Williams v. Whitley

• Decision Date: 21 June 1993
• Docket Number: Nos. 92-3361,92-4008,s. 92-3361
• Citation: 994 F.2d 226
• Parties: Larry WILLIAMS, Petitioner-Appellee, v. John P. WHITLEY, Warden, Louisiana State Penitentiary, Respondent-Appellant. John FULFORD, Petitioner-Appellant, v. John P. WHITLEY, Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 226

994 F.2d 226

Larry WILLIAMS, Petitioner-Appellee, v. John P. WHITLEY, Warden, Louisiana State Penitentiary,

Respondent-Appellant.

John FULFORD, Petitioner-Appellant, v. John P. WHITLEY, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

Nos. 92-3361, 92-4008.

United States Court of Appeals, Fifth Circuit.

June 21, 1993.

Order Granting Rehearing En Banc in No. 92-4008 July 20, 1993.

Terry M. Boudreaux, Dorothy A. Pendergast, Asst. Dist. Attys., Gretna, LA, for John P. Whitley in No. 92-3361.

Professor David Gruning, Loyola Law School, New Orleans, LA (Court-appointed), for Larry Williams.

Professor David Gruning, Loyola Law School, New Orleans, LA (Court-appointed), for John Fulford.

Jack Peebles, Asst. Dist. Atty., New Orleans, LA, for John P. Whitley in No. 92-4008.

Appeal from the United States District Court for the Eastern District of Louisiana.

Appeal from the United States District Court for the Western District of Louisiana.

Before WISDOM, ^* GARWOOD, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This consolidated appeal raises an important question concerning the scope of federal habeas corpus, the retroactivity of Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), and Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Petitioners Larry Williams and John Fulford were convicted in Louisiana state court in the early 1970's and are presently serving life sentences in the state penitentiary. They have each filed federal habeas petitions attacking their twenty year-old convictions on grounds that the automatic exemption from jury service granted women under state law at the time of their trials deprived them of their Sixth Amendment right to a trial by a jury venire drawn from a fair cross-section of the community. Williams' and Fulford's appeals were pending before the Louisiana Supreme Court when Louisiana's exclusionary practice was invalidated in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). They did not receive the benefit of Taylor's holding, however, as the Supreme Court one week later declined to give this new rule any retroactive effect. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975).

The Supreme Court abandoned the retroactivity approach employed in Daniel in Griffith and Teague, which together direct courts to apply new rules without exception to all cases pending on direct appeal at the time of the decision. Because Taylor was handed down while their appeals were before the Louisiana Supreme Court, Fulford and Williams maintain that they should be given the benefit of its holding. Put another way, they contend that Griffith 's retroactivity rule is itself retroactive and, properly interpreted, overrules the results obtained under Daniel as well as its rationale; that Griffith not only establishes a new retroactivity test but also upsets every conviction affirmed on the basis of the discarded Daniel approach.

Williams and Fulford rely almost exclusively on Leichman v. Secretary, 939 F.2d 315 (5th Cir.1991), where a prior panel of this court accepted this very argument and granted relief to a similarly situated Louisiana petitioner. As we will explain, we do not find the analysis urged by Williams and Fulford and adopted by the Leichman court to be free of difficulty. We are of course at this stage bound by the decision of the prior panel and, provided the other requirements are met, are bound to grant relief to petitioners presenting this issue.

Only Fulford's claim is properly before us, however. Both Williams and Fulford have filed multiple federal habeas petitions during their twenty years of incarceration. Williams' petition in particular is arguably both successive and an abuse of the writ. Because the Williams' failure to assert new or different grounds for relief was properly raised below, we REVERSE the district court's grant of relief and REMAND with instructions to dismiss his petition. With regard to Fulford, we REVERSE the district court's denial of relief and GRANT the petition for writ of habeas corpus.

I.

Williams' and Fulford's petitions have similarly lengthy procedural histories. At the time of their criminal trials in Louisiana state court the state constitution provided that "no woman shall be drawn for jury service unless she shall have previously filed with the clerk of the District Court a written declaration of her desire to be subject to such service." La. Const., Art. VII, § 41. ¹ As a consequence of this provision, Williams' 1973 conviction on charges of aggravated rape and Fulford's 1972 murder conviction were each obtained after trials before juries selected from an all-male venire.

Williams and Fulford both appealed their convictions. While their cases were pending before the Louisiana Supreme Court, the U.S. Supreme Court struck down Louisiana's automatic exemption for women jurors as violative of defendants' Sixth Amendment rights to a trial by a jury venire drawn from a cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The Court, however, held that Taylor would not be applied retroactively to "convictions obtained by juries empaneled prior to the date of [Taylor ]." Daniel v. Louisiana, 420 U.S. 31, 32, 95 S.Ct. 704, 705, 42 L.Ed.2d 790 (1975). Since Williams and Fulford had been tried before Taylor was decided, the Louisiana Supreme Court affirmed their convictions. State v. Nix, 327 So.2d 301 (La.1975), cert. denied sub nom. Fulford v. Louisiana, 425 U.S. 954, 96 S.Ct. 1732, 48 L.Ed.2d 198 (1976); State v. Williams, 310 So.2d 528 (La.1975).

Fulford's first application for post-conviction relief in Louisiana state court did not include a challenge to the composition of his venire. After the Louisiana Supreme Court affirmed the district court's dismissal of this application, Fulford filed a federal habeas petition in the U.S. District Court for the Western District of Louisiana. This petition advanced eight grounds for relief, but again omitted a Taylor claim. The district court denied Fulford's petition on October 27, 1980. This court vacated and remanded in Fulford v. Maggio, 692 F.2d 354 (5th Cir.1982). After the Supreme Court reversed our remand order, Maggio v. Fulford, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983), we affirmed the district court's denial of relief. Fulford v. Maggio, 715 F.2d 162 (5th Cir.1983). Fulford also failed to assert a Taylor claim in a second federal habeas petition filed in 1985. The district court's denial of relief was affirmed by this court. The Supreme Court once more denied certiorari. Fulford v. Blackburn, 475 U.S. 1088, 106 S.Ct. 1476, 89 L.Ed.2d 730 (1986).

In contrast with Fulford, Williams challenged the exclusion of women from his venire in his first federal habeas petition in the U.S. District Court for the Eastern District of Louisiana. The district court dismissed his petition and this court, citing Daniel, affirmed in an unpublished opinion. Williams v. Louisiana, 611 F.2d 881 (5th Cir.), cert. denied, 447 U.S. 909, 100 S.Ct. 2995, 64 L.Ed.2d 859 (1980). Williams' second federal habeas petition, filed in 1984, did not include a Taylor claim. After the state waived the exhaustion requirement, the district court denied this petition as well. Williams v. Maggio, No. 84-0833 (E.D.La.1984).

In 1987 the Supreme Court overruled some twenty years of retroactivity jurisprudence in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). In applying the test set out in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court in Daniel declined to give Taylor retroactive effect on grounds that the exclusion of women from the venire did not necessarily render the prior trials unfair and that state officials had relied on prior decision permitting this practice in structuring their criminal justice systems. 420 U.S. at 32-33, 95 S.Ct. at 705. The Court in Griffith rejected this particularistic focus on the purpose of the new rule and the state's reliance interests, holding instead that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final." 479 U.S. at 328, 107 S.Ct. at 716 (emphasis added).

Fulford and Williams then renewed their efforts to obtain relief on collateral review. Recognizing that they would have been entitled to new trials had Griffith governed questions of retroactivity at the time Taylor was decided, they asserted they should now be given the benefit of that decision because Griffith had "overruled" Daniel. Fulford filed his second state habeas application in 1987, challenging for the first time the exclusion of women from the jury venire. His petition was again denied. State ex rel. Fulford v. Butler, 526 So.2d 790 (La.1988), cert. denied, 490 U.S. 1082, 109 S.Ct. 2104, 104 L.Ed.2d 665 (1989). Fulford advanced his Taylor claim in a second federal petition in the U.S. District Court for the Western District of Louisiana. The district court dismissed the petition and this court denied a certificate of probable cause. The Supreme Court again denied certiorari. Fulford v. Whitley, 498 U.S. 970, 111 S.Ct. 437, 112 L.Ed.2d 420 (1990).

In Leichman v. Secretary, 939 F.2d 315 (5th Cir.1991), a panel of this court accepted the same Taylor/Griffith argument that Fulford had unsuccessfully pressed. In December 1991, over one and a half years after the district court had first denied his petition, Fulford attempted to gain the benefit of Leichman by filing what he described as a "Motion for Reconsideration of Denial of Writ of Habeas Corpus." The district court denied this motion without opinion. Williams, on the other hand, filed a third habeas petition, reasserting the Taylor claim that...