Billy Honeycutt v. Mr. William B. Mahoney, Superintendent Attorney General of the State of North Carolina

698 F.2d 213, 1983 U.S. App. LEXIS 27657

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 10, 1983
• Docket: 82-6427
• Status: Published

Opinions

K.K. HALL, Circuit Judge:

North Carolina prisoner, Billy Honeycutt, appeals from an order of the district court dismissing his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Finding this appeal to be without merit, we affirm.

I.

Billy Honeycutt was charged with the first degree murder of his wife, Brenda Honeycutt, on June 6, 1973. He pleaded not guilty and was tried in the Superior Court for Duplin County, North Carolina, in October of that year. According to the narrative summary of the trial proceedings, the state presented evidence that Honeycutt and his wife were having marital problems and that, prior to the date of the killing, Honeycutt made statements to at least three individuals indicating that he was going to kill his wife. Thomas Rouse, a friend of the defendant, testified that Honeycutt made one of these threatening statements on the night of June 5, 1973, as Rouse was driving Honeycutt to- his wife’s residence. They arrived there around 12:00 midnight at which time Rouse told Mrs. Honeycutt that he brought her husband there to discuss a reconciliation.

Billy Jean Honeycutt, the defendant’s daughter who was living with her mother at that time, testified that she heard her parents arguing and specifically heard the defendant say to her mother, “If I can’t have you, no other man can.” At that point, she heard Honeycutt open a kitchen drawer and saw him approach her mother. She then observed him pull a butcher knife out of his pants and stab her mother in the back.

The state also offered the testimony of deputy sheriff E.E. Proctor who stated that, when he told Honeycutt that his wife was dead, the defendant responded, “Ha, I’m damn glad of it.” Finally, the state presented Frank Avery, the pathologist who performed the autopsy on the victim. He testified that he found multiple stab wounds in the trunk of the victim, three in the front and two in the back. According to Avery, one of the wounds in the back was three to six inches deep, but the lethal wound was through the chest and right lung, to the spine, approximately six to twelve inches deep.

Honeycutt, testifying on his own behalf, explained that he and his wife had been separated for about three weeks prior to her death and that on the night in question he had gone to her residence to attempt to reconcile their differences. He testified that his wife came at him with a kitchen knife and he struggled with her in an attempt to take it away. However, he did not remember anything from the time he took the knife away from her until the time he saw her lying on the floor in a pool of blood.

At the close of the evidence, the court instructed the jury on the law of first degree murder, second degree murder, and voluntary manslaughter. In so charging the trial judge stated:

Now, if the State proves beyond a reasonable doubt that the defendant intentionally killed Brenda Honeycutt with a deadly weapon, or intentionally inflicted a wound upon Brenda Honeycutt with a deadly weapon that proximately caused her death, the law raises two presumptions.

First, that the killing was unlawful. And second, that it was done with malice.

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In order to reduce the crime to manslaughter the defendant must prove, not beyond a reasonable doubt, but simply to your satisfaction that there was no malice on his part.

The court gave no instruction regarding self-defense. Honeycutt’s attorney made no objection to the instruction regarding the presumptions of unlawfulness and malice nor to the court’s failure to instruct on the law of self-defense. The jury found Honeycutt guilty of first degree murder. On appeal, Honeycutt failed to raise any issue regarding the trial court’s jury charge and his conviction was upheld. He now seeks habeas relief by attacking various aspects of the jury instructions.

II.

In Cole v. Stevenson, 620 F.2d 1055 (4th Cir.) (en banc), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980), a case procedurally similar to the one at bar, this Court, interpreting Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), held that one who fails to comply with North Carolina’s procedural requirements for preserving challenges to jury instructions for direct review¹ is barred from seeking federal habeas corpus relief unless he can show cause for, and prejudice from, his failure to follow the state procedural rules. The issue we are confronted with in this case is whether the failure of Honeycutt’s attorney to except to the judge’s jury instructions or to raise the issues on appeal constitutes “cause” under Cole, so as to permit Honeycutt to raise these issues in the instant petition for federal habeas corpus. Petitioner would have us answer this question affirmatively on the ground that ineffective assistance of counsel should excuse him for failing to preserve his constitutional claims in accordance with North Carolina law.

Honeycutt seeks federal habeas relief arguing that he was denied a constitutionally fair trial because of the trial court’s failure to instruct on self-defense and because of the court’s instruction regarding the presumptions of malice and unlawfulness.² While he concedes that he failed to comply with North Carolina law to preserve these issues, Honeycutt contends that his trial attorney provided ineffective assistance in his failure to properly object. We cannot agree.

First, petitioner argues that, in light of his own testimony, he was entitled to an instruction on self-defense and that his attorney erred in not excepting to the trial court’s failure to so instruct. Under North Carolina law, “[t]o be entitled to an instruction on self-defense, ... [a] defendant ha[s] to present evidence tending to show (1) he was free from fault in the matter, and (2) it was necessary, or reasonably appeared to be necessary, to kill in order to protect himself from death or great bodily harm.” State v. Spaulding, 298 N.C. 149, 257 S.E.2d 391, 394-95 (1979) (emphasis supplied); see also State v. Davis, 289 N.C. 500, 223 S.E.2d 296, 302, death penalty vacated, 429 U.S. 809, 97 S.Ct. 47, 50 L.Ed.2d 69 (1976), and State v. Anderson, 230 N.C. 54, 51 S.E.2d 895, 896 (1949). In the instant case, even when the evidence is viewed in a light most favorable to Honeycutt, State v. Watkins, 283 N.C. 504, 196 S.E.2d 750, 754 (1973), it does not warrant an instruction on self-defense.

Petitioner testified that his wife came after him with a knife, they struggled, and he did not remember anything clearly from the minute he took the knife away until the time he saw her lying on the floor in a pool of blood. Thus, the last thing Honeycutt recalls concerning the struggle was that he had the knife. At that point, however, the victim was unarmed and there was no evidence from which the jury could have inferred that it was necessary, or reasonably appeared necessary, to kill in order for Honeycutt to protect himself from death or great bodily harm. Consequently, even when we consider only the defendant’s testimony, there simply was no basis for a self-defense instruction and, therefore, Honeycutt’s counsel cannot be deemed to have rendered ineffective assistance for failing to take issue with the absence of such an instruction.

The second point raised on this appeal is that petitioner’s trial attorney erred in failing to object to the instruction regarding the presumptions of malice and unlawfulness. These presumptions, to the extent that they shifted the burden of proof to a defendant, were held to violate Fourteenth Amendment Due Process in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) and State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975),³ both of which were decided well over a year after Honeycutt’s trial and initial appeal in this case.⁴ Petitioner contends, however, that the decisions in Mullaney and Hanker-son were foreshadowed by the Supreme Court’s decision in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and by the First Circuit’s decision in Wilbur v. Mullaney, 473 F.2d 943 (1st Cir.1973), vacated, 414 U.S. 1139, 94 S.Ct. 889, 39 L.Ed.2d 96 (1974), order reinstated on remand, 496 F.2d 1303 (1st Cir.1974). Accordingly, he maintains that his trial attorney rendered ineffective assistance by not anticipating Mullaney and Hankerson and excepting to the instruction regarding malice and unlawfulness. Again, we cannot agree.

In Winship, the Supreme Court held that the Due Process Clause requires the state, in order to convict, to prove every element of the crime charged beyond a reasonable doubt. Winship, 397 U.S. at 364, 90 S.Ct. at 1072. An instruction to that effect, however, was clearly given by the trial judge in Honeycutt’s case. Moreover, while Winship indeed provided the touchstone for the eventual decisions in Mullaney and Hanker-son, and while Winship alone would have supported a challenge to the presumptions of malice and unlawfulness, an attorney such as the one which represented Honeycutt can hardly be labeled ineffective for his failure to perceive such an argument. As the Supreme Court recently stated, in holding that a change in the law alone does not constitute cause for a procedural default:

We do not suggest that every astute counsel would have relied on Winship to assert the unconstitutionality of a rule saddling criminal defendants with the burden of proving an affirmative defense. Every trial presents a myriad of possible claims. Counsel might have overlooked or chosen to omit respondents’ due process arguments while pursuing other avenues of defense. We have long recognized, however, that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not ensure that defense counsel will recognize and raise every conceivable constitutional claim.

Engle v. Isaac, 456 U.S. 107, 133, 102 S.Ct. 1558, 1574, 71 L.Ed.2d 783 (1982); see also Henderson v. Jago, 681 F.2d 471, 474 (6th Cir.1982). Therefore, we cannot accept petitioner’s contention that his attorney erred in failing to object on the basis of Winship.

Likewise, we do not hold Honeycutt’s counsel'responsible for not objecting in light of the First Circuit’s decision in Mullaney, 473 F.2d 943. There the First Circuit upheld the ruling of the lower court⁵ that a presumption of malice which acts to shift the burden of proof onto the defendant violates due process. Despite this decision, the instruction given at Honeycutt’s trial regarding malice and unlawfulness was clearly in accordance with the well established rule in North Carolina. See Hankerson, 220 S.E.2d at 584, and State v. Freeman, 275 N.C. 662, 170 S.E.2d 461, 464 (1969). Moreover, neither this Court nor the Supreme Court had yet considered the issue raised in Mullaney. While some may contend that counsel, nevertheless, should have been aware of and raised the recent law of a lone federal circuit court, we simply do not agree that failure to do so is indicative of incompetence. Certainly a criminal defense lawyer in state court is well advised to keep abreast of current trends in the law which may be favorable to his clients. However, we do not believe that failure to raise every issue which might have support from other jurisdictions constitutes ineffective assistance of counsel.⁶

III.

Consequently, for the reasons expressed above, we find that Honeycutt has failed to establish that he suffered from ineffective assistance of counsel at trial and, therefore, hold that he has not met the “cause” requirement of Cole which would entitle him to federal habeas review. Accordingly, the district court’s order dismissing Honeycutt’s petition for federal habeas corpus, is hereby, affirmed.

AFFIRMED.

1 . Although North Carolina now has a contemporaneous objection rule governing challenges to jury instructions, it did not have such a rule at the time of Honeycutt’s trial. As we pointed out in Cole, 620 F.2d at 1057, however, North Carolina Rule of Appellate Procedure 10 did require exceptions to be made after trial in order to preserve the issues for appellate review. Here, Honeycutt neither objected at trial, excepted to the alleged errors after trial, nor otherwise raised the issues on appeal.

2 . Honeycutt also claims that his attorney erred in failing to challenge the court’s characterization of his testimony. Specifically, petitioner contends that he was denied a fair trial by the judge’s statement that the defendant testified that he “grabbed the knife” from his wife. Suffice to say that we see no error in the court’s recounting of Honeycutt’s testimony.

3 . On certiorari, the Supreme Court reversed Hankerson to the extent that the state court refused to give Mullaney retroactive effect. Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977).

4 . Petitioner’s trial was held in October, 1973, and his initial appeal heard during the Spring Term, 1974. Mullaney and Hankerson were not decided until June, 1975, and December, 1975, respectively.

5 . Wilbur v. Robbins, 349 F.Supp. 149 (S.D.Me.1972).

6 . Petitioner’s reliance on Tyler v. Phelps, 622 F.2d 172 (1980), vacated, 643 F.2d 1095 (5th Cir.1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1992, 72 L.Ed.2d 455 (1982), which held that “a lack of knowledge by trial counsel that the actions of the trial judge constituted a due process violation is sufficient cause for failure to object,” is misplaced. Although there, as here, the instruction at issue was found to be unconstitutional under Mullaney, the trial in that case was held after the Supreme Court had decided Mullaney. Id. at 175 n. 4.