IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 91-1940
(Summary Calendar)
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MACK ARTHUR KING
Petitioner-Appellant,
versus
S.W. PUCKETT, Superintendent,
Mississippi State Penitentiary,
and MIKE MOORE, Attorney General,
State of Mississippi,
Respondents-Appellees.
_________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________________________________
(August 25, 1993)
BEFORE JONES, DUHÉ, and WIENER, Circuit Judges.
WIENER, Circuit Judge.
In this petition for a writ of habeas corpus, Petitioner-
Appellant Mack Arthur King appeals the district court's denial of
his petition, challenging, inter alia, the constitutionality of the
jury instruction, which informed the jurySQwithout limiting
instructionSQthat the "especially heinous, atrocious or cruel"
nature of the murder was an aggravating factor for consideration in
determining whether the death penalty should be imposed. Based on
subsequent jurisprudential developments which clearly state that
such an unlimited instruction is unconstitutional and may be
challenged notwithstanding a defendant's failure to object at trial
or on direct appeal, we remand to the district court with
directions to issue the writ of habeas corpus within a reasonable
time unless the state initiates appropriate proceedings.
I
FACTS AND PROCEEDINGS
In the morning of August 3rd, 1980, Mrs. Lelia Patterson, an
84 year old widow, was discovered dead in her bathtub. An autopsy
revealed that Mrs. Patterson had been struck on the head,
strangled, and drowned. The pathologist could not determine the
precise sequence of these events, and he testified that death could
be attributed either to the blow, the strangulation, or the
drowning. Finger and palm prints found on file folders located in
the house led the police to suspect King.
A search of King's residence uncovered articles belonging to
Mrs. Patterson. In a subsequent search, the police discovered
blood-spattered pants, which, according to King's girlfriend, King
was wearing on August 2nd and 3rd and which he washed himself,
refusing to let his girlfriend wash them as was customary. Testing
disclosed that the blood on the pants was human, although the blood
type was indeterminable.
In his first statement to the police, King denied that he had
been at the house on the day of the murder. After police
confronted him with the stolen items, he admitted that he had
burglarized the home on August 2nd. He denied, however, any
involvement in the murder. Rather, he stated that he was
accompanied by Willie Porter, his uncle, who remained outside while
2
King burglarized the home. King claimed that, as he was leaving,
he saw Porter, who had been drinking, enter Mrs. Patterson's home.
King was charged with capital murder, and Joe O. Sams, Jr.,
who had represented King in an earlier burglary charge, was
appointed to represent him. Sams was assisted by a recent law
school graduate Thomas L. Kesler and a legal intern, Tammy Lynn
Woolbright. Kesler interviewed King on two occasions prior to
trial. He determined that King was "slow" and "dull-witted."
Based on this determination, as well as Sam's prior experience with
King, Sam filed a motion with the trial court seeking a mental
examination for King. The court granted the motion, committing
King for a mental examination to determine: (1) his level of
intelligence; (2) his ability to comprehend the gravity of the
charges; (3) his ability to assist in his defense; (4) the standard
of conduct that King would likely exhibit during trial; and (5) his
competency to stand trial.
The state hospital examined King and the staff announced in a
one paragraph report "that the patient was without psychosis,
competent to stand trial and responsible for his actions at the
time of the alleged crime." No finding on the other points was
made, and none was requested either by King's attorneys or the
court.
Despite King's protestations of innocence, he was convicted of
capital murder. During the trial, his attorneys did not present
any witnesses, relying solely on the cross-examination of the
state's witnesses. King did not testify. On appeal, his attorneys
3
emphasize that King, "then a 21-year old black man, was tried for
the murder of a white woman before an all-white jury, a white
judge, and a white prosecutor."
After King's conviction, the court instructed the jury to
weigh the aggravating factors against the mitigating factors
presented in determining whether the death penalty should be
imposed. The jury considered two aggravating factors: that the
murder was committed in the course of a felony and that the murder
was committed in an "especially heinous, atrocious or cruel
manner." No mitigating factors were presented. Within a short
period, the jury returned a sentence of death.
King's conviction and sentence were affirmed by the
Mississippi Supreme Court.1 Likewise, his motion for post-
conviction relief, then known as a petition for writ of error coram
nobis, was denied without prejudice.2 The supreme court ruled that
certain of his claims were procedurally barred because they had not
been raised on direct appeal. Included among these claims was a
constitutional challenge to the "especially heinous, atrocious or
cruel" aggravating factor.
King was allowed, however, to refile his request regarding his
claim of ineffective assistance of counsel. Acting on this second
petition, the supreme court ordered an evidentiary hearing for the
ineffective assistance of counsel claim. Attorney Sams explained
1
King v. State, 421 So. 2d 1009 (Miss. 1982), cert. denied,
461 U.S. 919 (1983).
2
King v. Thigpen, 441 So. 2d 1365 (Miss. 1983).
4
that his decisions not to present character witnesses and not to
follow up on evidence of King's diminished mental capacity were
tactical. The state circuit court conducted the hearing and
concluded that "counsel's representation during the sentencing
phase of the trial was competent."
King next sought relief in federal district court on a
petition for a writ of habeas corpus. The district court reviewed
the ineffective assistance of counsel claim, concluding that the
alleged deficiencies were tactical decisions. Important for this
appeal, however, the district court determined, as did the
Mississippi Supreme Court, that most of King's claims were
procedurally barred because he had not raised them at trial or on
appeal.
II
ANALYSIS
A. Constitutional Challenge
Our review of King's constitutional challenge is guided by
this court's recent decisions in Wiley v. Puckett3 and Smith v.
Black.4 In Wiley, we recognized the unconstitutionality of the
"especially heinous, atrocious or cruel" aggravating circumstances
when given without a limiting instruction,5 and addressed the issue
whether the state court had cured the constitutional infirmity.
3
969 F.2d 86 (5th Cir. 1992).
4
970 F.2d 1383 (5th Cir. 1992).
5
See Maynard v. Cartwright, 486 U.S. 356 (1988).
5
Again based on Supreme Court precedent,6 we set forth the manner in
which "an appellate court could salvage a death sentence."7 The
appellate court could (1) "reweigh" the mitigating and aggravating
factors or (2) conduct a harmless error analysis by asking whether,
beyond a reasonable doubt, the death sentence would have been
imposed had the aggravating factor been properly defined in the
jury instruction. In Wiley, however, we concluded that the state
supreme court, by applying a narrowing construction to the
"especially heinous" circumstance, had failed to do either.
Subsequently ,in Smith, we addressed the question whether
Mississippi could raise a procedural bar to a constitutional
challenge to the "especially heinous" instruction based on the
petitioners failure to object at trial and to preserve the issue on
appeal. We ruled that Mississippi could not rely on either the
contemporaneous objection bar or the direct appeal bar as neither
had been applied to cases consistently. Consequently, we relied on
the venerable maxim that "[a] state procedural rule will not
function as an adequate and independent state ground supporting the
judgment if it is not `strictly or regularly followed.'"8
The application of Wiley and Smith to the instant case
dictates a remand to the district court with directions to issue
the writ of habeas corpus unless the State of Mississippi initiates
6
See Clemons v. Mississippi, 494 U.S. 738 (1990).
7
Wiley, 969 F.2d at 91.
8
Smith,970 F.2d at 1386 (Quoting Hathorn v. Lovorn, 457
U.S. 255, 262-63 (1982)(citation omitted)).
6
appropriate proceedings in a state court within a reasonable time
after the issuance of our mandate. The "especially heinous"
aggravating circumstance instruction is unconstitutionally broad
when given without a limiting instruction, as was the case here.
Moreover, the state court cannot bar King's claim by virtue of his
failure to object at trial or raise the issue on appeal. As the
supreme court applied such a bar, it is clear that it neither
reweighed the aggravating and mitigating factors nor conducted a
harmless error analysis. Consequently, it has not cured the
constitutional infirmity of the "especially heinous" instruction.
Given the state's options, it is conceivable that King will
not receive a new sentencing procedure; therefore, the errors he
alleges in that proceeding would continue to affect his sentence.
Consequently, we review the remaining issues raised by King, some
of which the district court considered despite the procedural bar.
A review of the briefs and records convinces us that we can add
little to the thorough and well-reasoned opinion of the district
court. Accordingly, we deal only briefly with each issue.
B. Ineffective Assistance of Counsel
King raises two related ineffective assistance issues: (1) he
received ineffective assistance of counsel because his trial
counsel failed to investigate and present readily available
mitigating evidence of character and low intelligence at the
sentencing phase; and (2) whether the federal district court should
have conducted an evidentiary hearing when considering King's
ineffective assistance claim based on the state court's failure to
7
make specific factual and credibility determinations. We address
each in turn.
1. Mitigating Evidence
As the district court notes, failure to proffer mitigating
evidence at the sentencing phase is not per se ineffective
assistance of counsel, and we have "often upheld decisions not to
put on mitigating evidence wh[en] the decision resulted from a
strategic choice."9 Under Strickland v. Washington,10 the important
inquiry is whether the decision not to offer the evidence was
reasonable in all the circumstances, and, if an error was
committed, that it affected the outcome of the trial.11
We agree with the district court that the superficial
investigation and decision not to offer witnesses was reasonable
under the circumstances. Sams, who had represented King in a prior
burglary charge, knew from previous investigation that King's
reputation in the community was exceedingly poor. Moreover, Sams
knew that Porter, the man King accused of the crime, was also his
uncle. He assumed, reasonably, that this would cause tension
within the family. Even if family members had been presented to
testify that King had never been violent before and that Porter was
a bad influence, this testimony would have opened the door to
rebuttal testimony regarding King's poor reputation.
We are more troubled, however, by Sams failure to follow up on
9
Stringer v. Jackson, 862 F.2d 1108, 1116 (5th Cir. 1988).
10
466 U.S. 668 (1984).
11
Strickland v. Washington, 466 U.S. 668 (1984).
8
his own motion seeking an evaluation of King's mental capacity.
Indeed, Sams himself doubted King's intellectual capacity, yet when
the state hospital failed to provide the information, expressly
directed by the court's order, Sams did nothing. According to
King, the evidence of his diminished mental capacity caused him to
have difficulty in controlling his instinctive responses, to
misperceive events, and to react in relatively unpredictable ways.
This, he insists, is mitigating evidence.
At the coram nobis hearing, Sams justified his failure to seek
additional information regarding King's intellectual capacity on
two grounds: (1) he did not think that King was significantly
impaired; and (2) historically jurors in the county did not excuse
a person because of diminished mental capacity. But, Sams' own
request for the evaluation belies these statements. If, as Sams
testified, King's lack of intelligence would have no effect on his
trial, why did Sams request the evaluation?
Notwithstanding the apparent contradiction between Sam's
request for a mental evaluation and his failure to follow up on it,
we need not decide whether this omission was professionally
unreasonable under Strickland, for in any event counsel's
ineffective assistance must also affect the outcome of the trial or
sentencing. In the instant case, we cannot conclude that the
failure to offer mitigating evidence in the form of King's
diminished mental capacity affected the outcome of his sentencing.
Even with such mitigating factors, the jury had two aggravating
factors weighing in favor of the death penalty. Although we now
9
know that, absent a limiting instruction, the "especially heinous"
aggravating circumstance instruction is unconstitutionally
overbroad, the question under Strickland's prejudice prong is
whether the ineffective actions of counsel affected the outcome of
the trial. The answer here is no.
Yet, if we were to eliminate the "especially heinous"
circumstance and reweigh the factors, as the Mississippi supreme
court may choose to doSQand as would (or could) be done in a new
sentencing trialSQ, then King would have a more compelling argument
that his counsel's failure to present mitigating evidence at the
sentencing phase affected the outcome of his sentence. Although
Mississippi is not constitutionally required to conduct a new
sentencing hearing,12 we suggest that the option of holding such a
hearing be given serious consideration on remand. in the instant
case.
2. Evidentiary Hearing
King also claims that the district court erred in failing to
hold an evidentiary hearing on his claim of ineffective assistance,
as the state court failed in its coram nobis proceeding to make any
relevant factual determinations. This claim is without merit. It
is well established that no hearing is required when the habeas
petitioner fails to allege the type of prejudice necessary to
satisfy that prong of Strickland.13 Moreover, we will not remand
a case for an evidentiary hearing when the district court, as it
12
Wiley, 969 F.2d at 94.
13
Hill v. Lockhart, 474 U.S. 52 (1985).
10
did here, has made a full review and search of the complete record
and no additional evidentiary development is necessary on an
issue.14
C. Jury Instruction
In addition to his successful claim regarding the
unconstitutionality of the "especially heinous" instruction, King
argues that the court erred in refusing to instruct the jury that,
even if the aggravating factors outweighed the mitigating factors,
the jury could impose a life sentence. Although King concedes, as
he must, that such an instruction is not required and failure to
give the instruction is not reversible error,15 he nonetheless
challenges the instruction on equal protection grounds. His
argument on this point is vague, stating simply that "[o]ther
capital defendants convicted in Mississippi have been afforded the
benefit of the `life option' instruction or its equivalent. . . .
King was not."
King, however, misapprehends the decisions of the Mississippi
supreme court, which has consistently stated that no such
instruction is required. Thus, refusal to grant such an
instruction is not reversible error. Moreover, the court views the
granting of a "life option" instruction as harmless error because
it favors the defendant.16 Consequently, King is not entitled to
14
Williams v. Blackburn, 649 F.2d 1019 (5th Cir. 1981).
15
Wiley v. State, 484 So. 2d 339 (Miss.), cert denied, 479
U.S. 906 (1986).
16
Hansen v. State, 592 So. 2d 114, 150 (Miss. 1991).
11
such an instruction (which he did not request), and the court's
failure to inform the jury of the "life option" was neither
reversible error nor an equal protection violation.
D. Prosecutorial Misconduct
King insists that the prosecutor's closing argument during the
sentencing phase was replete with improper and inflammatory
remarks. He cites the following four statements:
1. And I deal with criminal cases every week, ladies and
gentlemen, and I might submit to you that I don't ask for
the death penalty in every case because they may not
warrant it, but this case I'm asking for the death
penalty because it was senseless.
2. Can you imagine what Mrs. Patterson was thinking when
that man had her around the neck and she was screaming,
"help," and I'm talking for Mrs. Patterson now, and I am
asking you to help Mrs. Patterson, and I will ask you
ladies and gentlemen to write down as the second
aggravating circumstances . . . "the crime was committed
in an especially heinous, cruel and atrocious manner.
3. The second reason [for imposing the death sentence],
I don't know if it is not more important than the first.
It's a deterrent to others to commit the same kind of
crime. It will tell you, ladies and gentlemen, and
you're going to speak out to all the potential murderers
and other citizens and other criminals in this country.
[T]he death penalty is a deterrent to other people, and
it will tell those people that if you commit the crime
that you could be subjected to the death penalty. . . .
So we got two things here, . . . and I want this country
to know that we're not going to tolerate.
4. [T]he black minister, you remember I asked him,
"you're a minister, do you have any religious beliefs
against the death penalty?" And he said, "can I explain
it?" He says, "I looked in the book and it says, `he who
kills shall be killed.'"
King argues, that taken together, these improper comments were
"calculated to incite an unreasonable and retaliatory sentencing
decision, rather than a decision based on a reasoned moral response
12
to the evidence"17 and denied King a fundamentally fair sentencing
proceeding.
We again agree with the district court's conclusion that these
statements, viewed as a whole, did not render the sentencing
fundamentally unfair. Rather, the statements were not persistent
nor pronounced and do not reach the level of error required for
reversal. Moreover, the jury had been informed that it was the
sole judge of the facts and that arguments, statements, and remarks
of counsel having no basis in the evidence should be disregarded.
E. Inadequate Appellate Review
King argues that the Mississippi supreme court was unable to
review his appeal meaningfully due to the absence of a complete
transcript and a complete report from the trial court, as required
by law. We adopt the district court's discussion on this point and
conclude that no error of constitutional magnitude occurred.
F. Racial Discrimination
Finally, King raises a claim that the Mississippi death
penalty is applied in a racially discriminatory manner. In an
effort to support his claim, King presents statistical evidence
discussing the increased likelihood that a black male accused of
killing a white victim will receive the death penalty. He also
emphasizes the prosecutor's remarks about the "black minister"
during closing arguments (which King claims is a thinly veiled
racial remark) and the prosecutors use of peremptory challenges to
17
Lesko v. Lehman, 925 F.2d 1527 (3d Cir.) cert. denied,
112 S.Ct 273 (1991).
13
remove black jurors from the venire.
The district court held that this evidence insufficient to
establish racial discrimination in sentencing. First, the court
noted that in McCleskey v. Kemp18 the Supreme Court had held
statistical evidence like King's insufficient. Second, the court
ruled that King's other evidence was "an opportunity to repeat
other grounds raised in the petition." King argues that the
evidence concerning prosecutorial conduct during his sentencing
proceeding is sufficient under McCleskey to prove that the
decisionmakers in his case acted with discriminatory purpose. We
disagree.
First, we cannot agree that the prosecutor's reference to the
"black minister" on venire is a racial remark. If anything, it is
an attempted religious endorsement of the death penalty. Second,
King's allegations concerning the jury makeup are vague and
inconclusive. Based on the record before it, the district court
found that there was no practice of excluding black jurors under
the standard of Swain v. Alabama, the case applicable at the time
of King's sentencing.19 The district court found, and we agree,
that King's allegations fall far short of demonstrating racial
discrimination in the Mississippi sentencing scheme.
III
CONCLUSION
In his petition for habeas corpus, King alleges several errors
18
481 U.S. 279 (1987).
19
380 U.S. 202 (1965).
14
in his sentencing proceeding. Although we conclude that most of
his allegations are without merit, we hold that the "especially
heinous" aggravating factor, given without limiting instructions,
was unconstitutional. Consequently, we remand to the district
court to issue the habeas writ unless the state initiates the
appropriate proceedings. While acknowledging that we are without
authority to order a new sentencing hearing, we recommend that the
holding of such a proceeding be given serious consideration in this
case, given the failure of King's counsel to pursue potentially
mitigating evidence. All other claims raised by King, however, are
without merit.
REVERSED and REMANDED.
15