Smith v. Black

• Decision Date: 20 August 1992
• Docket Number: No. 88-4790,88-4790
• Citation: 970 F.2d 1383
• Parties: Willie Albert SMITH, Petitioner-Appellant, v. Lee Roy BLACK, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1383

970 F.2d 1383

Willie Albert SMITH, Petitioner-Appellant, v. Lee Roy BLACK, Commissioner, Mississippi Department of

Corrections, et al., Respondents-Appellees.

No. 88-4790.

United States Court of Appeals, Fifth Circuit.

Aug. 20, 1992.

Robert J. Brantley, Jr., Kenneth J. Rose, Jackson, Miss., David E. Massengill, John J. Kenney, Simpson, Thacher & Bartlett, New York City, for petitioner-appellant.

Marvin L. White, Jr., Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, Miss., for respondents-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

On Remand from the Supreme Court of the United States

Before POLITZ, Chief Judge, KING and SMITH, Circuit Judges.

KING, Circuit Judge:

The United States Supreme Court has vacated the judgment in this case and remanded for further consideration in light of Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). The facts and procedural history are set forth in great detail in the panel opinion, Smith v. Black, 904 F.2d 950 (5th Cir.1990), and we will repeat them here only as necessary for an understanding of the issues presented on remand.

I. BACKGROUND

Smith was convicted of the murder of Shirley Roberts, the manager of a convenience store in Jackson, Mississippi. The jury found three aggravating circumstances: the murder was committed in the course of a robbery, the murder was committed for pecuniary gain, and the murder was especially heinous, atrocious and cruel. See Miss.Code Ann. § 99-19-101(5) (1972 & Supp.1991). After weighing the aggravating circumstances against the mitigating evidence, see id., the jury returned a death sentence. The Mississippi Supreme Court affirmed. Smith v. State, 419 So.2d 563 (Miss.1982), cert. denied, 460 U.S. 1047, 103 S.Ct. 1449, 75 L.Ed.2d 803 (1983) (Smith I). Smith next initiated proceedings for post-conviction relief in the Mississippi Supreme Court. He raised a multitude of claims, nearly all of which the court found procedurally barred. Among these was the claim that there was constitutional error at trial in the jury's use of the "especially heinous, atrocious, and cruel" aggravating circumstance. The Mississippi Supreme Court responded to this claim as follows:

At trial there was no objection to the instruction on the aggravating circumstance set forth in Mississippi Code Annotated § 99-19-101(5)(h) as to the heinous, atrocious, or cruel nature of the murder. Likewise, the giving of this instruction was not raised on direct appeal, barring petitioner from raising it in post-conviction proceedings. See Mississippi Supreme Court Rule 42.

Smith v. State, 434 So.2d 212, 218 (Miss.1983) (Smith II). The court denied all relief.

Smith then sought habeas corpus relief in federal court. The proceedings were stayed for some time while he exhausted additional state remedies, but eventually the district court denied all relief. Smith v. Thigpen, 689 F.Supp. 644 (S.D.Miss.1988). On appeal, we affirmed the district court in its entirety. Smith v. Black, 904 F.2d 950 (5th Cir.1990) (Smith III). One of the claims we rejected was a constitutional challenge to the jury's use of the "especially heinous" aggravating circumstance. Smith had based this claim on the Supreme Court's invalidation in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), of Oklahoma's use of that aggravating circumstance without a limiting instruction. Smith also argued, in a supplemental brief, that after Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), his death sentence could not be salvaged as a result of the fact that two valid aggravating circumstances (robbery and pecuniary gain) remained. The State contended, however, that Smith could not raise a challenge to the "especially heinous" circumstance in federal habeas because the Mississippi Supreme Court, on collateral review, had held it procedurally barred. Smith III, 904 F.2d at 981.

Although we held against Smith, we relied not on a state procedural bar, but on Smith's inability under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to take advantage of the Maynard and Clemons decisions. Teague, of course, prohibits the application of "new" rules of constitutional procedure in federal habeas proceedings unless the rule falls within one of two narrow exceptions. We determined that the "better practice" was to decide the Teague retroactivity question before reaching the procedural bar question. Smith III, 904 F.2d at 982. We then determined that an essential element of Clemons on which Smith relied--its rejection of Mississippi's automatic affirmance rule in cases where at least one valid aggravating circumstance remains--was a new rule for purposes of Teague and did not fall within either of the Teague exceptions. Smith III, 904 F.2d at 983-86.

In Stringer, the Supreme Court unambiguously decided that Maynard and Clemons did not announce new rules for the purposes of Teague; hence, the Court vacated the judgment in Smith III. Our task on remand is not, however, simply to apply Maynard and Clemons, for the State continues vigorously to advance the procedural bar as an alternative means of preventing consideration of the merits of this claim. In addition, Smith has asked us to consider two issues never before raised in his briefs.

II. ANALYSIS

A. Procedural Bar of the Aggravating Circumstance Claim

It is by now well-established that federal habeas courts will not consider claims a petitioner has defaulted in state court absent a showing of cause for the default and resulting prejudice, or a showing that failure to consider the claim will result in a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). As this doctrine rests on the notion that a state court's reliance on a procedural bar functions as an adequate and independent state ground supporting the judgment, Coleman v. Thompson, --- U.S. ----, ----, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991), federal courts must first determine whether the state court judgment rests on state law. In this task we are aided by Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), which holds that habeas courts will presume that there is an independent and adequate state ground when "the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Id. at 263, 109 S.Ct. at 1043 (internal quotation omitted).

We have little difficulty concluding that the last state court to consider this claim "clearly and expressly" relied on a state procedural rule to bar review. In the first post-conviction proceeding, the Mississippi Supreme Court pointed out that Smith did not object to the giving of the "especially heinous" instruction at the sentencing phase and did not raise it on direct appeal, barring him from raising it in post-conviction proceedings. (For the sake of clarity, we will refer to these as the "contemporaneous objection" and "direct appeal" bars, respectively). For support, the court cited Mississippi Supreme Court Rule 42. Smith II, 434 So.2d at 218. Our statement in Smith III, 904 F.2d at 981, that "[t]he court's opinion is ambiguous only as to whether it regarded the claim to be barred independently for failure to object at trial" does not undermine this conclusion. We were not stating that the state court's opinion was ambiguous as to whether it relied on federal or state law, but instead that it was not clear whether the court was relying on the contemporaneous objection bar or the direct appeal bar. Regardless of whether its decision rested on trial or appellate default, it is clear that the court rested exclusively on state procedural rules and not federal law.

Smith primarily argues that Mississippi's failure consistently to invoke the contemporaneous objection and direct appeal bars in cases in which the petitioner defaulted on a challenge to the "especially heinous" aggravating circumstance should cause this court to disregard the procedural bars altogether and reach the merits of the claim. We agree.

A state procedural rule will not function as an adequate and independent state ground supporting the judgment if it is not "strictly or regularly followed." Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824 (1982) (citation omitted); see also Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988); Wheat v. Thigpen, 793 F.2d 621, 624 (5th Cir.1986), cert. denied, 480 U.S. 930, 107 S.Ct. 1566, 94 L.Ed.2d 759 (1987). "State courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims." Hathorn, 457 U.S. at 263, 102 S.Ct. at 2426. In Johnson, for example, the Court, after reviewing a series of state cases, found that the Mississippi Supreme Court inconsistently applied the direct appeal bar where the defendant failed on direct appeal to challenge a conviction that formed the basis for an enhanced sentence or supported an aggravating circumstance in a capital sentencing. The Court therefore refused to find the bar an adequate and independent state ground supporting the state court's failure to grant relief. Id. 486 U.S. at 587, 108 S.Ct. at 1987. Smith wisely disputes the consistency of both the contemporaneous objection and direct appeal bars--wisely, we say, because there is some ambiguity about which bar the Mississippi Supreme Court invoked. As to the former, Smith argues that the Mississippi Supreme Court inconsistently applies the bar in cases involving constitutional challenges to the "especially heinous" aggravating circumstance, and as to the latter he argues that this circuit has conclusively determined that that bar is inadequate when applied at the...