Williams v. King, Civ. A. No. 83-1120-B.

• Decision Date: 21 October 1983
• Docket Number: Civ. A. No. 83-1120-B.
• Citation: 573 F. Supp. 525
• Parties: Robert Wayne WILLIAMS v. John T. KING, Secretary of the Department of Corrections, State of Louisiana, and Ross Maggio, Warden, State Penitentiary, Angola, Louisiana.
• Court: U.S. District Court — Middle District of Louisiana

573 F. Supp. 525

Robert Wayne WILLIAMS v. John T. KING, Secretary of the Department of Corrections, State of Louisiana, and Ross Maggio, Warden, State Penitentiary, Angola, Louisiana.

Civ. A. No. 83-1120-B.

United States District Court, M.D. Louisiana.

October 21, 1983.

Samuel S. Dalton, Jefferson, La., for plaintiff.

Kay Kirkpatrick, Asst. Dist. Atty., 19th Judicial Dist., Baton Rouge, La., for defendants.

POLOZOLA, District Judge:

Robert Wayne Williams has filed an application for stay of his execution which is scheduled for October 25, 1983, and an application for a writ of habeas corpus. For reasons which follow, the Court hereby denies petitioner's application for a stay of his execution and further denies petitioner's application for a writ of habeas corpus. The Court also finds that petitioner's application is frivolous and without merit, and, therefore, refuses to issue a certificate of probable cause.

I. PROCEDURAL HISTORY OF THE CASE

This is the second time Robert Wayne Williams has filed an application for a stay of execution and for a writ of habeas corpus with this Court. The procedural history of this case is for the most part set forth in the prior opinions rendered by this Court and by the Fifth Circuit Court of Appeals. Williams v. Blackburn, (M.D.La.1981), aff. Williams v. Blackburn, 649 F.2d 1019 (5th Cir.1981), affirmed, rehearing en banc, Williams v. Maggio, 679 F.2d 381 (5th Cir. 1982). Thereafter, the United States Supreme Court denied petitioner's application for a writ of certiorari. Williams v. Maggio, ___ U.S. ___, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983). On July 14, 1983, Justice Brennan stayed the effect of the denial of certiorari. On September 8, 1983, the United States Supreme Court denied petitioner's application for a rehearing of the Court's denial of petitioner's application for a writ of certiorari. Williams v. Maggio, ___ U.S. ___, 104 S.Ct. 38, 77 L.Ed.2d 1456 (1983). Thereafter, Judge Frank Foil of the Nineteenth Judicial District Court for the Parish of East Baton Rouge issued a Warrant of Execution of Person Condemned on September 20, 1983, directing that petitioner be executed on October 25, 1983, between the hours of 12:00 o'clock midnight and 3:00 a.m. Petitioner then filed an application for a writ of habeas corpus with the Nineteenth Judicial District Court raising the very same issues he now urges in the federal application for writ of habeas corpus now pending before this Court. On October 4, 1983, Judge Frank Foil denied petitioner's state court application for writ of habeas corpus. On October 14, 1983, petitioner filed an application for a writ of habeas corpus with the Louisiana Supreme Court together with a request for a stay of execution. The Louisiana Supreme Court unanimously denied petitioner's application for a stay of execution and also unanimously denied petitioner's application for a writ of habeas corpus. Petitioner then filed the pending application for a writ of habeas corpus with the United States District Court for the Middle District of Louisiana. Thus, the Court finds petitioner has exhausted his available state remedies.

II. ISSUES RAISED BY PETITIONER

Petitioner raises four grounds for review in this latest application for a stay of execution and writ of habeas corpus. Petitioner contends that his federally protected rights were violated in the following manner:

(1) The Louisiana Proportionality Review in death penalty cases does not meet constitutional standards, and the review made by the Louisiana Supreme Court is inconsistent and disproportionate under the facts and circumstances of petitioner's case.

(2) The death sentence was imposed as a result of the prosecutor's improper closing argument during the sentencing phase of the trial.

(3) Petitioner's death sentence was improper because the jury was instructed on all responsive verdicts to first degree murder even though there was no evidentiary support for a manslaughter verdict.

(4) Petitioner was deprived of an impartial jury composed of a fair cross section of the community insofar as the guilt or innocence phase of the trial because of the manner the jurors were selected and impanelled.

III. STANDARD OF REVIEW IN A HABEAS CORPUS ACTION

As is previously set forth in this opinion, this is the second application for a writ of habeas corpus filed with this Court. Some thirteen issues were raised in petitioner's first application. An additional four issues are raised in the current application. Without deciding the issue of whether petitioner is guilty of "abuse of the writ" insofar as the filing of successive applications for a writ of habeas corpus is concerned, the Court shall follow the guidelines set forth by the United States Supreme Court in Barefoot v. Estelle, ___ U.S. ___, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) in resolving the issues raised in this latest application. In Barefoot, the Court stated:

"Second and successive federal habeas corpus petitions present a different issue. `To the extent that these involve the danger that a condemned inmate might attempt to use repeated petitions and appeals as a mere delaying tactic, the State has a quite legitimate interest in preventing abuse of the writ.' * * * Rule 9(b) of the Rules Governing § 2254 Cases states that `a second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief... or if the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.' * * * Even where it cannot be concluded that a petition should be dismissed under Rule 9(b), it would be proper for the district court to expedite consideration of the petition. The granting of a stay should reflect the presence of substantial grounds upon which relief might be granted." 103 S.Ct. 3395.

It is clear that "direct appeal is the primary avenue for review of a conviction or sentence, and death penalty cases are no exception." Id., 103 S.Ct. at 3391. Barefoot emphasizes that when a petitioner under imminent threat of execution has alleged a substantial denial of a federal right, he must be afforded an adequate opportunity to present the merits of his argument, and he must receive a considered decision on the merits of his claim. Id. 103 S.Ct. at 3394. Thus, the Court in this case has expedited its consideration of petitioner's allegations. The entire state court record has been filed with this Court. A list of all inmates who have been sentenced to death and are currently housed on Death Row at the Louisiana State Penitentiary at Angola has been obtained by the Court¹ and has been filed in the record, together with the citation of each of the 25 cases for which there is a reported decision by the Louisiana Supreme Court.² The Court has also required the State of Louisiana to file a response to petitioner's application which has also been considered by the Court. The Court has had adequate time and means for rendition of a considered judgment on the merits prior to the scheduled execution date. Id., 103 S.Ct. at 3394. It is clear that whether a stay is granted depends "on the probability of success on the merits," id., 103 S.Ct. at 3392, and stays of execution are not automatic pending the filing and consideration of an appeal to the appellate court or a petition for a writ of certiorari to the Supreme Court. "When the process of direct review — which, if a federal question is involved, includes the right to petition the Supreme Court for a writ of certiorari — comes to an end, a presumption of finality and legality attaches to the conviction and sentence. The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited." Id. 103 S.Ct. at 3391. Petitioner's case has twice been reviewed by the United States Supreme Court, with the latest review having occurred on September 8, 1983. Thus, the Court shall review the merits of each of petitioner's contentions.

IV. PETITIONER'S CONTENTIONS

A. Proportionality Review of Death Sentence

Petitioner first contends that the proportionality review of his death sentence has been conducted in an arbitrary and capricious manner in violation of the Eighth and Fourteenth Amendments to the United States Constitution. More specifically, petitioner contends the Louisiana Supreme Court conducted the proportionality review in his case on a district wide basis, State v. Williams, supra, 383 So.2d at 374-375, while in two other cases, State v. Narcisse, 426 So.2d 118 (La.1983) and State v. Moore, 432 So.2d 209 (La.1983), the Louisiana Supreme Court conducted proportionality reviews on a state wide basis. Petitioner contends that the issue of the nature and scope of proportionality review is presently before the United States Supreme Court. See Harris v. Pulley, 692 F.2d 1189 (9th Cir.1982), cert. granted, ___ U.S. ___, 103 S.Ct. 1425, 75 L.Ed.2d 787 (1983); Autry v. Estelle, ___ U.S. ___, 104 S.Ct. 24, 78 L.Ed.2d 7 (1983). Thus, petitioner argues that a stay of execution be granted pending a decision by the United States Supreme Court in the Pulley case. Petitioner also seeks to have the Court vacate petitioner's death sentence and to order a new sentencing hearing or, alternatively, seeks to have the Court review petitioner's death sentence on a state wide basis. The Court does not believe the Court is required to stay all proceedings herein pending a decision by the United States Supreme Court in the Pulley case. On October 11, 1983, the United States Supreme Court denied petitions for writs of certiorari in two cases from Louisiana which raised the proportionality issue. State v. Lindsey, 428 So.2d 420 (La.1982), writ denied, ___ U.S. ___, 104 S.Ct. 261, 78 L.Ed.2d 246; State v. James, 431 So.2d 399 (La. 1983), writ denied, ___ U.S. ___, 104 S.Ct. 263, 78 L.Ed.2d 247. Furthermore, a new sentence hearing is not required under the facts of this case. W...