Arthur James Julius | Murderpedia, the encyclopedia of murderers

A man convicted of raping and murdering his cousin while he was on a brief leave from prison was put to death in the electric chair this morning, 11 years after the crime.

The condemned man, Arthur James Julius, gave two thumbs up and waved both hands, nodding in the direction of his brother, Clarence Byrd, and the prison chaplain, Robert Simmons, before being executed at 12:09 A.M.

Mr. Julius, 43 years old, of Birmingham, was sentenced to death for the 1978 rape and killing of his cousin, Susie Bell Sanders, 29, at her Montgomery apartment.

Mr. Julius was the fourth inmate to die in Alabama's electric chair this year and the 119th person put to death in the United States since the 1976 ruling by the United States Supreme Court allowing states to resume use of the death penalty.

Mr. Julius had pinned a purple ribbon on the shirt of his white sweatsuit. Prison officials said the ribbon is worn by death row inmates to protest the death penalty. High Court Denies Appeal

About eight hours before the execution, Mr. Julius lost an appeal when the Supreme Court refused by a 7-to-2 vote to spare his life.

Justices William J. Brennan and Thurgood Marshall, who oppose capital punishment in all circumstances, supported Mr. Julius's plea for a stay of execution.

Mr. Julius was serving a life term for a 1972 murder when he was released on a pass from a prison work-release center near Montgomery.

According to court records, Mr. Julius left on an eight-hour pass at 11 A.M. on Jan. 29, 1978, and borrowed a relative's car from 3:30 P.M. to 6:25 P.M. During that time, Mr. Julius beat Ms. Sanders and subjected her to ''grotesque sexual abuse'' before strangling her.

840 F.2d 1533

Arthur James JULIUS, Petitioner-Appellant,
v.
W.J. JOHNSON, Warden, Holman Unit, Respondent-Appellee.

No. 86-7589.

United States Court of Appeals,
Eleventh Circuit.

March 9, 1988.

Appeal from the United States District Court for the Middle District of Alabama.

Before VANCE, HATCHETT and CLARK, Circuit Judges.

PER CURIAM:

Arthur James Julius appeals from the district court order denying his petition for a writ of habeas corpus. We affirm.

Julius pled guilty to a murder charge in 1972 and was sentenced to life imprisonment. In 1978, while on a one-day release from prison, Julius allegedly raped and murdered his cousin Susie Sanders. He was tried, found guilty, and sentenced to death. His conviction was reversed, see 407 So.2d 152 (Ala.1981), pursuant to the United States Supreme Court's ruling that Alabama's death penalty statute was unconstitutional. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).

After Beck, the Alabama Supreme Court severed the unconstitutional portion of the statute. Beck v. State, 396 So.2d 645 (Ala.1980). Julius was then retried for the 1978 murder under the modified statute in 1982. He was again found guilty and sentenced to death.

The evidence presented at trial indicated that Susie Sanders was brutally raped and murdered on January 29, 1978. Her body was discovered in her home by her father, E.O. Sanders. Mr. Sanders testified that when he and the victim's daughter entered the house, they saw Susie's nude body on a couch with her head on the floor and her legs in the air. Trial Transcript Vol. I at 19-20.

Furniture had been knocked over and the telephone cord had been pulled from the wall. Forensic examinations indicated traces of semen in the victim's vagina, anus, and mouth. Id. Vol. II at 205. Seminal fluid also covered the length of a plastic banana found near the body. Id. Vol. I at 147.

Her body was covered with bruises, abrasions, and "rub burns" indicating that she had been dragged across the carpet. Id. at 197-201, 208. Handfuls of her head hair were found near the body. Id. at 118. An autopsy revealed that the cause of death was manual strangulation, probably inflicted from behind. Id. Vol. II at 205.

The state presented circumstantial evidence that this crime was committed by Susie Sanders' first cousin Arthur Julius, the appellant. Willie Clayton, another cousin of Julius, checked Julius out of the Draper Work Release Center at 11:40 a.m. on January 29, 1978. As they drove to Montgomery, Alabama, Julius asked Clayton when he had last seen Susie Sanders. Trial Transcript Vol. I at 49. Clayton loaned Julius his car at 3:30 p.m. and did not see Julius again until 6:30 p.m.

William Gray, the victim's neighbor, testified that he saw Clayton's car parked outside the victim's house at approximately 5:15 p.m. Trial Transcript Vol. I at 62. Ruth Wheeler, the victim's second cousin, testified that she called Susie on the telephone at approximately 4:00 p.m. on January 29. Susie said she would have to call Ms. Wheeler back because she was talking to her cousin "Bobo." Id. Vol. II at 223. Fanny Sanders, the victim's mother, testified that Susie referred to her cousin Arthur Julius as Bobo. Id. Vol. I at 28.

At 6:30 p.m., Julius returned the car to Clayton, who had been visiting his brother-in-law, Orin Henderson. Henderson testified that Julius had a "fresh" cut under his eye. Trial Transcript Vol. I at 57. Clayton and Julius then drove back to the Draper Work Release Center. After Julius was checked in, he told Draper counselor Everett Rich that he was expecting an emergency telephone call. Id. at 68. Later, Julius told Rich he had received a call and learned that his cousin had been robbed and killed. Id. at 69. Julius said he had been at his cousin's house that day, but that she was all right when he left. Id.

Andrew Boykin, the victim's fiance, testified that he gave Susie approximately $30 on the morning of January 28. Trial Transcript Vol. I at 73. Because Susie was ill, she did not leave the house all weekend. Boykin, a bus driver, was called to work on January 29, and his employer's records indicate he drove a bus from Montgomery to Meridian, Mississippi and did not return until the following morning.

John Byers, a former desk officer at Draper, testified that Julius had a little over $30 and a carton of cigarettes when he returned to Draper at 7:40 p.m. on January 29. Id. at 81. According to Willie Clayton, Julius stated at 11:40 that morning that he had only eight cents in his pockets. Id. at 49.

The state also relied on forensic evidence. A toxicologist testified that hair found in Julius' underwear on January 29 had the same characteristics as the victim's head hair and that the hair could not have come from Julius. Trial Transcript Vol. I at 151-54. The same witness testified that various fibers found on Julius' body and clothing were the same as fibers found in the victim's house. Id. at 175.

Finally, the state detailed inconsistencies in Julius' prior explanations of his activities on January 29. When Julius returned to Draper on January 29, he told Everett Rich that he had been at his cousin's house earlier that day. In a statement made shortly after his arrest, however, Julius denied that he saw Susie Sanders on January 29.

Julius said that after he borrowed Clayton's car at 3:00 p.m., he met a girl near his uncle's house. After he had sex with the girl, he said he brought her back to where they had met. He then got some gas for the car and went to the governor's mansion to see a friend who worked there. He went back to his uncle's house and then went to pick up Clayton for the ride back to Draper. Trial Transcript Vol. I at 100-01.

This statement differs somewhat from Julius' testimony at his first trial. The transcript of this testimony was read into the record at the second trial. Julius testified that he drove to his uncle's house at 3:30 p.m. and stayed there for approximately 30 minutes. He then left his uncle's house and headed for a nearby restaurant. On the way, he said he stopped to call his aunt (the victim's mother) Fanny Sanders to ask for money. She supposedly suggested that they meet to have sex, as they allegedly had done several times in the past, in a nearby motel. She did not have time to go to the motel, so they had sex in Clayton's car. Trial Transcript Vol. II at 246.

Julius claims Fanny Sanders scratched his eye during their sexual encounter while attempting to remove his glasses. Id. at 252. Julius testified that Fanny Sanders gave him a carton of cigarettes and $50 in cash, some of which he spent on gasoline. Id. at 257.

Julius' only defense witness was Joanne Minnefield, who testified that she had never heard Julius referred to as Bobo. On cross-examination, however, Minnefield conceded that she had only seen Julius and Susie Sanders together twice. After Minnefield testified, the state was permitted to call one more witness, Jessie Bullard. He testified that he met Julius at the victim's home. Although he could not recall the exact nickname Susie used to describe Julius, he said "it was Jabbo, Bobo, Lobo or something." Id. at 265.

The jury was persuaded by the circumstantial evidence and found Julius guilty of: (1) murder committed by a defendant while under a sentence of life imprisonment, Ala.Code Sec. 13-11-2(6); and (2) murder by a defendant who has been convicted of any other murder in the twenty years preceding the crime, Ala.Code Sec. 13-11-2(13).1 The trial court, accepting the jury's recommendation for the death sentence and after reviewing a presentencing report, found the following aggravating factors:

(1) The capital felony was committed by the defendant while under a sentence of imprisonment [Ala.Code Sec. 13-11-6(1) ];

(2) The defendant was previously convicted of another felony involving the use or threat of violence to the person [Ala.Code Sec. 13-11-6(2) ]; and

(3) The capital felony was especially heinous, atrocious, and cruel [Ala.Code Sec. 13-11-6(8) ].

The only mitigating circumstance was that Julius was 32 years old at the time of the crime. See Ala.Code Sec. 13-11-7(7). The Alabama Court of Criminal Appeals (455 So.2d 975 (1983)) and the Alabama Supreme Court (455 So.2d 984 (1984)) affirmed.

Julius, proceeding pro se, came to the district court seeking his release and monetary damages on the ground that he was deprived of his purported right to act as co-counsel at trial. This claim was rejected and we affirmed. Julius v. Johnson, 755 F.2d 1403 (11th Cir.1985). The state stipulated it would not assert abuse of the writ as a defense against a second habeas petition. Id. at 1404.

Julius then obtained counsel and sought collateral relief from his conviction and sentence in a state coram nobis proceeding. After an evidentiary hearing, the trial court denied relief and issued a thorough opinion. Several of Julius' claims were rejected on their merits and several were deemed to be barred by Julius' failure to raise them at trial or on direct appeal. On April 7, 1986, the Alabama Court of Criminal Appeals affirmed without opinion. The Alabama Supreme Court denied certiorari on September 26, 1986.

Julius sought habeas corpus relief in the district court pursuant to 28 U.S.C. Sec. 2254. The district court, relying heavily upon the state court's opinion in the coram nobis proceeding,2 rejected Julius' claims and denied the writ. This appeal followed.

On appeal, Julius presents ten claims for relief: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) erroneous jury instructions regarding the lesser included offense of manslaughter; (4) double counting of aggravating circumstances in the guilt and penalty phases of the trial; (5) prosecutorial misconduct during closing arguments; (6) the use of the 1972 murder conviction, with a cautionary instruction, during the guilt phase; (7) the absence of a transcript of the jury qualification proceeding in the Alabama appellate court record; (8) the use of Julius' testimony from his prior trial during the guilt phase without a proper explanatory instruction; (9) the use, as an aggravating circumstance, of the 1972 murder conviction obtained pursuant to an unconstitutional death penalty statute; and (10) retrial under a judicially rewritten death penalty statute. We reach the merits of the first four issues. Issues five through ten are barred because of Julius' failure to timely raise these claims in the state courts and because Julius has failed to show cause for his procedural default.

I. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Julius points to many alleged "errors" committed by trial counsel which, according to the petition, constituted a denial of his right to effective assistance of counsel. We analyze these claims under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on his ineffective assistance claim, Julius must show: (1) that counsel's performance was outside the wide range of reasonable professional conduct; and (2) that the deficiency of counsel's performance had an effect on the conviction or sentence. Id. at 688-91, 104 S.Ct. at 2065-66.

A. Guilt Phase

Julius' claims that counsel was ineffective during the guilt phase can be broken down into two categories. First, there are several alleged errors of omission--instances where counsel failed to effectively assert (either by objection or by motion) Julius' constitutional rights. Second, Julius alleges his counsel's closing argument prejudiced his defense.

1. Alleged Errors of Omission

According to the petition, counsel was ineffective because he failed to: (1) object to several comments made by the prosecutor during closing argument; (2) object or make a motion for a mistrial when the word "murder" was used to describe the crime committed in this case; (3) protect Julius' "right" to act as co-counsel; (4) object to the use of the 1972 murder conviction which was obtained pursuant to an unconstitutional death penalty statute; (5) request an instruction informing the jury not to consider the 1972 conviction as evidence of guilt; (6) object to the use of a transcript of Julius' testimony from his 1978 trial; and (7) object to Julius' retrial under a judicially rewritten death penalty statute.

After reviewing the records of the trial and state coram nobis proceedings, we conclude that none of the alleged "errors" rises to the level of ineffective assistance of counsel. Counsel's failure to object to the prosecutor's comments during closing argument was a deliberate tactical choice. At the coram nobis proceeding, counsel testified that he believes objections during closing argument merely focus the jury's attention on the damaging remarks. His practice is not to object unless the prosecutor's remarks are clearly prejudicial. Since none of the challenged comments were overwhelmingly prejudiced or persuasive, we will not question this tactical decision.

Similarly, we will not question counsel's decision not to object to the use of the word "murder" by the prosecutor and by a witness during the trial. Julius' sole defense at trial was that he did not commit the crime. Counsel did not choose to make the alternative argument that Julius committed the crime but that the crime was something other than murder. Given the evidence presented at trial, Julius was not prejudiced by counsel's failure to object to the use of the word "murder," even if such an objection would have been sustained.

Counsel communicated to the court Julius' request that he be permitted to act as co-counsel. As a result, Julius was permitted to preface his counsel's closing argument at the guilt phase with some remarks of his own. Even if counsel did not "effectively" advance Julius' desire to act as co-counsel, this failure would not entitle Julius to relief. We have held that Julius did not have a federally protected right to act as co-counsel in his criminal trial. Julius, 755 F.2d at 1404. The state coram nobis court found that the state constitution did not afford such a right. Under these circumstances, counsel's failure to assert Julius' request more forcefully does not constitute ineffective assistance.

Appellant argues that defense counsel should have objected to the introduction of the 1972 conviction during the guilty phase and that he was additionally ineffective in failing to request a cautionary instruction advising the jurors that they should not consider the prior conviction in deciding whether Julius was guilty in this trial. To understand this issue it is necessary to review portions of Alabama's death penalty statute as it existed when Julius was tried.

A defendant could be sentenced to death if he committed murder under one of fourteen different circumstances, only two of which are relevant here: murder committed while the defendant is under sentence of life imprisonment; and murder by a defendant who has been convicted of any other murder in the 20 years preceding the crime. Ala.Code Sec. 13-11-2(6), (13).

Julius was charged with the intentional killing of Susie Sanders at a time when he was under a sentence of life imprisonment and had been convicted of another murder during the previous 20 years. The state made the previous conviction an element of the crime of murdering Susie Sanders and the trial court admitted evidence of the prior conviction. Appellant argues several grounds for constitutional error arising from these circumstances.

Defense counsel is charged with ineffectiveness in not objecting to the admission of the prior conviction and after its admission not requesting a cautionary instruction. Additionally, Julius charges that the state's use of the prior conviction in the guilt/innocence phase and again as an aggravating circumstance in the sentencing phase constituted an overlapping of aggravating circumstances, depriving him of an individualized sentencing proceeding, and rendering this phase of his trial fundamentally unfair because the jury was prejudiced by the admission of his prior conviction.3 We will discuss first the overlapping or double counting issue.

To obtain a capital murder conviction, the state was required to prove that Julius committed either first or second degree murder and that this murder was "aggravated" by one of the factors listed in Ala.Code Sec. 13-11-2. The "aggravating" factors in this case were that the murder was committed while Julius was serving a life sentence (Sec. 13-11-2(6)) and that Julius had committed another murder in the twenty years preceding the crime (Sec. 13-11-2(13)).

After the jury returned its guilty verdict, the state used these same two factors as "aggravating circumstances" during the sentencing phase. The trial court specifically instructed the jurors that by their guilty verdict, they had already accepted these two facts as aggravating circumstances for the penalty phase.4 The only other aggravating circumstance alleged by the state in the penalty phase was that the crime was especially heinous, atrocious and cruel.

Julius contends that the use of the two overlapping aggravating circumstances deprived him of an individualized sentencing determination and, in fact, had the effect of making the death penalty mandatory in this case. We disagree. We have rejected a similar challenge to Florida's death penalty statute. In Adams v. Wainwright, 709 F.2d 1443 (11th Cir.1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984), the defendant was convicted of felony murder.

The defendant argued that "Florida has impermissibly made the death penalty the 'automatically preferred sentence' in any felony murder case because one of the statutory aggravating factors is the murder taking place during the course of the felony." Id. at 1447. This argument, which is the same argument raised by Julius, was rejected because the Supreme Court had upheld the Florida statute, "including necessarily the use of this statutory aggravating factor" in Proffitt v. Wainwright, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

Furthermore, we indicated that the sentencing phase remains an individualized determination because the defendant has the opportunity to present mitigating evidence. 709 F.2d at 1447. This argument has been used by the Fifth Circuit to defeat challenges similar to the one raised in this case. See Welcome v. Blackburn, 793 F.2d 672, 676 (5th Cir.1986); Glass v. Blackburn, 791 F.2d 1165, 1173 (5th Cir.1986) (dicta ); Wingo v. Blackburn, 783 F.2d 1046, 1051 (5th Cir.1986) ("we fail to see why aggravating circumstances narrow the sentencing discretion any less by being made a constituent element of the crime."). But see Collins v. Lockhart, 754 F.2d 258, 261-65 (8th Cir.) ("we see no escape from the conclusion that an aggravating circumstance which merely repeats an element of the underlying crime cannot perform [the] narrowing function"), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985); Wiley v. Mississippi, --- U.S. ----, 107 S.Ct. 304, 306, 93 L.Ed.2d 278 (1986) (Marshall J. with Brennan J. dissenting from denial of certiorari). We are bound by Adams to reject Julius' argument that the double counting of aggravating circumstances violated his constitutional rights.

Turning to the charge that his counsel was ineffective, Julius argues that admission of the prior offense violated his right to a fundamentally fair trial. We find that counsel was ineffective for not objecting. The issue had been raised in 1979 in Alabama in Hubbard v. State, 382 So.2d 577 (Ala.Cr.App.). Julius was retried subsequent to that time and counsel should have raised the issue to lay the basis of a later constitutional challenge in a federal proceeding, assuming that the Alabama courts would have adhered to their position in Hubbard.

However, in the interim, the issue has been put to rest by the Supreme Court in Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). There, Marshall had been convicted by an Ohio court and given the death penalty. The Ohio statute permitted the state in an aggravated murder case to include in the indictment a "specification" in which the state could allege that the respondent previously had been convicted of an "offense of which the gist was the purposeful killing of or attempt to kill another." See Ohio Rev.Code Ann. Sec. 2929.04(A)(5) (1975).

In the guilt/innocence phase, the jury was entitled to hear evidence of a past conviction similar to the evidence under attack here. In note 6, the Court reaffirmed Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), holding that the defendant's due process rights were not violated by the introduction of his previous conviction in the guilt/innocence phase of the trial. Appellant had relied upon Spencer in urging this claim. The opinion and dissent in Spencer make clear that at the present time the practice of using evidence of a past conviction in the trial of Alabama death cases is permissible under the Constitution.

Marshall does support appellant's claim that counsel was ineffective for failing to request a cautionary instruction respecting the 1972 conviction. We hold that counsel was ineffective. Justice Rehnquist (now Chief Justice) writing for the majority in Marshall relied on the fact that when "evidence [of a prior conviction] was accompanied by instruction limiting the jury's use of the conviction to sentence enhancement," the defendant's due process rights were not violated. Consequently, the absence of an instruction may amount to a constitutional violation.

We do not reach that question because we fail to find that the defendant was prejudiced in this case. Although the evidence convicting Julius was all circumstantial, it was overwhelming. We cannot conceive that any retrial of Julius with the cautionary instruction could reach a different result.

Respecting Julius' sixth claim, we hold that counsel was not ineffective for his failure to object when a transcript of Julius' testimony at the 1978 trial was read into the record at the 1982 trial. Julius' prior testimony consisted mostly of his attempts to explain his whereabouts on the day of the crime. These statements were clearly relevant and admissible. The prosecutor's fleeting reference to the facts of the 1972 murder during the prior testimony was not enough to mandate, as a matter of professional competence, that counsel object to the introduction of the transcript.

Furthermore, counsel's failure to object when the trial court told the jury to consider the prior testimony "as if Julius was on the stand testifying" does not constitute ineffective assistance. The court's remarks did not, as Julius suggests, draw attention to Julius' decision not to testify at the second trial. Even if they did draw attention to this fact, an objection by counsel would have served only to draw additional attention to Julius' failure to testify. Given counsel's strategy of objecting only when necessary, we do not believe counsel's failure to object to the court's remarks was unreasonable.

Finally, counsel was not ineffective for failing to object to Julius' retrial under a judicially rewritten death penalty statute. The Supreme Court's holding in Beck v. Alabama did not bar the state from re-prosecuting the defendant in that case. See Beck v. State, 396 So.2d 645 (Ala.1980). Cf. Jordan v. Watkins, 681 F.2d 1067, 1077-80 (5th Cir.1982) (rejecting constitutional challenges to retrial under Mississippi's judicially rewritten death penalty statute), clarified on reh'g sub nom. Jordan v. Thigpen, 688 F.2d 395 (5th Cir.1982). Counsel had no basis to object to the re-prosecution in this case, and therefore cannot be faulted for his failure to object.

II. ALLEGED ERRORS OF COMMISSION

Julius contends counsel's closing argument during the guilt phase of the trial was prejudicial to his defense. Specifically, Julius points to counsel's comments praising the work of the two prosecuting attorneys5 and counsel's comment that he zealously defends his clients regardless of their character.6 At the state coram nobis hearing, counsel testified that he praised the prosecuting attorneys in order to assure the jury that the trial was not a personal contest between the attorneys.

The coram nobis court noted that the prosecutors were personable young lawyers and counsel was merely attempting to neutralize the effect of their personal appeal. Coram Nobis Op. at 17. We see nothing inappropriate in counsel's comments and further note that they did not prejudice Julius' defense. As to counsel's comment regarding his responsibility to defend his clients, counsel was attempting to remind the jury of its duty to be fair to the defendant. Coram Nobis Transcript at 87. Counsel testified that he was not attempting to distance himself from his client. Id.

We agree with the coram nobis court that counsel's comments did not prejudice Julius' defense. Even if counsel's arguments were not particularly helpful, they certainly were not harmful enough to undermine our confidence in the correctness of the jury's verdict.

A. Penalty Phase

Julius claims counsel failed to present all the available mitigating evidence during the sentence phase. The coram nobis court made detailed factual findings that counsel zealously tracked down all leads to mitigating evidence. Counsel simply made the informed decision that the best way to save Julius' life was to argue to the jury that there was still some doubt whether or not Julius committed the crime.

Given the brutal nature of the crime, we conclude that such a decision was within the range of professional competence. Furthermore, we agree with the state coram nobis court that the proposed testimony of family members and friends would not have affected the outcome. Accordingly, Julius is not entitled to relief on this ground.

Second, Julius alleges counsel's closing argument was ineffective because counsel distanced himself from his client and because counsel failed to argue persuasively for Julius' life. Specifically, Julius objects to the following comment made by his counsel during closing argument:

May it please the Court, members of the jury. I don't know, to tell you the truth, whether I am asking you to spare Arthur Julius' life, or whether I'm up here to make sure that you know what you are doing.

Supplemental Trial Transcript at 46. Julius' argument is meritless because this comment, in the context of the entire argument, did not prejudice his case. Counsel's argument was quite different from the argument we criticized in King v. Strickland, 714 F.2d 1481 (11th Cir.1983), vacated on other grounds, 467 U.S. 1211, 104 S.Ct. 2651, 81 L.Ed.2d 358 (1984), adhered to on remand, 748 F.2d 1462 (11th Cir.1984), cert. denied, 471 U.S. 1016, 105 S.Ct. 2020, 85 L.Ed.2d 301 (1985). In King, "counsel separated himself from his client, conveying to the jury that he had reluctantly represented a defendant who had committed a reprehensible crime." 714 F.2d at 1491.

In this case, counsel in no way indicated that he was being compelled to represent Julius. Moreover, counsel did not needlessly stress the brutality of the crime charged in the indictment. The remainder of his closing argument was designed to exploit weaknesses in the state's proof during the guilt phase, in an attempt to persuade the jury that any lingering doubts about Julius' guilt should result in their vote for a life sentence. Given that the verdict was based on circumstantial evidence, and given Julius' past problems with the law, such a decision was not unreasonable. We find that counsel adequately fulfilled his role as an advocate.

Julius also argues that one of counsel's attempts to remind the jury of its duty during the penalty phase actually made it more likely that the jury would return a recommendation for the death penalty. During his closing argument, counsel stated:

Now, I'm not sure I'm asking for him at all. But let me say this, please don't do what I call getting over buck fever. They have an expression among deer hunters, that they laugh at the youngsters. They go out and the first cute, little deer they see hopping through the woods, they are so cute that they can't kill it.

The next time they go, they do kill it. They they keep going and killing and killing and killing because they've done it one time. What I'm cautioning this jury about is this, you were in there six hours over that evidence. And I don't want to offend nobody [sic], but the least I can do is that in a hearing like this, I can at least tell you--and I'm not being critical--that that evidence was rotten when it was weak.

Supplemental Trial Transcript at 47-48. Julius complains that this anecdote actually advised the jurors they should give Julius the death penalty because, if they did not, he would go out and kill again. Counsel testified, however, that his intention was to remind the jury that the guilt and sentencing phases were separate portions of the trial, and that they should not feel compelled by their verdict of guilty to return a recommendation for the death penalty.

While counsel's choice of anecdote might have been ill-advised, we do not believe his closing argument did "more harm than good" as did the argument in King. In sum, Julius has failed to show that counsel's closing argument was sufficiently unartful to undermine our confidence in the outcome of the sentencing phase.

Finally, Julius claims counsel should have objected to the prosecutor's remarks during closing argument. Again, counsel testified that his strategy was to avoid drawing attention to the prosecutor's arguments by objecting unless an egregious error had been committed. We will rarely second guess such a strategy. In any event, we find nothing in the prosecutor's closing arguments so improper as to require an objection by counsel.

III. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Julius maintains that the record before the Alabama Courts of Appeals did not contain a transcript of the juror selection proceedings. He claims that appellate counsel's7 failure to make sure that a record of such proceedings was presented to the Alabama courts constituted ineffective assistance of appellate counsel. Since Julius has not offered any facts that would even suggest that the transcript might support a constitutional violation, he has failed to prove that his attorney's "failure" prejudiced his defense. See Smith v. Wainwright, 741 F.2d 1248, 1260-61 (11th Cir.1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d 151 (1985).

Next, Julius claims counsel should have raised on direct appeal the issues he raises in this petition. On direct appeal, counsel raised two issues: (1) whether the trial court erroneously instructed the jury regarding the lesser included offense of manslaughter; and (2) whether the death sentence was unconstitutionally imposed where the same aggravating factors used during the guilt phase were used during the sentencing phase of the trial.

The coram nobis court found that counsel made a tactical decision to limit his appellate brief to what he believed were his two strongest issues. Counsel is, of course, permitted to winnow out weaker arguments from his appellate brief. See Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986); Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 (1983). After reviewing the issues Julius claims should have been raised on direct appeal, we hold that counsel's failure to raise these issues was not an unreasonable tactical decision.

Julius also claims counsel should have raised a claim under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), because the prosecutor informed the jury that the advisory verdict was subject to review by the trial court. Failure to raise this issue was not ineffective assistance, in part, because Caldwell had not been decided at the time of Julius' direct appeal. Moreover, we conclude that the jury was not misled by the prosecutor's remarks. The jury was repeatedly made aware of its responsibilities during the sentencing phase, and we are satisfied that the jurors understood the important role of the advisory jury.

Finally, Julius alleges that the briefs filed in the Alabama appellate courts contained inadequate legal and factual analysis of the two issues briefed. Julius claims counsel should have argued that the trial court's instruction regarding lesser included offenses violated the holding of Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). For reasons discussed in the next section, this contention is frivolous.

IV. LESSER INCLUDED OFFENSE INSTRUCTIONS

During its guilt phase deliberations, the jury requested the court to re-define the elements of the crimes charged. In response, the court first explained that, under Alabama law, a murder is a capital murder if the state proves one of the "aggravating factors" contained in the death penalty statute. The court then listed the elements of first degree murder, second degree murder (which is first degree murder minus deliberateness and premeditation), and manslaughter (which is second degree murder minus malice).

When jurors expressed some confusion as to their verdict options, the court attempted to explain the role of the aggravating factors (in this case Julius' prior conviction and life sentence) in their deliberative process. The court told the jury to decide initially whether the aggravating factors were present and then to decide whether Julius was guilty of first or second degree murder, manslaughter, or not guilty. Specifically, the court told the jury:

It's only if you don't find any aggravating circumstances that you then have to determine whether it's murder in the first degree, murder in the second degree, manslaughter, or again, not guilty.

Trial Transcript Vol. II at 291. On direct appeal, both Alabama appellate courts held this instruction was erroneous in that it placed a condition precedent on the jury's ability to find the lesser included offense of manslaughter.8 Both courts, however, said this error was harmless because there was no evidence to support giving an instruction on manslaughter. The court of criminal appeals pointed out the evidence showing the maliciousness of the killing and the absence of justification. 455 So.2d at 981. The Alabama Supreme Court relied on the fact that Julius' sole defense was alibi. 455 So.2d at 986.

Julius argues that the circumstances of the crime, without any supporting testimony, could have warranted a manslaughter verdict. He notes that the victim's house was found in disarray and that he received a cut below his eye. The Alabama courts disagreed, and held that Julius' failure to produce any evidence in support of a manslaughter verdict rendered the trial court's misstatement harmless.

The Alabama court's construction of Alabama law controls this issue unless that construction offends federal constitutional standards. See Hopper v. Evans, 456 U.S. 605, 611-612, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 (1982). In Hopper, the Court held that a defendant who admits to intentionally killing his victim is not entitled to a lesser included offense instruction, the elements of which were negated by his testimony.

According to the Court, Beck v. Alabama requires the giving of a lesser included offense instruction only where "there was evidence which, if believed, could reasonably have led to a verdict of a lesser offense." Id. at 610, 102 S.Ct. at 2052. This standard is consistent with the Alabama Supreme Court's holding in this case that Julius' failure to produce any evidence warranting a charge of manslaughter in the first degree rendered the trial court's error harmless.

Julius attempts to distinguish Hopper on the ground that Julius did not testify at his trial, whereas the defendant's testimony in Hopper negated the possibility of conviction on the lesser included offense. Indeed, the Hopper court noted that "[i]n another case with different facts, a defendant might make a plausible claim that he would have employed different trial tactics--for example, that he would have introduced certain evidence or requested certain jury instructions, but for the [unavailability of a lesser included offense instruction]." Id. at 613 n. **, 102 S.Ct. at 2054 n. **.

Nothing in Hopper suggests, however, that a defendant is entitled, as a matter of federal constitutional law, to a manslaughter charge when he has advanced no evidence in support of such a charge. "[D]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction." Id. at 611, 102 S.Ct. at 2053 (emphasis in original).

Julius did not present any evidence suggesting that this crime was a manslaughter; nor did he suggest such a verdict during closing arguments; nor does he now suggest how he would have altered his defense if he had known that the jury might consider a manslaughter verdict. Under these circumstances, we will not disturb the Alabama court's conclusion that Julius was not entitled to a manslaughter instruction. Since Julius was not entitled to an instruction, the trial court's error in giving that instruction was harmless.

Julius next contends that, if there was no evidence suggesting a manslaughter verdict, the giving of a manslaughter instruction violates the principles set forth in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). In Roberts, the Court struck down Louisiana's mandatory death penalty statute. The Court also criticized the Louisiana rule that the jury must be instructed on all lesser included offenses "even if there is not a scintilla of evidence to support the lesser verdicts." Id. at 334, 96 S.Ct. at 3006. Such a system "invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate." Id. at 334, 96 S.Ct. at 3007.

Although Roberts clearly disapproved of such a statutory scheme, we do not believe the court intended to extend to defendants a right to challenge their capital murder convictions on the ground that the jury was allowed to consider too many lesser included offenses. The jury's guilty verdict on the capital murder charge renders harmless any error made in giving the manslaughter charge.

Finally, Julius contends the challenged instruction placed a condition precedent on the jury's ability to find him not guilty. The Alabama Supreme Court found that, although the instruction was technically incorrect, the error was harmless because the jury was repeatedly instructed that it could find the defendant innocent. 455 So.2d at 987. We are convinced, after reviewing the remainder of the court's instructions and the arguments of counsel, that the jury understood that it had the option of finding Julius not guilty even if the aggravating circumstances were present.

V. PROCEDURAL DEFAULT

The district court concluded that Julius' six remaining claims9 are barred from federal habeas review because Julius failed to raise these issues at trial or on direct appeal. Julius concedes that he did not raise these issues at the appropriate time. He offers two reasons why the district court should have reached the merits of his defaulted claims.

First, Julius contends the Alabama courts on direct appeal implicitly reached the merits of these issues. The Alabama appellate courts are under a duty in capital cases to "notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has adversely affected a substantial right of the appellant." Ala.R.App.P. 45(a) (Alabama Court of Criminal Appeals), 39(k) (Alabama Supreme Court). In affirming Julius' conviction, the Alabama Court of Criminal Appeals stated that it had searched the record for prejudicial errors and had found none. 455 So.2d at 982. The Alabama Supreme Court made a similar finding in its opinion. 455 So.2d at 987.

According to Julius, the state courts' statements that there were no plain errors at trial indicates their belief that the issues raised in this petition are meritless. Adoption of this position would preclude a finding of procedural default in virtually every Alabama capital case. Thus, Julius' argument questions the correctness of our decision in Magwood v. Smith, 791 F.2d 1438 (11th Cir.1986), where we held several of petitioner's claims to be barred by procedural default.

Although the "plain error" issue was not discussed in Magwood, we note that the state appellate court opinion in that case contained the same language Julius points to in this case. See Magwood v. State, 426 So.2d 918, 928 (Ala.Crim.App.1982) ("We have searched the record for error prejudicial to the rights of appellant and have found none."), aff'd, 426 So.2d 929 (Ala.), cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983).

Since Magwood was silent about the non-effect of Alabama's plain error rule on procedural default issues, we will be explicit: the mere existence of a "plain error" rule does not preclude a finding of procedural default; moreover, the assertion by an Alabama court that it did not find any errors upon its independent review of the record does not constitute a ruling on the merits of claims not raised in that court or in any court below.10

Unless there is some indication that the state court was aware of this issue, we cannot say that the court rejected the merits of petitioner's constitutional claim. A contrary rule would encourage the "sandbagging" of state courts criticized in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2647, 91 L.Ed.2d 397 (1986) (possibility of "sandbagging" exists on appeal "since appellate counsel might well conclude that the best strategy is to select a few promising claims for airing on appeal, while reserving others for federal habeas review should the appeal be unsuccessful."). Accordingly, we reject Julius' argument.

Second, Julius contends that the ineffectiveness of his trial and appellate counsel in failing to timely raise these issues in the state courts constitutes "cause" for his procedural default. See Murray, 477 U.S. at 488, 106 S.Ct. at 2645-46. Our disposition of Julius' claims of ineffective assistance of counsel earlier in this opinion resolves this issue. Since counsel's failure to raise these issues did not rise to the level of a Sixth Amendment violation, such failure cannot constitute cause for the procedural default. Id. Since Julius offers no other excuse for the default, we affirm the district court's decision to avoid reviewing the merits of these claims.

CONCLUSION

For the foregoing reasons, the judgment of the district court denying Julius' petition for writ of habeas corpus is AFFIRMED.

*****

The Alabama death penalty statute has been amended since Julius' second trial. For the sake of clarity, any refences to the statute in this opinion are to the 1975 statute as it existed at the time Julius was tried

Under the statute, a murder could be punished by death only if it was accompanied by one of the "aggravating" factors listed in Ala.Code Sec. 13-11-2. The state opened its case in chief by introducing evidence of Julius' prior murder conviction and the fact that Julius was serving a life sentence when the crime was allegedly committed. Trial Transcript, Vol. I at 9.

Julius complains that the district court erred in relying on the state court's legal conclusions. It is true that the district court is bound only by the state court's factual determinations. However, nothing precludes the district court from relying on the state court's legal conclusions as persuasive authority

This issue involves no assertion of ineffective assistance of counsel. We discuss this issue here because of its close relationship to the two issues involving ineffective assistance of counsel

Since preparation of this opinion, the Supreme Court has held that under a Louisiana statute, different in some respects from the Alabama statute, overlapping does not constitute a violation of the Constitution. Lowenfield v. Phelps, 42 Crim.L.Rep. 3029 (Jan. 13, 1988)

Toward the end of his closing argument, defense counsel stated:

And in closing, I want to thank the District Attorney's office in this case, because they have made my job harder, much, much, harder than it would have been had it been one of these ranting and raving type District Attorneys that wants to do more hollering and things like that than to try a lawsuit. I want to thank them for being gentlemen, and yet they have certainly made my job far more difficult because it's no trouble--anytime you've got a lawyer that gets up here and goes to hollering and stomping their feet and shaking their fists, its easier to deal with them than it is two of the finest young men that I know of that know what they are doing and know how to present cases and know how to do it in a highly dignified manner. And even though they might have worked me, they are to be complimented for the job done, because they are assets to this county and assets to any organization.

Supplemental Trial Transcript at 25.

During argument, counsel talked to the jury about the day he received his license to practice law and a promise he made to himself on that day:

[J]ust as long as I live and I walk into a courtroom, I'm going to make myself a vow, that I don't care who it is, I don't care if they're a convict, I don't care if they are the biggest liar that ever walked under the sun, if I, George Cameron, if I'm going to be thrown into that courtroom with them, I'm going to do everything that I possibly can within the elements of my profession not to do anything to make a shambles of the profession that has been good to me, but at the same time, I am going to do everything that I can for that person. I don't want anybody to ever back off and say, well, that lawyer sold them down the river; that lawyer wasn't worth two cents; that lawyer just sat there; that lawyer hasn't done his job. Not against me, I hope.

Supplemental Trial Transcript at 22-23.

Julius' appellate counsel, George Cameron, was also his trial counsel

The instruction was correct regarding first and second degree murder. If the jury found the aggravating circumstance it was immaterial whether it was first or second degree murder. In either case, there verdict would have been that Julius was guilty of capital murder

These are: (1) prosecutorial misconduct during closing arguments; (2) the use of the 1972 murder conviction, without a cautionary instruction, during the guilt phase; (3) the failure to include a transcript of the jury qualification proceeding in the Alabama appellate court record; (4) the use of the transcript from his prior trial during the guilt phase without a proper explanatory instruction; (5) the use, as an aggravating circumstance, of the 1972 murder conviction obtained pursuant to an unconstitutional death penalty statute; and (6) retrial under a judicially rewritten death penalty statute

This rule is limited to the facts of this case. We express no opinion as to the effect of such a statement when the allegedly barred issue was raised by the defendant but not discussed in the state court's opinion. Nor need we decide whether such language permits federal review where the defendant raised the claim at trial, thus making it more likely that the state appellate court came across the claim during its review of the record

875 F.2d 1520

Arthur James Julius, Petitioner-Appellant,
v.
Charlie Jones, Warden, Holman Unit, Respondent-Appellee.

No. 89-7089

Federal Circuits, 11th Cir.

May 31 1989

Appeal from the United States District Court for the Middle District of Alabama, Truman Hobbs, Judge.

Before VANCE, HATCHETT and CLARK, Circuit Judges.

PER CURIAM:

This is an appeal from the district court's denial of petitioner's second petition for habeas corpus relief. We have reviewed the materials submitted by appellant and so much of the record as pertains to the points argued. Finding that the district court made no error, we AFFIRM the district court's order and amendment, attached as an Appendix.

APPENDIX

In the United States District Court for the Middle District of Alabama Northern Division

Arthur James Julius, Petitioner
vs.
Charlie Jones, Warden, Holman Unit, Respondent.

Civil Action No. 89-H-84-N.

MEMORANDUM OPINION

This Court has issued an order denying petitioner's habeas corpus petition, but finding probable cause for appellate review of this order and granting petitioner a stay from the imminent execution of his death sentence in order that petitioner can effect said review. This Court now issues its memorandum opinion stating the reasons for its Orders entered January 25, 1989.

PRIOR PROCEEDINGS

The petitioner was convicted of capital murder in September, 1978. He was found guilty of murdering his cousin while on a pass from prison where he was serving a life sentence. His 1978 sentence of death was reversed by the Alabama Supreme Court due to a decision by the United States Supreme Court that the Alabama death penalty statute was unconstitutional. See Ex parte Julius, 407 So.2d 152 (Ala.1981).

After the Supreme Court of Alabama cured the constitutional vice of the Alabama statute, petitioner was retried. On April 20, 1982, petitioner was again convicted of murder, and on May 24, 1982 was again sentenced to death by the Circuit Court of Montgomery County, Alabama.

After his conviction and sentence were affirmed by both the Alabama Court of Criminal Appeals and the Supreme Court of Alabama, the United States Supreme Court denied petitioner's petition for writ of certiorari in January, 1985. Petitioner then filed a writ of error coram nobis petition in the Circuit Court of Montgomery County. Following an evidentiary hearing, the petition was denied. This action was reviewed and affirmed by the Alabama Court of Criminal Appeals.

Petitioner then filed a petition of habeas corpus in this Court in August 1985. After said petition was denied by this Court, petitioner appealed to the Court of Appeals for the Eleventh Circuit, which affirmed the denial of the writ. 840 F.2d 1533 (1988). On an application for rehearing, the Court of Appeals modified its opinion but denied the application for rehearing. 854 F.2d 400 (1988).

Petitioner again unsuccessfully sought review in the Supreme Court of the United States.1

On January 17, 1989, petitioner filed a petition for post-conviction relief in the Circuit Court of Montgomery County. An evidentiary hearing was held on January 21, 1989 before Judge Gordon and on January 22, 1989 the Circuit Court issued its opinion denying the petition wholly on the ground that petitioner was procedurally barred from having any of his asserted grounds for relief considered because such grounds were known or could have been known at trial or on previous post-trial challenges to petitioner's conviction. Because this Court is unable to agree that all of petitioner's asserted grounds in his 1989 petition should be procedurally barred, the Court will address why these claims should not be procedurally barred, and will state why, although not procedurally barred, they are insufficient to justify the granting of the writ.

Petitioner presents five separate claims which he argues entitle him to a writ of habeas corpus. Claim I is based on newly discovered evidence of an exculpatory nature which was suppressed by the prosecution. Claim II alleges prosecutorial misconduct by the knowing use of false or misleading testimony. Count III alleges error in the prior denial of petitioner's claim that he was denied a fair trial by failing to receive a jury instruction on a lesser included offense. Claim IV alleges error in the prior denial of plaintiff's ineffective assistance of counsel claim. Lastly, Claim V alleges error of constitutional magnitude in the trial court's jury instructions at the sentencing phase of his trial. The Court will address each of these claims individually.

I. CLAIM I: NEWLY DISCOVERED EVIDENCE OF AN EXCULPATORY NATURE

Petitioner contends that the State violated the rule in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by failing to produce allegedly exculpatory evidence when requested by defense counsel. Defendant was convicted of the murder of Susie Sanders who was found dead, nude, physically abused and apparently strangled in her home by her father shortly after 5:00 p.m. on the afternoon of January 29, 1978.

A. Wheeler Allegedly Exculpatory Material

The evidence at trial from Ms. Wheeler was that around 4:00 p.m. on the afternoon of January 29, she called the victim on the telephone. After a brief conversation the victim Susie Sanders told Ms. Wheeler that she was going to talk with her cousin Bobo and she would call Ms. Wheeler right back. Ms. Wheeler testified that if Ms. Sanders had company when she called, Ms. Sanders would usually tell you she would talk to you later. (Tr. 223)

Petitioner suggests that because a police report used the name Bozo rather than Bobo, failure to produce this record was a violation of the Brady rule. But the transcribed notes of the police officer who took Ms. Wheeler's statement on January 29 reported the name as Bobo. It was in the typed reproduction that the name "Bozo" appeared. Ms. Wheeler testified at the trial and before the grand jury that the name was Bobo.

Mrs. Sanders, the mother of the victim, testified that she had a nephew who called himself Bobo, and she had heard her daughter call him Bobo. Others also had heard the defendant called Bobo. Petitioner is entitled to no relief because in one typed police report, the word is typed Bozo.

In his brief, petitioner also suggests that if his trial counsel had been aware that Ms. Wheeler had given a statement to the police that in their afternoon telephone conversation the victim had said she was going to talk to her cousin Bobo, this would have allowed reasonable jurors to conclude that Bobo was not at her house but that she was going to meet him elsewhere (Petr's brief R. 25). Petitioner, therefore, argued that Brady was violated when this report was not furnished. But Ms. Wheeler's trial testimony was precisely along the line of the alleged newly discovered exculpatory evidence. She testified that Ms. Sanders said: "Let me go talk to my cousin Bobo and I'll call you right back." (Tr. 223)

The Court finds nothing in Ms. Wheeler's testimony that would be exculpatory or that was different than the trial testimony by Ms. Wheeler.

B. Gray Allegedly Exculpatory Material

A young man, William Gray, Jr., who was a high school student at the time of the murder, testified that he had seen a car which in some particulars answered the description of a car driven by petitioner on the date of the murder. Gray placed the car at the victim's house about 5:10 or 5:15 p.m. Petitioner had that day borrowed a car from his cousin, Willie Clayton, after petitioner was released from prison on a pass. Petitioner had inquired of Mr. Clayton about Susie Sanders before Clayton lent petitioner his car. Clayton testified that petitioner had his car from 3:30 p.m. to 6:25 p.m.

Petitioner argues that there was a failure to disclose to the defense that Gray, when initially questioned by the police, gave a false name and address. Gray testified at trial that he left home to take his sister to work at about 4:50 or 4:55 p.m. on the day of the murder. He picked up some food at a drive-through restaurant, and on returning home saw a car parked in front of the victim's house. He identified the car from a photograph as the one which was the borrowed car driven that day by defendant.

The initial interview with Gray took place when Gray was stopped for speeding while driving his sister's car. Officer Helton who stopped Gray made a report of the conversation the next day. In the report he described Gray's traffic violation and reported that Gray explained his speeding by referring to the fact that his cousin had just been strangled.

Gray reportedly apologized for the speeding and told the officer that he had passed the victim's house that afternoon and had seen a car there that he had never seen there before. He reportedly said the car was in the driveway but that "he did not want anything to come back on him because he had told me about this." He then gave the officer a false name and address. Gray described the car reportedly in the driveway as a Ford LTD about a '68 model with a cloth top that had colors of green, white and gold in it.

The following day Officer Helton went to the Gray home with Officer Duncan who filed a report stating that the officers talked to William Gray, Jr. in his father's presence. At this occasion there is no mention in the report of Gray making any reference of seeing the car. He described taking his girl friend home the previous afternoon and returning directly to his house. After the officers left the house, Officer Helton told Officer Duncan that he was sure Gray was the same person whom he had stopped for speeding the previous day.

At a follow-up interview on January 31 at Carver High School, police officers again interviewed Gray, Jr. On this occasion, a report in the police files states that Gray, Jr. told the officers:

On this date we went to Carver High School and contacted Det. Davis School Relations Officer at that location, and in the presence of Det. Davis, we did talk with William Gray, Jr., b/m, age 16, 3125 Mobile Dr., 265-1861. After talking to him at some length he finally advised us that on the day of this incident that he had took his sister, Linda to work at Hardee's on Fairview and dropped her off approx. 10 minutes until 5:00.

He stated from there he went to McDonald's on Fairview and ordered a hamburger to go and after getting hamburger he departed McDonald's and drove the back way back to his home. He described this back way as taking him past the victim's house in this case. He stated it was probably 5:00 or 5:10 PM when he went by the victim's house and that he drove by her house he did see a Ford sedan somewhere between 1967-1971 model, green in color with plaid top. He stated the top of the car looked odd because it was kinda light green, yellow and white looking color.

He stated the car was parked on the side of the street that Susie's house was on and that car was parked facing the oncoming traffic. Going into more detail he stated that on the previous Sunday he had observed the car drive past his house from direction of victim's house and that a black male had been driving the car.

He described the black male and when given a series of black and white photographs in which the defendant's picture was included, he looked through photographs and picked the defendant as being individual who had been driving the car on previous Sunday. He did report that car he saw on the previous Sunday was the same car he had seen parked in front of the victim's house on the date of this incident.

At the time we talked with him he did not give us a written statement and later on in the day we went to his house on Mobile Dr. and his mother and father brought him to the Detective Office where he did give us a written signed statement in the presence of his parents concerning the above incident....

This Court has read Gray's trial testimony, and it is substantially as reported in the police file in the January 31 interview (R. 59-66).

Petitioner argues that the prosecutor was required to produce all the reported interviews of Mr. Gray because in one of the interviews he gave a false name and address and falsely reported that it was his cousin who was strangled (Gray is no relation to the victim) and in another interview did not mention seeing the car which was later identified as having been driven by defendant on that afternoon. Moreover, one report stated that Gray had placed the car in a driveway rather than on the street.

The Court is of the opinion that the furnishing of all the reported interviews with Mr. Gray was required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady requires that evidence that is both favorable to the defendant and "material to either guilt or punishment" must be produced.

On analysis of all the reported interviews, the Court is of the opinion that defense counsel could have made some use of the three or four interview reports. Defense counsel could have argued the unreliability of the testimony of one who gave a false identification and address to the police, even though the statement of false identity was next to the reported statement that Gray did not want to become involved in the strangulation death of his cousin.

Clearly in the opinion of this Judge, the better practice for the prosecutor would have been to produce the reported interviews, and the Court will treat such production as being required by Brady. However, although this Court would have compelled production of these documents at the trial level, their suppression does not necessarily warrant an automatic grant of the writ.

A court may order a new trial on the ground of suppression of Brady material "only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3382, 87 L.Ed.2d 481 (1985).

Evidence that the defendant was at the victim's home on the afternoon of her death also came from a statement by defendant, although defendant placed the time he was at the house earlier in the afternoon than the time Mr. Gray's testimony placed him there.

As the Court of Appeals stated in its 1988 opinion in an earlier habeas petition of this petitioner: "Although the evidence convicting Julius was all circumstantial, it was overwhelming." Julius v. Johnson, 840 F.2d 1533, 1541 (11th Cir.1988). This Court has read the trial transcript with the significance of the withheld testimony in mind, and such reading confirms the contention of the State that there is no reasonable probability that had this evidence been disclosed, the result would have been different.

C. Other Person Allegedly Exculpatory Evidence

On the night of the murder, the police sought any information which might give them a lead on any individual who might have committed the crime. They did have reports which showed that the victim had received phone calls with heavy breathing and harassing phone calls during the period of a week or more prior to her death. There was in the reports that she had other boy friends than her fiancee. There was a reported statement that the father of the victim's daughter was unhappy about the victim's proposed marriage. As with the Gray reported interviews the Court is of the opinion that these reports should have been produced under the Brady rule. As with the Gray reports, however, the Court concludes that there is not a reasonable probability that the disclosure of the evidence would have altered the result.

D. Broken Eyeglasses and Evidence that Mr. Sanders Did Not Know of Bobo Nickname Exculpatory Evidence

Petitioner also contends that a statement in the police files that the victim's father did not know anyone named Bobo and that a pair of broken glasses were found at the murder scene would have been exculpatory. The Court fails to see the materiality of the glasses. As for the father not knowing the defendant by the name of Bobo, there was evidence at the trial from a friend of the victim that when she was in the presence of the victim and defendant on two occasions, she never heard him called Bobo (Tr. 263).

On the other hand, in addition to Ms. Wheeler's statement that Susie was going to talk with her cousin Bobo, Susie's mother and Jessie Bullard had heard Susie refer to defendant as Bobo, although Ms. Bullard was not clear as to whether the name was Bobo, Lobo, Jabbo, or something similar. Defense counsel made an issue at the trial as to whether persons knew defendant as Bobo. Defense counsel knew even before the first trial that the victim's father would be a witness.

If the defense deemed his testimony on this point as critical, it certainly could have made inquiry. The Court does not deem his testimony as anything more than cumulative of the fact established by the defense without dispute that certain friends of the victim had never known of the nickname Bobo. The Court does not deem the failure to produce Mr. Sanders' statement as justifying the issuance of a writ. United States v. Bagley, supra.

E. Inventory List Exculpatory Evidence

Petitioner told Mr. Clayton on the day Mr. Clayton lent petitioner his car that petitioner only had eight cents. When Mr. Clayton met petitioner about 6:30 p.m. on the afternoon of the murder, petitioner had money. He had bought gas for the car and offered to give some money to Mr. Clayton. He told Mr. Clayton that a girl had given him the money when they went to a motel together.

The State showed that the victim's fiancee had given her thirty dollars the morning of her death. This created a basis for believing that petitioner had taken this sum from the victim. Among the documents delivered to defense counsel in December, 1988, was a property inventory reflecting that a twenty-dollar and a ten-dollar bill were recovered by the police from the victim's residence.

The Montgomery County Circuit Court found that petitioner failed to show that the basis of this claim was unknown to him or that his counsel could not have ascertained this information through reasonable diligence at least by the time of petitioner's second trial, or at the time of the first coram nobis proceeding in 1985. The Circuit Court pointed out that defense counsel never sought the property inventory. The knowledgeable Circuit Judge expressed the opinion with which this Court has no basis for disagreeing that had it been sought it would have been produced.

Finally, the Circuit Judge referred to the testimony of petitioner's present counsel that if he had read the trial transcript from the 1978 and 1982 trials, and had exercised reasonable diligence in tracking the chain of custody of the currency, he would have discovered the property inventory. Since defense counsel must concede that due diligence would have enabled him to obtain the information on the property inventory, procedural default appears to be correct. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986).

The presence of the money in the house does not rule out the contention of the State that the defendant took money from the house after strangling the victim. Petitioner's relative, Mr. Clayton, testified as to defendant's implausible explanation relative to the money. The Court is not of the opinion that the property inventory would have been of such materiality as to justify granting the writ.

F. Exculpatory Evidence and Procedural Default

Judge Gordon, who conducted a lengthy evidentiary hearing on the instant petition on January 21, 1989, concluded that the claims based on allegedly newly discovered exculpatory evidence were procedurally barred because the petitioner or his counsel knew of the material or through the exercise of reasonable diligence could have secured the material.

In part Judge Gordon may have logically based this opinion on the fact that as soon as petitioner's counsel in December of 1988 asked attorneys at the Attorney General's office if there was any Brady material in the police reports, the attorneys immediately set about to collect all the materials in the files of the Montgomery Police Department and made the files available to counsel for petitioner. This surely could have been done on petitioner's appeal or on his 1985 habeas petition. In both of these proceedings, the State was also represented by the Office of the State Attorney General.

Petitioner's attorneys assert that they did not ask earlier for the police files because they had assumed the Montgomery district attorney's office had provided the Brady material. They state that they had cause to suspect this might not be true when the Supreme Court of Alabama in Ex Parte Clarance Womack, 541 So.2d 47 (Ala.1988), reversed a conviction because of failure of the Montgomery district attorney's office to provide clearly exculpatory materials in violation of Brady.

This Court is unwilling to hold on the facts of this case that, if the prosecutor failed to produce evidence which was required to be produced under Brady and which failure was unknown to defendant's counsel, the claim is procedurally barred because defense counsel did not ferret out the violation. Such a ruling would reward the wrongdoer because he was not timely found out. This Court feels strongly that the repeated delays and appeals which take many years of almost endless litigation are serious and flagrant flaws in our judicial system.

The rule that invokes a procedural bar in most instances is a much needed and salutary rule, but not if it is to be applied because the defendant's counsel was too trusting and accepted the representations of the prosecutor. Defense counsel should be able to rely on a belief that prosecutors will comply with the Constitution and will produce Brady material on request.2

Although concluding that a procedural bar is not appropriate, this Court nevertheless has denied the writ because it has found that, even if such reports should have been produced it is not reasonably probable that they would have caused a different result. Because the state courts have not considered this newly produced evidence on the merits, viewing such issue as procedurally barred, this Judge is the only judge who has considered petitioner's claims with respect to this evidence.

The Court believes that in this capital case another court should review this Court's conclusion as to whether such evidence requires an issuance of the writ under Bagley. For this reason, this Court has found probable cause for the appeal and has stayed petitioner's execution until such review has been effected.

II. CLAIM II: KNOWING USE OF FALSE OR MISLEADING EVIDENCE; THE FORENSIC TESTIMONY

Petitioner filed a claim before Judge Gordon in the Circuit Court that the State's expert serologist, William Landrum, knowingly created a false impression concerning a semen stain on a nightgown found at the victim's house after her murder. After the hearing before Judge Gordon on January 21, petitioner withdrew the charge of knowingly creating a false impression. Landrum had testified that the stain on the victim's nightgown was a pure semen stain; that the person leaving the semen stain had AB type blood. He further testified that both the victim and the defendant had AB type blood, and only about four percent of the population have AB type blood.

Petitioner's expert who testified before Judge Gordon stated that in attempting to determine the blood type of a male donor in a semen stain, it is important to know whether the stain is a pure semen or whether it is a stain mixed with physiological fluids from the female because if the female is a secretor, her fluids could mask the presence of the male donor's blood. [It is admitted that petitioner is a secretor, and it is impossible to determine after her death whether the victim was a secretor.] Petitioner's expert thought Landrum should have done further testing than was done to verify that the semen stain was not a mixed stain. He testified that Landrum's testimony could be true that the stain was a pure stain but he did not believe that it was "absolutely true that the lack of epithelial cells indicates the lack of vaginal fluid." (IH Tr. 31)

When petitioner's expert was asked whether Landrum analyzed the stain in accord with the standards of practice in the serology profession, he responded:

I want to make something clear. I think Mr. Landrum acted in good faith and on his experience as a serologist ... And I think he did the best he could. And he believed that what he stated was correct. My feeling is that he may not have been.

Petitioner's expert said of course he was not saying that Mr. Landrum made any false statements or testified falsely. He did not know whether electrophoretic testing was being performed in Alabama in 1978, and, if not, then Landrum's work was reasonable.

Landrum testified that his examination of the semen stain caused him to determine that it was a pure semen stain, and that is still his opinion. Moreover, it is his expert opinion that even without electrophoretic testing he had a sufficient evidentiary basis for arriving at his conclusion. Although Landrum was familiar with electrophoretic testing, the Alabama Department of Forensic Sciences did not have such testing equipment in 1978. (IH. Tr. 76)

This claim clearly does not involve the failure to produce exculpatory evidence, and petitioner now concedes that there is no basis for any contention that Landrum's testimony was a knowing use of testimony to create a false impression. This Court finds no basis for granting the writ based on this claim relating to Landrum's testimony.

III. CLAIMS III AND IV: PLAIN ERROR IN PREVIOUSLY DECIDED ISSUES

The Court notes that Claims III and IV of the present petition for writ of habeas have been presented to this Court and to the Eleventh Circuit in a prior petition. Julius v. Johnson, 840 F.2d 1533, as amended, 854 F.2d 400 (11th Cir.1988). However, since the doctrine of res judicata does not apply to habeas corpus, Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 1073, 10 L.Ed.2d 148 (1963), the Court must determine whether the ends of justice would be served by redetermining these issues in the present proceeding. The burden lies with the petitioner to demonstrate that a reconsideration would serve the ends of justice. Bass v. Wainwright, 675 F.2d 1204, 1206 (11th Cir.1982). Although what circumstances would mandate a reconsideration has never been fully catalogued, see Sanders v. United States, 373 U.S. at 17, 83 S.Ct. at 1078, the Eleventh Circuit has held that where a legal conclusion reached in a prior habeas proceeding was plainly erroneous, then such a claim requires redetermination. See, e.g., Raulerson v. Wainwright, 753 F.2d 869, 874 (11th Cir.1985).

In the case at bar, petitioner asserts that the legal conclusions as to the issues of failure to instruct on a lesser included offense and ineffective assistance of counsel were plainly erroneous in that they were based on a mistaken analysis of the underlying facts. For the reasons stated below, this Court finds that the Eleventh Circuit's legal conclusions were not plainly erroneous and therefore that the ends of justice would not be served by the redetermination of the third and fourth claims of the present petition.

A. Claim III: Failure to Instruct on a Lesser Included Offense

Petitioner argues that he was entitled to an instruction on the lesser included offense of manslaughter because the State's evidence as to malice is capable of more than one reasonable inference, one of which is that malice did not exist. In deciding this question the Eleventh Circuit stated: " 'Due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.' [Hopper v. Evans, 456 U.S. 605 , 611, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367 (1981) (emphasis in original).]

Julius did not present any evidence suggesting that this crime was a manslaughter, nor did he suggest such a verdict during closing arguments ..." Julius v. Johnson, 840 F.2d at 1545. Petitioner contends that he did suggest a verdict of manslaughter during closing arguments and that, although he did not personally present evidence of manslaughter, the State's evidence left such a conclusion open to a reasonable jury.

Whether Julius' counsel argued that proof of malice was absent from the State's evidence is immaterial to the decision in question since, in the paragraph preceding the one containing the alleged "error," the Eleventh Circuit stated: "Beck v. Alabama requires the giving of a lesser included offense instruction only where 'there was evidence which, if believed, could reasonably have led to a verdict of a lesser offense.' " Id. at 1545. The legal question thus turns on the evidence presented at trial, and not the arguments of defense counsel.

The Eleventh Circuit noted that Julius did not present any evidence which would suggest that the crime was manslaughter. Such emphasis on petitioner's failure to produce evidence is clarified by the fact that the court there was addressing the argument that "the circumstances of the crime, without any supporting testimony, could have warranted a manslaughter conviction." Id. at 1544.

Petitioner again argues that he had no obligation to present evidence to support such a charge since a reasonable jury could infer such a result from the evidence presented by the prosecution. Petitioner asserts that, since the evidence presented might support the reasonable inference of consensual sexual activity, "[o]ne could reasonably have inferred that the attack was the result of provocation even though the particular provocation was unknown." Petition for Writ of Habeas at 49.

This Court does not address the case law cited by petitioner to support his renewed argument, since it appears that, as a primary hurdle, there must be evidence submitted at trial to support a charge of a lesser included offense. Petitioner seeks to overcome this hurdle by arguing that, given that the sexual encounter may have been consensual, such evidence supports an inference of a lesser included offense. However, even petitioner recognizes that in order to reduce an offense from murder to manslaughter, there must be evidence of "sufficient provocation." Petition for Writ of Habeas at 47, citing Julius v. State, 455 So.2d 975, 979 (Ala.Ct.Crim.App.1983). Where, as here, the entire record is devoid of evidence of any provocation, much less "sufficient provocation," the conclusion of the Eleventh Circuit appears to be clearly correct, rather than plainly erroneous. Therefore, the ends of justice do not mandate that this claim be redetermined on the merits.

B. Claim IV: Ineffective Assistance of Counsel

Petitioner claims that he was denied the right to effective assistance of counsel because his trial counsel failed to request an instruction limiting the jury's consideration of his 1972 murder conviction in the guilt phase of his trial. The Eleventh Circuit previously held that this failure did constitute ineffective assistance of counsel, but that such failure did not prejudice petitioner given the overwhelming, albeit circumstantial, evidence at trial. Julius v. Johnson, 840 F.2d at 1541. Given this Court's analysis of all of petitioner's claims up to this point, the conclusion of the Eleventh Circuit appears correct. Therefore, the ends of justice do not mandate a redetermination of this issue.

IV. CLAIM V: CONSTITUTIONAL ERROR IN JURY INSTRUCTIONS AT SENTENCING PHASE

Petitioner bases his fifth claim on what he characterizes as a "no sympathy" instruction during the sentencing phase of the trial. This claim has not been raised in any previous proceeding. Petitioner argues that this is a classic "new law" claim, in that the claim is based on the law as enunciated in California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) and therefore could not have been brought in any prior proceeding. Assuming, arguendo, that this claim is not procedurally barred, this Court declines to grant the writ on this basis.

Petitioner argues that the trial court's instruction at the guilt phase of the trial that "no sympathy, bias or prejudice for any person or individual should enter in your deliberations in rendering a verdict in this case ...," and afterwards the instruction at the sentencing phase that "I want to again remind you of the charge I gave you earlier concerning the basic law, as far as reasonable doubt and moral certainty are concerned, as well as your functions as jurors ..." offended the Eighth Amendment requirement that a capital sentencer be free to consider any evidence or factor offered by the defendant as a reason for a sentence less than death. Petitioner argues that his sentencer was precluded from considering his mitigating evidence before making its sentencing decision. This Court disagrees.

In evaluating this alleged constitutional error, the Court must determine how a reasonable juror could construe the instruction. Francis v. Franklin, 471 U.S. 307, 315-316, 105 S.Ct. 1965, 1971-1972, 85 L.Ed.2d 344 (1985). The Court first notes that the trial court did not repeat its previous instructions as to sympathy, but rather referenced "the basic law, as far as reasonable doubt and moral certainty are concerned," which was contained in the charge in the guilt phase of the case. The reference to sympathy in the guilt phase was clearly an instruction which would benefit an accused. It is illogical to believe that the jurors thought that the reference to sympathy in the guilt phase applied to the sentencing phase, especially given the instructions which followed the reference to which petitioner now objects. The trial court specifically instructed the jury at the sentencing phase that

... You can consider the evidence you heard in the guilt phase in considering any aggravating or mitigating circumstances at the present stage of the case. And that is what this hearing is all about, for you to consider and weigh aggravating circumstances and mitigating circumstances against each other in determining what the punishment for the Defendant will be in this case.

You are to consider all relevant evidence, not only as to why the death sentence should be imposed, but to weigh and consider all of the evidence as to why it should not be imposed ...

Record at 303-304. Furthermore, the trial court instructed the jury thatNow, the fact that I list these mitigating circumstances to you does not mean that those are the only mitigating circumstances that you can consider in this case. That is not meant to be an all inclusive of mitigating circumstances. You may find that there are other mitigating circumstances in this case from the evidence you heard and from anything that you may have heard in the evidence about Defendant's character or his life ...

Record at 308. Given these instructions as a whole, this Court finds a reasonable juror could not have construed that the trial court's instruction prohibited the jury at the sentence phase from considering mitigating evidence regarding petitioner's character and background. Therefore, the Court declines to grant the writ on this basis.

V. CONCLUSION

Having found no merit in petitioner's claims regarding the suppression of Brady material, or the use of Landrum's forensic testimony, or the alleged error in the trial court's instructions to the jury at the sentencing phase, and further having found that petitioner's other claims do not merit a redetermination, the Court finds no basis upon which to issue a writ of habeas corpus. Therefore, the petition has been denied.

DONE this 31st day of January, 1989.

/s/ Truman Hobbs

UNITED STATES DISTRICT JUDGE

In the United States District Court for the Middle District of Alabama Northern Division

Arthur James Julius, Petitioner
vs.
Charles E. Jones, Warden, etc., Respondent

Civil Action No. 89-H-84-N.

ORDER

Pursuant to respondent's request for clarification or modification of this Court's Memorandum Opinion entered January 31, 1989, and for good cause shown, said request is GRANTED. This Court hereby VACATES Part I.E. of its opinion. Petitioner did not present the issue contained in Part I.E. to the Court in his petition for writ of habeas corpus, and therefore said issue was not properly before the Court.

The Court mistakenly considered this issue due to the numerous documents previously filed with the Court in this cause. Said documents erroneously stated that the inventory list indicated that the money in question came from the victim's house. However, in the testimony presented to Judge Gordon on January 21, 1989, it was shown that the money included on the inventory list had been taken from petitioner. In light of this testimony, it appears that petitioner correctly concluded that the claim should be dropped.

DONE and ORDERED this 2nd day of February, 1989.

/s/ Truman Hobbs

UNITED STATES DISTRICT JUDGE

*****

1 Petitioner filed at least two pro se petitions in this Court which were denied and the denials were affirmed in the Court of Appeals

2 The Court concedes that whether a statement is exculpatory and subject to production under Brady is not always free of doubt. The safe course for the prosecutor is to produce the statement for in camera inspection by the court where there is reasonable cause for doubt