Gunn v. Newsome, 87-8287

• Decision Date: 08 August 1988
• Docket Number: No. 87-8287,87-8287
• Citation: 851 F.2d 1294
• Parties: Calvin GUNN, Petitioner-Appellee, v. Lanson NEWSOME, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1294

851 F.2d 1294

Calvin GUNN, Petitioner-Appellee, v. Lanson NEWSOME, Warden, Respondent-Appellant.

No. 87-8287.

United States Court of Appeals, Eleventh Circuit.

Aug. 8, 1988.

Order Granting Rehearing In Banc Sept. 16, 1988.

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

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

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

Before KRAVITCH, Circuit Judge, HENDERSON ^*, and HENLEY ^**, Senior Circuit Judges.

HENLEY, Senior Circuit Judge:

Respondent Lanson Newsome, Warden, Georgia State Prison (hereafter State), appeals from the district court's ¹ order granting habeas corpus relief to petitioner Calvin Gunn. 28 U.S.C. Sec. 2254. We affirm the decision of the district court.

Gunn was convicted of malice murder following a jury trial in Rabun County, Georgia in June, 1979. The conviction arose from a fight between Gunn and the victim, Eddie Williams. On March 23, 1979, Gunn and Williams were bowling at a place called the Frontier Lounge. In the course of the evening Gunn and Williams had an argument. A witness testified that Gunn threatened to kill Williams. The two had fought in the past and they stepped outside the lounge to settle their dispute by fisticuffs. The bartender intervened before blows were exchanged.

Gunn and Williams then left the lounge premises in separate vehicles. Mike Shirley accompanied Williams. Gunn was following Williams' vehicle. At trial Shirley testified that Williams 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." Williams then pulled into a vacant parking lot and Gunn followed. Gunn testified that after the bartender intervened at the lounge, the two had agreed to meet at the second parking lot.

After the three persons left the parked 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. ² The two 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 said, "I got your buddy, Shirley, I'm going to kill you next." 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 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' injury.

The jury was instructed on both malice murder and voluntary manslaughter. After deliberating for an hour 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 persons serving on the grand jury which returned the indictment. The other issues were venue; failure to grant a continuance to locate a witness; introduction of a cue stick similar to the one Gunn used; and improper questioning by the prosecutor. Gunn's conviction was affirmed. Gunn v. State, 245 Ga. 359, 264 S.E.2d 862 (1980).

In July, 1982 Gunn petitioned pro se the United States District Court for the Northern District of Georgia for a writ of habeas corpus. In his petition Gunn raised five of the six grounds he argued on his direct appeal to the Georgia Supreme Court. The application was denied on April 28, 1983, and Gunn did not appeal.

In September, 1985 Gunn, pro se, sought a writ of habeas corpus in Georgia state court. Gunn's sole claim of error was that a jury instruction on intent given at his trial created an unconstitutional presumption of intent, thereby relieving the State of its burden of proof on that element of the crime for which he was convicted. Gunn's petition was denied on February 6, 1986, and the Georgia Supreme Court denied Gunn's application for a certificate of probable cause to appeal on March 11, 1986.

On April 1, 1986, Gunn filed his second pro se petition for federal habeas corpus relief raising the sole ground he had raised in his state habeas corpus proceeding. The State opposed Gunn's petition as being successive and an abuse of the writ. The district court found no abuse and, proceeding to the merits, granted Gunn's petition for a writ of habeas corpus unless the State grants him a new trial. This appeal followed and Gunn is represented by counsel for the first time in his post-conviction proceedings. ³ We affirm.

Initially, appellant contends that the district court erred in not dismissing Gunn's successive federal habeas corpus application as an abuse of the writ. See 28 U.S.C. foll. Sec. 2254 Rule 9(b) (a successive petition may be dismissed if the district court finds that the failure to assert the new ground in a prior petition constituted an abuse of the writ). "Absent deliberate withholding or intentional abandonment of a claim in the first federal petition, the inquiry into whether a petitioner has abused the writ in raising a new law claim must consider the petitioner's conduct and knowledge at the time of the preceding federal application." Moore v. Kemp, 824 F.2d 847, 851 (11th Cir.1987) (en banc), petition for cert. filed (Jan. 27, 1988) (WESTLAW, ic service).

Gunn's petition challenges the constitutionality of the following charge to the jury:

A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but this presumption may be rebutted. A person will not be presumed to act with criminal intent but you the jury may find such intention upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.

On June 18, 1979, only two days prior to Gunn's conviction, the Supreme Court found a jury instruction that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts" to be unconstitutional. Sandstrom v. Montana, 442 U.S. 510, 513 & 524, 99 S.Ct. 2450, 2453 & 2459, 61 L.Ed.2d 39 (1979). Sandstrom was not raised at trial or on Gunn's direct appeal. Gunn's first federal habeas corpus petition merely recited the errors alleged by his attorney on direct appeal. The record does not support appellant's contention that Gunn's first application for federal habeas corpus revealed a knowledge of the law. At best, it revealed Gunn's ability to copy unimaginatively his attorney's appellate brief.

Further, Gunn's explanation for why he did not raise the Sandstrom issue is more plausible than the State's assertion that Gunn possessed the legal acumen to discover and raise the issue in his first petition. Gunn claimed that he became aware of the instruction issue when the Supreme Court announced its decision in Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), decided April 29, 1985. In Franklin the Court found unconstitutional a jury instruction remarkably similar to the one in Gunn's case which also arose from a Georgia conviction. Id. at 311-12, 105 S.Ct. at 1969-70. Gunn initiated his state habeas petition approximately five months after Franklin was decided. The inference from the State's argument that Gunn is knowledgeable in the law (i.e., that Gunn knew of the Sandstrom issue at the time of his first petition in July, 1982, but did not raise it until some three years later) is simply untenable. The district court did not err in finding Gunn's petition not to be an abuse of the writ.

It is too late in the day for the appellant to argue that the challenged instruction, standing alone, is not an unconstitutional burden shifting presumption. See Franklin, 471 U.S. at 318, 105 S.Ct. at 1973. We must, however, consider the jury instructions as a whole and determine whether the unconstitutional burden shifting presumption is ameliorated by other instructions given to the jury. Id. at 318-19, 105 S.Ct. at 1973; Potts v. Kemp, 814 F.2d 1512, 1514-15 (11th Cir.1987). In this regard, we find the State's argument totally without merit. The jury charge in Gunn's case did not differ significantly from the charge in Franklin which is quoted at length in then Justice (now Chief Justice) Rehnquist's dissent. Franklin, 471 U.S. at 334-36, 105 S.Ct. at 1981-82. ⁴ We agree with the district court that the jury charge, read as a whole, did not cure the constitutional infirmity of the burden shifting presumption instruction. Accordingly, we turn to the question of harmless error.

The harmless error standard of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) ("before a constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"), applies to jury instructions that violated Sandstrom and Franklin. Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 3108-09, 92 L.Ed.2d 460 (1986); Bowen v. Kemp, 832 F.2d 546, 548 (11th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1120, 99 L.Ed.2d 281 (1988). A Sandstrom error is harmless in either of two situations:...