Jones v. Thigpen

• Decision Date: 02 May 1986
• Docket Number: No. 83-4085,83-4085
• Citation: 788 F.2d 1101
• Parties: Larry JONES, Petitioner-Appellee Cross-Appellant, v. Morris THIGPEN, Commissioner, Mississippi Dept. of Corrections, et al., Respondents-Appellants Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1101

788 F.2d 1101

Larry JONES, Petitioner-Appellee Cross-Appellant, v. Morris THIGPEN, Commissioner, Mississippi Dept. of

Corrections, et al., Respondents-Appellants Cross-Appellee.

No. 83-4085.

United States Court of Appeals, Fifth Circuit.

May 2, 1986.

William S. Boyd, III, Bill Allain, Atty. Gen., Marvin L. White, Jr., Amy Whitten, Jackson, Miss., for respondents-appellants cross-appellee.

T.H. Freeland, III, Freeland & Gafford, T.H. Freeland, IV (Court-appointed), Oxford, Miss., Mary Carolyn Ellis, University, Miss., for petitioner-appellee cross-appellant.

Appeals from the United States District Court for the Southern District of Mississippi.

ON REMAND FROM SUPREME COURT OF THE UNITED STATES

Before REAVLEY, JOHNSON and JOLLY, Circuit Judges.

REAVLEY, Circuit Judge:

By our decision in this case on September 17, 1984, reported at 741 F.2d 805 (5th Cir.1984), we held that the death sentence imposed by Mississippi upon Larry Jones for felony murder violated the Eighth Amendment under the Supreme Court's writing in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). The Supreme Court, --- U.S. ----, 106 S.Ct. 1172, 89 L.Ed.2d 292 (1986), has vacated our judgment and remanded the case for further consideration in light of Cabana v. Bullock, --- U.S. ----, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). We now correct our application of Enmund, proceed to the petitioner's other contentions of constitutional error in the sentence of the Mississippi court, and affirm the judgment of the trial court on the ground of ineffectiveness of counsel at the sentencing phase.

I. Enmund in The Light of Cabana

The evidence tended to prove that Larry Jones and Willie Reddix robbed a clothing store and that the owner of the store died from a blow to his head received during the course of the robbery. The only evidence connecting Jones to the homicide was blood on his boot and complicity in the robbery. He was tried for the capital murder crime defined by Mississippi law in 1977 as a killing done "with or without any design to effect death" by a person engaged in a robbery. The jury was not asked to find that Jones killed or intended to kill the deceased. Seeing that as inconsistent with Enmund, in our 1984 decision we vacated Jones's death sentence and held that the Double Jeopardy Clause prevented its reimposition. Cabana informs us that we misunderstood Enmund. We are now taught that the Eighth Amendment does not prohibit a state from enacting a crime of capital murder without a constituent element of an intent to kill, nor does the Eighth Amendment prevent a state jury from convicting and assessing the punishment of death for one found to have committed that crime. Prior to the execution of a death sentence, however, the Eighth Amendment requirement of proportionality between culpability and death punishment must be met by a showing that the guilty person did kill or attempt to kill or intend to kill. The Constitution does not dictate the point in the process at which this determination of intent to kill must be made. It may be made in the course of collateral proceedings in state or federal court and meet Eighth Amendment requirements. The federal court, however, should look to the state to make this finding in the first instance, and if resolved there against the defendant petitioner, the finding is presumed to be correct by virtue of 28 U.S.C. Sec. 2254(d), see Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

The extent of our misunderstanding of Enmund is shown by our former disposition of Jones' double jeopardy claim. We undertook to review the evidence in the state trial to determine whether a properly instructed, rational jury could have found beyond a reasonable doubt that Jones killed or intended to kill. 741 F.2d at 812. The difficulty with that inquiry is that Jones was not tried or convicted by the Mississippi court for a crime that included an element of intent to kill. The search for evidence of an element not part of the state crime was as pointless as it was futile. The evidence clearly supported the conviction for the crime with which Jones was charged, and due process was fully met. Nothing in the Eighth Amendment, as explained by the Court in Cabana, would warrant our reversal of the Mississippi conviction for felony murder on the ground that the evidence presented at the trial was legally insufficient. Therefore the Double Jeopardy Clause and Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), could have no application to the case before us. ¹

If there were no other claim of constitutional error in the state sentencing, we would direct the issue of the writ of habeas corpus but leave to the State of Mississippi the opportunity of obtaining a determination in its own courts of whether Jones possessed the Enmund level of culpability. However, the trial court vacated the death sentence on a second ground, that of...