Magwood v. Smith, Civ. A. No. 83-H-760-N.

• Decision Date: 26 March 1985
• Docket Number: Civ. A. No. 83-H-760-N.
• Parties: Billy Joe MAGWOOD, Petitioner, v. Fred SMITH, Commissioner, Alabama Department of Corrections; Willie E. Johnson, Warden, Holman Unit, Respondents.
• Court: U.S. District Court — Middle District of Alabama

608 F. Supp. 218

Billy Joe MAGWOOD, Petitioner, v. Fred SMITH, Commissioner, Alabama Department of Corrections; Willie E. Johnson, Warden, Holman Unit, Respondents.

Civ. A. No. 83-H-760-N.

United States District Court, M.D. Alabama, N.D.

March 26, 1985.

J.L. Chestnut, Jr., Selma, Ala., for petitioner.

Charles A. Graddick, Atty. Gen., Ed Carnes, Asst. Atty. Gen., Montgomery, Ala., for respondents.

MEMORANDUM OPINION AND ORDER

HOBBS, Chief Judge.

This cause is now before the Court on a petition for writ of habeas corpus filed by Billy Joe Magwood on July 20, 1983, pursuant to 28 U.S.C. § 2254.¹ Petitioner was convicted of the murder of the sheriff of Coffee County, Alabama and sentenced by the Circuit Court of Coffee County, Alabama to the penalty of death by electrocution. In his petition for writ of habeas corpus and supplemental brief in support thereof, petitioner asserts a total of nine grounds for the granting of said writ. The Court has concluded that eight of these grounds are without merit. Petitioner is entitled to relief on his claim that the existence of certain mitigating circumstances was not properly considered by the trial court in determining its sentence. Accordingly, while this Court finds no error in the adjudication of petitioner's guilt, it is necessary that this cause be remanded to the Circuit Court of Coffee County, Alabama for resentencing consistent with this opinion.

Background

On June 2, 1981, following the jury's verdict of guilty, the jury fixed the punishment of death after a sentencing hearing before them. On June 30, 1981, after a sentencing hearing before the court, the court sentenced petitioner to death by electrocution. On May 18, 1982, the Alabama Court of Criminal Appeals affirmed petitioner's conviction and sentence and on June 8, 1982, denied his application for rehearing. On January 7, 1983, the Alabama Supreme Court affirmed petitioner's conviction and sentence and on February 11, 1982 denied his application for rehearing. The United States Supreme Court denied petitioner's petition for a writ of certiorari on June 13, 1983 and the Alabama Supreme Court then set his execution date for July 22, 1983. Petitioner filed a coram nobis petition and application for stay of execution and amended coram nobis petition in the Circuit Court of Coffee County, Alabama and after an evidentiary hearing on said coram nobis petition, said petition and the application for stay of execution were denied on July 18, 1983. On July 20, 1983, petitioner filed the instant petition for writ of habeas corpus and application for stay of execution in this Court. This Court granted a stay of execution on that date.

On March 20, 1984, the Alabama Court of Criminal Appeals affirmed the denial of petitioner's coram nobis petition and denied his application for rehearing on April 24, 1984. On May 25, 1984, having failed to file a petition for certiorari in the Alabama Supreme Court on the denial of the coram nobis petition, petitioner filed a motion for permission to file a late petition for certiorari. Said motion was denied on March 6, 1984. On July 13, 1984, following a status conference held by this Court an order was entered requiring an examination of petitioner at a mental facility to determine whether he is presently insane. Said examination having been completed and the parties having filed their final briefs, this cause is now before the Court for consideration of the merits of the instant petition for writ of habeas corpus.

Petitioner's Nine Grounds for Relief

I.

Petitioner argues that his Sixth Amendment right to the assistance of counsel was violated by the State's introduction of the testimony of two doctors who petitioner contends examined petitioner on "behalf of the State," while he was in custody and "without notice to appointed counsel ... at a `critical stage' during the procedures against petitioner."

Petitioner relies on the case of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) for his position on this issue; however, that case is readily distinguishable. The Alabama Court of Criminal Appeals considered this issue on direct review and issued a thorough written analysis of it. See 426 So.2d 918, 925-927. This Court accepts the state court findings on the issue and deems them to be fully supported by the record.

II.

Petitioner next asserts that he was denied a "fair trial and effective assistance of counsel" by the failure of the trial court to appoint an independent expert witness in connection with petitioner's insanity defense. The state courts have considered and rejected this contention. Magwood v. State, 426 So.2d 918, 925 (Ala.Cr.App.1982). This Court is also of the opinion that this claim is without merit.

The record indicates that Magwood made a motion to have an independent psychiatric expert appointed (Ex. A at 405-406) and this motion was denied (Ex. A at 477). At a later point in time the State moved to have a further psychiatric evaluation of petitioner due to the passage of time from the earlier examinations. This motion was granted. (Ex. A at 532) Thereupon, petitioner stated to the trial court that the granting of the State's motion would be "to some extent in line with what the defense has requested." Counsel conditioned this acquiescence on being "furnished immediately upon it being available a report from that psychologist or psychiatrist...." (Ex. A at 77-78) This condition was met.

Petitioner contends in his brief that the court provided for "six experts on behalf of the State." The record indicates, however, that three of these six rendered opinions completely favorable to petitioner's defense, and strongly supported petitioner's claim of insanity. (See Ex. A at 555 and at 193.) It is difficult for this Court to imagine expert testimony which could be more helpful to petitioner's cause than that of Dr. Rudder, a psychiatrist, who had been appointed by the trial court to conduct an independent evaluation. His testimony was more persuasive because he was the doctor appointed by the trial court and who was regularly employed by the State to evaluate mental illness.

In Finney v. Zant, 709 F.2d 643, 645 (11th Cir.1983), the Court of Appeals reiterated the holding that "indigent defendants are not entitled to" "repeated psychiatric examinations after substantial competent evidence has already been obtained." The court cited with approval a case in which an indigent defendant's motion to employ psychiatrists at the State's expense was denied where his sanity had been evaluated by the State Department of Health. The court there held that the "accused (was) entitled to an impartial ascertainment of his mental condition but not to a battery of experts." Finney, supra, at 645 citing McGarty v. O'Brien, 188 F.2d 151 (1st Cir.) cert. denied 341 U.S. 928, 71 S.Ct. 794, 95 L.Ed. 1359 (1951).

Finally, while this Court is aware of the recent decision in Ake v. Oklahoma, ___ U.S. ___, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), it is of the opinion that this case is distinguishable from Ake. In the instant case there was expert testimony for both sides on the question of petitioner's sanity at the time of the offense. Dr. Rudder specifically testified that in his opinion petitioner was insane at the time of the offense and the Lunacy Commission report reflected the unanimous opinion of the Commission members that petitioner was presently insane and "probably" insane at the time of the offense. In Ake "there was no expert testimony for either side on Ake's sanity at the time of the offense." Ake at p. ____, 105 S.Ct. at p. 1091. Furthermore, in the instant case, while petitioner had moved for appointment of his own expert, he later acquiesced in the appointment of an expert pursuant to the State's motion. Finally even if Ake were not so substantially distinguishable, this Court is of the opinion that it would not be retroactively applied to this case, which comes before the Court on collateral review. See Shea v. Louisiana, ___ U.S. ___, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985), and Solem v. Stumes, ___ U.S. ___, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984) (concurring opinion of Justice Powell).

III.

Petitioner asserts that "the imposition and carrying out of the death penalty in Alabama, as it relates to blacks, constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments and in violation of the Equal Protection Clause of the Fifth (sic) and Fourteenth Amendments of the United States Constitution." (See petitioner's brief, p. 15-21)

The record indicates that petitioner failed to raise this issue in any state forum; however, rather than considering the application of a procedural default bar to raising this issue initially here, (See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)), the Court has considered this issue and found it to be without merit. (See Smith v. Wainwright, 741 F.2d 1248, 1258 (11th Cir. 1984) for the authority to consider the merits despite a possible procedural default).

The Court notes that neither side has requested an evidentiary hearing on this or any issue raised by petitioner, and respondents have represented to the Court in their brief that "the parties are operating on the assumption that the issues are being submitted to this Court on the basis of the pleadings; the exhibits thereto ... and the November 15, 1984 forensic report." Accordingly, there is no issue here as to whether such a hearing is due to be accorded petitioner to make his showing. McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) at 893.

In the aftermath of the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), many states, including Alabama, enacted death penalty statutes which reflected changes intended to correct deficiencies found by the Furman court in...