Young v. Herring

• Citation: 938 F.2d 543
• Decision Date: 26 July 1991
• Docket Number: No. 89-4095,89-4095
• Parties: Jerry Lynn YOUNG, Petitioner-Appellant, v. Robert HERRING, Lee County Sheriff, et al., Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 543

938 F.2d 543

Jerry Lynn YOUNG, Petitioner-Appellant, v. Robert HERRING, Lee County Sheriff, et al., Respondents-Appellees.

No. 89-4095.

United States Court of Appeals Fifth Circuit.

July 26, 1991.

Professor Henry Gabriel (Court-appointed), New Orleans, La., for petitioner-appellant.

Marvin L. White, Jr., Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, Miss., for respondents-appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before CLARK, Chief Judge, and POLITZ, KING, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

KING, Circuit Judge:

We consider this case en banc in order to determine whether a vaguely worded state court decision rejecting a federal habeas petitioner's constitutional claim must contain a Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), plain statement that it relied upon state law even though the state court decision clearly rested, as two panels of this court concluded, on a state procedural bar. The United States Supreme Court recently resolved this question in Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), in which the Supreme Court held that "the relevant state court decision" must include a Harris plain statement only when it "fairly appear[s] to rest primarily on federal law or [is] interwoven with federal law." Id. Because the relevant state court decision in the instant case rests on an adequate and independent state procedural bar, and does not fairly appear to rest primarily on federal law, we may not review the merits of the federal claim absent a showing of cause and prejudice for the procedural default, or a showing that our failure to review the claim would result in a complete miscarriage of justice. Id. at ----, 111 S.Ct. at 2560-61.

I. BACKGROUND AND PROCEDURE

On March 17, 1980, a man wearing a mask and carrying a sawed-off shotgun robbed the Bank of Mississippi in Tupelo, Mississippi. At trial, one of the tellers, Barbara Hoard (Hoard), identified the petitioner, Jerry Lynn Young (Young), in court as the robber. On cross-examination, Hoard testified that prior to trial the police showed her a six-person photographic array and that she identified Young's photograph as that of the robber. Nothing in Hoard's testimony indicated that this procedure was impermissibly suggestive, and the photographs were not before the court. At the conclusion of Hoard's testimony, the trial recessed for the day.

When trial resumed, Young's attorney moved to strike Hoard's testimony and for a mistrial "on the grounds that Mrs. Hoard made an alleged identification of the defendant from the photograph before she came into court and made an in-court identification." The trial court promptly denied these motions, but granted Young's motion to order the state to produce the six photographs. At the end of the state's case-in-chief, the state produced the photographs, and the photographs were put in evidence with the stipulation that they were shown to Hoard prior to trial; the defense then put on its evidence, and the case was submitted to the jury, which returned a verdict of guilty. Young did not object again to Hoard's identification testimony until after the jury returned its verdict. At that time, Young moved for a new trial for the reason that Hoard based her in-court identification on an impermissibly suggestive out-of-court identification. The trial court denied the motion.

On appeal to the Mississippi Supreme Court, Young asserted that because of the "unduly suggestive pretrial photographic show up," the trial court committed reversible error by overruling his motion to strike Hoard's testimony and for a mistrial. Young v. State, 420 So.2d 1055, 1059 (Miss.1982). ¹ The Mississippi Supreme Court declined to rule on whether the pre-trial identification procedure was unduly suggestive because "Young's motion to strike the testimony and for a mistrial dealt not with an allegation that the in-court identification was gained as the result of a suggestive or improper pre-trial identification procedure, but was on the sole basis that the witness' Young subsequently filed a pro se petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 in the United States District Court for the Northern District of Mississippi. He once again urged that he was deprived of due process of law because Hoard's in-court identification was based upon an impermissibly suggestive pre-trial photographic array. The district court found a due process violation, granted the writ, and the state appealed. Because the district court found the due process violation sufficient to grant the writ, it did not reach other issues in Young's petition. On appeal, a panel of this court reversed, stating:

                in-court identification came after a pre-trial photographic identification." 2   Id. at 1059
                

[Young] does not show adequate cause why he failed to raise the improperly suggestive pre-trial identification process claim during trial, and because his failure to so raise it was the reason the Mississippi Supreme Court refused to grant relief in respect thereto, that claim is not reviewable in a federal habeas proceeding.

* * * * * *

The Mississippi Supreme Court decided that Young did not timely object to the identification procedure, providing an adequate and independent state procedural ground for refusal to consider his due process claim.

Young v. Herring, 777 F.2d 198, 204 (5th Cir.1985) (footnote omitted) (Young I ). The panel remanded for the district court to consider Young's other claims. Id. at 205. On remand, the district court found that the law of the case doctrine precluded reconsideration of the identification issue, that the remainder of Young's claims lacked merit, and denied Young's petition. Young appealed from this decision. Young v. Herring, 917 F.2d 858 (5th Cir.1990) (Young II ). On this second appeal, the panel concluded that the law of the case doctrine did not foreclose review of Young's due process claim because the United States Supreme Court's decision in Harris v. Reed amounted to an intervening change in controlling authority. Id. 917 F.2d at 861-62. The panel decided that the Mississippi Supreme Court's decision was "ambiguous on its face," and concluded that its failure to include a plain statement that it relied upon state law permitted federal habeas review. The panel therefore reached the merits of Young's due process claim, reversed the district court, and granted the writ. ³ Id. at 863-64. We granted rehearing en banc, 925 F.2d 827, and now affirm the district court's denial of Young's petition.

II. ANALYSIS

Because the United States Supreme Court had not yet decided Harris v. Reed, the panel in Young I did not consider whether the Mississippi Supreme Court's failure to include a plain statement permitted federal review of Young's due process claim. Although the law of the case doctrine "operates to foreclose reexamination of decided issues either on remand or on a subsequent appeal," Pegues v. Morehouse Parish School Bd., 706 F.2d 735, 738 (5th Cir.1983), an issue nevertheless may be reexamined if "the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issue[ ], or the decision was clearly erroneous and would work a manifest injustice." White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967). The panel in Young II properly concluded that the Supreme Court's decision in Harris amounted to a change of controlling authority concerning when a federal court may reach the merits of a The Harris decision, however, did not change the law on the question when a state law ground of decision is adequate and independent of federal law, or when a petitioner demonstrates cause and prejudice for failing to comply with a state procedural bar, or when a state court reaches the merits of a federal claim. The panel in Young I determined all of these questions adversely to Young, and these questions may not, and were not, reconsidered under the change in controlling authority exception to the law of the case doctrine. ⁵ The sole issue that we must determine on rehearing, therefore, is whether a state court decision that rests on an adequate and independent state procedural bar, and that does not reach the merits of the petitioner's due process claim, nevertheless may require a plain statement that it relied upon state law in rejecting the federal claim.

state prisoner's federal habeas claim despite a state procedural bar. ⁴

In Harris, the Supreme Court applied the plain statement rule of Michigan v. Long, 463 U.S. 1032, 1040, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983), to federal habeas petitions from state court convictions. The Harris Court explained:

Under Long, if "it fairly appears that the state court rested its decision primarily on federal law," this Court may reach the federal question on review unless the state court's opinion contains a " 'plain statement' that [its] decision rests upon adequate and independent state grounds."

489 U.S. at 261, 109 S.Ct. at 1042 (quoting Long, 463 U.S. at 1042, 103 S.Ct. at 3477) (emphasis added). The Supreme Court determined that the Illinois Appellate Court's decision in Harris was ambiguous because, after making a statement that laid the basis for the imposition of a procedural bar, the court went on to consider and reject the petitioner's federal claim on the merits. Harris, 489 U.S. at 266 & n. 13, 109 S.Ct. at 1045 & n. 13. The Court reasoned that "[i]t is precisely with regard to such an ambiguous reference to state law in the context of clear reliance on federal law that Long permits federal review of the federal issue." Id. at n. 13 (citing Long, 463 U.S. at 1040-41, 103 S.Ct. at 3476-77) (emphasis added). In the instant case, however, no reliance on federal law existed...