King v. Puckett, 91-1940
| Citation | 1 F.3d 280 |
| Decision Date | 25 August 1993 |
| Docket Number | No. 91-1940,91-1940 |
| Parties | Mack Arthur KING, Petitioner-Appellant, v. S.W. PUCKETT, Superintendent, Mississippi State Penitentiary, and Mike Moore, Attorney General, State of Mississippi, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James E. Rocap, III, David S. Cohen, David R. Fontaine, Scott L. Nelson, Wilbur O. Colom, Colom, Mitchell, Colom, Columbus, MS, Miller, Cassidy, Larroca & Lewin, Washington, DC, for petitioner-appellant.
Marvin L. White, Jr., Asst. Atty. Gen., Mike Moore, AG, Jackson, MS, for respondents-appellees.
Appeal from the United States District Court for the Northern District of Mississippi.
Before JONES, DUHE, and WIENER, Circuit Judges.
In this petition for a writ of habeas corpus, Petitioner-Appellant Mack Arthur King appeals the district court's denial of his petition, challenging, inter alia, the constitutionality of the jury instruction, which informed the jury--without limiting instruction--that the "especially heinous, atrocious or cruel" nature of the murder was an aggravating factor for consideration in determining whether the death penalty should be imposed. Based on subsequent jurisprudential developments which clearly state that such an unlimited instruction is unconstitutional and may be challenged notwithstanding a defendant's failure to object at trial or on direct appeal, we remand to the district court with directions to issue the writ of habeas corpus within a reasonable time unless the state initiates appropriate proceedings.
In the morning of August 3rd, 1980, Mrs. Lelia Patterson, an 84 year old widow, was discovered dead in her bathtub. An autopsy revealed that Mrs. Patterson had been struck on the head, strangled, and drowned. The pathologist could not determine the precise sequence of these events, and he testified that death could be attributed either to the blow, the strangulation, or the drowning. Finger and palm prints found on file folders located in the house led the police to suspect King.
A search of King's residence uncovered articles belonging to Mrs. Patterson. In a subsequent search, the police discovered blood-spattered pants, which, according to King's girlfriend, King was wearing on August 2nd and 3rd and which he washed himself, refusing to let his girlfriend wash them as was customary. Testing disclosed that the blood on the pants was human, although the blood type was indeterminable.
In his first statement to the police, King denied that he had been at the house on the day of the murder. After police confronted him with the stolen items, he admitted that he had burglarized the home on August 2nd. He denied, however, any involvement in the murder. Rather, he stated that he was accompanied by Willie Porter, his uncle, who remained outside while King burglarized the home. King claimed that, as he was leaving, he saw Porter, who had been drinking, enter Mrs. Patterson's home.
King was charged with capital murder, and Joe O. Sams, Jr., who had represented King in an earlier burglary charge, was appointed to represent him. Sams was assisted by a recent law school graduate Thomas L. Kesler and a legal intern, Tammy Lynn Woolbright. Kesler interviewed King on two occasions prior to trial. He determined that King was "slow" and "dull-witted." Based on this determination, as well as Sams' prior experience with King, Sams filed a motion with the trial court seeking a mental examination for King. The court granted the motion, committing King for a mental examination to determine: (1) his level of intelligence; (2) his ability to comprehend the gravity of the charges; (3) his ability to assist in his defense; (4) the standard of conduct that King would likely exhibit during trial; and (5) his competency to stand trial.
The state hospital examined King and the staff announced in a one-paragraph report "that the patient was without psychosis, competent to stand trial and responsible for his actions at the time of the alleged crime." No finding on the other points was made, and none was requested either by King's attorneys or the court.
Despite King's protestations of innocence, he was convicted of capital murder. During the trial, his attorneys did not present any witnesses, relying solely on the cross-examination of the state's witnesses. King did not testify. On appeal, his attorneys emphasize that King, "then a 21-year old black man, was tried for the murder of a white woman before an all-white jury, a white judge, and a white prosecutor."
After King's conviction, the court instructed the jury to weigh the aggravating factors against the mitigating factors presented in King's conviction and sentence were affirmed by the Mississippi Supreme Court. 1 Likewise, his motion for post-conviction relief, then known as a petition for writ of error coram nobis, was denied without prejudice. 2 The supreme court ruled that certain of his claims were procedurally barred because they had not been raised on direct appeal. Included among these claims was a constitutional challenge to the "especially heinous, atrocious or cruel" aggravating factor.
determining whether the death penalty should be imposed. The jury considered two aggravating factors: that the murder was committed in the course of a felony and that the murder was committed in an "especially heinous, atrocious or cruel manner." No mitigating factors were presented. Within a short period, the jury returned a sentence of death
King was allowed, however, to refile his request regarding his claim of ineffective assistance of counsel. Acting on this second petition, the supreme court ordered an evidentiary hearing for the ineffective assistance of counsel claim. Attorney Sams explained that his decisions not to present character witnesses and not to follow up on evidence of King's diminished mental capacity were tactical. The state circuit court conducted the hearing and concluded that "counsel's representation during the sentencing phase of the trial was competent."
King next sought relief in federal district court on a petition for a writ of habeas corpus. The district court reviewed the ineffective assistance of counsel claim, concluding that the alleged deficiencies were tactical decisions. Important for this appeal, however, the district court determined, as did the Mississippi Supreme Court, that most of King's claims were procedurally barred because he had not raised them at trial or on appeal.
Our review of King's constitutional challenge is guided by this court's recent decisions in Wiley v. Puckett 3 and Smith v. Black. 4 In Wiley, we recognized the unconstitutionality of the "especially heinous, atrocious or cruel" aggravating circumstances when given without a limiting instruction, 5 and addressed the issue whether the state court had cured the constitutional infirmity. Again based on Supreme Court precedent, 6 we set forth the manner in which "an appellate court could salvage a death sentence." 7 The appellate court could (1) "reweigh" the mitigating and aggravating factors or (2) conduct a harmless error analysis by asking whether, beyond a reasonable doubt, the death sentence would have been imposed had the aggravating factor been properly defined in the jury instruction. In Wiley, however, we concluded that the state supreme court, by applying a narrowing construction to the "especially heinous" circumstance, had failed to do either.
Subsequently, in Smith, we addressed the question whether Mississippi could raise a procedural bar to a constitutional challenge to the "especially heinous" instruction based on the petitioner's failure to object at trial and to preserve the issue on appeal. We ruled that Mississippi could not rely on either the contemporaneous objection bar or the direct appeal bar as neither had been applied to cases consistently. Consequently, we relied on the venerable maxim that "[a] state procedural rule will not function as an adequate and independent state ground supporting The application of Wiley and Smith to the instant case dictates a remand to the district court with directions to issue the writ of habeas corpus unless the State of Mississippi initiates appropriate proceedings in a state court within a reasonable time after the issuance of our mandate. The "especially heinous" aggravating circumstance instruction is unconstitutionally broad when given without a limiting instruction, as was the case here. Moreover, the state court cannot bar King's claim by virtue of his failure to object at trial or raise the issue on appeal. As the supreme court applied such a bar, it is clear that it neither reweighed the aggravating and mitigating factors nor conducted a harmless error analysis. Consequently, it has not cured the constitutional infirmity of the "especially heinous" instruction.
the judgment if it is not 'strictly or regularly followed.' " 8
Given the state's options, it is conceivable that King will not receive a new sentencing procedure; therefore, the errors he alleges in that proceeding would continue to affect his sentence. Consequently, we review the remaining issues raised by King, some of which the district court considered despite the procedural bar. A review of the briefs and records convinces us that we can add little to the thorough and well-reasoned opinion of the district court. Accordingly, we deal only briefly with each issue.
King raises two related ineffective assistance issues: (1) he received ineffective assistance of counsel because his trial counsel failed to investigate and present readily available mitigating evidence of character and low intelligence at the sentencing phase; and (2) whether the federal district court should have conducted an evidentiary hearing when considering King's ineffective assistance claim based on the state court's...
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