Smith v. Lucas

• Decision Date: 06 December 1993
• Docket Number: No. 93-7630,93-7630
• Citation: 9 F.3d 359
• Parties: Willie Albert SMITH, Petitioner-Appellee, v. Eddie LUCAS, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 359

9 F.3d 359

62 USLW 2419

Willie Albert SMITH, Petitioner-Appellee, v. Eddie LUCAS, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellants.

No. 93-7630.

United States Court of Appeals Fifth Circuit.

Dec. 6, 1993.

Marvin L. White, Jr., Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, MS, for respondents-appellants.

Robert J. Brantley, Jackson, MS, John J. Kenny, David E. Massengill, Brad Friedman, Simpson, Thacher & Bartlett, New York City, Robert Lee, Jackson, MS, for petitioner-appellee.

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

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

KING, Circuit Judge:

The Commissioner of the Mississippi Department of Corrections (Respondent) appeals an order of the district court granting a writ of habeas corpus in favor of the petitioner, Willie Albert Smith, based upon the failure of the State of Mississippi to comply with the district court's order of November 23, 1992. In that order, the district court had declared that it would grant a writ of habeas corpus "as to Smith's death sentence" unless the State initiated certain proceedings within six months to correct the constitutional infirmity in that sentence. When the deadline expired, the State had failed to commence the required proceedings. The district court granted the writ, directing Smith's death sentence to be vacated and ordering the State to impose upon Smith a sentence of life imprisonment. On appeal from that order, the State contends, inter alia, that the district court exceeded its authority in requiring the State to resentence Smith to life imprisonment. We agree with the State that the district court was without the power to direct "that the State of Mississippi impose upon [Smith] a sentence of life imprisonment," and thus we modify the district court's order to excise the quoted language. We find no error in the other determinations of the district court and thus affirm the judgment of the district court as modified.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Willie Albert Smith was tried for the murder of Shirley Roberts, a convenience store manager, in the Circuit Court of the First Judicial Circuit of Hinds County, Mississippi. ¹ The prosecution introduced "awesome" circumstantial evidence of Smith's guilt, as conceded by Smith's own attorney, as well as the testimony of two "eyewitnesses," who claimed to have seen Smith forcing a woman into a red Pinto in the convenience store parking lot around the time of the victim's abduction. Smith v. Black, 904 F.2d 950, 957-58 (5th Cir.1990) ("Smith I "). The jury convicted Smith of the murder of Shirley Roberts during the course of a robbery, a capital crime in Mississippi. Id. at 959.

During the sentencing phase ², the prosecution introduced evidence of rape and of manual strangulation, and the jury found three aggravating circumstances: (i) that the murder was committed while Smith was engaged in the commission of robbery, (ii) that the murder was committed for pecuniary gain, and (iii) that the murder was "especially heinous, atrocious, or cruel." Id. The jury also found beyond reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances. Id. Consequently, Smith was sentenced to death.

A. This Court's Mandate

Smith pursued several post-conviction remedies in the state court ³ before commencing a habeas proceeding in the District Court for the Southern District of Mississippi on August 1, 1983. This court entered a stay of execution and a stay of proceedings in the district court until Smith's state court remedies were exhausted. After Smith had exhausted his state remedies, ⁴ he amended his habeas petition, arguing, inter alia, that Mississippi's use of the "especially heinous" aggravating circumstance in the jury's deliberations as to his death sentence was unconstitutional. The federal district court denied Smith's habeas petition, as well as his motion to alter or amend the judgment, Smith v. Thigpen, 689 F.Supp. 644 (S.D.Miss.1988), and this court affirmed. Smith I, 904 F.2d at 988. With respect to the "especially heinous" aggravating circumstance, this court noted that the Supreme Court had recently held the factor to be unconstitutional in a context similar to the one presented in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). In Maynard, the Supreme Court invalidated an "indistinguishable" Oklahoma statute, finding that the term "especially heinous, atrocious or cruel" when used to define an aggravating factor for purposes of capital sentencing was unconstitutionally vague absent an appropriate limiting instruction. Id. at 363-64, 108 S.Ct. at 1858-59. In a related decision styled Clemons v. Mississippi, the Court prohibited the automatic affirmance of a death sentence where at least one valid aggravating factor remained after another factor had been held to be impermissible in those states, like Mississippi, which weigh aggravating against mitigating factors for sentencing purposes. 494 U.S. 738, 752, 110 S.Ct. 1441, 1450, 108 L.Ed.2d 725 (1990). Instead, the Court required either that the appellate court reweigh the aggravating and mitigating circumstances or find that the error of including the unconstitutional aggravating factor was harmless beyond a reasonable doubt. Id. at 750-52, 110 S.Ct. at 1449-50. Maynard and Clemons were both relevant to Smith's claim for relief since the sentencing jury in his case found the existence of two other valid aggravating factors. This court considered itself to be precluded from reaching the issue in the case presented, however, because Smith's conviction had become final in 1983, several years before the relevant Supreme Court decisions were rendered. Thus, it determined that Smith could not take advantage of the "new rules" ⁵ announced in Maynard and Clemons. See Smith I, 904 F.2d at 986.

Before the decision in Smith I was announced, Smith filed a fourth petition for post-conviction relief in the Mississippi Supreme Court on July 27, 1990, requesting that court to vacate or set aside his death sentence on the basis of Maynard and Clemons. The State responded on November 21, 1990, raising various procedural bars to the determination of the Maynard and Clemons claim and arguing that, even if the merits were reached, the Mississippi Supreme Court itself could reweigh or perform a harmless error examination without remanding for a new sentencing proceeding. Smith's application is still pending before the Mississippi Supreme Court.

Subsequently, the Supreme Court vacated the judgment rendered by this court in Smith I and remanded for further consideration in light of its contemporaneous decision in Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). See Smith v. Black, --- U.S. ----, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992) ("Smith II "). Stringer involved an almost identical fact-setting in that the death sentence of the petitioner in that case had also become final prior to Maynard and Clemons. --- U.S. at ---- ----, 112 S.Ct. at 1134-35. The Court concluded that "the precedents even before Maynard and Clemons yield[ed] a well-settled principle," and thus, the decisions in tandem did not constitute a "new rule" for purposes of Teague. Id. --- U.S. at ----, 112 S.Ct. at 1140.

On remand of Smith II, and in accordance with the Supreme Court's directive, this court applied the rules of Maynard and Clemons and determined that the use of the "especially heinous" aggravating circumstance without a limiting instruction rendered Smith's death sentence constitutionally infirm--specifically holding that the claim had not been procedurally defaulted. Smith v. Black, 970 F.2d 1383, 1388 (5th Cir.1992) ("Smith III "). However, this court permitted the death sentence in Smith's case to

be salvaged if the state appellate court eliminated the invalid aggravating factor and reweighed the remaining valid factors against the mitigating factors, or if it determined that the use of the invalid factor was harmless beyond a reasonable doubt.... Should the State elect to initiate further proceedings in the Mississippi Supreme Court, that court still has the option of reweighing or performing a harmless error analysis as those procedures have been defined in Clemons and Wiley [v. Puckett, 969 F.2d 86 (5th Cir.1992) ].

Id. Accordingly, we directed the district court "to issue the writ of habeas corpus unless the State of Mississippi initiates appropriate proceedings in state court within a reasonable time after the issuance of our mandate." Id. at 1389.

B. District Court Action on Remand

On remand from this court, the district court issued an order in pertinent part as follows:

IT IS HEREBY ORDERED that the Court shall issue a writ of habeas corpus as to the Petitioner Willie Albert Smith's death sentence unless the State of Mississippi initiates proceedings to have the state court reweigh any aggravating and mitigating circumstances or conduct a harmless error analysis ... by no later than May 23, 1993.

Ordered entered November 23, 1992 (the "November 23 Order"). This order gave the State six months to take appropriate action as defined therein.

After the time-period had expired and the State had failed to take the requisite action, Smith moved for entry of the writ of habeas corpus. The State opposed the writ, claiming that it had not received notice of the November 23 Order. Consequently, it argued, the State was unaware of the deadline until after its expiration. Alternatively, the State argued that it had complied with the spirit of the district court's order since proceedings were pending before the Mississippi Supreme Court--proceedings initiated by Smith more than two years before the November 23 Order--to resolve the same issues contemplated in the November 23 Order.

The district court held that the State had received...