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Timothy Wesley McCORQUODALE

 
 
 
 
 

 

 

 

   
 
 
Classification: Murderer
Characteristics: Rape - Mutilator
Number of victims: 1
Date of murder: January 17, 1974
Date of birth: 1952
Victim profile: Donna Marie Dixon (female, 17)
Method of murder: Strangulation
Location: Atlanta, Georgia, USA
Status: Executed by electrocution in Georgia on October 21, 1987
 
 
 
 
 
 

Timothy McCorquodale - Oct 21, 1987

On the evening of January 16, 1974, the 17 year old victim, Donna Marie Dixon, and her friend Pamela were in the area of Peachtree and 10th Street in the City of Atlanta known as 'The Strip.'

While in a restaurant they were accosted by a man named Leroy who invited them to a bar for a beer. While in the bar the two girls engaged in a conversation with two black men. Leroy left the bar and the girls later went to another bar on 'The Strip.'

Leroy met them at this bar, approached their table and accused Donna and Pamela of stealing $40 or $50 from him and giving the money to a black pimp. At this point they were joined by the defendant McCorquodale and his girlfriend, Bonnie Succaw (now Johnson). At the request of Leroy and McCorquodale the girls were taken to a bathroom and searched by Bonnie and a friend. They found no money.

McCorquodale and Leroy then summoned a cab, and joined by Bonnie, they took Donna with them to Bonnie's apartment. They arrived at Bonnie's apartment shortly after midnight and found Bonnie's roommate, Linda, and Bonnie's three year old daughter asleep.

McCorquodale had lived some eight months prior to his time in the apartment with Bonnie. Linda joined them in the living room of Bonnie's apartment and at this point there was some conversation between McCorquodale and Leroy about Donna being a 'nigger lover' and that she needed to be taught a lesson.

McCorquodale, after telling Donna how pretty she was, raised his fist and hit her across the face. When she stood up, he grabbed her by her blouse, ripping it off. He then proceeded to remove her bra and tied her hands behind her back with a nylon stocking.

McCorquodale then removed his belt, which was fastened with a rather large buckle, and repeatedly struck Donna across the back with the buckle end of the belt. He then took off all her clothing and then bound her mouth with tape and a washcloth.

Leroy then kicked Donna and she fell to the floor. McCorquodale took his cigarette and burned Donna on her breasts, her thigh, and her navel. He then bit one of Donna's nipples and she began to bleed. He asked for a razor blade and then sliced the other nipple. He then called for a box of salt and poured it into the wounds he had made on her breasts.

At this point Linda, who was eight months pregnant, became ill and went into the bedroom and closed the door. McCorquodale then lit a candle and proceeded to drip hot wax over Donna's body. He held the candle about 1/2 inch from Donna's vagina and dripped the hot wax into this part of her body. He then used a pair of surgical scissors to cut around her clitoris.

While bleeding from her nose and vagina, Leroy forced Donna to perform oral sex on him while McCorquodale raped her. Then Leroy raped Donna while McCorquodale forced his penis into her mouth.

McCorquodale then found a hard plastic bottle which was about 5 inches in height and placed an antiseptic solution within it, forcing this bottle into Donna's vagina and squirted the solution into her.

Donna was then permitted to go to the bathroom to 'get cleaned up.' While she was in the bathroom, McCorquodale secured a piece of nylon rope and told Bonnie and her roommate that he was going 'to kill the girl.'

He hid in a closet across the hall from the bathroom and when Donna came out of the bathroom he wrapped the nylon cord around her neck. Donna screamed, 'My God, you're killing me.'

As McCorquodale tried to strangle her, the cord cut into his hands and Donna fell to the floor. He fell on top of her and began to strangle her with his bare hands. He removed his hands and Donna began to have convulsions. He again strangled her and then pulled her head up and forward to break her neck.

He covered her lifeless body with a sheet and departed the apartment to search for a means of transporting her body from the scene. By this time, it was approximately 6:00 a.m. on the morning of January 17.

McCorquodale soon returned to the apartment and asked Bonnie for her trunk and Leroy and McCorquodale tried to place Donna's body in the trunk. Finding that the body was too large for the trunk, McCorquodale proceeded to break Donna's arms and legs by holding them upright while he stomped on them with his foot. Donna's body was then placed in the trunk and the trunk was placed in the closet behind the curtains.

McCorquodale and Leroy then went to sleep on the couch in the living room for the greater portion of the day, leaving the apartment sometime during the afternoon.

Because a strong odor began to emanate from the body, and her efforts to mask the smell with deodorant spray had been unsuccessful, Linda called Bonnie to request that McCorquodale remove the trunk from the apartment.

Shortly after 8:00 p.m. McCorquodale arrived at the apartment with a person named Larry. As they attempted to move the trunk from the closet, blood began spilling from the trunk on to the living room floor. McCorquodale placed a towel under the trunk to absorb the blood as they carried the trunk to Larry's car.

When McCorquodale and Larry returned to the apartment they told Linda that the body had been dumped out of the trunk into a road and that the trunk was placed under some boxes in a 'Dempsey Dumpster.' Donna's body was found about half a mile off Highway No. 42 in Clayton County.

 
 

Slayer Executed in Georgia; High Court Rejects Appeals

The New York Times

September 22, 1987

Timothy W. McCorquodale was electrocuted this evening for the 1974 torture and murder of a runaway teen-age girl, a murder he said he could not remember.

Mr. McCorquodale, the fifth man to be executed in Georgia this year, was pronounced dead at 7:23 P.M., according to a prison system spokesman, John Siler.

The 35-year-old slayer was convicted of raping, torturing and then breaking the neck of a 17-year-old girl he had seen talking to a black man. Both the slayer and the victim were white.

A request for clemency from the state Board of Pardons and Paroles was rejected today at mid-afternoon, shortly after the United States Supreme Court, on a 6-to-2 vote, turned down one of the two appeals before it. High Court Rejects Appeal

Later today, by the same vote, the Court rejected Mr. McCorquodale's final appeal, a challenge to the refusal Sunday of the United States Court of Appeals for the 11th Circuit to stay the execution.

Mr. McCorquodale was the 93d prisoner to be put to death in the United States since the Supreme Court cleared the way for states to resume capital punishment in 1976.

He was sentenced to die for the slaying of Donna Marie Dixon, a runaway from Newport News, Va., who had gone to ''the Strip,'' a rough section of midtown Atlanta, which several years before had housed the city's hippie community.

The parole board chairman, Wayne Snow, said that on Friday the panel received a letter from Mr. McCorquodale in which ''he does show considerable remorse for what he's done.''

Nevertheless, Mr. Snow said the board had viewed the killing as ''one of the most heinous crimes committed in the state'' and had decided against commuting the death sentence for that reason. Circumstances of Crime

Witnesses at his trial said Mr. McCorquodale became enraged when he saw Miss Dixon speaking with a black man in a bar near the Strip.

According to witnesses, Mr. McCorquodale and another man took Miss Dixon to the apartment of a girlfriend of Mr. McCorquodale's, where they raped her, tortured her for two hours and tried to strangle her with a nylon cord. When that failed, evidence showed, Mr. McCorquodale broke her neck with his hands.

Her nude body, stuffed into a box, was dumped in suburban Clayton County.

The case prosecutor, Joe Drolet, said the other man involved in the killing was never found.

In 1976, a state psychiatrist reported that Mr. McCorquodale could not remember Miss Dixon's murder. ''I cannot believe that I would do them things,'' he was quoted as saying. ''I just don't believe I could do it.''

 
 

Supreme Court of Georgia

233 Ga. 369

211 S.E.2.d 577

MCCORQUODALE v. THE STATE.

October 15, 1974

Docket number: 29131

I.

The state presented evidence to establish the following facts:

On the evening of January 16, 1974, Donna, the victim, a 17-year-old girl, and her friend, Pamela Pharris, were in the area of Peachtree and 10th Street in the City of Atlanta known as "The Strip."

While in a restaurant they were accosted by a man named Leroy who invited them to a bar for a beer. While in the bar the two girls engaged in a conversation with two black men. Leroy left the bar and the girls later went to another bar on "The Strip."

Leroy met them at this bar, approached their table and accused Donna and Pamela of stealing $40 or $50 from him and giving the money to a black pimp. At this point they were joined by the defendant McCorquodale and his girlfriend, Bonnie Succaw (now Johnson).

At the request of Leroy and McCorquodale the girls were taken to a bathroom and searched by Bonnie and a friend. They found no money. McCorquodale and Leroy then summoned a cab, and joined by Bonnie, they took Donna with them to Bonnie's apartment.

They arrived at Bonnie's apartment shortly after midnight and found Bonnie's roommate, Linda, and Bonnie's three-year-old daughter asleep. The appellant McCorquodale had lived some eight months prior to this time in the apartment with Bonnie.

Linda joined them in the living room of Bonnie's apartment and at this point there was some conversation between McCorquodale and Leroy about Donna being a "nigger lover" and that she needed to be taught a lesson.

The appellant, after telling Donna how pretty she was, raised his fist and hit her across the face. When she stood up, he grabbed her by her blouse, ripping it off. He then proceeded to remove her bra and tied her hands behind her back with a nylon stocking.

McCorquodale then removed his belt, which was fastened with a rather large buckle, and repeatedly struck Donna across the back with the buckle end of the belt. He then took off all her clothing and then bound her mouth with tape and a washcloth. Leroy then kicked Donna and she fell to the floor.

McCorquodale took his cigarette and burned the victim on the breasts, the thigh, and the navel. He then bit one of Donna's nipples and she began to bleed. He asked for a razor blade and then sliced the other nipple. He then called for a box of salt and poured it into the wounds he had made on her breasts.

At this point Linda, who was eight months pregnant, became ill and went into the bedroom and closed the door. McCorquodale then lit a candle and proceeded to drip hot wax over Donna's body. He held the candle about 1/2 inch from Donna's vagina and dripped the hot wax into this part of her body. He then used a pair of surgical scissors to cut around the victim's clitoris.

While bleeding from her nose and vagina, Leroy forced the victim to perform oral sex on him while McCorquodale had intercourse with her. Then Leroy had intercourse with the victim while McCorquodale forced his penis into the victim's mouth.

McCorquodale then found a hard plastic bottle which was about 5 inches in height and placed an antiseptic solution within it, forcing this bottle into Donna's vagina and squirted the solution into her. The victim was then permitted to go to the bathroom to "get cleaned up." While she was in the bathroom, McCorquodale secured a piece of nylon rope and told Bonnie and her roommate that he was going "to kill the girl."

He hid in a closet across the hall from the bathroom and when Donna came out of the bathroom he wrapped the nylon cord around her neck. Donna screamed, "My God, you're killing me." As McCorquodale tried to strangle her, the cord cut into his hands and Donna fell to the floor. He fell on top of her and began to strangle her with his bare hands. He removed his hands and the victim began to have convulsions.

He again strangled her and then pulled her head up and forward to break her neck. He covered her lifeless body with a sheet and departed the apartment to search for a means of transporting her body from the scene. By this time, it was approximately 6:00 a.m. on the morning of January 17.

McCorquodale soon returned to the apartment and asked Bonnie for her trunk and Leroy and McCorquodale tried to place Donna's body in the trunk. Finding that the body was too large for the trunk McCorquodale proceeded to break Donna's arms and legs by holding then upright while he stomped on them with his foot. Donna's body was then placed in the trunk and the trunk was placed in the closet behind the curtains. McCorquodale and Leroy then went to sleep on the couch in the living room for the greater portion of the day, leaving the apartment sometime during the afternoon.

Because a strong odor began to emanate from the body, and her efforts to mask the smell with deodorant spray had been unsuccessful, Linda called Bonnie to request that McCorquodale remove the trunk from the apartment. Shortly after 8:00 p.m. McCorquodale arrived at the apartment with a person named Larry. As they attempted to move the trunk from the closet, blood began spilling from the trunk onto the living room floor. McCorquodale placed a towel under the trunk to absorb the blood as they carried the trunk to Larry's car.

When McCorquodale and Larry returned to the apartment they told Linda that the body had been dumped out of the trunk into a road and that the trunk was placed under some boxes in a "Dempsey Dumpster." Donna's body was found about half a mile off Highway No. 42 in Clayton County.

II.

McCorquodale appeals to this court alleging some twenty-six enumerations of error, some of which are redundant and combined for consideration.

1. No further recitation of facts is necessary to establish that the general grounds are without merit. The aggravating circumstances found by the jury were "that the offense of murder . . . was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Ga. L. 1973, pp. 159, 163 (Code Ann. 27-2534.1(h7)). The appellant argues that the aggravating circumstances found by the jury were not connected with the actual homicide in that the victim did not protest the treatment and that the torture, if any, did not lead to the death in that there was a break between the mistreatment and killing of the victim.

As we view the factual setting the torture and killing were all one uninterrupted night of horror, the macabre affair ending with the appellant deliberately killing the victim to cover the heinous and senseless crimes committed upon her. The finding of the jury was amply supported by the evidence and the verdict is not contrary to law. The trial court did not err in overruling the appellant's motion for new trial.

2. In the absence of a request the court did not err in failing to charge the jury on voluntariness of a confession which was introduced into evidence and read to the jury following a full and complete Jackson-Denno type hearing.

Appellant contends that his confession was involuntary in that it was induced by a detective's promise that he would not be able to see his girlfriend, Bonnie, until such time as he had made a confession. This contention is disputed by the testimony of the detective who stated that Bonnie was present in the room when appellant requested to speak with the detective privately. The detective also testified that he did not promise appellant that he could see his girlfriend only after giving his statement. Code 38-411 provides: "To make a confession admissible, it must have been made voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury."

The record indicates that the trial court held a full and complete hearing on the issue of voluntariness of the confession, meeting the requirements of Jackson v. Denno, 378 U. S. 368. After this hearing the judge determined that the confession was voluntary and admissible for the jury's consideration. His determination is supported by a preponderance of the evidence as required by High v. State, 233 Ga. 153.

In Thomas v. State, 233 Ga. 237, this court held that "Under established Georgia law there Is no necessity to give a charge on the subject of the voluntariness of a confession unless there is a specific request for it. Ivy v. State, 220 Ga. 699, 704 (141 SE2d 541); Harvey v. State, 216 Ga. 174, 177 (115 SE2d 345) (both cases approved in Curry v. State, 230 Ga. 221 (196 SE2d 443))."

In the absence of a request to charge or an objection to the court's omission to charge the jury on voluntariness of the confession, the trial court did not err. Although there is no burden on defense counsel in a criminal case to object to an instruction as a condition precedent to enumerating it as error, we note here that counsel in answer to an inquiry by the court affirmatively stated that his only objection related to the charge on voluntary man slaughter. See Gearin v. State, 127 Ga. App. 811, 813 (195 SE2d 211) and Thompkins v. State, 126 Ga. App. 683, 684 (191 SE2d 555).

We also note that there was ample evidence to support the conviction without the confession, including the testimony of two eyewitnesses to the crime. The Supreme Court of the United States has recently held that "unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required." Schneble v. Florida, 405 U. S. 427, 432 (92 SC 1056, 31 LE2d 340) (1972). We do not believe that the jury would have found the state's case significantly less persuasive had the confession been excluded.

3. Appellant urges that the trial court erred in refusing to accept his guilty plea and waiver of jury trial. Our statute provides that "any person who has been indicted for an offense punishable by death may enter a plea of guilty at any time after his indictment, and the judge of the superior court having jurisdiction may, in his discretion, during term time or vacation, sentence such person to life imprisonment, or to any punishment authorized by law for the offense named in the indictment: Provided, however, that the judge of the superior court must find one of the statutory aggravating circumstances provided in Section 27.2534.1 before imposing the death penalty except in cases of treason or aircraft hijacking." Code Ann. 27-2528.

A predecessor statute using the same permissive term "may" was held to authorize the judge in his discretion to so act but not to require him to do so. Massey v. State, 220 Ga. 883 (142 SE2d 832). We construe this statute likewise. We find no mandatory provision that the judge must accept a plea of guilty under such circumstances. There is no federally recognized right to a criminal trial before a judge sitting alone. Singer v. United States, 380 U. S. 24, 34 (85 SC 783, 13 LE2d 630); Lynch v. Overholser, 369 U. S. 705, 719 (82 SC 1063, 8 LE2d 211). The opinions of this court are in accord. Palmer v. State, 232 Ga. 13 (205 SE2d 247) and United States v. Matlock, 415 U. S. 164 (94 SC 988, 39 LE2d 242) (1974).

As to the clothing obtained from the defendant the evidence shows that when he came to the police station though not under arrest, there were spots on his trousers in plain view that appeared to be blood spots. When it was suggested that the trousers should be sent to the laboratory the appellant voluntarily took off his clothing without objection and they were sent to the laboratory. He was furnished a blanket to wrap about himself. Part of the defendant's clothing was a belt with a large buckle. In view of the testimony concerning the beating of the victim with such a belt it was material and relevant. Seizure of the clothing was justified under the "plain view rule" even if permission had not been given. Katz v. United States, 389 U. S. 347; Coolidge v. New Hampshire, 403 U. S. 443.

The trial court did not err in denying the motion to suppress this evidence.

5. There was no error in admitting photographs of the victim. Photographs which tend to show relevant and material facts are admissible although it is alleged that they are designed to inflame and prejudice the jury. Eberheart v. State, 232 Ga. 247 (206 SE2d 12); Dixon v. State, 231 Ga. 33 (200 SE2d 138).

6. The Act providing for the imposition of the death penalty deals with only one subject and is not violative of the Georgia Constitution. Code Ann. 2-1908. Each section of Ga. L. 1973, pp. 159-172 relates to the procedure by which the death penalty is imposed, the justification thereof, the review of the same, and other administrative details. Each section is consistent with its announced subject matter, "Provision for Imposition of Death Penalty Made."

7. The trial court did not err in failing to charge the law of voluntary manslaughter as the evidence did not authorize such instruction. The evidence shows no provocation for the defendant's action. To the contrary it shows the defendant deliberately securing a piece of rope, waiting for the victim to return from the bathroom and stating to those present that he was going to "kill the girl."

8. The appellant was given a list of the witnesses to be called by the state prior to arraignment aid afforded the opportunity before the commencement of the trial to interview those witnesses whose names had not previously been furnished to him. This is consonant with Code Ann. 27-1403. Yeomans v. State, 229 Ga. 488 (192 SE2d 362); Vinson v. State, 127 Ga. App. 607 (194 SE2d 583).

9. The trial court did not err in holding the arrest of the defendant valid.

Where, as in this case, the police have a local tip concerning the perpetrator, a tip transmitted by a sheriff in another county to the same effect, a complete statement by an eyewitness to the crime implicating the defendant and what appeared to be blood spatters on the defendant's trousers, they were justified in arresting the defendant without a warrant "for other cause there is likely to be failure of justice for want of an officer to issue a warrant." Code 27-207. Paige v. State, 219 Ga. 569 (134 SE2d 793); Johnson v. Plunkett, 215 Ga. 353 (110 SE2d 745). Neither do such circumstances vitiate a conviction, otherwise valid, had following waiver of a commitment hearing, indictment by grand jury and trial by jury. Blake v. State, 109 Ga. App. 636 (2) (137 SE2d 49) and cits. See also Frisbie v. Collins, 342 U. S. 519 (72 SC 509, 96 Lid 541).

10. Enumerations of error 17, 18, and 19 complain that the trial court improperly denied defense motions for mistrial based on certain remarks of the district attorney during closing argument. We have carefully reviewed these remarks in the context in which made and find no reversible error. It is within the court's discretion as to whether an allegedly improper argument of counsel is the basis for granting a mistrial, and this discretion should not be interfered with unless manifestly abused. Code 81-1009; James v. State, 215 Ga. 213 (109 SE2d 735).

11. We have upheld the constitutionality of the Georgia death penalty statute and we are not persuaded to reconsider the decision in those cases. Coley v. State, 231 Ga. 829 (204 SE2d 612); Eberheart v. State, 232 Ga. 247, supra; and House v. State, 232 Ga. 140 (205 SE2d 217).

12. There is no merit in appellant's contention that Code Ann. 27-2534.1 (c) is unconstitutional in that it allows only a portion of the court's charge to the jury to be given in writing. The written material furnished the court in this case is authorized and required by the statute, is not evidence in the case, is purely procedural, is restricted to the sentencing phase of the bifurcated trial and amounts to no more than a written formulation of the jury's potential verdict. There is no constitutional, legislative, or judicial prohibition against such practice.

13. Jurors who stated that they could not under any circumstances consider imposition of the death penalty were properly excused for cause. Witherspoon v. Illinois, 319 U. S. 510; Eberheart v. State, supra; Pass v. State, 227 Ga. 730 (182 SE2d 779) and Hart v. State, 227 Ga. 171 (179 SE2d 346).

III.

Sentence Review.

We have applied the test of constitutionality established by the standards prescribed in Ga. L. 1973, p. 159 (Code Ann. 27-2537 (c) (1-3) et seq.), as we have in prior cases. Coley v. State, 231 Ga. 829; Eberheart v. State, 232 Ga. 247; and House v. State, 232 Ga. 140, all supra. Those similar cases we considered in reviewing this case are listed in an appendix attached to this opinIon.

We conclude that the sentence of death imposed in this case was not imposed under the influence of passion, prejudice, or any other arbitrary factor, and the evidence supports the jury's finding of statutory aggravating circumstances.

Considering both the crime and the defendant, and after comparing the evidence and sentence in this case with that of previous cases, we conclude the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases. In no case we have reviewed has the depravity of the defendant and the torture of the victim exceeded that established by the evidence and testimony of the witnesses in this case. We affirm the sentence of death.

APPENDIX.

Similar cases considered by the court: Henderson v. State, 227 Ga. 68 (179 SE2d 76); Pass v. State, 227 Ga. 730 (182 SE2d 779); 229 Ga. 191 (190 SE2d 921); Jackson v. State, 230 Ga. 181 (195 SE2d 921); Watson v. State, 229 Ga. 787 (194 SE2d 407); Callahan v. State, 229 Ga. 737 (194 SE2d 431); Whitlock v. State, 230 Ga. 700 (198 SE2d 865); Kramer v. State, 230 Ga. 855 (199 SE2d 805); Bennett v. State, 231 Ga. 458 (202 SE2d 99); Howard v. State, 231 Ga. 186 (200 SE2d 755); Morgan v. State, 231 Ga. 280 (201 SE2d 468); Creamer v. State, 232 Ga. 136 (205 SE2d 240); House v. State, 232 Ga. 140 (205 SE2d 217); Gregg v. State, 233 Ga. 117 (210 SE2d --); Carter v. State, 227 Ga. 788 (183 SE2d 392); Wheeler v. State, 229 Ga. 617 (193 SE2d 819); Allen v. State, 230 Ga. 876 (199 SE2d 793); Lingerfelt v. State, 231 Ga. 354 (201 SE2d 445); Echols v. State, 231 Ga. 633 (203 SE2d 165); Emmett v. State, 232 Ga. 110 (205 SE2d 231).

 
 

832 F.2d 543

Timothy Wesley McCORQUODALE, Petitioner-Appellant,
v.
Ralph KEMP, Warden, Respondent-Appellee.

No. 84-8414.

United States Court of Appeals,
Eleventh Circuit.

Sept. 8, 1987.

Appeal from the United States District Court for the Northern District of Georgia.

Before BODBOLD, KRAVITCH and HATCHETT, Circuit Judges.

PER CURIAM:

This is McCorquodale's second federal habeas corpus petition.1 The petition raises three claims: that the sentencing phase jury instructions were constitutionally deficient, that the death penalty is discriminatorily applied in Georgia, and that trial counsel was ineffective during the voir dire at trial. The district court dismissed each of these claims under Rule 9 of the Rules Governing Sec. 2254 Cases.

McCorquodale only presses his first two claims on this appeal. We need not decide whether the claim of discriminatory application of the death penalty was properly dismissed on Rule 9 grounds in light of the rejection of this claim in McCleskey v. Kemp, --- U.S. ----, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). We hold that the district court did not err in dismissing the jury instruction claim as an abuse of the writ and, therefore, affirm the judgment denying relief.

Under Rule 9(b), a federal habeas court does not consider a claim raised for the first time in a successive habeas corpus petition if the failure to raise the claim in a prior petition earlier was the result of an abuse of the writ. If the state alleges abuse of the writ, the burden is on the plaintiff to rebut this contention. Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.1985). The district court found that McCorquodale had not met his burden to establish that the failure to raise the jury instruction claim in his first federal petition was not cause for dismissal under Rule 9(b).

McCorquodale challenges the sentencing instruction given to the capital jury on the grounds that it "failed to properly instruct the jury ... on the role which mitigating evidence should play and that they could impose life sentence even if they found a statutory aggravating circumstance beyond a reasonable doubt." Petition for Writ of Habeas Corpus at 9-10. He asserts that similar instructions have been condemned in this court in a line of cases beginning with Spivey v. Zant, 661 F.2d 464 (5th Cir.1981).

Although Spivey was decided after McCorquodale's first petition was filed, this is not a "new law" claim based on legal principles not reasonably known until after the first federal habeas petition. McCorquodale's first petition was filed on January 17, 1979. At the latest, this jury instruction claim was available to habeas counsel three and a half months earlier, after the Fifth Circuit decision in Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. October 3, 1978).2

The court in that case asserted the exact legal principle upon which McCorquodale now seeks to rely: "We read Lockett [v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (July 3, 1978) ] and Bell [v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (July 3, 1978) ] ... to mandate that the judge clearly instruct the jury about mitigating circumstances and the option to recommend against death." 581 F.2d at 448.

Because the jury instruction challenge is not a new law claim, we turn to McCorquodale's other proffered justifications for the failure to raise this claim in his first federal habeas petition. He asserts that his first petition "was filed by counsel who ... had never 'consciously' identified the claims." Appellant's Brief at 16. The district court noted the testimony of McCorquodale's habeas counsel that "he did not go back and review the McCorquodale trial transcript to see if the trial judge's sentencing instructions could be faulted based on the rationale of the Chenault decision." District Court Opinion at 6. We conclude that the district court did not err in finding that this does not meet the petitioner's burden of establishing that a Rule 9(b) dismissal is inappropriate.

McCorquodale also seeks to excuse the failure to raise this claim in the first petition because it had not then been exhausted in the state courts. McCorquodale's counsel testified that he understood his charge in the federal habeas corpus proceeding to be to take to federal court those issues that already had been exhausted in the state courts. McCorquodale now argues that the failure to bring available but unexhausted claims to federal court on a first habeas petition was not abusive in light of exhaustion law at the time. He points to the en banc Fifth Circuit decision in Galtieri v. Wainwright, 582 F.2d 348 (5th Cir.1978), which required the dismissal of habeas petitions that include unexhausted as well as exhausted claims.

McCorquodale thus seeks to justify his counsel's failure to examine the record for available but unexhausted claims because he did not want to bring a mixed petition which would have been dismissed. This is not a justification. Rule 9 reflects the strong federal policy against piecemeal adjudication of federal habeas claims. This is the ground on which the new Fifth Circuit sitting en banc rejected an argument, similar to that raised here, that there was no abuse in failing to raise unexhausted claims in a first federal habeas petition. Jones v. Estelle, 722 F.2d 159 (5th Cir.1983), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984). The court held that

a petitioner who has persisted in the prosecution of a federal writ while aware of additional but then unexhausted claims faces the hurdle of disproving abuse when in a successive petition he presents the omitted claims. While a petitioner may have an excuse for the omission, such as newly found facts or changes in the law, that the omitted claim was not then exhausted is alone not enough. To hold otherwise would be to present his claims one by one to a federal court by exhausting them one by one in the courts of the state.

Id. at 169 (footnote omitted). See also Rudolph v. Blackburn, 750 F.2d 302, 305 (5th Cir.1984) ("Rudolph's sole excuse for not having raised this Brady claim in his first federal petition is that it was an unexhausted claim"; abuse found).3

The insufficiency of this second proffered excuse is apparent from an examination of Galtieri itself. That case makes it clear that the rule is that a mixed petition is to be dismissed by a federal district court without prejudice. See 582 F.2d at 355. The court also notes that the failure to raise a claim, even an unexhausted one, may cause the petitioner Rule 9 problems. Id. at 357.4

Putting these two items together, the message of Galtieri to a lawyer in the position of McCorquodale's habeas counsel was that the appropriate course of action was to exhaust all available claims and then bring them to federal court at the same time rather than risk the chance that Rule 9 would bar later consideration of a claim on the merits. The lack of exhaustion at the time of the first petition does not change the determination that the failure to review the state record at the time of the filing of the federal petition was an abuse of the writ.

AFFIRMED.

*****

1

McCorquodale received the death sentence in Fulton County, Georgia for the murder of Donna Marie Dixon on April 12, 1974. The Georgia Supreme Court affirmed, 233 Ga. 369, 211 S.E.2d 577 (1974), and the United States Supreme Court denied certiorari. 428 U.S. 910, 96 S.Ct. 3223, 49 L.Ed.2d 1218 (1976)

McCorquodale filed his first state habeas petition on October 28, 1978. The petition was denied and the Georgia Supreme Court affirmed. 239 Ga. 138, 236 S.E.2d 486 (1974). Again the U.S. Supreme Court denied certiorari. 434 U.S. 975, 98 S.Ct. 534, 54 L.Ed.2d 467 (1977). He then filed an "extraordinary motion for a new trial" in the Fulton County court. The motion was denied, and the Georgia Supreme Court affirmed. 242 Ga. 507, 249 S.E.2d 211 (1978).

McCorquodale filed his first federal habeas corpus petition on January 17, 1979 in N.D. Georgia. The district court dismissed petition on October 21, 1981. 525 F.Supp. 408 (N.D.Gal.1981). This court reversed, 705 F.2d 1553 (11th Cir.1983), but the court en banc affirmed the district court. 721 F.2d 1493 (11th Cir.1983) (en banc). The U.S. Supreme Court denied certiorari on April 23, 1984, 466 U.S. 954, 104 S.Ct. 2161, 80 L.Ed.2d 546 (1977), and 12 days later McCorquodale filed with that court a petition for rehearing and an application for suspension of the effect of the order denying the petition for writ of certiorari.

In May 1984 a new date was set for McCorquodale's execution. A successor state habeas petition was filed in Butts County and dismissed. The Georgia Supreme Court denied McCorquodale a certificate of probable cause to appeal.

On May 18, 1984 McCorquodale filed his second federal habeas corpus petition in N.D. Georgia. The district court dismissed this petition on abuse of the writ grounds. A motion for a stay of execution and application for a certificate of probable cause for appeal were filed with this court.

Before this court acted, the U.S. Supreme Court on May 21 granted the requested stay of execution and application for suspension in McCorquodale's first federal petition. On September 5, 1984 this court granted a certificate of probable cause in the second petition. In February 1985, the U.S. Supreme Court again denied certiorari in the first federal petition. 470 U.S. 1024, 105 S.Ct. 1386, 84 L.Ed.2d 405 (1985).

2

The Eleventh Circuit, in the in banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981

3

In one case involving previously unexhausted claims, the Fifth Circuit found no abuse. Paprskar v. Estelle, 612 F.2d 1003 (5th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980). Paprskar does not, however, stand for the proposition that abuse of the writ cannot be found merely because the omitted claims were not exhausted at the time of the first petition. We agree with the interpretation that the new Fifth Circuit in Jones has placed on Paprskar:

We do not read Paprskar as engrafting on the equitable concepts of writ abuse a fixed rule that 9(b) applies only to omitted exhausted claims. There is no suggestion that Paprskar was chargeable with knowledge of his omitted claims at the time of his first writ. Indeed the refusal to find writ abuse in Paprskar is largely explained by the equitable tug of his fruitlessly urging counsel to raise an ineffective assistance of counsel argument. But more to the point, neither Paprskar nor Galtieri faced the question of a petitioner who is chargeable with abuse and whose only excuse is a failure to have exhausted the omitted claims, a failure equally unexplainable.

722 F.2d at 168. McCorquodale, on the other hand, is chargeable with knowledge of the claim at the time of his first writ in light of Chenault. He also offers no explanation for his failure to exhaust the Chenault claim before filing the first federal petition.

4

Galtieri refers to both parts of Rule 9: "To the extent that [a petitioner] withholds a claim, whether exhausted or not, from his habeas petition, he runs the risk of a rule 9(a) laches defense. If the petitioner does not assert an already exhausted claim in his first petition, he runs the additional risk of a rule 9(b) dismissal." Id

 
 

829 F.2d 1035

Timothy Wesley McCORQUODALE, Petitioner-Appellant,
v.
Ralph M. KEMP, Superintendent, Georgia Diagnostic and
Classification Center, Respondent-Appellee.

No. 87-8724.

United States Court of Appeals,
Eleventh Circuit.

Sept. 20, 1987.

Appeal from the United States District Court for the Northern District of Georgia.

Before GODBOLD, KRAVITCH and HATCHETT, Circuit Judges.

PER CURIAM:

Timothy Wesley McCorquodale, convicted of murder and sentenced to death, appeals from the district court's dismissal of his third federal petition for a writ of habeas corpus. The state of Georgia moved to dismiss the petition on the ground that the third petition raised a ground for relief that had already been raised in McCorquodale's first federal habeas petition and decided adversely to petitioner on the merits. Rule 9(b) of the Rules Governing Proceedings in the District Court on application under section 2254 of Title 28, United States Code provides:

(b) Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits, or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

The district court concluded that McCorquodale's third petition raised no new ground for relief and that prior determination had been on the merits. The court further concluded, following Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963), that controlling weight could be given to the prior denial of McCorquodale's petition for habeas corpus because the "ends of justice would not be served by reaching the merits of the subsequent application."

In his first federal petition, McCorquodale argued that his trial had been rendered fundamentally unfair by a statement in the prosecutor's closing argument to the jury. After remarking to the jury that it had a "vital contribution which you are now considering and will be deliberating on," the prosecutor stated, "And after your decision, the Appellate Court will have a very important responsibility."

A panel of this court, following the Supreme Court case of Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), held that "[i]n the context of the entire trial, the remark was not sufficiently prejudicial so as to render the trial fundamentally unfair."

The panel opinion noted that the trial court gave a curative instruction. McCorquodale v. Balkcom, 705 F.2d 1553, 1556 (11th Cir.1983). This portion of the panel opinion was adopted by the court en banc. McCorquodale v. Balkcom, 721 F.2d 1493, 1502 (11th Cir.1983), cert. denied, 466 U.S. 954, 104 S.Ct. 2161, 80 L.Ed.2d 546 (1984).

McCorquodale now challenges the same remark in the prosecutor's closing argument, but on eighth amendment grounds. He argues that Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), decided since the filing of his prior habeas petition, held that prosecutorial remarks to the jury that emphasize appellate review in capital cases violate the eighth amendment because they tend to undermine the jury's sense of its own responsibility as the body with the duty to determine whether or not to impose the death penalty. Because the Caldwell decision was delivered after this court's decision on the merits in his first habeas petition, petitioner argues that Caldwell represents new law, and that his petition should not be dismissed under Rule 9(b).

As this court noted in Adams v. Dugger, 816 F.2d 1493, 1496 n. 2 (11th Cir.1987), our previous decision on McCorquodale's first habeas petition gave no indication that the eighth amendment was implicated by statements regarding appellate review. Moreover, the state of the case law prior to Caldwell, gave no indication that such statements might violate the eighth amendment.

Although the Supreme Court in Donnelly v. DeChristoforo criticized such statements, it observed that the case was not one in which a specific guarantee of the Bill of Rights was violated but rather whether the closing argument had violated due process. 416 U.S. at 643, 94 S.Ct. at 1871.

Caldwell was the first Supreme Court case to hold that prosecutorial statements regarding appellate review might violate the eighth amendment. Furthermore, the state of eighth amendment law at the time of the filing of McCorquodale's first petition was not sufficiently developed to give a clear indication that such prosecutorial statements raised an eighth amendment issue. See Adams v. Dugger, 816 F.2d at 1495. We conclude that Caldwell represented new law; thus a Caldwell violation, if proven, would present new grounds for relief. We therefore grant the motion for Certificate of Probable Cause.

We turn then to McCorquodale's petition to determine whether it raises a viable Caldwell claim. McCorquodale argues that the prosecutor's statements regarding the important responsibility of the appellate court encouraged the jury to abandon its crucial function as primary sentencer, and that the curative instruction given by the trial court failed to correct the damage. After the prosecutor told the jury about the appellate court's "important responsibility," the court gave the following curative instructions:

This portion of the argument made by the District Attorney is highly improper and I quote. And after your decision the Appellate Court will have an important responsibility. End of quote.

Now ladies and Gentlemen, I urge this brief instruction, that you eliminate from your minds any consideration whatsoever respecting that particular portion of the District Attorney's argument, ladies and gentlemen. Give it no consideration whatsoever, insofar as you are concerned as jurors. This case is concluded when you return your verdict. As a matter of fact, theoretically, insofar as this Court is concerned, it's concluded, ladies and gentlemen. Give that remark no consideration whatsoever. Eliminate it from your minds as though it was never made and ladies and gentlemen, again, I would request, to be very assured, to disregard what is a highly improper remark.

As the district court observed, what the trial court did here is far different from the actions of the court in Caldwell. In Caldwell, the trial judge not only failed to correct the prosecutor's remarks but in fact stated to the jury that the remarks had been proper and necessary. 472 U.S. at 324, 105 S.Ct. at 2636, 86 L.Ed.2d at 237. See also Adams v. Wainwright, 804 F.2d 1526, 1532 (11th Cir.1986), modified in part sub nom. Adams v. Dugger, 816 F.2d 1493 (11th Cir.1987).

In Caldwell, however, the Supreme Court did not say that any reference to appellate review would constitute ground for reversal; rather it stated that "[s]uch comments, if left uncorrected, might so affect the fundamental fairness of the sentencing proceeding as to violate the Eighth Amendment." 472 U.S. at 340, 105 S.Ct. at 2645, 86 L.Ed.2d at 246 (emphasis added).

The Caldwell Court also distinguished Donnelly v. DeChristoforo, pointing out that in Donnelly, the trial judge had given the jury a "strong curative instruction." Id. at 339, 105 S.Ct. at 2645, 86 L.Ed.2d at 246. The question then is whether the trial judge in this case sufficiently corrected the impression left by the prosecutor.

Here, the court immediately instructed the jury to eliminate the prosecutor's improper argument from its consideration and told the jury, "This case is concluded when you return your verdict." The trial court properly did more than merely instruct the jury to disregard the prosecutor's statement; it advised the jury that the statement was "highly improper" and that the case ended with the jury's decision. This admonishment was sufficient to correct any improper impression that the prosecutor may have sought to impart.1

We conclude therefore that McCorquodale has failed to show a Caldwell eighth amendment violation. Accordingly, we AFFIRM the judgment of the district court dismissing the petition for habeas corpus.

We deny the motion for oral argument.

We deny the motion for a stay of execution.

*****

1

Because we base our decision on the curative instruction given by the trial judge, we do not address whether, had it not been corrected, the prosecutor's remark in this case would have been constitutionally impermissive