Presnell v. Kemp

Decision Date11 January 1988
Docket NumberNo. 86-8369,86-8369
Citation835 F.2d 1567
PartiesVirgil Delano PRESNELL, Jr., Petitioner-Appellee, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, and Michael J. Bowers, The Attorney General of the State of Georgia, Respondents- Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondents-appellants.

John L. Taylor, Jr., Vincent, Chorey, Taylor & Feil, John L. Schaub, Chorey & Taylor, Atlanta, Ga., for petitioner-appellee.

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

Before TJOFLAT, VANCE and KRAVITCH, Circuit Judges.

TJOFLAT, Circuit Judge:

It is settled law that a state prisoner may not obtain federal habeas corpus relief on a claim that the state courts refused to hear because the petitioner did not raise his claim seasonably at trial or on direct appeal from his conviction, unless the petitioner shows cause for not raising the claim and resulting prejudice. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). This case presents the question whether a petitioner may be barred from federal habeas corpus relief on a claim that the state habeas corpus court refused to hear because the petitioner did not present it seasonably to that court. 1

I.

Petitioner, Virgil Delano Presnell, Jr., is a Georgia death row inmate. 2 Petitioner challenges his convictions entered on August 26, 1976 for simple kidnapping, kidnapping with bodily injury, and malice murder on the ground that the trial judge's instructions to the jury at the close of all the evidence placed on him the burden of persuasion on the issue of criminal intent, an essential element of the crimes with which he was charged, 3 in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). 4 The trial judge instructed the jury as follows:

I give you certain presumptions of law that are applicable to this case. A presumption is a conclusion which the law draws from some given facts. Each of these presumptions [is] rebuttable; that is, they are subject to being overcome by evidence to the contrary. They are:

.... The acts of a person of sound mind and discretion are presumed to be the products of the person's will. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts. 5

Petitioner did not object to this instruction in the trial court. Nor did he object to the instruction on appeal to the Supreme Court of Georgia, Presnell v. State, 241 Ga. 49, 243 S.E.2d 496 (1978), or on certiorari to the Supreme Court of the United States, Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978). After petitioner's conviction and death sentence for malice murder were upheld, 6 his execution was set for January 11, 1980.

On January 8, 1980, petitioner sought a writ of habeas corpus in the Superior Court of Butts County, Georgia, and a stay of his execution. He attacked his conviction on fourteen grounds, none of which challenged the trial court's instruction on criminal intent. The superior court stayed petitioner's execution and, on January 23, 1980, following an evidentiary hearing, denied relief. The Georgia Supreme Court denied petitioner's application for a certificate of probable cause to appeal on March 19, 1980. The United States Supreme Court denied petitioner's application for a writ of certiorari on October 6, 1980. Presnell v. Zant, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980).

On June 15, 1981, two days before his rescheduled execution, petitioner sought a writ of habeas corpus in the United States District Court for the Northern District of Georgia and a stay of execution. In his petition, he raised for the first time a claim challenging the trial judge's jury instruction on criminal intent: 7

During the guilt-innocence phase of Petitioner's trial, the Court instructed the jurors in a manner that permitted the State to prove its case without establishing all essential elements of the crime beyond a reasonable doubt and shifted to Petitioner the burden of proof of an essential element of the crime as defined by statute, in violation of his rights guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States.

Petitioner alleged that the court's instruction was similar to the instruction condemned by the Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), because it created an irrebuttable presumption of intent, thereby improperly placing on him the burden of persuasion and violating his right to due process.

The district court granted a stay of petitioner's execution. After several delays in the prosecution of petitioner's claims, the court, on November 30, 1983, noted that petitioner's Sandstrom claim had not been exhausted and that he was presenting a "mixed" petition, containing both exhausted and unexhausted claims, 8 that had to be dismissed unless he abandoned his unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Petitioner declined to abandon his unexhausted claims; accordingly, on January 13, 1984, the court dismissed his petition without prejudice.

On January 26, 1984, petitioner returned to the Superior Court of Butts County, Georgia to exhaust his Sandstrom claim. 9 The State moved the court to dismiss his habeas petition as successive pursuant to Ga.Code Ann. Sec. 9-14-51 (1982). That statute provides:

All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition. Any grounds not so raised are waived unless the Constitution of the United States or of this state otherwise requires or unless any judge to whom the petition is assigned, on considering a subsequent petition, finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.

On July 23, 1984, the superior court held a hearing on the State's motion to dismiss to determine whether his Sandstrom claim "could ... reasonably have been raised" in the first petition he presented to the state court in 1980. On October 6, 1984, the court granted the State's motion, finding that petitioner had waived his Sandstrom claim:

Petitioner claims that an erroneous instruction to the jury on criminal intent shifted the burden of proof away from the State, thereby violating his right to due process of law. Petitioner bases his claim on Sandstrom v. Montana, 442 U.S. 510 [99 S.Ct. 2450, 61 L.Ed.2d 39] (1979). This case was decided six months prior to Petitioner's first habeas corpus petition. A claim based on this case could easily have been raised in the first petition or, at least, in an amendment to that first petition. Furthermore, Sandstrom itself was not new law, but was based on the same principles which were ennunciated [sic] in the earlier decisions of In Re Winship, 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368] (1970) and Mullaney v. Wilbur, 421 U.S. 684 [95 S.Ct. 1881, 44 L.Ed.2d 508] (1975).

Petitioner had a copy of his transcript which contained the jury charges at the time of his original habeas petition. The law set forth in the Sandstrom case was not "new" law at that time. Not only was Sandstrom already decided, but the principles had been previously set forth in several earlier cases. The issue is not one which is constitutionally nonwaivable and it could have been reasonably raised in Petitioner's earlier petition. Accordingly, this claim is found to have been waived.

Petitioner sought review in the Georgia Supreme Court, but the court denied his application for a certificate of probable cause to appeal on November 16, 1984.

On May 15, 1985, petitioner returned to the district court, again presenting his Sandstrom claim. 10 He contended that the Supreme Court's recent decision in Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), which struck down a jury instruction creating a rebuttable presumption of criminal intent, reinforced his argument that the trial court's instruction on criminal intent had denied him due process.

In answering the petition, the State pointed out that petitioner had committed a procedural default by not presenting his claim in his first state habeas petition, as required by Georgia's successive petition statute. Citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the State argued that unless petitioner could show cause for not complying with the successive petition statute, he should not be allowed to litigate the claim in federal court. 11 The State also argued that Franklin did not provide cause for his default because it did not create "new law"; rather, earlier Supreme Court precedent, such as Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), had established that shifting the burden of persuasion to the defendant, requiring him to disprove an essential element of a crime, violated due process. Therefore, the State argued, petitioner could not be excused from his failure to raise the claim in his first habeas proceeding in state court.

The district court rejected the State's argument, ruling that petitioner could not be charged with a procedural default because he did not waive his Sandstrom claim when he failed to raise it in his first state habeas proceeding. The court based its decision on its observation that a reasonably competent attorney would not have believed that the instruction violated Sandstrom, because the Sandstrom instruction created an irrebuttable presumption of...

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