On the evening of
July 6, 1984, Mrs. Sonya Knippers fell asleep on her living room
sofa while watching television.
She awoke just past
midnight and stopped in the bathroom before going to bed. When she
closed the bathroom door, she discovered Dobie Williams hiding
behind it, pantless and brandishing a knife.
Sonya began to
scream. Williams locked the bathroom door and stabbed Sonya
repeatedly with the knife before fleeing out the bathroom window.
injured, Sonya was able to unlock the bathroom door after Williams
Her husband carried
her to the living room, where she bled to death in his arms.
informed police that his wife had screamed that a black man was
trying to kill her.
At the time,
Williams was staying at the home of his grandfather on a five-day
furlough while serving a prison sentence for a prior burglary
Williams because his grandfather's home was nearby. Williams was
taken in for questioning, and ultimately confessed to the crime
after investigators observed fresh scratches and other abrasions on
his arms and legs.
statement led the investigators to the murder weapon, found in the
grass outside the Knippers' home, and to the shirt that he was
wearing at the time of the crime, which he had hidden underneath the
porch at his grandfather's house.
claims of mistaken identity, recent DNA testing concluded that he
was the killer.
Dobie Gillis Williams (died January 8,
1999) was a convicted American murderer. He was tried and executed
in Louisiana for the murder of Sonja Knippers. In 2005, Williams was
the subject of a book by anti-death penalty activist Sister Helen
Prejean in which she asserts the position that Williams was innocent
and wrongfully executed.
Williams entered the home of Charles and Sonja Knippers in the
early morning hours of July 8, 1984. He attained entry by stacking
two milk crates outside the Knippers' bathroom window and then
cutting the screen. When Sonja Knippers went to the bathroom some
time later, Williams locked the door and began stabbing Sonja with a
Charles Knippers unsuccessfully attempted to break down the
bathroom door during the attack. Williams then fled the scene,
exiting through the same bathroom window through which he entered.
Sonja Knippers opened the door on her own, and was helped to a couch.
She bled to death shortly afterwards.
At the time of the murder, Williams was on a five day furlough
from Camp Beauregard where had been imprisoned for attempted simple
burglary. He was staying at his grandfather's home, which was
approximately 0.4 miles (0.6km) from the Knippers residence.
Williams had been seen approximately one hour prior to the murder
walking away from his grandfather's house. Investigating detectives
were aware of Williams' criminal record and picked Williams up for
A subsequent medical examination revealed scratches and abrasions
on his body that were consistent with the type of
wounds one would expect an individual to have after quickly
exiting through the Knippers' bathroom window.
After further questioning, Williams admitted that he had murdered
Sonja Knippers. He told the officers that after the stabbing, he
jumped out of the bathroom window, dropped the knife in the Knippers'
yard and ran to his grandfather's house where he hid his shirt
underneath the porch.
After Williams made his statement, the
investigators returned to the Knippers' home where they found a
kitchen knife in four inches of damp grass. The officers later
retrieved the shirt from the place where Williams claimed to have
hidden it. Although no confession was obtained, an unsuccessful
attempt was made to record the statement mechanically; at the trial,
several investigating detectives testified as to the content of the
Further forensic analysis of the crime scene confirmed that the
blood found on the Knippers' bathroom window curtain matched
Williams' blood type — a blood type very rare among African-Americans.
The analysis further confirmed that the blood could not have come
from either Sonja or Charles Knippers. Hair was also taken from the
window, and were also found to have characteristics consistent with
Williams' hair. Finally, the autopsy revealed that the stab wounds
in the victim's body were consistent with the type of wounds that
would have been made by the knife found in the Knippers' yard.
Williams was indicted by a Sabine Parish
Grand Jury of First Degree Murder in violation of
Louisiana Revised Statute (R.S.) 14:30. A Motion for a Change of
Venue filed by the defendant was granted, which resulted in the
transfer of the case to the 35th Judicial District Court in Grant
Parish. After a four day trial, the jury returned a verdict
of guilty as charged. At the sentencing phase of the trial, the jury
unanimously recommended the death penalty, which the judge imposed.
On January 8, 1999, Williams was executed by lethal injection at
the Louisiana State Penitentiary. Williams ate twelve candy bars and
some ice cream for his last meal. In his final statement, Williams
said "I just want to say, I don't have any hard feelings against
anybody. God bless ya'll. God bless."
In 2005, Williams was the subject of anti-death penalty activist
and Catholic nun Sister Helen Prejean’s book The Death of
Innocents: An Eyewitness Account of Wrongful Executions.
Williams, 38, 99-01-08, Louisiana
In Angola, convicted killer Dobie Gillis
Williams was executed at the Louisiana State Penitentiary on Friday
for the bloody 1984 murder of Sonja Knippers.
"I just want to say, I don't have any hard
feelings against anybody," he said calmly in a final statement. "God
bless ya'll. God bless."
Time of death was announced as 6:48 p.m.
Williams, 38, had avoided 11 execution dates in
the past, including 2 which were canceled earlier this year for last-minute
appeals.Warden Burl Cain talked quietly with Williams for two
minutes as the lethal solution was being injected through IVs in his
left arm and neck. Witnesses could not hear what they said, but Cain
said later Williams expressed sorrow for putting people through so
much anguish although he never admitted to killing Mrs. Knippers.
At the end of the conversation, Williams lifted
his head slightly and smiled. The warden put his hand under Williams
head and eased it back to the gurney. 2 or 3 minutes later, Williams
Among the witnesses was his spiritual adviser,
Sister Helen Prejean, author of the book "Dead Man Walking." She
held a cross and prayed as the execution took place.
Williams wore a silver cross on a chain around
Other witnesses included Mrs. Knippers' husband,
Herbert, and her son, Monte, who was about 12 at the time of the
killing. They left the prison without talking to news reporters.
The execution was Louisiana's 1st since 1997,
when John Ashley Brown Jr. died by injection for the 1984 stabbing
death of a NASA aerospace engineer during a robbery outside a New
Williams already had a criminal history at the
time of Mrs. Knippers' murder. He was on a Fourth of July prison
furlough when he cornered her in her bathroom and stabbed her 8
times while her husband tried to break down the door and save her.
Jurors were told scrapes on Williams' legs
matched the pattern of the brick ledge outside the bathroom, so he
apparently wasn't wearing pants and probably meant to rape Mrs.
DNA tests weren't available in 1984, and the
November execution was called off by Gov. Mike Foster to to allow
A Dallas lab found that blood from the bathroom
curtain did match Williams', but defense attorney Nick Trenticosta
challenged the results.
Trenticosta said other DNA experts "characterize
the entire result as garbage." He also complained that those experts
had been unable to check the full DNA report until Thursday.
Williams becomes the 1st condemned prisoner to
be put to death in Louisiana this year and the 25th overall since
the state resumed executions in 1983.
(sources: Associated Press and Rick Halperin)
Dobie Gillis Williams
The Death of Innocents: An Eyewitness Account of
From the author of the national
bestseller Dead Man Walking comes a brave and fiercely argued
new book that tests the moral edge of the debate on capital
punishment: What if we're executing innocent men? Two cases in point
are Dobie Gillis Williams, an indigent black man with an IQ of 65,
and Joseph Roger O'Dell. Both were convicted of murder on flimsy
evidence (O'Dell's principal accuser was a jailhouse informant who
later recanted his testimony). Both were executed in spite of
numerous appeals. Sister Helen Prejean watched both of them die.
As she recounts these men's cases and takes
us through their terrible last moments, Prejean brilliantly
dismantles the legal and religious arguments that have been used
to justify the death penalty. Riveting, moving, and ultimately
damning, The Death of Innocents is a book we dare not
When I first met him I was struck by
his name, Dobie Gillis, and then when I heard he had a brother named
John Boy, another TV character, I knew for sure his mama must like
to watch a lot of TV. Betty Williams, Dobie Williams's mama, is here
now in the death house of the Louisiana State Penitentiary, a
terrible place for a mama to be. It's January 8, 1999, at 1:00 p.m.,
and she's here with family members, two of Dobie's lawyers, and me,
his spiritual adviser, and we're all waiting it out with Dobie to
see if the state is really going to kill him this time.
Dobie's had eleven execution dates since 1985
and close calls in June and November when the state came within
a couple of hours of killing him but had to call it off because
of last-minute stays of execution. I feel this is it, they're
going to get Dobie this time, and I'm praying for courage for
him and for his mama and for me, too. I've done this four other
times,1 accompanying men to execution, first with Patrick
Sonnier in 1984, walking through this very room on his way to
the electric chair, and here we are sitting with Dobie, hoping
against hope he won't have to make that walk through this room
tonight. His execution by lethal injection is scheduled for
6:30. About five hours to go.
Dobie's death is set to conclude a story that
began more than fourteen years before, in the early morning
hours of July 8, 1984. It was then that forty-three-year-old
Sonja Merritt Knippers was stabbed to death as she sat on the
toilet in her bathroom in Many, Louisiana, a small town in north
central Louisiana. Mrs. Knippers's husband, Herb, who said he
was in the bedroom during the slaying, told investigators that
he heard his wife yelling, "A black man is killing me," which
led police to round up three black men, Dobie Gillis Williams
among them. He was home on a weekend furlough from Camp
Beauregard, a minimum-security detention facility, where he was
serving a term for burglary. He had been allowed the visit
because he was a model prisoner, not prone to violence.
At 2:30 a.m., police officers seized Dobie,
asleep on the couch at his grandfather's house, brought him to
the police station, and began interrogating him. They told him
that they would be there for the rest of the night and all
morning and all the next day if need be, until they "got to the
bottom of this." Three police officers later testified that
Dobie confessed, and at the crime scene investigators found a
bloodstain on a bathroom curtain, which the state crime lab
declared was consistent in seven categories with Dobie's, and
statistically, that combination would occur in only two in one
hundred thousand black people. Investigators also found a "dark-pigmented
piece of skin" on the brick ledge of the bathroom window,
through which the killer supposedly entered and escaped.
Dobie's trial didn't last long. Within one
week, the jury was selected, evidence presented, a guilty
verdict rendered, and a death sentence imposed.
Now, waiting here in the death house, I pray.
No, God, not Dobie. I've been visiting him for eight
years. He's thirty-eight years old, indigent, has an IQ of 65,
well below the score of 70 that indicates mental retardation. He
has rheumatoid arthritis. His fingers are gnarled. His left knee
is especially bad, and he walks slowly, with labored steps. He
has a slight build, keeps his hair cropped close, and wears big
glasses, which he says gives him an intellectual look. His low
IQ forces him to play catch-up during most conversations,
especially if he is in a group.
Earlier today, Warden Burl Cain asked Dobie
if he wanted to be rolled to the death chamber in a wheelchair.
"Dobie, we'll do it your way, any way you want, so if you want
the wheelchair, we'll do that. It might make it easier on you,
but if you want to walk, I mean that's okay, too, no matter how
long it takes. We'll just go at your pace. If it takes a half
hour, whatever it takes, it's up to you, you can have it your
way, like at Burger King, have it your way, and we'll do
anything you want to do."
Dobie narrowed his
eyes. "No way. I'll walk."
Later he says, "Man! Is he crazy? Let them
people use a wheelchair on me? Man! No way. No way."
The wheelchair is a sensitive issue. When
Dobie got rheumatoid arthritis five years ago, his proud, fit
body left him. Some of the guys on the Row started calling him "stiff,"
and when they'd see a crippled person on TV, there'd be snickers
as somebody yelled out, "Who does that remind you of?" Dobie
would be silent in his cell.
"I just ignore them," he'd tell me.
I notice how fast and soft and friendly the warden talks to Dobie.
Of course he wants Dobie to use the wheelchair. I can tell he wants
the process to go quickly so he and the Tactical Unit-the team
responsible for the physical details of killing Dobie-can get it
over with as soon as possible. Dobie, it is turning out, is proving
difficult in several ways. There had been the last-minute stays of
execution in June and November, which meant that the Tac team, Mrs.
Knippers's family members, the executioner, the support staff, the
medical staff, and the ambulance crew that removes the body-all
these people had to come back and go through it again, which is hard
on everybody. Plus, Dobie rejected the offer to eat his final meal
with Warden Cain as two other executed prisoners had done. That must
have felt like a slap in the face, because the warden felt he was
doing his best to show Christian fellowship to these men before they
The meal with the other condemned men-Antonio
James and John Brown-had gone well, with clean white tablecloths
and the menu and guests selected by the prisoner-lawyer friends
and spiritual advisers-along with the guests the warden himself
invited-a couple of friendly guards and Chaney Joseph, the
governor's attorney (who formulated the state's current death
penalty statute and stands ready to block any legal attempt to
halt an execution).
At these final meals they had all held hands
and prayed and sung hymns and eaten and even laughed, and one of
these scenes was captured on ABC's Primetime Live when a
story was done about Antonio James. In the Primetime
piece, there at the head of the table was Warden Cain, like a
father figure, providing the abundance of the last meal-boiled
crawfish-making everything as nice and friendly as he could,
even though when the meal was done the inevitable protocol would
have to be followed and, as warden, he would be obliged to do
his job. In the chamber, he'd nod to the executioner to begin
injecting the lethal fluids into the arm of the man whose hand
he was holding and with whom he was praying.
The warden is fond of quoting the Bible, and
the verse he quotes to justify state executions is Paul's
Epistle to the Romans, chapter 13, which states that civil
authority is "the servant of God to execute wrath on the
wrongdoer." Yes, this distasteful task laid on his shoulders is
backed up by God's word, which he tries hard to follow because
he takes very seriously the eternal salvation of every man in
this prison entrusted to his care. Warden Cain would do anything
to avoid carrying out the death penalty, but it goes with the
territory of being warden, and he likes being warden and is only
a few years from retirement. So he goes along reluctantly and
tries to be as nice to the condemned and their families as he
He could do what Donald Cabana, the
former warden of Parchman Penitentiary in Mississippi, did. Warden
Cabana quit his job because his conscience wouldn't allow him to
participate in executions. In his book, Death at Midnight: The
Confession of an Executioner, he tells of presiding over the
execution of two men in the gas chamber at Parchman. The second one,
that of Connie Ray Evans, really got to Cabana because he liked the
man, and they talked often and long. He tried truthfully to answer
Connie Ray's questions about how best to deal with the gas when it
came, telling him to breathe deep, that it would be over faster that
way.2 Then, after watching the dying man gasp for breath and twitch
and strain against the straps in the chair, Warden Cabana quit the
job, and today he gives lectures against the death penalty to anyone
who will listen.
Warden Cain could choose to do that. He has
confided to one of Dobie's defense attorneys that he draws the
line when it comes to women. Louisiana has one woman on death
row, Antoinette Frank, and the warden says, no, he just couldn't
execute a woman, that he'll quit before he does that. I wonder
if he realizes that he's the first trigger of the machinery of
death-he nods and a man dies. The death certificate states the
true nature of the deed: "Cause of death: homicide." Maybe
there's a qualifying word, "legal," but it's homicide all the
When Dobie turned down the warden's
invitation to share his last meal, he said, "I ain't going to
eat with those people. It's not like, you know, real fellowship.
When they finish eating they're going to help kill me." He is
the first one up for execution who's turned down the warden's
invitation, and I've heard through the prison grapevine that the
men on the Row respect him for it.
We're all sitting around a table with Dobie
in the death house visiting room: Jean Walker, Dobie's childhood
sweetheart; his mama; his aunt Royce; his brother Patrick; his
four-year-old nephew, Antonio; two lawyer friends, Carol
Kolinchak and Paula Montonye; and me. Dobie's mama has her Bible
open and puts her hand on it, saying, "No, not this time, either,
they're not going to kill you, Dobie, because in Jesus's name
I've claimed the victory, oh yes, in faith I claim the victory
because God's in charge, not man, God is the lord of life and
death, and in Him is the victory, and you must believe, Dobie,
you must trust, as the psalm says, Oh, God, you are my rock. Do
you believe, Dobie, are you trusting God to bring you through
this? Do you have faith?"
Her words are strong and urgent, and they
shore her up against this dark and dreadful process. She is
trying to infuse the spiritual strength she feels into her son,
who says softly, "Yeah, Mama, I believe."
"Say it like you mean it, Dobie, say it with
"Yeah, Mama, I believe, I do."
Dobie sits close to Jean, now back in his
life after twenty or so years. She's declared herself "strong in
the Lord" and has her husband's approval for these visits. She
wants Dobie to be "strong in the Lord," too. She heard about
Dobie's pending execution and reappeared in his life a few weeks
before his June death date some eight months ago, and he can't
stop touching her. During earlier visits in the death row
visiting room-not now-he was like a playful teenage boy, sitting
close to her, pinching her arms, thumping her head, teasing her,
coaxing, telling her how cute her smile and her eyes were. When
his mama had enough of it and told him to leave her alone, he
smiled and said, "I just like to pick at her." His mama would
open the Bible, read a passage, and press him for the meaning.
Sometimes she would read lengthy passages and Dobie would say,
"Not so long, Mama. Pick a short one. I just want to visit."
My faith doesn't give me the same assurance
Dobie's mama feels that he won't be killed tonight. I'm praying
that God will give him the strength and the courage he needs to
overcome fear. Dobie's been telling me how the fear eats at him.
He was glad when Jean brought him a black baseball cap with the
words of Isaiah, "Fear Not," embroidered in white letters on the
front. Prison rules forbid prisoners to wear hats with any sort
of logo, but the guards let the "Fear Not" hat slide. Dobie's
worn it for three solid weeks except in the shower, and he
wanted badly to wear the hat here in the death house, but the
guards took it away when he was brought in at 9:30 this morning.
"Man," he says, stretching out the last part of the word,
"mannnn, they won't even let me have my hat." It's one more
disappointment, but he tucks it somewhere inside, because after
fourteen years of living in the "waiting to die" place, he's
used to holding himself in check and not wishing too hard for
Dobie is sitting at the end of the table with
his back to the window, through which you can see one of the two
guards with automatic weapons guarding the front door. With the
lagoon outside and the flowers in pots near the front entrance,
you'd never know this is a building where people are put to
death. And when you're inside, all you see is a room with tables
and chairs, two vending machines, and at the far end a white
metal door. Behind this door, always kept locked, is the black
cushioned gurney and the witness room with two rows of plastic
chairs. Everything is neat and painted fresh and clean, the gray
floor tiles polished and gleaming. The warden has had two large
murals painted on the walls of this room, one of Elijah being
taken up to heaven in a fiery chariot and the other of Daniel in
the lion's den, the lions with yellow, glinting eyes and Daniel
looking upward toward an opening from which heavenly light pours.
In the scripture stories, both men escaped death. Elijah was
taken up to heaven alive in the chariot, and Daniel, through
God's power, persuaded the lions not to eat him. I sense in the
murals an effort to make this a holy place, a place that's not
really so bad, because here you get to go to God.
This is a place where everything is run by
protocol. Each step of the execution process has been carefully
chiseled out. "Here's what we do if he goes peacefully. Here's
what we do if he fights us. Okay, now, when we get in the room,
I strap the legs, and you, the chest, and you, the right arm."
Everybody knows his part in the ritual. The Tac team has
practiced over and over, so when it comes to the real thing they
can do what they have to do. Plus, they're bolstered by the law,
by general popular support for the death penalty, and by the
knowledge that all the courts in the land and the U.S. Congress
say it's constitutional to do the deed they'll be doing tonight.
Sometimes even the prison chaplains give their blessing to the
act, backing it up, of course, with a quote from the Bible.
125 F.3d 269
Burl CAIN, Acting Warden, Louisiana State Penitentiary,
Angola, Louisiana, Respondent-Appellant-Cross-Appellee.
United States Court of Appeals,
Oct. 3, 1997.
Appeals from the United States
District Court for the Western District of Louisiana.
Before JOLLY, BENAVIDES and
STEWART, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Dobie Gillis Williams has been
sentenced to death by the state of Louisiana. In this federal
petition for a writ of habeas corpus he challenges both his
conviction and death sentence on multiple grounds. The district
court granted the petition on the ground that Williams had
received ineffective assistance of counsel, but only at his
sentencing hearing, and thus set aside the death sentence unless
Louisiana conducted a new sentencing hearing. The district court
rejected Williams's other claims. Louisiana appeals the grant of
habeas relief on the ineffective assistance of counsel claim,
and Williams cross-appeals the denial of two of his other claims.
We conclude that the district
court erred in finding that Williams's counsel provided
ineffective assistance during the sentencing hearing. We also
reject Williams's claim concerning discrimination in the
selection of the grand jury foreman as procedurally barred, and
conclude that the jury's consideration of an invalid aggravating
factor at sentencing does not require that Williams's death
sentence be vacated. In short, we reinstate the death sentence.
* On the evening of July 6,
1984, Mrs. Sonja Knippers fell asleep on her living room sofa
while watching television. She awoke just past midnight and
stopped in the bathroom before going to bed. When she closed the
bathroom door, she discovered Williams hiding behind it,
pantless and brandishing a knife.
Mrs. Knippers began to scream.
Williams locked the bathroom door and stabbed Mrs. Knippers
repeatedly with the knife before fleeing out the bathroom window.
Although fatally injured, Mrs. Knippers was able to unlock the
bathroom door after Williams fled. Her husband carried her to
the living room, where she bled to death in his arms.
Mr. Knippers informed police
that his wife had screamed that a black man was trying to kill
her. At the time, Williams, who is black, was staying at the
home of his grandfather on a five-day furlough while serving a
prison sentence for a prior burglary conviction.
Police suspected Williams
because his grandfather's home was nearby. Williams was taken in
for questioning, and ultimately confessed to the crime after
investigators observed fresh scratches and other abrasions on
his arms and legs. Williams's statement led the investigators to
the murder weapon, found in the grass outside the Knipperses'
home, and to the shirt that he was wearing at the time of the
crime, which he had hidden underneath the porch at his
Williams was indicted for
first degree murder by a grand jury in Sabine Parish, Louisiana.
Because of extensive pretrial publicity, the trial was moved to
Grant Parish, where Williams was convicted by a jury after a
five-day trial. During the guilt phase of the trial, Williams's
attorney, Mr. Michael Bonnette, attempted to prevent a capital
conviction by challenging the existence of the aggravating
factors that the jury must find to convict for first degree
murder rather than second-degree murder. Bonnette's efforts were
unsuccessful, and Williams was convicted of first degree murder.
During the sentencing hearing
that followed the guilt phase of the trial, Bonnette made
statements referring to mitigating evidence, but did not call
any witnesses. Bonnette did cross-examine one of the state's
witnesses. The jury recommended that Williams be sentenced to
death, finding two statutory aggravating factors: (1) that
Williams was engaged in the perpetration of an aggravated
burglary or an attempted aggravated rape, and (2) that the
offense was committed in an especially heinous, atrocious, or
Williams's conviction and
sentence were affirmed by the Louisiana Supreme Court. State v.
Williams, 490 So.2d 255 (La.1986). His petition for a writ of
certiorari was denied by the Supreme Court, and his conviction
became final on June 26, 1987. Williams v. Louisiana, 483 U.S.
1033, 107 S.Ct. 3277, 97 L.Ed.2d 780 (1987).
Williams thereafter filed
several state court petitions for post-conviction relief. Judge
Hiram Wright of the Thirty-Fifth Judicial District Court of
Louisiana, Grant Parish, held evidentiary hearings in 1988 to
address Williams's claims concerning ineffective assistance of
counsel during the penalty phase and the admissibility of his
confession, ultimately rejecting both claims. Numerous
additional claims were considered and rejected by Judge Wright
in 1992. The Louisiana Supreme Court denied supervisory writs
with respect to these claims.
In 1993, the Louisiana Supreme
Court granted a supervisory writ with respect to Williams's
claim concerning discrimination in the selection of the grand
jury foreman. Judge Wright subsequently held an evidentiary
hearing on that claim, and rejected the claim. The Louisiana
Supreme Court later denied Williams's further request for a
supervisory writ, ending the state post-conviction proceedings.
Williams filed a petition for
a writ of habeas corpus in federal district court on April 25,
1996, raising some twenty grounds of relief. The district court
found that Bonnette, Williams's counsel, failed to adequately
investigate Williams's background and to present available
mitigating evidence during the penalty phase of the trial. The
district court found that Bonnette's failure to prepare for the
penalty phase of the trial was unreasonable, such that Williams
was effectively "without counsel during the penalty phase of his
The court found that "[t]he
absence created a constitutionally impermissible condition," and
ruled that Williams's death sentence therefore violated the
Eighth and Fourteenth Amendments of the federal Constitution.
The court rejected Williams's nineteen other claims, including
the claims concerning discrimination in the selection of the
grand jury foreman and constitutional defects in the jury
instructions during the penalty phase.
The state timely appealed the
district court's judgment granting a writ of habeas corpus on
the grounds of ineffective assistance of counsel during the
sentencing phase of the trial. Williams cross-appealed, and
filed a request for a certificate of appealability in accordance
with the new requirements imposed by the Anti-Terrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132,
110 Stat. 1214 (1996).
We granted Williams a
certificate of appealability limited to two of his claims: (1)
whether racial discrimination in the selection of the grand jury
foreman requires that his indictment be set aside and his
conviction and sentence be vacated, and (2) whether
constitutional defects in the jury instructions during the
penalty phase of his trial require that his sentence be vacated.
* We must first consider the
applicability of the AEDPA to Williams's appeal. At the time
that Williams requested a certificate of appealability, the
Fifth Circuit had held that the deferential standard for federal
habeas review of state court decisions imposed by 28 U.S.C. §
2254(d), as amended by the AEDPA, applied to cases pending at
the time of the AEDPA's enactment. Drinkard v. Johnson, 97 F.3d
751, 766 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct.
1114, 137 L.Ed.2d 315 (1997).
However, the Supreme Court's
recent decision in Lindh v. Murphy, --- U.S. ----, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997), overrules Drinkard's conclusion
that the amended § 2254 may be applied retroactively. We must
therefore determine whether, for AEDPA purposes, Williams's
petition was already pending on April 24, 1996, the effective
date of the AEDPA.
Williams argues that his case
was "pending" as of the effective date of the AEDPA because he
had filed motions for a stay of execution, to proceed in forma
pauperis and for appointment of counsel on April 23, 1996, one
day before the AEDPA became effective. In support of his
position, Williams cites the Supreme Court's decision in
McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d
In that case, the Court held
that the filing of a motion for a stay of execution and for
appointment of counsel establishes a "post-conviction proceeding"
within the meaning of 21 U.S.C. 848(q)(4)(B), which establishes
a right to appointed counsel for indigent habeas applicants,
such that a federal court had jurisdiction to appoint counsel
even without the filing of a valid habeas corpus petition. Id.
at 855-58, 114 S.Ct. at 2572-73.
The court further observed
that the appointment of counsel would be "meaningless" in
McFarland's case unless the court also enjoyed the authority to
stay McFarland's execution so that counsel could have time to
prepare a habeas petition. The Court therefore held that where a
motion for stay has been filed, "a district court has
jurisdiction to enter a stay of execution where necessary to
give effect" to the right to appointed counsel. Id. at 859, 114
S.Ct. at 2574.
The Court in McFarland did not
decide whether the filing of a motion to stay and to appoint
counsel "initiated a habeas corpus proceeding."
Instead, the court found that the relevant statutes used the
terms "post-conviction proceeding" and "habeas corpus proceeding"
interchangeably, and that entering a stay of execution even
without a formal habeas petition would, in some cases, be
necessary to effectuate the statutory rights. Id. at 857-59, 114
S.Ct. at 2573-74.
McFarland does not answer the
question of what date a habeas petition becomes "pending" for
determining the applicability of substantive statutes. The
obvious approach, of course, is that a habeas petition is "pending"
only after a petition for a writ of habeas corpus itself is
filed. Although McFarland might be argued to raise a question in
this regard, we believe that McFarland was intended to resolve
practical procedural problems in such a way that unrepresented,
indigent defendants could effectively enjoy the right to counsel
established by 21 U.S.C. § 848(q).
As such, McFarland does not
resolve the question before us, and we conclude that the
relevant date for determining the applicability of the AEDPA to
habeas corpus petitions is the date that the actual habeas
corpus petition is filed. We therefore hold that the AEDPA
amendments to chapter 153 of Title 28 apply to cases where a
petition for habeas corpus is filed on or after April 24, 1996.
Because Williams's actual petition was filed on April 25, 1996,
the AEDPA's revised standard of review applies to his petition.
We turn now to the question of
whether alleged racial discrimination in the selection of the
foreman of the grand jury that indicted Williams requires that
his indictment, conviction and sentence be vacated. Williams
cites the fact that no black foremen had been selected in Sabine
Parish in the fifteen years prior to his indictment, combined
with evidence concerning the percentage of blacks who were
registered to vote and evidence concerning the selection of
foremen by individual state court judges.
The state responds first that
Williams's claim on this issue is procedurally barred because he
failed to file a pretrial motion to quash his indictment. The
state also argues that even if the claim is not procedurally
barred, Williams's statistical evidence is inadequate to meet
his burden of proof. We agree with the state that the claim is
procedurally barred, and therefore do not reach the merits of
the underlying claim.
It is undisputable that under
Louisiana law, a challenge to the legality of the grand jury
venire must be made by a pretrial motion to quash.
The Louisiana Code of Criminal Procedure also specifically
states that "[t]he grounds for a motion to quash [ ] are waived
unless a motion to quash is filed ..." La.Code Crim. Proc. art.
It is undisputed that Williams
never filed a pretrial motion to quash, let alone a timely
motion. Williams raised his claim based on the selection of the
grand jury foreman for the first time during his state post-conviction
proceedings. Therefore, under Louisiana law his claim is
procedurally barred. Deloch v. Whitley, 684 So.2d 349, 350
(La.1996) (holding equal protection claim based upon
discriminatory selection of grand jury foreman procedurally
barred by defendant's failure to file a pretrial motion to quash).
Williams argues, however, that
this court must reject the state's argument that the claim is
procedurally barred because the Louisiana Supreme Court
implicitly overruled the procedural objection by issuing a
supervisory writ that directed the state trial court to hold an
evidentiary hearing concerning the grand jury foreman selection
process. State ex rel Williams v. Whitley, 629 So.2d 343
In particular, Williams argues
that the Supreme Court's decision to order an evidentiary
hearing is a reflection of Louisiana's "death case exception."
Williams cites a variety of Louisiana death penalty cases in
which reviewing courts considered errors that were not objected
to at trial, on the ground that a special exception applied to
death penalty cases. The majority of these cases concern alleged
errors during the sentencing phase of the trial. Although
Williams does cite cases applying the "death case exception" to
guilt-phase errors, this practice was unambiguously rejected by
the Louisiana Supreme Court in State v. Taylor, 669 So.2d 364,
369(La.), cert. denied, --- U.S. ----, 117 S.Ct. 162, 136 L.Ed.2d
... we abandon the expanded
scope of review in capital cases established in Smith and its
progeny, overrule them and return to previously existing law.
This Court's scope of review in capital cases will be limited to
alleged errors occurring during the guilt phase that are
contemporaneously objected to, and alleged errors occurring
during the sentencing phase, whether objected to or not.
Although Williams attempts to
escape Taylor by arguing that Taylor only altered the death case
exception by eliminating it for the guilt phase of capital
trials, we find Taylor quite clear: Louisiana's "death case
exception" only permits review of unobjected-to errors that
occur during the sentencing phase of capital trials. There is
simply no support for Williams's position that the "death case
exception" somehow extends to a failure to file a pretrial
motion to quash an indictment.
A federal court reviewing a
state prisoner's habeas claim must respect a state court's
determination that the claim is procedurally barred under state
law. Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497,
2508-09, 53 L.Ed.2d 594 (1977). The rule is quite simple: "a
procedural default does not bar consideration of a federal claim
on either direct or habeas review unless the last state court
rendering a judgment in the case clearly and expressly states
that its judgment rests on a state procedural bar." Harris v.
Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308
(1989) (internal quotation marks and citation omitted).
In the case before us, the
Louisiana Supreme Court's order granting the supervisory writ
cannot be considered a decision on the merits.
Additionally, it was not the last court to address the state's
procedural objection. The last state court to reach the merits
of Williams's claim was the district court that held the
evidentiary hearing concerning the grand jury selection process.
That court was quite clear in its decision that it reviewed
Williams's evidence on the underlying claim only because the
writ had been granted:
The State contends that the defendant is
banned from proceeding further by the provisions of C.Cr.P.
Articles 521, 522 and 525 because defendant failed to file a
motion to quash prior to trial. According to the articles cited
and the case law, the State appears to be correct. However, this
Court was expressly ordered to consider the issue of selection
of the grand jury and that is what this Court will do.
Williams v. Whitley, No.
33,481 (La. Dist. Ct., Grant Parish, May 25, 1995) (unpublished).
The court proceeded to consider the question whether there was
unconstitutional discrimination in the selection of the grand
jury foreman, and specifically found that there was not. However,
the court then noted that the matter was heard "subject to the
district attorney's procedural objections," and then
specifically ruled that because Williams had failed to file a
pretrial motion to quash, "defendant has waived all rights to
file this motion." Id. The Louisiana Supreme Court thereafter
denied Williams's subsequent application for a supervisory writ
without comment. Williams v. Whitley, 664 So.2d 429 (La.1995) (unpublished).
Our obligation under Harris v.
Reed and subsequent cases is clear. Because Williams failed to
file a pretrial motion to quash his indictment, his claim of
discrimination in the selection of the grand jury foreman is
procedurally barred under Louisiana law. This procedural bar
therefore provides an "adequate and independent" state law
ground upon which the claim was rejected, and federal review of
Williams's claim is barred unless Williams demonstrates both
cause for the procedural default and actual prejudice resulting
from the violation of federal law. Coleman, 501 U.S. at 750, 111
S.Ct. at 2565. Williams has not, and indeed cannot, demonstrate
cause and prejudice, and we therefore have no warrant to reach
Williams also claims that his
death sentence must be vacated and his case remanded for
resentencing because he received ineffective assistance of
counsel during the sentencing phase of his trial. The district
court granted Williams's petition for habeas relief on this
claim, finding that Bonnette's performance at the sentencing
phase of Williams's trial was so inadequate as to leave Williams
effectively unrepresented at this phase.
To show that he received
constitutionally ineffective assistance of counsel during the
penalty phase, Williams must show both that Bonnette's
performance was deficient and that his deficient performance
prejudiced Williams's defense. Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984);
Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir.), cert. denied,
--- U.S. ----, 117 S.Ct. 487, 136 L.Ed.2d 380 (1996).
Our examination of Bonnette's
performance must be "highly deferential," and must consider the
facts and resources available to Bonnette at the time of trial.
Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.), cert. denied,
513 U.S. 960, 115 S.Ct. 418, 130 L.Ed.2d 333 (1994). Williams
must also overcome the "strong presumption that counsel's
conduct falls within the wide range of reasonable professional
Furthermore, the AEDPA's
deferential standard of review applies to this case. Under the
AEDPA, a federal court may not grant a writ of habeas corpus
with respect to any claim that was rejected on the merits by a
state court unless the state court's adjudication:
(1) resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d) (as
amended) (emphasis added). Furthermore, state court factual
determinations shall be presumed correct unless rebutted by "clear
and convincing evidence." 28 U.S.C. § 2254(e)(1) (as amended).
In Drinkard, 97 F.3d at 769, we concluded that the second clause
of the amended § 2254(d)(1), italicized above, applied to
challenged applications of law to fact. For such claims, we
found, the amended provision permits federal court relief "only
when it can be said that reasonable jurists considering the
question would be of one view that the state court ruling was
incorrect." See also Carter v. Johnson, 110 F.3d 1098, 1108 (5th
Cir.1997) ("If reasonable jurists could disagree, the state
court decision on a mixed question of law and fact is not 'an
unreasonable application of federal law,' and thus the decision
is immune from federal habeas attack.")
assistance of counsel claim was rejected on the merits by the
Thirty-Fifth Judicial District Court, Grant Parish, after an
evidentiary hearing was held to permit Williams to present
evidence concerning his claim. Williams v. Butler, Warden, No. ,
(La.Dist.Ct., Sept. 7, 1988) (unpublished).
That court found that
Bonnette's failure to present evidence concerning Williams's
alleged borderline retardation was not deficient because
Bonnette was aware that the state could produce evidence from
three experts to rebut any such testimony. The court further
concluded that testimony concerning Williams's "chaotic,
violence-filled childhood" from family, friends or other lay
witnesses "would not have changed the outcome of the sentencing
phase," especially considering the state's detailed evidence
concerning the brutal way in which Mrs. Knippers had been
Bearing in mind the
deferential standard of review required by the amended §
2254(d), we turn now to the merits of Williams's claim. Williams
argues that he received ineffective assistance of counsel
because Bonnette failed to adequately investigate his
Had Bonnette thoroughly
investigated, Williams argues, he would have been able to
introduce evidence that Williams was verbally or physically
abused by his parents and other relatives with whom he lived
during his childhood, that Williams was shuffled between his
mother, father, and other relatives, and that despite this abuse
Williams was "well-behaved in school" and took care of his
younger siblings. Williams also argues that Bonnette provided
constitutionally deficient assistance because he failed to
present evidence that Williams had a "long history" of mental
problems and that he was "borderline" retarded.
It is well established that "[t]he
failure to present a case in mitigation during the sentencing
phase of a capital trial is not, per se, ineffective assistance
of counsel." Stringer v. Jackson, 862 F.2d 1108, 1116 (5th
Cir.1988), vacated and remanded on other grounds, 503 U.S. 222,
112 S.Ct. 1130, 117 L.Ed.2d 367 (1992); West v. Johnson, 92 F.3d
1385, 1408 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct.
1847, 137 L.Ed.2d 1050 (1997) (citing cases). Counsel does,
however, have a duty to make "reasonable investigations or to
make a reasonable decision that makes particular investigations
unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066.
The parties dispute the extent
of Bonnette's efforts to interview Williams's family members, an
issue that cannot readily be resolved as Bonnette did not
testify at the evidentiary hearing; Williams submitted only a
brief affidavit from Bonnette. It is clear, however, that
Bonnette did obtain information concerning Williams's mental
status and family history.
In preparation for the trial,
Bonnette arranged for Williams to be evaluated by Dr. Strother
Dixon, a clinical psychiatrist. Dr. Dixon's report chronologues
much of Williams's difficult family history. The report also
notes that Williams was "most cooperative" in answering
questions, and was "alert" and "thoughtful in deliberation."
Dr. Dixon concluded that:
Although Mr. Williams has a positive family history for
schizophrenia, he shows no indication of that thought disorder;
nor does he have indications of Major Affective Disorder. He
denies that he has trouble with his temper and this does not get
him into trouble as far as he is concerned. Patient does appear
to have difficulty with authority figures. He does not have a
very good relationship with his biological father and feels
abandoned by him. There has not been a lasting relationship with
a male role model in his developmental years. He relates
strongly to his mother and depends upon her seemingly for his
primary emotional support. I would judge his intelligence as low-average.
He is vague regarding his educational accomplishments. He
probably had academic problems during his matriculation. His
history depicts one who is impulsive and has a tendency to blame
others for his situation.
Dr. Dixon's report also
details the family, educational, and employment difficulties
that Williams related to him.
Considering Dr. Dixon's report,
we find Williams's arguments concerning his mental problems and
alleged "borderline" retardation to be entirely unavailing. We
have previously observed that counsel is not ineffective for
failing to introduce evidence of a defendant's low intelligence.
Andrews v. Collins, 21 F.3d 612, 624-25 (5th Cir.1994), cert.
denied, 513 U.S. 1114, 115 S.Ct. 908, 130 L.Ed.2d 790 (1995).
Bonnette's own expert
concluded that Williams's intelligence fell within the "normal"
range, and concluded that Williams had no significant
psychiatric disorders. The state's experts who had examined
Williams also found no indication of mental illness, and did not
indicate that Williams was mentally retarded.
Although Williams produced
experts at his post-conviction evidentiary hearing who testified
to his "borderline" retardation, at the time of trial Bonnette
had no such information. Bonnette's assistance was not deficient
for failing to locate an expert who would conclude that Williams
was retarded or suffered from mental illness--especially in view
of Bonnette's knowledge of the state's ability to rebut any such
evidence with its own experts.
Williams offers a stronger
argument that Bonnette provided constitutionally ineffective
assistance for failing to present mitigating lay testimony from
family or friends. It is true, as Williams's expert testified at
the state court evidentiary hearing, that such testimony is
typically offered at the sentencing phase in order to "humanize"
the defendant. Still, evidence of a defendant's abuse-filled,
violent upbringing and abuse of drugs and alcohol frequently can
be "double-edged." Contrary to the conclusion of the district
court, it is apparent, as the state court found, that Bonnette
was aware of the facts concerning Williams's difficult childhood.
The failure to present this
evidence would not constitute "deficient" performance within the
meaning of Strickland if Bonnette could have concluded, for
tactical reasons, that attempting to present such evidence would
be unwise. In Williams v. Collins, 16 F.3d 626, 632 (5th Cir.),
cert. denied, 512 U.S. 1289, 115 S.Ct. 42, 129 L.Ed.2d 937
(1994), we rejected an ineffective assistance of counsel claim,
concluding that the defendant's trial attorneys were "legitimately
concerned that any mitigating testimony would have been
presented by witnesses whose knowledge would have opened the
door to more damaging evidence under cross-examination."
Considering the general
circumstances of the penalty phase hearing, Bonnette's decision
not to present evidence of Williams's troubled upbringing
appears well considered. Although Williams complains at length
that Bonnette's presentation "consisted of only 11 questions
asked during cross-examination of a prosecution witness," we
note that the evidentiary presentation at the sentencing hearing
was not nearly so lopsided as Williams suggests.
The state presented only two
witnesses at the sentencing hearing. The first witness, a Many,
Louisiana police officer, was called for the sole purpose of
identifying Williams and introducing, through public documents,
the fact of Williams's prior conviction for attempted "simple
The second witness was the
warden of the facility where Williams was incarcerated on the
burglary charge. The state's questioning did no more than to
establish that Williams had been released on a five-day furlough
at the time of the murder, and to suggest, during redirect
examination, that the Legislature could change the law to permit
individuals serving life sentences to be released on furloughs.
There would have been little
or no point to cross-examining the first witness. Bonnette did
cross-examine Warden Gene, establishing that no more than a
quarter of the prison's inmate population would ever receive a
furlough, and that furloughs were granted only to the "least
violent and the best behaved" prisoners. Bonnette also
established that under current law, prisoners serving sentences
of life without parole--the alternate sentence to death in
Williams's case--were not eligible for furloughs.
Bonnette next requested and
received a brief recess to confer with Dr. Dixon, his
psychiatric expert. After the recess, Bonnette indicated that
the defense would present no additional evidence, stating that
"[a]ll the evidence has been presented at trial." Bonnette's
decision not to offer testimony concerning Williams's troubled
upbringing and problems with drugs and alcohol, while noteworthy
in the abstract, appears less troubling in the context of such a
brief sentencing hearing, which did not at all delve into issues
of Williams's character.
Bonnette's decision not to put
on any witnesses prevented the state from offering any rebuttal
evidence. This decision was quite arguably a wise choice. The
record shows that, at the beginning of the sentencing hearing,
Bonnette successfully prevented the state from introducing the
testimony of the victim of Williams's prior "simple burglary,"
who was expected to testify that Williams "continued to try to
get in her house, and break in on her and her children while she
knew he was there and he knew that she was aware he was trying
to get in " (emphasis added).
Under the circumstances, it is
quite likely that Bonnette consciously chose to take his chances
with a jury that had been told nothing of Williams's character
beyond the fact that he had previously been regarded as a model
prisoner who had been convicted of an innocuous-sounding "simple
We need not determine, however,
whether the district court erred in rejecting the state's
argument that Bonnette's actions represented a tactical choice--an
issue that the state court did not address--because we find that
under the AEDPA's deferential standard of review, we must
sustain the state court's conclusion that the failure to present
mitigating evidence concerning Williams's difficult childhood
did not prejudice his defense within the meaning of Strickland.
"If we can 'dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice ... that course should be followed.'
" Motley, 18 F.3d at 1226 (quoting Strickland, 466 U.S. at 697,
104 S.Ct. at 2069).
To establish prejudice,
Williams must show that it is "reasonably likely that the jury
would have reached a different decision absent counsel's
unprofessional errors." Faulder, 81 F.3d at 519 (citing
Strickland, 466 U.S. at 696, 104 S.Ct. at 2069). A "reasonable
probability" need not be proof by a preponderance that the
result would have been different, but it must be a showing "sufficient
to undermine confidence in the outcome." Strickland, 466 U.S. at
694, 104 S.Ct. at 2068.
Bonnette could have presented
evidence concerning Williams's troubled family history and the
fact that he was verbally and physically abused as a child.
These efforts, however, would have "opened the door" for cross-examination
concerning Williams's use of drugs and alcohol, his purported
expulsion from school for "causing trouble," and his discharge
from at least one job.
This evidence likely would
have had little mitigating effect against the aggravating
evidence concerning the brutal, premeditated murder of Mrs.
Knippers, Williams's prior criminal history, and the fact that
Williams hid the shirt he had been wearing during the crime and
initially lied to police about his actions.
The state court specifically
found that Williams was not prejudiced by Bonnette's failure to
present the testimony of family members or friends. We cannot
say, under the AEDPA's deferential standard of review, that the
state court's conclusion "involved an unreasonable application
of" clearly established federal law. Reasonable jurists
considering Williams's ineffectiveness claim would not be of "one
view" that the state court's judgment was wrong. Accordingly,
the district court's decision to grant federal habeas relief on
this ground must be reversed.
Finally, we address Williams's
argument that constitutional defects in the jury instructions
during the sentencing phase of his trial require that his death
sentence be vacated.
During the sentencing phase of
Williams's trial, the jury found that two statutory aggravating
factors existed: (1) at the time of the murder, Williams was
engaged in the perpetration of an aggravated burglary or the
attempted perpetration of an aggravated rape,
and (2) the offense was committed in an especially heinous,
atrocious or cruel manner. Having found the existence of at
least one statutory aggravating factor, as required by Louisiana
law, the jury then determined, based upon its consideration of
the aggravating factors and any mitigating evidence, that
Williams should be sentenced to death.
The second of the two
aggravating factors found by the jury, the "especially heinous,
atrocious or cruel" factor, has been declared unconstitutionally
vague by the United States Supreme Court. Maynard v. Cartwright,
486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). The first
factor, however, is valid, and amply supported by the evidence,
as the Louisiana Supreme Court specifically found during
Williams's final appeal on direct review. State v. Williams, 490
So.2d at 262 (finding fact that Williams was hiding in Mrs.
Knippers's bathroom, pantless and brandishing a knife,
sufficient evidence from which jury could conclude that Williams
had committed aggravated burglary or attempted aggravated rape).
Louisiana law requires only
that at least one statutory aggravating factor be found by the
jury before a defendant may be considered "eligible" for the
death penalty. La.Code Crim. Proc. art. 905.3. This requirement
was therefore adequately met by the first factor, without regard
to the second, invalid factor. Williams was therefore
statutorily eligible to receive the death penalty if the jury so
Williams argues, however, that
his death sentence must still be vacated because the jury, once
it had determined that he was "death-eligible," also considered
the invalid factor in reaching its ultimate decision as to
whether he should receive the death penalty. He argues that
consideration of this invalid aggravating factor at the final
stage of his sentencing hearing unconstitutionally tipped the
scale in favor of the death penalty.
We should observe first that
the Eighth Amendment concerns found in Godfrey v. Georgia, 446
U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (invalidating "outrageously
or wantonly vile, horrible or inhuman" aggravating factor), and
Maynard, 486 U.S. at 364-65, 108 S.Ct. at 1859 (similarly
invalidating the "especially heinous, atrocious or cruel"
aggravating factor), do not control Williams's case.
The Eighth Amendment
requirement under which these factors were held to be
unconstitutionally vague is a requirement that the jury's
discretion in capital cases be appropriately narrowed and
channeled to inhibit the arbitrary imposition of the death
penalty. "Since [Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726,
33 L.Ed.2d 346 (1972) ], our cases have insisted that the
channeling and limiting of the sentencer's discretion in
imposing the death penalty is a fundamental constitutional
requirement for sufficiently minimizing the risk of wholly
arbitrary and capricious action." Maynard, 486 U.S. at 362, 108
S.Ct. at 1858 (citing cases).
In cases where the death
penalty is supported by multiple aggravating factors, this "channeling
and limiting" function is satisfied by the presence of at least
one valid aggravating factor. This requirement was met in
Williams's case by the jury's finding, during the guilt phase
and again during the sentencing phase, that Williams had been
engaged in the perpetration of an aggravated burglary or the
attempted perpetration of an aggravated rape. See, e.g.,
Lowenfield v. Phelps, 484 U.S. 231, 244-46, 108 S.Ct. 546,
554-55, 98 L.Ed.2d 568 (1988) (explaining that Eighth Amendment
narrowing requirement was satisfied by Louisiana scheme wherein
state law narrows class of murders eligible for the death
penalty in its definition of capital murder, and jury finding of
guilt therefore necessarily satisfies Eighth Amendment concern).
The conclusion that the
presence of another valid aggravating factor satisfies the
requirements of the Eighth Amendment, however, does not end our
constitutional inquiry, because the invalidation of one of the
two statutory aggravating factors considered by the jury also
raises due process concerns under the Fourteenth Amendment.
State capital sentencing
procedures must, of course, satisfy the requirements of the Due
Process Clause of the Fourteenth Amendment. Clemons v.
Mississippi, 494 U.S. 738, 746, 110 S.Ct. 1441, 1447, 108 L.Ed.2d
725 (1990). In Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227,
65 L.Ed.2d 175 (1980), the Court explained:
Where, however, a State has
provided for the imposition of criminal punishment in the
discretion of the trial jury, it is not correct to say that the
defendant's interest in the exercise of that discretion is
merely a matter of state procedural law. The defendant in such a
case has a substantial and legitimate expectation that he will
be deprived of his liberty only to the extent determined by the
jury in the exercise of its statutory discretion, and that
liberty interest is one that the Fourteenth Amendment preserves
against arbitrary deprivations by the State.
Id. at 346, 100 S.Ct. at 2229
(citations omitted). The capital defendant therefore has a
constitutional liberty interest in having his sentence imposed
by a jury instructed to act within the bounds of its statutory
discretion, and that interest is protected by the Due Process
Clause of the Fourteenth Amendment.
It is for this reason--the
defendant's interest in the state's adherence to the procedures
established by state law--that the presence of one or more
additional, valid aggravating factors may serve to sustain the
death penalty under some state systems, but not under others. In
this vein, the United States Supreme Court has described one
difference between capital sentencing systems as a distinction
between "weighing" and "non-weighing" systems.
In a "weighing state" the
jury's consideration of an unconstitutionally vague factor at
the final stage of death penalty proceedings violates the
defendant's constitutional rights under the Fourteenth Amendment
and requires that a resulting death sentence be vacated, unless
a state appellate court has cured the defect by reweighing the
valid factors or conducting a harmless error analysis. Richmond
v. Lewis, 506 U.S. 40, 46-47, 113 S.Ct. 528, 534, 121 L.Ed.2d
411 (1992)(citing Clemons, 494 U.S. at 748-52, 110 S.Ct. at
In a "non-weighing state,"
however, a defendant's death sentence is not invalidated by the
presence of an unconstitutional factor so long as another valid
aggravating factor is found by the jury. Zant v. Stephens, 462
U.S. 862, 880-90, 103 S.Ct. 2733, 2744-49, 77 L.Ed.2d 235
The Louisiana Supreme Court
has held that Louisiana is a "non-weighing" state, and that the
subsequent invalidation of a statutory aggravating factor found
by the sentencing jury does not require that a resulting death
penalty be vacated if another valid aggravating factor is also
found. State v. Hamilton, 681 So.2d 1217, 1227 (La.1996), cert.
denied, --- U.S. ----, 117 S.Ct. 1705, 137 L.Ed.2d 830 (1997).
Indeed, in Stringer v. Black,
503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), the United
States Supreme Court held that Mississippi was a "weighing"
state, and by way of contrasting Mississippi's system to those
of other states, appears to have placed Louisiana in the "non-weighing"
category: "[U]nlike the Mississippi process, in Louisiana the
jury is not required to weigh aggravating against mitigating
factors." Because the parties have not argued otherwise, we will
proceed upon the assumption that Louisiana is, in fact, a non-weighing
state with regard to its capital sentencing procedures.
Yet an understanding of the
distinction between "weighing" and "non-weighing" systems is
necessary in order to analyze the constitutional effect of the
instruction given in Williams's case--that is to say, the effect
of a "weighing" instruction given to a jury in a non-weighing
state. We therefore will assess the Supreme Court's various
explanations of the critical differences between "weighing" and
The United States Supreme
Court has been less than perfectly clear about the definitions
of "weighing" and "non-weighing" capital sentencing schemes. The
most detailed statement of the distinction is found in Stringer
v. Black. In Stringer, the Court compared Mississippi's capital
sentencing scheme to the Georgia system at issue in Godfrey and
The principal difference
between the sentencing schemes in Georgia and Mississippi is
that Mississippi is what we have termed a "weighing" State,
while Georgia is not. Under Mississippi law, after a jury has
found a defendant guilty of capital murder and found the
existence of at least one statutory aggravating factor, it must
weigh the aggravating factor or factors against the mitigating
By contrast, in Georgia the
jury must find the existence of one aggravating factor before
imposing the death penalty, but aggravating factors as such have
no specific function in the jury's decision whether a defendant
who has been found to be eligible for the death penalty should
receive it under all the circumstances of the case.
Id. at 229-30, 112 S.Ct. at
1136 (internal citations omitted). Thus, in a system that
requires the jury to place the statutory aggravating factors on
one side of the scale and all of the mitigating evidence on the
other, and to balance one side against the other before imposing
the death penalty, statutory aggravating factors become
critically important in guiding the jury's decision whether
death is an appropriate sentence. "[W]hen the sentencing body is
told to weigh an invalid factor in its decision, a reviewing
court may not assume it would have made no difference if the
thumb had been removed from death's side of the scale." Id. at
232, 112 S.Ct. at 1137.
The Court reiterated the
constitutional harm caused by the use of a vague aggravating
factor in performing the initial narrowing and channeling
required by the Eighth Amendment, but then noted that "[a] vague
aggravating factor used in the weighing process is in a sense
worse, for it creates the risk that the jury will treat the
defendant as more deserving of the death penalty than he might
otherwise be by relying upon the existence of an illusory
circumstance." Id. at 235, 112 S.Ct. at 1139.
To contrast the "weighing"
system at issue in Stringer with a "non-weighing" system, we
turn to the Court's decision in Zant, which discussed Georgia's
"non-weighing" system in some detail:
In Georgia, unlike some other
states, the jury is not instructed to give any special weight to
any aggravating circumstance, to consider multiple aggravating
circumstances any more significant than a single such
circumstance, or to balance aggravating against mitigating
circumstances pursuant to any special standard. In Georgia, the
finding of an aggravating circumstance does not play any role in
guiding the sentencing body in the exercise of its discretion,
apart from its function of narrowing the class of persons
convicted of murder who are eligible for the death penalty.
462 U.S. at 873-74, 103 S.Ct.
at 2741. In Zant, the Court found that the habeas petitioner's
death sentence did not need to be vacated because one of the two
aggravating factors found by the jury was unconstitutionally
vague. Under the Georgia system, the sentencing jury could not
consider imposing the death penalty unless it found that at
least one statutory aggravating factor had been established
beyond a reasonable doubt.
The purpose of this finding
was to serve the constitutional requirement of narrowing the
range of murders for which a defendant became eligible for the
death penalty. Once the jury found the defendant "death-eligible,"
the aggravating factor or factors had served their statutory
purpose. The jury then moved to the final stage of determining
whether death was the appropriate sentence for the death-eligible
At this point, the aggravating
factor was simply part of the mix of aggravating and mitigating
evidence that the jury could consider as a whole in determining
whether the death sentence was to be imposed. The Court in Zant
therefore agreed with the Georgia Supreme Court's conclusion
that the jury's ultimate decision to impose death was not
materially impacted by the fact that certain evidence--which was
otherwise properly before the sentencing jury--was labeled a "statutory"
aggravating circumstance. Id.
Although the definition is not
precise in every detail, from these cases we derive an
understanding of the distinction between "weighing" and "non-weighing"
systems sufficient to resolve this case.
In a non-weighing state,
statutory aggravating factors serve principally to address the
concerns of the Eighth Amendment--that is, the role of the
statutory aggravators is to narrow and channel the jury's
discretion by separating the class of murders eligible for the
death penalty from those that are not. Also, in non-weighing
systems the jury is not required to balance established
aggravating factors against mitigating factors.
Although the jury is permitted
to consider both aggravating and mitigating evidence in reaching
its ultimate determination whether the death penalty should be
imposed, "statutory aggravating factors" play no guiding role as
such at this final stage of the sentencing proceeding.
In a weighing state, statutory
aggravating factors also serve to narrow and channel the jury's
discretion by identifying those murders eligible for the death
penalty; as in Georgia's non-weighing system, the jury in a
weighing state must find at least one statutory aggravating
factor before the death penalty may even be considered. After
one such factor has been found, however, the two systems differ
Unlike the jury in a non-weighing
state, which at this final stage is largely free to exercise its
discretion as it chooses based upon all of the facts and
circumstances, the jury in a weighing state is not permitted to
impose the death penalty unless it concludes that the specific
statutory aggravating factors it has found "outweigh" all
The weighing system jury is
effectively told to weigh the specific aggravating factors
against mitigating factors as if on an imaginary scale, and to
issue its sentencing decision based upon the outcome of that
In sum, a jury in a weighing
state has been directed by state law in the method it must
follow in order to impose the death penalty in ways that a jury
in a non-weighing state has not. The weighing state requires the
jury to focus only on the statutory aggravating factors that it
finds, and place only those statutory aggravators on the scale.
The weighing state jury is then required to balance these
aggravating factors against all mitigating evidence, and it can
only impose the death penalty if it determines that the
established aggravating factors "outweigh" the mitigating
In contrast, a non-weighing
state only requires the jury to find a statutory aggravating
factor for the purpose of initially determining whether the
defendant is "death-eligible." Thereafter, statutory aggravating
factors play no role in the sentencing process above the role of
all other evidence, which is the primary feature that
distinguishes non-weighing systems from weighing systems.
Williams argues, however, that
Louisiana's status as a non-weighing state has "little relevance"
because the jury in his case was given a "weighing" instruction.
Williams asserts that because his jury was instructed to "weigh,"
rather than merely "consider," an invalid aggravating factor,
his death sentence was rendered in violation of the Eighth and
Fourteenth Amendments. Williams's argument, however,
misunderstands the nature of these constitutional requirements.
As discussed above, the Eighth
Amendment concerns expressed in Godfrey and Maynard are
satisfied in cases where there are other valid aggravating
factors that serve the required channeling function. Williams's
Fourteenth Amendment argument also fails. As we have explained,
the capital defendant has a constitutionally protected liberty
interest in having his sentence imposed by a jury instructed to
act within the bounds of its statutory discretion. But that
liberty interest is derived from the requirements of state law,
and not from the individual jury instructions given in any one
Williams complains that his
jury was improperly instructed to "weigh" an invalid aggravating
factor in determining whether he should be sentenced to death.
In a weighing state such as Mississippi, this instruction would
reflect state law, and would indeed require that Williams' death
sentence be vacated and his case remanded for resentencing,
reweighing or harmless error analysis by a state court. Clemons,
494 U.S. at 754, 110 S.Ct. at 1451. Had Williams been convicted
and sentenced to death in Mississippi, the jury's weighing of an
invalid aggravating factor would have violated Williams's
legitimate expectation that he would not be sentenced to death
unless the jury found that the established statutory aggravating
factors outweighed any mitigating circumstances.
Williams, however, has not
suffered any such violation of his legitimate expectations under
state law. The process that is due Williams, and in which he has
a liberty interest protected by the Due Process Clause, is
defined by Louisiana law and not by the instructions issued to
his particular jury.
Weighing systems provide
capital defendants with certain benefits not guaranteed
defendants in non-weighing states: the assurance that death
cannot be imposed unless the aggravating factors outweigh the
mitigating circumstances, and the assurance that the jury will
only place upon the scale that aggravating evidence that
supports a statutory aggravating factor.
A capital defendant in a
weighing state has a protectable liberty interest in those
benefits, but Williams does not. At the final stage of the
sentencing hearing, after the defendant has been found "death-eligible,"
Louisiana law permits the capital sentencing jury to consider
all of the aggravating (and mitigating) evidence from both the
guilt-innocence and sentencing phases in reaching its final
determination, and does not require that this determination be
controlled by the "weighing" of specified "statutory aggravating
factors" against any mitigating evidence. As in Zant, Williams's
jury was actually free, under state law, to consider the heinous
nature of the murder in its final consideration of the mix of
both aggravating and mitigating evidence.
Williams's argument amounts to
a complaint that his jury was instructed erroneously, under
Louisiana law, as to the appropriate sentencing procedure, but
that he did not receive the full benefit of that error. This is
not a benefit to which Williams was entitled. Thus, the Due
Process Clause is not offended; the jury's consideration of the
invalid factor did not deny Williams the benefit of any liberty
interest that he enjoys under Louisiana law.
In conclusion, we REVERSE the
decision of the district court granting the writ of habeas
corpus on the ground that Williams received ineffective
assistance of counsel during the penalty phase of his trial. As
to Williams's claims concerning alleged racial discrimination in
the selection of the grand jury foreman, and constitutional
defects in the jury instructions during the penalty phase, we
AFFIRM the judgment of the district court denying relief on
REVERSED in part, and
AFFIRMED in part.
BENAVIDES, Circuit Judge,
concurring in the judgment of the court:
Although I concur in the
judgment of the court, I write separately to emphasize what we
do not decide today--i.e., whether a federal habeas court can
conduct harmless error analysis when reviewing a death sentence
from a weighing state. Although I recognize that this court has
implicitly held that a federal habeas court cannot conduct such
an analysis, see Wiley v. Puckett, 969 F.2d 86, 94 (5th
Cir.1992), this court has not revisited the issue since the
Supreme Court's decision in Brecht v. Abrahamson, 507 U.S. 619,
637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993).
In Brecht, the Supreme Court
held that a federal court can grant a writ of habeas corpus only
if it finds that the alleged constitutional error " 'had a
substantial and injurious effect or influence in determining the
jury's verdict.' " 507 U.S. at 637, 113 S.Ct. at 1722 (quoting
Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239,
1253, 90 L.Ed. 1557 (1946)).
Although this court has not
revisited the issue, at least three courts of appeals have
interpreted Brecht as authorizing federal habeas courts to
conduct harmless error analysis when reviewing a death sentence
from a weighing state. See, e.g., Davis v. Executive Director of
Dep't of Corrections, 100 F.3d 750, 768 n. 18 (10th Cir.1996),
cert. denied, --- U.S. ----, 117 S.Ct. 1703, 137 L.Ed.2d 828
(1997); Williams v. Clarke, 40 F.3d 1529, 1539-40 (8th
Cir.1994); Smith v. Dixon, 14 F.3d 956 (4th Cir.1994) (en banc
The facts of this case,
however, do not require that we revisit Wiley either explicitly
or implicitly. Accordingly, I note that the majority's statement
that "[i]n a 'weighing state' the jury's consideration of an
unconstitutionally vague factor at the final stage of death
penalty proceedings violates the defendant's constitutional
rights under the Fourteenth Amendment and requires that a
resulting death penalty be vacated, unless a state appellate
court has cured the defect by reweighing the valid factors or
conducting a harmless error analysis," Maj. Op. at 281 (emphasis
added), is not necessary to the decision before the court.
143 F.3d 949
WILLIAMS, Petitioner, Appellee,
Burl CAIN, Warden, Respondent, Appellant.
United States Court of Appeals,
June 16, 1998.
Appeal from the United States
District Court for the Western District of Louisiana.
Before JOLLY and BENAVIDES, Circuit Judges.
In this death penalty case,
Burl Cain, Warden for the Louisiana State Penitentiary, appeals
the entry of a stay of execution by the district court pending
disposition of a petition for writ of certiorari in the United
States Supreme Court. Finding that the district court lacked
jurisdiction to enter this order, we reverse and grant the State
of Louisiana's motion to vacate the stay.
* In 1985, Dobie Gillis
Williams was found guilty of first degree murder in Louisiana
state court and sentenced to death. After exhausting his state
court remedies, Williams filed a petition for writ of habeas
corpus in the United States District Court for the Western
District of Louisiana. On October 9, 1996, District Judge Little
granted the writ, see Williams v. Cain, 942 F.Supp. 1088 (W.D.La.1996),
from which final decision Cain timely appealed.
On October 3, 1997, this court
reversed the judgment of the district court and reinstated
Williams's death sentence. See Williams v. Cain, 125 F.3d 269
(5th Cir.1997). Following an unsuccessful petition for rehearing
and rehearing en banc, the mandate issued on April 24, 1998,
which gave Williams until July 23 to file a petition for writ of
certiorari in the United States Supreme Court.
Apparently seeking to force a
quick disposition, on May 14, the State of Louisiana obtained a
new execution date of June 18 from a Louisiana state court. The
record before us indicates that the new date was obtained
without prior notice to Williams's attorney, who promptly moved
the state court for a renewed stay pending disposition of an
anticipated petition for writ of certiorari.
On June 3, Judge Wright of the
35th Judicial District responded, stating that "[t]he above
requested stay order is denied. Counsel for defendant have not
applied for a stay order with the Supreme Court and have not
filed an appeal with the Supreme Court."
His state remedies again
exhausted, Williams returned to federal court. On June 8, he
filed a petition for a stay of execution in the United States
District Court for the Western District of Louisiana. On June
11, District Judge Little granted the stay pending disposition
of Williams's still unfiled petition for writ of certiorari,
relying on the relaxed jurisdictional requirement for pro se
habeas petitions enunciated in McFarland v. Scott, 512 U.S. 849,
114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). Cain noticed his appeal
of this order exactly one day later, appending thereto a motion
by the State of Louisiana to vacate the stay.
Under 28 U.S.C. § 2251, it is
quite clear that only "[a] Justice or Judge of the United States
before whom a habeas petition is pending, may ... stay a[ ]
proceeding against the person detained." Although the Supreme
Court broadened the scope of § 2251 somewhat in McFarland, that
case is inapposite to the one before us. Contrary to the
district court's broad reading, McFarland simply held "that a
capital defendant may invoke his right to a counseled federal
habeas corpus proceeding by filing a motion motion requesting
the appointment of habeas counsel, and that a district court has
jurisdiction to enter a stay of execution where necessary to
give effect to that statutory right." 512 U.S. at 859, 114 S.Ct.
Obviously, the McFarland rule,
which is concerned with effectuating the petitioner's right to
file for habeas in the district court in the first instance, has
nothing to say about the jurisdiction of that court to enter a
stay pending disposition of certiorari when the habeas petition
has already been ruled on, the appellate mandate has issued, and
the case is no longer before the court in any fashion. In that
instance, the only reasonable analysis is that the habeas
petition is no longer pending before the district court, and the
court therefore lacks jurisdiction to enter a stay under the
clear terms of the statute.
We note in passing that this
conclusion accords with the Sixth Circuit's reading of § 2251 in
Steffen v. Tate, 39 F.3d 622 (6th Cir.1994) (Boggs, J.) (concluding
that district court had no jurisdiction to enter stay of
execution pending disposition of additional state court remedies
where defendant was represented and no habeas petition was
Judge Wright called this case
correctly at the outset. When a petitioner seeks a stay of
execution pending the disposition of a writ of certiorari in the
United States Supreme Court, he should seek that stay in the
Supreme Court itself.
The district court lacks the
ability to give it under 28 U.S.C. § 2251, and we accordingly
REVERSE the order of the district court in this case, and GRANT
the State of Louisiana's motion to vacate the stay.
STAY OF EXECUTION VACATED.
Sister Helen Prejean and Dobie Gillis Williams at Louisiana State