Hill v. Thigpen, DC 84-230-D-O.

• Decision Date: 02 July 1987
• Docket Number: No. DC 84-230-D-O.,DC 84-230-D-O.
• Parties: Alvin HILL, Petitioner, v. Morris THIGPEN, Respondent.
• Court: U.S. District Court — Northern District of Mississippi

667 F. Supp. 314

Alvin HILL, Petitioner, v. Morris THIGPEN, Respondent.

No. DC 84-230-D-O.

United States District Court, N.D. Mississippi, Delta Division.

July 2, 1987.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James P. Kreindler, New York City, Percy Stanfield, Jr., Jackson, Miss., for petitioner.

Donald G. Barlow, Sp. Asst. Atty. Gen., Jackson, Miss., for respondent.

MEMORANDUM OPINION

DAVIDSON, District Judge.

This cause is before the court on a petition for a writ of habeas corpus by the petitioner Alvin Hill who was convicted of capital murder and sentenced to death in the Circuit Court of DeSoto County, Mississippi, on November 26, 1980. Hill directly appealed his conviction and sentence to the Mississippi Supreme Court wherein the judgment of the lower court was affirmed. Hill v. State, 432 So.2d 427 (Miss.1983), cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 532 (1983). Hill then filed a Petition for Writ of Error Coram Nobis which the Mississippi Supreme Court denied in In re Alvin Hill, 460 So.2d 792 (Miss.1984). On November 19, 1984, Hill filed the instant Petition for Writ of Habeas Corpus in the United States District Court for the Northern District of Mississippi. This court, pursuant to the order of the Honorable William C. Keady, granted the petitioner an order staying his execution to allow him to present certain unexhausted claims made in the instant petition to the Mississippi Supreme Court. Hill petitioned the state supreme court on those unexhausted claims in a second Petition for Writ of Error Coram Nobis which the Mississippi Supreme Court again denied on April 10, 1985. In re Alvin Hill, 467 So.2d 669 (Miss.1985). Having now exhausted all of his claims before the state supreme court, the court proceeds with its ruling on the merits. For the reasons set forth herein, all motions for summary judgment and/or partial summary judgment are denied.

Statement of Facts

On July 12, 1979, an American Freight Lines Truck, driven by Robert Lee Watkins, was hijacked in DeSoto County, Mississippi. In Tunica County, on July 16, 1979, petitioner Alvin Hill and an accomplice, Sammy Lee Hampton, hijacked and robbed a truck driver employed by the Nat Buring Packing Company. Tunica County Sheriff Hugh Monteith arrested Hill on July 20 for the second hijacking, approximately the same date that Hampton was also arrested for the Tunica County hijacking. On July 19 and 20, Hill was questioned by F.B.I. Special Agent Bobby G. Shanks concerning the hijacking of the American Freight Lines Truck that had occurred on July 12. Hill was again questioned by Shanks on July 25 and on that day, Shanks advised Hill that Hampton had stated that Hill had been involved in the July 12 hijacking that had resulted in the disappearance of the American Freight Lines' driver, Robert Lee Watkins.

On August 17, 1979 at around 6:30 p.m. reserve deputy sheriffs Donald Sutton and Mike Madden found Watkins' body in DeSoto County. Later that evening, Ricky Wayne Ward, Chief Investigator for the DeSoto County Sheriff's office, informed Hill that Watkins' body had been found. One month earlier, on July 18, 1979, Hill's pick-up truck was searched and a U-Haul contract discovered showing that Hill had rented a U-Haul truck bearing Maryland license plate number M91196, the same Maryland license plate that a truck driver, Russell Bowers, had observed parked alongside the American Freight Lines truck at the time of its hijacking. The search was conducted by an F.B.I. agent between 12:00 p.m. and 4:00 p.m. on July 18 and the U-Haul contract was introduced into evidence against Hill at trial. Hill, according to the testimony of Special Agent Ellis Young, consented to the search at 5:30 p.m. on the same day. Other evidence linking Hill to the DeSoto County hijacking of the American Freight Lines truck was a carburetor found in Hill's home that had allegedly been in the American Freight Lines truck.

Finally, on August 18 around 5:00 o'clock p.m., Hill confessed to the robbery and murder of Robert Lee Watkins in the presence of Ward, Tunica County Sheriff Monteith, DeSoto County Sheriff Denver Sowell, and Deputy Bobby Gene Biffle. In his confession, Hill stated that Gregory Tucker and another black male, later determined to be Leverne Milam, aided Hill in the hijacking and robbery of Watkins but that he, Hill, was the one who shot Watkins. Hill confessed that Watkins was on his knees when he first shot Watkins in the back of the head. Hill initially stated that he had thrown the murder weapon into the Cold Water River from a bridge south of Hernando, Mississippi but later on August 18, Hill told Ward that a Mr. Carter of Memphis then had the weapon. On August 19, Sheriff Monteith informed the Memphis Police Department that Robert Carter possessed the pistol used in the Watkins' murder and further informed the Memphis Police of Carter's place of employment. On August 20, two Memphis police officers questioned Carter who told him that he had loaned his pistol to a black man known to him as "Rusty" (later determined to be Hill) and then Carter took the officers to the apartment and surrendered the pistol to them. Although Hill's confession was later ruled involuntary and therefore inadmissible at trial, the pistol was admitted into evidence along with the U-Haul contract found in Hill's truck and the carburetor found in Hill's dwelling.

Both Hill and Hampton pled guilty to the Tunica hijacking and Hill was sentenced to a 20-year incarceration and Hampton was sentenced to a 17-year incarceration. On October 5, 1979 Hill, Tucker and Leverne Milam were indicted for the murder of Robert Lee Watkins committed in the commission of robbery and capital murder under Mississippi Code Annotated § 97-3-19(2)(e). Hill's trial for capital murder began on November 17, 1980. Gregory Tucker, who pled guilty to a charge of manslaughter, testified for the state. The jury found Hill guilty of capital murder and upon conclusion of the sentencing phase of the trial, unanimously found that Hill should suffer the penalty of death.

Before addressing the substantive claims raised by Hill in support of his petition, the court will first discuss two alleged procedural bars raised by the state in their briefs. Once these procedural matters have been resolved, Hill's substantive claims will be addressed.

The Application of Mississippi's Contemporaneous Objection Rule

In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court considered the availability of federal habeas corpus to review a state inmate's constitutional claim where the petitioner had failed to comply with the state's contemporaneous objection rule. The Court held that when a procedural default, such as the contemporaneous objection rule, bars litigation of a constitutional claim in state court, federal courts are likewise precluded from addressing the merits and federal habeas relief is unavailable unless the petitioner can show "cause" for non-compliance and some "actual prejudice" resulting from the alleged constitutional violation. 433 U.S. at 84, 97 S.Ct. at 2505; see also Bates v. Blackburn, 805 F.2d 569, 574 (5th Cir.1986) (summarizing the Sykes decision), cert. denied, ___ U.S. ___, 107 S.Ct. 3190, 96 L.Ed.2d 678 (1987). In Bates v. Blackburn, 805 F.2d at 574, the Fifth Circuit stated:

After Sykes, a federal habeas court is called upon to make the following analysis before relief may be granted. First it must decide whether the state court applied the procedural bar in denying the petitioner's federal constitutional claim. Second, assuming that a state court applied the procedural bar, the federal court must consider whether there was adequate cause for the petitioner's failure to comply with the procedural rule. And third, assuming adequate cause, the federal court must decide whether the petitioner suffered actual prejudice from the alleged constitutional violation before habeas relief may be granted. Cause-and-prejudice-analysis is, therefore, triggered only if the federal court determines that the state courts have refused to hear a petitioner's federal constitutional claim because of a state law procedural default.

A recognized exception, however, to the rule that a federal court will not reach an issue which the state courts refused to reach due to a procedural default is where the procedural rule is not "strictly or regularly followed." Wheat v. Thigpen, 793 F.2d 621, 624 (5th Cir.1986) (citing Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824, 832 (1982)); see also James v. Kentucky, 466 U.S. 341, 104 S.Ct. 1830, 80 L.Ed.2d 346, 353 (1984) (only state procedural rules that are "firmly established and regularly followed" can prevent implementation of federal constitutional rights); Hathorn, supra, 457 U.S. at 263, 102 S.Ct. at 2426, 72 L.Ed.2d at 833 (state courts may not avoid deciding federal issues by invoking procedural rules that they do not apply even-handedly to all similar claims); Henry v. Mississippi, 379 U.S. 443, 448 n. 3, 85 S.Ct. 564, 567 n. 3, 13 L.Ed. 408, 413 n. 3 (1965) (state procedural rule must be "clearly announced to defendant and counsel").

On Hill's direct appeal to the Mississippi Supreme Court, the majority of the Court stated, in responding to the contention that the prosecutor's "last word" argument constituted reversible error:

In this case, however, there was no objection made to this argument. We have consistently held that contemporaneous objection must be made to improper argument by the state, and unless such objection is made, any claimed error for such improper argument would not be considered on appeal. See Coleman v. State, 378 So.2d 640 (Miss.1979); Thomas v. State, 358 So.2d 1311 (Miss.1978); Griffin v. State, 292 So.2d 159 (Miss. 1974); Myers v. State, 268 So.2d 353 (Miss.1972); Peterson v. State, 242 So.2d 420 (Miss.1970); Ford v. State, 227 So.2d 454 (Miss.19

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