Wiley v. PuckettWiley v. Puckett
- Reporters:
- ,
- Before:
- Politz, Carolyn Dineen King, Garwood
KING, Circuit Judge:
William L. Wiley, a Mississippi prisoner under a sentence of death, appeals from the district court‘s denial of his petition for a writ of habeas corpus. He raises six distinct issues for our review, including a claim that his sentence should be invalidated because it was based in part on the aggravating circumstance that the murder was “especially heinous, atrocious or cruel.” After hearing oral argument,1 we reserved decision
I. BACKGROUND AND PROCEDURAL HISTORY
On August 22, 1981, after J.B. Turner and his daughter closed the convenience store Turner operated in DeSoto County, Mississippi, Wiley emerged from a hiding place and fired three shots from a shotgun. Turner‘s daughter, Patricia Harvey, was injured, and Turner died on the scene. Wiley took a small money box containing $350 to $400 and fled, leaving the shotgun. Federal agents connected the shotgun to Wiley, and Wiley was eventually arrested in Memphis, Tennessee. Wiley confessed to the robbery and murder and was tried for capital murder.
Wiley was convicted of capital murder, which in Mississippi includes a murder committed in the course of a robbery, and sentenced to death. On appeal, the Mississippi Supreme Court affirmed the conviction, but reversed the death sentence because of improper comments by the prosecutor. Wiley v. State, 449 So. 2d 756 (Miss. 1984).
Wiley then initiated habeas proceedings in federal district court. The court held seven claims procedurally barred. It reviewed the remaining claims on the merits, but found that none warranted relief. In addition, it refused to grant an evidentiary hearing on Wiley‘s claim that he was denied effective assistance of counsel.2 We granted a certificate of probable cause to appeal.
- Whether the death sentence is invalid under the Eighth Amendment because (a) the jury was instructed to consider whether the murder was “especially heinous, atrocious or cruel” and (b) the jury found two aggravating circumstances (murder for robbery and murder for pecuniary gain) arising out of the same conduct.
- Whether the district court erred in holding that Wiley was not entitled to an evidentiary hearing on his claim that he received ineffective assistance of counsel at the sentencing phase.
- Whether the prosecution‘s exclusion of all but one black juror from the sentencing jury violated Batson v. Kentucky, 476 U.S. 79 (1986).
- Whether the prosecutor improperly referred to the character of the victim.
- Whether several statements made by the prosecutor deprived Wiley of a fair trial.
- Whether the introduction of photographs of the victim was unduly prejudicial.
II. AGGRAVATING CIRCUMSTANCES CLAIMS
Under Mississippi law, the jury may impose a death sentence on a person convicted of capital murder if it finds one or more statutorily defined aggravating circumstances, and then determines that the aggravating circumstance or circumstances outweigh any mitigating circumstances.
A. “Especially Heinous” Aggravating Circumstance
Nearly two years after Wiley‘s death sentence became final, the Supreme Court invalidated a death sentence in which the jury had considered the “especially heinous, atrocious or cruel” aggravating circumstance without being given a limiting instruction. Maynard v. Cartwright, 486 U.S. 356 (1988). The Court found, first, that the language of the aggravating circumstance was so vague and imprecise as to risk imposition of the death penalty in an arbitrary and capricious manner. Id. at 364. Second, the Court found that the Oklahoma Court of Criminal Appeals had failed to apply a limiting construction to the vague
Shortly after Maynard was decided, the Court was confronted with the question whether, in a weighing state, infection of the capital sentencing determination with a vague aggravating factor required invalidation of the death sentence. In Clemons v. Mississippi, 494 U.S. 738 (1990), the Court answered this question in the negative but required that an appellate court reviewing the sentence focus carefully on the role the invalid factor played in the process. As in Maynard and the instant case, the Clemons jury had not received a limiting instruction further defining the concept of an “especially heinous, atrocious or cruel” killing. Implicit in the opinion was the assumption
The Court first concluded in Clemons that nothing in thе Sixth or Eighth Amendments prevents an appellate court that has invalidated an aggravating factor from reweighing the remaining valid aggravating factors and the mitigating evidence. With respect to the argument that this would infringe on a defendant‘s jury trial right, the Court pointed out that it had never required “that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence.” Id. at 745.3 In response to the argument that this would violate the Eighth Amendment, the Court pointed out the numerous ways in which appellate courts become involved in reviewing death
Having determined that an appellate court could salvage a death sentence by reweighing aggravating and mitigating circumstances, the Court turned its attention to whether the Mississippi Supreme Court actually had done so. At this point, the Court recognized two methods by which the state court could have reweighed, but was not certain which course the state court had taken. The state court might have been reweighing by (1) including in the balance the “especially heinous” factor as limited by prior decisions of thе Mississippi Supreme Court or (2) eliminating the “especially heinous” factor altogether and reweighing the remaining valid aggravating circumstance against the mitigating evidence. Id. at 751. As for the latter, the Court observed that the Mississippi Supreme Court may not have reweighed at all, but simply applied a rule of “automatic affirmance” when at least one valid aggravating factor remains. Such a rule was not, in the Court‘s view, a proper method of reweighing, as it would not involve an actual reconsideration of the mix of aggravating and mitigating circumstances necessary to satisfy the Eighth Amendment‘s requirement of individualized sentencing. Id. at 752. With respect to the former, the Court did not elaborate, but it seems to have been referring to its
The Court in Clemons also approved of an alternative route to affirmance —— harmless error analysis. Again, however, it was not clear whether the Mississippi Supreme Cоurt had done so in its opinion affirming Clemons‘s death sentence. The Court indicated its approval of two methods of harmless error analysis: the state court could ask whether beyond a reasonable doubt the sentence would have been the same had the vague aggravating circumstance not been injected into the mix, or the court could ask whether beyond a reasonable doubt the sentence would have been the same had the circumstance been properly defined in the jury instructions. Clemons, 494 U.S. at 753-54; see also Sochor v. Florida, 112 S. Ct. 2114, 2123 (1992). In remanding, the Court emphasized that state appellate courts are not required to reweigh or employ harmless error analysis, but that these are constitutionally permissible methods of salvaging a death sentence based upon an invalid or improperly defined aggravating circumstance. Clemons, 494 U.S. at 754.
Maynard and Clemons clearly dictate the conclusion that there was constitutional error in instructing the jury in the bare words of the statute. Thus, our first task is to determine
Clemons and Stringer together dictate this result. Clemons indicates that it would have viewed the state supreme court as having reweighed if that court had “reweigh[ed] the mitigating circumstances and both aggravating factors by applying the proper definition to the ‘especially heinous’ factor.” Clemons, 494 U.S. at 751. Later, in describing its conception of reweighing, the Court pointed out that Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982), require the sentencer to consider all mitigating evidence in imposing a death
Stringer makes these points even more clearly by emphasizing the infirmity of a vague aggravating circumstance in a weighing state. Stringer initially points out the critical importance in a weighing state of “defin[ing] [aggravating circumstances] with some degree of precision.” Stringer, 112 S. Ct. at 1136. This is due to the fact that aggravating factors in a weighing state do not simply narrow the class of persons eligible for the death penalty, as in Georgia, but rather lie at the very heart of the sentencer‘s ultimate decision to impose a death sentence. Consequently,
[a]lthough we ... held in Clemons v. Mississippi that [when the sentencing process is infected with an invalid aggravating factor] a state appellate court could reweigh the aggravating and mitigating circumstances or undertake harmless-error analysis, we have not suggested that the Eighth Amendment permits the state appellate court in a weighing State to affirm a death sentence without a thorough
analysis of the role an invalid aggravating factor played in the sentencing process.
Id. The Court emphasized this point one paragraph later:
In order for a state appellate court to affirm a death sentence after the sentencer was instructed to consider an invalid factor, the court must determine what the sentencer would have done absent the factor. Otherwise, the defendant is deprived of the precision that individualized consideration demands under the Godfrey and Maynard line of cases.
Id. at 1136-37. The key to the requirement of such close appellate scrutiny lies in the nature of weighing. In a system such as Georgia‘s, the jury uses aggravating circumstances to determine whether the defendant is eligible for death; if it finds at least one, it then considers all the evidence adduced at the guilt-innocence and sentencing phases in determining whether death is the appropriate penalty. Id. at 1136; Zant v. Stephens, 462 U.S. 862, 872 (1983). Thus, the jury‘s use of an invalid aggravating circumstance in determining death-eligibility does not infect the ultimate decision to impose a death sentence and the sentence may be upheld so long as the appellate court determines that the invalid factor made no difference. See Stringer, 112 S. Ct. at 1137. In a weighing state, in contrast, the process of determining that death is the appropriate penalty —— that is, the weighing process —— is skewed when the sentencing body is told that it may include an invalid factor in its decision. “A vaguе aggravating factor used in the weighing process is in a sense worse [than in the Georgia system], for it creates the risk that the jury will treat the defendant as more deserving of the death penalty than he might otherwise be by
In addition, we cannot agree with the State that the Mississippi Supreme Court actually performed a harmless error analysis. The words “harmless error” are not used in connection with the invalid aggravating factor, and there is no indication that the court gave the kind of “close appellate scrutiny of the
Because only the Mississippi courts can determine the proper approach to Wiley‘s sentencing, we must vacate the judgment of the district court insofar as it holds that the basing of Wiley‘s sentence on the “especially heinous” aggravating circumstance did not offend the Eighth Amendment. The district court is, therefore, directed to issue the writ of habeas corpus unless the State of Mississippi initiates appropriate proceedings in state court within a reasonable time after the issuance of our mandate. Because a new sentencing hearing before a jury is not constitutionally required, the State of Mississippi may initiate whatever state court proceedings it finds appropriate, including seeking a life sentence. Cf. Bullock v. Cabana, 784 F.2d 187, 187 (5th Cir. 1986) (on remand from Supreme Court) (leaving State
Wiley argues that placing this case back in the Mississippi courts will necessarily result in a new sentencing hearing, thus mooting the other claims he raises in this appeal. He contends that the Mississippi Supreme Court‘s decision in the Clemons remand, Clemons v. State, 593 So. 2d 1004 (Miss. 1992), establishes that that court will not perform either the reweighing or harmless error analysis sanctioned by the U.S. Supreme Court, but instead will automatically remand to the state trial court for resentencing. Our analysis of the opinion in the Clemons remand, however, indicates that a new sentencing hearing is not absolutely required under state law. Therefore, because Wiley may again receive a death sentence based on the 1984 sentencing trial, we will, in the interest of judicial economy, consider Wiley‘s claims arising out of that proceeding.
From these statutory provisions, two things are clear: only the jury, by unanimous decision, can impose the death penalty; as to aggravating circumstances, this Court only has the authority to determine whether the evidence supports the jury‘s or judge‘s finding of a statutory aggravating circumstance. There is no authority for this Court to reweigh remaining aggravating circumstances when it finds one or more to be invalid or improperly defined, nor is there authority for this Court to find evidence to support a proper definition of an aggravating circumstance in order to uрhold a death sentence by reweighing. Finding aggravating and mitigating circumstances, weighing them, and ultimately imposing a death sentence are, by statute, left to a properly instructed jury.
The court did not, however, find that state law precluded it from performing harmless error analysis. The court essentially concurred in the view of the U.S. Supreme Court that use of the invalid aggravating factor was not likely to be harmless beyond a reasonable doubt in Clemons’ sentencing, where only two aggravating circumstances were argued to the jury and the State‘s argument at sentencing was devoted almost entirely to the “especially heinous” circumstance. Moreover, the Mississippi Supreme Court found that the error was not harmless beyond a
B. Robbery and Pecuniary Gain Aggravating Circumstances
Wiley levels a second challenge to the use of aggravating circumstances. He contends that, in considering the “robbery” and “pecuniary gain” circumstances, the jury “was encouraged to double the aggravating weight of evidence already fully considered in the context of another statutory aggravating circumstance.” He contends that the use of two aggravating circumstances that described the same conduct10 failed to channel and limit the jury‘s discretion to impose the death sentence, and therefore resulted in an arbitrary death sentence in violation of the Eighth Amendment.
Under Teague, new rules of constitutional criminal procedure will not be announced on federal habeas review unless one of two narrow exceptions applies. 489 U.S. at 311-13; Saffle v. Parks, 494 U.S. 484, 488 (1990); Penry v. Lynaugh, 492 U.S. 302, 313 (1989)
Although Wiley spends very little time arguing this claim in his brief13 and cites no cases in support of the rule he seeks, we perceive his claim to be based on the well-established principle that, when the proposed penalty is death, the sentencer‘s discretion must be channelled and limited so to as to avoid imposition of the penalty in a “wanton or freakish” manner. Gregg, 428 U.S. at 188-89 (quoting Furman v. Georgia, 408 U.S. 238, 310 (1972) (Stewart, J., concurring)); see also Stephens, 462 U.S. at 874; Walton, 110 S. Ct. at 3061 (Scalia, J., concurring in part and concurring in the judgment) (listing the many ways the Court has described this basic principle). Saying
In order for Wiley‘s sought-after rule not to be considered new, we think it must be dictated by precedent more specific than Gregg and the cases repeating its essential principle. In the only Supreme Court case holding that a rule which ultimately derived from the Gregg principle was not a new rule, the Court did not base its decision on Gregg or the generalized requirement that state capital sentencing statutes narrow the class of persons eligible for the death penalty, but instead on a more particularized application of the Gregg principle. The case to which we refer, of course, is Stringer, and it found the invalidation in Maynard v. Cartwright and Clemons v. Mississippi of the “especially heinous” aggravating circumstance dictated by Godfrey v. Georgia. Godfrey was a specific application of the narrowing requirement in which the Court held that the Georgia system‘s threshold criterion for imposing a death sentence must be defined with precision either in the jury instructions or by
We can find no precedent that will assist Wiley. The Court‘s only specific extension of the Gregg principle has come in the Godfrey-Maynard-Clemons line of decisions, a group of cases which speak to the importance of precision in defining aggravating circumstances in both weighing and non-weighing states and to the consequences for appellate review of imprecisely defined circumstances. Godfrey, Maynard and Clemons (all of which are available to Wiley) provide no basis for the sought-after rule here, for Wiley is not claiming that the robbery and pecuniary gain aggravating circumstances were invalid, improperly defined, or imprecise. Rather, he simply raises a broad-based claim that “stacking” of identical, valid aggravating circumstances will impermissibly influence the jury in a weighing state toward returning a death sentence. Were we
Neither of the two exceptions to the new rule doctrine helps Wiley. The first exception applies when a new rule “places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe‘[.]” Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in judgments in part and dissenting in part)). It requires no extended discussion to show why the rule Wiley seeks would not put any individual conduct beyond the authority of government to proscribe. The second exception applies to procedural rules which are critical to an acсurate determination of guilt or innocence. Id. at 312. This exception, too, is obviously inapplicable. Accordingly, because Wiley asks us to apply a new rule to him on habeas, we cannot reach the merits of the claim.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Wiley argued in the district court that he received ineffective assistance of counsel at both the guilt and sentencing phases, but on appeal he confines his claim to the
We review claims of ineffective assistance of counsel at capital sentencing trials under the two-part test of Strickland v. Washington, 466 U.S. 668 (1984). First, a defendant must show that “counsel‘s representation fell below an objective standard of reasonableness,” with reasonableness judged under professional norms prevailing at the time counsel rendered assistance. Id. at 688. We are “highly deferential” to counsel‘s decisions about how to conduct the defense, as it is extremely difficult for reviewing courts to place themselves in counsel‘s position and evaluate the choices he or she should have made. The range of attorney conduct that must be considered reasonable is thus quite
The essence of Wiley‘s claim is that his appointed counsel at the guilt-innocence trial and both sentencing trials, James D. Franks, conducted a woefully inadequate investigation of mitigating evidence. At the second sentencing trial, Franks called no witnesses in Wiley‘s behalf, choosing instead to present mitigating evidence entirely through the cross-examination testimony of the State‘s witnesses. Franks elicited testimony from Terry Galt, a co-worker of Wiley at the time of
Wiley asserts that Franks unreasonably failed to investigate his background, character and mental condition, and that he failed to locate witnesses who could have bolstered the evidence that Wiley had no history of violence or criminal behavior. He contends that Franks could have obtained a considerable amount of evidence that would have related directly to the mitigating circumstances enumerated in the Mississippi capital sentencing statute, such as mental impairment and diminished capacity. See
On the basis of this record, Wiley is not entitled to a federal evidentiary hearing. His own affidavit and Franks‘s affidavit are not in conflict on the basic fact that Wiley did not bring to Franks‘s attention any of the potentially mitigating evidence now in the habeas record. Wiley‘s affidavit states: “Mr. Franks did not fully explain to me that it was important for people who knew me to testify at the sentencing hearing. Mr. Franks only asked me a general question about whether there was anyone who would help in my defense.” Franks‘s affidavit states: “I questioned Mr. Wiley about witnesses that might appear on his behalf but he did not give me any names.” At only one point does Wiley acknowledge providing Franks with information that might be mitigating: “I told Mr. Franks about my abuse of alcohol, speed and pot before the alleged crime.” There is absolutely no suggestion in any of Wiley‘s submissions, however, that there was any reason for Franks to suspect the existence of mental impairment. There is no indication that Wiley had ever been
Investigations into mitigating circumstances may reasonably be limited where the defendant fails to call witnesses to his lawyer‘s attention. See Burger v. Kemp, 483 U.S. 776, 794-95 (1987) (counsel‘s interview of only those witnesses called to his attention was reasonable). Our cases, too, have recognized that a defendant who does not provide any indication to his attorneys of the availability of mitigating evidence may not later assert an ineffective assistance claim. For example, in Byrne, the habeas petitioner complained of his attorneys’ failure to discover evidence of an underlying mental disorder. Assuming for the sake of argument that Byrne in fact suffered from a mental disorder which could have mitigated the death sentence, we held that “Byrne must still demonstrate . . . that his attorneys had some indication that mental impairment might prove a promising line of defense.” 845 F.2d at 513 (citations omitted). But Byrne, like Wiley, “[did] not allege that he intimated to his attorneys that he was suffering from a mental disorder.” Id. Similarly, in James v. Butler, 827 F.2d 1006 (5th Cir. 1987), cert. denied, 486 U.S. 1046 (1988), we rejected an ineffectiveness claim where the petitioner did not alert counsel
This is not a case like Loyd v. Smith, 899 F.2d 1416 (5th Cir. 1990), where, despite the fact that the petitioner had been subject to a sanity examination prior to trial, his lawyers failed to investigate his mental impairments any further prior to the sentencing hearing and failed to obtain an independent psychiatric examination to fill in acknowledged “gaps in the record.” Id. at 1421. Also distinguishable is Wilson v. Butler, 813 F.2d 664 (5th Cir. 1987), cert. denied, 484 U.S. 1079 (1988). There, we held that an evidentiary hearing on an ineffectiveness claim was necessary where the petitioner alleged that his father had alerted defense counsel to the petitioner‘s “problems” dating from childhood. Id. at 669, 671. We found that this information was sufficient to require competent counsel to further investigate the petitioner‘s background. Id. at 671; see also Profitt v. Waldron, 831 F.2d 1245 (5th Cir. 1987) (counsel ineffective where he knew defendant had escaped from a mental institution, but did not determine why defendant had been in the institution).
Franks‘s decision to limit his investigation of potential mitigating evidence to State‘s witnesses is reasonable to the extent it was supported by a reasonable professional judgment about how to conduct the defense. Strickland, 466 U.S. at 690-91. Because nothing alerted Franks to the possibility of mental impairment as a mitigating factor, we find thе decision not to
Wiley asserted in his petition that the prosecutor improperly exercised his peremptory challenges to exclude all but one black from the jury venire, in violation of Batson v. Kentucky, 476 U.S. 79 (1986). He also asserted that the prosecutor violated his due process rights by introducing a materially inaccurate transcript of Wiley‘s confession and twice reading the erroneous language in rebuttal closing argument, and by making improper remarks in the closing argument about the brutality of the murder. Wiley did not object at trial to the peremptory challenges or to the prosecutor‘s closing argument. He did object to the transcript, but did not raise any issue with respect to the transcript on direct appeal. On collateral review, the Mississippi Supreme Court stated that Wiley‘s failure to raise the three issues listed above at trial or on direct appeal rendered the claims “procedurally barred and not subject to further review by this Court, under
The district court found that the Mississippi Supreme Court, the last state court to address Wiley‘s claims, had clearly and expressly relied on a procedural bar erectеd by state law in rejecting these claims. See Harris v. Reed, 489 U.S. 255, 263 (1989). Accordingly, the district court held, Wiley could not obtain federal review of these claims unless he showed “cause” for defaulting them in state court and resulting prejudice. See
A. Batson Claim
Because Wiley‘s conviction had not yet become final at the time Batson was decided, he is not precluded from taking advantage of the decision. See Griffith v. Kentucky, 479 U.S. 314 (1987) (Batson applies retroactively to cases pending on direct review in state courts). However, it is settled in this circuit that a timely objection to the prosecutor‘s peremptory challenges is essential to a Batson claim. Thomas v. Moore, 866 F.2d 803, 805 (5th Cir.), cert. denied, 493 U.S. 840 (1989); Jones v. Butler, 864 F.2d 348, 369 (5th Cir.) (on petition for rehearing), cert. denied, 490 U.S. 1075 (1989); see also Wilkerson v. Collins, 950 F.2d 1054, 1063 (5th Cir. 1992), petition for cert. filed, No. 91-7669 (U.S. March 18, 1992). This is so because of the difficulty inherent in a post hoc
B. Ineffective Assistance of Counsel as Cause on the Batson and Closing Argument Claims
The Supreme Court fleshed out the concept of “cause” for a procedural default in Carrier, holding that cause “must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel‘s efforts to comply with the State‘s procedural rule.” 477 U.S. at 488. Without excluding other possible ways a petitioner could make this showing, the Court noted that a lack of reasonable availability of the factual or legal basis for a claim or the existence of interference by state officials would satisfy the standard. Id. Because the Sixth Amendment prevents states from conducting trials at which defendants receive inadequate legal assistance, the Court held, “[i]neffective assistance of counsel . . . is cause for a procedural default.” Id.; see also Coleman v. Thompson, 111 S. Ct. 2546, 2566 (1991) (ineffective assistance may bе cause when default occurs in proceedings in which petitioner had constitutional right to counsel).15
We can more easily dispose of the argument that ineffective assistance underlies the default of the closing argument claim. The prosecutor referred to the brutality of the murder, undoubtedly focusing the jury on the then-legal “especially heinous, atrocious or cruel” aggravating circumstance. This sort of approach in a closing argument is not by any means an obvious constitutional violation, particularly in light of the evidence adduced at the sentencing trial. See Mattheson v. King, 751 F.2d 1432, 1445-46 (5th Cir. 1985) (prosecutor‘s reference to victim‘s head as having been blown off and into the ceiling did not render trial unfair, in light of evidence at trial), cert. dism‘d, 475 U.S. 1138 (1986). Indeed, the prosecutor‘s closing argument was not nearly as graphic as that in Mattheson, consisting instead of an expression of horror at the nature of the crime and an exhortation to the jury to ensure that Wiley did not kill again.
C. Inconsistency of Mississippi‘s Application of the Procedural Bar
The rule relied on by the Mississippi Supreme Court bars consideration of issues in two circumstances: failure to object at trial and failure to raise the issue on direct appeal.
For two reasons, we do not find Johnson applicable in the present case. First, Johnson has no effect on the consistency of Mississippi‘s application of the contemporaneous objection rule, the rule which bars the Batson and closing argument claims. That
Wiley argues that the admission of evidence about the character and worth of the victim, including his reputation in the community as a generous person and his relationship with his family, violated his right to a fair trial. Wiley repeatedly objected at trial and raised the issue on direct appeal, but the Mississippi Supreme Court rejected his claim. Wiley II, 484 So. 2d at 348. The court refused to consider the claim because of the res judicata principles applicable on collateral review. Wiley III, 517 So. 2d at 1377.
Claims concerning evidence of this sort are now governed by Payne v. Tennessee, --- U.S. ---, 111 S. Ct. 2597 (1991).18 The Court in Payne observed that “[i]n the majority of cases, . . . victim impact evidence serves entirely legitimate purposes.” Thus, “[a] State may legitimately conclude that evidence about
The evidence to which Wiley objects came from Turner‘s wife, Marie. She testified about the places she and her husband had lived in Mississippi, his operation of the store, her assistance in the law enforcement investigation, and Turner‘s character. She agreed that Turner was not a violent or mean person, that he was known in the community as “Mr. Good Buddy,” and that he occasionally loaned small amounts of money. This evidence hardly reaches the “unduly prejudicial” level required under Payne for a constitutional violation. Neither the evidence nor the prosecutor‘s argument in this case comes anywhere near the emotional appeal made by the prosecutor in Payne. See id. at 2603 (reciting testimony and prosecutor‘s closing argument). It is much more like the evidence and argument we found acceptable in Black v. Collins, 962 F.2d 395 (5th Cir. 1992), where there was testimony that the victim “was a hard-working, devoted wife and mother,” and the prosecutor commented on the need of the victim‘s son for counseling. Id. at 408 & n.12. Accordingly, the district court correctly rejected this claim.
VI. PREJUDICIAL PHOTOGRAPHS
The district court refused to grant relief on this claim, holding that “[t]he federal habeas court‘s review of state evidentiary rulings ‘is limited to determining whether a trial judge‘s error is so extreme that it constituted denial of fundamental fairness.‘” (quoting Mattheson, 751 F.2d at 1445; additional citation omitted). We cannot conclude that the photographs were so prejudicial as to render the trial fundamentally unfair. Although in the past we have recognized that photographs of the deceased may be relevant to the “especially heinous, atrocious or cruel” aggravating circumstance, see Hill v. Black, 891 F.2d 89, 92 n.1 (5th Cir. 1989), vacated on other grounds, 111 S. Ct. 28 (1990), invalidation of that factor does not necessarily mean that photographs of the deceased cannot be introduced. They certainly may be unnecessary, particularly in a case like this where guilt is not in issue and all that remains is the fixing of an appropriate sentence, but the question here is fundamental unfairness. The photographs were introduced to corroborate the
VII. CONCLUSION
Now that the U.S. Supreme Court has held that Maynard v. Cartwright and Clemons v. Mississippi apply to defendants whose sentences were decreed by judgments that became final before those decisions were rendered, this case must be returned to the Mississippi courts for a determination of the proper sentence. The Mississippi Supreme Court has indicated that state law bars it from reweighing remaining valid aggravating factors against mitigating evidence, but it has issued no such holding with respect to harmless error analysis. Accordingly, because it is not certain whether Wiley will receive a new sentencing hearing, we have, in the interest of judicial economy, addressed the constitutional claims arising out of his 1984 sentencing trial. We reject these claims for the reasons set forth above.
The judgment of the district court is VACATED insofar as it holds that there was no constitutional error in the jury‘s use of the “especially heinous, atrocious or cruel” aggravating circumstance. The case is REMANDED to the district court with instructions to issue the writ of habeas corpus unless the State of Mississippi initiates appropriate proceedings in state court within a reasonable time after the issuance of our mandate. In all other respects, the judgment of the district court is AFFIRMED.