Walker v. Jones
| Decision Date | 07 January 1994 |
| Docket Number | No. 92-6111,92-6111 |
| Citation | 10 F.3d 1569 |
| Parties | Gary WALKER, Petitioner-Appellant, v. Charlie JONES, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Gary Walker, Atmore, AL, Royce A. Ray, III, Finkbohner & Lawler, Mobile, AL, for petitioner-appellant.
Beth Slate Poe, Asst. Atty. Gen., Montgomery, AL, for respondent-appellee.
Appeal from the United States District Court for the Southern District of Alabama.
Before HATCHETT and COX, Circuit Judges, and RONEY, Senior Circuit Judge.
Appellant, Gary Walker, brought a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. Sec. 2254, seeking collateral relief from his conviction for the murder of Eleanor and Felix Laird, and from the resulting sentence of life imprisonment without parole. Walker raised a myriad of claims, and the district court denied relief on all claims. After reviewing the claims, we conclude that the district court committed no error and affirm its order dismissing Walker's habeas corpus petition.
Between 6 a.m. and 6:30 a.m. on the morning of June 7, 1985, Mobile County sheriff's deputies, dispatched to a house in Mobile County, Alabama, discovered Felix Laird dead and his wife, Eleanor Laird, severely wounded from shotgun blasts. While the deputies were on the scene, Eleanor Laird stated that Gary Walker shot her and her husband. Deputy Sergeant Ron Diegan tape recorded the statement. Eleanor Laird died soon after the recording of her statement.
At approximately 5:50 a.m. on the same morning, Deputy Frank Alpin stopped Gary Walker's blue Toyota pickup truck after he ran a red light. Alpin told Walker to drive more carefully. Alpin testified that Walker did not appear under the influence of alcohol.
Kimberly Laird, who lived next door to Felix and Eleanor Laird, awoke on the morning of the shooting after hearing two gunshots. Upon looking out the window, she saw a blue truck with white letters on the door and a man resembling Walker running to the truck. Between 6 a.m. and 6:15 a.m., a second person, Leamon Baxley, saw a person driving a blue pickup truck stop near his front yard and throw a shotgun into the bushes. Baxley called the police, and a policeman retrieved a Remington shotgun from the bushes. At trial, Baxley could not identify the person who threw the shotgun into the bushes but did testify, over objection, that he picked out Walker's photograph from a photographic spread on the night of the murders.
Frank Spann, a close, personal friend of Walker's, identified the Remington shotgun recovered near Baxley's house, as his, and stated that he had stored the gun at his brother's trailer. Paul Spann, Frank Spann's brother, testified that during the early morning hours of June 7, 1985, Walker came to his trailer and said that "he had blown Felix and Eleanor away." Paul Spann also testified that later, when he learned that Felix and Eleanor Laird were actually dead, he went to his trailer and discovered his shotgun and several shotgun shells missing. Deputy Sheriff Mark Sloke took possession of the shotgun on June 7, 1985, and removed two latent fingerprints from the gun. Brian Delmas, who worked for the Alabama Department of Forensic Science, testified that one of the latent finger prints matched Walker's right ring finger, and the other latent palm print matched Walker's right palm. Detective William Estes retrieved two expended 12-gauge hulls lying in the Lairds' front yard, which matched the one live round remaining in the magazine of the murder weapon.
At trial, Walker testified that on the evening of June 6, 1985, he went drinking with two friends. He stated that during that evening he became highly intoxicated, and began hallucinating because someone slipped drugs
into his beer. Walker further testified that he lost consciousness and could not recall going to the Lairds' home, shooting them, going to Spann's trailer, or being involved in a police stop. He testified that the only thing he remembered was two men throwing him into the back of a car and then throwing him out onto an interstate highway.
On June 28, 1985, a Mobile County grand jury indicted Walker for capital murder for the killing of Eleanor and Felix Laird. Following a two-day trial, the jury found Walker guilty of capital murder and recommended that Walker receive a sentence of life in prison without the possibility of parole. The trial court adjudged Walker guilty of capital murder and sentenced him to life in prison without parole.
On January 5, 1987, Walker appealed his conviction to the Court of Criminal Appeals of Alabama, which affirmed his conviction. 1 Thereafter, Walker appealed to the Alabama Supreme Court which denied Walker's petition. Upon exhausting all state remedies, Walker filed this petition for a writ of habeas corpus. 2 On December 30, 1991, a United States magistrate judge issued a Report and Recommendation concluding that Walker's constitutional rights were not violated, and recommending that the district court deny Walker's petition for writ of habeas corpus. On January 27, 1992, the district court adopted the magistrate judge's recommendation as the opinion of the court and denied Walker's petition for habeas corpus relief with prejudice. Representing himself, Walker appealed. On April 7, 1993, the district court appointed counsel for Walker, and counsel filed a supplemental brief.
Walker contends that (1) the trial court's reasonable doubt instruction violated the Due Process clause of the Fourteenth Amendment under Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), and that (2) the trial court's error warrants reversal as an independent claim or the trial counsel's failure to object to the instruction constitutes ineffective assistance. Walker also contends that the trial court erred when it failed to instruct the jury on the lesser-included offense of intentional murder.
The government contends that the Cage issue is not properly before this court because
Walker failed to raise it as an independent claim in the district court. Alternatively, the government contends that trial counsel's failure to object to the reasonable doubt instruction did not constitute ineffective assistance. Finally, the government contends that the omission of an instruction on intentional murder was proper under the facts of this case.
The issues on appeal which we discuss are: (1) whether Walker raised the Cage issue as an independent claim for relief in the district court; (2) whether trial counsel's failure to object to the reasonable doubt instruction constitutes ineffective assistance of counsel; and (3) whether the trial court erred in failing to instruct the jury on intentional murder.
In Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 329-30, 112 L.Ed.2d 339 (1990) the Supreme Court considered whether a reasonable doubt instruction, which equated a reasonable doubt with a "grave uncertainty" and an "actual substantial doubt," and stated that what was required was a "moral certainty" that the defendant was guilty, violated the defendant's rights under the Fourteenth Amendment. Upon considering the effect of the instruction on reasonable jurors, the court declared the instruction unconstitutional. In reaching this decision, the Court determined that the words "substantial" and "grave" suggested a higher degree of doubt than the reasonable doubt standard requires. Cage, 498 U.S. at 41, 111 S.Ct. at 329-30. Further, the court reasoned: "[w]hen those statements are then considered with the reference to 'moral certainty,' rather than an evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause." Cage, 498 U.S. at 41, 111 S.Ct. at 330 (footnote omitted).
In this case, the trial court's reasonable doubt instruction likened a reasonable doubt to a "substantial doubt," and instructed the jury that a "moral certainty" was required to find Walker guilty, not an evidentiary certainty. The trial court made repeated references to this standard and at one point stated: "you will observe that the state is not required to convince you of the defendant's guilt beyond all doubt but simply beyond all reasonable doubt and to a moral certainty." (Emphasis added.) The trial court used the term "reasonable doubt" in conjunction with the term "moral certainty" seven times and repeatedly compared reasonable doubt with a "substantial doubt."
Walker contends that the district court's reasonable doubt instruction equated a reasonable doubt to a "substantial doubt" beyond a "moral certainty," violating Cage. He argues that such an instruction violates the Due Process Clause of the Fourteenth Amendment and warrants the reversal of his convictions. Walker, however, acknowledges that he failed to object to the instruction at trial, and that such a procedural default usually bars consideration of the issue in a petition for federal habeas corpus. 28 U.S.C. Sec. 2254; Meeks v. Singletary, 963 F.2d 316, 320 (11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1362, 122 L.Ed.2d 741 (1993). Walker argues, however, that this court should excuse his procedural default because he has shown cause and prejudice, and a fundamental miscarriage of justice warranting review. Meeks, 963 F.2d at 320.
Upon reviewing the record, we find that Walker failed to raise this issue as an independent claim for relief in the district court. In his petition, Walker merely claimed ineffective assistance of counsel due to counsel's failure to object to the instruction. In such circumstances, we have repeatedly held that "an issue not raised in the district court and raised for the first time in an appeal will not be considered by this court." Depree v. Thomas, 946 F.2d 784,...
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