IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 88-4790 _____________________
WILLIE ALBERT SMITH,
Petitioner-Appellant,
v.
LEE ROY BLACK, Commissioner, Mississippi Department of Corrections, et al.,
Respondents-Appellees.
_________________________________________________________________ Appeal from the United States District Court for the Southern District of Mississippi _________________________________________________________________ (August 20, 1992)
On Remand from the Supreme Court of the United States
Before POLITZ, Chief Judge, KING and SMITH, Circuit Judges.
KING, Circuit Judge:
The United States Supreme Court has vacated the judgment in
this case and remanded for further consideration in light of
Stringer v. Black, --- U.S. ---, 112 S. Ct. 1130 (1992). The
facts and procedural history are set forth in great detail in the
panel opinion, Smith v. Black, 904 F.2d 950 (5th Cir. 1990), and
we will repeat them here only as necessary for an understanding
of the issues presented on remand.
I. BACKGROUND Smith was convicted of the murder of Shirley Roberts, the
manager of a convenience store in Jackson, Mississippi. The jury
found three aggravating circumstances: the murder was committed
in the course of a robbery, the murder was committed for
pecuniary gain, and the murder was especially heinous, atrocious
and cruel. See Miss. Code Ann. § 99-19-101(5) (1972 & Supp.
1991). After weighing the aggravating circumstances against the
mitigating evidence, see id., the jury returned a death sentence.
The Mississippi Supreme Court affirmed. Smith v. State, 419 So.
2d 563 (Miss. 1982), cert. denied, 460 U.S. 1047 (1983) (Smith
I). Smith next initiated proceedings for post-conviction relief
in the Mississippi Supreme Court. He raised a multitude of
claims, nearly all of which the court found procedurally barred.
Among these were the claim that there was constitutional error at
trial in the jury's use of the "especially heinous, atrocious,
and cruel" aggravating circumstance. The Mississippi Supreme
Court responded to this claim as follows:
At trial there was no objection to the instruction on the aggravating circumstance set forth in Mississippi Code Annotated § 99-19-101(5)(h) as to the heinous, atrocious, or cruel nature of the murder. Likewise, the giving of this instruction was not raised on direct appeal, barring petitioner from raising it in post-conviction proceedings. See Mississippi Supreme Court Rule 42.
Smith v. State, 434 So. 2d 212, 218 (Miss. 1983) (Smith II). The
court denied all relief.
Smith then sought habeas corpus relief in federal court.
The proceedings were stayed for some time while he exhausted
additional state remedies, but eventually the district court
2 denied all relief. Smith v. Thigpen, 689 F. Supp. 644 (S.D.
Miss. 1988). On appeal, we affirmed the district court in its
entirety. Smith v. Black, 904 F.2d 950 (5th Cir. 1990) (Smith
III). One of the claims we rejected was a constitutional
challenge to the jury's use of the "especially heinous"
aggravating circumstance. Smith had based this claim on the
Supreme Court's invalidation in Maynard v. Cartwright, 486 U.S.
356 (1988), of Oklahoma's use of that aggravating circumstance
without a limiting instruction. Smith also argued, in a
supplemental brief, that after Clemons v. Mississippi, 494 U.S.
738 (1990), his death sentence could not be salvaged as a result
of the fact that two valid aggravating circumstances (robbery and
pecuniary gain) remained. The State contended, however, that
Smith could not raise a challenge to the "especially heinous"
circumstance in federal habeas because the Mississippi Supreme
Court, on collateral review, had held it procedurally barred.
Smith III, 904 F.2d at 981.
Although we held against Smith, we relied not on a state
procedural bar, but on Smith's inability under Teague v. Lane,
489 U.S. 288 (1989), to take advantage of the Maynard and Clemons
decisions. Teague, of course, prohibits the application of "new"
rules of constitutional procedure in federal habeas proceedings
unless the rule falls within one of two narrow exceptions. We
determined that the "better practice" was to decide the Teague
retroactivity question before reaching the procedural bar
question. Smith III, 904 F.2d at 982. We then determined that
3 an essential element of Clemons on which Smith relied -- its
rejection of Mississippi's automatic affirmance rule in cases
where at least one valid aggravating circumstance remains -- was
a new rule for purposes of Teague and did not fall within either
of the Teague exceptions. Smith III, 904 F.2d at 983-86.
In Stringer, the Supreme Court unambiguously decided that
Maynard and Clemons did not announce new rules for the purposes
of Teague; hence, the Court vacated the judgment in Smith III.
Our task on remand is not, however, simply to apply Maynard and
Clemons, for the State continues vigorously to advance the
procedural bar as an alternative means of preventing
consideration of the merits of this claim. In addition, Smith
has asked us to consider two issues never before raised in his
briefs.
II. ANALYSIS
A. Procedural Bar of the Aggravating Circumstance Claim
It is by now well-established that federal habeas courts
will not consider claims a petitioner has defaulted in state
court absent a showing of cause for the default and resulting
prejudice, or a showing that failure to consider the claim will
result in a fundamental miscarriage of justice. Murray v.
Carrier, 477 U.S. 478 (1986); Wainwright v. Sykes, 433 U.S. 72
(1977). As this doctrine rests on the notion that a state
court's reliance on a procedural bar functions as an adequate and
independent state ground supporting the judgment, Coleman v.
4 Thompson, --- U.S. ---, 111 S. Ct. 2546, 2554 (1991), federal
courts must first determine whether the state court judgment
rests on state law. In this task we are aided by Harris v. Reed,
489 U.S. 255 (1989), which holds that habeas courts will presume
that there is an independent and adequate state ground when "the
last state court rendering a judgment in the case 'clearly and
expressly' states that its judgment rests on a state procedural
bar." Id. at 263 (internal quotation omitted).
We have little difficulty concluding that the last state
court to consider this claim "clearly and expressly" relied on a
state procedural rule to bar review. In the first post-
conviction proceeding, the Mississippi Supreme Court pointed out
that Smith did not object to the giving of the "especially
heinous" instruction at the sentencing phase and did not raise it
on direct appeal, barring him from raising it in post-conviction
proceedings. (For the sake of clarity, we will refer to these as
the "contemporaneous objection" and "direct appeal" bars,
respectively). For support, the court cited Mississippi Supreme
Court Rule 42. Smith II, 434 So. 2d at 218. Our statement in
Smith III, 904 F.2d at 981, that "[t]he court's opinion is
ambiguous only as to whether it regarded the claim to be barred
independently for failure to object at trial" does not undermine
this conclusion. We were not stating that the state court's
opinion was ambiguous as to whether it relied on federal or state
law, but instead that it was not clear whether the court was
relying on the contemporaneous objection bar or the the direct
5 appeal bar. Regardless of whether its decision rested on trial
or appellate default, it is clear that the court rested
exclusively on state procedural rules and not federal law.
Smith primarily argues that Mississippi's failure
consistently to invoke the contemporaneous objection and direct
appeal bars in cases in which the petitioner defaulted on a
challenge to the "especially heinous" aggravating circumstance
should cause this court to disregard the procedural bars
altogether and reach the merits of the claim. We agree.
A state procedural rule will not function as an adequate and
independent state ground supporting the judgment if it is not
"strictly or regularly followed." Hathorn v. Lovorn, 457 U.S.
255, 262-63 (1982) (citation omitted); see also Johnson v.
Mississippi, 486 U.S. 578, 587 (1988); Wheat v. Thigpen, 793 F.2d
621, 624 (5th Cir. 1986), cert. denied, 480 U.S. 930 (1987).
"State courts may not avoid deciding federal issues by invoking
procedural rules that they do not apply evenhandedly to all
similar claims." Hathorn, 457 U.S. at 263. In Johnson, for
example, the Court, after reviewing a series of state cases,
found that the Mississippi Supreme Court inconsistently applied
the direct appeal bar where the defendant failed on direct appeal
to challenge a conviction that formed the basis for an enhanced
sentence or supported an aggravating circumstance in a capital
sentencing. The Court therefore refused to find the bar an
adequate and independent state ground supporting the state
court's failure to grant relief. Id. at 587. Smith wisely
6 disputes the consistency of both the contemporaneous objection
and direct appeal bars -- wisely, we say, because there is some
ambiguity about which bar the Mississippi Supreme Court invoked.
As to the former, Smith argues that the Mississippi Supreme Court
inconsistently applies the bar in cases involving constitutional
challenges to the "especially heinous" aggravating circumstance,
and as to the latter he argues that this circuit has conclusively
determined that that bar is inadequate when applied at the time
of Smith's collateral review.
We recently had occasion to discuss Mississippi's
contemporaneous objection bar in Wiley v. Puckett, No. 90-1599,
slip op. 6500 (5th Cir. Aug. 5, 1992). There, the petitioner
raised in federal habeas a claim based on Batson v. Kentucky, 476
U.S. 79 (1986), and a claim that the prosecutor made improper
remarks in his closing argument. The petitioner did not lodge
appropriate objections at trial, and the Mississippi Supreme
Court held on collateral review that the claims were procedurally
barred. Wiley v. State, 517 So. 2d 1373, 1378 (Miss. 1987),
cert. denied, 486 U.S. 1036 (1988). We upheld the bar on the
authority of Hill v. Black, 887 F.2d 513 (5th Cir. 1989), vacated
on other grounds, --- U.S. ---, 111 S. Ct. 28 (1990), stating:
In Hill, we found that "the Supreme Court [of Mississippi] regularly applies the contemporaneous objection rule to the cases before it." 887 F.2d at 516. It is true, as Wiley points out, that the Mississippi Supreme Court may disregard the procedural bar rule when plain error exists. But we acknowledged this practice in Hill and did not find that it detracted from the consistency of Mississippi's application of the rule. Hill, 887 F.2d at 516.
7 Wiley, slip op. at 6521 (footnote omitted) (brackets in
original). Wiley and Hill do not require that we defer to the
contemporaneous objection rule in this case, however, because it
is apparent that at the time of Smith's post-conviction review
the Mississippi Supreme Court enforced the rule only sporadically
in cases in which the defendant raised a challenge to the
"especially heinous" aggravating circumstance.
In our original opinion, we recognized that Hill had settled
the question of Mississippi's application of its contemporaneous
objection rule. Smith III, 950 F.2d at 987. However, in a
footnote to the citation of Hill we stated: "Because we decide
that Smith's claim that the 'especially heinous' aggravating
circumstance is unconstitutional [is] precluded by Teague, . . .
we do not separately consider his potentially distinct argument
that Mississippi has not regularly enforced its procedural bars
with regard to such claims." Id. at 987 n.18. We thus
recognized that there might be some classes of claims to which
the contemporaneous objection bar had not been consistently
applied. Now that Teague has no effect here, we must determine
whether constitutional challenges to the "especially heinous"
factor are one of those classes of claims.
We have little trouble finding inconsistent application of
the contemporaneous objection bar in this context. In at least
eight cases spanning a period of time before and after Smith's
collateral review, the Mississippi Supreme Court reached the
merits of a claim based on the "especially heinous" aggravator
8 despite the lack of an objection to the jury instructions.
Washington v. State, 361 So. 2d 61 (Miss. 1978), cert. denied,
441 U.S. 916 (1979); King v. State, 421 So. 2d 1009 (Miss. 1982),
cert. denied, 461 U.S. 919 (1983); Leatherwood v. State, 435 So.
2d 645 (Miss. 1983), cert. denied, 465 U.S. 1984 (1984); Tokman
v. State, 435 So. 2d 664 (Miss. 1983); Irving v. State, 441 So.
2d 846 (Miss. 1983), cert. denied, 467 U.S. 1256 (1984); Billiot
v. State, 454 So. 2d 445 (Miss. 1984), cert. denied, 469 U.S.
1230 (1985); Mhoon v. State, 464 So. 2d 77 (Miss. 1985); Faraga
v. State, 514 So. 2d 295 (Miss. 1987), cert. denied, 487 U.S.
1210 (1988). The State's suggestion that we must look solely to
the Mississippi Supreme Court's application of the rule in post-
conviction review cases misconstrues the rule, for the rule as
written makes no distinction between direct appeals and post-
conviction review proceedings. See Miss. Sup. Ct. Rule 42 ("no
assignment of error based on the giving of an instruction to the
jury will be considered on appeal unless specific objection was
made to the instruction in the trial court. . . .").1 Thus, to
the extent the state court in Smith II relied on the fact that
Smith failed to object at trial, he is not barred from obtaining
1 In 1984, Mississippi enacted the Uniform Post-Conviction Collateral Relief Act, Miss. Code Ann. §§ 99-39-1 et seq. (Supp. 1991). As of April 17, 1984, the default rule for cases on collateral review is found at § 99-39-21(1). See, e.g., Wiley v. State, 517 So. 2d 1373, 1378 (Miss. 1987), cert. denied, 486 U.S. 1036 (1988). Like Supreme Court Rule 42, it provides that failure to raise objections at trial bars further review. As the state court opinion reflects, Supreme Court Rule 42 provided the applicable procedural bar at the time of Smith's post-conviction review.
9 federal review of his challenge to the "especially heinous"
aggravating circumstance.2
Smith also is safe from any bar due to his failure to raise
a challenge to the "especially heinous" aggravator on direct
appeal. We found in Wheat that the Mississippi Supreme Court did
not regularly follow the direct appeal bar at the time of Smith's
direct appeal and post-conviction review. Wheat, 793 F.2d at
626.3 We adhered to this precedent in Reddix v. Thigpen, 805
F.2d 506, 510 (5th Cir. 1986); Edwards v. Scroggy, 849 F.2d 204,
209 n.4 (5th Cir. 1988), cert. denied, 489 U.S. 1059 (1989); and
our earlier opinion in this case, Smith III, 904 F.2d at 971. We
are bound by these decisions, and so hold that to the extent the
state court invoked the direct appeal bar on the "especially
heinous" circumstance claim, Smith is not barred.
Having determined that we may reach the merits of the Eighth
Amendment challenge to the use of the "especially heinous"
aggravating circumstance, we hold that, insofar as the district
court denied habeas relief on this claim, the judgment must be
2 Our statement in Smith III that "[Smith's] clemency [from Mississippi's procedural bar rules] does not extend to claims raised neither at trial nor on direct appeal" does not conflict with our holding. This statement was dicta, as we did not hold in Smith III that any claims were barred for this reason. Moreover, as noted above, footnote 18 (which appears at the end of the sentence after the sentence quoted above) specifically recognizes that there may a distinct argument about Mississippi's enforcement of its procedural bars to challenges to the "especially heinous" aggravating factor. 3 We found that, although the Mississippi Supreme Court announced its intention in 1983 to invoke the direct appeal bar on a regular basis, its failure to do so in a 1985 case rendered application of the rule inconsistent. Wheat, 793 F.2d at 626.
10 vacated and the case remanded to the district court with
instructions to issue the writ of habeas corpus unless the State
of Mississippi initiates appropriate proceedings in state court
within a reasonable time after the issuance of our mandate.
Under Clemons and Maynard, the use of the "especially heinous"
aggravating circumstance without a limiting instruction clearly
was error. Clemons, of course, holds that the death sentence may
be salvaged if the state appellate court eliminated the invalid
aggravating factor and reweighed the remaining valid factors
against the mitigating factors, or if it determined that use of
the invalid factor was harmless beyond a reasonable doubt. But
it is plain that the Mississippi Supreme Court neither reweighed
nor performed harmless error analysis, and the State has not
suggested that it did.4 Should the State elect to initiate
further proceedings in the Mississippi Supreme Court, that court
still has the option of reweighing or performing a harmless error
analysis as those procedures have been defined in Clemons and
Wiley.5
4 This is not surprising, since direct review in this case occurred long before Maynard and Clemons, at a time when the Mississippi Supreme Court consistently rejected all challenges to the "especially heinous" factor. 5 We note that the Mississippi Supreme Court, in post- Clemons cases, has held that state law precludes it from reweighing, but that harmless error analysis is permissible. Clemons v. State, 593 So. 2d 1004 (Miss. 1992) (on remand from the Supreme Court); Shell v. State, 595 So. 2d 1323 (Miss. 1992); Jones v. State, No. 03-DP-601, 1992 WL 124774 (Miss. June 10, 1992); Pinkney v. State, No. 03-DP-761, 1992 WL 146776 (Miss. July 1, 1992); see also Wiley, slip op. at 18-19. However, in none of the four state cases cited above has the Mississippi Supreme Court found the error harmless beyond a reasonable doubt.
11 B. Additional Claims
In his brief on remand, Smith raises two new claims. First,
he argues that Eighth Amendment error occurred when the jury was
instructed that they could consider as aggravating circumstances
the facts that the murder was committed in the course of a
robbery and for pecuniary gain. Second, he contends that his
trial and sentencing were unconstitutionally tainted by
"cumulative error."
The Supreme Court vacated the judgment in this case and
remanded for further consideration in light of Stringer.
Although it is true, as Smith points out, that this court
considered a claim beyond the scope of the Supreme Court's remand
order in Hill v. Black, 920 F.2d 250 (5th Cir. 1990), modified on
other grounds, 932 F.2d 369 (5th Cir. 1991), that claim had been
properly raised in the habeas petition. 920 F.2d at 250. Smith,
however, did not raise either of his two new claims in his
petition for habeas corpus in the district court. Accordingly,
we do not consider them in this appellate proceeding. See
Johnson v. Puckett, 930 F.2d 445, 448 (5th Cir. 1991).
III. CONCLUSION
For the reasons set forth above, the judgment of the
district court is vacated insofar as it holds that there was no
constitutional error in the jury's use of the "especially
heinous, atrocious or cruel" aggravating circumstance. The case
is REMANDED to the district court with instructions to issue the
12 writ of habeas corpus unless the State of Mississippi initiates
appropriate proceedings in state court within a reasonable time
after the issuance of our mandate. In all other respects, the
judgment of the district court is again AFFIRMED.