IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 91-1940

(Summary Calendar)

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MACK ARTHUR KING

Petitioner-Appellant,

versus S.W. PUCKETT, Superintendent,

Mississippi State Penitentiary,

and MIKE MOORE, Attorney General,

State of Mississippi,

Respondents-Appellees.

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Appeal from the United States District Court

for the Northern District of Mississippi

_________________________________________________

(August 25, 1993)

BEFORE JONES, DUHÉ, and WIENER, Circuit Judges.

WIENER, Circuit Judge.

In this petition for a writ of habeas corpus, PetitionerAppellant Mack Arthur King appeals the district court's denial of

his petition, challenging, inter alia, the constitutionality of the

jury instruction, which info rmed the jury S Q without limiting

instruction SQ that the "especially heinous, atrocious or cruel"

nature of the murder was an aggravating factor for consideration in

determining whether the death penalty should be imposed. Based on

subsequent jurisprudential developments which clearly state that

suc h an unlimited instruction is unconstitutional and may be

challenged notwithstanding a defendant's failure to object at trial2

or on direct appeal, we remand to the district court with

directions to issue the writ of habeas corpus within a reasonable

time unless the state initiates appropriate proceedings.

I

FACTS AND PROCEEDINGS

In the morning of August 3rd, 1980, Mrs. Lelia Patterson, an

84 year old widow, was discovered dead in her bathtub. An autopsy

revealed that Mrs. Pat terson had been struck on the head,

strangled, and drowned. The pathologist could not determine the

precise sequence of these events, and he testified that death could

be attributed either to the blow, the strangulation, or the

drowning. Finger and palm prints found on file folders located in

the house led the police to suspect King.

A search of King's residence uncovered articles belonging to

Mrs. Patterson. In a subsequent search, the police discovered

blood-spattered pants, which, according to King's girlfriend, King

w as wearing on August 2nd and 3rd and which he washed himself,

refusing to let his girlfriend wash them as was customary. Testing

disclosed that the blood on the pants was human, although the blood

type was indeterminable.

In his first statement to the police, King denied that he had

been at the house on the day of the murder. After police

confronted him with the stolen items, he admitted that he had

burglarized the home on August 2nd. He denied, however, any

involvement in the murder. Rather, he stated that he was

accompanied by Willie Porter, his uncle, who remained outside while3

King burglarized the home. King claimed that, as he was leaving,

he saw Porter, who had been drinking, enter Mrs. Patterson's home.

King was charged with capital murder, and Joe O. Sams, Jr.,

who had represented King in an earlier burglary charge, was

appointed to represent him. Sams was assisted by a recent law

school graduate Thomas L. Kesler and a legal intern, Tammy Lynn

Woolbright. Kesler interviewed King on two occasions prior to

trial. He determined that King was "slow" and "dull-witted."

Based on this determination, as well as Sam's prior experience with

King, Sam filed a motion with the trial court seeking a mental

examination for King. The court granted the motion, committing

King for a mental examination to determine: (1) his level of

intelligence; (2) his ability to comprehend the gravity of the

charges; (3) his ability to assist in his defense; (4) the standard

of conduct that King would likely exhibit during trial; and (5) his

competency to stand trial.

The state hospital examined King and the staff announced in a

one paragraph report "that the patient was without psychosis,

competent to stand trial and responsible for his actions at the

time of the alleged crime." No finding on the other points was

made, and none was requested either by King's attorneys or the

court.

Despite King's protestations of innocence, he was convicted of

capital murder. During the trial, his attorneys did not present

any witnesses, relying solely on the cross-examination of the

state's witnesses. King did not testify. On appeal, his attorneys1 King v. State , 421 So. 2d 1009 (Miss. 1982), cert. denied

,

461 U.S. 919 (1983).

2 King v. Thigpen , 441 So. 2d 1365 (Miss. 1983).

4 emphasize that King, "then a 21-year old black man, was tried for

t he murder of a white woman before an all-white jury, a white

judge, and a white prosecutor."

After King's convicti on, the court instructed the jury to

weigh the agg ravating factors against the mitigating factors

presented in determining whether the death penalty sh ould be

imposed. The jury considered two aggravating factors: that the

murder was committed in the course of a felony and that the murder

was committed in an "especially heinous, atrocious or cruel

manner." No mitigating factors were presented. Within a short

period, the jury returned a sentence of death.

King's conviction and sentence were affirmed by the

Mississippi Supreme Court. 1 Likewise, his motion for postconviction relief, then known as a petition for writ of error coram

nobis, was denied without prejudice. 2 The supreme court ruled that

certain of his claims were procedurally barred because they had not

been raised on direct appeal. Included among these claims was a

constitutional challenge to the "especially heinous, atrocious or

cruel" aggravating factor.

King was allowed, however, to refile his request regarding his

claim of ineffective assistance of counsel. Acting on this second

petition, the supreme court ordered an evidentiary hearing for the

ineffective assistance of counsel claim. Attorney Sams explained3 969 F.2d 86 (5th Cir. 1992).

4 970 F.2d 1383 (5th Cir. 1992).

5 See Maynard v. Cartwright , 486 U.S. 356 (1988).

5 that his decisions not to present character witnesses and not to

follow up on evidence of King's diminish ed mental capacity were

tactical. The state circuit court conducted the hearing and

concluded that "counsel's representation during the sentencing

phase of the trial was competent."

King next sought relief in federal district court on a

petition for a writ of habeas corpus. The district court reviewed

the ineffective assistance of counsel claim, concludi ng that the

alleged deficiencies were tactical decisions. Important for this

appeal, however, the dist rict court determined, as did the

Mississip pi Supreme Court, that most of King's claims were

procedurally barred because he had not raised them at trial or on

appeal.

II

ANALYSIS

A. Constitutional Challenge

Our review of King's constitu tional challenge is guided by

th is court's recent decisions in W iley v. Puckett 3 and Smith v.

Black

. 4 In W iley

, we recognized the unconstitutionality of the

"especially heinous, atrocious or cruel" aggravating circumstances

when given without a limiting instruction, 5 and addressed the issue

whether the state court had cured the constitutional infirmity.6 See Clemons v. Mississippi , 494 U.S. 738 (1990).

7 Wiley , 969 F.2d at 91.

8 Smith ,970 F.2d at 1386 (Quoting Hathorn v. Lovorn , 457

U.S. 255, 262-63 (1982)(citation omitted)).

6 Again based on Supreme Court precedent, 6 we set forth the manner in

which "an appellate court cou ld salvage a death sentence." 7 The

appellate court could (1) "reweigh" the mitigating and aggravating

factors or (2) conduct a harmless error analysis by asking whether,

beyond a reasonable doubt, the death sentence would have been

imposed had the aggravating factor been properly defined in the

jury instruction. In Wiley , however, we concluded that the state

s upreme court, by applying a narrowing construction to th e

"especially heinous" circumstance, had failed to do either.

S ubsequently ,in Smith

, we addressed the question w hether

Mississippi c ould raise a procedural bar to a constitutional

challenge to the "especially heinous" instruction based on the

petitioners failure to object at trial and to preserve the issue on

appeal. We ruled that Mississippi could not rely on either the

contemporaneous objection bar or the direct appeal bar as neither

had been applied to cases consistently. Consequently, we relied on

the venerable maxim that "[a] state procedural rule will not

function as an adequate and independent state ground supporting the

judgment if it is not `strictly or regularly followed.'" 8

The application of Wiley and Smith to the instant case

dictates a remand to the district court with directions to issue

the writ of habeas corpus unless the State of Mississippi initiates7

appropriate proceedings in a state court within a reasonable time

after the iss uance of our mandate. The "especially heinous"

aggravating circumstance instruction is unconstitutionally broad

when given without a limiting instruction, as was the case here.

Moreover, the state court cannot bar King's claim by virtue of his

failure to object at trial or raise the issue on appeal. As the

supreme court applied such a bar, it is clear that it neither

reweighed the aggravating and mitigating factors nor conducted a

harmless error analysis. Consequently, it has not cured the

constitutional infirmity of the "especially heinous" instruction.

Given the state's options, it is conceiv able that King will

not r eceive a new sentencing procedure; therefore, the errors he

alleges in that proceeding would continue to affect his sentence.

Consequently, we review the remaining issues raised by King, some

of which the district court considered despite the procedural bar.

A review of the briefs and records convinces us that we can add

little to the thorough and well-reasoned opinion of the d istrict

court. Accordingly, we deal only briefly with each issue.

B. Ineffective Assistance of Counsel

King raises two related ineffective assistance issues: (1) he

received ineffective assistance of counsel because hi s trial

counsel failed to i nvestigate and present readily available

mitigating ev idence of character and low intelligence at the

sentencing phase; and (2) whether the federal district court should

have conducted an evidentiary hearing when c o nsidering King's

ineffective assistance claim based on the state court's failure to9 Stringer v. Jackson , 862 F.2d 1108, 1116 (5th Cir. 1988).

10 466 U.S. 668 (1984).

11 Strickland v. Washington , 466 U.S. 668 (1984).

8 make specific factual and credibility determinations. We address

each in turn.

1. Mitigating Evidence

As th e district court notes, failure to proffer mitigating

evidence at the sentencing phase is not per se ineffective

assistance of counsel, and we have "often upheld decisions not to

put on mitigating evidence wh[en] the decision resulted from a

strategic choice." 9 Under Strickland v. Washington

, 10 the important

inquiry is whether the decision not to offer the evidence was

r easonable in all the circumstances, and, if an err or was

committed, that it affected the outcome of the trial. 11

We agree with the district court that the superficial

investigation and decision not to offer w itnesses was reasonable

under the circumstances. Sams, who had represented King in a prior

burglary charge, kne w from previous investigation that King's

reputation in the community was exceedingly poor. Moreover, Sams

knew that Porter, the man King accused of the crime, was also his

uncle. He assumed, reasonably, that this would cause tension

w ithin the family. Even if family members had been presented to

testify that King had never been violent before and that Porter was

a bad influence, this testimony would have opened the door to

rebuttal testimony regarding King's poor reputation.

We are more troubled, however, by Sams failure to follow up on9

his own motion seeking an evaluation of King's mental capacity.

Indeed, Sams himself doubted King's intellectual capacity, yet when

the state hosp ital failed to provide the information, expressly

directed by the court's order, Sams did nothing. According to

King, the evidence of his diminished mental capacity caused him to

have difficulty in controlling his instinctive respon ses, to

misperceive events, and to react in relatively unpredictable ways.

This, he insists, is mitigating evidence.

At the coram nobis hearing, Sams justified his failure to seek

additional information regarding King's intellectual capacity on

two grounds: (1) he did not think that King was significantly

impaired; and (2) historically jurors in the county did not excuse

a person because of diminished mental capacity. But, Sams' own

request for the evaluation belies these statements. If, as Sams

testified, King's lack of intelligence would have no effect on his

trial, why did Sams request the evaluation?

Notwithstanding the apparent contradiction between Sam's

request for a mental evaluation and his failure to follow up on it,

we need not de cide whether this omission was professionally

unreasonable under Strick land , for in any event counsel's

ineffective assistance must also affect the outcome of the trial or

sentencing. In the instant case, we cannot conclude that the

failure to offer mitigating evidence in the form of King's

diminished mental capacity affected the outcome of his sentencing.

Even with such mitigating factors, the jury had two aggravating

factors weighing in favor of the death penalty. Although we now12 Wiley , 969 F.2d at 94.

13 Hill v. Lockhart , 474 U.S. 52 (1985).

10 know that, absent a limiting instruction, the "especially heinous"

aggravating circumstance instruction is unconstitutionally

overbroad, the question under Strickland ' s prejudice prong is

whether the ineffective actions of counsel affected the outcome of

the trial. The answer here is no.

Yet, if we were to e liminate the "especially heinous"

circumstance and reweigh the factors, as the Mississippi supreme

court may choose to do S Q and as would (or could) be do ne in a new

sentencing trial SQ

, then King would have a more compelling argument

t hat his counsel's failure to present mitigating evidence at the

sentencing phase affected the out come of his sentence. Although

Mississippi is not constitutionally required to conduct a new

sentencing hearing, 12 we suggest that the option of holding such a

hearing be gi ven serious consideration on remand. in the instant

case.

2. Evidentiary Hearing

King also claims that the district court erred in failing to

hold an evidentiary hearing on his claim of ineffective assistance,

as the state court failed in its coram nobis proceeding to make any

relevant factual determinations. This claim is without merit. It

is well established that no hearing is required when the habeas

petitioner fails to allege the type of prejudice necessary to

satisfy that prong of Strickland

. 13 Moreover, we will not remand

a case for an evidentiary hearing when the district c ourt, as it14 Williams v. Blackburn , 649 F.2d 1019 (5th Cir. 1981).

15 Wiley v. State , 484 So. 2d 339 (Miss.), cert denied , 479

U.S. 906 (1986).

16 Hansen v. State , 592 So. 2d 114, 150 (Miss. 1991).

11 did here, has made a full review and search of the complete record

and no additi onal evidentiary development is necessary on an

issue. 14

C. Jury Instruction

In a d dition to his successful claim regarding the

unconstitutionality of the "especially heinous" instruction, King

argues that the court erred in refusing to instruct the jury that,

even if the aggravating factors outweighed the mitigating factors,

the jury could impose a life sentence. Although King concedes, as

he must, that such an instruction is not required and failure to

give the instruction is not reversible error, 1 5 he nonetheless

challenges the instruction on equal protection ground s. His

arg ument on this point is vague, stating simply that "[o]ther

capital defendants convicted in Mississippi have been afforded the

benefit of the `life option' instruction or its equivalent. . . .

King was not."

King, however, misapprehends the decisions of the Mississippi

supreme court, which has consistently stated that no such

instruction is required. Thus, refusal to grant such an

instruction is not reversible error. Moreover, the court views the

granting of a "life option" instruction as harmless error because

it favors the defendant. 1 6 Consequently, King is not entitled to12

such an instruction (which he did not request), and the court's

failure to inform the jury of the "life option" was neither

reversible error nor an equal protection violation.

D. Prosecutorial Misconduct

King insists that the prosecutor's closing argument during the

sentencing p hase was replete with improper and inflammatory

remarks. He cites the following four statements:

1. And I deal with criminal cases every week, ladies and

gentlemen, and I might submit to you that I don't ask for

the death penalty in every case because they may not

warrant it, but this case I'm ask ing for the death

penalty because it was senseless.

2. Can you imagine what Mrs. Patterson was thinking when

that man had her around the neck and she was screaming,

"help," and I'm talking for Mrs. Patterson now, and I am asking you to help Mrs. Patterson, and I will ask you

ladies and gent lemen to write down as the second

aggravating circumstances

. . . "the crime was committed

in an especially heinous, cruel and atrocious manner.

3. The second reason [for imposing the death sentence],

I don't know if it is not more important than the first.

It's a deterrent to others to commit the same kind of

crime. It will tell you, ladies and gentlemen, and

you're going to speak out to all the potential murderers

and other citizens and other criminals in this country.

[T]he death penalty is a deterrent to other people, and

it will tell those people that if you commit the crime

that you could be subjected to the death penalty. . . .

So we got two things here,

. . . and I want this country

to know that we're not going to tolerate.

4. [T]he black minister, you reme mber I asked him,

"you're a minister, do y ou have any religious beliefs

against the death penalty?" And he said, "can I explain

it?" He says, "I looked in the book and it says, `he who

kills shall be killed.'"

King argues, that t aken together, these improper comments were

"calculated to incite an unreasonable and retaliatory sentencing

decision, rather than a decision based on a reasoned moral response17 Lesko v. Lehman , 925 F.2d 1527 (3d Cir.) cert. denied

,

112 S.Ct 273 (1991).

13 to the evidence" 17 and denied King a fundamentally fair sentencing

proceeding.

We again agree with the district court's conclusion that these

statements, viewed as a whole, di d not render the sentencing

fundamentally unfair. Rather, the statements were not persistent

nor pronounced and do not reach the level of error required for

reversal. Moreover, the jury had been informed that it was the

sole judge of the facts and that arguments, statements, and remarks

of counsel having no basis in the evidence should be disregarded.

E. Inadequate Appellate Review

King argues that the Mississippi supreme court was unable to

review his appeal meaningfully due to the absence of a complete

transcript and a complete report from the trial court, as required

by law. We adopt the district court's discussion on this point and

conclude that no error of constitutional magnitude occurred.

F. Racial Discrimination

Finally, King raises a claim that the Mississippi death

penalty is applied in a racially discriminatory manner. In an

effort to support his claim, King prese nts statistical evidence

discussing the increased likelihood t hat a black male accused of

killing a white victim will receive the death pena lty. He also

empha sizes the prosecutor's remarks about the "black minister"

during closing arguments (which King claims is a thinly veiled

racial remark) and the prosecutors use of peremptory challenges to18 481 U.S. 279 (1987).

19 380 U.S. 202 (1965).

14 remove black jurors from the venire.

The district court held that this evi dence insufficient to

e stablish racial discrimination in sentencing. First, the court

noted that in McCleskey v. Kemp 18 the Supreme Court had held

statistical evidence like King's insufficient. Second, the court

ruled that King's other evidence was "an opportunity to repeat

other grounds raised in the petition." King argues that the

evidence concerning prosecutorial conduct during his sentencing

proceeding is sufficient under McCleskey to prove that the

decisionmakers in his case acted with discriminatory purpose. We

disagree.

First, we cannot agree that the prosecutor's reference to the

"black minister" on venire is a racial remark. If anything, it is

an attempted religious endorsement of the death penalty. Second,

King's allegations concerni ng the jury makeup are vague and

inconclusive. Based on the record before it, the district court

found that there was no practice of excluding black jurors under

the standard of Swain v. Alabama , the case applicable at the time

o f King's sentencing. 1 9 The district court found, and we agree,

that King's allegations fall far short of demonstrati ng racial

discrimination in the Mississippi sentencing scheme.

III

CONCLUSION

In his petition for habeas corpus, King alleges several errors15

in his sentencing proceeding. Although we conclude that most of

his allegations are without merit, we ho ld that the "especially

heinous" aggravating factor, given without limiting instructions,

was unconstitutional. Consequently, we remand to the district

court to issue the habeas writ unless the state initiates the

appropriate proceedings. While acknowledging that we are without

authority to order a new sentencing hearing, we recommend that the

holding of such a proceeding be given serious consideration in this

case, given the failure of King's counsel to pu rsue potentially

mitigating evidence. All other claims raised by King, however, are

without merit.

REVERSED and REMANDED.