Thomas v. Jones
| Decision Date | 10 July 1990 |
| Docket Number | Civ. A. No. 90-0517-AH-C. |
| Citation | 742 F. Supp. 598 |
| Parties | Wallace Norrell THOMAS, Petitioner, v. Charlie JONES, Warden, Holman State Prison, Respondent. |
| Court | U.S. District Court — Southern District of Alabama |
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Bryan Stevenson, Ruth Friedman, Montgomery, Ala., for petitioner.
Don Siegelman, Ed Carnes, John Gibbs, Kenneth S. Nunnelly, Sandra J. Stewart, Office of the Atty. Gen., Montgomery, Ala., for respondent.
On July 9, 1990 this cause came before the Court for a hearing on the merits of Wallace Norrell Thomas' second petition for writ of habeas corpus, filed in this Court on July 5, 1990, and on Thomas' motion for a stay of his execution, scheduled for July 13, 1990. At the close of the hearing, the Court orally dismissed the petition, and denied the motion for a stay of execution. Thomas thereupon made an oral motion for a certificate of probable cause to appeal, which the Court denied. The Court now enters this written opinion in accordance with its oral ruling.
Thomas was convicted on November 3, 1977, for violation of Section 13-11-2(a)(2), Code of Alabama (1975), the capital offense of robbery where the victim is intentionally killed. He was sentenced to death on March 13, 1978. On March 31, 1981, the Alabama Court of Criminal Appeals reversed Thomas' conviction on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) and remanded the case for a new trial.
In May 1982, Thomas was tried for the second time, was found guilty, and was sentenced to death. On October 3, 1983, the conviction and sentence were affirmed by the Alabama Court of Criminal Appeals. Thomas v. State, 460 So.2d 207 (Ala.Cr. App.1983). The Alabama Supreme Court affirmed the conviction and sentence, Ex Parte Thomas, 460 So.2d 216 (Ala.1984), and denied Thomas' petition for rehearing on November 9, 1984. Thomas' petition for writ of certiorari and stay of execution to the United States Supreme Court was denied certiorari as untimely. Thomas thereafter filed a petition for a writ of error coram nobis in the Circuit Court of Mobile County on May 23, 1985, which was denied. The Alabama Court of Criminal Appeals affirmed on February 10, 1987. Thomas v. State, 511 So.2d 248 (Ala.Cr.App.1987), cert. denied, No. 86-823 (Ala.1987). Thomas' application for rehearing was denied on March 10, 1987, and his petition for writ of certiorari was denied by the Alabama Supreme Court on June 26, 1987.
The first federal habeas corpus petition was filed in the United States District Court for the Southern District of Alabama, Southern Division, on September 11, 1987, and was dismissed on December 29, 1988. The Eleventh Circuit affirmed the dismissal on December 21, 1989, Thomas v. Jones, 891 F.2d 1500 (11th Cir.1989), and denied his rehearing petition on February 13, 1990. The United States Supreme Court denied certiorari on May 21, 1990.
Execution is set for July 13, 1990.
The instant petition, filed on July 5, 1990, argued two grounds for issuance of the writ, and for a stay of sentence. At the hearing, the Court heard argument from counsel for both sides, and heard testimony regarding Alabama's electric chair.
Thomas argued that "the trial court's inadequate and unconstitutional instruction to the sentencing jury violated petitioner's rights under the Eighth and Fourteenth Amendments." Thomas contended that "the jurors who sentenced Thomas to die were improperly led to believe that before they could consider any circumstances in mitigation of punishment, all twelve had to agree on the existence of a single circumstance,"1 in violation of two recent Supreme Court decisions, Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, ___ U.S. ___, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990).
Non-retroactivity.
The State argued that McKoy and Mills established a new rule of law for retroactivity purposes which, under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), cannot be applied retroactively in this collateral proceeding. Thomas argued that these decisions were merely extensions of the principles announced in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and its progeny.
Under Mills and McKoy, it is error for the trial judge to instruct the jury that they must unanimously find the existence of a mitigating factor. Further, it is error for the trial judge to give an instruction ambiguous enough to be interpreted that way.
Teague v. Lane held that federal courts will not apply new rules of law retroactively in collateral criminal proceedings, and that federal courts will consequently not announce new constitutional principles in collateral review cases. See Teague v. Lane, 489 U.S. at ___, 109 S.Ct. at 1073-1078, 103 L.Ed.2d at 354-361 (1989): See also Boyde v. California, ___ U.S. ___, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). Under Teague, "a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final. Id. 109 S.Ct. at 1070 (citations omitted).
There are two exceptions to the Teague rule against retroactive application of new law in collateral proceedings. First, a new rule is applied retroactively if it "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." 109 S.Ct. at 1075 (citations omitted). Second, a new rule is applied retroactively if it requires the observance of "those procedures that ... are implicit in the concept of ordered liberty." Id. (citations omitted).
After consideration of the relevant decisions, after hearing the arguments of counsel, and after due and careful consideration, the Court found that Mills and McKoy announced a new rule of law.2 The Court further found that this "new" rule was not within either of the two exceptions enunciated in Teague, and accordingly, Thomas was not entitled to its retroactive application in this habeas corpus action. Accordingly, the Court could not consider the merits of this claim, and Thomas petition was due to be denied on this ground.
Thomas argued that "the State of Alabama's use of an antiquated electric chair, improperly trained correctional staff with no expertise in electrical execution and execution equipment which results in excessive mutilation of the body and torturous death constitutes cruel and unusual punishment in violation of the Eighth Amendment warranting a stay of execution." Thomas contended that the history of executions in Alabama in the post-Furman era show excessive mutilation and burning of the body, that Alabama corrections officers are not competent to manage executions, and that these conditions combine to cause unconstitutionality. Thomas requested that his execution be stayed until Alabama's new electric chair is installed.3
Abuse of the writ
Preliminarily, the State argued that Thomas' failure to raise this issue in his first habeas petition constituted an abuse of the writ, and that consideration of this claim was therefore precluded under Habeas Rule 9(b). Under the habeas rules, and under Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), federal courts must reach the merits of successive claims unless the claims were deliberately withheld or abandoned, or unless the defendant exhibited inexcusable neglect in failing to assert the claim earlier. A habeas petition may be dismissed if its purpose is to "vex, harass or delay." However, in order to find an abuse of the writ for failure to raise a claim in state court, the federal court must find an intentional waiver or abandonment of state court claims, under circumstances which justify withholding federal relief. Potts v. Zant, 638 F.2d 727, 743 (5th Cir. Unit B, February 17, 1981): See also Booker v. Wainwright, 764 F.2d 1371 (11th Cir.1985). When the State raises abuse of the writ, the burden is on the petitioner to show by a preponderance of the evidence that there is no abuse of the writ.
Thomas argued that although the legal basis for the claim existed at the time of his original habeas petition in this Court, the factual basis for this claim did not exist until Dunkins' execution in July of 1989. At the hearing, Thomas' argued that study of the executions in Alabama in the post Furman era shows that each executed inmate has been burned, that the burning has been comparatively more extensive in the more recent executions, that the execution of Horace Dunkins, Jr., on July 14, 1989 violated the Eighth Amendment because Dunkins was physically and psychologically tortured, that Thomas will be similarly tortured, and that the State of Alabama has neither the equipment nor the personnel to competently carry out a humane execution.
After hearing the argument of counsel the Court found that this claim was not available to Thomas at the time of his initial petition, because a significant portion of the factual basis for this claim did not exist at that time. Further, the Court found that Thomas did not deliberately withhold this claim, and that his assertion of it in this petition was not an abuse of the writ.
The State argued that Ritter v. Smith, 568 F.Supp. 1499, 1526 (S.D.Ala. 1983), aff'd in relevant part rev'd in part on other grounds, 726 F.2d 1505, 1519 (11th Cir.1984), cert. denied 469 U.S. 869, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984) binds this Court to the conclusion that electrocution in Alabama's electric chair does not violate the Eighth Amendment, and argued further that any contrary finding would require a new rule of law, which, under Teague v. Lane,4 could not be applied retroactively on Thomas' behalf in...
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