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James W. HUTCHINS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: To avoid arrest
Number of victims: 3
Date of murder: May 31, 1979
Date of arrest: Next day
Date of birth: March 26, 1929
Victims profile: Roy Huskey, Owen Messersmith, and Pete Peterson (policemen)
Method of murder: Shooting (rifle)
Location: Rutherford County, North Carolina, USA
Status: Executed by lethal injection in North Carolina on March 16, 1984
 
 
 
 
 
 

James W. Hutchins (March 26, 1929 March 16, 1984) was convicted of the murders of Roy Huskey, Owen Messersmith, and Pete Peterson. He was executed at the age of 54 by the State of North Carolina at Central Prison in Raleigh, North Carolina by lethal injection. He became the first person to be executed in North Carolina since 1977 when the death penalty was reinstated.

 
 

James W. Hutchins was sentenced to death for the 1979 murders of two Rutherford County deputies who had responded to a call for help made by his daughter at his residence. He then fled the scene in a vehicle and subsequently murdered a state trooper who pulled him over.

Victims: Roy Husky, Owen Messersmith, Pete Peterson

 
 

Killer of 3 policemen is executed

The New York Times

March 17, 1984, Saturday

James W. Hutchins, convicted of killing three policemen, died quietly by lethal injection today. Sixteen people, eight of them law-enforcement officers, witnessed the execution, the 15th since the Supreme Court dropped its ban on the death penalty in 1976.

 
 

North Carolina man executed in deaths of 3 police officers

The New York Times

March 16, 1984, Friday

James W. Hutchins was executed by lethal injection early this morning for the slayings of three law officers almost five years ago. Gov. James B. Hunt Jr. had refused on Thursday to halt the execution.

 
 

Murderer granted anther stay

The New York Times

January 14, 1984, Saturday

The North Carolina Supreme Court blocked the execution scheduled for today of James W. Hutchins, a 54-year-old tree- trimmer and mechanic convicted of killing three law-enforcement officers in 1979.

 
 

Appeals Judge Stays Execution in N. Carolina

The New York Times

January 13, 1984

Judge J. Dickson Phillips Jr. of the United States Court of Appeals for the Fourth Circuit issued a stay of execution at midnight today for James W. Hutchins, a convicted murderer who had been scheduled to die by injection at 6 A.M. Friday, said Joe Cheshire, one of the defense attorneys.

Judge Phillips' action came after the North Carolina Supreme Court and a Federal judge in Rutherfordton, N.C., rejected appeals to delay the execution. The United States Supreme Court Wednesday voted 7 to 2 to turn down Mr. Hutchins's appeal and to delay the execution.

Mr. Hutchins was convicted in the 1979 rifle slayings of three law enforcement officers in Rutherford County.

 
 

724 F.2d 1425

James W. Hutchins, Appellant,
v.
Sam P. Garrison, Warden Central Prison; and State of North Carolina, Appellees.

No. 83-6642

Federal Circuits, 4th Cir.

December 29, 1983

Before RUSSELL, MURNAGHAN and SPROUSE, Circuit Judges.

MURNAGHAN, Circuit Judge:

This is an appeal from a denial of federal habeas corpus relief under 28 U.S.C. Sec . 2254 to a North Carolina state prisoner who has been convicted of three murders and sentenced to die.1 The petitioner's execution is scheduled for Friday, January 13, 1984.

I. FACTS

On May 31, 1979, the petitioner shot and killed three law enforcement officers in Rutherford County, North Carolina. That the petitioner killed the three officers is not in dispute.

The petitioner was arrested on June 1, 1979, the day following the killings. He was brought before a state district court, found indigent, and counsel, David K. Fox, was appointed to represent him. Ronald Blanchard served as co-counsel with Fox. The petitioner was subsequently indicted by a grand jury for murder with respect to each killing. Prior to trial, the petitioner's motion for a change of venue was allowed and his case was transferred for trial from Rutherford County to McDowell County, North Carolina.

The trial court had denied counsel's request upon appointment that it allow fees for expert psychiatric evaluation of the petitioner. In June of 1979, counsel, at their own expense, promptly retained a psychiatrist, Dr. Codgen, to examine petitioner. "Several weeks" later petitioner's attorneys discovered that Codgen was undergoing domestic difficulties and would be unable to evaluate the petitioner. Counsel then, in early August of 1979, engaged the services of another psychiatrist, Dr. George W. Doss. The state contested counsel's motions to obtain an order allowing Doss to examine Hutchins. There was a one week's delay in the trial court's hearing and granting of the motions. Doss' schedule led to other delays so that Doss was not able to meet with Hutchins until August 28, 1979. Doss prepared a preliminary report and it was received by Hutchins' lawyers on September 6, 1979. Doss stated in the preliminary report that he did not have enough information to be sure, but he felt that Hutchins was suffering from a "paranoid delusional system."

Hutchins was convinced that his lead counsel, Fox, was in collusion with the state on account of Fox's previous employment as an assistant district attorney. Hutchins, on August 16, 1979, requested that his lawyer be discharged. Fox filed a motion requesting that he be allowed to withdraw on the ground that "no meaningful communication" was possible between him and Hutchins. The trial court, with Hutchins' consent, conducted a closed hearing on September 5-6, 1979, to consider the motion. Even though another attorney had volunteered to take the case, the trial court refused to allow counsel to withdraw.

At the September 6, 1979 hearing, counsel informed the state that it was possible Hutchins would raise an insanity defense. The state requested that Hutchins be immediately transferred to the Dorothea Dix Hospital in Raleigh, 210 miles from the place of trial, for evaluation. Hutchins' lawyers did not expect this; however, they did not object to the transfer. The state's request was granted and Hutchins was transferred that same day, September 6, 1979. Counsel Blanchard flew to Raleigh and visited Hutchins once during his stay at Dorothea Dix. Hutchins was not returned from Raleigh until September 14, 1979. Hutchins then refused to cooperate with Dr. Doss, the psychiatrist hired by counsel, when Doss tried to examine him on September 16, 1979. Counsel asked the trial court for a continuance on the first day of trial, September 17, 1979.

Counsel supported its motion for a continuance with the contention that they were unprepared. Unpreparedness supposedly stemmed from two sources: 1) the inability to develop a defense based on insanity; 2) the state's decision to change its theory in two of the killings from premeditation and deliberation to lying in wait. The court questioned counsel about when the trial date of September 17, 1979 had been set. Fox, appearing for Hutchins, said that he knew the state was going to ask for a trial date of September 17, 1979 in early June of that year. The record does not disclose the trial judge's reasons for denial of the motion for a continuance. From the interchange in the trial transcript, however, it can be inferred from the direction of the trial judge's questions that he felt that counsel had adequate time to prepare.

The trial commenced immediately after the denial of counsel's motion for a continuance. Hutchins did not testify at trial; counsel presented no evidence to support the petitioner's only possible defense, insanity. On September 21, 1979, the jury returned verdicts finding the petitioner guilty of first degree murder of two officers and the second degree murder of a third officer. On September 22, 1979, following a sentencing hearing, the jury returned recommendations that the petitioner be punished by death for each of the first degree murders. On that same day, the trial court entered judgments sentencing the petitioner to life imprisonment for the second degree murder and death for each of the two first degree murders.

The North Carolina Supreme Court found no error in the lower court proceedings and affirmed the petitioner's convictions and sentences. State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981).

The petitioner filed a Motion for Appropriate Relief in Rutherford County Superior Court. His motion was denied. The North Carolina Supreme Court denied the petitioner's Writ of Certiorari. A North Carolina superior court then set October 15, 1982 as the time for the execution of the petitioner's death sentences.

On September 24, 1982, Hutchins filed a petition for a writ of habeas corpus and an application for a stay of execution in the United States District Court for the Eastern District of North Carolina. All of the claims raised in the prisoner's federal habeas petition had been exhausted in the North Carolina courts. The federal district court on September 30, 1982 stayed the petitioner's execution.

On December 7, 1982, the petitioner's cause was transferred to the United States District Court for the Western District. Following an evidentiary hearing, the United States District Court for the Western District of North Carolina on July 29, 1983 denied and dismissed the petition for habeas corpus and dissolved the stay of execution entered by the United States District Court for the Eastern District of North Carolina. Wade M. Smith and Roger W. Smith, who have represented Hutchins for no less than 4 years, that is, presumably, in all proceedings since the trial and conviction in September, 1979, appeared in the federal habeas corpus proceedings.

The petitioner filed in the United States District Court for the Western District of North Carolina a timely notice of appeal to this Court, an application for a stay of execution, and an application for a certificate of probable cause to appeal. On September 1, 1983, the district court denied the petitioner's applications.

On October 11, 1983, the petitioner filed an application for a certificate of probable cause and an application for a stay of execution in this Court. We allowed the application for a certificate of probable cause but denied the application for a stay, electing instead to hear the appeal on an expedited basis. Argument took place on December 6, 1983.2 Our decision will have been taken and the parties informed of it sufficiently before January 13, 1984, the date for which execution has been scheduled, to make inappropriate a grant of the requested stay.

II

The review of a death sentence and the conviction upon which it rests is by definition difficult and demanding. It imposes on judges the severest of the tasks assigned to them. "[D]eath is a different kind of punishment from any other which may be imposed in this country." Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (Stevens, J., joined by Stewart and Powell, JJ.). The death penalty raises strong feelings in almost everyone. The members of this Court each hold serious, though perhaps not identical, views about the wisdom and the morality of capital punishment. "Our individual preferences, however, are not the constitutional standard." Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952). It is clear that the states may constitutionally impose death sentences so long as the requirements of due process are met. See Gregg v. Georgia, 428 U.S. 153, 169, 96 S.Ct. 2909, 2923, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Only two Supreme Court justices maintain that capital punishment is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Sullivan v. Wainwright, --- U.S. ---- at ----, 104 S.Ct. 450 at 452, 78 L.Ed.2d 210 (1983) (Brennan, J., dissenting, joined by Marshall, J.).3

At the same time, notwithstanding the fact that the law constitutionally allows imposition of the punishment of death for the crime of murder in appropriate cases, individual sentences of death in specific cases have been unconstitutionally imposed. See e.g., Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Mindful of the heightened scrutiny occasioned by the irrevocability of a death sentence once it has been carried out, and the increased concern brought about because error has occurred in other cases, we have carefully scrutinized all of the issues raised by the petitioner.

III

The petitioner raises eight separate arguments as to why we should reverse the district court's denial of his petition for a writ of habeas corpus. We deal with each argument in the order it has been raised by the petitioner.

A.

The petitioner claims that the district court denied him a full and fair evidentiary hearing. The district court would not allow the petitioner's lawyers to develop evidence that, prior to the date of the killings, there had been confrontations between the petitioner and Huskey, the first officer the petitioner killed. The district court admonished counsel to stick to the issue before the court, ineffective assistance of counsel, and threatened to stop the hearing if counsel did not do so. The petitioner claims that the district court's actions and demeanor intimidated counsel at the habeas hearing and constitute reversible error.

The information counsel sought to present was irrelevant to the petitioner's claims. The petitioner's only viable trial defense was insanity. The fact that the petitioner had earlier had unrelated confrontations with a victim was not itself asserted on appeal or in prior habeas proceedings to have contributed to the creation of constitutional error. It has no bearing on trial counsel's relations with the petitioner, the reasons for the trial court's refusal to grant a continuance, trial counsel's preparedness, or any other issue raised in the habeas petition. The district court did not err when it refused to allow irrelevant evidence to be developed.

The petitioner's brief and his counsel's argument before this Court both stress that the district judge's demeanor intimidated counsel. Just because a judge does not let counsel have his way and resists counsel's repeated attempts to overrule the judge in his own courtroom, does not mean that a judge is intimidating. As in life, in a courtroom a lawyer wins some, and loses some. Petitioner's counsel at the district court level and before this Court is an experienced criminal lawyer. We need not, and do not, accept that he was intimidated by a judge's bark. We rather believe that "intimidation" is here a valiant, if farfetched, argument designed to insure that no stone is left unturned in a noble effort to assist a client in every possible way.

B.

The petitioner claims that his right to counsel, which is guaranteed by the Sixth Amendment to the United States Constitution, was denied because the trial court refused his request that assigned trial counsel be discharged, which request was augmented by trial counsels' motion that they be allowed to withdraw. The gravamen of the petitioner's claim is that there was a lack of meaningful communication between assigned counsel and himself.

Many lower federal courts have said that lack of effective communication between counsel and a criminal defendant amounts to ineffective assistance of counsel. See, e.g., Linton v. Perini, 656 F.2d 207, 212 (6th Cir.1981) ("Basic trust between counsel and defendant is the cornerstone of the adversary system and effective assistance of counsel."); United States v. Williams, 594 F.2d 1258 (9th Cir.1979). Last term, however, the Supreme Court rejected the Ninth Circuit's assertion that the Sixth Amendment guarantees a "meaningful relationship" between an accused and his counsel. Morris v. Slappy, --- U.S. ----, ----, 103 S.Ct. 1610, 1610, 75 L.Ed.2d 610 (1983).

The accused in Morris refused to cooperate or even to speak to counsel, an assistant public defender who was substituting for a colleague who became ill before trial. Even if the holdings of the lower federal court cases survive Morris, we do not believe that, in the case before us, the petitioner was denied assistance of counsel because of a lack of effective communication. The asserted basis for Hutchins' distrust, namely, prior service by Fox as an assistant district attorney may have been genuine. At the same time it was and is inescapably farfetched. The experience would be expected to increase Fox' capabilities. Lawyers regularly turn to defense work after having served as prosecutors, without evidencing the least inclination to pull punches because of the prior experience "at the other table."

One also cannot ignore that, in the particular case of Hutchins, delay for whatever reason was almost certainly to his advantage. The fact of the killings and the further fact that they were premeditated or committed while lying in wait were almost certain to be proved. The effort to develop evidence to establish even the prima facie case necessary to bring insanity before the jury as a defense were meeting with little success. See United States v. Marable, 657 F.2d 75, 76 (4th Cir.1981) ("some evidence" must be introduced to weaken the presumption that a criminal defendant is sane).

Although the petitioner's relations with counsel Fox may have been strained from the start, there is no evidence that petitioner had communication problems with co-counsel Blanchard until trial. The petitioner has not suggested any defect in trial counsels' performance that was the result of their supposed inability to communicate. Even if there was no effective communication, the petitioner has not made any showing of even the possibility of prejudice, a prerequisite for a grant of habeas based on ineffective assistance of counsel.4

C.

The petitioner claims that his right to a public trial was denied when the trial court considered his motion to dismiss counsel and counsel's motion to withdraw in a closed hearing.5 Both counsel and the petitioner requested that the hearing be held in the judge's chambers. The trial judge questioned the petitioner about this. The judge's final question before the hearing was transferred from the courtroom to chambers was:

With regard to a closed court, Mr. Hutchins, do you waive all the provisions of both the State and Federal Constitutions that require courts to be open and public?

The petitioner responded, "Yes sir."

The petitioner raises two separate claims with respect to his asserted right to a trial held fully in public. First, he claims that his Sixth Amendment right to a public trial was denied by the closing of the hearing. Second, he claims that the First Amendment right of the public and press to attend the hearing was denied and that he has standing to raise their claim.

The petitioner's right to a public trial was not denied. A criminal defendant can waive his right to an open trial.6 See Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965). Of course, a waiver of a constitutional right is effective only if it is "an intentional relinquishment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Counsel Blanchard discussed the waiver with the petitioner. The trial court itself advised the petitioner of his right to an open hearing. We believe that the petitioner's assent to a closed hearing was knowing and intelligent. His waiver precludes our considering the merits of the Sixth Amendment issue.7

The petitioner's attempt to overturn his conviction on the ground that the public and press had a First Amendment right to attend the closed hearing must fail for at least two reasons: First, the petitioner cannot rely on the rights of third parties. Second, those third parties do not have a right on the facts of this case.8

A person cannot normally rely on the rights of third parties to defend himself or to bring an issue before a federal court. See McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). The Supreme Court has, it is true, allowed third parties to invoke the rights of others who were not in a position to assert them for themselves. See NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Nevertheless, as they have abundantly proved in like situations, the news media have both the resources and the ability to vindicate their and the public's rights of access to court proceedings. They have not been reluctant to do so.

Even assuming, arguendo, that the petitioner can rely on the First Amendment rights of third parties, his claim must still fail. The Supreme Court has clearly held that a court may close a pretrial hearing to the public to protect a defendant's right to a fair trial. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). The Gannett Court noted that there was no objection to closure by any of the members of the public present when the pretrial hearing was closed. 443 U.S. at 392, 99 S.Ct. at 2911.

The record in the present case does not reveal a contemporaneous objection. The Gannett Court also noted that the trial judge assessed the possible prejudice that the defendants would face if an open hearing were held. 443 U.S. at 392-93, 99 S.Ct. at 2911-12. The trial judge did not make such an explicit assessment in the present case. However, petitioner's counsel said that the reason for asking for a closed hearing was to avoid prejudicial pretrial publicity. The trial court also noted that prior hearings in the case which had been heard by another judge had been closed. We infer from the record that the trial judge's closure of the hearing was motivated by the same reasons that motivated the trial judge in Gannett. Therefore, we believe that third parties could not have mounted a successful challenge to the closing.

D.

The petitioner claims that he was denied effective assistance of counsel because his counsel was unprepared and the trial court refused to grant a continuance. On the day of trial, September 17, 1979, petitioner's attorneys moved for a continuance because they were not prepared. The motion was denied. At trial, petitioner's attorneys offered no evidence. The petitioner claims that he was denied effective assistance of counsel because his attorneys did not have adequate time to prepare his only viable defense, insanity, and the trial court's denial of a continuance was an unconstitutional abuse of discretion.

The North Carolina Supreme Court justified its refusal to overturn the conviction because of the refusal of a continuance on the grounds that counsel did not object to Hutchins' transfer to Raleigh and the trial court did not instruct the jury on theories of lying in wait. See State v. Hutchins, 303 N.C. 321, 343, 279 S.E.2d 788, 802 (1981).

The Supreme Court has repeatedly made clear that the granting of a continuance is within the trial judge's discretion. See Morris v. Slappy, --- U.S. ----, ----, 103 S.Ct. 1610, 1615, 75 L.Ed.2d 610 (1983); Ungar v. Sarafite, 376 U.S. 575, 589-90, 84 S.Ct. 841, 849-50, 11 L.Ed.2d 921 (1964); Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940). In Ungar, the Court said:

There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

376 U.S. at 589, 84 S.Ct. at 849.

We have located no case where the Supreme Court has overturned a conviction because of refusal to grant a continuance. In Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940), the Court said a denial of a continuance was not unconstitutional where a man was indicted on March 21, 1938, for a 1932 murder and trial was held on March 24, 1938. Avery had been uncooperative with his attorneys; none of the people in the community or Avery's relatives could offer information helpful to the defense. Avery was tried, convicted of murder and sentenced to death. The Court justified its decision on the grounds that the trial was in a rural community where counsel could discover information quickly and there was no indication in the record that counsel could have done more had additional time been granted. In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), the Court said denial of a continuance was not unconstitutional where the petitioner had been notified of a Tuesday contempt hearing on the preceding Thursday but did not engage other counsel until Saturday. The Court held that there was not unconstitutionally inadequate time for preparation where the evidence was fresh, the witnesses and evidence readily available, and the hearing revolved about one statement made by Ungar during a recently completed trial. In Morris v. Slappy, --- U.S. ----, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), the Court said that a denial of a continuance was not unconstitutional where counsel was substituted six days before trial for counsel taken ill. The Court was influenced, in part, by counsel's statement to the trial court that he was ready for trial.9 --- U.S. at ----, 103 S.Ct. at 1615.

The Fourth Circuit has, however, on three occasions overturned convictions because of a trial court's refusal to grant a continuance. Two of the cases are inapplicable to the present case. United States v. Evans, 569 F.2d 209 (4th Cir.1978), cert. denied, 435 U.S. 975 , 98 S.Ct. 1624, 56 L.Ed.2d 69 (1979) (counsel appointed on Friday, trial on following Tuesday); Shirley v. North Carolina, 528 F.2d 819 (4th Cir.1975) (trial court refused continuance to allow defendant to procure testimony of a necessary witness, state had already delayed trial 16 months, and state agreed to continuance).

The remaining case, United States v. Walker, 537 F.2d 1192 (4th Cir.1976), is much more similar, in its facts, to the instant case. Walker's attorney made a motion prior to trial for the appointment of a psychiatrist. The court appointed a psychiatrist; he examined Walker for less than thirty minutes a week before trial. Walker's counsel received the psychiatrist's report "a relatively short time before trial."

The report said Walker was competent to stand trial but failed to state any conclusions as to Walker's mental capacity to commit the offense. Also, "shortly before trial" counsel learned of a mental examination of Walker made four years earlier at a hospital. The trial court refused counsel's motion for a continuance made on the morning of trial. No defense of insanity was made because counsel did not have sufficient information upon which to base such a defense. The Court held that Walker's right to a fair trial was violated because his counsel was deprived of an adequate opportunity to determine the existence of an insanity defense. 537 F.2d at 1194. The Court made that holding despite the fact that there was no indication during the trial that Walker may have been insane and the fact that Walker had no history of psychiatric disorders. The Court remanded the case to the district court with directions to appoint a psychiatrist to determine whether there existed a substantial question as to Walker's criminal responsibility. On the condition that such a question be proved to be present, the Court ordered a retrial. Otherwise, the judgment was to be affirmed. 537 F.2d at 1196.

Walker is distinguishable from the present case, however, in several significant respects. First, counsel for Hutchins was appointed over three months before trial and had a full opportunity to develop an insanity defense. In Walker's case, however, the opinion is silent as to how long before trial counsel began to represent Walker. It is not unlikely that he had an insufficient period of time in which to develop the possibility of an insanity defense. Cf. United States v. Sellers, 658 F.2d 230, 231 (4th Cir.1981) (no need for continuance where pro se defendant had over three months to prepare for trial even though prison restrictions and conditions imposed on him may have made trial preparation difficult). Second, the psychiatrist's report in Hutchins' case was received eleven days before trial. In Walker's case, the interval was described imprecisely as "relatively short" but was certainly less than one week. Third, but by no means least, an attempt by the psychiatrist to examine Hutchins on the day before trial was frustrated by Hutchins himself. No parallel occurrence took place in Walker's case.

Fourth, even if the facts of this case were exactly like those of Walker, it must be borne in mind that Walker involved a direct appeal within the federal system, not a habeas corpus case where we are asked to interfere with a considered state court judgment on the grounds that it was constitutionally defective. On the constitutional issue it is of imperative importance that the petitioner has not shown in any concrete way that he was prejudiced by the denial of the continuance. Even in a direct appeal situation, we, in a case subsequent to Walker, have held:

We must be reluctant to find arbitrariness in the exercise of trial court discretion [to grant or deny a continuance] based upon no more than post-hoc assertions by counsel that given more time something might have turned up.

United States v. Badwan, 624 F.2d 1228, 1231 (4th Cir.1980). We are especially reluctant to find such arbitrariness in a habeas review.10

The petitioner has not even shown the mere possibility of prejudice because his continuance was denied. The story as to the killings and the circumstances surrounding them was all too clear. Hence, insanity remained the one last hope for the accused. The psychological report on the petitioner compiled at Dorothea Dix Hospital in September 1979 stated: "at the time in question, Mr. Hutchins was aware of the nature and quality of his actions and the difference in right and wrong."11

Dr. Doss, the psychiatrist hired by petitioner's counsel, testified at the habeas hearing in the district court that although he felt that the Dorothea Dix report was incomplete he agreed with it. Doss also testified that he would not have been able to examine the petitioner properly until he had established a relationship with Hutchins. Doss said it may have taken weeks or more to establish such a relationship. Or, it may never have been established. Four years have passed since trial. No effort has been made during that interval to determine whether the petitioner did not have the requisite mental state to commit the crimes of which he stands convicted.

The petitioner also raises the argument that he would not have been sentenced to die, even if he had been convicted of murder, if the continuance had been granted and his counsel had been able to develop mitigating psychological evidence. Dr. Doss did testify during petitioner's sentencing hearing.12 The jury found that the petitioner was suffering from emotional disturbance at the time of the murders. However, the jury also found that the mitigating factor so established was outweighed by three aggravating factors present.13 The petitioner has simply not demonstrated in any way whatsoever that the jury would have given greater weight to his emotional disturbance if he had been granted a continuance.

Were we sitting in the trial judge's place on September 17, 1979, we perhaps would have granted a continuance. However, trial court discretion would mean nothing if we were to grant habeas relief simply because our view differs from the trial court's view. Factors were here present permitting a decision either way. The present case is in some respects reminiscent of United States v. MacDonald, 688 F.2d 224, 236 (4th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983) ("For all those considerations, my view is that the testimony should have been admitted. But it would read out of the law the concept of trial court discretion were courts of appeals to label as 'abuse of discretion' any action by a district court with which the appellate court disagrees. Accordingly, I do not regard it proper to dissent." Murnaghan, J., concurring).

E.

The petitioner claims that the imposition of the death penalty in this case is a violation of the Eighth Amendment's prohibition of cruel and unusual punishment because the jury found that the petitioner was suffering from emotional disturbance at the time of the murders. The petitioner presented testimony from Dr. Doss during the sentencing hearing. Doss testified that the petitioner was suffering from paranoid psychosis. The jury found, as a mitigating factor, that Hutchins was suffering from emotional disturbance at the time of the murders. However, the jury also found this mitigating factor was outweighed by three aggravating factors--the murders were committed for the purpose of avoiding arrest, were committed against law enforcement officers while engaged in official duties and were part of a course of conduct including violence against other persons.

The petitioner argues that the jury's finding coupled with Dr. Doss' testimony shows that the petitioner did not possess the level of mens rea necessary to allow a constitutionally permissible imposition of the death penalty. The petitioner did not contend at trial that he lacked the requisite mental state to be convicted of murder. And, we have found that no error infects the petitioner's murder conviction. Petitioner is arguing, in essence, that a different, increased mens rea is required for imposition of the death penalty than for the conviction standing alone of first degree murder where the condemned person actually committed the killings. Petitioner cites no case that supports his proposition. Nor are we aware of any that do so.14

The mere fact that the jury found that the petitioner committed the murders while suffering from emotional distress does not make the imposition of death unconstitutional. In the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Georgia passed a death statute that required a jury to weigh mitigating and aggravating factors before imposing a death sentence. The Supreme Court found Georgia's statute to be constitutional in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). North Carolina, like many other states, after Gregg, passed statutes similar to Georgia's. North Carolina's statute envisions the jury's balancing of mitigating and aggravating factors. See N.C.Gen.Stat. Sec. 15A-2000. The jury in Hutchins' case weighed the factors and found that the aggravating factors favoring death outweighed the mitigating factors disfavoring death. It is not our job to usurp the jury's function by putting our thumb on one side of the scale or the other. See Eddings v. Oklahoma, 455 U.S. 104, 117, 102 S.Ct. 869, 877, 71 L.Ed.2d 1 (1982).15

F.

The petitioner claims that he was denied effective assistance of counsel, which is guaranteed by the Sixth Amendment, because trial counsel did not permit him to testify and failed to interview witnesses. The petitioner's claims that counsel did not visit him enough and did not interview witnesses are groundless. The record shows that counsel spent literally hundreds of hours preparing for trial. Counsel interviewed every potential witness named by the petitioner except for a person who could not be located.

Petitioner claims Fox, his lead counsel, threatened to withdraw from the case if he testified. Fox denies the threat. Fox did not want the petitioner to testify because Fox feared that the state would bring up the petitioner's prior voluntary manslaughter conviction and two convictions of assault by pointing a gun. The district court found Fox's testimony to be credible and concluded that counsel did not coerce or exert undue pressure on the petitioner not to testify. The district court's finding is supported by the record; it is not clearly erroneous. See Fed.R.Civ.P. 52(a) ("Findings of fact shall not be set aside unless clearly erroneous....").

Counsel's advice not to testify is a paradigm of the type of tactical decision that cannot be challenged as evidence of ineffective assistance. See Marzullo v. Maryland, 561 F.2d 540, 544-45 (4th Cir.1977).

G.

The petitioner claims that the trial court erred because it failed to tell the jury that it could consider the defendant's clean criminal record as a mitigating factor at the sentencing hearing.

"[N]o significant history of prior criminal activity" is an enumerated mitigating factor in North Carolina's death statute. N.C.Gen.Stat. Sec. 15A-2000(F)(1). Neither party requested that the trial court specifically mention the consideration to the jury; the trial court did not mention it. The record in no way supports a conclusion that the petitioner was prevented from presenting mitigating evidence of this sort. Cf. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (trial judge cannot refuse to consider certain types of mitigating evidence); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (state statute cannot limit types of mitigating evidence cognizable by sentencer). If any error was made, it was an error of state law which is not cognizable by a federal court. See Barfield v. Harris, 719 F.2d 58 (4th Cir.1983).16

H.

The petitioner's final claim is that he was not permitted to offer full and complete evidence of his good character during his sentencing hearing. The trial court sustained several objections to the testimony of the petitioner's character witnesses when they strayed from community reputation to personal opinion or individual incidents.

"Normally, the admissibility of evidence ... in state trials [is a matter] of state law and procedure not involving federal constitutional issues." Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960), cert. denied, 362 U.S. 917 , 80 S.Ct. 670, 4 L.Ed.2d 738 (1960). However, the Supreme Court has been very sensitive to any impediment to the consideration of any type of mitigating evidence in a death sentencing hearing. See Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 608, 98 S.Ct. 2954, 2966, 57 L.Ed.2d 973 (1978). The Eleventh Circuit has considered those opinions very carefully and concluded:

These cases establish that, subject only to the loose evidentiary requirement of relevance, capital defendants have a right to offer any evidence they choose on character or record or circumstances of the offense.

Stanley v. Zant, 697 F.2d 955, 960 (11th Cir.1983).

We have carefully examined the transcript of the character witnesses' testimony. It appears to us that the trial court only sustained evidentiary objections to the testimony when witnesses roamed away from the subject before the court--the petitioner's character. The petitioner has not shown how the excluded testimony would have been relevant. If we held on the record before us that the trial court's rulings were unconstitutional, we would, in effect, be saying that no rules of evidence can constitutionally be applied to a defendant's case during a capital sentencing hearing.

We find no indication that Eddings and Lockett preempt all state rules of evidence. Both cases speak about types of evidence, not evidentiary rules. Stanley's dictum, which we believe interprets Eddings and Lockett very broadly, nevertheless supports our belief that a trial court may, and perhaps should, exclude irrelevant testimony during a death sentencing hearing. Thus, we hold that the trial court's evidentiary rulings were not unconstitutional.

IV

Thus we have concluded that merit has not been shown to exist in any of the claims advanced by the petitioner. Nevertheless, we have given each claim careful consideration because of the special gravity of the punishment the petitioner is to receive. Unfortunately for the petitioner, there is no constitutional error present in this case.

The district court's denial of a writ of habeas corpus is affirmed. The mandate of this Court shall issue forthwith.

*****

1 The petitioner was convicted of first degree murder for the killing of two law enforcement officers. He was sentenced to die for each of the first degree murders. The petitioner was also convicted of second degree murder for the killing of a third law enforcement officer. He was sentenced to life imprisonment for the second degree murder

2 We ordered that the petitioner's brief be filed by November 25, 1983, that the respondent's brief be filed by December 2, 1983 and that the case be set for oral argument on December 6, 1983. Although the schedule is shorter than customarily is the case, it was sufficiently long for the parties to file well researched briefs and supporting records. We are satisfied that we have had sufficient time to study and research the issues in the case before reaching our decision

This is consequently an appeal on the merits of the prisoner's petition for a writ of habeas corpus. The petitioner has been afforded an opportunity to address the merits and our decision is on the merits. Cf. Barefoot v. Estelle, --- U.S. ----, ----, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983) ("If an appeal is not frivolous, a court of appeals may still choose to expedite briefing and hearing the merits of all or of selected cases in which a stay of a death sentence has been requested, provided that counsel has adequate opportunity to address the merits and knows that he is expected to do so.").

Subsequent to oral argument, the appellees filed a motion for leave to file a supplemental appendix consisting of two exhibits and one pretrial order referred to during the argument which had been entered or admitted at the criminal trial or at the habeas corpus evidentiary hearing. We hereby grant the appellees' motion and include the exhibits in the record on appeal.

3 We are acutely aware that scholars continue to debate whether capital punishment is constitutional. See, e.g., R. Berger, Death Penalties: The Supreme Court's Obstacle Course (1982); H. Bedau, The Death Penalty in America (3d ed. 1982). We are not, however, free to address, on the basis of our own beliefs or preferences that question. Rather it is the interpretation by a majority of the Supreme Court of the Constitution that controls

4 The courts of appeal are in disagreement as to the type of prejudice that a criminal defendant must show in order successfully to attack a conviction. Compare United States v. Decoster, 624 F.2d 196, 206 (D.C.Cir.1976) (likelihood of prejudice), with Washington v. Strickland, 693 F.2d 1243 (5th Cir.1982), cert. granted, --- U.S. ----, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983) (actual prejudice). We have deferred deciding the very issue until after the Supreme Court decides Strickland. See Kelly v. Warden, House of Correction, 701 F.2d 311 (4th Cir.1983). However, we are sure that a person claiming ineffective assistance of counsel must show some type of prejudice. The petitioner in this case has utterly failed to do so

5 A court reporter was present throughout the entire closed hearing. The reporter's transcript is in the record

6 Pretrial proceedings, such as the hearing relating to dismissal or withdrawal of counsel in the petitioner's case, have not traditionally been as open as trials, themselves. Gannett Co. v. DePasquale, 443 U.S. 368, 387, 99 S.Ct. 2898, 2909, 61 L.Ed.2d 608 (1979). Gannett implies that a criminal defendant may waive any right he may have to an open hearing

7 We note that the petitioner claims that the hearing was closed in order to intimidate him to be happy with his counsel. The record indicates that counsel's motive was to avoid damaging pretrial publicity. The case was newsworthy. It had already been transferred from one county to another to guard against the potential ill effect of publicity. The transcript shows that, regardless of suspicions or concerns felt personally by the petitioner, the petitioner simply was not intimidated in the closed hearing

8 The petitioner's third party claim may also be moot. The hearing has already been held and a transcript of it is available for public inspection. See, however, Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973) (injury is "capable of repetition, yet evading review" because of its short duration). See also Gannett Co. v. DePasquale, 443 U.S. 368, 377, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979)

9 Cf. Sykes v. Virginia, 364 F.2d 314 (4th Cir.1966) (continuance denial upheld--irrelevant that lawyer said he was unprepared)

10 Reluctance can, of course, be overcome in an appropriate case. See Shirley v. North Carolina, 528 F.2d 819 (4th Cir.1975). See also Lee v. Winston, 717 F.2d 888 (4th Cir.1983). In Lee we ruled that a federal court was not bound in a 42 U.S.C. Sec . 1983 action by a prior state court ruling adverse to a person's claim of right where the state court arbitrarily and unfairly denied the person a continuance, resulting in prejudice. Lee's counsel was informed of changed medical circumstances, which were the center of a previously denied motion, on October 18, 1982. The following day counsel moved for a rehearing and the state court ordered that the hearing on the motion be held two days hence. When the appointed day arrived, counsel asked for a continuance because he had not been able, despite diligent effort, to obtain an independent review of the medical record. Counsel's request was denied. Counsel in the present case were aware of the petitioner's potential insanity defense from the day they accepted the case and the psychiatrist's report on the petitioner was received eleven days before trial

11 North Carolina follows the rule of M'Naghten's Case, 8 Eng.Rep. 718 (1843) on the test to be applied for the defense of insanity

12 His testimony, however, is not preserved in the record

13 The crimes were committed a) to avoid arrest, b) against law enforcement officers on duty and c) involved violence against others

14 The petitioner does cite Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) to support his proposition. Enmund held that the Eighth Amendment does not permit "imposition of the death penalty on a person who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." 458 U.S. at 797, 102 S.Ct. at 3376-77, 73 L.Ed.2d at 1151-52. Enmund was an accomplice in a robbery. While he was in a car, Enmund's co-participants robbed and killed an elderly couple. The Court said: "[Enmund's] punishment must be tailored to his personal responsibility and moral guilt." 458 U.S. at 801, 102 S.Ct. at 3378, 73 L.Ed.2d at 1154. We do not interpret Enmund to require any special mens rea for the imposition of death on a person who actually committed a killing and was convicted of first degree murder. Hutchins, in stark contrast to Enmund, specifically intended, and accomplished, the deaths of the victims

15 Although no Supreme Court case expressly deals with the issue of whether it is unconstitutional to execute a person who was operating under emotional distress, several cases imply that such a person may legally be executed. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869, 876, 71 L.Ed.2d 1 (1982) ("In some cases, such evidence [of a difficult family history and of emotional disturbance] properly may be given little weight."); Richmond v. Arizona, 434 U.S. 1323, 1325, 98 S.Ct. 8, 9, 54 L.Ed.2d 34 (1977) (Rehnquist, Circuit Justice) (denied stay of execution where "[t]he only mitigating ground apparently suggested by applicant before the Arizona courts was psychological testimony characterizing applicant as a sociopath.")

Indeed, in common parlance, it is fair to say that every, or nearly every, murderer was to some extent emotionally disturbed.

16 We note that Hutchins was convicted of manslaughter in 1955 and of two assaults at undeterminable dates. Whether evidence of those convictions would have been barred by North Carolina law to undercut a "no significant history of prior criminal activity" assertion by Hutchins is not mentioned by counsel. The fact that the petitioner has in fact been convicted of crimes in the past is hence to be treated as irrelevant to our holding on the issue and has been disregarded by us in concluding that no constitutionally significant error occurred

 
 

U.S. Supreme Court

WOODARD v. HUTCHINS, 464 U.S. 377 (1984)

464 U.S. 377

WOODARD, SECRETARY OF CORRECTIONS OF NORTH CAROLINA, ET AL.
v.
HUTCHINS

ON APPLICATION TO VACATE STAY

No. A-557.

Decided January 13, 1984

Held:

An application to vacate an order of a Circuit Judge of the United States Court of Appeals for the Fourth Circuit staying respondent's execution is granted.

Application to vacate stay granted.

PER CURIAM.

This matter comes to the Court on the application of the State of North Carolina to vacate an order of a single Circuit Judge of the United States Court of Appeals for the Fourth Circuit, granting, at 12:05 a. m. today, respondent's application for a stay of execution. Circuit Judge Phillips had jurisdiction to consider respondent's application pursuant to 28 U.S.C. 1651; accordingly, this Court has jurisdiction to consider the State's application. A transcript of Judge Phillips' opinion is before the Court. The application to vacate the stay of execution entered today, January 13, 1984, by Circuit Judge Phillips, was presented to the Chief Justice and by him referred to the Court.

The application to vacate said stay is granted.

    It is so ordered.

*****

JUSTICE POWELL, joined by THE CHIEF JUSTICE and JUSTICE BLACKMUN, JUSTICE REHNQUIST, and JUSTICE O'CONNOR, concurring.

Unlike JUSTICES WHITE and STEVENS, I do not believe that under the circumstances of this case the District Court was obligated to rule on this successive petition for writ of habeas corpus.

This is another capital case in which a last-minute application for a stay of execution and a new petition for habeas corpus relief have been filed with no explanation as to why the claims were not raised earlier or why they were not all raised in one petition. It is another example of abuse of the writ. 1  

On September 21, 1979, a jury convicted James Hutchins of two counts of first-degree murder and one count of murder in the second degree. He was sentenced to death. It is not denied that he deliberately murdered three policemen. After exhausting his state remedies, on September 24, 1982, Hutchins filed his first petition for federal habeas corpus in the United States District Court for the Western District of North Carolina. This was denied after an evidentiary hearing, and the United States Court of Appeals for the Fourth Circuit affirmed in a full opinion. Hutchins v. Garrison, 724 F.2d 1425 (1983). On January 4, 1984, Hutchins filed a petition for certiorari with this Court seeking review of that decision.

Hutchins raised three claims in this habeas petition: (i) that his Sixth Amendment right to effective assistance of counsel had been denied because of a breakdown in communications with his court-appointed counsel; (ii) that the state trial court abused its discretion in denying defense counsel's motion for a continuance; and (iii) that imposition of the death penalty in his case was unconstitutional because the Eighth Amendment prohibits capital punishment of a person who is "mentally or emotionally distressed" at the time of the crime. This Court, after careful consideration, denied certiorari on January 11, 1984. Post, p. 1065. That same day Hutchins began anew his quest for postconviction relief, raising claims previously not raised.

After both the North Carolina trial court and the North Carolina Supreme Court denied Hutchins' new claims for postconviction relief, he filed a second petition in District Court on January 12, 1984. 2 This raised three new claims: that he had new evidence of his alleged insanity at the time of the crime; that he had evidence that he currently is insane; and that the jury selection process was unconstitutional. Hutchins offers no explanation for having failed to raise these claims in his first petition for habeas corpus, and I see none. Successive petitions for habeas corpus that raise claims deliberately withheld from prior petitions constitute an abuse of the writ. 3  

Title 28 U.S.C. 2244 makes clear the power of the federal courts to eliminate the unnecessary burden placed on them by successive habeas applications by state prisoners. It provides:

    "(b) When after an evidentiary hearing on the merits . . . [a federal court or federal judge has denied a petition for federal habeas corpus], a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States . . . unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ."

See also 28 U.S.C. 2254 Rule 9(b).

This case is a clear example of the abuse of the writ that 2244(b) was intended to eliminate. All three of Hutchins' claims could and should have been raised in his first petition for federal habeas corpus. The new evidence that Hutchins offers to support his claim that he was insane at the time of the crime is the report of a forensic psychiatrist prepared after a January 2, 1984, psychiatric examination. Hutchins, convicted some four years ago, and frequently before courts during the intervening years, does not explain why this examination was not conducted earlier. 4 He does not claim that his alleged insanity is a recent development. In light of his claim that he also was insane at the time of the crime, such an assertion would be implausible. Finally, Hutchins does not explain why he failed to include his challenge to the jury selection in his prior habeas petition.

A pattern seems to be developing in capital cases of multiple review in which claims that could have been presented years ago are brought forward - often in a piecemeal fashion - only after the execution date is set or becomes imminent. Federal courts should not continue to tolerate - even in capital cases - this type of abuse of the writ of habeas corpus.

*****

Footnotes

[ Footnote 1 ] It would have been preferable had the District Court stated expressly that it would not entertain this successive petition because it constituted an abuse of the writ. Nevertheless, it is clear that the petition in this case was an abuse.

[ Footnote 2 ] See the per curiam opinion of this Court, ante, p. 377, vacating the stay entered by Judge Phillips for the procedural posture of the case here.

[ Footnote 3 ] There is no affirmative evidence that the claims were deliberately withheld. But Hutchins has had counsel through the various phases of this case, and no explanation has been made as to why they were not raised until the very eve of the execution date.

[ Footnote 4 ] Hutchins' case has been reviewed by at least seven courts, including this Court, and more than 25 judges.

*****

JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR joins, concurring.

Unlike our Brothers WHITE and STEVENS, we believe that the District Court is not obligated to rule on every 11th-hour petition for habeas corpus before it denies a stay. But assuming that the merits of the Witherspoon aspect of Judge Phillips' order granting the stay are necessarily before us, we find that nothing in the material presented by respondent would show that the particular jurors who sat in his case were "less than neutral with respect to guilt." Witherspoon v. Illinois, 391 U.S. 510, 520 , n. 18 (1968). Absent such a showing, there can be no claim that respondent was denied this aspect of his right to a fair and impartial jury under the Sixth and Fourteenth Amendments, or that he would be subject to cruel and unusual punishment under the Eighth and Fourteenth Amendments.

*****

JUSTICE BRENNAN, dissenting.

I find the Court's decision to vacate the stay of execution in this case simply incomprehensible. The stay was granted early this morning, at 12:05, by Judge James Dickson Phillips of the United States Court of Appeals for the Fourth Circuit. Judge Phillips correctly decided that a stay was necessary in order to preserve a substantial issue raised by the condemned prisoner, James Hutchins. That issue - whether the exclusion for cause of potential jurors unequivocally opposed to the death penalty resulted in a biased jury during the guilt phase of the trial proceedings against Hutchins - is currently the subject of a conflict between judges of the District Court for the Western District of North Carolina and remains undecided by this Court.

As the Court recognizes, Judge Phillips had jurisdiction over this case. * Late yesterday, Hutchins filed a petition for a writ of habeas corpus and an application for a stay of execution in the court of District Judge Woodrow W. Jones. Chief Judge Jones, however, acted only to deny the application, leaving in limbo Hutchins' petition for habeas corpus. After taking this action, Chief Judge Jones apparently went home. As a result, when Hutchins approached Judge Phillips for relief, Judge Phillips was faced with an application to stay the execution scheduled to take place within a matter of hours, appended to which was a copy of Hutchins' petition for habeas corpus that had been left undecided by the District Court.

Judge Phillips, knowing that a petition for a writ of habeas corpus was then pending in the District Court, and would not be decided before Hutchins' execution, correctly issued the stay to preserve the issue noted above. As JUSTICE WHITE and JUSTICE STEVENS note, the stay was properly issued to allow the District Court to act on the habeas petition. In addition, under 28 U.S.C. 2241, it was appropriate for Judge Phillips to treat the papers filed with him as an independent petition for a writ of habeas corpus, refer that petition to the District Court, and grant a stay under 28 U.S.C. 2251 pending decision by the District Court. See also All Writs Act, 28 U.S.C. 1651.

Despite its holding that Judge Phillips had jurisdiction to issue the stay, the Court has inexplicably concluded that Judge Phillips improperly exercised that jurisdiction. A stay issued by a lower court, however, should be vacated only upon a showing that issuance of the stay was an abuse of discretion. Far from being an abuse of discretion, the action of Judge Phillips was eminently reasonable and correct. Not only is there at least one other federal judge in Judge Phillips' own Circuit who has ruled favorably on the merits of this question, see Keeten v. Garrison, 578 F. Supp. 1164 (WDNC 1984), and at least one District Court in Arkansas that has reached a similar conclusion, see Grigsby v. Mabry, 569 F. Supp. 1273 (ED Ark. 1983), appeal pending, No. 83-2113 (CA8, filed Aug. 8, 1983), but also this Court itself has recognized the potential validity of the claim. See, e. g., Witherspoon v. Illinois, 391 U.S. 510, 516 -518 (1968); Bumper v. North Carolina, 391 U.S. 543, 545 , and nn. 5, 6 (1968). See also Winick, Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis, 81 Mich. L. Rev. 1 (1982).

Finally, the State argues that Hutchins should pursue state-court remedies in light of yesterday's Keeten decision. While this obviously is not the basis of the Court's vacation of the stay, this in any event is a literal impossibility given the 6 p. m. deadline for execution. Indeed, in light of the constraints imposed on our deliberations by that deadline, the most disturbing aspect of the Court's decision is its indefensible - and unexplained - rush to judgment. When a life is at stake, the process that produces this result is surely insensitive, if not ghoulish.

I dissent.

[ Footnote * ] As JUSTICE MARSHALL points out, the Court's zealous efforts to reimpose Hutchins' execution at the last minute may therefore be futile. North Carolina's death penalty statute requires that a new date of execution be set once a stay of execution, issued by a court of competent jurisdiction, is terminated. N.C. Gen. Stat. 15-194 (1983). As we have noted, the Court holds that Judge Phillips had jurisdiction to issue his stay. It thus appears that the North Carolina statute is applicable and will require that Hutchins' execution be postponed.

*****

JUSTICE WHITE and JUSTICE STEVENS, dissenting.

We would not vacate the stay because the District Court did not pass on the merits of the habeas corpus petition and the stay was entered by a Court of Appeals Judge until the District Court performs its duty and acts on the habeas petition. Until the merits of the petition are addressed below or it is there held that there has been abuse of the writ, we would leave the stay in effect. That is the orderly procedure it seems to us. It also seems to us that the Court's opaque per curiam opinion vacating the stay comes very close to a holding that a second petition for habeas corpus should be considered as an abuse of the writ and for that reason need not be otherwise addressed on the merits. We are not now prepared to accept such a per se rule.

*****

JUSTICE MARSHALL, dissenting.

At 12:05 a. m. today, Judge James Dickson Phillips of the United States Court of Appeals for the Fourth Circuit granted respondent Hutchins' application for a stay of execution. Less than an hour after the stay was issued, attorneys from the North Carolina Attorney General's Office filed in this Court a 3 1/2-page, handwritten application to vacate Judge Phillips' stay. Without taking time to consider the basis of Judge Phillips' stay - indeed without waiting to receive the final draft of Judge Phillips' memorandum opinion - the Court has granted the application, apparently so that North Carolina can proceed with Hutchins' execution before his death warrant expires at 6 o'clock this evening. Given the posture of this application and the dire consequences of error, I find the Court's haste outrageous.

Without any explanation, the Court takes the position that Judge Phillips somehow erred in granting a stay of Hutchins' execution. 1 As JUSTICE BRENNAN has shown, ante, at 382, Judge Phillips' decision to grant the stay was a prudent exercise of authority taken by a federal judge under serious time constraints and dealing with considerable uncertainty. What is incredible about this Court's decision is that five Members of the Court have voted to vacate Judge Phillips' stay without even reading his opinion 2 or fully considering respondent's defense of the stay. Indeed, at the present time, the Court does not even have before it a full record of the case. 3 In all candor, if there is abuse of federal power in this matter, it is to be found in our own Chambers.

Ironically, the Court's zealous efforts to authorize Hutchins' execution at the last minute may be futile. The North Carolina death penalty statute apparently requires that a new date of execution must be set whenever a stay of execution is issued and then vacated. 4 N.C. Gen. Stat. 15-194 (1983). Since Judge Phillips indisputably issued a stay of execution and the Court now vacates the stay, North Carolina law would seem to require that a new date of execution now be set. 5 Of course, the meaning of this provision is a question of North Carolina law, and is therefore to be decided by North Carolina courts. I trust, however, that the responsible North Carolina officials will consider whether Hutchins has a valid claim under this provision before the State proceeds with Hutchins' execution.

I dissent.

*****

[ Footnote 1 ] Much of the State's application involves a challenge to Judge Phillips' jurisdiction and an argument that Hutchins is procedurally barred from raising his juror-bias claim in federal court. The majority apparently agrees with respondent that these threshold claims are insubstantial.

[ Footnote 2 ] Early this morning, the Court received over the telephone a short summary of Judge Phillips' decision, which the Clerk's Office transcribed. That brief, preliminary draft concluded with the statement, "I will say roughly the foregoing in a very short memorandum opinion that I will file tomorrow."

[ Footnote 3 ] In addition to the State's handwritten application, the Court has received over the course of the day Hutchins' response to the State's application and supplemental handwritten papers from both parties. Although respondent has filed various briefs that he presented to other courts in this litigation, neither party has filed a complete transcript of the trial court voir dire, at which the deprivation of Hutchins' constitutional rights allegedly took place.

[ Footnote 4 ] The relevant statute reads: "Whenever . . . a stay of execution granted by any competent judicial tribunal . . . has expired or been terminated, . . . a hearing shall be held in a superior court . . . to fix a new date for the execution of the original sentence. . . . The judge shall set the date of execution for not less than 60 days nor more than 90 days from the date of the hearing." N.C. Gen. Stat. 15-194 (1983) (emphasis added). The majority's per curiam clearly concludes that Judge Phillips was a competent judicial tribunal with jurisdiction to issue a stay. See n. 1, supra.

[ Footnote 5 ] Common decency demands such a postponement, especially since, under North Carolina law, Hutchins must already have been notified of his reprieve by Judge Phillips. See N.C. Gen. Stat. 15-193 (1983).

 
 

730 F.2d 953

James W. Hutchins, Appellant,
v.
James
C. Woodard, Secretary of Corrections of State of North Carolina; Nathan Rice, Warden of Central Prison, Raleigh, North Carolina; and Rufus L. Edmisten, Attorney General Of State of North Carolina, Appellees

United States Court of Appeals, Fourth Circuit.

Argued March 9, 1984.
Decided March 13, 1984

Before PHILLIPS, MURNAGHAN, and SPROUSE, Circuit Judges.

MURNAGHAN, Circuit Judge:

We have to consider another of those heartrending cases in which a death sentence has been imposed and execution is imminent. As is all too customary, at the last, or nearly the last, moment, questions which counsel for the person condemned automatically classify as crucial are raised and advanced as grounds for a stay of execution to permit reasoned and unhurried consideration.

Judges regard themselves as merciful, and recognize that the quality of mercy should not be strained in so sympathetic a situation. Certainly, the situation merits description as crucial. We have, all too literally, to deal with a matter of life or death. At the same time, we as judges are charged with upholding and enforcing the law. We simply are not here persuaded that deferral of the punishment which, under the present condition of the law, the State is entitled to exact, is necessary or appropriate.

On September 21, 1979, a jury found James W. Hutchins guilty of first degree murder of two law enforcement officers and of second degree murder of a third such officer. On September 22, 1979, following a hearing as to whether or not the sentence should carry the death penalty in the case of the two convictions for first degree murder, the same jury1 recommended imposition of a death sentence. In the selection process, five potential jurors had been successfully challenged for cause on the grounds that they could not under any circumstances vote to impose the death penalty.

Hutchins' direct appeal was unsuccessful, the North Carolina Supreme Court, on July 8, 1981, having filed its opinion affirming the conviction. State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981). A motion for appropriate relief in the Superior Court of McDowell County, North Carolina, a writ of certiorari to the North Carolina Supreme Court, a federal habeas corpus proceeding initiated in the United States District Court for the Eastern District of North Carolina (but transferred to the United States District Court for the Western District of North Carolina), an appeal to this Court (Hutchins v. Garrison, 724 F.2d 1425 (4th Cir.1983)), and an application for stay of execution and petition for writ of certiorari to the Supreme Court of the United States (Hutchins v. Garrison, --- U.S. ----, 104 S.Ct. 750, 79 L.Ed.2d 207 (1984)) were all attempted on Hutchins' behalf. None was successful.

With execution fixed for January 13, 1984, one might have supposed that recourse to the courts was over. However, the supposition would be ill-founded. Zealous counsel on January 11, 1984 filed another motion for appropriate relief in the Superior Court of McDowell County. The motion asserted, as two of its grounds, new evidence, namely an opinion of a psychiatrist that Hutchins was insane then and now (i.e., then, when the crimes were committed so that his convictions were improper, and now, when execution was to occur, foreclosing the imposition of the sentence). Yet, the claim of insanity had been a prominent issue throughout the post-conviction court proceedings.

We are content that the motion seeking appropriate relief on those grounds, raised at so late a date, and providing only the opinion of one more expert, pretty clearly constituted abuse of the writ, and certainly did not justify a determination that there was probable cause for success on Hutchins' part. Insanity vel non is not simply ascertained by head count of the experts, and the evidence that Hutchins was sane, then and now, was sufficient to put the matter to rest, immune from so late, and, in all probability, unnecessarily repetitive, attack on the convictions. We dismiss the petition insofar as those two related grounds are concerned since the district judge certainly did not exceed his discretionary powers in finding that the ensuing petition to a federal district court for a writ of habeas corpus constituted an abuse of the writ.2 If called upon to do so, we should also deny a certificate of probable cause. See 28 U.S.C. Sec. 2253.

Neither at the trial, nor in any of the post-conviction proceedings through the time up to and including the action of the Supreme Court on January 11, 1984, however, was the third assertion contained in the January 11, 1984 motion for appropriate relief made: that Hutchins was unconstitutionally deprived of a fair trial because potential jurors who expressed a flat and unyielding opposition, by reason of conscientious objections, to imposition of the death penalty were systematically excluded (i.e., such an opposition was allowed as a grounds for striking for cause by the prosecution) from the jury that convicted Hutchins on September 21, 1979.3

That third ground which, judging from the course pursued at oral argument on March 9, 1984, appears to be the principal one relied on by Hutchins and his counsel, therefore, brings other considerations into play. To appreciate them requires us to turn to a recounting of further court developments. The motion for appropriate relief on January 11, 1984 was denied in the Superior Court on January 12, 1984, and, on the same day, review and a request for a stay of execution were denied by the North Carolina Supreme Court.

Next came the petition for a writ of habeas corpus and application for a stay of execution filed in the United States District Court for the Western District of North Carolina. The requested stay was denied on January 12, 1984 by that Court, without the merits of the petition being reached. Predictably, there followed an application to this Court. A single member of the Court, in the beginning hour of January 13, 1984 (execution having been set to occur at as early as 6:00 a.m. and no later than 6:00 p.m. on that day) granted a stay of execution to permit whatever consideration of the petition for a writ of habeas corpus was appropriate. That stay of execution, promptly appealed by the State of North Carolina to the Supreme Court of the United States, was vacated by the Supreme Court on the very same day, January 13, 1984. Woodard v. Hutchins, --- U.S. ----, 104 S.Ct. 752, 78 L.Ed.2d 541 (1984).4

Justice Powell, speaking for a majority of the Court, expressed, on January 13, 1984, the opinion that the petition, the denial of which we now review, was successive and constituted an abuse of the writ. He perceived no explanation for the failure earlier to raise the contentions relied on to support the petition of January 12, 1984, and succinctly concluded: "I see none." Justice Powell was of the unmistakable persuasion that "[a]ll three of Hutchins' claims could and should have been raised in his first petition for federal habeas corpus." He pointed out that there were some four years during which to develop psychiatric evidence and that there was no suggestion (which would have been implausible in any event) that the alleged insanity was of recent development. Justice Powell observed: "Finally, Hutchins does not explain why he failed to include his challenge to the jury selection in his prior habeas petition."

While the opinion of Justice Powell makes no specific reference to an opinion of Judge James B. McMillan in Keeten, et al. v. Garrison, 578 F.Supp. 1164 (W.D.N.C.1984), entered at approximately 7:00 p.m. on January 12, 1984, the decision manifestly was present before Justice Powell in view of the reference to the very case by Justice Brennan in his dissent from the decision of January 13, 1984 holding that the January 12, 1984 petition was an abuse of the writ. See --- U.S. ----, 104 S.Ct. 754-755, 78 L.Ed.2d 541 (1984):

Not only is there at least one other federal judge in Judge Phillips' own circuit who has ruled favorably on the merits of this question, see Avery v. Hamilton, [578 F.Supp. 1164] (WD NC 1984), and at least one District Court in Arkansas that has reached a similar conclusion, see Grigsby v. Mabry, 569 F.Supp. 1273 (ED Ark.1983), appeal pending, No. 83-2113 (CA8 filed Aug. 8, 1983), but also this Court itself has recognzied the potential validity of the claim. See, e.g., Witherspoon v. Illinois, 391 U.S. 510, 516-518 [88 S.Ct. 1770, 1774-1775, 20 L.Ed.2d 776] (1968); Bumper v. North Carolina, 391 U.S. 543, 545, and nn. 5-6 [88 S.Ct. 1788, 1789, and nn. 5-6, 20 L.Ed.2d 797] (1968).

The Avery decision is one of those jointly considered by Judge McMillan in his Keeten opinion.

In interpreting the significance of Justice Powell's decision of January 13, 1984, we must bear in mind that, on the subject of materiality or indicia of possible success, he was addressing not only the argument that the exclusion for cause of potential jurors unequivocally opposed to the death penalty resulted in trial before a non-representative jury during the guilt phase. Rather, he also took a stand, for the majority, in the awareness that two respected United States District Judges, one from the Western District of North Carolina, had given vitality to the argument through expressing themselves, in formal opinions, in a manner favorable to Hutchins' position. At the very minimum, therefore, Justice Powell had conferred upon the conviction and sentence a presumption of finality and legality. Barefoot v. Estelle, --- U.S. ----, ----, 103 S.Ct. 3383, 3390-91, 77 L.Ed.2d 1090 (1983).

As to the argument in and of itself, if the opinion of Judge McMillan is laid to one side, there are arguments, unanswerable as we view them, dooming to failure the attempt to obtain a writ of habeas corpus.

First, counsel for Hutchins freely admit that:

1) One of their number, Roger W. Smith, in two prior cases decided in 1979 had raised the very same argument without success.5

2) The sociological data on which Judge McMillan, and in large measure Judge Eisele in Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983), appeal pending, 11th Cir. No. 83-2113, relied in coming to their conclusion that an unconstitutional trial takes place when, for the guilt phase, in a first degree murder case, potential jurors are excused for cause if unequivocally opposed to the death penalty was fully available to counsel for Hutchins no later than September, 1983, as part of the public record in the Keeten consolidated cases.6 Since Judge Eisele had already issued his opinion in Grigsby v. Mabry, on August 5, 1983, the existence of the contention and the fact that it had secured the support of one federal district judge were matters of which Hutchins, through his counsel, was clearly chargeable with knowledge.

3) Indeed, insofar as the underlying sociological data is concerned, it considerably antedates 1983 in its availability to Hutchins, ranging in date from 1964 through 1968, 1970 (2 items), 1971, 1979 (4 items), 1980 (2 items) and 1981 (3 items).

Second, we, as a panel of the court, are bound to give controlling precedential effect to earlier decisions of the Court, absent a clear and sufficient reason not to do so. In Barfield v. Harris, 719 F.2d 58 (4th Cir.1983), the Court had before it the very contention relied on now by Hutchins and unequivocally ruled against the contention. In the opinion of the District Court, Barfield v. Harris, 540 F.Supp. 451 (E.D.N.C.1982), Chief Judge Franklin T. Dupree, Jr. specifically held against the contention that excusing for cause in a capital case of potential jurors who stated that they could under no circumstances vote to impose the death penalty violates a defendant's right to an impartial jury drawn from a representative cross-section of the community, and that the trial was fair and suffered no constitutional impediment.7

When Barfield v. Harris reached this Court, while the death qualified jury issue was specifically raised, the Court did not regard it as necessitating particular comment. It simply dealt with the contention in an all-embracing fashion, stating:

Numerous other contentions are advanced on Mrs. Barfield's behalf, but all of these other contentions were more than adequately handled by the district judge in his opinion, Barfield v. Harris, 540 F.Supp. 451 (E.D.N.C.1982). As to those contentions, we affirm for the reasons stated by the district judge.

719 F.2d at 63 (emphasis supplied).

Consequently, when all is said and done, the case comes down to whether the expression, by a single district judge within the Fourth Circuit, of an opinion favorable to Hutchins suffices for us to determine that from and after January 12, 1984 there has been sufficient unsettling of the law to justify the grant of a stay of execution to allow a whole new round of litigation. Such a determination would not coincide with the contrary view on the very issue expressed by a majority of the members of the Supreme Court. If the case were not one involving capital punishment, the answer would be easy. Hutchins and his counsel are too late.

At this point, Judge Phillips, Judge Sprouse, and the author of this opinion take somewhat different routes to the same end result. The separate concurring opinions of Judge Phillips and Judge Sprouse disclose their views. From here forward in the present opinion, the author will be speaking for himself alone, unless from the context it is clear that his views and those of his panel colleagues coincide. The author has no fault to find with what Judge Phillips and Judge Sprouse have each written. As a matter of legal logic, Judge Phillips and Judge Sprouse are on unassailable grounds.

For the author, however, there remains a difficulty. If Judge McMillan had, indeed, hit, through reference to sociological data, on a proposition of law which, in all probability, would carry the day, even though that would entail the overruling of practices uniformly dating back for centuries, the author cannot reconcile himself to the idea that Hutchins would be executed simply because of procedural complications, despite a revolutionary and valid new legal doctrine which, almost certainly, should save him. It being a death case, the author is disinclined to curtail the right to litigate on procedural grounds alone. Without being at all certain that we should proceed so far, he is prepared to say that we should inquire as to whether the argument is too little as well as too late.

The author would emphasize that he does not contemplate a full-scale exploration of the merits. He only would expand his inquiry to include the issue of whether the view expressed by Judge McMillan in Keeten enjoys a decided, substantial chance of success, with the Fourth Circuit or with the Supreme Court. That is the necessary step to determine whether there is probable cause, meriting a certificate under 28 U.S.C. Sec. 2253.

For at the same time, we must not ignore the interests of others, specifically Keeten, Avery and Williams, who have been permitted to appear as amici curiae and who argue for a stay in Hutchins to allow consideration of the sociological data contained in the record of the Keeten case. The Court questions the wisdom of their having done so, for it subjects them to the risk of being especially bound by the decision in the instant case. However, since the posture of their cases permits more leisurely review,8 not entailing the rights of the state and the public to scrupulous adherence to the letter and spirit of the law as to exaction of legal punishment, the author explicitly phrases his expression on the likelihood of success of Hutchins in terms not intended, on a stare decisis or res judicata basis, to preclude counsel for Keeten, et al. from pursuing the issue on appeal. He makes that expression simply in the course of determining whether a certificate of probable cause should issue to allow Hutchins' appeal to go forward.

In short, it suffices to state that, in the author's view of the merits, limited by the short time allotted to us for consideration of the matter, but benefited by the full availability of the record in the Keeten case,9 that there is little prospect of success at either the Circuit Court or the Supreme Court level for the propositions that:

1) Potential jurors may not be barred for cause from the guilt phase of a capital murder trial because they have a fixed, automatic, and unequivocal view opposing imposition of the death penalty, and

2) Consequently, North Carolina must, to make its procedure accord with constitutional standards, select a different jury to serve in the sentence phase of a capital case, after trial of the question of guilt by a jury from which those inflexibly opposed to the death penalty have not been excluded for that reason.

While Judge McMillan has written cogently and feelingly, the consideration necessarily remains that such a ruling would mandate a departure from a procedure dating back to the origins of the Republic and further back in England. Judge McMillan's view depends almost entirely on the proposition that current statistics establish that conviction in capital cases is more probable when potential jurors have been excluded for cause if possessed of an inflexible view that the death sentence should not be imposed, regardless of the details of the crime, or of the abundance of evidence of guilt. The step Judge McMillan has taken from that premise, however, does not necessarily follow.10

The statistics do not to a logical certainty establish that, in cases where proof beyond a reasonable doubt is lacking, there is any greater likelihood that there will be a conviction because no juror is unalterably opposed to capital punishment. Indeed, it may be forcefully argued that the statistics merely indicate that concern over the possibility of capital punishment may so trouble a juror firmly opposed to the imposition of a death sentence that he or she will vote for acquittal despite overwhelming proof of guilt, in order to assuage conscientious misgivings that indirectly a vote of guilty would leave the defendant exposed to, and hence would amount to a vote for, the death penalty. To such behavior by a juror, Hutchins simply has no right. One of the studies comprising the Keeten sociological data identified the statistic as 18% for "persons who would be unwilling to impose the death penalty in any case ... stat[ing] that they would vote not guilty at the guilt phase of the trial, even if they believed the defendant to be guilty, in order to prevent the defendant from being executed." E. Bronson, Does the Exclusion of Scrupled Jurors in Capital Cases Make the Jury More Likely to Convict? Some Evidence from California, 3 Woodrow Wilson Law J. 11, 20 (1981).

The inescapable fact is that, at the present moment in time, imposition of the death penalty for certain offenses, proven in an acceptable manner, is constitutional.11 A juror unalterably opposed to imposition of the death sentence, under the prevalent system by which the same jury first considers guilt, and, upon conviction, moves on to the question of which sentence to recommend, cannot comply with the duty which the law imposes. To permit such a potential juror to serve would be positively to deny the state its right to an impartial consideration of whether the death sentence should be recommended.

To hold that the jury concerned with guilt or innocence would be unrepresentative, if all prospective jurors inflexibly opposed to the death penalty were excludible for cause, essentially begs the question. A juror prejudiced or biased for any reason, upon exclusion for cause, renders a jury "unrepresentative" in that untenable sense. For example, over half the eligible jurors might, in a county where prejudice runs high, be unable to judge fairly in a case involving a plaintiff and a defendant of different races. A jury made up from the minority who would not be so biased would not be unrepresentative for constitutional purposes, even though more than 50% of the pool from which it would otherwise be drawn were excluded.

Having made those observations to indicate that it is as close to certain as humans are ever permitted to come that an appeal by Hutchins would not succeed, the author emphasizes that they concern solely the Hutchins case, in the posture it appears before us. The observations constitute merely an estimate of the success or lack thereof which is to be expected if a stay of execution should be granted to permit a hearing on the issues Hutchins wishes to appeal to take place. The author perceives no probable cause to believe Hutchins would prevail. In another case presenting different considerations, either factual in nature or constituting legal argument, the opportunity for distinguishing the present decision would not be foreclosed.

Accordingly, the Court declines to grant a certificate of probable cause to appeal in the case commenced by the petition for a writ of habeas corpus filed January 12, 1984. The petitioner simply has not made the requisite substantial showing of the denial of a federal right. See Barefoot v. Estelle, --- U.S. ----, ----, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). The application for a stay of execution is also denied.

*****

JAMES DICKSON PHILLIPS, Circuit Judge, specially concurring.

I concur in the result, and in much of what Judge Murnaghan has written in the lead opinion for the court. I write only to emphasize my understanding of the narrowness of the issue before us and my concern that we should not express any opinion on the merits of the jury-selection issue beyond that absolutely required to dispose of the dispositive issue before us.*

The limited issue before us is revealed by considering the procedural path by which the case has now reached us. The Supreme Court's decision vacating the stay that I entered as a single circuit judge upheld the district court's determination that a petition raising the identical grounds raised in the petition whose dismissal is now sought to be appealed constituted writ abuse. See Woodard v. Hutchins, --- U.S. ----, 104 S.Ct. 752, 78 L.Ed.2d 541 (1984). The Supreme Court's majority opinion noted that although there was no "affirmative evidence" that Hutchins's constitutional claims were "deliberately withheld," "no explanation (was) made as to why they were not raised until the very eve of the execution date." See id. at ---- & n. 3, 104 S.Ct. at 753 & n. 3. Arguably, therefore, confronted with a record containing such "affirmative evidence," the Court might have reached a contrary result. While this may be debatable, I assume, as did the district court, that this limited opening for further pursuit of the writ survived the Court's vacation of the earlier stay.

In any event, by virtue of N.C.Gen.Stat. Section 15-194, and the action of the North Carolina Supreme Court implementing that statute, petitioner's execution was again stayed, thereby affording him an opportunity upon refiling his petition (whether a "new" or the "same" one is of no consequence) to supply the affirmative evidence that was absent from the previous record, namely evidence that he did not deliberately withhold the constitutional claims raised in his second petition. Counsel for petitioner then filed with the renewed petition an affidavit from petitioner's former counsel in an effort to discharge petitioner's burden of demonstrating that the claims he presented in the successive petition had not been deliberately withheld. See Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948) (once issue of writ abuse raised, petitioner has the burden of proving by a preponderance of the evidence that he has not abused the writ); Jones v. Estelle, 722 F.2d 159, 164 (5th Cir.1983) (en banc).

The district judge, on resubmission of the petition, considered the expanded record, found that the claims presented had been deliberately withheld and, based on the latter determination, concluded "that the filing of the present petition in this Court ... constitutes an abuse of the writ." Hutchins v. Woodard, SH-C-84-26 (W.D.N.C. Feb. 17, 1984) (slip op. at 8-9). After dismissing the writ, the district court concluded that the likelihood of this court's reversal of its decision was not sufficient to justify the issuance of a certificate of probable cause and denied it.

The first question on this appeal is therefore whether the district court erred in its determination that the refiling of the petition constituted an abuse of the writ. Our standard for review of that determination is well-established:

The principles governing ... justifications for denial of a hearing on a successive application (of a habeas petition) are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits.

Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). See also Stephens v. Kemp, --- U.S. ----, 104 S.Ct. 562, 78 L.Ed.2d 370 (1983) (Powell, J., dissenting from granting of stay of execution); Jones v. Estelle, 722 F.2d at 165. Thus, the threshold question, the substantiality of which we must consider in determining whether to issue a certificate of probable cause, is narrowly whether the district court abused its discretion in finding writ abuse under the circumstances revealed. See Stephens v. Kemp, --- U.S. at ----, 104 S.Ct. at 563 (Powell, J., dissenting).

In order to decide whether the requisite substantiality exists to justify the issuance of a certificate of probable cause, see generally Barefoot v. Estelle, --- U.S. ----, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983), we must of course give "weighty consideration" to the fact that a district judge has denied a prior application, see Nowakowski v. Maroney, 386 U.S. 542, 543, 87 S.Ct. 1197, 1198, 18 L.Ed.2d 282 (1967), though we may take into account in making that determination that this is a capital case. See Barefoot, 103 S.Ct. at 3394 ("nature of the penalty is a proper consideration in determining whether to issue a certificate of probable cause").

With this standard in mind, it cannot be said that petitioner has made a "substantial showing," see id., that the trial court abused its discretion when it determined that the successive habeas petition constituted writ abuse because of petitioner's failure to justify the earlier withholding of the grounds now belatedly sought to be raised. Judge Murnaghan's opinion sufficiently documents the basis upon which that determination by the district court is unassailable under our standard of review.

That technical writ abuse has been properly determined by the district court does not end the matter, however. Habeas corpus proceedings are ultimately governed by equitable principles. See Sanders, 373 U.S. at 17, 83 S.Ct. at 1078. A determination that a particular successive petition constitutes writ abuse is an equitable one and, as the state concedes here, the "ends of justice" may yet require that, notwithstanding technical abuse, a constitutional claim be heard on its merits if sufficiently compelling circumstances appear. See id. at 18, 83 S.Ct. at 1078 (if the "ends of justice demand," a district judge has the power and the duty to reach the merits of the claims raised in an otherwise abusive petition).

The most difficult aspect of this case relates to this possibility. Urged as a sufficiently compelling circumstance to justify disregard of technical writ abuse here is the possibility that there may now be emerging a heretofore unrecognized constitutional principle, which might, if established, invalidate Hutchins's conviction, namely, that the practice of excluding from the guilt-phase proceedings jurors who are unalterably opposed to capital punishment is fundamentally unfair to a defendant charged with a capital crime. Stated simply and starkly, the question is whether equity requires a stay of Hutchins's execution simply to protect against the possibility that the constitutional principle now in litigation will in time, but too late to benefit Hutchins, become the law. Cf. Stephens v. Kemp, --- U.S. at ----, 104 S.Ct. at 563 (reversing court of appeals and granting stay of petitioner's execution pending decision by en banc court of appeals in a case raising substantially the same issue).

The mere fact--theoretically present to some extent in every death sentence case--that some change in extant law may occur that could compel invalidation of the conviction of a petitioner awaiting execution obviously does not suffice generally as an equitable consideration warranting stay of execution to allow merits consideration. The question is whether that general possibility is sufficiently more concrete here to invoke equitable protection. My conclusion is that on any practical assessment of the realities of the situation, it is not.

One district court in this circuit, based on the evidentiary record before it, has already rejected the Witherspoon claim sought now to be presented belatedly by Hutchins. See Barfield v. Harris, 540 F.Supp. 451, 463-64 (E.D.N.C.1982). On appeal, this court has expressly affirmed that district court decision. See Barfield v. Harris, 719 F.2d 58, 63 (4th Cir.1983) (affirming "for the reasons stated by the district judge"). Our decision in Barfield constitutes extant circuit law on the point, though concededly that decision, like all decisions, is potentially limited by its factual record.

Following this court's opinion in Barfield, another district court in this circuit concluded on a quite different and more expansive evidentiary record that sociological data demonstrates the fundamental unfairness of excluding from guilt-phase proceedings all potential jurors opposed to capital punishment in all circumstances. See Keeten v. Garrison, 578 F.Supp. 1164 (W.D.N.C.1984). That decision is now on appeal to this court. Moreover, the petitioner in Barfield, we are advised by counsel, has now sought leave to file in the Supreme Court a petition for certiorari out of time; but it is not known at this point whether Barfield will raise the Witherspoon issue in any certiorari petition that may be filed in that case.

I do not believe that we need nor that we should address the merits of the jury-selection principle adopted by the district court in Keeten in order to assess in this case whether Hutchins's execution should be stayed on equitable grounds to abide further developments in that case or possibly in Barfield. Two considerations compel for me the conclusion that the possibility that Hutchins will ever gain more than temporary respite from execution by reason of the authoritative adoption of the Keeten principle is too ephemeral to justify invocation of the ultimate equitable protection he seeks.

The first is that five justices of the Supreme Court, aware of the district court decision in Keeten and of the parallel decision in Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983) (appeal docketed), have, in vacating my earlier stay of execution, indicated that the pendency of those decisions did not warrant this equitable relief. Nothing of which I am aware has transpired in the interval to suggest that this would not remain the view of a majority of the Court. The second consideration is one properly developed in Judge Murnaghan's opinion concerning the further possibility that the Keeten principle, even if ultimately adopted as the constitutional law of the land, whether in Barfield, Grigsby, Keeten, or Hutchins itself, would result in more than a temporary respite from the death sentence imposed upon Hutchins by North Carolina, given the undisputed, and apparently indisputable evidence of his commission of the criminal acts for which he was convicted. While such a consideration of course has nothing to do with vindication of the principle itself, it must have a great deal to do with assessing the equities of Hutchins's request for a stay of execution because of possible emergence of that principle.

Because of North Carolina's automatic resentencing-upon-stay law, it is not possible for us to follow the course recently followed by the Eleventh Circuit of granting a stay of limited duration specifically to permit final Supreme Court review of our ruling. See Antone v. Dugger, --- U.S. ----, 104 S.Ct. 962, 79 L.Ed.2d 147 (1984). Fortunately, even within the North Carolina scheme, there remains time before the scheduled execution for such review to be sought. An opportunity thus remains to test whether we have misinterpreted, to Hutchins's detriment, the implications of the Supreme Court's vacation of my earlier stay.

I concur in the decision to deny the certificate of probable cause to appeal and the motion to stay execution.

*****

SPROUSE, Circuit Judge, concurring:

I concur.

As I view what my colleagues have written, they are not in disagreement, and I do not disagree with the several major points they have so well treated. I believe it is a mistake, however, to consider the merits of the underlying constitutional claim. I would limit this opinion and hold simply that the district court did not abuse its discretion in dismissing the second petition for writ of habeas corpus.

We are not considering an appeal on the merits, but an application for a certificate of probable cause to appeal from the district court's ruling that Hutchins's second petition constitutes an abuse of the writ. The issue is not whether he made a substantial showing that he was denied a federal right at the habeas corpus hearing, but whether the district court abused its discretion in holding that Hutchins had deliberately failed to present his constitutional claim in his first petition. Under the circumstances of this case, the district court's holding, in my view, was virtually required by the Supreme Court's holding in Woodard v. Hutchins, --- U.S. ----, ----, 104 S.Ct. 752, 753, 78 L.Ed.2d 541, 543 (1984) (Hutchins II ). Although the Supreme Court there considered and granted North Carolina's application to vacate Judge Phillips's stay of execution, it discussed the habeas corpus petition on which the stay was founded and described it as "a clear example of the abuse of the writ that Sec. 2254(b) was intended to eliminate." Id. --- U.S. at ----, 104 S.Ct. at 753, 78 L.Ed.2d at 544. Although the Supreme Court was probably not obliged to reach that issue in the context of a stay proceeding, its unqualified statement that Hutchins's second petition represented "a clear example of the abuse of the writ" cannot be ignored by lower federal courts considering the identical question. Keeten was not a new development. It had been pending in Judge McMillan's court for two years, and the decision was issued the day before the Supreme Court considered Hutchins II. In these circumstances, it cannot be said that the district court abused its discretion.

*****

1

The statute of North Carolina calls for the same jury to decide, in a case involving first degree murder, both a) guilt or innocence and, if guilt is found, b) what the sentence should be. See North Carolina General Statutes Sec. 15A-2000

2

See Sanders v. United States, 373 U.S. 1, 18-19, 83 S.Ct. 1068, 1078-1079, 10 L.Ed.2d 148 (1963)

Furthermore, a certificate of probable cause pursuant to 28 U.S.C. Sec. 2253 had been sought (on March 5, 1984) and denied (on March 7, 1984). It followed the dismissal ordered on February 17, 1984 by Judge Woodrow W. Jones in a suit initiated by a petition for a writ of habeas corpus filed on January 12, 1984 in the United States District Court for the Western District of North Carolina, and asserting the same grounds as those raised in the January 11, 1984 state motion for appropriate relief. The dismissal was predicated on the grounds that the petition was successive and an abuse of the writ. See 28 U.S.C. Sec. 2244(b); Rules Governing Section 2254 Cases in the United States District Courts Rule 9(b).

3

No question remains as to whether, in fact, Hutchins committed the crimes. The record leaves no room for doubt on that score. The case is, consequently, solely one attacking the method of conviction, not its accuracy

4

A new execution date of March 16, 1984 has been fixed by the Superior Court of Polk County, North Carolina

5

See State v. Spaulding, 298 N.C. 149, 257 S.E.2d 391 (1979); State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979)

6

Those cases had been pending for approximately two years prior to January, 1984. Argument based on the sociological data took place on September 23, 1983 in Keeten

7

A principal reason advanced by Judge Dupree for not delaying, despite the defendant's request, ruling in order to permit Keeten et al. to be decided and appealed to this Court was that the Fourth Circuit, having before it Barfield v. Harris and the Keeten cases, should rule on the claim that there should be a new development in the law of capital crimes. See 540 F.Supp. at 464 n. 6

8

Of the four individuals involved in Keeten, all save one were serving life sentences. Only Williams was under a sentence of death. However, Williams was relieved of the sword of Damocles in the form of the death sentence as a consequence of the Keeten decision entered by Judge McMillan on January 12, 1984, the Williams case being one of the four consolidated cases making up Keeten. Accordingly, unless and until the Fourth Circuit acts to reverse that portion of the decision in Keeten, which it will do only after due consideration of arguments based on the sociological data presented in Keeten, Williams is not under sentence of death

9

The consolidated cases comprising Keeten have been appealed by the State of North Carolina, providing us with ready access to the sociological study material in the Keeten case record on which Judge McMillan's opinion rests

10

In Witherspoon v. Illinois, 391 U.S. 510, 517-18, 88 S.Ct. 1770, 1774-75, 20 L.Ed.2d 776 (1968), the court dealt with exclusion of potential jurors merely on the basis of conscientious scruples against the death penalty, something far less than the fixed and unalterable opposition here present. In a bifurcated trial, the resulting jury was deemed not unrepresentative on the issue of guilt or a body for which the risk of conviction was substantially increased. The flaw related only to the sentence aspect

In the present case, no one argues that jurors unalterably opposed to the death penalty may not be disqualified for cause at the sentencing stage. As Judge McMillan in Keeten observed, "[p]ersons conscientiously objecting to the death penalty may validly be excluded from the second phase, or punishment phase of the trial." He further observed that "[p]etitioners concede that the state may constitutionally exclude persons unwilling to impose the death penalty from the penalty determination phase of a criminal trial." To hold otherwise would be the equivalent of inviting both the flat disregard of a juror's duty and the effective frustration of the right which the state has, in a proper case, to seek the death penalty. See State v. Pinch, 306 N.C. 1, 9-10, 292 S.E.2d 203, 213, cert. denied, --- U.S. ----, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982), reh'g denied, --- U.S. ----, 103 S.Ct. 839, 74 L.Ed.2d 1031 (1983):

It would have amounted to an absurdity and a mockery of our law to have permitted these jurors to sit on a case where imposition of the death penalty was an available sentencing option. For, if capital cases could be tried by juries which included persons firmly opposed to the maximum prescribed penalty sought by the State, the separate sentencing hearing mandated by G.S. 15A-2000 would almost certainly become a futile and meaningless exercise, contrary to the expressed will of our citizenry in the enactment of capital punishment legislation.

(Emphasis in original).

Indeed, that consideration supplies the answer as to why Hutchins has no reasonable chance of success. Only the sentencing aspect, not the guilt aspect, of the jury's function should now properly be addressed in his case, for it certainly amounts to the law of the case that the issue of guilt or innocence is no longer open for consideration. In his January 13, 1984 opinion for a majority of the Supreme Court, Justice Powell observed: "It is not denied that he deliberately murdered three policemen." --- U.S. ----, 104 S.Ct. 752, 78 L.Ed.2d 541. The state concededly may strike for cause from any jury array, chosen to consider sentencing, all potential jurors adamantly unwilling to vote for imposition of the death penalty. That is all that we have here: an admittedly proper jury to determine sentence.

Even assuming that a separate jury from which potential jurors inflexibly opposed to a death sentence had not been removed for that reason should be required to ascertain guilt or innocence, nevertheless that jury, in Hutchins' case, would have no substantial role to play. Guilt has been incontrovertibly established. As Judge McMillan has observed in Keeten, the data which led him to his conclusion is "most significant in close cases--ones in which the evidence can be interpreted either way." Hutchins simply does not present a close case on the issue of guilt.

To put things another way, the best result for which Hutchins could hope, on a federal constitutional basis, would be a retrial on the issue of guilt or innocence. The sentencing verdict would in any event be free from defect. It would be a wholly useless exercise to retry guilt, which is not properly an issue, only to find the sentence of death inexorably still outstanding, once that retrial was completed.

That is not to say that, if the jury selected to determine guilt or innocence were indisputably improperly constituted, Hutchins would, nevertheless, not be entitled to a new trial. But that is not the situation. It is unlikely, or at best altogether uncertain, that the Grigsby/Keeten point would prevail. In that posture, especially given all the other considerations we have outlined, it is inappropriate to certify that Hutchins has probable cause to pursue the attempted appeal.

11

The state has a "legitimate interest in obtaining jurors who could follow their instructions and obey their oaths." It is constitutionally permissible to exclude prospective jurors unable or unwilling to address impartially the penalty questions. Adams v. Texas, 448 U.S. 38, 44, 46, 100 S.Ct. 2521, 2526, 2527, 65 L.Ed.2d 581 (1980)

 

 

 
 
 
 
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