Arthur Lee Jones v. Fred Smith, Commissioner, Alabama Department of Corrections and W.E. Johnson, Warden, Nolman Unit

786 F.2d 1011 Arthur Lee JONES, Petitioner-Appellant, v. Fred SMITH, Commissioner, Alabama Department of Corrections and W.E. Johnson, Warden, Nolman Unit, Respondents-Appellees. No. 86-7194. United States Court of Appeals, Eleventh Circuit. March 20, 1986. John Furman, Mobile, Ala., for petitioner-appellant. Ed Carnes, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellees. Appeal from the United States District Court for the Southern District of Alabama. Before RONEY, FAY and JOHNSON, Circuit Judges. PER CURIAM: — 1 — Petitioner Arthur Lee Jones is presently scheduled for execution in Alabama on Friday, March 21, 1986 at 12:01 A.M. He appeals the district court's denial of a petition for writ of habeas corpus. Presently pending are his petition for certificate of probable cause and for stay of execution pending appeal, both denied by the district court. — 2 — Jones was previously before this Court when denial of a prior petition for habeas corpus relief was affirmed. Jones v. Smith, 772 F.2d 668 (11th Cir.1985). The United States Supreme Court denied certiorari on January 13, 1986. — 3 — Since then, the Circuit Court of Mobile County has dismissed another coram nobis petition, filed on January 14, 1986. On March 13, 1986, the Alabama Supreme Court denied petitioner's motion for a stay of execution. The federal district court entered its denial of relief on this second petition for writ of habeas corpus on March 18, 1986. — 4 — In his habeas corpus petition, Jones raises two issues: first, the one involved in Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985), cert. granted, sub nom. Lockhart v. McCree, --- U.S. ----, 106 S.Ct. 59, 88 L.Ed.2d 48 (1985), concerning a death oriented jury, and second, that certain prosecutorial argument made during the guilt phase of the trial was improper. I. — 5 — As to the Grigsby issue, at petitioner's trial, a venireperson was struck for cause because she expressed reservations about capital punishment and noted her reluctance to consider imposing the death penalty. She did not indicate that her views would prevent her from fairly judging guilt or innocence. — 6 — This Court is in much the position it was in Bowden v. Kemp, 774 F.2d 1494 (11th Cir.1985). The Eleventh Circuit has consistently rejected the contention accepted by the Eighth Circuit in Grigsby. Martin v. Wainwright, 770 F.2d 918, 938 (11th Cir.1985); Jenkins v. Wainwright, 763 F.2d 1390, 1393 (11th Cir.1985); Young v. Kemp, 758 F.2d 514, 516 (11th Cir.1985); and Smith v. Balkcom, 660 F.2d 573, 575-84, modified, 671 F.2d 858 (5th Cir. Unit B 1982), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148. — 7 — We have been unable to find any case in which this Court has stayed an execution pending appeal to this Court because of the Grigsby issue since that issue has been settled by our decisions. We stated in Bowden: — 8 — Under the precedent binding us in this Circuit, the District Judge's dismissal of the successive petition is correct and the petitions for certificate of probable cause and stay of execution are without merit. Were we to grant CPC and reach the merits of the proposed appeal on consideration of the petition for stay of execution, see Barefoot v. Estelle, [463 U.S. 880, 103 S.Ct. 3383] 77 L.Ed.2d 1090 (1983), we should be bound to affirm the district court. The grant of the writ of certiorari in Grigsby is no authority to the contrary; any implications to be drawn therefrom may be discerned by application to the Supreme Court. — 9 — 774 F.2d 1494 (11th Cir.1985). — 10 — We recognize that the Supreme Court of the United States has granted a stay in some cases involving the Grigsby issue. See James v. Wainwright, --- U.S. ----, 106 S.Ct. 1393, 89 L.Ed.2d 707 stay granted March 18, 1986; Adams v. Wainwright, --- U.S. ----, 106 S.Ct. 1371, 89 L.Ed.2d 598 stay granted March 6, 1986; Bowden v. Kemp, --- U.S. ----, 106 S.Ct. 213, 88 L.Ed.2d 182 stay granted October 14, 1985; Moore v. Blackburn, 774 F.2d 97, stay granted October 3, 1985; Celestine v. Blackburn, --- U.S. ----, 106 S.Ct. 31, 87 L.Ed.2d 707 stay granted September 26, 1985. To our knowledge, however, in none of those cases has certiorari been granted. — 11 — To date, the law in this Circuit, which has not been modified by Supreme Court decision, mandates a denial of relief to petitioner on this issue. II. — 12 — We find no merit in the prosecutorial argument claim. Aside from the abuse of the writ and procedural default problems, which appear to have been properly handled by the district court, we are convinced that it does not raise a substantial claim on which relief may be granted. — 13 — The petition for a certificate of probable cause and the petition for a stay of execution are DENIED. JOHNSON, Circuit Judge, dissenting: — 14 — I am convinced that the Supreme Court's recent action on petitions for stay of execution in cases presenting Grigsby claims gives us unmistakable direction--direction that the majority declines to recognize--in determining whether a stay is warranted in Grigsby cases. I read that direction as requiring the grant of a stay in the instant case. Accordingly, I dissent. — 15 — The panel opinion notes that the Supreme Court has recently stayed executions in a number of cases presenting Grigsby claims.* Nevertheless, the majority hews to the holding of Bowden v. Kemp, 774 F.2d 1494 (11th Cir.1985), in which we observed that this Court does not know and may not infer the basis of these stays, and concludes again that we are thus bound by the law of this Circuit to affirm the district court on abuse of the writ grounds. This was true enough at the time Bowden was decided. However, what the majority does not emphasize is that two days after this Court on October 12, 1985, denied relief in the Bowden case, which presented only the Grigsby issue, the Supreme Court itself stayed Bowden's execution. — 16 — That action by the high court, coupled with the Court's recent order denying a stay in a case raising another variation of the Grigsby claim, Harich v. Wainwright, --- U.S. ----, 106 S.Ct. 1392, 89 L.Ed.2d 707 (1986), should send us a clear message. Harich presented a situation in which petitioner did not allege that persons on the venire were excluded during voir dire for cause or through peremptory challenge because of any objections to capital punishment. Jones, in contrast, raises a straightforward Grigsby claim--a case in which a venireperson, Mrs. Summerall, was excused for cause on voir dire when she expressed reservations about imposing a death sentence. (Mrs. Summerall did not indicate that her views would prevent her from fairly judging guilt or innocence.) An affirmance of Grigsby by the Supreme Court in Lockhart would clearly favor petitioner's claim. — 17 — Justice Powell's concurrence to the Court's denial of stay in Harich, id. (Powell, J., concurring), indicates that this distinction is a crucial one. He writes: — 18 — The other capital case in which execution is scheduled for tomorrow is No. A-710, James v. Wainwright. I voted to grant a stay of execution in that case. Both James and Harich profess to present claims similar to that pending before the Court in Lockhart v. McCree, No. 84-1865. — 19 — This case, however, presents an issue different from James and one without merit. In James, the Lockhart issue was at least arguably presented when persons on the venire who expressed reservations as to capital punishment were removed by peremptory challenges. In this case, petitioner "conced[ed] in this petition [before the Supreme Court of Florida] that at his trial 'no veniremen were excluded' during voir dire, either for cause or through peremptory challenge." Opinion of Supreme Court of Florida 2. Similarly, before this Court petitioner makes no allegation that persons on the venire were excluded during voir dire because of any objections to capital punishment. — 20 — Accordingly, my vote is to deny the application for a stay of execution. — 21 — In my judgment, the Court has indicated clearly that Jones is precisely the sort of case in which a stay of execution should be forthcoming. I hold to this view not in derogation of the law of this Circuit in Bowden, but in the conviction that that law does not control in this situation. When the Supreme Court speaks, we are bound to listen. — 22 — Accordingly, I would grant a stay of execution pending the Court's decision in Lockhart. Footnotes [-s] * See, e.g., James v. Wainwright, --- U.S. ----, 106 S.Ct. 1393, 89 L.Ed.2d 707 (1985); Adams v. Wainwright, --- U.S. ----, 106 S.Ct. 1371, 89 L.Ed.2d 598 (1986); Bowden v. Kemp, --- U.S. ----, 106 S.Ct. 213, 88 L.Ed.2d 182 (1985); Moore v. Blackburn, 774 F.2d 97 (1985); Celestine v. Blackburn, --- U.S. ----, 106 S.Ct. 31, 87 L.Ed.2d 707 (1985)