Murrell Toby Hockenbury, III v. Dewey Sowders, Superintendent, Kentucky State Penitentiary, Respondent

633 F.2d 443, 1980 U.S. App. LEXIS 13596

Opinions

ORDER

A majority of the Court having not voted in favor of an en banc rehearing, the petition for rehearing has been referred to the hearing panel for disposition.

Judge Keith’s dissent from the denial of the rehearing en banc makes several assertions in support of his conclusion that the decision of the panel is incorrect. While the panel believes that the opinion in this case adequately refutes most of the assertions made in the dissent, it feels compelled to respond to one of Judge Keith’s conclusions regarding the application of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

In his dissent Judge Keith opines that if a state’s contemporaneous objection rule, as a matter of state law, permits the state court any exception for manifest injustice or plain trial error, then Wainwright v. Sykes, supra, cannot bar federal review even though the state court in its interpretation of state law applied its contemporaneous objection rule. In view of the number of states with “plain error”, “manifest injustice”, or similar exceptions to their contemporaneous objection rules, Judge Keith’s reasoning would give the Wainwright decision no effect whatsoever. That Wainwright does not permit this conclusion is best illustrated by the Wainwright decision itself, and the law of Florida under which it originated. In Wainwright the Florida courts had refused to consider the merits of the habeas petitioner’s claim because of noncompliance with the state’s contemporaneous objection requirement. The Supreme Court held that the petitioner’s failure to timely object in accordance with the Florida rule amounted to an independent and adequate state ground for the decision. The fact that Florida has a “fundamental error” exception to its contemporaneous objection requirement, Clark v. State, 363 So.2d 331, 333 (Fla.1978) did not convince the Supreme Court that it should undertake an independent review of the petitioner’s claims under the fundamental error standard of review which had been available to the state court. Implicit in the Supreme Court’s opinion in Wainwright is the conclusion that a state may decide when its contemporaneous objection requirement applies. Similar deference is evident in Ulster County Court v. Allen, 442 U.S. 140, 147-154, 99 S.Ct. 2213, 2219-2223, 60 L.Ed.2d 777 (1979), where the Supreme Court made a painstaking attempt to determine whether New York had denied a habeas petitioner’s claim based on an adequate and independent state procedural ground where the state court had been less than explicit in their reasons for rejecting the claim. The Court’s analysis centered on New York’s application of their contemporaneous objection rule and its exceptions; the Court did not seek to make an independent application of the rule without regard to the way in which New York applies its own rule. If Judge Keith’s analysis were correct, then the Supreme Court would have made an independent application of the states’ exceptions to their contemporaneous objection rules in Wainwright, supra, and Ulster County, supra. If, as Judge Keith suggests, the fact that a state could review a claim under a plain error standard, a fundamental error standard, or a manifest injustice standard, gave federal courts the right to review a petitioner’s claim regardless of petitioner’s failure to object at the trial, there would be little or no deference to a state’s decision on the independent procedural ground and the decision in Wainwright would have little or no effect. This Court is not at liberty to construe Supreme Court cases so as to render them totally without effect.

Accordingly, upon consideration of the Court, it is ORDERED that the petition for rehearing be and hereby is DENIED.