Hulsey v. Sargent

• Decision Date: 13 March 1989
• Docket Number: No. 88-1148,88-1148
• Citation: 865 F.2d 954
• Parties: Dewayne HULSEY, Appellee, v. Willis SARGENT, Superintendent, Cummins Unit, Arkansas Department of Correction, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 954

865 F.2d 954

Dewayne HULSEY, Appellee, v. Willis SARGENT, Superintendent, Cummins Unit, Arkansas

Department of Correction, Appellant.

No. 88-1148.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 20, 1988.

Decided Jan. 19, 1989.

As Amended on Denial of Rehearing and Rehearing En Banc

March 13, 1989.

Jack Gillean, Asst. Atty. Gen., Little Rock, Ark., for appellant.

Everett C. Johnson, Washington, D.C., for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

LAY, Chief Judge.

In Hulsey v. Sargent, 821 F.2d469 (8th Cir.1987), this court remanded for reconsideration the district court's earlier decision to vacate Hulsey's death sentence, in light of Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). On remand, the district court held that because the state trial court applied an incorrect legal standard, its factual finding that juror Creamer was properly excused for cause was not fairly supported by the record. The district court therefore concluded that the presumption of correctness, under 28 U.S.C. Sec. 2254(d), should not attach to the state court's findings. Hence, upon reconsideration, the district court again vacated Hulsey's death sentence. The State once again appeals. We reverse and remand with directions to dismiss Hulsey's petition for a writ of habeas corpus.

The district court found that the state trial court excluded the juror based upon the single affirmative response that she could not vote for the death penalty regardless of the evidence. The state judge, supposedly relying on footnote 21 of Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 1777 n. 21, 20 L.Ed.2d 776 (1968), had found that the juror was unequivocally opposed to the death penalty and therefore could be excused by the State for cause. The district court held this was error since the state court did not ascertain, in light of other equivocal answers, whether despite her beliefs Creamer would have been able to follow her oath, i.e., whether she would automatically vote against the death penalty notwithstanding the law and her oath to follow the court's instructions. In other words, the district court held that the trial judge misapplied the Witherspoon test. On this basis the district court found that deference to a state court finding of fact was not appropriate where such a finding was based on a misapplication of federal law. See Gray v. Mississippi, 481 U.S. 648, 661 n. 10, 107 S.Ct. 2045, 2053 n. 10, 95 L.Ed.2d 622 (1987). Because the district court felt the state court applied an incorrect legal standard it concluded that the factual finding was not fairly supported by the record and did not apply the presumption of correctness thereto. See 28 U.S.C. Sec. 2254(d)(8).

At the time of Hulsey's trial in 1975 the state court was acting under its interpretation of Witherspoon. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), and Witt had not been decided. If the strict requirements of Witherspoon were deemed controlling we would have serious concerns about the state trial court's application of that standard. Mrs. Creamer's equivocal answers would seem to challenge the requirements espoused in Witherspoon that the juror's bias against the death penalty be "unmistakably clear," such that the juror would automatically vote against the death penalty. This was, of course, the district court's understandable response in its first opinion. However, we noted in our remand, 821 F.2d at 471, that Witt had not been decided at the time of the district court's opinion. We remanded to the district court for further consideration in light of the clarifying principles of Witt.

In Witt the Supreme Court rejected footnote 21 of Witherspoon as dicta and reaffirmed the standard articulated in Adams. Witt, 469 U.S. at 420, 422, 105 S.Ct. at 850, 851. As the Court stated, this standard is whether the juror's view would "prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and [her] oath." Id. at 424, 105 S.Ct. at 852. The Court thereby rejected "automatic" decisionmaking as well as the notion that bias be proved with unmistakable clarity. In this regard, the Court stated:

What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. * * * [T]his is why deference must be paid to the trial judge who sees and hears the juror.

Id. at 424-26, 105 S.Ct. at 852-53 (footnote omitted).

We disagree with the district court's refusal to apply Sec. 2254(d) and the presumption of correctness to the state court's finding. The state court applied the only standard then thought available. Whether the state court applied Witherspoon erroneously is immaterial to our discussion. In passing on the petition for a writ of habeas corpus the district court was required to appraise the record in light of the less stringent standard under Witt.

The district court found that the prosecutor did not inquire as to whether the prospective juror could perform her duties as a juror in accordance with her oath and the court's instructions. Cf. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). We perceive the fundamental difference between Witherspoon and the Adams-Witt rule to be one of lessened degree as to the burden of proof. ¹ In order to exclude a juror under Witt the State no longer must show that it is unmistakably clear that the juror's opposition to capital punishment would automatically cause exclusion. The Witt standard is one that requires the trial court to find that the juror's views would "prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and [her] oath." ² Witt, 469 U.S. at 424, 105 S.Ct. at 252 (emphasis added).

After discussing this change of emphasis in the standard the Supreme Court then turned to stress the degree of deference that a federal habeas court must pay to a state trial judge's determination of bias. In discussing its decision in Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), concerning the applicability of Sec. 2254(d), the Court in Witt stated:

Last Term, in Patton, supra, we held that a trial judge's finding that a particular venireman was not biased and therefore was properly seated was a finding of fact subject to Sec. 2254(d). We noted that the question whether a venireman is biased has traditionally been determined through voir dire culminating in a finding by the trial judge concerning the venireman's state of mind. We also noted that such a finding is based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province. Such determinations were entitled to deference even on direct review; "[t]he respect paid such findings in a habeas proceeding certainly should be no less." Id., at 1038, 104 S.Ct. at 2892.

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Once it is recognized that excluding prospective capital sentencing jurors because of their opposition to capital punishment is no different from excluding jurors for innumerable other reasons which result in bias, Patton must control. The trial judge is of course applying some kind of legal standard to what he sees and hears, but his predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record. These are the "factual issues" that are subject to Sec. 2254(d).

Witt, 469 U.S. at 428-29, 105 S.Ct. at 854-55 (footnotes omitted).

The state court voir dire of Mrs. Creamer was as follows:

"THE COURT: Do you know of any reason why, if selected to serve as a juror in this case, you could not try the case fairly and impartially, based solely on the evidence and the facts as you hear from the witness stand, and the instructions of the Court?

"MRS. CREAMER: No, sir, I know of no reasons why.

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* * *

"MR. RAFF: * * * Mrs. Creamer, this case is, as His Honor has already told you, is one involving capital felony murder. That's where we have charged the defendant with the taking of a human life during the perpetration or the commission of a robbery, and the penalty for that may be death, and the State, very candidly and very frankly, is going to ask this jury to return the death penalty in this case if they find this defendant guilty.

"Now, I know in this day and time many of us have discussed with other people, I have, I'm sure you probably have, our feelings on the death penalty. Some people believe that we should have it, that it is a proper punishment. Other people do not. There's nothing wrong, in my judgment at least, with believing either way. It's a matter of personal belief. Do you have a belief in this regard?

"MRS. CREAMER: No, I don't think so. I thought once I did, but I don't think so.

"MR. RAFF: Do you mind telling me, when you said you thought once you did, how did you?

"MRS. CREAMER: Well, if a person does something, I wouldn't want them to do it to me, if he's really guilty, I would just have to hear what is said, since I wouldn't know.

"MR. RAFF: I'm not talking about his guilt or innocence.

"MRS. CREAMER: You mean the death penalty.

"MR. RAFF: Let's just assume that you think, from the evidence as you hear it, and the law, that he's guilty. You are convinced beyond a reasonable doubt this man is guilty. The second question that is going to be posed to you, if he is guilty, what...