Henry v. Wainwright, 80-5184

• Citation: 686 F.2d 311
• Decision Date: 20 September 1982
• Docket Number: No. 80-5184,80-5184
• Parties: James Dupree HENRY, Petitioner-Appellee-Cross-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, Respondent-Appellant-Cross-Appellee. . Unit B *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 311

686 F.2d 311

James Dupree HENRY, Petitioner-Appellee-Cross-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections,

Respondent-Appellant-Cross-Appellee.

No. 80-5184.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Sept. 20, 1982.

Wallace E. Allbritton, Charles A. Stampelos, Asst. Attys. Gen., Tallahassee, Fla., for respondent-appellant-cross-appellee.

Craig S. Barnard, Chief Asst. Public Defender, West Palm Beach, Fla., for petitioner-appellee-cross-appellant.

Appeals from the United States District Court for the Middle District of Florida.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HILL, Circuit Judge, SMITH ^**, and HENDERSON, Circuit Judges.

JAMES C. HILL, Circuit Judge:

This case was decided by this panel sitting as the United States Court of Appeals for the Fifth Circuit (Unit B) in an opinion and judgment dated November 12, 1981, and reported at 661 F.2d 56. The Supreme Court --- U.S. ----, 102 S.Ct. 2922, 73 L.Ed.2d ---- vacated the circuit court judgment and remanded the case to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of Engle v. Isaac, --- U.S. ----, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Finding that Isaac does not lead to a different result in this case, we reinstate the prior judgment. Nevertheless, some elaboration is necessary.

I

In Isaac, the Supreme Court reaffirmed its holding in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), that failure to comply with a state procedural rule, such as a contemporaneous objection rule, bars federal habeas review of alleged constitutional error absent a showing of cause for noncompliance and actual prejudice. --- U.S. at ----, 102 S.Ct. at 1572. Isaac further held "that the futility of presenting an objection to the state courts cannot alone constitute cause for a failure to object at trial," id. at ----, 102 S.Ct. at 1572, and that alleged unawareness of a constitutional claim at the time of the trial does not constitute cause where "the tools to construct" the constitutional claim were available, id. at ----, 102 S.Ct. at 1574.

Isaac involved a situation where there had been no objection to the allegedly erroneous instruction at trial. While the Supreme Court was uncertain whether the Ohio appeals courts reviewing Isaac's claim had been presented with the constitutional attack, --- U.S. at ---- n.27, 102 S.Ct. at 1570 n.27, it observed that the Ohio Supreme Court had enforced a procedural bar in other cases "against the very due process argument raised" in Isaac. Id. at ----, 102 S.Ct. at 1570. The Court believed that if the state courts had been presented with the constitutional issue, they had determined "that the claim was waived." --- U.S. at ---- n.27, 102 S.Ct. at 1570 n.27. The Court thus dealt with a constitutional claim that had been "forfeited before the state courts." --- U.S. at ----, 102 S.Ct. at 1570.

In this case, Henry has asserted that the state trial court committed an error of constitutional dimension at Henry's sentencing hearing by admitting evidence of and permitting jury consideration of nonstatutory aggravating circumstances. We agreed and affirmed the district court's judgment vacating Henry's death sentence. 661 F.2d at 58-61. In contrast to Isaac we did not deal with a claim that was forfeited before the state courts. Because our earlier opinion may not have made that entirely clear and since we have had the opportunity to reconsider the Sykes problem in light of Isaac, we shall review the grounds supporting the conclusion that Henry's claim was properly presented for federal habeas review.

II

Appellant Wainwright has urged that no allegation of error pertaining to the trial judge's instruction was made on Henry's direct appeal to the Florida Supreme Court, that the court refused to excuse that default when it later considered Henry's appeal from a state court order denying post-conviction relief, and that federal habeas review of the instruction is improper. We disagree, finding that Henry presented to the state appeals courts his constitutional attack on the jury's consideration of nonstatutory aggravating circumstances.

First, we observe that the opinion reflecting the Florida Supreme Court's collateral review of Henry's conviction does not state that Henry failed to raise the aggravating circumstances issue in his direct appeal. The court noted that the state circuit judge had ruled that all issues save one "either were raised or should have been raised on direct appeal." ¹ 377 So.2d 692 (Fla.1979). It held, "as to all but one of these rulings, the trial court properly determined that the matters presented may not be attacked in a proceeding for post-conviction relief." Id. The issue Henry raises here was not one of the two issues that were subject to collateral review. There was, however, no other discussion of the issues which the court found were raised, or should have been raised, on direct appeal.

The Florida Supreme Court's opinion in Henry's direct appeal does not list or describe any of the errors Henry asserted. Thus neither the direct appeal opinion nor the collateral review opinion supports the inference that Henry defaulted by failing to present the issue in question to the state courts.

Our conclusion that the issue was presented is based upon arguments from Henry's brief on direct appeal to the Florida Supreme Court. The appellant does not dispute Henry's assertion that point IV of Henry's brief "challenged the admission and consideration of non-statutory aggravating factors, inter alia, on the grounds that the strict guidelines of the statute must be followed 'to conform to the constitutional mandates of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), limiting arbitrariness and abuse of discretion in the sentencing procedure ....' " Petitioner-Appellee's Memorandum of Law on Remand at 9. On Petition for Rehearing, Henry again argued to the Florida Supreme Court that a death sentence imposed pursuant to the trial court's interpretation of Florida's statutory scheme would be unconstitutional. Id.

Whether Henry's constitutional claim may be dealt with on the merits on federal habeas review thus depends upon how the state appeals courts dealt with the issue. If Florida dealt with the merits of Henry's objection, whether or not there was a procedural default at trial under state law, then a federal habeas court must also determine the merits of the claim. Lefkowitz v. Newsome, 420 U.S. 283, 292 n.9, 95 S.Ct. 886, 891 n.9, 43 L.Ed.2d 196 (1975); Ratcliff v. Estelle, 597 F.2d 474, 478 (5th Cir.), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979). If the state courts found the issue barred because of procedural default, then federal habeas review is precluded absent a showing of cause and prejudice. Isaac, --- U.S. at ----, 102 S.Ct. at 1572; Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

III

On Henry's direct appeal, the Florida Supreme Court concluded that "no reversible error is made to appear ...." 328 So.2d 430 at 432. This language suggests that it dealt with Henry's claim on the merits. Cf. Clark v. Blackburn, 632 F.2d 531, 533 n.1 (5th Cir. 1980) ("In affirming the state trial court's denial of a habeas relief, the Louisiana Supreme Court did not rely on the contemporaneous objection rule but denied the writ because no showing had been made sufficient to 'warrant a finding that the trial judge's ruling was in error.' " (quoting State ex rel Clark v. Maggio, 347 So.2d 260 (La.1977))). We might hesitate to rely on that language alone to conclude that the merits were reached, but we find that two alternative lines of reasoning reinforce such a conclusion. ²

IV

The first thing leading us to believe that Florida must have reached the merits of Henry's argument is that, contrary to the appellant's assertions, there appears to have been no procedural default at trial. Everyone agrees, as the record abundantly shows, that petitioner's counsel, when presented with certain evidence of Henry's conduct, objected at the first opportunity on the grounds that the testimony constituted a nonstatutory aggravating factor and was thus unlawful. All the parties agree that the trial judge overruled that objection, holding that circumstances not specified by the capital sentencing statute, as well as those listed therein, could be considered by the jury. The state argues that procedural default occurred when counsel failed to belabor the point by restating his contentions when the trial judge, in keeping with his...