Irving v. Hargett, WC 79-75-OS-O.
| Citation | 518 F. Supp. 1127 |
| Decision Date | 24 July 1981 |
| Docket Number | No. WC 79-75-OS-O.,WC 79-75-OS-O. |
| Parties | John Buford IRVING, III, Petitioner, v. Steve HARGETT, Warden, Mississippi State Penitentiary, et al., Respondents. |
| Court | United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi |
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Leonard McClellan, Oxford, Miss., for petitioner.
Catherine Walker Underwood, Jackson, Miss., for respondents.
This is a habeas corpus action brought by petitioner John Buford Irving, III, who challenges the constitutionality of his conviction and sentence for capital murder in the state courts of Mississippi. On November 12, 1976, Irving, after a jury trial in the Circuit Court of Pontotoc County, was convicted of capital murder of Gambrell Ray1 and sentenced to suffer death in the gas chamber at the Mississippi State Penitentiary.
Irving, then 20 years of age, was the first defendant to be tried, convicted, and sentenced under the bifurcated procedure promulgated by the Mississippi Supreme Court in Jackson v. State, 337 So.2d 1242 (Miss. 1976). His conviction and sentence were affirmed on direct appeal to the state supreme court,2 and certiorari was denied by the Supreme Court of the United States on April 16, 1976.3
After exhausting available state remedies, Irving filed his present petition seeking to vacate his conviction and order his release from state custody. Consistent with the prayer for general relief, Irving's counsel, who also represented Irving at trial, argues that, if the conviction is not set aside, the sentence of death should be vacated and reduced to life imprisonment.
1. Contentions
Irving attacks his conviction and/or sentence on the following grounds:
1. A coerced confession was admitted in evidence.4
2. The exclusion from the jury of persons holding views in opposition to the death penalty violated his constitutional right to a fair trial.
3. The imposition of the death penalty under judicially-established procedures deprived him of life without due process of law and subjected him to cruel and unusual punishment.
4. He was denied effective assistance of counsel because the trial court required him to proceed at trial with counsel having a conflict of interest arising from their dual representation of Irving and a codefendant, Keith Anthony Givhan.
5. The death penalty procedure under which he was tried and sentenced was not in effect on the date of the crime and therefore constituted an ex post facto law.
6. The death penalty is administered in Mississippi in a discriminatory manner.
7. The procedure under which he was sentenced did not adequately channel jury discretion because it failed to properly define "aggravating" and "mitigating" circumstances and precluded meaningful appellate review.
8. He was not apprised of the standards and guidelines used by the state supreme court in reviewing death sentences.
9. His request to be examined by a psychologist prior to sentencing was denied.
After an evidentiary hearing conducted by the United States Magistrate, a report and recommendation was submitted in which the magistrate recommended that Irving's death sentence be vacated on the basis of his third claim, supra. The magistrate specifically rejected Irving's claims based upon conflict of interest, coerced confession, and discriminatory imposition of death penalty, and found it unnecessary to consider petitioner's other claims. Timely objections to the magistrate's report were filed by petitioner and respondents, and, having reviewed the state trial transcript and the transcript of the hearings before the magistrate, we adopt in part the magistrate's recommendation, and for different reasons than he assigned, set aside the death sentence and remand to the Circuit Court of Pontotoc County for resentencing in accordance with state law.5 Our findings of fact and conclusions of law, pursuant to Rule 52(a), F.R.Civ.P. follow.
II. Witherspoon Issue
Irving maintains that excusal of two jurors constituted a violation of his constitutional rights as established by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) because the trial court failed to ascertain with certainty that the prospective jurors' convictions against the death penalty were so strong as to fall within the limited circumstances when jurors may be excused for cause because of objections to the death penalty.
On voir dire examination, the court stated;
Later during voir dire examination by District Attorney Young, Mrs. Duffie again spoke up.
Petitioner argues that the excusal of these two individuals constitutes a violation of the Witherspoon doctrine because the prospective jurors' answers to the court's inquiries did not make it unmistakably clear that they would be unable to inflict the penalty of death under all circumstances. In effect, petitioner's argument is that the trial court lead the prospective jurors in their answers by restricting them to "yes" or "no" answers.
In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the Supreme Court, considering an Illinois statute which allowed challenges for cause whenever a prospective juror "has conscientious scruples against capital punishment, or ... is opposed to the same," held that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Id. at 522, 88 S.Ct. at 1777, 20 L.Ed.2d at 784-85. In explaining the parameters of its holding, the Court noted:
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