Irving v. State, No. 54358

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtPATTERSON; DAN M. LEE; WALKER; HAWKINS, P.J., and ROBERTSON
Citation498 So.2d 305
Docket NumberNo. 54358
Decision Date30 June 1986
PartiesJohn Buford IRVING, III v. STATE of Mississippi.

Page 305

498 So.2d 305
John Buford IRVING, III
v.
STATE of Mississippi.
No. 54358.
Supreme Court of Mississippi.
June 30, 1986.
Rehearing Denied Nov. 12, 1986.

Page 306

Robert B. McDuff, Deborah Hodges Bell, University, Lawrence Speiser, John Racin, Washington, D.C., for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Asst. Atty. Gen. and Amy Whitten, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

PATTERSON, Chief Justice, for the Court:

ON APPLICATION FOR LEAVE TO FILE MOTION TO VACATE JUDGMENT

AND DEATH SENTENCE

Irving was convicted of capital murder by the Circuit Court of Pontotoc County in

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1976. He was the first defendant to be tried, convicted, and sentenced to death under the bifurcated procedure promulgated in Jackson v. State, 337 So.2d 1242 (Miss.1976). A unanimous decision of this Court affirmed both the guilt and sentencing phases of the trial. Irving v. State, 361 So.2d 1360 (Miss.1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979).

On Petition for Writ of Habeas Corpus, a Federal District Court vacated Irving's death sentence because it was of the opinion his counsel had discouraged Irving from testifying in the sentencing phase of trial to protect a co-defendant his attorney was also representing. This violated Irving's fundamental right to testify in his own behalf. See Irving v. Hargett, 518 F.Supp. 1127 (N.D.Miss.1981).

Resentencing proceedings were instituted and Irving was again sentenced to death. This Court upheld the conviction and petition for rehearing was denied. See Irving v. State, 441 So.2d 846 (Miss.1983), cert. denied, 470 U.S. 1059, 105 S.Ct. 1774, 84 L.Ed.2d 834 (1985), rehearing denied, 471 U.S. 1095, 105 S.Ct. 2170, 85 L.Ed.2d 527 (1985).

The facts presented in this application have been stated in prior opinions and need not be repeated. The relief presently sought is pursuant to Miss.Code Ann., Sec. 99-39-1, et seq. (Supp.1984), the Mississippi Uniform Post-Conviction Collateral Relief Act. All points now urged for relief relate either to the initial determination of guilt or to the second sentencing trial.

According to our review and study all points now presented have either been disposed of by prior adjudication making them res judicata; or, the points were not raised at trial or in prior appeals and are now procedurally barred. Moreover, many are now before us unsupported by legal authority.

It is our opinion the present application is an attempt to revive previously litigated issues by framing questions differently, or, to present those which should have been raised during previous trials.

The Application for Leave to File Motion to Vacate Judgment and Death Sentence is denied.

APPLICATION DENIED.

WALKER and ROY NOBLE LEE, P.JJ., and DAN M. LEE, PRATHER, SULLIVAN and ANDERSON, JJ., concur.

HAWKINS and ROBERTSON, JJ., not participating.

DAN M. LEE, Justice, for the Court:

ON PETITION FOR REHEARING

John Buford Irving's application for post-conviction relief was originally denied by this court in an opinion written by former Chief Justice Patterson, decided on June 30, 1986. Irving subsequently petitioned this Court for rehearing. The following opinion more fully develops the issues considered and decided upon in the original opinion, in light of more recent decisions by the United States Supreme Court and the Court of Appeals for the Fifth Circuit. However, the ultimate holding of this Court is unchanged, and Irving's Petition for Rehearing on the denial of his Application for Leave to File Motion to Vacate Judgment and Death Sentence is denied.

Irving was convicted of capital murder by the Circuit Court of Pontotoc County in 1976. He was the first defendant to be tried, convicted, and sentenced to death under the bifurcated procedure promulgated in Jackson v. State, 337 So.2d 1242 (Miss.1976). A unanimous decision of this Court affirmed both the guilt and sentencing phases of the trial. Irving v. State, 361 So.2d 1360 (Miss.1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979).

On Petition for Writ of Habeas Corpus, a Federal District Court vacated Irving's death sentence because it was of the opinion his counsel had discouraged Irving from testifying in the sentencing phase of trial to protect a co-defendant his attorney was also representing. This violated Irving's

Page 308

fundamental right to testify in his own behalf. See Irving v. Hargett, 518 F.Supp. 1127 (N.D.Miss.1981).

Resentencing proceedings were instituted and Irving was again sentenced to death. This Court upheld the conviction and petition for rehearing was denied. See Irving v. State, 441 So.2d 846 (Miss.1983), cert. denied, 470 U.S. 1059, 105 S.Ct. 1774, 84 L.Ed.2d 834 (1985), rehearing denied, 471 U.S. 1095, 105 S.Ct. 2170, 85 L.Ed.2d 527 (1985).

FACTS

Gambrell Ray was shot to death on March 3, 1976, by an intruder in his rural grocery store. Mrs. Ray, who was in the living quarters in the rear of the store at the time of the shooting, testified that she heard someone ask for cigarettes just before the gunshot. After the shot, she picked up a pistol and went into the store, where she saw Irving standing in the doorway with a shotgun. Mrs. Ray ultimately left the store before the assailant. When officers returned to investigate, Irving, a cash box, and a shotgun owned by Ray were missing. The shotgun and a large amount of change were later discovered by a friend of Irving's family, with whom he had stayed after the incident.

Irving made a statement to local authorities, in which he stated that he shot Ray after Ray stepped toward him. The statement was admitted at Irving's first trial, over his objection. In his second sentencing hearing, Irving testified that he did not fire the fatal shot, but that his cousin, Keith Givhan, did. This is the position Irving has taken with respect to this Application. Givhan has also taken full responsibility for the incident; both by testifying at Irving's second sentencing hearing, and by an affidavit dated May 28, 1979, which is attached to this Application.

DISCUSSION OF LEGAL ISSUES

I. THE POST CONVICTION RELIEF ACT

Irving first alleges that any errors not asserted on direct appeal should not be procedurally barred by Miss.Code Ann. Secs. 99-39-1, et. seq, also known as the Uniform Post-Conviction Collateral Relief Act. To do so, according to Irving, would unconstitutionally limit this Court's review. Furthermore, as the Act was passed well after Irving's trial, he argues that it cannot constitutionally be applied retroactively to him. He argues that traditional review under the writ of error coram nobis should be applied to his case, particularly since he is laboring under a sentence of death.

As the State argues, the Post-Conviction Relief Act is not a new concept in Mississippi jurisprudence; it merely codifies existing constraints on review traditionally practiced by this Court. In recent cases, it has been repeatedly upheld as mandating that issues not raised on direct review are waived, and issues addressed on direct review are res judicata; both, procedurally barred. Stringer v. State, 485 So.2d 274 (Miss.1986); Dufour v. State, 483 So.2d 307 (Miss.1985); Tokman v. State, 475 So.2d 457 (Miss.1985); Leatherwood v. State, 473 So.2d 964 (Miss.1985).

The United States Supreme Court has recognized that the States have legitimate reasons for procedurally barring certain claims. In Murray v. Carrier, --- U.S. ----, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), speaking in the context of failure to raise an objection at trial, the Court said that the defendant attempting to justify a procedural default must show cause and prejudice.

The standard rests not only on the need to deter intentional defaults but on a judgment that the costs of federal habeas review 'are particularly high when a trial default has barred a prisoner from obtaining adjudication of his constitutional claim in the state courts.' Engle [v. Isaac ], 456 U.S. at 128 [102 S.Ct. 1558, at 1572, 71 L.Ed.2d 783].

--- U.S. at ---- 106 S.Ct. at 2645, 91 L.Ed.2d at 407.

The Court went on to hold that showing cause for the default rests not on the type of error made by counsel, as long as counsel

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was effective under the Strickland standard.

Instead, we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.

--- U.S. at ----, 106 S.Ct. at 2646, 91 L.Ed.2d at 408.

Citing Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), the Court held that the same standard applied when the claim was defaulted on appeal, rather than at trial.

The result was affirmed in Smith v. Murray, --- U.S. ----, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). There, the Court went further than Carrier in delineating what constitutes cause for a procedural default. This case will be discussed more fully in a later section of this opinion dealing with whether Irving can show cause here for his failure to assert certain claims on appeal. Suffice it to say at this point that procedural bars have been recognized by the United States Supreme Court as valid tools for focusing the attention of state appellate courts on all relevant issues that the defendant may raise at the time of his direct appeal.

The Court of Appeals for the Fifth Circuit, however, has recently reversed a death penalty case on grounds that the invocation of procedural bars by this Court has not been evenhanded or regular. Wheat v. Thigpen, 793 F.2d 621 (5th Cir.1986). The Court made the following finding:

In the years immediately preceding Wheat's appeal the Mississippi Supreme Court routinely reviewed claims made for the first time on writ of error coram nobis. The first case where the court expressly declares that it will not consider claims raised for the first time on...

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87 practice notes
  • Jackson v. State, No. 98-DR-00708-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • August 7, 2003
    ...the exception thereto as defined in Miss.Code Ann. §§ 99-39-21(1-5) are applicable in death penalty PCR Applications. Irving v. State, 498 So.2d 305 (Miss.1986); Evans v. State, 485 So.2d 276 (Miss.1986). Rephrasing direct appeal issues for post-conviction purposes will not defeat 860 So.2d......
  • Shell v. State, No. 03-DP-0087
    • United States
    • United States State Supreme Court of Mississippi
    • November 29, 1989
    ...objection is made, the error, if any, is waived. This rule's applicability is not diminished in a capital case. Irving v. State, 498 So.2d 305 (Miss.1986), cert. denied, U.S. [1042], 107 S.Ct. 1986, 95 L.Ed.2d 826 (1987); Johnson v. State, 477 So.2d 196 (Miss.1985), cert. denied, 476 U.S. 1......
  • Keller v. State, NO. 2010-DP-00425-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • February 6, 2014
    ...to the State's peremptory challenges to venire members. Thomas v. State, 517 So. 2d 1285, 1286 (Miss. 1987) (citing Irving v. State, 498 So. 2d 305 (Miss. 1986)). "Moreover, 'a party who fails to object to the jury's composition before it is empaneled waives any right to complain there......
  • Keller v. State, No. 2010–DP–00425–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • June 5, 2014
    ...object to the State's peremptory challenges to venire members. Thomas v. State, 517 So.2d 1285, 1286 (Miss.1987) (citing Irving v. State, 498 So.2d 305 (Miss.1986)). “Moreover, ‘a party who fails to object to the jury's composition before it is empaneled waives any right to complain thereaf......
  • Request a trial to view additional results
87 cases
  • Jackson v. State, No. 98-DR-00708-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • August 7, 2003
    ...the exception thereto as defined in Miss.Code Ann. §§ 99-39-21(1-5) are applicable in death penalty PCR Applications. Irving v. State, 498 So.2d 305 (Miss.1986); Evans v. State, 485 So.2d 276 (Miss.1986). Rephrasing direct appeal issues for post-conviction purposes will not defeat 860 So.2d......
  • Shell v. State, No. 03-DP-0087
    • United States
    • United States State Supreme Court of Mississippi
    • November 29, 1989
    ...objection is made, the error, if any, is waived. This rule's applicability is not diminished in a capital case. Irving v. State, 498 So.2d 305 (Miss.1986), cert. denied, U.S. [1042], 107 S.Ct. 1986, 95 L.Ed.2d 826 (1987); Johnson v. State, 477 So.2d 196 (Miss.1985), cert. denied, 476 U.S. 1......
  • Keller v. State, NO. 2010-DP-00425-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • February 6, 2014
    ...to the State's peremptory challenges to venire members. Thomas v. State, 517 So. 2d 1285, 1286 (Miss. 1987) (citing Irving v. State, 498 So. 2d 305 (Miss. 1986)). "Moreover, 'a party who fails to object to the jury's composition before it is empaneled waives any right to complain there......
  • Keller v. State, No. 2010–DP–00425–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • June 5, 2014
    ...object to the State's peremptory challenges to venire members. Thomas v. State, 517 So.2d 1285, 1286 (Miss.1987) (citing Irving v. State, 498 So.2d 305 (Miss.1986)). “Moreover, ‘a party who fails to object to the jury's composition before it is empaneled waives any right to complain thereaf......
  • Request a trial to view additional results

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