Lee v. Gill, Civ. A. No. S86-0733(G)
| Decision Date | 14 January 1987 |
| Docket Number | S86-0734(G).,Civ. A. No. S86-0733(G) |
| Court | U.S. District Court — Southern District of Mississippi |
| Parties | William Eugene LEE, Petitioner, v. Wallace GILL, et al., Respondents. Doris D. NATION, Petitioner, v. Wallace GILL, et al., Respondents. |
Elizabeth A. Broome, Boyce Holleman, Gulfport, Miss., for petitioners.
Harold H. Brittain, Office of Atty. Gen., Jackson, Miss., for respondents.
Petitioners William Eugene Lee and Doris D. Nation have respectively filed petitions for writs of habeas corpus under 28 U.S.C. Section 2254. Petitioner Lee is currently serving a one-year term of imprisonment at the Jackson County Adult Detention Center as a result of having been convicted of Contributing to the Delinquency of a Minor under Miss.Code Ann. Section 97-5-39 (Supp.1985). Petitioner Nation was likewise convicted, sentenced and incarcerated for having committed offenses under the same statute but was released on bail pursuant to an Order from this Court dated August 8, 1986, pending a final determination on her petition. For the reasons that follow, the Court is of the opinion that both petitions should be dismissed with prejudice.
On October 1, 1982, Petitioners were each convicted on six charges of Contributing to the Delinquency of a Minor in the County Court of Jackson County, Mississippi, following a non-jury trial conducted June 28, 1982. Testimony and other evidence received at the hearing showed that on past occasions minors were allowed to purchase beer from a vending machine located inside a Gautier, Mississippi, game and recreation room with the knowledge of Petitioners, proprietors of the establishment. Witnesses at the hearing included the Jackson County District Attorney, an investigator with the District Attorney's office, a Jackson County Constable, two enforcement agents with the state's Alcoholic Beverage Control Division and two minors who purchased beer from the machine on separate occasions. Petitioners' motion for a directed verdict at the close of the prosecution's case-in-chief was overruled. Petitioners were fined a monetary sum and sentenced to one year's imprisonment on each of their six respective charges with the one-year term and a portion of the fine for each charge being suspended and Petitioners placed on probation.
Petitioners appealed the ruling of the County Court, assigning four alleged errors. Two of the assignments of errors included (1) the trial court's alleged error in allowing the District Attorney's office to both prosecute and testify against the Defendants, and (2) the trial court's alleged error in failing to grant a directed verdict as the overwhelming weight of the evidence was contrary to the finding of guilt. The Circuit Court reversed the County Court's decision on four charges as to each Petitioner but affirmed the lower court's ruling as to the two remaining charges. (Cause Nos. 82-127C and 82-138C for Lee, 82-131C and 82-139C for Nation).
Petitioners, by and through the same counsel who had represented them in the previous proceedings, appealed the Circuit Court's ruling to the Mississippi Supreme Court and raised only one assignment of error, viz., the District Attorney's alleged dual role as both witness and prosecutor. (Cause No. 55,210). On January 29, 1986, the Mississippi Supreme Court affirmed per curiam the convictions of Petitioners and thereafter issued a mandate affirming said convictions to Jackson County Circuit Court.
On April 8, 1986, Jackson County Court Judge Bill Jones revoked Petitioners' suspended sentences and ordered each to begin serving a one-year sentence commencing April 11, 1986.
On April 29, 1986, Petitioners, by and through their present counsel, filed motions under Miss.Code Ann. Section 99-39-1, et seq. (Supp.1985), the Mississippi Uniform Post-Conviction Collateral Relief Act, raising as grounds for relief the alleged violation of Petitioners' due process rights in that the convictions rested upon insufficient evidence to satisfy the statutory elements of Miss.Code Ann. Section 97-5-39 (Supp.1985). On May 21, 1986, the Mississippi Supreme Court overruled the motions without a written opinion.
On June 25, 1986, Petitioners filed the instant petitions for a writ of habeas corpus stating as grounds both the aforementioned assignment of error made by prior counsel to the Mississippi Supreme Court on direct appeal and the claim of insufficiency of the evidence presented to the Mississippi Supreme Court by present counsel in Petitioners' petitions for post conviction collateral relief. In their initial petitions to this Court, the Petitioners did not raise ineffective assistance of counsel as an independent ground for relief, but rather as a method for showing cause and prejudice in an attempt to overcome a procedural bar and have this Court decide the insufficiency of evidence ground on the merits. This Court heard oral argument on the petitions on August 7, 1986, and granted Petitioners ten (10) days from that date to file any additional motions for post-conviction relief in the Mississippi Supreme Court so that Petitioners would have the opportunity to exhaust all claims asserted in the instant petitions. Specifically, this Court held the petitions in abeyance to afford the Petitioners an opportunity to go back to the Mississippi Supreme Court and raise ineffective assistance of counsel as an independent basis for relief. Thereafter, on August 15, 1986, Petitioners filed such motions in the Mississippi Supreme Court asserting as grounds for relief a violation of their right under the Sixth Amendment to effective assistance of counsel. Petitioners' motions cited their previous counsel's failure to raise insufficiency of the evidence as an assignment of error on direct appeal. The motions were dismissed without comment on September 3, 1986, and October 1, 1986, as to Petitioners Lee (Misc. No. 2179) and Nation (Misc. No. 2178), respectively. Respondent's Motion to Clarify Order in Misc. No. 2179, filed September 18, 1986, which represented the Attorney General's attempt to have the Mississippi Supreme Court explain whether their decision was made on the basis of a procedural bar or on the merits, was overruled without comment by the Mississippi Supreme Court on September 24, 1986.
This Court entered an Order on November 19, 1986, allowing Petitioners leave to amend their original petitions for writs of habeas corpus. Petitioners' amended petitions now allege two grounds for relief: (1) denial of Petitioners' due process rights as guaranteed under the 14th Amendment to the United States Constitution resulting from a conviction totally devoid of evidentiary support, and (2) Petitioners were denied the effective assistance of counsel on appeal as guaranteed by the Sixth Amendment to the United States Constitution.
Respondents argue, and this Court agrees, that Petitioners are procedurally barred from review by this Court of their first claim that their convictions were obtained based upon insufficient evidence unless "cause" and "prejudice" are shown.1 U.S. v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). By failing to raise a challenge to the sufficiency of the evidence in Petitioners' direct appeal to the Mississippi Supreme Court, Petitioners were deemed to have accepted the lower court's determination on the matter.
Mississippi law strictly upholds and recognizes the procedural bar to claims not raised on direct appeal as an "adequate and independent" ground. Such has been the case since before Petitioners' notice of appeal from Jackson County Circuit Court was filed on September 28, 1983, and their assignment of error filed on January 20, 1984. Edwards v. Thigpen, 433 So.2d 906 (Miss.1983); Wheat v. Thigpen, 431 So.2d 486 (Miss.1983); Gilliard v. State, 446 So.2d 590 (Miss.1984). The Mississippi Supreme Court's silence as to the reason for its denial of Petitioners' motions for post-conviction relief necessitates the use of certain guidelines adopted by the Fifth Circuit in order to determine whether the motions were overruled on the merits — thus rendering the Wainwright v. Sykes bar inapplicable—or for procedural default, in which case the bar would apply. The factors to be considered include:
Whether the state court has used procedural default in similar cases to preclude review of the claim's merits, whether the history of the case would suggest that the state court was aware of the procedural default, and whether the state court's opinions suggest reliance upon procedural grounds or a determination of the merits.
Webb v. Blackburn, 773 F.2d 646, 650 (5th Cir.1985), quoting Preston v. Maggio, 705 F.2d 113, 116 (5th Cir.1983). The Mississippi Supreme Court has consistently refused to review on the merits claims of insufficiency of the evidence where a criminal defendant has failed to raise such a claim before the trial court in his motion for new trial. Neves v. State, 268 So.2d 890 (Miss. 1972); Maroone v. State, 317 So.2d 25 (Miss.1975); McAdory v. State, 354 So.2d 263 (Miss.1978); Harrington v. City of Columbus, 417 So.2d 555 (Miss.1982). Further, Respondent's brief in response to the motions for post-conviction relief only argued procedural bar to the claims presented and did not discuss the merits. The state appellate court was therefore plainly aware of the default.
When the guidelines enunciated in Webb v. Blackburn, supra, are applied to the first ground raised in the Petition, it must be concluded that the Mississippi Supreme Court based its denial of post-conviction relief on procedural default.
As alluded to hereinabove, this Court may review the merits of Petitioners' claim of insufficiency of...
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