Jerry Lynn Young v. Robert Herring, Lee County Sheriff

POLITZ, Before KING and WILLIAMS, Judges. Circuit WILLIAMS, JERRE Judge: S. Circuit requirement This case involves the in a corpus proceeding pro- habeas that a due inquiry high- cess is barred when the court, pursuant contempo- est objection relief by raneous denies express indepen- clear and an statement of dent state for decision. The case validity involves the of an identifi- in-court prior panel cation of the accused. A of this ground, found an although express there was no statement. But that recent con- decision before a trolling the United States Su- preme Court. Harris v.

We neither “law of the find that nor a case” doctrine claim of non-retroac- tivity bars consideration of argument. then find Harris v. Reed by sight court failed conform to the testified that she knew requirement customer. was not until four or “clear and bank indepen- five weeks later that Hoard first identified Reed to establish of Harris v. appellant pre-trial photographic a identi- ground for at dent and deci- procedure. fication Finally, we find that the in-court sion. testimony erroneously

identification was array procedure, the of the photo At time to right admitted in violation of “Jerry Lynn Young” knew that a Hoard process, and we reverse. suspect a in Hoard was the crime. was photographs. picture six a shown One was Proceedings I. Facts and Prior Jerry Young printed of with his name on it. Appellant Jerry Lynn Young thirty-seven, gray-haired, con- He was clean- was 19, 1980, glasses. the shaven and wore No victed on December of armed evidence he at robbery Mississippi Tupe- suggests any in looked different of the Bank of the time of the crime. Four the lo, of other Mississippi. On March a man photos early five were of men in their wearing carrying mask some sort of a twenties; fifth man also close shotgun At sawed-off robbed the bank. Jerry Young’s age. Only one of the robbery, time three tellers were glasses, other five men he wore of the crime. The present at scene beard. approximately and one- crime lasted one half to two minutes. robber forced trial, during prosecution’s At case-in- tellers to lie face-down on the floor. A chief, Young’s counsel moved strike police

Tupelo officer saw the robber leave testimony, Hoard’s and moved for mis- get into his the bank and car. trial, “on the that Mrs. Hoard alleged made identification of the defen- trial, anticipation leniency,

At photograph from the she dant before came Young’s alleged accomplices testified into Court and an in-court identifica- made Although he robbed the bank. two Young Herring, tion”. police gave bank tellers officer (5th Cir.1985). The trial court denied robber, descriptions they could not did, however, grant motion. The identify Young Only as the bank robber. for production defense counsel’s motion teller, Hoard, the third Barbara identified They photos. subsequently pro- were Young Appellant as in court the robber. duced and introduced evidence challenge constitutionality seeks close the case. Defense counsel did not this identification. objections make more to Hoard’s iden- record, According immediately to the af- tification until after verdict robbery, ter Hoard described the rob- guilty jury. returned At as a man in his white mid-twenties ber time, the defense moved for new thirties, tall, lbs., early 5'5" to 5'7" 150-60 trial on the that Hoard’s in-court light gold-rimmed brown hair impermissi- identification was based on an glasses. testified that she could de- She suggestive bly out-of-court identification. because, although scribe him she was The trial court denied the motion. death, she had her head scared raised appeal direct up and looked at the robber while she was challenged these denials. floor. lying She stated that she Court affirmed. mouth, glasses, eyes, see his could side It held: through his face and hair the holes stocking he wore over his head. The motion to strike the mistrial, policeman and the all and for a dealt not with an other tellers testified contrary allegation wore in-court robber not a identification stocking Despite gained suggestive but a mask. her detailed as result of a proce- description, improper pre-trial time identification Hoard could or dure, identify recognize or as either a but was the sole basis that the robber Young, although in-court came after bank customer she witness’ issue, pretrial photographic identification. the due Young asserts that Under the lower court this circumstance this Court now must reach those claims ruling credibility did not err in of because the failed to Mrs. Hoard’s identification was the with the “clear and statement” re- jury weigh.” quirement recently established Harris v. Reed, supra. The Court in Harris de- State, (Miss. So.2d clared: 1982). rehearing Young’s motion for default does not bar consid- summarily.

denied eration of a federal claim on either direct Young subsequently pro peti- filed a se review or habeas unless the last corpus tion for a of habeas under writ rendering state court judgment a in the court. U.S.C. 2254 in district The § “clearly case expressly” and states that district court that the admission found judgment procedural rests on a state the in-court had de- bar. [Citation omitted.] prived Young granted due and 489 U.S. at the writ. did S.Ct. at 1043. The The court not reach the other Court, claims in last petition. Young's case, court to judgment render appeal, On this Court reversed the dis- clearly expressly did not state and that its grant trict court’s of the writ and remand- judgment Young’s relied on to failure com- Young’s ed for consideration of other ply contemporaneous objec- the state Herring, claims. v. 777 F.2d 198 Young Thus, tion rule. properly may this Court (5th Cir.1985). panel The concluded it reach procedurally reviewing barred from appellant’s Appellee because forcefully argues, how ever, Supreme Court had rested its “law of the case” doctrine independent an and forecloses by consideration ground. apparently had failed argument. Harris Reed comply Mississippi contempora- to with the previous contends that panel already objection neous rule. at 202-3. The Id. conclusively resolved the issue the state therefore considered itself barred bar, procedural panel and that this cannot reaching Young’s from constitutional claim reconsider it. independent under The “law case” holds of the doctrine ground (citing Wainwright doctrine. Id. appellate at an court decision rendered one Sykes, 433 U.S. 53 stage of a “law of case constitutes the (1977)). panel L.Ed.2d 594 The further succeeding stages. in all case” Knotts v. found that could not show sufficient U.S., (5th Cir.1990). The F.2d 758 doc prejudice to excuse his failure to cause “operates trine foreclose reexamination procedural rule. with the Id. decided either on or on issues remand a he at We thus concluded that subsequent appeal.” Pegues v. Morehouse h qualify Sykes Wainwright Board, Paris 706 F.2d School “cause prejudice” exception the doc- (5th Cir.1983). doctrine, trine. “applies only it to is is limited: remand, On the district court determined pro that were in the former sues decided preclud- the case” “law of doctrine ceeding pertain questions and does [to] ed reconsideration the identification is- might have been decided but were appel- It also found the remainder of sue. U.S., 893 F.2d at 761 not.” Knotts v. lant claims were without merit Foods, Inc., Carpa, Inc. v. {quoting Ward petition. Young appeals. and denied the Gir.1978)). (5th F.2d decided encompasses those issues

II. The Doctrine “Law Case” implication” by “necessary as well those U.S., panel earlier Although explicitly. held that it decided Knotts v. doctrine, however, recog 761. The also was barred under ade- quate reaching exceptions: doctrine from nizes three (1983), applied case” which there been “law of the doctrine is

While the command, review, ha- applied also appellate a decision of direct not an inexorable by longer appellate or Now it is no sufficient legal issue issues beas review. impli- law of the case and discover court established the federal court can pro- subsequent procedural in all must be followed cation a state bar case in the trial ceedings judgment. same Under Harris appellate appeal Reed, procedural court or on a later rule will not bar court, unless the evidence on subse- clear- habeas review unless different, substantially quent trial was ly states the bar. authority has since made a controlling in Harris v. 489 U.S. at law applicable contrary decision of stated that was issues, decision was such rule: changing the now extend “[W]e work a manifest' and would erroneous rule “plain habeas review injustice. added.) (Emphasis Harris v. Reed ...” (5th Murtha, F.2d 431-32 White significant change thus constitutes Cir.1967). applica- controlling authority governing the bility adequate independent of the and recognize that “law of the ground in the context of state case. We applies case” doctrine this Further, v. Reed is habeas review. Harris find, however, Supreme that deci See, applied retroactively. e.g., Edwards v. catapults subject in sion v. Reed Harris (5th Butler, 160, Cir.1989); 882 F.2d 165 controlling in “change issue au into 959, 954, McCoy Lynaugh, 874 F.2d 967 v. At thority” exception the doctrine. (5th Cir.1989).1 opinion) (concurring decision, it panel’s time of the earlier case doctrine therefore does not law the in context of habeas re required not panel appellant’s review this Har- bar clearly express view that a state court and ris v. Reed procedural ground ly declare judgment. upon long which it its As rested III. Reed and The Harris v. “Clear independent adequate as an and Express” Requirement Statement reasonably exist, ground be found to could Since the “law of the case” doctrine does a federal court was barred under inde reconsideration, appel- bar we reach pendent ground and doc not v. reviewing the in a habeas lant’s contention that Harris Reed trine from issue law, existing requirement petition. keeping In with the clear and statement in this case. If the re- previous panel properly concluded that was not satisfied satisfied, implicitly quirement has not been Mississippi court determined obligated appellant’s consider independent and state Court is support substantive constitutional due ground existed state court’s apparent supra, v. 109 S.Ct. at decision,by appellant’s virtue of claim. Harris contempo satisfy Mississippi 1045. failure to objection rule.

raneous We find that panel v. Reed Subsequent prior opinion, Court did meet Harris Supreme requirement. Court declared rely and on “plain Court did not Harris v. Reed that 1032, judgment. for its Michigan Long, procedural rule” of 463 U.S. is on 77 1201 The state court decision 103 S.Ct. L.Ed.2d argues quasi-jurisdictional regarding Appellee Teague rule rule also appel- non-retroactivity bars consideration ade- limitations Lane, Teague argument. lant’s In quate It doctrine of abstention. (1989), 103 L.Ed.2d 334 Teague procedure. there- not a of criminal rule petitioner Supreme Court that a could held fact, bearing fore no on this case. In has procedure a new rule of criminal raise Teague itself considered Harris Reed ap- rule announced and collateral review. The requirement applicable Teague case. plied by Court in Harris v. Reed is opinion its face. Nowhere does the that the upon was based an im- refer articulate or to a state permissibly suggestive pre-trial photo dis- procedural procedural or state that a play procedure.

rule bars constitutional claim. prevail order to his due Moreover, in holding, direct of its claim, appellant must show that the identi specifically the court refers to and relies on procedure fication impermissi at issue was two cases that address the federal bly suggestive, suggestive and that impermissibly sug constitutional issue of ness led to likelihood misidentification. identifications, gestive and not on U.S., Simmons v. 390 U.S. 88 S.Ct. State, rule all. (1968); Passman v. (citing supra, 420 at 1059 McNeal So.2d Cir.1981), Blackburn, (5th State, (Miss.1981) So.2d Cham denied, rt. ce (Miss. 1981)). State, bers v. 402 So.2d Supreme Court conceded asserting record, Upon a review the we are unduly it the of an before issue left with no doubt that the photo photo suggestive pretrial identification. display procedure impermissibly sug issue, But the Court did not consider this gestive likely led misidentification of asserting object basis. failure Young at trial. clear the photo Young’s objection interpreted The Court to display procedure extremely sugges be that a courtroom identification valid foremost, tive. First at the time of the pretrial photo could not be based “Jerry Hoard knew Lynn identification. Young” a suspect. photo was His had his name on it. These two circumstances alone follows therefore the Court arguably proce are sufficient to render the acting ambiguously by implication was suggestive. impermissibly dure But the finding object a failure to to the due grave contained additional flaws. process issue. there was no Thus clear and Young’s picture only was the of one a man express relying upon that it was in his late thirties. Four of the five other procedural ground a valid state of failure photos early of men in their were twenties. object justify its failure to consider photo disparate The fifth a man was of also issue. due See Goodwin v. age. Young only man Collins, 185, (5th was with Cir.1990), 910 F.2d 187 glasses Only and clean shaven. one echoing other “procedural de Reed: glasses, man had but he also had a beard. only fault bars federal habeas review Furthermore, picked gray- Hoard rendering judgment last state court pack, photo despite haired out of the her the case rests its previous judgment claim that the robber brown default.” added). (emphasis hair. Due of nature glaring The cumulative effect of these opinion, Supreme Court’s we undeniably differences leads to conclu find that “clear photo array procedure sion that the was requirement of Harris v. Reed has not impermissibly suggestive. See United Consequently, been satisfied. we must 950, Merkt, (5th 958 States consider substantive constitu denied, 946, Cir.1986), 480 107 cert. U.S. regarding the iden tional (1987) 1603, (photo 94 L.Ed.2d 789 S.Ct. testimony tification of Hoard. array photo in which the accused’s was the only one in black and white and was the Testimony IV. The Identification Caucasian, only while the others were color men, Hispanic impermissibly Appellant photos contends that admission of was Alabama, testimony identifying suggestive); Swicegood the in-court of Hoard 577 1322, (5th Cir.1977)(a him as the robber violated constitution- F.2d 1327 considera age law. He between the accused and right al asserts ble difference 864 Fifth, robbery. length depicted photo array men in a street after the

the other robbery photo and the finding factor in the ar time between significant was a array procedure was least four to five suggestive); at ray impermissibly United facts, con- (5th weeks. Given these extreme Gidley, F.2d 527 1350 States pretrial photo array proce- Cir.) denied, clude 97 U.S. S.Ct. cert. likely dure was to lead to misidentifica- (1976) (photo array in 50 L.Ed.2d 110 Young. tion of only which the defendants were the ones hair, long black and one defendant Finally ad- we must determine whether appear sole one with oriental mitting testimony was Hoard’s tainted impermissibly suggestive). ance was error harmless error. We find not harmless. The tainted identifica- photo display procedure also appellant significant at tion of trial was undoubtedly likely to lead to misiden part particularly be- state’s tification of the robber. person no at the scene of the cause other five Court has outlined factors identify Young perpetra- crime could as the determining whether consider misidenti tor. We conclude that the admission (1) likely: oppor fication witness’s impermissible tunity to view the criminal at time might well have contributed crime; (2) degree of the witness’ atten California, Foster v. conviction. See tion; (3) accuracy prior of the witness’ 1127, 1129, U.S. S.Ct. criminal; (4) the description of the level of (1969); Blackburn, Brown v. certainty demonstrated the witness Cir.1980) (5th (citing Chap- F.2d confrontation; (5) length 18, 23, 87 California, man v. crime time between the confronta 824, 827, (1967)). 17 L.Ed.2d 705 S.Ct. tion. Biggers, Neil V. Conclusion First, extremely Hoard had an limited “law the case” does opportunity to time view robber appellant Young’s bar review of The crime lasted one the crime. independent the state Under and one-half two minutes. robber’s we find that the state face No one else at the was covered. scene court’s decision did not with identify could the robber. Her view was express “clear and state- Harris v. Reed looking up from the floor at robber. requirement. the merits of ment” On Second, testimony, according to her Hoard claim, Young’s photo dis- frightened very at the time she was sugges- play procedure impermissibly lying on the floor at robber’s behest. a likely led to misidentification of tive intensely unlikely, in such an thus of the Young as the robber. The admission situation, she a stressful and brief upon pre- in-court identification based high degree descrip- to his attention as Young’s trial therefore violated Third, identity. descrip- tion or her earlier right of law. must tion the robber was far from accurate if of the reverse district court’s denial Young were robber. She described corpus. writ of habeas in his robber as a man mid-twenties with HABEAS PETITION FOR CORPUS light Young is in his late brown hair. GRANTED. Fourth, gray hair. the record thirties any indicating lacks substantial evidence KING, Judge, dissenting: Circuit certainty demonstrated level photo array citing procedure. majority, Her Harris Reed Hoard at trial, however, authority, 103 U.S. 109 S.Ct. reveals some 489 (1989), in uncertainty. L.Ed.2d 308 effect holds that She admitted she could may state appellant court review a recognized not have as either federal habeas plain or as decision that does not include a “Jerry Lynn Young” the bank court robber law, even walking if him down the statement that it relies on she had seen though state court decision does not in U.S. 2506-07, S.Ct. (1977). way indicate that its decision based on a requirement federal law. Such dra- Harris, Appellate Illinois matically expands federal ha- found petitioner that under state law judgments beas review of state court post-conviction waived state review his disregard Court’s concern claim that he received ineffective assist- comity with the state courts and the ance of counsel because he failed to raise finality judgments expressed of state court that claim on direct appeal. The Illinois 72, 87, in Wainwright Sykes, on, however, court went to consider and 2497, 2506-07, (1977). 53 L.Ed.2d reject petitioner’s ineffective assistance majority thoroughly misap- Because the claim Reed, on the merits. Harris v. plies plain v. Reed Harris S.Ct. at 1040. respectfully I dissent. Illinois rejection that its petitioner’s ineffec- Harris, Under habeas court tive assistance claim on the merits anwas petition raising review a a federal alternative rather than the sole basis for its despite procedural a state bar decision.1 circumstances, Under these is ambiguous on the Supreme Court found state court question of whether the reject- ambiguous decision was the question on ed the federal claim on the basis of its whether it based its decision on the state understanding of federal law interpretation court’s of federal law con- Reed, procedural bar. Harris v. cerning ineffective assistance of counsel or 103 L.Ed.2d whether it based its The state court can remove the default.2 The ambiguity prevent federal review concluded, therefore, that the federal habe- by plain statement that it relied precluded as court from consider- ground. and independent state ing petitioner’s federal claim because Id. In the instant the final state court the claim Supreme Court did not base its rejection of had not included clear and state- federal due claim on its ment relying that it was on an adequate law, interpretation of federal nor procedural ground. discussion state law intertwined with its Id. interpretation of federal law. Because the rationale, court decision was not Neither the language, purposes majority specific nor the require facts Harris reaching errs in the merits of “plain fed- when the state court did process showing eral due claim rely deny absent a of not petition on federal law to Young’s cause only failure to with er’s claim question might and that procedural rule preju- ambiguous state and actual precise be considered is the resulting imposition proce- dice from grounds upon state which the state court Wainwright dural default. Sykes, 433 based its decision.3 such Under circum circumstances, ambiguity 1. The in Harris arose because Under "[t]he such the Seventh Circuit appear rulings state 'did not to make two deemed the decision on the merits to waive alternative, procedur Reed, but rather to note a procedural state bar. Harris it, ignore reaching al default and then the mer (1987), by, rev'd 489 U.S. 109 S.Ct. ’’ Harris, 1041, quoting its instead.’ 109 S.Ct. at decision, F.Supp. the district court’s case, (N.D.Ill.1985). Mississippi our Harris, Supreme 3.In Court noted that the Supreme Court never reached the merits of procedural state court's invocation of a default Young’s process arguably prevented would have review even without a it an that relied on precedent 2. Seventh Circuit established that if ground ignores procedural "the state court default merits, and addresses the on a court never reached the federal claim. claim its federal precluded reaching not Unlike the court is from the merits instant petition corpus." of a the claim in for habeas in Harris Young’s stances, rejected federal due may review the federal claim Court in-court that Mrs. Hoard based her prejudice showing a of cause and without suggestive improperly on an identification ground was not only procedural if the state that pre-trial identification because it found judgm court’s to Young’s attorney object to Mrs. ent.4 ba- in-court identification on that Hoard’s Mississippi Supreme Court’s While the objection, Su- sis. clarity, hardly a model of discussion is found, solely rested on preme Court language In order for to ambiguous. not that identifi- Mrs. Hoard’s in-court meaning its ambiguous, not must be pre-trial photographic came a cation after interpretation unclear, must be its identification, be but a not raise a claim does competent skill person of doubtful to a issue.6 The federal Mississippi Supreme upheld the trial court’s Supreme Court then understanding.5 ment____ reject Ambiguity language of is to be to the federal claim on went result, distinguished unintelligibility the reference to state inac- As from merits. ambig- court's is insufficient curacy, law in cannot be said to be words clearly whether the court in- to signification demonstrate doubtful uous unless their seems waiver as an tended invoke alternative persons competent of skill and uncertain to ground. precisely regard with to such an It is knowledge understand them. the con- reference to state law in Ambiguity distinguished vague- must be from Long law that text reliance clear federal ness: permits review of the federal issue. federal many lawyers persist It is unfortunate (empha- 109 S.Ct. n. 13 vague- using ambiguity word include added). sis ness____ ambiguity classical Whereas in its equivocation, vagueness refers sense refers any vague imply do 4. not mean which, degree independently of procedural will a state rule bar reference to language equivocation, its re- is uncertain in if the court fails to federal habeas review spective applications particu- to a number discuss issue. The state uncertainty ambiguity Whereas the lars. central, “indepen- "adequate" must be as well as an an challenge, un- an ‘either-or’ with ground. Supreme Court has dent” state law certainty marginal ques- vagueness lies pre- inadequate procedural rules found state degree. tions of defendant’s federal claim a vent review of the Dickerson, Interpretation 48- variety example, Su- R. Statutes of circumstances. For (1975). Although preme procedural has found bar procedure vague, signification inadequate itself violates be when Court’s decision person compe- Amendment’s due Fourteenth not seem doubtful to does Georgia, knowledge. clause. Reece See tent skill and (1955) (state requir- S.Ct. ing 100 L.Ed. rule Young’s objection, grand examining composition 6.After the Missis- objections to the by sippi juries be criminal defendants Court concluded: made before their indictment did bar to strike the motion made de- review of a claim semi-illiterate mistrial, allegation not with for a dealt mentality for fendant low whom counsel had gained the in-court identification was appointed until after he had been been suggestive improper pre-trial result indicted). pre- a state rule Nor does procedure, but on the sole identification clude if the has not been basis the witness’ in-court followed, strictly particular or if result in a photographic identifica- came after a past practice. case is See inconsistent Under this circumstance the lower tion. Kentucky, James v. ruling credibility did err in the of not (Fact (1984) that defendant re- jury to Hoard’s identification was for the Mrs. quested rather than "in- an "admonition” State, (Miss. weigh. McNeal v. 405 So.2d 90 preclude Supreme Court re- struction” did not 1981). We reiterate as stated in Chambers jury claim the had view of defendant’s that not State, (Miss.1981), "We 402 So.2d charged ignore properly to been defendant’s rely upon good the sense and are content to testify because failure to distinction between judgment juries, for evidence with some of had not "admonition” and “instruction” been customary element untrustworthiness is consistently past). applied in the jury grist mill. are not so for the Juries ed., (5th susceptible they cannot measure intelli- 5. BLACK’S LAW DICTIONARY that 1983) testimony abridged, ambiguity weight gently defines as the of identification Doubtfulness; questionable that has some feature.” meaning. Du- doubleness of State, (Miss. indistinctness, Young uncertainty 420 So.2d plicity, or of mean- 1982). ing expression used in a written instru- an quate not to strike Mrs. Hoard’s identifi- and independent grounds doc- cation, trial, grant or newa without dis- trine is whether state court relied on cussing Young’s claim that or federal state law. If Mississippi suggestive.7 improperly Supreme against Court had Young found on the merits claim and also found appears inescapable The conclusion that proeedurally that the claim barred, Mississippi Supreme rejected Court opinion ambiguous would be for purposes claim attorney proce- because his and independent durally by failing properly defaulted ob- grounds absent fact, ject. precisely finding this was our upon proce- court relied in opinion.8 Mississippi our earlier The Su- dural bar. The Illinois appellate court’s preme Court’s failure to state that it based opinion in Harris ambiguous just for contemporaneous objec- decision on its Mississippi this reason. If the Supreme opinion vague.9 tion rule make upon Court had relied its state opinion ambiguous, constitu- does not make the how- ever, process provisions, tion’s due but opinion reasonably had cited because is not cases, federal opinion susceptible interpretation. to more than one ambiguous would have been because the Supreme If Mississippi opin- Court’s interpretation state court’s of its law was all, ion can be considered it is intertwined with its understanding of fed- ambiguous only question exactly on the Precisely eral law. this of ambiguity kind what the court spurred to require reaching Young’s relied plain statement Michigan Long. ambiguity claim. Such is not Reed analysis. relevant to a The The facts in our indicate for ambiguity purposes relevant of the ambiguity. ade- no such Mississippi The Su- 8. tification, Young’s attorney objected tification court's new trial came too she was based She identified the man Although was not fied a picture, robbed not courtroom. She after the fication. yesterday, the man who BY JUDGE framed determine what her not clear trial opinion witness Mrs. Hoard on the identification the came Court to strike defendant from the Hoard now the defendant and BY MR. FARESE our day following did, also admission Mrs. into Court ^[******] earlier picture made her, as based robbery, as she the at this follows: based on the identification. BIGGERS: way it is Mississippi move state witness, on whether she saw opinion, having stricken, of this record testified, point him weight they out alleged point. but pointed Mrs. [Young’s attorney]: way that all question made whether photograph late, seen a question as today respectfully defendant Hoard’s we found: Hoard's in-court iden- and move for a mis- Young's identification of the the Court order all Supreme the Court robbed out she did. an in-court identi- that this identification testimony wish picture; for the or question in-court the man who was framed. not she her, motion for before she some Court did moves the obviously recalls, that Mrs. out in give the trial jury maybe Comes identi- of the iden- time It is saw, this 9.MISS.CODE United dice Constitution fact es, claims, questions, issues tion at trial and Failure may upon of whether such are based on the laws and the Young Herring, Further, after verdict is too late.... stances, Court’s where too ly into motion Court’s As indicated in the ing implicit improperly suggestive pre-trial identification. son, shall finding. majority expresses grant defaulted, trial, late to raising States, to rule by prisoner law by was afforded be matter in its opinion, relief from the waiver. raising we treat argued and/or Court that which showing matter proeedurally preserve new ANN. shall the matter for the law the and in its holding raising during it as in its brief State trial were could on direct it constitute waiver § of cause and actual if it it. 99-39-21(1) ample merits raise the first time motion was, trial.... no [Mississippi capable it until after verdict. have been raised dur- barred, refusal, Mississippi or errors whether disagreement Young objections, under these appeal, regardless opportunity determined that In these circum- 204 n. 11 had waived the but the first Likewise, his claim of for that rea- states: procedural- determina- clear by Supreme] or of the time thereof defens- preju- stated court facts, that, ... go 868 72, 87, 97 Wainwright Sykes, v. 433 U.S. clearly did not reach the mer-

preme Court 2506-07, (1977). 2497, 53 L.Ed.2d 594 Young’s process claim. Nor did S.Ct. its of by the opinions cited the two state court may arguendo, we assuming, Even that its Mississippi Supreme Court indicate that Young’s claim because law was intertwined understanding Supreme failed to Mississippi the Court federal law. The interpretation with its rely- plain statement that it was include a Mississippi cited those Supreme Court ing adequate independent and on an credibility the proposition the that cases for granting in ground, majority the erred law jury the to determine of a witness is for merits of discussing the the writ without identification follows a when an in-court Young’s that claim the state’s contention They pre-trial photographic identification. majority The procedurally barred. authority reject were not cited as Mississippi that the Su- does not decide Young's identifica- that concluding in preme erred Court suggestive. improperly Under tion object to Mrs. properly failed circumstances, Mississippi Su- these identification, and it does Hoard’s in-court decision, even it could be preme Court’s proper objection that a not decide ambiguous ambiguous, is not considered Supreme required. Nor did the purposes of Harris v. Reed. The ma- bar.10 Court waive reason, jority provides there- opinion no in Supreme years The recent has Court fore, Su- to believe re- scope of federal habeas narrowed justified failing preme was not principles comity and view based on Never- Young’s reach the merits of finality judg- of state court respect theless, ignores pro- majority Powell, 465, ments. See v. 428 U.S. Stone majority con- Apparently, cedural bar. 3037, (1976); 96 S.Ct. 49 1067 giving court carte strues Harris as this 72, Wainwright Sykes, v. disregard adequate state law blanche to (1977). 2497, majori- include a grounds if the state court fails to opinion require a state court to ty’s would plain that it relied on state law. statement “plain that it its include a bases Court, observe, Supreme has never independent on an decision power entertaining on a di- assumed such ground law even when state court appeal ambiguous rect from an rely making federal law its on judgment.11 dramatically requirement Such a decision. Mississippi Supreme Court’s federal habeas review Because the expands law, opinion clearly rely disregards did judgments adequate to Supreme its deci- and the state law Court’s rationale for Powell, 465, 96 Court’s sions Stone (1976), 3037, judgment, 49 L.Ed.2d effect, conclusion, Reed, Supreme Seventh con- makes In Harris v. Circuit pro- merely e.g., opinion advisory. sidered whether the state waived See Peo- Court’s addressing petitioner's Class, cedural error ple N.E.2d 67 N.Y.2d (The claim on merits. Harris (1986) Supreme N.Y.S.2d (7th Cir.1987), by, 489 U.S. rev’d a New because of Court reviewed York decision (1989). such No S.Ct. waiver, however, 103 L.Ed.2d plain statement that it relied lack of inferred in the instant can be remand, Appeals slate On the Court of law. Mississippi Supreme Court did not case. The judgment, its stat- New York reinstated earlier indi- claim and address merits of ing constitu- it found a violation of its state it claim had cated believed Comment, tion.). also, Michigan Long: See failure to include a been foreclosed. The statement, Adequate Inadequacies Independent therefore, hardly can be construed as Grounds, State 42 U.Miami L.Rev. waiving Mississippi’s procedural bar. majority’s opinion in the Under opportu- has no instant Long plain Michigan 11. Under nity based on its decision was to establish that the state court on remand from the United law, majority although finds conclude that States ignore the state court’s law and on state based point. analysis Such Court’s of federal law. grounds prevents re- our pre-trial view of claim that Jerry Lynn YOUNG, photographic improperly identification was Petitioner-Appellant, suggestive showing absent a of cause and v. prejudice actual for com- failure to PUCKETT, Superintendent Steve W. ply contemporaneous Mississippi’s with ob- Penitentiary State jection Sykes, rule. Wainwright Parchman, Respondent-Appellee. 2497, 2506-07, Young Because failed No. 89-4211. cause demonstrate failure to com- United States Court Appeals, ply rules, Mississippi’s procedural with Fifth Circuit. majority should not have reached the mer- Nov. 1990. its claim.13 of his majority’s requirement that a state provide a clear and state- ment relied on inde-

pendent grounds, though even opinion this is not

question, expands ha- corpus

beas review. Nor does rule

Reed’s allow sim- us

ply ignore grounds adequate state law judgment. For both rea- these

sons, respectfully I dissent. The bottom got right

line is that we first this case

time, and there is no reason to revisit it

change panel. the result of the first opinion In our former in this pre-trial we ob- Mrs. which Hoard based her identifica obviously served that the state were Young objec make tion. further independent. We stated: identification, to Mrs. tions Hoard’s procedural ground Plainly, the question jury guilty until after the returned verdict. ground, "independent” was a state and was Young’s attorney Once had a chance sense, Sykes that is photographs, longer good he no had cause merits, as the Court nev- failing object. Young Herring, proce- er reached the merits because of the (5th Cir.1985). Su default____ Plainly, requirement dural preme "Young provided Court stated that contemporaneous objection for a correct is an photographs prior presentation all of the "adequate” ground. upheld We have case,” of his version of the which him enabled requirements many similar times. fully proce "to examine entire identification Young Herring, F.2d 203 n. 9. State, Young dure in his case-in-chief.” (Miss.1982). So.2d Because 13. As we found our former case, Young cannot demonstrate cause for his failure expected could not have been Mississippi's contemporaneous objected ob have improperly suggestive jection question immediately I reach the after do not Mississippi’s application Mrs. Hoard testified. Neither that rule nor whether judge yet photographs upon trial prejudiced seen the him.

Case Details

Case Name: Jerry Lynn Young v. Robert Herring, Lee County Sheriff

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 6, 1990

Citation: 917 F.2d 858

Docket Number: 89-4095

Court Abbreviation: 5th Cir.