McCorquodale v. Kemp

• Decision Date: 20 September 1987
• Docket Number: No. 87-8724,87-8724
• Citation: 829 F.2d 1035
• Parties: Timothy Wesley McCORQUODALE, Petitioner-Appellant, v. Ralph M. KEMP, Superintendent, Georgia Diagnostic and Classification Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1035

829 F.2d 1035

Timothy Wesley McCORQUODALE, Petitioner-Appellant, v. Ralph M. KEMP, Superintendent, Georgia Diagnostic and Classification Center, Respondent-Appellee.

No. 87-8724.

United States Court of Appeals Eleventh Circuit.

Sept. 20, 1987.

John R. Myer, Atlanta, Ga., Julius L. Chambers, John Charles Boger, NAACP Legal Defense and Educational Fund, Inc., New York City, for petitioner-appellant.

Michael A. Bowers, Atty. Gen. of Ga., Atlanta, Ga., Mary Beth Westmoreland, Asst. Atty. Gen., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GODBOLD, KRAVITCH and HATCHETT, Circuit Judges.

PER CURIAM:

Timothy Wesley McCorquodale, convicted of murder and sentenced to death, appeals from the district court's dismissal of his third federal petition for a writ of habeas corpus. The state of Georgia moved to dismiss the petition on the ground that the third petition raised a ground for relief that had already been raised in McCorquodale's first federal habeas petition and decided adversely to petitioner on the merits. Rule 9(b) of the Rules Governing Proceedings in the District Court on application under section 2254 of Title 28, United States Code provides:

(b) Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits, or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

The district court concluded that McCorquodale's third petition raised no new ground for relief and that prior determination had been on the merits. The court further concluded, following Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963), that controlling weight could be given to the prior denial of McCorquodale's petition for habeas corpus because the "ends of justice would not be served by reaching the merits of the subsequent application."

In his first federal petition, McCorquodale argued that his trial had been rendered fundamentally unfair by a statement in the prosecutor's closing argument to the jury. After remarking to the jury that it had a "vital contribution which you are now considering and will be deliberating on," the prosecutor stated, "And after your decision, the Appellate Court will have a very important responsibility." A panel of this court, following the Supreme Court case of Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), held that "[i]n the context of the entire trial, the remark was not sufficiently prejudicial so as to render the trial fundamentally unfair." The panel opinion noted that the trial court gave a curative instruction. McCorquodale v. Balkcom, 705 F.2d 1553, 1556 (11th Cir.1983). This portion of the panel opinion was adopted by the court en banc. McCorquodale v. Balkcom, 721 F.2d 1493, 1502 (11th Cir.1983), cert. denied, 466 U.S. 954, 104 S.Ct. 2161, 80 L.Ed.2d 546 (1984).

McCorquodale now challenges the same remark in the prosecutor's closing argument, but on eighth amendment grounds. He argues that Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), decided since the filing of his prior habeas petition, held that prosecutorial remarks to the jury that emphasize appellate review in capital cases violate the eighth amendment because they tend to undermine the jury's sense of its own responsibility as the body with the duty to determine whether or not to impose the death penalty. Because the Caldwell decision was delivered after this court's decision on the merits in his first habeas petition, petitioner argues that Caldwell represents new law, and that his petition should not be dismissed under Rule 9(b).

As this court noted in Adams v. Dugger, 816 F.2d 1493, 1496 n. 2 (11th Cir.1987), our previous decision on McCorquodale's first habeas petition gave no indication that the eighth amendment was implicated by statements regarding appellate review. Moreover, the state of the case law prior to Caldwell, gave no indication that such statements might violate the eighth amendment. Although the Supreme Court in Donnelly v. DeChristoforo criticized such statements, it observed that the case was not one in which a specific guarantee of the Bill of Rights was violated but rather whether the closing argument had violated due process. 416 U.S. at 643, 94 S.Ct. at 1871. Caldwell was the first Supreme Court case to hold that prosecutorial statements regarding appellate review might violate the eighth amendment. Furthermore the state of eighth amendment law at the time of the filing of McCorquodale's first petition was not sufficiently developed to give a clear indication that such prosecutorial statements raised an eighth amendment issue. See Adams v. Dugger, 816 F.2d at 1495. We conclude that Caldwell represented new law; thus a Caldwell violation, if proven, would present new grounds for relief. We therefore grant the motion for Certificate of Probable Cause.

We turn then to McCorquodale's petition to determine whether it raises a viable Caldwell claim. McCorquodale argues that the prosecutor's statements regarding the important responsibility of the appellate court encouraged the jury to abandon its crucial function as primary sentencer, and that the curative instruction given by the trial court failed to correct the damage. After the prosecutor told the jury about the appellate court's "important responsibility," the...