followed. According to Gunn, the two had agreed to meet at this parking lot after the bartender had intervened at the lounge. It appears that this parking lot was the customary venue for fights.

After Williams, Shirley, and Gunn got out of the cars, Shirley walked to a bush twenty-five yards away to relieve himself. Williams and Gunn then exchanged words, and Gunn pulled out the butt end of a sawed-off cue stick and struck Williams on the head. Shirley testified that Gunn struck Williams two or three clean blows to the head before Williams was able to ward off further blows with his hands. Gunn testified that he hit Williams with the cue stick in self-defense because Williams had a large rock in his left hand and had attempted to strike him. Shirley testified that he did not see a rock, but he was unable to see Williams's left hand. Gunn and Williams grappled together and fell to the ground, Gunn losing the cue stick in the scuffle. At this point Shirley retrieved the cue stick and bludgeoned Gunn about the back. Shirley's intervention allowed Williams to gain the advantage in the fight. Gunn asked to be released, and Williams obliged. Williams then drove back to the lounge with Shirley as a passenger.

When Williams and Shirley arrived at the lounge, Williams remained in the car, complaining that he did not feel well. Gunn then drove up and purportedly told Shirley, "I got your buddy, Shirley, I'm going to kill you next." 1 Williams went home that evening saying he would be all right. The following morning, however, he was found convulsing and was taken to the hospital, where he died a short time later.

The physician who treated Williams when he arrived at the hospital also performed the autopsy, and testified that Williams died as the result of a blow to the left side of the head which fractured the skull resulting in cerebral edema. The doctor further testified that a blow with a sawed-off cue stick would have been compatible with Williams's injury.


Gunn was tried before a Rabun County jury in June of 1979. The court instructed the jury on both malice murder and voluntary manslaughter. As part of its jury instructions, the court instructed the jury that the law presumes a person intends "the natural and probable consequences of his acts, but this presumption may be rebutted." Gunn's lawyer did not challenge the constitutionality of the jury instruction. On June 20, 1979, the jury returned a verdict of guilty as to malice murder. Gunn was sentenced to mandatory life imprisonment.

Gunn appealed to the Georgia Supreme Court, raising six issues. Two issues involved the impanelling of the grand jury that had indicted Gunn. The other issues were the denial of a motion for change of venue, failure to grant a continuance to locate a witness, introduction into evidence of a cue stick similar to the one Gunn allegedly used, and improper questioning by the prosecutor that impermissibly put Gunn's character into issue. Gunn's lawyer did not challenge the jury instructions on appeal. The Supreme Court of Georgia affirmed Gunn's conviction. Gunn v. State, 245 Ga. 359, 264 S.E.2d 862 (1980).

Gunn's first federal habeas petition, which he filed pro se, simply repeated five of the six issues that Gunn's lawyer had raised on direct appeal. These claims were that the grand jury had been unconstitutionally impanelled (Claim 1), that he had been denied a fair trial by the trial court's denial of a motion for change of venue (Claim 2), that he had been denied a fair trial by the trial court's denial of a motion for continuance (Claim 3), the admission of evidence--the cue stick--that was prejudicial and not related to the crime (Claim 4), and that the prosecutor impermissibly put his character into issue in the case (Claim 5). Gunn did not challenge the constitutionality of the jury instructions.

The state responded on the merits to each claim. The magistrate held an evidentiary hearing, after which the district court, adopting the recommendation of the magistrate, denied relief in April of 1983.

In September of 1985, four months after the Supreme Court's decision in Francis v. Franklin, 471 U.S. 307, 105 S.Ct.1965, 85 L.Ed.2d 344 (1985), Gunn pro se filed a state habeas petition in the Superior Court of Tattnall County, Georgia. Gunn's sole ground for relief was that the trial court's jury instruction on intent--virtually identical to the one found unconstitutional in Franklin--had created an unconstitutional presumption of intent to kill.

The state did not raise any state law procedural default bar as a defense; instead, the state responded to Gunn's claim on the merits. After an evidentiary hearing, the state court denied Gunn's petition, concluding that the jury instruction created only a permissive inference of intent, and thus did not shift the state's burden of proof. The Georgia Supreme Court denied Gunn's application for a certificate of probable cause in March of 1986.

Having exhausted his state remedies, Gunn now returned pro se to federal court and filed his second petition for a writ of habeas corpus on April 1, 1986. The sole ground for relief that Gunn raised was the constitutionality of the trial court's jury instruction on the issue of intent.

The state responded to Gunn's petition by arguing that the petition should be summarily dismissed as an abuse of the writ. The magistrate concluded that Gunn's second petition was not an abuse of the writ, and invited the state to respond to the merits of Gunn's claim. After the state had responded, the magistrate concluded that the jury instruction on the issue of intent had impermissibly shifted part of the government's burden of proof. The district court, before whom the state had renewed its motion to dismiss the petition as an abuse of the writ, reviewed the record de novo and concluded that Gunn's second petition was not an abuse of the writ and that he should prevail on the merits of his claim. The district court granted the writ unless the state retried Gunn within 120 days. The state appeals. 2

The state raises three issues in its appeal. First, the state challenges the district court's determination that Gunn did not abuse the writ. Second, the state challenges the district court's decision on the merits that the jury instruction unconstitutionally shifted the government's burden to Gunn. Finally, the state contests the district court's conclusion that the constitutionally infirm jury instruction was not harmless error.


Because the writ of habeas corpus is equitable in origins, under certain circumstances a court may decline to entertain a petition properly within its jurisdiction. 3 The focus of the court's inquiry in making this threshold determination is on the conduct of the habeas petitioner, because "a suitor's conduct in relation to the matter at hand may...

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