Winford Stokes v. William Armontrout
901 F.2d 1460
8th Cir.
1990
Check Treatment

*1 majority of the lack of But v. denied reason United States F.2d at cf. (11th Hairston, voting 1352-53 judges 888 F.2d rehear the case en active positions of circuits on 1989) (reviewing Judge Lay dissents from the denial banc. necessary are un findings of fact rehearing en In petition for banc. adopting position “middle” der VWPA with the direction contained in accordance findings make court that district opinion, stay of execution pro not does otherwise fact record previously in effect dissolved. review). for adequate basis vide rehearing petition for is also denied. sentencing court should particular, the In abili the defendant’s finding about make a LAY, Judge, dissenting. order, Chief any especially restitution pay case, the when, present defendant dissent from the denial of sentencing. time of See indigent petition rehearing en banc. Mitchell, 893 F.2d at 936 United States Winford Stokes has been sentenced to finding as to defendant’s (remanding for sen death. He now asserts that his death restitution amount within pay ability tence deficient. This time); see also United specified period petition court earlier denied an habeas Mahoney, States relief, ten grounds which Stokes raised (defendant Cir.1988) must have “at least a none of which included the one asserted ordered). hope” paying restitution Armontrout, here. 851 F.2d Accordingly, the restitution order is va- — Cir.1988), denied, cert. the case remanded to dis- cated and -, (1989). proceedings consist- trict for further court petition In this successive Stokes seeks to opinion. ent with set sentence aside be given

cause the instruction at the sen tencing phase trial consti of his state tutionally principles defective under the v. Maryland, enunciated Mills (1988). 100 L.Ed.2d capital punish Mills held required unanimity ment statute STOKES, Appellant, Winford on the existence of circumstanc preclude imposition of es which would ARMONTROUT, Appellee. William possibility miti risked gating evidence was not considered: “[A] Court of States

United unanimously agree does not any mitigating the existence of circum give mitigating evidence April whatsoever, and must effect LAY, Judge, Chief Before the sentence of death.” McMILLIAN, ARNOLD, JOHN R. FAGG, BOWMAN, GIBSON, “height this result BEAM, WOLLMAN, MAGILL arbitrariness.” S.Ct. at Judges. Circuit 1865. The recent decision of Carolina, North DENYING PETITION FOR ORDER (1990), setting aside AND REHEARING SUGGESTION penalty under a North Carolina EN BANC. FOR REHEARING miti requiring jury circumstances, princi gating reinforces the suggestion rehearing en banc ples in Mills. the court and is announced been considered *2 exposed stitutionally to deficient instruction be- # in 21: cause he failed to raise in challenge state court. believes Stokes’ aggravat- you If decide that a sufficient Mills challenge is not new or novel so as to ing or exist circumstance circumstances excuse Stokes’ default because imposition to warrant of back in 1978 under the rule in it Instruction No. will submitted Ohio, announced in Lockett v. 438 U.S. your duty then become to determine 98 S.Ct. (1978), L.Ed.2d 973 mitigating a sufficient circum- whether juries must be allowed to consider all miti- or circumstances exist which out- gating evidence. I think the issue of novel- weigh or circumstance ty easily However, not so resolved.2 so found In de- circumstances to exist. dissent, purposes of I quarrel will not question ciding you may finding.3 with this relating of the evidence to the murder of Assuming R. Pamela Benda. correct Stokes’ claim is not lawyer novel and that a may You also consider the mur- whether had the tools back 1978 to an make such der of Pamela R. Benda was committed (a objection highly unlikely I assumption while the defendant was under influ- submit) then Stokes should extreme ence of mental or emotional dis- nonetheless be able to raise the turbance. “miscarriage as a under Mur- justice” may also You Carrier, ray you which find from the in ex- evidence (1986), mitigation punishment. tenuation or Murray, Smith v. 527, 537-38, 477 U.S. you unanimously If a suffi- decide that 106 S.Ct. cient circumstance or circum- (1986) (manifest miscarriage outweigh aggra- stances exist which trial). sentencing phase of The “miscar- vating circumstance or circumstances riage justice” rule considers by you exist, to you found then refusal to review habeas a a fixing pun- return verdict defaulted claim “carries with it the risk imprisonment by ishment at for life Smith, a justice.” eligibility Division Corrections without submit probation parole he until applicable that this rule is to Stokes’ claim fifty years served minimum of of his of an sentencing determi- sentence.1 hardly nation. The panel has now decided that error, devoid of constitutional and that con- barred under Sykes, pen- stitutional error undermined the alty If determination. the constitutional (1977) raising challenge in Mills recognized from to this con- error authorizing penal- being presented, speak 1. Missouri’s dence from but do not may guide considering under Stokes was sentenced does not how the state requirement, weighing simple the stat- while that evidence. “There is a challenged logical govern utes in Mills and included between rules difference requirement. Compare permitted that 27, Md.Ann.Code Art. what must be to con- 413(i) (1988); decision, making sentencing § N.C.Gen.Stat. 15A-2000 sider (Vernon govern may guide with Mo.Ann.Stat. § 565.012 rules that how the state 1979). considering weighing the Mills out "it those factors at-, reaching is not relevant whether the barrier the sen- a decision.” Id. original). (emphasis tencer's consideration of all evidence statute, court, by sentencing interposed evidentiary ruling.” new, providing 3. If thus issue "cause” (citations omitted). at 1866 Wainwright, under consideration of the claim barred an still be under the - —— Parks, Lane, Teague Court in nounced in Saffle U.S. -, (1990) that new progeny applied retroactively Lockett and its be held rules should not at -, cannot bar that a state relevant collateral review. Id. 109 S.Ct. at 1075. arbitrariness,” panel’s substitution accept then is a viola-

“height of amendment, and if the jury. that of If of its tion “miscarriage justice” has phraseology submitted, up it is mitigating evidence is law then it should under the any meaning jury to whether that evi determine *3 Adams, 489 Dugger v. apply here. mitigates penalty. dence the death The Cf. 1211, 6, 1217 n. 103 401, S.Ct. 109 U.S. rule, however, impo “the allows (1989) (declining to the apply capital the punishment sition of basis miscarriage justice rule where arbitrary unpredictable in ‘an and ‘caprice’ the misinformed judge’s instructions the ‘arbitrary’ through or ‘freakish’ fashion’ review).4 appellate Un- role of jury of the (Kenne 110 S.Ct. at 1239 McKoy, means.” procedural the bar these circumstances der J., (citing Ly dy, concurring) v. Franklin apply. should not 2320, naugh, 487 U.S. concern, well aware of panel The (1988); 2331, California if the that even reasons but Brown, 107 U.S. S.Ct. by Murray mis is defeated default bar (1987)). 838, 93 L.Ed.2d 934 Where the rule, Stokes still cannot carriage penalty imposed an unac death The reasons: “In our be successful. to erroneous instruc ceptable manner due penalty death would tions, properly in I cannot assume jury ‘even if had been assessed been reach the same result.5 would petitioner the terms now ” right place This court has no itself in required by Mills.’ claims are reject mitigat- the role of the and Armontrout, 893 F.2d ing evidence not credible or not relevant. 1989) Armontrout, 888 (citing Smith v. Oklahoma, Eddings v. Cf. Cir.1989)). agree with this. ratio- (1982)(mitigating even if evidence relevant conclusion is stated nale for this conduct). it does not excuse panel’s opinion: of the preceding portion speculates that the not to offer counsel chose Stokes’s penalty if it have found had during mitigating evidence either speculation been instructed. Such phase phase penalty guilt belong in the law and does not obviates (The clearly former decision trial. procedural error which complete-innocence de- line with Stokes’s height of arbitrariness. fense.) reviewing the whole trial After the choice is between life and “When that the transcript, we conclude imposed risk the death th[e] [that mitigating circumstance to only one spite allow a lesser factors brutal acts: a weigh against Stokes’s incompatible penalty] unacceptable instruction about court-initiated Stokes’ Eighth commands mental or emotional possibly disturbed Lockett, Fourteenth Amendments.” 21; No. Mo. state. See 605, 98 at U.S. at S.Ct. 2965. Rev.St. 565.012.3. Dugger apply attempt salvage that had Although court declined to 4. justice principle, reserving its aggravating questioned of an invalid because "extraordinary” conclusion, use supported factor. The Court its qualification. Dugger narrow meets this part, appellate by pointing out that courts rou- majority rejected the idea that tinely engage reweighing to determine wheth- simply because supports the er the evidence verdict. situ- not the was undermined. at This assumes that the sentencing process was not Stokes' ation here. evidence, ag- all the both was able undermined, just defi- gravating mitigating, to at a arrive cient, violates amendment. problem sentence. The with Milk instruction very did that the serious risk Mississippi, 5. In Clemons evidence because it unanimously agree on the existence of reweigh could not could Court held that an in an factors. A man’s life is stake. His sentence greatest scrutiny, America,

deserves the to ensure Appellee, UNITED STATES imposed was not despite calling for a lesser KRISTIANSEN, Kolby Appellant. 1866-67. This court’s review must adhere to the established in standard Rose United States Court of Clark, that constitutional er- Submitted Feb. involving jury

rors require instructions *4 remand error was be- unless the harmless April 25, Decided yond a doubt. reasonable panel’s abrupt S.Ct. at 3107-08. conclusion that have would not

acted in- differently ignores this standard. This result particularly in a egregious out court:

“No one on this was a Court member Ralph Mills, that sentenced or of

similarly jury in Maryland. We say any degree

cannot of confidence interpretation re- [of * * * . quirement] jury accepted. Mills’

Evolving decency standards societal

have imposed correspondingly re- high

quirement reliability on the determina- appropriate

tion that death is the particular case.” Id.

at 1870. places Stokes in

catch-22. He cannot raise the issue be-

cause he is barred —but says he could the jurors twelve rejected

dence. I know of no rule of law speculation.

allows such Certainly, this

type reasoning is not warranted case. issue;

The writ corpus of habeas should

Stokes is to a new entitled trial on the

sentencing phase of the case.