REVISED FEBRUARY 20, 2002
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________
No. 00-60547 _____________________
JESSIE DERRELL WILLIAMS,
Petitioner - Appellant,
versus
S.W. PUCKETT, Commissioner, Mississippi Department of Corrections and ATTORNEY GENERAL, STATE OF MISSISSIPPI Respondents - Appellees.
Appeal from the United States District Court for the Southern District of Mississippi ________________________________________________________________ February 13, 2002
Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
On January 11, 1983, Jessie Derrell Williams murdered Karen
Ann Pierce. The killing was gruesome. Pierce likely was alive
when Williams cut out her genitals. He then stabbed her in the
chest and slit her throat. Williams does not dispute that he
murdered Pierce nor does he dispute the manner in which he
committed the murder. After a trial and conviction for capital
murder, a jury sentenced Williams to death. After exhausting his
state remedies, Williams sought habeas relief in federal district
1 court. The district court denied his petition. Williams now seeks
a certificate of appealability (“COA”). Williams argues that his
constitutional rights were violated because (1) there was
insufficient evidence presented to support a kidnaping conviction;
(2) the prosecutor failed to turn over potentially exculpatory
information; and (3) the jury that re-sentenced Williams (after his
first sentence -- but not his conviction -- had been reversed) was
not instructed on the elements of kidnaping. To obtain a COA, the
defendant must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). Williams has not
made such a showing with respect to any of his claims. We
therefore deny his application for a COA.
I
On the night of January 11, 1983, Pierce went with a date to
the Scoreboard Lounge in Gautier, Mississippi. Throughout the
night, Pierce consumed beer and drugs. Her date left the
Scoreboard early in the evening after she refused to go home with
him. Sometime after her date left and before Williams arrived,
Pierce was gang-raped. After the rape, Pierce and the rapists
remained at the bar. Toward the end of the evening, Williams,
Michael Norwood, and Terrell Evans arrived. Evans and Pierce began
talking, and Evans convinced her to go for a ride with Williams,
Norwood, and himself. On the way out of town, they stopped at a
convenience store, bought some beer, and continued on to a secluded
2 spot off Interstate 10. They smoked marijuana and drank beer.
Norwood and Williams proceeded to have sex with Pierce a number of
times in the bed of the truck. During one of the times with
Williams, Pierce asked him to stop. He did not. Pierce then asked
to go back to the Scoreboard to pick up some of her things. The
men refused to take her back to the bar. At some point during the
night, Pierce and Williams exited the truck. Pierce started to run
away from Williams. Williams then tackled her and dragged her into
the woods. After waiting awhile, Evans went searching for Williams
and Pierce. Evans saw Williams with a knife standing over Pierce’s
mangled and cut body. As Evans began to walk away, Williams said
“I am not leaving until I’m sure she is dead.” Fifteen minutes
later, Williams returned to the truck. The three men left the
scene. Ten days later, Pierce’s body was found. Her blood
contained .07 percent alcohol and traces of drugs. The cause of
death was a knife wound. The location of the wound was the area
between Pierce’s vagina and her rectum, a wound inflicted while
Pierce apparently was still alive.
II
In December 1983, a Mississippi jury found Williams guilty of
committing murder during the course of a kidnaping, a capital
murder offense in Mississippi. MISS. CODE ANN. § 94-3-19(2)(e). The
jury sentenced Williams to death. Williams appealed his conviction
and sentence. In this first of several appeals, Williams asserted
3 numerous claims before the Mississippi Supreme Court. On re-
hearing, the court affirmed his conviction but found reversible
error at sentencing when the trial court allowed the prosecutor to
comment on the possibility of parole and the lengthy appellate
review process. The court remanded the case for a new sentencing
hearing. Williams v. State, 544 So.2d 782, 794-802 (Miss. 1987).
At this hearing, a second jury specifically found three aggravating
circumstances that weighed in favor of the death penalty: (1) that
Williams was previously convicted of a felony involving the threat
of violence to a person; (2) that the capital offense was committed
while Williams was engaged in the commission of a kidnaping; and
(3) that the capital murder of Pierce was especially heinous,
atrocious, and cruel. The jury also found that there were no
mitigating circumstances to outweigh the aggravating circumstances.
Accordingly, the second jury, like the first jury, sentenced
Williams to death. Williams directly appealed this sentence. The
Mississippi Supreme Court rejected all of Williams’ claims and
affirmed the sentence of death. Williams then sought relief from
the United States Supreme Court. The Court denied Williams’s
petition for writ of certiorari. Williams v. Mississippi, 520 U.S.
1145 (1997).
While Williams was pursuing these extensive direct appeals, he
was also attacking his conviction collaterally in the state courts.
In January 1990, Williams filed an application with the Mississippi
4 Supreme Court under the Post-Conviction Collateral Relief Act
(“PCCRA”). The application sought to set aside his conviction and
sentence. Williams argued that the state had violated certain
state discovery rules when it withheld information regarding a plea
agreement between the state and Evans, the key witness in this
case. The Mississippi Supreme Court denied the application and
held that Williams was procedurally barred from making this claim
collaterally. Williams v. State, 669 So.2d 44, 52 (Miss. 1996).
In November 1997, Williams filed an application seeking leave to
apply for post-conviction relief a second time, claiming
ineffective assistance of counsel. The Mississippi Supreme Court
denied the application. Williams v. State, 722 So.2d 447 (Miss.
1998).
Williams next turned to the federal courts. In January 1999,
Williams filed a petition for relief in the Southern District of
Mississippi, in which he raised four claims related to the guilt
phase of the trial, six claims related to the sentencing phase of
the trial, and an overarching claim of ineffective assistance of
counsel. The district court denied relief, and Williams sought a
certificate of appealability. The district court denied this
request.
Finally, almost eighteen years after the night Williams killed
and mutilated Pierce, this case comes before us.
III
5 Before turning to the three claims upon which Williams bases
his request for a COA, we will first address the relevant standard
of review. Williams filed his federal petition on January 8, 1999.
The Antiterrorism and Effective Death Penalty Act (AEDPA) became
effective on April 24, 1996. AEDPA therefore governs this case.
As we have previously noted, under AEDPA a petitioner is entitled
to a COA if he makes a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c). To make such a showing
the petitioner must demonstrate that “reasonable jurists could
debate (or for that matter, agree that) the [habeas] petition
should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir.
2000)(quoting Slack v. McDaniel, 529 U.S. 473, 482 (2000)), cert
dismissed, 121 S.Ct. 902 (2001).
Our task in this case is to decide whether the district
court’s assessment of Williams’s constitutional claims is either
debatable or wrong. See Slack, 529 U.S. at 485. The district
court’s assessment of the constitutional claims of state prisoners
in a habeas petition is restricted. Under AEDPA, federal courts
must first decide the contours of clearly established federal law
as determined by the United States Supreme Court, and second,
decide whether the state court’s decision was contrary to -- or
involved an unreasonable application of -- that law. 28 U.S.C. §
6 2254(d)(1).
Just as Section 2254(d)(1) restricts the district court’s
assessment of Williams’s constitutional claims, it also limits our
review in this COA request. We engage in the following “double
barreled” reasonableness inquiry with respect to each
constitutional claim: Is the district court’s determination that
the state court did not unreasonably apply clearly established
federal law debatable among reasonable jurists? See Barrientes,
221 F.3d at 772 (“[T]he determination of whether a COA should issue
must be made by viewing [Williams]’s arguments through the lens of
the deferential scheme laid out in 28 U.S.C. § 2254(d).”).
With this standard of review in mind we will assess, in turn,
Williams’s claims that his constitutional rights were violated
because (1) there was insufficient evidence to support a conviction
for kidnaping; (2) the prosecutor failed to turn over potentially
exculpatory evidence; and (3) the sentencing jury was not
instructed on the elements of kidnaping.
A
Both the state trial court and the Mississippi Supreme Court
found that there was sufficient evidence to support Williams’s
conviction of kidnaping. The district court concluded that this
determination was not contrary to -- and did not involve an
unreasonable application of -- clearly established federal law.
For the following reasons, this holding by the district court is
7 not debatable among reasonable jurists.
Williams’s argument to the district court -- which he re-
asserts in his COA request -- was that the only basis for the
kidnaping conviction is Evans’s testimony that Williams dragged
Pierce into the woods. Williams contends that this testimony is
unreliable because of Evans’s subsequent admission that he was
influenced by threats and promises of the district attorney.1 The
Supreme Court has clearly established the law with respect to a
challenge to the sufficiency of the evidence. In Jackson v.
Virginia, the Court stated:
[T]he critical inquiry on a review of the sufficiency of the evidence to support a criminal conviction must be not
1 Evans recanted the testimony he gave in Williams’s first trial in a 1985 sworn affidavit. In 1990, Evans recanted this recantation. In evaluating the impact of these recantations, the Mississippi Supreme Court found that:
Evans in his 1985 recantation affidavit never stated that he perjured his testimony during the 1983 trial. Nor does Evans claim to have changed his testimony due to any ‘deal.’ He merely states that his testimony was ‘colored.’ Later, in the 1990 sentencing hearing Evans returned to his 1983 trial testimony stating that he had no deal with the prosecution before December of 1983, and that he told the truth back then during the original trial.... Because of these facts, not only is the 1985 recanting testimony of Evans suspicious, it appears untruthful. We hold that it does not undermine the original verdict against Williams.
Williams v. State, 669 So.2d at 54. Williams failed to challenge this determination by the Mississippi Supreme Court in his federal habeas petition. Williams has never asserted, much less proved, that Evans gave perjured testimony. The district court, therefore, did not err in considering Evans’s original testimony when deciding whether the Mississippi Supreme Court unreasonably applied the relevant standard to Williams’s sufficiency of the evidence claim.
8 simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt .... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements beyond a reasonable doubt.
443 U.S. 307, 319 (1979)(citations omitted). The Mississippi
Supreme Court correctly identified this federal law as the
applicable standard when it evaluated Williams’s sufficiency of the
evidence claim. Williams v. State, 544 So.2d at 789.
Under Mississippi law, to prove kidnaping the state must show
that the defendant (1) forcibly seized and confined or (2)
inveigled or kidnaped another, with the intent to cause such a
person either (a) to be secretly confined, or (b) to be deprived of
liberty or in any way held to service against her will. MISS. CODE
ANN. § 97-3-53; Hughes v. State, 401 So.2d 1100, 1105 (Miss. 1981).
In this case, the evidence supporting the kidnaping conviction
is substantial: First, there is Evans’s testimony that he saw
Williams drag Pierce into the woods; second, there is the
undisputed fact that Pierce was high on drugs and drunk on alcohol
on the night in question, which suggests that she might not have
knowingly gone along with the men, that is, she was inveigled;
third, there is the men’s refusal of Pierce’s request to go back to
the bar and retrieve her things; and finally, there is the abused
and mangled condition of Pierce’s body, suggesting a struggle. It
may well be true, as Williams argues, that some evidence suggests
9 a finding against kidnaping, including Pierce’s voluntary sexual
activities with Williams and Norwood and the testimony that Pierce
smoked, laughed, and drank with the men prior to her murder. The
jury, however, weighed the evidence -- as indeed was its
prerogative and duty -- and found that Williams kidnaped Pierce.
The Mississippi Supreme Court held that, viewing the evidence
in the light most favorable to the prosecution, a rational trier of
fact could have found all the elements of kidnaping. The district
court found that this holding was not an unreasonable application
of the Jackson standard. We think that, given the magnitude of the
evidence pointing toward kidnaping, this holding by the district
court is not debatable among reasonable jurists. We therefore deny
Williams’s request for a COA on this claim.
B
The Mississippi Supreme Court found that Williams’s due
process rights were not violated when the prosecutor and trial
judge failed to grant him access to potentially exculpatory
information. The district court held that this finding was not
contrary to, and did not involve an unreasonable application of,
clearly established federal law. We will therefore determine
whether this holding of the district court is debatable among
reasonable jurists.
It is well-settled law that “suppression by the prosecutor of
evidence favorable to an accused ... violates due process where the
10 evidence is material, either to guilt or punishment, irrespective
of the good faith or bad faith of the prosecutor.” Brady v.
Maryland, 373 U.S. 83, 87 (1963). Evidence is material for the
purpose of a Brady violation if “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” United States v.
Bagley, 473 U.S. 667, 678 (1985).
Williams contends that Pierce’s bruised and beaten body was
the result of the gang-rape she endured earlier in the evening.
Based on this contention, Williams argues that because the
prosecutor and the trial court denied him access to the rapists’
statements, he could not develop a defense that showed that the
gang-rape -- as opposed to a struggle with Williams -- caused the
horrific condition of Pierce’s body.
A majority of the Mississippi Supreme Court failed to see how
the jury could have reached a different result, even if Williams
had offered this defense. Williams v. State, 544 So.2d at 792
(“[T]here is no probability, much less a reasonable probability as
required by law, that this material would have altered the outcome
of the trial.”).
In his federal habeas petition, Williams requested an
evidentiary hearing on the issue of the “materiality” of the gang
rape evidence. The district court denied Williams’s request,
holding that the Mississippi Supreme Court had not unreasonably
11 applied the Brady/Bagley standard.
In evaluating “materiality” under the Brady/Bagley standard,
the question is whether there is a reasonable probability that the
jury would have determined that the murder did not occur in the
course of a kidnaping, if the prosecutor had not suppressed the
gang-rape evidence. Aside from the condition of Pierce’s body,
there is still ample evidence of kidnaping: the evidence showed
that Williams tackled Pierce and dragged her into the woods, that
Pierce asked to go back to the bar but Williams refused; and that
Pierce was high and drunk on the night of her murder.
Thus, we are in full agreement with the trial court, the
Mississippi Supreme Court, and the district court that the
statements relating to the gang rape are not material under the
Brady/Bagley standard; that is, even if the prosecutor had revealed
these statements to Williams and Williams had used these statements
in his defense, the jury nevertheless would have found him guilty
of murder during the course of a kidnaping. Accordingly, we find
that the district court’s holding that the Mississippi Supreme
Court reasonably applied federal law with respect to Williams’s
Brady claim is not debatable among reasonable jurists.
C
Finally, we evaluate Williams’s claim that his constitutional
rights were violated because the jury that re-sentenced him was not
instructed on the elements of kidnaping. The Mississippi Supreme
12 Court first found this claim procedurally barred because Williams
had failed to make a contemporaneous objection to the jury charge.
Williams v. State, 684 So.2d 1179, 1189 (Miss. 1996); see also Cole
v. State, 525 So.2d 365, 369 (Miss. 1987)(holding that the
contemporaneous objection rule applies fully in death penalty
cases). In the alternative, the Mississippi Supreme Court
addressed the merits of the claim. It held that Williams was “not
entitled to attempt to prove to the [sentencing] jury that he did
not commit kidnaping [and to allow Williams to do so], would fly in
the face of this Court’s prior affirmance of [his] conviction.” Id
at 1190.
In denying Williams’s federal habeas petition, the district
court addressed the Mississippi Supreme Court’s ruling on the
merits; it did not resolve the claim on the basis of the procedural
bar. The district court found that the failure to give a kidnaping
instruction during a re-sentencing proceeding involving a new
sentencing jury does not amount to a denial of due process.
Consequently, it found that the Mississippi Supreme Court’s
analogous holding was not an unreasonable application of federal
law. We need not address the substance of the claim because it is
clear that the Mississippi Supreme Court correctly applied the
procedural bar. The district court’s decision to deny habeas
relief on this claim is therefore not debatable among reasonable
13 jurists.2
A state court may deny relief on procedural grounds and then
reach the merits of the claim in the alternative. “[A] state court
need not fear reaching the merits of a federal claim in an
alternative holding. By its very definition, the adequate and
independent state-ground doctrine requires the federal courts to
honor a state holding that is a sufficient basis for the state
court judgment, even when the state court also relied on federal
law.” Harris v. Reed, 489 U.S. 255, 264 n.10 (1989). In sum, the
Mississippi Supreme Court’s ruling on the merits need not be
addressed if its invocation of the procedural bar was
constitutionally appropriate.
The Supreme Court has held that procedural bars are cognizable
in habeas cases where (1) there is an independent and adequate
state procedural rule and (2) the petitioner does not demonstrate
both cause for the default and actual prejudice as a result of the
violation of federal law, or demonstrate that a failure to consider
the claims will result in a “miscarriage of justice.” Coleman v.
Johnson, 501 U.S. 722 (1991); Wainwright v. Sykes, 433 U.S. 72, 86
(1977).
2 With respect to each claim in a COA request, we are, in
effect, evaluating the final decision of the district court denying
the habeas petition -- asking whether this decision itself is
debatable among reasonable jurists.
14 Williams argues that the state procedural bar in this case is
inadequate because the Mississippi Supreme Court has applied the
bar in death penalty cases in an inconsistent, almost random,
fashion. In making this argument, Williams bears the “burden of
showing that the state did not strictly or regularly follow a
procedural bar around the time of his direct appeal.” Stokes v.
Anderson, 123 F.3d 858, 860 (5th Cir. 1997)(citations omitted); see
also Johnson v. Mississippi, 486 U.S. 578, 587 (1988)(“A state
procedural rule is not adequate unless it is strictly and regularly
followed.”). Williams must demonstrate that “the state has failed
to apply the procedural bar to claims identical or similar to those
raised by [Williams] himself.” Id. Williams points to one case
only to satisfy this burden -- Hunter v. State, 684 So.2d 625
(Miss. 1996).
In Hunter, the defendant was convicted of murder during the
course of a robbery. At the guilt phase of the trial, the trial
court failed to instruct the jury on the elements of robbery. The
Mississippi Supreme Court found this failure to be a reversible
error -- despite the fact that the defendant had not
contemporaneously objected to the jury charge. Id. at 635.
The defendant’s claim in Hunter substantially differs from the
claim made here. In Hunter, the failure to instruct occurred at
the guilt phase of the trial. It was Hunter’s actual conviction
for capital murder that was at issue. Here, Williams had already
15 been convicted of murder during the course of a kidnaping --
neither the fact of his conviction nor his guilt was in question.
On the other hand, the sentencing jury’s charge was to find -- and
then weigh -- statutorily defined aggravating and mitigating
circumstances. See MISS. CODE ANN. § 99-19-101. In Mississippi, one
of the aggravating circumstances (i.e., aggravators) is kidnaping.
However, unlike a conviction determination, the sentencing jury is
not required to focus on each element of kidnaping, but instead on
weighing the aggravated nature of the kidnaping against the
mitigators. Compare MISS. CODE ANN. § 97-3-53 (defining the elements
of kidnaping for the purpose of a kidnaping conviction) with MISS.
CODE ANN. § 99-19-101 (listing kidnaping in a series of possible
aggravating circumstances); see also Conley v. State, 790 So.2d
773, 794 (Miss. 2001)(interpreting the elements of kidnaping for a
kidnaping conviction). In sum, the two cases are rationally
distinguishable and the Mississippi Supreme Court’s applying the
procedural bar in Williams and not in Hunter is neither random nor
arbitrary. Hunter is therefore inapt, and the procedural bar is
adequate.
Given the procedural bar, for us to reach the merits of the
claim, Williams must show either (1) that there was cause for his
failure to object and prejudice from the failure to consider the
alleged violation of federal law or (2) that there was a
miscarriage of justice when the state court failed to consider the
16 merits of the claim. See Coleman v. Thompson, 501 U.S. 722 (1991).
Williams does not give any reason for his failure to object to
the sentencing jury charge. There is no cause. Furthermore, the
failure to instruct did not prejudice Williams or result in a
miscarriage of justice.
At the sentencing proceeding, the parties vigorously litigated
the kidnaping aggravator. Both parties introduced evidence that
went straight to the question of whether Williams dragged Pierce
into the woods against her will. It is true that the prosecutor
introduced the kidnaping conviction -- admittedly powerful evidence
for the state’s case at the sentencing. The trial court
nevertheless required the sentencing jury to find the kidnaping
aggravator beyond a reasonable doubt.3 The evidence is more than
ample to support the jury’s finding. Consequently, we find no
prejudice or miscarriage of justice here.
Because Williams has not shown (1) that the procedural bar was
inadequate, or (2) that there is a reason for his failure to object
3 Williams also argues that the trial court invoked the principles of collateral estoppel at sentencing and that such a use of estoppel is unconstitutional. The courts are split on the question of whether the use of collateral estoppel against a criminal defendant comports with the right to a jury trial. See United States v. Gallardo-Mendez, 150 F.3d 1240, 1242 n.3 (10th Cir. 1998)(“There is a clear split among our sister circuits that have ruled on the question of whether the government may use the doctrine of collateral estoppel to preclude a criminal defendant from raising an issue adjudicated in a prior criminal proceeding.”). That being said, this case does not involve the application of collateral estoppel against Williams. The trial court did not find the kidnaping aggravator -- as a matter of law -- based on the kidnaping conviction.
17 and further that the failure to object resulted in actual
prejudice, or (3) that the failure to consider these claims
resulted in a miscarriage of justice, we hold that the district
court’s decision denying relief on this claim is not debatable
among reasonable jurists. We therefore deny Williams’s request for
a COA on this claim.
IV
In sum, we hold that Williams has not made a substantial
showing of the denial of a constitutional right with respect to any
of his claims. Williams has not substantiated his claims that (1)
there was insufficient evidence to support the kidnaping
conviction; (2) he was entitled to have the prosecutor turn over
evidence relating to Pierce’s gang-rape; and (3) he was entitled to
have the sentencing jury instructed on the elements of kidnaping.
Williams’s request for a certificate of appealability on each of
these claims is
DENIED.