David Meadows v. Manfred G. Holland

K.K. HALL, Circuit Judge:

The Attorney General of the State of West Virginia, acting on behalf of Manfred G. Holland, Superintendent of the West Virginia State Penitentiary (“the State”), appeals an order of the district court granting a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 by David Meadows, a West Virginia inmate. We granted an initial en banc hearing in this matter in order to review definitively, the State’s contention that a prior decision of this Court interpreting West Virginia law and relied upon by the district court in granting habeas relief was wrongly decided. We now reverse.

I.

On April 17, 1981, petitioner Meadows was found guilty by a jury in Mercer County, West Virginia, of the first degree murder of a former girlfriend, Gloria Darlene Hairston. Hairston had disappeared from her home on the evening of November 28, 1979. Her body was eventually discovered on January 17, 1980. She had died as a result of multiple gunshot wounds.

The evidence presented against Meadows at trial was admittedly circumstantial. According to witness testimony, Meadows engaged in a physical altercation with Hairston at her place of employment on November 28, 1979. During that incident, he struck both Hairston and another employee with whom he accused her of having an affair. He also threatened them with a knife and allegedly stated that “I’m not through with you all yet.”

Later that same day, Meadows borrowed a 1975 blue Chevrolet Caprice from a friend, Veronica Finney. Finney subsequently testified that Meadows returned her automobile at either 7:20 p.m. or 8:20 p.m. She further testified that Meadows *495remained at her home watching television until approximately 10:30 p.m.

Other witnesses testified that they had seen Hairston’s automobile parked along the road early in the evening of November 28. Witnesses also testified to observing a car resembling the one borrowed by Meadows parked behind Hairston and to hearing a woman scream as well as two gunshots. Buckshot, blood of Hairston’s type, her glasses, and a button from her blouse were all discovered near the site where the two cars were seen.

Meadows’ defense at trial relied primarily upon an assertion of alibi. In addition to Finney’s testimony that Meadows had returned to her home by 8:20 p.m., the defense also presented a witness who testified to having seen Hairston at a nearby train station between 8:40 and 8:55 p.m. The defense also relied upon the State’s inability to establish with any precision the time of Hairston’s death.

As the case was presented to the jury, the trial court gave the following instruction on the issue of alibi:

The Court instructs the jury that while the burden of proving an alibi is on the defendant, on account of its affirmative nature, this does not dispense with the necessity the state proving the actual presence of the defendant at the place where, and at the time when, the crime was committed, and if from the evidence the jury has a reasonable doubt as to the presence of the defendant at the place where, and at the time when, the offense was committed, they should acquit him.1

Following his conviction, Meadows filed an appeal with the West Virginia Supreme Court of Appeals in May, 1982. In the interval between Meadows’ trial and the filing of his appeal, this Court decided the case of Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.1982). In Adkins we affirmed the grant of habeas relief to a West Virginia petitioner on the ground that an alibi instruction given at his trial unconstitutionally shifted the burden of proof on an essential element of the crime from the state to the defendant.2 Of particular significance to this appeal, we also held that habeas relief was not procedurally barred by the petitioner’s failure to object to the instruction at trial because West Virginia did not apply a contemporaneous objection rule to a “constitutional or jurisdictional challenge.” Adkins, 674 F.2d at 282.

On direct appeal, Meadows raised five issues with regard to his conviction. Surprisingly, however, he did not present any objections to the jury instruction on alibi based upon our decision in Adkins. Meadows’ conviction was subsequently affirmed by the West Virginia court in State v. Meadows, 304 S.E.2d 831 (W.Va.1983). Although the dissenting opinion in Meadows questioned the constitutionality of the jury instruction, there is no indication that the majority considered the issue which had been neither briefed nor argued.

In December, 1984, Meadows sought post-conviction relief through a state habeas corpus petition filed with the Mercer County Circuit Court. In this petition, he asserted for the first time, a claim that the jury instruction given at his trial was unconstitutional. The Circuit Court, under the mistaken assumption that the claim had been addressed on direct appeal and, thus, was not subject to relitigation under West Virginia law, dismissed the petition.

*496Rather than appealing the dismissal, Meadows filed an original habeas petition with the West Virginia Supreme Court of Appeals. Following its normal practice with regard to initial habeas petitions, the court refused to grant a writ. The refusal, however, was without prejudice to Meadows’ right to refile the petition in Circuit Court.

At this juncture, Meadows abandoned any further effort at pursuing state remedies. On July 5, 1985, he filed a petition for habeas relief pursuant to 28 U.S.C. § 2254 with the district court raising the alleged instructional error as one of seven grounds justifying post-conviction relief. All of Meadows’ claims except that based on the jury instruction were dismissed. The remaining claim was referred to the magistrate for a report and recommendation.

In a report issued on July 11, 1986, the magistrate recommended that habeas relief be granted. After considering the timely objections presented by the State, the district court adopted the magistrate’s findings. The court concluded that, notwithstanding the State’s effort to distinguish the instruction at Meadows’ trial from that at issue in Adkins, both instructions suffered from the same constitutional infirmity. The district court rejected an effort by the state to assert a bar of procedural default based upon Meadows’ failure to object at trial, reasoning that Adkins was controlling authority on that question. Finally, the court found no merit in the State’s somewhat belated assertion that Meadows had failed to exhaust available state remedies.3 Accordingly, the court ordered that the State of West Virginia either release Meadows from custody within ninety days or retry him.

A timely appeal to this Court was filed by the State. The relief ordered by the district court has been stayed pending resolution of the appeal.

II.

On appeal, appellant’s principal contentions are essentially identical to the objections to the magistrate’s report presented to the district court. The State argues that the alibi instruction given at Meadows’ trial is distinguishable from the instruction in Adkins and thus, did not render petitioner’s trial fundamentally unfair. The State also contends that Meadows has not totally exhausted available avenues of state post-conviction relief. Finally, the State contends that petitioner’s failure to object at trial to the form of the alibi instruction amounts to a procedural default that precludes habeas relief. In support of the latter contention, the State argues that more recent decisions of the West Virginia Supreme Court of Appeals demonstrate that our assessment of the West Virginia contemporaneous objection rule articulated in Adkins was flawed. We find appellant’s argument on the issue of procedural default both persuasive and dispositive.4

The doctrine whereby a criminal defendant’s failure to observe a state contemporaneous objection rule operates as an “adequate and independent state ground” that bars habeas relief is a “well-established principle of federalism.” Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503, 53 L.Ed.2d 594 (1977). Moreover, the deference thereby accorded a contemporaneous objection rule in federal habeas proceedings is more than merely a matter of comity. Rather, it is an implicit recognition of the fact that a procedure which encourages a timely consideration of all issues relevant to a criminal prosecution has substantial independent value.5

*497Obviously, if a state either does not have or does not enforce procedures which require timely objection to alleged trial errors, the subsequent consideration of a habeas petitioner’s claims does not undermine the societal interest in promptly resolving all issues attendant to a criminal prosecution. Neither does federal habeas review under such circumstances imply “disrespect for the State by entertaining the claim.” County Court of Ulster Cty. v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979).

A decision in a federal habeas proceeding that a state does not require contemporaneous objection is, however, a significant determination. The effect is to substantially diminish the concept of finality in the operation of the state criminal justice system. It is, therefore, a conclusion that should not be reached lightly or without clear support in state law.6 Upon reconsideration, we now conclude that our analysis in Adkins did not satisfy that standard.

When we examined the issue of procedural default in Adkins, we acknowledged that no decision of the West Virginia Supreme Court of Appeals had-been rendered that was “precisely dispositive” of the question. 674 F.2d at 282. We, therefore, relied upon dicta from Spaulding v. Warden, 158 W.Va. 557, 212 S.E.2d 619 (1975), to guide our deliberations. In Spaulding, the West Virginia court noted that while certain trial errors asserted by a state habeas petitioner may have had merit, they had

no constitutional or jurisdictional basis which would render the conviction void or subject to collateral attack; they were, therefore, lost to the defendant by his failure to file notice of intent to appeal as required by Code, 1931, 58-5-4, as amended. Code 1931, 53-4A-1 as amended. See Ford v. Coiner, [156] W.Va. [362] 196 S.E.2d 91.

Reasoning from the obverse of the Spaulding dicta, we concluded that West Virginia did not require rigid compliance with procedural rules with regard to errors of constitutional or jurisdictional magnitude.

Although our conclusion in Adkins was not inherently unreasonable, a further examination of West Virginia law now convinces us that one ambiguous sentence from Spaulding cannot bear the weight we have previously assigned to it. We note initially that Ford v. Coiner, supra, cited as controlling authority for the statement in Spaulding, analyzed the issue of procedural default under the relevant West Virginia statute without distinguishing between constitutional and non-constitutional errors. It is difficult to reconcile a bifurcated interpretation of Spaulding with the unified doctrine articulated in Coiner.

More recent case law has suggested even more decisively that the application of contemporaneous objection and procedural default in West Virginia is not dependent upon the nature of the asserted error. In State v. Kopa, 311 S.E.2d 412 (W.Va.1983), the court concluded, in conformity with our decision in Adkins, that treating alibi as an affirmative defense was an unconstitutional shift of the burden of proof. Significantly, however, the court also held that the improper instruction could only be challenged in “cases currently in litigation or on appeal where the error has been prop*498erly preserved at trial.” 311 S.E.2d at 422 (emphasis added).7

The existence of stringent rules governing procedural default strongly implied in Kopa was further buttressed by the decision in State v. Hutchinson, 342 S.E.2d 138 (W.Va.1986). The court therein declined to consider on direct appeal an allegedly erroneous jury instruction on alibi in the absence of a timely objection at trial stating that:

It is implicit in decisions of this Court that the Fourth Circuit takes us further than we have desired to go in its perception of our application of the contemporaneous objection rule to potential errors of constitutional magnitude. Recently we refused to address a claimed error in the cross-examination of a criminal defendant related to his post-arrest silence. State v. Acord, — W.Va. —, 336 S.E.2d 741, 745 (1985). Although the error may have been of constitutional dimension, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977); State v. Oxier, — W.Va. —, 338 S.E.2d 360 (1985); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), we did not address the issue in State v. Acord, supra, because of the failure to object.

342 S.E.2d at 142-43. The court in Hutchinson further observed that:

although this Court may, under Rule 30 of the West Virginia Rules of Criminal Procedure, notice plain error in the giving of an erroneous instruction (in the absence of a proper and timely objection at trial), this Court will not ordinarily recognize plain error under such circumstances, even of constitutional magnitude, where the giving of the erroneous instruction did not substantially impair the truth-finding function of the trial.

Id. at 143.

After Hutchinson, there can be absolutely no doubt that West Virginia will not consider on direct appeal any but the most egregious constitutional error unless there has been a timely objection made at trial. It is distinctly unreasonable to suggest that compliance with rules of contemporaneous objection is required in West Virginia for direct appeal but excusable in a petition for habeas relief. We are also unpersuaded by appellee’s suggestion that Kopa and Hutchinson are reflective only of the present state of the law and that the scope of procedural default at his trial in 1981 was controlled by the more permissive rationale of Spaulding. Nothing in Kopa or Hutchinson suggests that new law was being articulated. Indeed, the explicit statement of the court in Hutchinson that “the Fourth Circuit takes us further than we have desired to go” clearly implies that any alterations in West Virginia law have flowed entirely from our decisions.

After a thorough examination of the decisions of the West Virginia Supreme Court of Appeals, we are now convinced that West Virginia has always treated a failure to object to trial errors as a default of any right to assert these errors on direct appeal or in habeas review. Our contrary determination in Adkins v. Bordenkircher is expressly overruled.8 It follows, therefore, that the State was entitled to offer the conclusive defense of procedural default in response to Meadows’ habeas petition unless petitioner could establish both “cause and prejudice” for his conceded failure to object to the alibi instruction at trial.

Normally a remand to the district court for consideration of the issues of “cause and prejudice” under Wainwright, supra, would be appropriate at this juncture. We find that course unnecessary, however. The record unequivocally discloses that any effort by Meadows to estab*499lish a sufficient “cause” for his procedural default would be unavailing and futile. Although the treatment of alibi as an affirmative defense was still an accepted part of West Virginia criminal practice in 1981, a constitutional challenge to that practice would clearly have had a “reasonable basis.” Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). Indeed, our rejection of the alibi instruction in Adkins rested squarely upon Supreme Court authority that was fully established by 1979.9 The failure of competent counsel to challenge the constitutionality of the alibi instruction in 1981 can only be construed as a tactical decision to which the petitioner is now bound. Reed, 468 U.S. at 13, 104 S.Ct. at 2909.

III.

For the foregoing reasons, we conclude that failure to observe the requirements of contemporaneous objection at trial is an “adequate independent state ground” for denying habeas relief in the State of West Virginia. We further conclude that there can be no valid “cause” shown for petitioner’s procedural default in this instance. Accordingly, we reverse the order of the district court granting Meadows’ habeas petition and remand with instructions that the petition be dismissed with prejudice.

REVERSED AND REMANDED

. The instruction given at Meadows’ trial was a variant of the alibi instruction approved by the West Virginia Supreme Court of Appeals in State v. Alexander, 245 S.E.2d 633 (W.Va.1978). The instruction was given in response to the defense’s request. The State objected to any alibi instruction on the ground that the evidence was insufficient to raise a valid jury question on that issue.

. The instruction at issue in Adkins, which was strikingly similar to the instruction given at Meadows’ trial, stated that:

The Court instructs the jury that where the state has established a prima facie case and the defendant relies upon the defense of alibi, the burden is upon him to prove it, not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such a degree of certainty, as will when the whole evidence is considered, create and leave in the mind of the jury a reasonable doubt as to the guilt of the accused.

. The State initially conceded that Meadows had exhausted his remedies under state procedure. It subsequently argued, however, that the West Virginia Supreme Court's refusal, without prejudice, of his original petition left further remedies available.

. Our resolution of this question renders consideration of the State's remaining contentions unnecessary.

. In Wainwright, supra, the Court observed that when a defendant has been accused of a serious crime, it is important that:

To the greatest extent possible all issues which bear on this charge should be determined in *497this proceeding; the accused is in the courtroom, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society’s resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification.

433 U.S. at 90, 97 S.Ct. at 2508.

. In Ulster, supra, the Supreme Court exhaustively examined both the statutory formulation of the New York contemporaneous objection rule as well as the application of that rule in numerous judicial decisions before concluding that a habeas petition was not barred by procedural default. 442 U.S. 150-54, 99 S.Ct. at 2221-23.

. The court’s statement was admittedly made in the context of a discussion of retroactivity rather than in an analysis of the contemporaneous objection rule. There is, however, a clear conceptual similarity between the two issues. Both doctrines deal with the extent of a criminal defendant's right to assert post-trial an error allegedly committed during previous criminal proceedings. Certainly the statement in Kopa is at least as instructive on the state of West Virginia law as the Spaulding dicta.

. We emphasize that Adkins is overruled only to the extent that it addressed the issue of procedural default in the State of West Virginia. The rejection of burden-shifting jury instructions expressed therein is unaffected by our decision today.

. Our decision in Adkins drew upon the principles articulated in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).