IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 92-3319
_______________
ROBERT WILKERSON,
Petitioner-Appellant,
VERSUS
JOHN P. WHITLEY,
Warden, Louisiana State Penetentiary,
and
RICHARD P. IEYOUB,
Attorney General, State of Louisiana,
Respondents-Appellees.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
_________________________
(January 31, 1994)
Before HENDERSON,* SMITH, and EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Robert Wilkerson was convicted of second-degree murder in
1973. That conviction was overturned by the Louisiana Supreme
Court because Wilkerson was shackled and gagged during trial. He
was retried and again convicted and sentenced to life imprisonment
in 1975. Fourteen years later, he filed for post-conviction relief
*
Circuit Judge of the Eleventh Circuit, sitting by designation.
in state court, claiming that several constitutional violations
occurred at his second trial. The trial court denied relief, and
the Louisiana Supreme Court denied writs in 1991.
Having exhausted his state remedies, Wilkerson brought a
habeas corpus action in federal district court. The magistrate
judge recommended that relief be denied, and the district court
adopted that recommendation. Because we find that Wilkerson was
indicted by a grand jury that unconstitutionally excluded women, we
reverse and remand to the district court with instructions to grant
a writ of habeas corpus. We do so on the basis of circuit
precedent that we now recommend be overruled en banc.
I.
Wilkerson and his codefendant, Grady Brewer, currently inmates
at the Louisiana State Penitentiary, were indicted in September
1973 by a West Feliciana Parish, Louisiana, grand jury. They moved
to quash the indictment on the ground that there were no women on
the grand jury venire or on the grand jury that indicted them.1
Their motion was denied, a trial jury found them guilty, and they
were sentenced to life imprisonment. On their initial appeal, the
Louisiana Supreme Court affirmed the conviction and sentence of
Brewer but reversed as to Wilkerson and remanded for a new trial.
State v. Brewer, 301 So. 2d 630 (La. 1974) (finding no error in
1
At the time of Wilkerson's trial, the state constitution provided that
"no woman shall be drawn for jury service unless she have previously filed
with the clerk of the District Court a written declaration of her desire to be
subject to such service." LA. CONST. art. VII, § 41 (repealed effective Jan. 1,
1975).
2
indictment, but deciding that trial court committed reversible
error in shackling Wilkerson and taping his mouth shut during
trial).
Wilkerson's second trial (on the same indictment) began in
January 1975. He was represented by the same attorney in both
trials. Again he was convicted, and he appealed.
On appeal, Wilkerson urged several assignments of error,
including the improper seating of a grand juror, an erroneous trial
court ruling limiting the scope of his cross-examination of a
witness, denial of a motion for a directed verdict, and denial of
a motion for change of venue. The Louisiana Supreme Court affirmed
the conviction but did not revisit the previously denied motion to
quash the grand jury venire. State v. Wilkerson, 326 So. 2d 353
(La. 1976). Before that court ruled on the second appeal, however,
the United States Supreme Court had decided Taylor v. Louisiana,
419 U.S. 522 (1975), holding that Louisiana's jury selection system
excluding women and blacks from petit jury venires violated the
Sixth and Fourteenth Amendments, and Daniel v. Louisiana, 420 U.S.
31, 32 (1975), holding that Taylor would not be applied retroac-
tively to "convictions obtained by juries empaneled prior to the
date of [Taylor]."
In February 1989, Wilkerson filed an application for post-
conviction relief in the state trial court. He raised five issues:
(1) He was denied his Sixth and Fourteenth Amendment rights because
of the exclusion of women from jury service, including the panel
from which his grand jury was drawn; (2) an unqualified juror was
3
seated on the grand jury; (3) he was denied his right to cross-
examine fully a witness against him; (4) the decision to handcuff
and shackle him during his second trial prejudiced the jury; and
(5) his trial counsel was ineffective for (a) failing to reurge the
previously denied motion to quash the indictment based upon the
exclusion of women, (b) failing to raise a motion to quash the
indictment based upon the unqualified juror, and (c) failing to
object to the handcuffing and shackling during the second trial,
which was arguably in violation of the Louisiana Supreme Court's
decision in Brewer.
The trial court denied the petitioner's post-conviction relief
on March 10, 1989. The Louisiana Supreme Court denied writs on
May 17, 1991. Wilkerson v. Smith, 580 So. 2d 370 (La. 1991).
Wilkerson then sought habeas relief in federal district court. The
magistrate judge recommended that relief be denied, and the
district court adopted that recommendation.
II.
Wilkerson argues that he should have the benefit of the rule
announced in Taylor declaring Louisiana's jury selection system
unconstitutional, because the decision was announced before his
direct appeal was final. Because we are bound by circuit precedent
to apply Taylor retroactively under the rule announced in Teague v.
Lane, 489 U.S. 288 (1989), we must grant Wilkerson habeas relief.
In Leichman v. Secretary, La. Dep't of Corrections, 939 F.2d
315, 317 (5th Cir. 1991) (per curiam), a panel of this court held
4
that a habeas petitioner could take advantage of the rule announced
in Taylor before his direct appeal was final because "[t]he law
regarding retroactivity changed drastically when the court decided
Griffith v. Kentucky, 479 U.S. 314 (1987), and Teague v. Lane, 489
U.S. 288 (1989)." That panel did not consider the implications of
applying Teague retroactively; it merely appeared to assume that it
could do so.2
Although bound by Leichman to grant habeas relief, another
panel in Williams v. Whitley, 994 F.2d 226 (5th Cir. 1993),
suggested that Daniel should still control the application of
Taylor. As the Williams panel recommended, see id. at 236, we
elected to rehear Williams en banc sub nom. Fulford v. Whitley, see
Williams, id. at 236, to decide this issue, but the case was mooted
by the petitioner's death. Thus, we are still bound to follow
Leichman on this issue, but we acknowledge the arguments set out in
Williams against applying Taylor retroactively and, for the reasons
set forth in Williams, we urge en banc review.
III.
Wilkerson's second claim is based upon a violation of state
law. He alleges that a member of the grand jury that indicted him
was not domiciled in West Feliciana Parish. As we have stated,
however, "`[W]e do not sit as "super" state supreme court' in a
habeas corpus proceeding to review errors under state law."
2
Daniel determined that Taylor should not apply retroactively.
Griffith and Teague changed the law of retroactivity but did not determine
whether the new law of retroactivity should itself be applied retroactively.
5
Cronnon v. Alabama, 587 F.2d 246, 250 (5th Cir.) (citations
omitted), cert. denied, 440 U.S. 974 (1979); Cook v. Morrill,
783 F.2d 593, 596 (5th Cir. 1986). As Wilkerson's claim does not
present any federal constitutional violations, we need not address
it.3
IV.
Wilkerson contends that he was not given an opportunity fully
to cross-examine William Riley, the eye-witness to the murder.
Wilkerson wanted to question Riley regarding any possible bias he
might have based upon Riley's transfer from a lockdown area after
testifying against Wilkerson in the first trial.4 The trial court
limited the cross-examination of Riley on the subject of bias to
whether he had received anything in exchange for his testimony.
Questions about Riley's transfer or the letters he had written were
not permitted. Other than that limitation, though, Wilkerson had
a thorough opportunity to cross-examine the witness.
Where the admission of evidence is concerned, on habeas corpus
review the standard is whether the state court's evidentiary ruling
was sufficiently egregious to render the trial fundamentally
unfair. Edwards v. Butler, 882 F.2d 160, 164 (5th Cir. 1989).
Although "cross-examination must be permitted into any incentive
3
The state's brief claims that the juror in question was actually
domiciled in West Feliciana Parish. He was a construction worker temporarily
living outside the parish. The brief claims that this juror did not intend to
abandon his domicile and that in Louisiana, "the critical element in determin-
ing place of residence is intent." State v. Kennedy, 8 Rob. 590 (La. 1845).
4
Riley had written several letters to prison administrators regarding
his transfer and his decision to testify for the state.
6
the witness may have to falsify his testimony," Evans v. McCotter,
790 F.2d 1232, 1241 (5th Cir.) (citing Davis v. Alaska, 415 U.S.
308, 317 (1974)), cert. denied, 479 U.S. 922 (1986), Wilkerson
never alleged that Riley's testimony was falsified.
The ruling was designed to prevent the jury from learning that
Wilkerson previously had been convicted of the same offense
(Riley's letters indicated that he had testified in Wilkerson's
first trial.). Furthermore, the jury could infer from the transfer
that the witness was moved to protect him from Wilkerson. Thus,
the limitation on cross-examination was designed to avoid prejudic-
ing the defendant.
Riley witnessed the murder from a distance of four to five
feet and testified that he saw Wilkerson stab the victim twice in
the chest. Wilkerson was permitted to inquire into whether Riley
received anything in exchange for his testimony and into other
possible motivations for bias. The trial court's limitation on
cross-examination about the letters and the transfer was not so
great as to render the trial fundamentally unfair or to deprive
Wilderson of his Sixth Amendment right to confront witnesses
against him.
V.
Wilkerson's fourth claim is based upon the trial court's
decision to handcuff and shackle him during the second trial,
despite the reversal of his conviction after the first trial based
upon the shackling and taping of his mouth. While a criminal
7
defendant is entitled to the physical indicia of innocence, a court
is justified in ordering him handcuffed and shackled during trial
where there is a danger of escape or injury to the jury, counsel,
or other trial participants. See Patterson v. Estelle, 494 F.2d 37
(5th Cir.), cert. denied, 419 U.S. 871 (1974).
The parish sheriff testified that it was the practice to
shackle only dangerous prisoners. As there was no evidence that
Wilkerson was an escape risk or would have been dangerous or
disruptive, the court was not justified in handcuffing and
shackling Wilkerson during his second trial. Nevertheless, the
error was harmless. See Buchanan v. Kentucky, 483 U.S. 102 (1987)
(applying harmless error standard to Fifth and Sixth Amendment
violations).
The jury knew Wilkerson was an inmate and convicted felon and
could have assumed that all inmates were tried in handcuffs and
shackles. Furthermore, given the eye-witness testimony of Riley,
it is unlikely that the result would have been different if
Wilkerson had not been handcuffed and shackled.
VI.
Wilkerson's last claim is that his trial counsel was ineffec-
tive for (1) failing to reurge the previously denied motion to
quash the indictment based upon the exclusion of women, (2) failing
to raise a motion to quash the indictment based upon the unquali-
fied juror, and (3) failing to object to the handcuffing and
shackling during the second trial. To show that a criminal
8
defendant received ineffective assistance of counsel, he must show
(1) that counsel's performance was in some way deficient and that
(2) the deficiencies were prejudicial so that, but for the errors,
there is a reasonable probability that the result would have been
different. Strickland v. Washington, 466 U.S. 668, 694 (1984). A
reasonable probability is one sufficient to undermine confidence in
the outcome. If the facts adduced at trial point so overwhelmingly
to the defendant's guilt that even the most competent attorney
would be unlikely to have obtained an acquittal, the defendant's
ineffective assistance claim must fail. Green v. Lynaugh, 868 F.2d
176, 177 (5th Cir.), cert. denied, 493 U.S. 831 (1989).
Wilkerson's three claims are meritless. First, the motion to
quash the indictment had already been made and rejected. Taylor
could not have been applied retroactively at that time, and
Wilkerson made no showing that the presence of a woman on the grand
jury would have affected his conviction. Second, the issue of the
grand juror's domicile had been rejected in the first appeal, and
it would not have changed the trial result. Third, the failure to
object to the handcuffing and shackling,5 even if the failure was
error, did not affect the accuracy of the outcome. The evidence
against Wilkerson was overwhelming; none of his claims amounts to
a serious constitutional issues.
5
It is not evident from the record whether the attorney formally
objected.
9
VII.
Because we are bound by Leichman, we REVERSE the denial of
habeas relief and REMAND to the district court with instructions to
order the state either to try Wilkerson again within 180 days or to
release him. Nevertheless, we urge that this grant of relief and
the holding of Leichman be reconsidered by the court en banc.
10
Wilkerson v. Whitley
Court: Court of Appeals for the Fifth Circuit
Date filed: 1994-01-31
Citations: 28 F.3d 498
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