Ross v. Reed

• Decision Date: 04 May 1983
• Docket Number: No. 82-6537,82-6537
• Citation: 704 F.2d 705
• Parties: Daniel ROSS, Appellant, v. Amos REED, etc. and Attorney General of the State of North Carolina, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 705

704 F.2d 705

Daniel ROSS, Appellant, v. Amos REED, etc. and Attorney General of the State of North Carolina, Appellees.

No. 82-6537.

United States Court of Appeals Fourth Circuit.

Argued Dec. 6, 1982.

Decided March 31, 1983.

Rehearing Denied May 4, 1983.

Barry Nakell, School of Law, University of North Carolina, Chapel Hill, N.C., for appellant.

Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N.C. (Rufus L. Edmisten, Atty. Gen. of North Carolina, Raleigh, N.C., on brief), for appellees.

Before WINTER, Chief Judge, ERVIN, Circuit Judge, and HAYNSWORTH, Senior Circuit Judge.

HAYNSWORTH, Senior Circuit Judge:

Because he had not presented his federal claims to the Supreme Court of North Carolina in the course of his direct appeal from his conviction of first degree murder, we summarily affirmed a denial of habeas corpus relief to this North Carolina prisoner under the principle of Cole v. Stevenson, 620 F.2d 1055 (4th Cir.) en banc, cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980). Thereafter, the Supreme Court vacated our judgment, 660 F.2d 492 (4th Cir.1981), and remanded the case for reconsideration in light of the intervening cases of Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), and United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Ross v. Reed, 456 U.S. 921, 102 S.Ct. 1963, 72 L.Ed.2d 436 (1982). We conclude that the cause and prejudice exception to the state procedural bar rule is present, requiring us to go to the merits of the claim. On the merits, the prisoner is entitled to relief.

I.

In March 1969 Ross was convicted of first degree murder in the slaying of his wife. There was some evidence that Ross had suffered a stab wound in the back of his neck, and Ross testified that his wife was armed with a knife, though that was contradicted by other witnesses. He claimed lack of malice, which would affect the degree of the offense, and sought complete exoneration on a claim of self-defense. In accordance with settled state law at the time, the trial judge instructed the jury that Ross had the burden of proving each of those defenses. The Supreme Court of North Carolina affirmed the conviction on October 15, 1969. State v. Ross, 275 N.C. 550, 169 S.E.2d 875 (1969).

More than five months after the decision of the North Carolina Supreme Court in State v. Ross, the Supreme Court of the United States decided In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). There it held that due process requires the prosecution to prove beyond a reasonable doubt every element of the offense charged. Later it was to decide Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), in which it specifically held that in a murder case the burden is on the prosecution to prove beyond a reasonable doubt the absence of heat of passion or sudden provocation. In Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), the Mullaney holding was held to have retroactive application.

Relying upon Mullaney and Hankerson, Ross unsuccessfully sought post-conviction relief in North Carolina's courts. He then filed in the district court a petition for a federal writ of habeas corpus. The district court held this case pending final conclusion of the litigation in Cole v. Stevenson. In Cole, this court held in its six to three en banc decision that North Carolina's rule which barred post-conviction consideration of his federal claims respecting the burden of persuasion placed upon him by the trial judge's instructions also barred our consideration of those claims upon a petition for a federal writ of habeas corpus. 620 F.2d 1055 (1980). The Supreme Court denied a writ of certiorari in Cole with three justices noting their dissent. 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301. The district judge then denied the Ross petition on the basis of the procedural bar, and we affirmed.

As indicated at the outset, the Supreme Court then vacated our judgment and remanded the case for reconsideration of the cause and prejudice exception to the rule of procedural bar as enunciated in Engle v. Isaac and United States v. Frady.

II.

Ross has advanced two preliminary or alternative arguments.

First, he invites us to overrule or depart from the en banc decision of this court in Cole v. Stevenson. This panel of the court is bound by the en banc decision in Cole unless it is later supplanted by an en banc decision by this court or by a subsequent decision of the United States Supreme Court. It is true that in Engle v. Isaac the Supreme Court spoke of a state's interest in discouraging procedural defaults during trial proceedings, but a state has equivalent interests in discouraging procedural defaults during appellate proceedings. There is nothing in any decision of the Supreme Court subsequent to our en banc decision in Cole which would warrant this panel's now concluding that Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) should be confined to defaults occurring during trial proceedings.

Ross also contends that the rule of bar was waived by the North Carolina Supreme Court when it noticed the trial judge's instructions regarding the burden of proof during its opinion disposing of the direct appeal. The claim of waiver is not without some support, but we find it unnecessary to delve behind the rather elusive language of the opinion in an attempt to determine precisely what was in the minds of the justices of the North Carolina Supreme Court when they wrote.

III.

This case falls within the "cause and prejudice" exception as applied by the Supreme Court in Engle and Frady.

The state concedes that the prejudice prong is satisfied. Unlike the situation in Frady, there was testimony in this case that Ross reacted to an attack upon him by his estranged wife. According to his testimony, she approached him from the rear and stabbed him in the back of the neck, whereupon he whirled and fired two shots into the body of his knife-brandishing assailant. If the jury thought his defensive reaction to the attack upon him excessive, it well could have found him guilty only of manslaughter rather than first degree murder. There was some corroboration of Ross' testimony about the wound he suffered, so there is no room for speculation by us that the jury was so persuaded by the prosecution witnesses that no one of them entertained any doubt about their version of the event. Under these circumstances, the allocation of the burden of persuasion to Ross may well have influenced the jury in reaching a verdict of guilty of murder in the first degree.

We also conclude that there was cause for not having raised the claim.

In Engle v. Isaac, the Supreme Court left open the question whether novelty of the constitutional claim might ever constitute cause for not raising it, though it expressed its hesitance "to adopt a rule that would require trial counsel either to exercise extraordinary vision or to object to every aspect of the proceedings in the hope that some aspect might mask a latent constitutional claim." 456 U.S. at 133, 102 S.Ct. at 1574. It found no cause for the failure to object in the three consolidated cases before it, because the constitutional claims of the three respondents "were far from unknown at the time of their trials."

The three respondents in Engle had been convicted of murder in separate trials in Ohio. Each had failed to object to an instruction placing the burden of persuasion of lack of malice upon him, and cause was asserted to lie in the fact that trial counsel in each case thought there was no constitutional basis for an objection to that allocation of the burden of persuasion. The Supreme Court rejected that assertion because each of the trials had occurred more than four years after its decision in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), in which, in a different context, it was held that due process required the prosecution to prove every element of the offense beyond a reasonable doubt. The Supreme Court referred to a number of cases decided by other courts in the interim...