Alabama Man Is
Executed for Killing of Girl
The New York Times
August 18, 1989
Lee Richardson, 43 years old, was
electrocuted early today for the 1977 pipe-bomb
killing of an 11-year-old girl.
A flurry of late appeals
ended Thursday when the Supreme Court
refused to intervene. The High Court appeal
followed a decision by the United States
Court of Appeals for the 11th Circuit, in
Atlanta, upholding District Judge Robert
Varner's rejection earlier in the day of a
motion for a stay of execution.
Mr. Richardson was
excecuted at Holman Prison here. He was
pronounced dead at 12:14 A.M., central
He was convicted of
murdering Rena Mae Collins, who was blown
apart on the porch of her house when she
picked up a pipe bomb. Mr. Richardson argued
that the device was not meant to explode,
but only to frighten the girl's family
because her aunt had broken off a romance
Margie Collins, the
girl's mother, had said, ''I can't rest
until he gets the chair.''
In Montgomery, Lucia
Penland of the Alabama Prison Project said
Mr. Richardson ''was what most of us would
call an all-around American boy with a
bright fugure before he went to Vietnam.''
The round of appeals
Thursday climaxed weeks of maneuvers in
which courts rejected claims that Mr.
Richardson had been unfairly denied a
psychologist to determine whether he was
suffering from post-traumatic stress
disorder as a result of his service in
In addition to court
appeals, Mr. Richardson had sought clemency
from Gov. Guy Hunt. In his clemency plea,
Mr. Richardson told how he had written to a
church after listening to broadcasts of its
As a result of the letter,
he met Debbie Herbert and on Aug. 9, the two
were married in a prison ceremony, a
spokeswoman for the prison system said.
The Governor rejected the
43, Is Executed For Killing Girl With Pipe Bomb
The New York Times
August 19, 1989
A murderer who was married in a prison ceremony
last week was executed in Alabama's electric chair early today for
the slaying of an 11-year-old girl.
The 43-year-old convict, Herbert Lee Richardson,
was pronounced dead at 12:14 A.M., said a spokeswoman for the State
Department of Corrections.
Mr. Richardson was executed for the 1977 killing of
Rena Mae Callins, whose aunt had broken off a close relationship with
Mr. Richardson. The girl was killed by a pipe bomb left on the porch
of her home. The bomb detonated when the girl picked it up.
The execution was carried out after the Supreme
Court refused Mr. Richardson's request for a stay on Thursday, as had
the United States Court of Appeals for the 11th Circuit in Atlanta and
Federal District Judge Robert Varner in Montgomery. Gov. Guy Hunt had
refused to grant clemency.
Mr. Richardson was the sixth person executed in
Alabama and the 116th in the nation since the Supreme Court allowed
states to restore the death penalty in 1976.
Mr. Richardson, blindfolded, was strapped in the
electric chair at Holman Prison as Warden Charlie Jones read the death
warrant. 'I Have No Ill Feeling'
In a final statement, Mr. Richardson said, ''I have
no ill feeling and hold nothing against anyone.'' Soon afterward, he
received a surge of 1,800 volts of electricity.
In a news conference after the execution, the
Alabama Prison Commissioner, Morris Thigpen, said Mr. Richardson had
requested that he be blindfolded from the time he left the holding
cell adjacent to the execution room at 11:57 P.M. ''He never saw the
execution chamber,'' Mr. Thigpen said.
Mr. Richardson's wife, Katie, along with some of
her family and a minister visited the condemned man Thursday until
about 10:30 P.M. The Richardsons were married in the prison's visiting
room Aug. 9. Mr. Richardson met his wife, a member of the El Bethel
Primitive Baptist Church, three years ago after he wrote the church
saying that he listened to its radio broadcasts, Mr. Richardson was
described by Lucia Penland, director of a group opposed to the death
penalty, as an ''all-around American boy'' who was left emotionally
disturbed by his Vietnam War experience. His lawyer, Bryan Stevenson,
said Mr. Richardson served three years in Vietnam as a technican ''in
a forward area.''
Mr. Richardson said the pipe bomb was not meant to
explode, only to scare the girl's family.
Judge Varner, in rejecting a stay of the execution,
said Thursday that it is ''beyond the bounds of reason to believe that
a device which maimed and killed an 11-year-old child by exploding in
her hands could be thought of as not presenting a serious risk of harm.''
Margie Callins, the mother of the victim, had said
she could not rest ''until he gets the chair.''
Richardson was diagnosed as suffering from PTSD as a result of his
service in the Vietnam War. A psychiatrist found that his mental
condition "impacted Mr Richardsonís functioning significantly and
played a contributing role" in the murder for which he was sentenced
864 F.2d 1536
Willie Johnson, Warden, Holman
Unit, and Fred Smith, Commissioner, Alabama
Department of Corrections,
States Court of Appeals,
Jan. 17, 1989.
As Modified on Denial of Rehearing Feb. 27,
Appeal from the United States District Court for
the Middle District of Alabama.
Before KRAVITCH, JOHNSON and
CLARK, Circuit Judges.
Herbert Lee Richardson
appeals the district court's denial of his
petition for habeas corpus under 28 U.S.C.A.
Sec. 2254. Concluding that he is not entitled to
relief, we affirm the district court.
At about 6:00 A.M. on August
16, 1977, a bomb exploded on the front porch of
Doris Wyms' home in Dothan, Alabama, killing
Rena Mae Collins, a child of ten. The child was
Wyms' niece and had spent the previous night at
her aunt's home. The only witness to the
explosion, a twelve year old friend of the
decedent, testified that the two girls had come
out to the porch that morning and had seen what
looked like a drink can in a plastic bag. The
device detonated when the decedent pulled her
arm back as she prepared to throw the object
The evidence clearly reflects
that Richardson was responsible for the bombing.
Wyms had ended a relationship with Richardson in
May 1977, but he continued to harass and
threaten her and her family. One week before
Rena Mae was killed, Richardson had thrown an
object from his car into Wyms' yard where it
exploded on the ground.
On August 15, 1977, Wyms
received a threatening note from Richardson.
Rena Mae's brother testified that early on the
morning of August 16th, he saw Richardson
watching Wyms' house. Richardson was employed as
an electrician. A week before the explosion at
issue here, he told two co-workers that he had
made a bomb and set it off in a field.
A search of his car and his
home revealed the materials necessary for making
bombs, like the one that killed the child. A
number of the items recovered during the
searches matched fragments of the bomb found at
Police also found a library book entitled
Explosives and Bomb Disposal Guide at
At his trial, Richardson
offered evidence of an alibi and claimed that
someone else had committed the act. Richardson
was convicted by a jury of capital murder and
sentenced to death in 1978. The Alabama Court of
Criminal Appeals found the sentence defective
because the sentencing judge had failed to enter
written findings, and remanded for resentencing.
376 So.2d 205 (Ala.Crim.App.1978).
The trial court again imposed
a sentence of death and the Alabama Supreme
Court affirmed. 376 So.2d 228 (Ala.1979).
Richardson filed his first coram nobis petition
in 1982, which was denied. 419 So.2d 289 (Ala.Crim.App.1982),
cert. denied, No. 81-937 (Ala.1982), cert.
460 U.S. 1017 , 103 S.Ct. 1262, 75 L.Ed.2d
He was then scheduled for
execution on October 25, 1985, but the Supreme
Court of Alabama entered a stay of execution on
October 23rd. After an evidentiary hearing on
Richardson's ineffective assistance of counsel
claim, a state circuit court judge denied
Richardson's second petition for a writ of coram
nobis which had been filed on October 17, 1985.
The Court of Criminal Appeals
affirmed and the Alabama Supreme Court denied
certiorari. Richardson then amended a habeas
petition filed earlier in federal district court
which had been stayed pending exhaustion of
state remedies. After holding an evidentiary
hearing on Richardson's lesser included offense
claim, the district court denied habeas corpus
On appeal, Richardson claims
that he is entitled to habeas relief because of
the following errors: (i) the trial judge was
constitutionally required to give a lesser
included offense instruction to the jury; (ii)
the jury instructions on intent and malice
violated due process; (iii) the trial judge
improperly considered the jury's death verdict
as a factor in imposing the death sentence; (iv)
the use of uncounseled misdemeanor convictions
by the trial judge in assessing potential
mitigating factors at sentencing violated his
Eighth Amendment rights; (v) he was denied
effective assistance of counsel because of
counsel's failure to object to the sentencing
judge's consideration of the uncounseled
convictions; and (vi) the "especially heinous,
atrocious or cruel" aggravating factor was
applied by the sentencing judge without a
narrowing construction, rendering it
unconstitutionally vague under the Eighth
Amendment. We shall address each of his claims
II. Lesser Included
Richardson was convicted of
violating Ala.Code Sec. 13-11-2(a)(9) (repealed),
which made it a capital offense to explode a
device near an inhabited dwelling "when a person
is intentionally killed by the defendant because
of said explosion."
Richardson claims that his due process right was
violated because the trial judge erred in not
instructing the jury on possible lesser included
offenses for which Richardson could have been
convicted based on the evidence produced at
trial. The district court found no due process
violation. We agree.
In Hopper v. Evans, 456 U.S.
605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), the
Supreme Court clarified its holding, announced
in Beck v. Alabama, 447 U.S. 625, 100 S.Ct.
2382, 65 L.Ed.2d 392 (1980), on the
constitutionality of Ala.Code Sec. 13-11-2 and
its prohibition on lesser included offense
instructions. Under Beck, "due process requires
that a lesser included offense instruction be
given only when the evidence warrants such an
instruction." Hopper, 456 U.S. at 611, 102 S.Ct.
at 2054 (emphasis in original).
The Supreme Court also stated
that due process would be violated when the
defendant suggests a "plausible claim which he
might conceivably have made, had there been no
preclusion clause, that is not contradicted by
his own testimony at trial." Hopper, 456 U.S. at
613, 102 S.Ct. at 2054 (footnote omitted).
Alabama courts have read
Hopper to require a two-part inquiry for
reviewing courts: (i) was there any evidence
presented at trial upon which a conviction of a
lesser included offense could have been based;
(ii) if not, did the defendant suggest a
plausible alternative theory that might have
been made in the absence of the preclusion
clause, that was not contradicted by his trial
testimony? Cook v. State, 431 So.2d 1322, 1324
Richardson urges this Court
to consider the lesser included offense
contained in Ala.Code Sec. 13-2-60, which makes
it a crime wilfully to set off an explosion "under
or dangerously near ... any inhabited dwelling
house." This section, or in the alternative its
companion Section 13-2-61, is a material element
of a Section 13-11-2(a)(9) violation. The fact
that a person was intentionally killed as a
result of the explosion made this a capital
The evidence presented as to Richardson's intent
in placing the bomb on the porch is thus crucial
to our determination of whether he was
unconstitutionally deprived of a lesser included
Throughout the trial, the
state characterized the bomb as an "anti-personal"
device, which was meant to be triggered by the
movement of the intended victim. Although the
actual switching device that detonated the bomb
was not found in the debris, Richardson had an
empty box of such switches at his house.
Further, cardboard "spacers"
found at Richardson's house and a spring found
in the debris suggested that the person who made
the bomb had carefully constructed the bomb with
safety devices to insure his movement in
transporting and placing the bomb would not
cause it to detonate accidentally. Finally, the
movement of the victim as reported by the young
girl who witnessed the explosion was consistent
with the type of motion that is necessary to
cause such bombs to explode.
In order to convict
Richardson of a Section 13-2-60 offense, the
jury would have had to disbelieve the state's
evidence that Richardson intended to kill when
he planted the anti-personal bomb on the porch.
See Reddix v. Thigpen, 805 F.2d 506, 511 n. 1
(5th Cir.1986) (defendant's challenge to the
evidence of intent should be weighed in light of
all evidence presented at trial); Aldrich v.
Wainwright, 777 F.2d 630, 638 (11th Cir.1985),
479 U.S. 918 , 107 S.Ct. 324, 93 L.Ed.2d
297 (1986) (same). In this situation,
there was insufficient evidence presented at
trial upon which a conviction of a lesser
included offense could have been based.
Richardson also fails to
assert a plausible alternative theory that he
would have presented in the absence of the
preclusion clause. He testified at trial that he
had neither made a bomb nor put one on the porch.
Only at the federal habeas hearing in January
1988 did he admit that he had constructed and
placed the bomb that killed the child.
He testified then that the
bomb was not meant to explode, but was just a
stink bomb. He claims that his decision to
perjure himself at trial was a result of fear
that any admission of culpability at that stage
would have resulted in a possible death sentence
under the then-existing law. However, his later
testimony contradicts his previous trial
Thus, Richardson cannot be
said to have been deprived of due process at the
trial stage. See Ex Parte Wright, 494 So.2d 745,
747 (Ala.1986), cert. denied,
479 U.S. 1101 , 107 S.Ct. 1331, 94 L.Ed.2d
183 (1987) (later theory not plausible
when "speculative" and "directly opposed to the
testimony presented at trial"); Cook, 431 So.2d
at 1325 (same). Having reviewed Richardson's
claim under both prongs of the Hopper standard,
we conclude that he has not established his
right to jury instructions on the lesser
included offense contained in Ala.Code Sec.
III. Sandstrom and Winship
Richardson challenges the
trial court's instructions to the jury, claiming
that the malice charge altered the burden of
proof and that the intent charge was legally
insufficient. He therefore alleges a violation
of his due process rights. See Sandstrom v.
Montana, 442 U.S. 510, 520-24, 99 S.Ct. 2450,
2457-59, 61 L.Ed.2d 39 (1979) (due process
prohibits state from using evidentiary
presumptions that shift burden of proof in a
jury charge); In re Winship, 397 U.S. 358, 90
S.Ct. 1068, 25 L.Ed.2d 368 (1970) (due process
requires proof beyond a reasonable doubt with
respect to each element of crime).
The district court found
these claims barred by procedural default.
Richardson's challenges to the jury instructions
were not raised at trial or on direct appeal.
They were first raised at his second coram nobis
hearing in 1985, at which point the state court
held they were procedurally barred. Claims that
are procedurally barred from state coram nobis
review are procedurally barred from federal
habeas review. Magwood v. Smith, 791 F.2d 1438,
1444 (11th Cir.1986).
Richardson has shown no cause
for or prejudice from the default that would
suggest this Court should reach the merits of
his claim. See Engle v. Isaac, 456 U.S. 107, 102
S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v.
Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d
594 (1977). His trial attorney testified that he
did not object to the jury instructions because
he did not see any error in them. Further, even
if Richardson's appellate counsel recognized
theissues, he apparently chose not to pursue
them. Attorney error does not automatically
establish cause sufficient to avoid procedural
default. See Murray v. Carrier, 477 U.S. 478,
486-87, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397
(1986) ("[T]he mere fact that counsel failed to
recognize the factual or legal basis for a claim,
or failed to raise the claim despite recognizing
it, does not constitute cause for a procedural
default."); Presnell v. Kemp, 835 F.2d 1567
(11th Cir.1988) (failure of attorney to protest
allegedly unconstitutional jury instructions is
Richardson does not show
prejudice arising from the allegedly erroneous
instructions except to suggest that the state's
showing of intent was weak and that the jury
might have been affected by different
Richardson has not met the burden of overcoming
the procedural bars to these claims and is
denied relief on these grounds.
IV. Baldwin Claim
Richardson challenges the
district court's finding that the trial judge
did not consider the jury verdict as a factor in
his decision. At the sentencing hearing on
remand, the trial judge asked whether the
parties were ready to proceed "as to whether or
not the death penalty should be upheld or [Richardson's]
sentence commuted to life in prison without
Richardson alleges that, in making this
statement, the trial judge demonstrated that he
viewed the jury's death sentence as a "point of
departure" for his own sentencing decision.
In Baldwin v. Alabama, 472
U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985),
the Supreme Court held Alabama's death penalty
sentencing procedure facially constitutional,
but reserved the question of constitutionality
in cases where the judge "consider[s] the jury's
verdict ... as a factor that weigh[s] in favor
of the imposition of the death penalty." 472
U.S. at 386 n. 8, 105 S.Ct. at 2735 n. 8.
However, as the written
findings that resulted from this second
sentencing show, the trial judge considered only
the aggravating and mitigating circumstances in
his decision. Richardson, 376 So.2d at 228 (affirming
results of remanded sentencing hearing); see
also Baldwin, 472 U.S. at 385, 105 S.Ct. at 2735
(similar language used by sentencing judge is
not evidence of deference to jury's decision).
We agree with the findings of the district court
that the sentencing judge did not act in
violation of Baldwin.
V. Use of Allegedly
Uncounseled Convictions in Sentencing
Richardson's next two claims,
violation of his Eighth Amendment rights and
ineffective assistance of counsel, turn on the
use of two allegedly uncounseled misdemeanor
convictions by the trial judge in assessing
potential mitigating factors at Richardson's
sentencing. After the jury returned a verdict of
guilt, the trial judge conducted a sentencing
hearing pursuant to Ala.Code Sec. 13-11-3
A presentence report revealed
that Richardson had two prior convictions in
North Carolina for assaults on women. The court
found that these convictions negated the
mitigating circumstance urged by Richardson of
"no significant history of prior criminal
activity." Ala.Code Sec. 13-11-7(1) (1975).
Finding no mitigating
circumstances and two aggravating circumstances
("knowingly creating a great risk of death to
many persons" and that the felony was "especially
heinous, atrocious and cruel"), the court
accepted the jury's recommendation of the death
penalty. Richardson, 376 So.2d at 226-27.
Richardson now claims that
the use of these uncounseled convictions in the
sentencing determination denied him statutory
mitigation, subjecting him to cruel and unusual
punishment in violation of his Eighth and
Fourteenth Amendment rights. However, he did not
raise this claim until his second coram nobis
hearing, at which time the state court found it
was barred from review because of procedural
We agree with the district
court that this issue has been defaulted and
proceed to discuss whether Richardson has
demonstrated adequate cause and prejudice which
would enable this Court to address the merits of
the claims under Sykes, 433 U.S. at 87, 97 S.Ct.
Richardson argues that his
failure to contest use of these convictions at
his sentencing was caused by ineffective
assistance of his trial counsel. See Carrier,
477 U.S. at 486-88, 106 S.Ct. at 2644-46 (defendant
must bear risk of attorney error that results in
procedural default unless counsel's performance
is constitutionally ineffective under Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)).
In order to find cause, we
must find, upon applying Strickland to this
case, that the trial attorney's decision not to
challenge the admissibility of the convictions
was "outside the wide range of professionally
competent assistance," 466 U.S. at 690, 104 S.Ct.
at 2066, and "that there is a reasonable
probability that, but for counsel's
unprofessional errors, the result of the
proceeding would have been different," 466 U.S.
at 694, 104 S.Ct. at 2068. The district court
found that Richardson failed to meet the
stringent standard established by Strickland and
Richardson's trial attorney
knew that the convictions might have been
obtained in violation of Argersinger v. Hamlin,
407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d
530 (1972) (Sixth Amendment right to counsel
attaches if misdemeanor conviction results in
imprisonment), and United States v. Tucker, 404
U.S. 443, 447-49, 92 S.Ct. 589, 591-93, 30 L.Ed.2d
592 (1972) (sentence giving explicit
consideration to prior convictions
unconstitutionally obtained because defendant
not represented by counsel will be remanded for
attorney decided not to contest the
admissibility of the prior convictions because
he did not want to risk having his client
further discredited by an inquiry into the
circumstances of the charges, especially since
the convictions were for assaults on women.
He testified at the 1985 coram nobis hearing
that he made a strategic decision to try and
show that Richardson had no significant prior
criminal record; therefore he did not want to
focus attention on the convictions or the events
leading up to them.
We agree with the district court that the
attorney's decision was not professionally
Further, it is not clear that,
had the attorney actively challenged the
convictions, the result of Richardson's
sentencing would have been different. Even if
the sentencing judge could not rely on these
North Carolina convictions because they were
unconstitutionally obtained, evidence of
Richardson's past criminal "activity" would have
been admissible if the sentencing judge had
found such information reliable. See Tucker v.
Kemp, 762 F.2d 1480, 1487 (11th Cir.) (en banc),
474 U.S. 1001 , 106 S.Ct. 517, 88 L.Ed.2d
452 (1985), reinstated, 802 F.2d 1293
(1986), cert. denied,
480 U.S. 911 , 107 S.Ct. 1359, 94 L.Ed.2d
529 (1987) (when sentencing, court can
consider evidence of criminal indictments and
even evidence of criminal activities for which
no charges have been filed if evidence is
reliable); cf. Williams v. Lynaugh, 814 F.2d
205, 207-08 (5th Cir.), cert. denied, --- U.S.
----, 108 S.Ct. 311, 98 L.Ed.2d 270 (1987) (evidence
of "unadjudicated criminal conduct," confirmed
by witnesses, is admissible in capital
Had Richardson's attorney
objected to admission of the convictions, the
state might have attempted to question
Richardson directly about the circumstances
leading up to his convictions. Because any
reliable evidence of the underlying criminal
activity leading up to the convictions could
have been considered by the trial court, the
attorney's failure to object to admission of the
actual convictions would not necessarily have
changed the outcome of the judge's assessment of
Richardson's past criminal activity.
The state had argued at trial
that Richardson acted with intent to harm his
former girlfriend, Doris Wyms. Any reliable
evidence of conduct that led to Richardson's
being arrested and charged twice in the past
with assaults on women could have influenced the
judge in his sentencing decision. Under these
circumstances, we cannot conclude that but for
counsel's decision not to challenge admission of
the convictions, the result of Richardson's
sentencing would have been different. Strickland,
466 U.S. at 700, 104 S.Ct. at 2071.
We agree with the district
court that Richardson has not demonstrated the
level of professional incompetence and prejudice
required to sustain an ineffective assistance of
counsel claim. Given this conclusion, his
attempt to prove cause for his procedural
default of his Eighth Amendment challenge fails
VI. Maynard Claim
The sentencing judge found as
one of two aggravating factors that the offense
in this case was "especially heinous, atrocious
or cruel." See Ala.Code Sec. 13-11-8 (1975).
This holding was affirmed by the Alabama Court
of Criminal Appeals and the Alabama Supreme
Court. Richardson now claims that since the
Alabama courts have not consistently applied a
narrowing construction of this aggravating
circumstance, its application in this case
violates the Eighth and Fourteenth Amendments.
See Maynard v. Cartwright, --- U.S. ----, 108
S.Ct. 1853, 100 L.Ed.2d 372 (1988) (Oklahoma
statutory aggravating circumstance of "especially
heinous, atrocious or cruel" held
unconstitutionally vague as applied in capital
cases because Oklahoma courts have adopted no
Richardson did not object to
use of this aggravating circumstance at the
sentencing hearing, nor did he raise the issue
on appeal or in either of his two coram nobis
petitions. Therefore, the district court judge
found the claim procedurally barred.
Richardson emphasizes that because the Alabama
Court of Criminal Appeals expressly affirmed the
propriety of the sentence on remand, 376 So.2d
at 228, the issue is not procedurally barred.
However, the issue, if any,
preserved by the state court's summary
affirmance of the sentence was that Richardson's
crime was especially heinous, atrocious and
cruel within the state law definition of those
terms. The claim that the aggravating
circumstance is unconstitutional was not
discussed by any of the state courts and remains
procedurally barred. As Richardson has offered
no cause for his failure to raise his claim
earlier and has not discussed the potential
prejudice arising therefrom, this Court rejects
this allegation of error.
We AFFIRM the district
court's denial of Richardson's petition.
Richardson has cited no
Alabama case which confirms that hte Alabama
courts viewed the interplay between Sections
13-1-70, 13-2-60 and 13-11-2(a)(9) this way.
Assuming arquendo that the Alabama courts would
have accepted this reading of Section 13-1-70,
Richardson's claim fails because of the
overwhelming evidence that he did have intent to
kill when he placed the bomb on the victim's
front porch. See Hopper, 456 U.S. at 613, 102
S.Ct. 2054 (evidence of intent negated
defendant's claim that evidence supported lesser
included offense instruction with no intent
883 F.2d 895
Herbert Lee RICHARDSON, Petitioner-Appellant,
Morris THIGPEN, Commissioner, Alabama Department of
Court of Appeals,
Appeal from the United States
District Court for the Middle District of Alabama.
Before KRAVITCH, JOHNSON and
CLARK, Circuit Judges.
Herbert Lee Richardson is
scheduled to be executed in Alabama at 12:01 A.M. on Friday,
August 18, 1989. On the morning of Thursday, August 17, 1989,
the United States District Court for the Middle District of
Alabama denied Richardson's petition for writ of habeas corpus.
This case comes before this Court on motions for leave to
proceed in forma pauperis, for stay of execution, and for
certificate of probable cause to appeal. We grant Richardson's
motion for leave to proceed in forma pauperis, and deny his
application for certificate of probable cause and his motion for
stay of execution.
This is Richardson's second
petition for habeas corpus brought in federal court under 28
U.S.C.A. Sec. 2254. This Court affirmed the denial of
Richardson's first federal habeas petition in March 1989.
Richardson v. Johnson, 864 F.2d 1536 (11th Cir.), cert. denied,
--- U.S. ----, 109 S.Ct. 3175, 104 L.Ed.2d 1037 (1989). After
the Supreme Court denied his petition for writ of certiorari on
June 12, 1989, the State of Alabama scheduled Richardson's
execution for August 18, 1989.
On August 8, 1989, Richardson
filed a motion for stay of execution in the Alabama Supreme
Court, and on August 10, 1989, he filed a motion for post-conviction
relief under Ala.Temp.R.Crim.P. 20 in the Circuit Court of
Houston, County, Alabama. The circuit court denied his motion
for post-conviction relief on Sunday, August 13, 1989. The
Alabama Supreme Court denied Richardson's petition for a stay of
execution on Tuesday, August 15, 1989. On that day, Richardson
filed his petition for habeas corpus in federal district court.
This Court should grant an
application for certificate of probable cause to appeal only if
the petitioner makes a substantial showing that he has been
denied a federal right. Barefoot v. Estelle, 463 U.S. 880, 893,
103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make this
substantial showing, a petitioner must demonstrate that the
issues are "debatable among jurists of reason," that a court
could resolve the issues differently, or that the issues are "adequate
to deserve encouragement to proceed further." Id. at 893 n. 4,
103 S.Ct. at 3394 n. 4 (quoting Gordon v. Willis, 516 F.Supp.
911, 913 (N.D.Ga.1980)).
Richardson raised four issues
in his petition for habeas corpus filed in the Middle District
of Alabama: (1) ineffective assistance of appellate counsel; (2)
trial court excluded non-statutory mitigating evidence at
sentencing, see Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct.
1821, 95 L.Ed.2d 347 (1987); (3) prosecution failed to disclose
material exculpatory evidence to him at trial, see Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and
(4) he was unable to obtain critical expert assistance at trial
due to his indigence, see Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct.
1087, 84 L.Ed.2d 53 (1985).
These claims are either
procedurally barred as a matter of state law, see Wainwright v.
Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), or
constitute an abuse of the writ under Rule 9(b) foll. 28 U.S.C.A.
Sec. 2254. See Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616,
91 L.Ed.2d 364 (1986). Consequently, we conclude that Richardson
has failed to make a substantial showing that he was denied a
A. State Procedural Default
On August 10, 1989, Richardson
filed a motion for post-conviction relief under
Ala.Temp.R.Crim.P. 20 in the Circuit Court of Houston County,
Alabama. In this motion, Richardson alleged ineffective
assistance of appellate counsel, a Hitchcock claim, a Brady
claim, and an Ake claim. These are the same four claims that
Richardson raised in his second federal habeas petition.
The circuit judge held a
hearing on the motion on Saturday, August 12, 1989, and denied
Richardson's motion for post-conviction relief in a written
decision the next day. The state judge issued alternative
rulings on each of petitioner's claims. The judge ruled first
that each claim was procedurally barred under Alabama law. See
Ala.Temp.R.Crim.P. 20.2(b). The judge then addressed and denied
each claim on the merits.
In Harris v. Reed, --- U.S.
----, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), the Supreme Court
held that the "plain statement" rule of Michigan v. Long, 463
U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), applies in
federal habeas corpus proceedings. Under that rule, if a state
court issues a clear statement that its decision rests on an
independent and adequate state ground, then even if the state
court issues an alternative ruling based on its interpretation
of federal law, this Court should not address the merits of the
federal claim. See Harris, 109 S.Ct. at 1042.
In this case, if the Alabama
circuit judge issued a plain statement that his decision on one
of Richardson's claims was based on an independent and adequate
state procedural ground, then that claim does not provide an
avenue for relief on a petition for habeas corpus, see
Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594
(1977), unless petitioner can show both cause and prejudice for
his state procedural default. Strickland v. Washington, 466 U.S.
668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984).
1. Ineffective Assistance
of Appellate Counsel
The state judge addressed the
state procedural bar of petitioner's ineffective assistance of
appellate counsel claim as follows: "This Court finds that this
claim is procedurally barred in that it was not raised by the
petitioner at the second error coram nobis hearing which was
held in October, 1985." This certainly constitutes a plain
statement within the meaning of Michigan v. Long. Richardson
argues that the state misapplied its own procedural default
rules; this does not constitute cause within the meaning of
Strickland. See generally Alvord v. Wainwright, 725 F.2d 1282,
1291 (11th Cir.) (federal court on habeas review must defer to
state court's interpretation and application of state law), cert.
denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984).
Consequently, this claim is procedurally barred under Wainwright
2. Brady claim
The state court held that
Richardson's Brady claim was procedurally barred under state law.
The court stated, "This Court further finds that Richardson's
Brady claim is barred by Alabama Rules of Criminal Procedure,
Rule 20.2(b)." This statement is sufficiently plain. Richardson
makes no cause and prejudice argument under Strickland.
Consequently, this claim is procedurally barred under Wainwright
3. Ake Claim
The state court held that
Richardson's Ake claim was procedurally barred under state law.
The court stated, "This Court finds that this claim is
procedurally barred by Alabama Temp. Rules of Criminal Procedure
20.2(b) because petitioner did not raise it in his prior Error
Coram Nobis proceedings and it certainly could have been
discovered through the exercise of reasonable diligence." This
statement is sufficiently plain. Richardson does not present any
cause and prejudice arguments under Strickland. Consequently,
this claim is procedurally barred under Wainwright and Harris.
B. Abuse of the Writ
Richardson argues that this
Court's review of his Hitchcock claim is not barred by state
procedural default because it was novel in 1985 when he filed
his second error coram nobis petition. Novelty does constitute
cause for state procedural default under Strickland, see Reed v.
Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), and
Hitchcock did represent a significant change in the law. Messer
v. Florida, 834 F.2d 890, 892-93 (11th Cir.1987). Even if
Richardson were able to meet Strickland 's cause and prejudice
standard, however, he is not able to avoid application of the
abuse of the writ doctrine. See Rule 9(b) foll. 28 U.S.C.A. Sec.
This is Richardson's second
federal habeas petition. Rule 9(b) provides:
A second or successive
petition may be dismissed if the judge finds that it fails to
allege new or different grounds for relief and the prior
determination was on the merits or, if new and different grounds
are alleged, the judge finds that the failure of the petitioner
to assert those grounds in a prior petition constituted an abuse
of the writ.
Richardson failed to file this
claim in his prior federal habeas petition. See Richardson v.
Johnson, 864 F.2d 1536, 1537 (11th Cir.), cert. denied, --- U.S.
----, 109 S.Ct. 3175, 104 L.Ed.2d 1037 (1989). Consequently,
this Court should not address this claim if Richardson's failure
to raise it in his original petition constitutes an abuse of the
writ. See Demps v. Dugger, 874 F.2d 1385, 1392 (11th Cir.1989).
Although Hitchcock was decided
after petitioner filed his first habeas petition, it was
available to him when he amended his petition in December 1987
and January 1988. Richardson has offered no excuse for his
failure to present the Hitchcock claim in his amended first
federal habeas petition. Consequently, we conclude that
Richardson has abused the writ by failing to present this claim
in his prior petition. See, e.g., Tucker v. Kemp, 819 F.2d 978
(11th Cir.), cert. denied, 481 U.S. 1073, 107 S.Ct. 2472, 96
L.Ed.2d 364 (1987). See generally Demps v. Dugger, 874 F.2d at
When a petitioner has abused
the writ, a federal court should dismiss the petition unless the
"ends of justice" require otherwise. Sanders v. United States,
373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Mitchell v.
Kemp, 827 F.2d 1433, 1435 (11th Cir.), cert. denied, 483 U.S.
1050, 108 S.Ct. 14, 97 L.Ed.2d 812 (1987). Petitioner has the
burden of establishing that the ends of justice require the
court to entertain the successive petition. See McCorquodale v.
Kemp, 832 F.2d 543, 544 (11th Cir.), cert. denied, 483 U.S.
1055, 108 S.Ct. 32, 97 L.Ed.2d 819 (1987).
Richardson argues that because
Hitchcock error directly involves the sentence of death, the
ends of justice necessarily require a federal court to address
the merits of the claim. The meaning of "ends of justice" does
not lend itself to a per se rule such as Richardson proposes.
Accordingly, we conclude that Richardson has failed to establish
that the ends of justice require that the federal courts
entertain his Hitchcock claim.
We conclude that Richardson
has failed to make a substantial showing that he has been denied
a federal right. Consequently, we DENY his motion for
certificate of probable cause to appeal. We also DENY his motion
for stay of execution.