Ross v. Reed, No. 82-6537

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore WINTER, Chief Judge, ERVIN, Circuit Judge, and HAYNSWORTH; HAYNSWORTH
Citation704 F.2d 705
PartiesDaniel ROSS, Appellant, v. Amos REED, etc. and Attorney General of the State of North Carolina, Appellees.
Docket NumberNo. 82-6537
Decision Date04 May 1983

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.

Page 706

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

Page 707

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...

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24 practice notes
  • Reed v. Ross, No. 83-218
    • United States
    • United States Supreme Court
    • June 27, 1984
    ...the law at the time of the appeal did not offer a "reasonable basis" upon which to challenge the jury instruction in question. Pp. 16-20. 704 F.2d 705 (CA4 1983), affirmed. Richard N. League, Raleigh, N.C., for petitioners. Edwin S. Kneedler, Washington, D.C., for the U.S. as amicus curiae,......
  • Ross v. Fed. Bureau of Alcohol, Civil No. PJM 10–3090.
    • United States
    • U.S. District Court — District of Massachusetts
    • August 4, 2011
    ...in a life sentence, Ross was granted federal habeas corpus relief by the U.S. Court of Appeals for the Fourth Circuit. See Ross v. Reed, 704 F.2d 705 (4th Cir.1983). The Fourth Circuit reversed Ross's murder conviction and remanded the case to the district court with instructions to enter a......
  • Bush v. Stephenson, No. 83-479-HC.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • August 13, 1986
    ...the lack of malice was in violation of his constitutional right," obviously notwithstanding Ross's first-degree conviction. Ross v. Reed, 704 F.2d 705, 709 (4th Cir.1983). See also pp. 17-19 of the transcript of oral argument before the Supreme Court in Reed, where in response to a question......
  • Meadows v. Holland, No. 86-6748
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • October 16, 1987
    ...non-valid matters, for how could counsel say what was clearly not the law today would not become the law tomorrow? See Ross v. Reed, 704 F.2d 705, 708-09 (4th Cir.1983), Page 502 aff'd, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984): If novelty were never cause, counsel on appeal would be ......
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24 cases
  • Reed v. Ross, No. 83-218
    • United States
    • United States Supreme Court
    • June 27, 1984
    ...the law at the time of the appeal did not offer a "reasonable basis" upon which to challenge the jury instruction in question. Pp. 16-20. 704 F.2d 705 (CA4 1983), affirmed. Richard N. League, Raleigh, N.C., for petitioners. Edwin S. Kneedler, Washington, D.C., for the U.S. as amicus curiae,......
  • Ross v. Fed. Bureau of Alcohol, Civil No. PJM 10–3090.
    • United States
    • U.S. District Court — District of Massachusetts
    • August 4, 2011
    ...in a life sentence, Ross was granted federal habeas corpus relief by the U.S. Court of Appeals for the Fourth Circuit. See Ross v. Reed, 704 F.2d 705 (4th Cir.1983). The Fourth Circuit reversed Ross's murder conviction and remanded the case to the district court with instructions to enter a......
  • Bush v. Stephenson, No. 83-479-HC.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • August 13, 1986
    ...the lack of malice was in violation of his constitutional right," obviously notwithstanding Ross's first-degree conviction. Ross v. Reed, 704 F.2d 705, 709 (4th Cir.1983). See also pp. 17-19 of the transcript of oral argument before the Supreme Court in Reed, where in response to a question......
  • Meadows v. Holland, No. 86-6748
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • October 16, 1987
    ...non-valid matters, for how could counsel say what was clearly not the law today would not become the law tomorrow? See Ross v. Reed, 704 F.2d 705, 708-09 (4th Cir.1983), Page 502 aff'd, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984): If novelty were never cause, counsel on appeal would be ......
  • Request a trial to view additional results

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