Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 92-00180-John T. Nixon, District Judge.
Before: Boggs, Norris, and Moore, Circuit Judges.
The opinion of the court was delivered by: Boggs, Circuit Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 24
BOGGS, J., delivered the opinion of the court, in which NORRIS, J., joined. MOORE, J. (pp. 61-65), delivered a separate Dissenting opinion.
Ricky Bell, a warden for the State of Tennessee, appeals from the district court's grant to Robert Coe of a writ of habeas corpus, which vacated his murder conviction and death sentence. Coe cross-appeals from the district court's denial of habeas corpus on several other grounds he raised below. On the state's appeal, we reverse on all counts. On Coe's cross-appeal, we affirm on all counts.
Cary Medlin, an eight-year-old girl, was murdered in 1979. She disappeared at around 5:30 p.m. on September 1 while riding bicycles with her eight-year-old step-brother, Michael. She was seen talking to a man in a brown car, and then getting into the car. At trial, Michael identified the driver of the car as Coe.
Medlin's body was discovered the next day at about 2:00 p.m. She had been raped, sodomized, strangled, and stabbed in the neck, in that order. The list of suspects was initially quite long, and at least one other suspect was taken into custody, though he was released for lack of evidence. The search for the killer soon focused on Coe, who was arrested on September 4th while waiting to take a bus to Georgia under an assumed name.
Shortly after arriving at the police station, Coe confessed. He was interrogated, and he offered details of the crime. On the 5th, Coe led officers on a trek to retrace his steps in committing the murder. He pointed out a house where a witness had seen him and his victim, though the witness could identify only the victim, Medlin, as having been in a car that drove by.
On the 7th, Coe gave a statement in which he gave the following account of the events leading to Medlin's death. Coe said that he took Medlin to the spot where her body was eventually found. He exposed himself to her, fondled her, masturbated in front of her, and got on top of her, though he was vague as to what the latter action entailed. At that point, Medlin told Coe that Jesus loved him, a statement that he said caused him to snap. He tried to choke her, and when that did not work, he stabbed her and watched her bleed to death. He then disposed of her body, her shoes, and the knife.
Other evidence incriminated Coe. He apparently came home the night of the 1st and told his family that he had stabbed a state trooper in the throat. He had his wife dye his hair a darker color. The day he was arrested, Coe had traded in his silver and brown car for a blue one.
There was relatively little physical evidence. Coe's car yielded no evidence of a sexual assault. No hairs or fingerprints were found and used against Coe. However, the police did find fecal matter beneath his foreskin, and stains on the front inside of his pants that matched stains found on Medlin's underpants (both were reddish-brown and contained potato starch).
Coe had a history of mental illness. His childhood, according to one expert witness, was "like something out of Erskine Caldwell." His father sexually abused Coe, and forced him to watch while he also sexually abused Coe's sisters. Although several experts testified that Coe was not legally insane at the time of the murder, others testified that he was psychotic, schizophrenic, intoxicated, and under the influence of drugs. In 1975, Coe had been found incompetent to stand trial in Florida after he attempted to rape and then stab a forty-year-old woman.
In 1981, a Tennessee jury convicted Coe of first-degree murder, aggravated rape, and aggravated kidnapping. He was sentenced to death on the first charge, and life imprisonment on the other two. The Tennessee Supreme Court affirmed the conviction and sentence, State v. Coe, 655 S.W.2d 903 (Tenn. 1983), and the United States Supreme Court denied certiorari, Coe v. Tennessee, 464 U.S. 1063 (1984).
Coe first applied for post-conviction relief in state court in 1984. The trial court denied relief after an evidentiary hearing in 1986, and the court of appeals affirmed. Coe v. State, No. C.C.A. 15, 1986 WL 14453 (Tenn. Crim. App. Dec. 23, 1986). The Tennessee Supreme Court denied Coe's request for permission to appeal because he did not timely file for it (JA 227).
In 1987, Coe filed his first petition for habeas corpus relief in federal court. The court dismissed the petition without prejudice in 1989, because Coe had not exhausted his state remedies.
Coe filed his second motion for state post-conviction relief in 1989. It was dismissed and the court of appeals again affirmed. Coe v. State, No. 138, 1991 WL 2873 (Tenn. Crim. App. Jan. 16, 1991). The Tennessee Supreme Court denied permission to appeal, this time on the merits (JA 316).
Coe filed the present federal habeas petition in 1992. During the pendency of this case, he filed a third motion for state post-conviction relief, which was denied. The court of appeals affirmed. Coe v. State, No. 02C01-9606-CR-00200, 1997 WL 88917 (Tenn. Crim. App. Mar. 4, 1997). The Tennessee Supreme Court granted permission to appeal in December 1997. Ibid.
Coe amended his federal petition in 1995 and 1996. The latter amendment included only part of what Coe wanted to add, as discussed further below, see infra, at 29-31. The district court disposed of some of Coe's claims in April 1996, when it granted partial summary judgment in favor of the state. It disposed of the rest in December when, after an evidentiary hearing, it granted Coe relief on five of his claims, and denied relief on all of the others. Both parties timely appealed.
All of the grounds on which the district court granted habeas relief had to do with jury instructions. To warrant habeas relief, the jury instructions must have been so infirm that they rendered the entire trial fundamentally unfair. An ambiguous, potentially erroneous instruction violates the Constitution only if there is a reasonable likelihood that the jury has applied the instruction improperly. Estelle v. McGuire, 502 U.S. 62, 72 (1991); Austin v. Bell, 126 F.3d 843, 846 (6th Cir. 1997), cert. denied, 118 S. Ct. 1547 (1998). For capital sentencing factors, there are additional considerations, which we discuss below.
A. Guilt Phase Instructions
The district court granted habeas and vacated Coe's conviction on two grounds from the guilt phase: reasonable doubt instructions and malice instructions.
The district court ruled that the following instruction on reasonable doubt at the guilt phase was impermissible, and reversed all of Coe's convictions:
Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind rest easily upon the certainty of guilt. Reasonable doubt does not mean a doubt that may arise from possibility. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required and this certainty is required as to every proposition of proof requisite to constitute the offense.
(emphasis added). A functionally equivalent instruction was given at the sentencing stage.
Subsequent to the district court's decision, we approved the identical instruction in Austin, 126 F.3d at 846-47. Coe concedes this and offers no reason why we should overrule ourselves, and we shall not.
The district court found that two parts of the jury instructions on malice were constitutionally flawed, and vacated Coe's murder conviction.
We do not reach the merits of these challenges, because Coe's claim is procedurally barred from being considered here. Procedural bar applies when a state prisoner defaults his federal claims in state court pursuant to an independent and adequate state procedural rule. Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996). There are exceptions to this rule when the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or can demonstrate that failure to consider the claims will result in a fundamental miscarriage of Justice. Ibid. When a state-court judgment rested primarily on federal law or was interwoven with federal law, the bar applies only if the state court clearly and expressly stated that its judgment rested on a state procedural bar. Ibid.
Coe did not raise his malice instruction argument at trial, on direct appeal, or in his first state post-conviction motion. He did so in his second effort at state post-conviction relief, but the state trial court held that the claim was procedurally barred because it had not been raised before. The court of appeals agreed, holding that Coe's failure to raise the claim was not excusable based on the argument that its basis was new. The claim was based on Yates v. Aiken, 484 U.S. 211 (1988), but that case held only that Francis v. Franklin, 471 U.S. 307 (1985), applied retroactively. Coe could have asserted a Francis claim in his first state motion for post-conviction relief, which was not decided until 1986. Because he had not done so, the court said, the claim was barred.
Even if we assume that the instructions on malice were erroneous under Francis, and these issues were not waived in Coe I, any error was clearly harmless under the facts of this case. The facts established both felony murder and common-law murder beyond a reasonable doubt. State v. Coe, 655 S.W.2d 903 (Tenn. 1983). Malice is immaterial to felony murder. State v. McKay, 680 S.W.2d 447 (Tenn. 1984). The facts in this case clearly demonstrate an overwhelming amount of evidence of malice. Ground 7 is without merit.
Coe, 1991 WL 2873, at *6. Coe appears to have challenged the waiver holding in his effort to appeal, but the Tennessee Supreme Court denied Coe permission to appeal because his filing was untimely.
Coe claims that the court of appeals's alternative holding - that he would lose on the merits anyway - means that he is not procedurally barred, because the state courts in fact reached the merits. This argument fails due to the Supreme Court's decision in Harris v. Reed, 489 U.S. 255 (1989). Harris states that
a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.
Id. at 264 n.10 (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935)); see also Sochor v. Florida, 504 U.S. 527, 533 (1992). The alternative holding thus does not require us to disregard the state court's finding of procedural bar.
Coe next argues that the court of appeals ruling does not represent a "clear and express" statement of procedural bar. Although it could be clearer and more express, the court's statement that (1) Coe's argument did not "present a cognizable claim" because it was not based on new law; coupled with (2) the self-consciousness of the alternative argument ("even if . . . these issues were not waived in Coe I"), suffices as a clear and express statement. Furthermore, it is worth noting that Coe's appeal to the state supreme court from this ruling discussed only procedural bar, and not the court's holding on the merits.
By way of comparison, the state-court statement in Harris, the case that established the "clear and express" doctrine, was held to be unclear:
In its order, the Appellate Court referred to the "well-settled" principle of Illinois law that "those [issues] which could have been presented [on direct appeal], but were not, are considered waived." The court found that . . . petitioner's ineffective-assistance allegations "could have been raised in [his] direct appeal." The court, however, went on to consider and reject petitioner's ineffective-assistance claim on its merits.
Harris, 489 U.S. at 258 (alterations in Harris) (citations omitted). In other words, the state appellate court in Harris said "X means waiver, and this case has X." Coe's court took things one step further, however, and explicitly and clearly said that Coe had no cognizable claim. There was, therefore, a sufficiently clear and express statement here.
Coe next argues that his violation of state procedural standards was not "knowing and understanding" as required by state statute. That is, he claims that the court of appeals was wrong to hold that his claim was procedurally barred (if it so held) because he did not know that omitting the claim from his first state motion for post-conviction relief would prevent him from raising it later. This argument is foreclosed by House v. State, 911 S.W.2d 705, 714 (Tenn. 1995), cert. denied, 517 U.S. 1193 (1996), in which the Tennessee Supreme Court decided to use an objective waiver standard rather than a subjective one.
Although the petitioner in House was represented by counsel in his first post-conviction proceeding (in which he waived certain claims), and Coe proceeded pro se, the holding in House does not turn on this distinction. The court in House takes pains to say that there is no right to counsel in post-conviction proceedings, and so the ineffectiveness of post-conviction counsel does not excuse waiver. Id. at 712. In other words, even if Coe had had ineffective counsel (i.e. the functional equivalent of no counsel at all) he would still be bound by his omissions in his first motion for post-conviction relief. The key is that Coe had a full and fair hearing in his first motion on whatever claims he chose to raise, see id., and he does not allege otherwise here.
Coe offers one more rejoinder. He cites Hathorn v. Lovorn, 457 U.S. 255 (1982) for the proposition that "a state procedural ground is not `adequate' unless the procedural rule is `strictly or regularly followed.'" Id. at 262-63 (quoting Barr v. City of Columbia, 378 U.S. 146, 149 (1964)). Coe says that because Tennessee's waiver practice has not been consistent in cases with similar circumstances, it cannot serve as the basis for a procedural bar. The state responds by citing numerous cases that establish waiver, and it has the better of the argument. Coe's cases are mostly either adverse, or too old to constitute current "strict and regular" practice. The few that remain are isolated and unpublished, and so are also insufficient to defeat an otherwise "strict and regular" practice. See Delbridge v. State, 742 S.W.2d 266 (Tenn. 1987) (not mentioning waiver); Moore v. State, No. 03C01-9212-CR-00445, 1994 WL 17864, at *3 (Tenn. Crim. App. Jan 25, 1994) (holding that record did not establish knowing waiver); Sneed v. State, No. 03C01-9201-CR-00027, 1992 WL 200951 (Tenn Crim. App. Aug. 21, 1992) (not mentioning waiver); Bates v. State, No. 03C01-9102-CR-00055, 1991 WL 172999 (Tenn. Crim. App. Sept. 10, 1991) (same); Brewer v. State, No. 1179, 1991 WL 21605, at *2-*3 (Tenn. Crim. App. Feb. 22, 1991) (finding that petitioner did not knowingly waive claim); State v. Bounds, No. C.C.A. 88-170-III, 1989 WL 92215, at *1 (Tenn. Crim. App. Aug. 17, 1989) (finding of no waiver, because of intervening case law). Furthermore, even if the cases were not any of these things, Coe's argument proves too much. Under Coe's theory, the state would never be able to begin using a procedural bar doctrine, because it would not be able to wipe the slate clean of any precedent that accrued before the institution of the procedural bar.
We pause to note that, were we to reach the merits, we would be inclined to reverse anyway.
The first problematic instruction on malice read as follows:
If a deadly weapon is handled in a manner so as to make the killing a natural or probable result of such conduct, then that may be considered by you as to the existence of malice sufficient to support a conviction of murder in the second degree unless it is rebutted by other facts and circumstances.
In Houston v. Dutton, 50 F.3d 381, 385 (6th Cir.), cert. denied, 516 U.S. 905 (1995), a case originating in Tennessee, we invalidated the use of a "deadly weapon" instruction. In that case, however, the instruction said that such handling of a deadly weapon "raises a presumption of malice," subject to rebuttal. Ibid (emphasis omitted). In this case, by contrast, the court said that the use of the weapon "may be considered." This distinction is important. In Francis v. Franklin, 471 U.S. 307, 313-14 (1985), the Supreme Court drew a distinction between "mandatory" inferences, which are problematic, and permissive ones, which are not. The language here is unambiguously permissive. See Peterson v. Murray, 904 F.2d 882, 888 (4th Cir.) (deeming similar "may" language permissive), cert. denied, 498 U.S. 992 (1990); United States v. Washington, 819 F.2d 221, 225-26 (9th Cir. 1987) (same).
The district court argued that the "unless" language in the rebuttal clause implied mandatoriness, since there would be no need for a rebuttal unless there was a mandatory presumption. We disagree. The "deadly weapon" instruction merely sets up a possible inference, and then notes a situation in which even that inference is impermissible. See Elam v. Nix, 951 F.2d 890, 891 (8th Cir. 1991) (reaching same Conclusion); cf. United States v. Reeves, 594 F.2d 536, 541 (6th Cir.) (disapproving of "unless" language with less clearly permissive inference), cert. denied, 442 U.S. 946 (1979).
The second challenged instruction reads as follows:
Implied malice may be found to exist where the wrongdoer did not intend to slay the person killed but death resulted from a consciously unlawful act done intentionally and with knowledge on the wrongdoer's part that the act was directly perilous to human life. In this event there is implied such a high degree of conscious and willful recklessness as to amount to that malignity of heart constituting malice.
According to the district court, this instruction requires a finding of malice when the other elements of murder are found; once the jury finds that the defendant acted intentionally and caused the victim's death, the instruction leaves no alternative but to find malice, and so the prosecution is relieved of its burden of proving malice.
The inference in this instruction ("may be found") appears to us to be a permissive one. The several cases cited by the district court in finding this instruction impermissible all involve clearly mandatory language, and none of them contain the "directly perilous to human life" language present here. See Yates v. Evatt, 500 U.S. 391, 401-02 (1991) (disapproving of an instruction that: "`[m]alice is implied or presumed' from the `willful, deliberate, and intentional doing of an unlawful act . . . .'"); Mullaney v. Wilbur, 421 U.S. 684, 686-87 (1975) (disapproving of standard that malice is established by unlawful intentional act, unless heat of passion or provocation were established too); Alexander v. Foltz, 838 F.2d 140, 146 (6th Cir.) (quoting People v. Richardson, 293 N.W.2d 332, 340 (Mich. 1980)) (Ryan, J.) ("The necessary factual element of malice may be permissibly inferred from the facts and circumstances of the killing, but it can never be established as a matter of law by proof of other facts."), cert. denied, 486 U.S. 1033 (1988).
Our certitude is tempered by the next sentence (not considered by the district court), but that sentence appears simply to explain the permissive inference, rather than convert it into a mandatory one. In any event, however, we do not reach the merits on this question, because Coe's claim is procedurally barred.
We have previously had occasion to explore the nature of the Tennessee death penalty process:
Tennessee is a "weighing" state - that is, the jury determines whether any aggravating circumstances have been established beyond a reasonable doubt by the State and then balances this against any mitigating circumstances found by the individual jurors. If the jury unanimously finds that the aggravators outweigh the mitigators, death must be imposed.
Houston v. Dutton, 50 F.3d 381, 387 (6th Cir.), cert. denied, 516 U.S. 905 (1995) (emphasis omitted).
1. "Heinous, atrocious, or cruel" instruction
At the sentencing phase, the jury found four aggravating factors that applied and which, on the whole, were not outweighed by mitigating factors. These can be summarized as:
(1)The victim was under 12 and the defendant over 18;
(2)The murder was especially heinous, atrocious, or cruel and involved torture;
(3)The murder was committed for the purpose of avoiding prosecution; and
(4)The murder was committed while the defendant was engaged in committing and fleeing after committing aggravated rape and aggravated kidnapping.
At issue on appeal is the second ground. The district court had defined this factor for the jury as follows:
The murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.
"HEINOUS" means extremely wicked or shockingly evil.
"ATROCIOUS" means outrageously wicked and vile.
"CRUEL" means designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the suffering of others, pitiless.
In holding this factor to be impermissible, the district court cited Houston, and Shell v. Mississippi, 498 U.S. 1 (1990) (per curiam). In Houston, we held that this same Tennessee instruction (minus the appended definitions of the three terms) was unconstitutionally vague. Houston, 50 F.3d at 387. Established Supreme Court precedent had held that simple "heinous, atrocious, or cruel" language is unconstitutionally vague. See Richmond v. Lewis, 506 U.S. 40 (1992); Maynard v. Cartwright, 486 U.S. 356 (1988). We gave no explanation in Houston for why the limitation to "torture and depravity of mind" did not suffice to cure this vagueness problem. Indeed, the Supreme Court suggested that such a limitation might suffice in dicta in Maynard, 486 U.S. at 365. But in Houston, the state conceded that the instruction was vague and we held accordingly.
In Shell, the Supreme Court disapproved of a set of instructions similar to the ones here. The instructions in Shell lacked the "torture and depravity" modifier, but appended individual definitions of "heinous, atrocious, and cruel" that are functionally and virtually equivalent to those used in this case. Shell, 498 U.S. at 2 (Marshall, J., Concurring). The Court held that these ...