Johnson v. Muncy

• Decision Date: 17 November 1987
• Docket Number: No. 86-6636,86-6636
• Citation: 830 F.2d 508
• Parties: Major Melvin JOHNSON, Plaintiff-Appellee, v. R.M. MUNCY; Attorney General of Virginia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 508

830 F.2d 508

Major Melvin JOHNSON, Plaintiff-Appellee, v. R.M. MUNCY; Attorney General of Virginia, Defendants-Appellants.

No. 86-6636.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 9, 1987.

Decided Sept. 22, 1987.

Rehearing and Rehearing En Banc Denied Nov. 17, 1987.

Frank A. Ferguson, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen. of Virginia, on brief), for defendants-appellants.

John Biek, Student Counsel (Steven H. Goldblatt, Director, Appellate Litigation Clinical Program, Georgetown University Law Center, Samuel Dash, Director, Ellen Pearlman, Appellate Law Fellow, Diane Kenty, Student Counsel, on brief), for plaintiff-appellee.

Before PHILLIPS and SPROUSE, Circuit Judges, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

FRANK A. KAUFMAN, Senior District Judge:

In September 1973, Johnson was convicted in a jury trial in the Circuit Court of Fairfax County, Virginia of rape and abduction, and sentenced to life imprisonment. The victim was accosted and raped during the early morning hours of March 17, 1973. At trial, Johnson and two witnesses testified, in support of an alibi defense, that Johnson had been elsewhere during the above-referenced time period. The trial judge gave the following jury instruction concerning Johnson's alibi defense:

Where the Commonwealth has established a prima facie case and the defendant relies upon the defense of alibi, the burden is upon him to prove it, not beyond a reasonable doubt nor by preponderance of the evidence, but by such evidence and to such a degree of certainty as will, when the whole evidence is considered, create and leave in the mind of the jury a reasonable doubt as to the guilt of the defendant. ¹

Johnson's counsel objected to that instruction, on the ground that it impermissibly placed the burden of proof on the defendant with respect to his alibi defense. That objection was overruled by the trial judge.

On September 24, 1973, Johnson's trial counsel timely filed a Notice of Appeal and Assignments of Error. The third assignment of error stated:

That the Trial Court erred in instructing the jury, as set forth in Commonwealth's Instruction No. 7, which was granted by the Court, that the burden of proving an alibi defense rests upon the Defendant, since the burden of proof in a criminal case always rests upon the Commonwealth. ²

Thereafter, in January 1974, Johnson's counsel filed a Petition for Appeal to the Supreme Court of Virginia, in which no mention of the alibi jury instruction was made. The Supreme Court of Virginia dismissed Johnson's Petition for Appeal. In March 1985, Johnson's state habeas corpus petition, filed in November 1984, was also dismissed by the Supreme Court of Virginia. In seeking such habeas corpus relief, Johnson contended, inter alia, that "[t]he court erred in overruling defense counsel's objection to [the alibi jury] instruction ... on the basis that it placed the burden of proof on the defendant...." ³ In its March 1985 Order specifically denying relief as to that contention, the Supreme Court of Virginia cited to "the rule in Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974)." ⁴

Subsequently, Johnson sought federal habeas corpus relief in the United States District Court for the Eastern District of Virginia, again raising, inter alia, the alibi jury instruction issue. ⁵ The district court issued the writ, holding that the challenged jury instruction had unconstitutionally shifted the burden of proof. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). See Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.), cert. denied, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982). In so doing, Judge Bryan rejected the State's contention that Johnson had not timely preserved the alibi-jury instruction issue under applicable Virginia law and, in addition, stated that, in any event, Johnson's petition fell within the "cause and prejudice" exception to a procedural default under Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977). The within appeal by the State followed.

The State concedes that the 1973 jury instruction was unconstitutional under Mullaney v. Wilbur, supra, and that its unconstitutionality must be given retroactive effect pursuant to Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). However, the State contends that Johnson's failure to raise that question in his Petition for Appeal to the Supreme Court of Virginia on direct appeal following his trial constituted a procedural default under Wainwright v. Sykes, supra, precluding review of that issue in the context of Johnson's federal habeas corpus suit.

In Hankerson v. North Carolina, in the course of holding that the rule of Mullaney v. Wilbur was retroactively applicable, Justice White wrote:

The States, if they wish, may be able to insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error. See, e.g., Fed.Rule.Crim.Proc. 30.

Hankerson v. North Carolina, 432 U.S. at 244 n. 8, 97 S.Ct. at 2345-46 n. 8. Subsequently, in Wainwright v. Sykes, supra 433 U.S. at 84-85, 97 S.Ct. at 2505, the Supreme Court held that an adequate and independent state procedural rule, barring a claim of error in a state collateral-attack proceeding because the defendant had not preserved the claim at trial, will likewise bar that claim on collateral attack in a federal habeas corpus suit, absent cause and prejudice. In Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), Justice O'Connor stated that failure to raise a claim on appeal in accordance with applicable rules of state appellate procedure bars the claim in collateral federal habeas proceedings, absent cause and prejudice. Id. at ----, 106 S.Ct. at 2648, 91 L.Ed.2d at 410. In Murray, the Supreme Court also made it clear that "inadvertent attorney error," id. at ----, 106 S.Ct. at 2645, 91 L.Ed.2d 407, does not constitute "cause" and reiterated, as it had previously stated in Davis v. United States, 411 U.S. 233, 244-45, 93 S.Ct. 1577, 1583-84, 36 L.Ed.2d 216 (1973), and in Francis v. Henderson, 425 U.S. 536, 542 n. 6, 96 S.Ct. 1708, 1711 n. 6, 48 L.Ed.2d 149 (1976), that prejudice means "actual prejudice" flowing from the procedural default. Murray, 477 U.S. at ---- - ----, 106 S.Ct. at 2648-50, 91 L.Ed.2d at 412-15.

Specifically, the question arises in the within appeal as to whether Johnson, when he filed his Petition for Appeal to the Supreme Court of Virginia in January, 1974 from his state trial court conviction, failed to conform to the requirements imposed by the Supreme Court of Virginia in order for Johnson to preserve his alibi-jury-instruction objection as a ground for relief on direct appeal from his state court conviction for rape and abduction. Thus, the Virginia requirement existing in January 1974 needs to be ascertained herein. See, e.g., Francis v. Henderson, supra 425 U.S. at 537, 96 S.Ct. at 1709; Whitley v. Bair, 802 F.2d 1487, 1500 et seq. (4th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1618, 94 L.Ed.2d 802 (1987); Spencer v. Kemp, 781 F.2d 1458, 1469 (11th Cir.1986). On September 24, 1973, when Johnson filed his Notice of Appeal and Assignments of Error and also in January 1974 when Johnson filed his Petition for Appeal, Rules 5:6 and 5:7 of the Supreme Court of Virginia provided:

5:6. No appeal shall be allowed unless, within thirty days after entry of final judgment, counsel files with the clerk notice of appeal and assignments of error. The notice of appeal and assignments of error shall contain a statement whether or not any transcript or statement of facts, testimony or other incidents of the case is to be thereafter filed. Within fourteen days thereafter counsel for the appellee shall file with the clerk assignments of cross-error, if any.

5:7. This Court will not notice any objection requiring a ruling of the trial court unless the ground of objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice. Only errors assigned in the notice of appeal and assignments of error will be noticed by this Court and error not so assigned will not be admitted as a ground of a reversal of a decision below.

Final judgment in connection with Johnson's conviction was entered in the Circuit Court of Fairfax County, Virginia on September 5, 1973. A document entitled "Notice of Appeal and Assignments of Error" was filed with the Clerk of that trial court on September 24, 1973. Thus, Johnson complied with the thirty-day provision of Rule 5:6. Objection to the trial court's alibi jury instruction was timely made at trial and was also set forth specifically in the "Notice of Appeal and Assignments of Error." Accordingly, Johnson complied with each and all of the provisions of Rule 5:7.

Further, as required by Rules 5:21-5:26 of the Supreme Court of Virginia, Johnson's counsel, in January 1974, filed Johnson's Petition for Appeal in the office of the Clerk of the Supreme Court of Virginia. That Petition for Appeal, however, did not refer to or otherwise specifically raise the alibi-jury instruction presently in issue.

The State concedes that the Rules of the Supreme Court of Virginia, applicable at the time of Johnson's trial and direct appeal, did not explicitly require that the Petition for Appeal state all issues upon pain of waiver. ⁶ The State contends, however, that the regularly and strictly followed decisional law of the Supreme Court of Virginia at the time of Johnson's appeal from his trial conviction established that issues not argued in the Petition for Appeal were waived.

In Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, reh. denied, 380 U.S. 926, 85 S.Ct. 878, 13 L.Ed.2d 813 (1965), Justice Brennan wrote:

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