Young v. Herring

• Decision Date: 06 November 1990
• Docket Number: No. 89-4095,89-4095
• Citation: 917 F.2d 858
• Parties: Jerry Lynn YOUNG, Petitioner-Appellant, v. Robert HERRING, Lee County Sheriff, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 858

917 F.2d 858

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.

Nov. 6, 1990.

King, Circuit Judge, filed dissenting opinion.

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

Jerry Lynn Young, Parchman, Miss., pro se.

JoAnne M. McLeod, Mike Moore, Atty. Gen., Jackson, Miss., for respondents-appellees.

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

Before POLITZ, KING and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

This case involves the requirement in a habeas corpus proceeding that a due process inquiry is barred only when the highest state court, pursuant to the contemporaneous objection rule, denies relief by a clear and express statement of an independent state ground for decision. The case involves the validity of an in-court identification of the accused. A prior panel of this Court found an independent state ground, although there was no express statement. But that decision was before a recent controlling decision of the United States Supreme Court. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).

We find that neither the "law of the case" doctrine nor a claim of non-retroactivity bars consideration of appellant's Harris v. Reed argument. We then find that the state court failed to conform to the "clear and express statement" requirement of Harris v. Reed to establish an independent and adequate state ground for decision. Finally, we find that the in-court identification testimony was erroneously admitted in violation of appellant's right to due process, and we reverse.

I. Facts and Prior Proceedings

Appellant Jerry Lynn Young was convicted on December 19, 1980, of the armed robbery of the Bank of Mississippi in Tupelo, Mississippi. On March 17, 1980, a man wearing some sort of mask and carrying a sawed-off shotgun robbed the bank. At the time of the robbery, three tellers were present at the scene of the crime. The crime lasted approximately one and one-half to two minutes. The robber forced the tellers to lie face-down on the floor. A Tupelo police officer saw the robber leave the bank and get into his car.

At trial, in anticipation of leniency, Young's alleged accomplices testified that he robbed the bank. Although two of the bank tellers and the police officer gave descriptions of the robber, they could not identify Young as the bank robber. Only the third teller, Barbara Hoard, identified Young in court as the robber. Appellant seeks to challenge the constitutionality of this identification.

According to the record, immediately after the robbery, Hoard described the robber as a white man in his mid-twenties to early thirties, 5'5" to 5'7" tall, 150-60 lbs., with light brown hair and gold-rimmed glasses. She testified that she could describe him because, although she was scared to death, she had raised her head and looked up at the robber while she was lying on the floor. She stated that she could see his glasses, eyes, mouth, the side of his face and his hair through the holes in the stocking he wore over his head. The other tellers and the policeman all testified to the contrary that the robber wore not a stocking but a mask. Despite her detailed description, at that time Hoard could not identify or recognize the robber as either a bank customer or as Young, although she testified that she knew Young by sight as a bank customer. It was not until four or five weeks later that Hoard first identified appellant at a pre-trial photographic identification procedure.

At the time of the photo array procedure, Hoard knew that a "Jerry Lynn Young" was a suspect in the crime. Hoard was shown six photographs. One was a picture of Jerry Young with his name printed on it. He was thirty-seven, gray-haired, clean-shaven and wore glasses. No evidence suggests that he looked any different at the time of the crime. Four of the other five photos were of men in their early twenties; the fifth man also was not close to Jerry Young's age. Only one of the other five men wore glasses, and he had a beard.

At trial, during the prosecution's case-in-chief, Young's counsel moved to strike Hoard's testimony, and moved 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". Young v. Herring, 777 F.2d 198, 200 (5th Cir.1985). The trial court denied the motion. The court did, however, grant defense counsel's motion for production of the photos. They were subsequently produced and introduced in evidence at the close of the case. Defense counsel did not make any more objections to Hoard's identification of Young until after the verdict of guilty was returned by the jury. At that time, the defense moved for a new trial on the ground that Hoard's in-court identification was based on an impermissibly suggestive out-of-court identification. The trial court denied the motion.

Young's direct appeal to the Mississippi Supreme Court challenged these denials. The Mississippi Supreme Court affirmed. It held:

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' in-court identification came after a pretrial photographic identification. Under this circumstance the lower court did not err in ruling the credibility of Mrs. Hoard's identification was for the jury to weigh."

Young v. State, 420 So.2d 1055, 1059 (Miss.1982). Young's motion for rehearing was denied summarily.

Young subsequently filed a pro se petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 in federal district court. The district court found that the admission of the in-court identification testimony had deprived Young of due process and granted the writ. The court did not reach the other claims in his petition.

On appeal, this Court reversed the district court's grant of the writ and remanded for consideration of Young's other claims. Young v. Herring, 777 F.2d 198 (5th Cir.1985). The panel concluded that it was procedurally barred from reviewing appellant's due process claim because the Mississippi Supreme Court had rested its decision upon an independent and adequate state ground. Young apparently had failed to comply with the Mississippi contemporaneous objection rule. Id. at 202-3. The court therefore considered itself barred from reaching Young's constitutional claim under the independent and adequate state ground doctrine. Id. (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). The panel further found that Young could not show sufficient cause and prejudice to excuse his failure to comply with the state procedural rule. Id. at 204. We thus concluded that he did not qualify for the Wainwright v. Sykes "cause and prejudice" exception to the doctrine.

On remand, the district court determined that the "law of the case" doctrine precluded reconsideration of the identification issue. It also found the remainder of appellant Young's claims were without merit and denied the petition. Young appeals.

II. The "Law of the Case" Doctrine

Although the earlier panel held that it was barred under the independent and adequate state ground doctrine from reaching the due process issue, Young asserts that this Court now must reach those claims because the state court failed to comply with the "clear and express statement" requirement recently established in Harris v. Reed, supra. The Court in Harris declared:

a procedural default does not bar consideration of a federal claim on either direct review or habeas review unless the last state court rendering a judgment in the case "clearly and expressly" states that its judgment rests on a state procedural bar. [Citation omitted.]

489 U.S. at 262, 109 S.Ct. at 1043. The Mississippi Supreme Court, the last state court to render judgment in Young's case, did not state clearly and expressly that its judgment relied on Young's failure to comply with the state contemporaneous objection rule. Thus, this Court properly may reach Young's due process claim.

Appellee forcefully argues, however, that the "law of the case" doctrine forecloses any consideration by this Court of appellant's Harris v. Reed argument. It contends that the previous panel already conclusively resolved the issue of the state procedural bar, and that this panel cannot reconsider it.

The "law of the case" doctrine holds that an appellate court decision rendered at one stage of a case constitutes the "law of the case" in all succeeding stages. Knotts v. U.S., 893 F.2d 758 (5th Cir.1990). The doctrine "operates to foreclose reexamination of decided issues either on remand or on a subsequent appeal." Pegues v. Morehouse Parish School Board, 706 F.2d 735, 738 (5th Cir.1983). The scope of the doctrine, however, is limited: it "applies only to issues that were decided in the former proceeding and does not pertain [to] questions that might have been decided but were not." Knotts v. U.S., 893 F.2d at 761 (quoting Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, 1320 (5th Cir.1978)). The doctrine encompasses those issues decided by "necessary implication" as well as those decided explicitly. Knotts v. U.S., 893 F.2d at 761. The doctrine, however, also recognizes three exceptions While the "law of the case" doctrine is not an inexorable command, a decision of a legal issue or issues by an appellate court established the law of the case and must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal in the appellate court, unless the evidence on a subsequent trial was substantially different, controlling authority has since made a...