Wheat v. Thigpen

• Decision Date: 27 June 1986
• Docket Number: No. 85-4590,85-4590
• Parties: Kenneth W. WHEAT, Petitioner-Appellee, Cross-Appellant, v. Morris THIGPEN, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 621

793 F.2d 621

Kenneth W. WHEAT, Petitioner-Appellee, Cross-Appellant, v. Morris THIGPEN, Commissioner, Mississippi Department of

Corrections, et al., Respondents-Appellants,

Cross-Appellees.

No. 85-4590.

United States Court of Appeals, Fifth Circuit.

June 27, 1986.

Rehearing and Rehearing En Banc Denied Aug. 18, 1986.

Edwin L. Pittman, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., White & Morse, Jackson, Miss., William S. Boyd, III, Gulfport, Miss., for respondents-appellants, cross-appellees.

Gerald F. Smith, Gulfport, Miss., Robert E. Morin, Rockville, Md., Stephen B. Bright, Atlanta, Ga., for petitioner-appellee, cross-appellant.

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

Before GEE, REAVLEY and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

In this federal habeas action, the respondents, Morris Thigpen, Commissioner of the Mississippi Department of Corrections, and others (collectively the State), appeal the district court's order vacating the petitioner's death sentence. The petitioner, Kenneth William Wheat, appeals the district court's denial of relief as to the guilt-innocence phase of his trial. We affirm the order of the district court in all respects.

I.

A Mississippi jury found Wheat guilty of capital murder in 1980 and imposed the death penalty. Wheat's lawyers took a direct appeal to the Mississippi Supreme Court and filed an opening brief before Wheat dismissed them. Based on Wheat's opening brief and the State's response, the Mississippi Supreme Court affirmed the conviction and sentence. Wheat v. State, 420 So.2d 229 (Miss.1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1507, 75 L.Ed.2d 936 (1983). Following the United States Supreme Court's denial of certiorari in the direct appeal, another set of lawyers filed, on Wheat's behalf, a Petition for Leave to File a Writ of Error Coram Nobis with the Mississippi Supreme Court, raising several issues previously raised in the direct appeal and raising several issues not raised in the direct appeal. The court denied the petition on the ground that Mississippi law procedurally barred all the issues raised by Wheat. The court held that Mississippi law barred the issues previously raised because Wheat had previously litigated them and that Mississippi law barred the issues not previously raised because Wheat waived them by not raising them on direct appeal. Wheat v. Thigpen, 431 So.2d 486 (Miss.1983).

After the Mississippi Supreme Court denied his Petition for Leave to File a Writ of Error Coram Nobis, Wheat filed a Petition for Writ of Habeas Corpus with the United States District Court for the Southern District of Mississippi. The district court conditionally granted the writ as to the sentencing phase of the trial, conditioned on Mississippi conducting a new sentencing hearing or deciding to impose a sentence less than death. The district court found no merit to any of Wheat's claims attacking the guilt-innocence phase of the trial and refused to grant the writ as to that portion of the trial. The State appeals the partial conditional grant of the writ of habeas corpus, and Wheat appeals the denial of the writ as to the guilt-innocence phase of his trial.

II.

We address first the State's complaints about the district court's ruling on the sentencing phase of Wheat's state court trial. The court ruled that the prosecutor's closing argument at the sentencing phase of the trial violated the eighth amendment. While the state does not dispute the court's conclusion that the prosecutor's argument violated the eighth amendment, the State argues: (1) that the district court erred in finding that it could reach the eighth amendment question and (2) that the district court erred in not finding that comments made by defense counsel invited the prosecutor's error.

A.

The State argues that the federal district court could not reach the eighth amendment question because Mississippi procedure barred the raising of claims, in a post-conviction proceeding, not previously raised in the direct appeal. The State further argues that its procedural bar rule is entitled to respect as an "independent and adequate state ground" and that the district court violated this principle by reaching the issue raised by the prosecutor's closing argument.

The Supreme Court "has long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power." Francis v. Henderson, 425 U.S. 536, 539, 96 S.Ct. 1708, 1710, 48 L.Ed.2d 149, 152 (1976) (citing Fay v. Noia, 372 U.S. 391, 425-26, 83 S.Ct. 822, 841-42, 9 L.Ed.2d 837 (1963)). One way the Court implements these considerations and concerns is by prohibiting the federal courts from reviewing state decisions grounded on an independent and adequate state ground. An independent and adequate state ground may be a rule either of state substantive law or state procedural law. Henry v. Mississippi, 379 U.S. 443, 446, 85 S.Ct. 564, 566, 13 L.Ed.2d 408, 412 (1965). The Supreme Court has specifically held that a federal court may not review a habeas petitioner's federal claims when the state courts have declined to pass on the claims because of an independent and adequate state procedural ground, absent a showing of cause and prejudice. Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783, 801 (1982); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594, 608 (1977). Thus, a state procedural rule which requires a defendant to raise all his issues for relief on direct appeal will prevent a defendant from raising in federal court issues he did not raise on direct appeal.

Applying Sykes in this setting accrues the dual advantage of discouraging defense attorneys from omitting arguments in preparing appeals with the intent of saving issues for federal habeas corpus consideration and encouraging state appellate courts to enforce state procedural rules strictly, thereby reducing the possibility the federal court will decide the constitutional issue without the benefits of the state's views.

Clark v. Texas, 788 F.2d 309, 310-11 (5th Cir.1986) (quoting Ford v. Strickland, 696 F.2d 804, 816 (11th Cir.) (en banc), cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983)).

There is, however, at least one exception to the rule that a federal court will not reach an issue which the state courts refused to reach due to a procedural default. The Supreme Court has repeatedly stressed that a state procedural rule is not entitled to respect as an adequate and independent state ground unless the procedural rule is "strictly or regularly followed." Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824, 832 (1982); Barr v. City of Columbia, 378 U.S. 146, 149, 84 S.Ct. 1734, 1736, 12 L.Ed.2d 766, 769 (1964); see also James v. Kentucky, 466 U.S. 341, 104 S.Ct. 1830, 80 L.Ed.2d 346, 353 (1984) (only state procedural rules that are "firmly established and regularly followed ... can prevent implementation of federal constitutional rights."). As the Court recently stated "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, 72 L.Ed.2d at 833. Additionally, the state procedural rule must be "clearly announced to defendant and counsel." Henry v. Mississippi, 379 U.S. 443, 448 n. 3, 85 S.Ct. 564, 567 n. 3, 13 L.Ed. 408, 413 n. 3 (1965). If the state does not clearly announce the procedural rule or the state courts do not strictly or regularly follow the procedural rule, then the federal courts may reach the issue the state court refused to address. Barr, 378 U.S. at 149, 84 S.Ct. at 1736, 12 L.Ed.2d at 769.

The State argues that Mississippi procedure prevents a defendant from raising, in a post-conviction proceeding, claims which the defendant did not raise on direct appeal. While Wheat admits that he did not raise the claim concerning the prosecutor's closing argument on direct appeal, he argues that Mississippi procedure, at the time of his appeal, did not prohibit the raising of claims for the first time in a post-conviction proceeding. Wheat further argues that, if Mississippi procedure did prohibit the raising of claims for the first time in a post-conviction proceeding, Mississippi did not strictly or regularly enforce the rule and did not clearly announce the rule to defendants and their counsel. We now turn to the question of whether the procedural bar applied by the Mississippi Supreme Court prevents federal review of Wheat's claim of improper prosecutorial argument.

Post-conviction review in Mississippi historically occurred through use of a writ of error coram nobis, ¹ filed with the Mississippi Supreme Court. While the State cites numerous cases for the proposition that the scope of review on writ of error coram nobis is narrow and that the court will not address issues which could or should have been litigated at trial or on direct appeal, few of the cases are from the twenty-year period preceding Wheat's petition. Additionally, some cases indicate that the court will review constitutional claims on writ of error coram nobis although the defendant did not raise them on direct appeal. ² Furthermore, the practice of the Mississippi Supreme Court indicates that in death penalty cases the court does not consistently follow the narrow scope of review outlined in some of its opinions.

In the years immediately preceding Wheat's appeal the Mississippi Supreme Court routinely reviewed claims made for the first time on writ of error coram nobis. ³ The first case where the court expressly declares that it will not consider claims raised for the first time on writ of error coram nobis is the case involving Wheat's petition. Wheat v. Thigpen, 431 So.2d 486 (...