1 Chief Judge Clark participated in the hearing of this

appeal, but resigned from the court on January 15, 1992. Judge

Carolyn Dineen King was substituted on the panel.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 90-1599

_____________________

WILLIAM L. WILEY,

Petitioner-Appellant,

v.

STEVE W. PUCKETT, Superintendent,

Mississippi State Penitentiary, and

MIKE MOORE, Attorney General,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

_________________________________________________________________

(July 20, 1992)

Before POLITZ, Chief Judge, KING and GARWOOD, Circuit Judges.

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
2

until the Supreme Court determined whether Clemons v.

Mississippi, 494 U.S. 738 (1990), the case upon which the

aggravating circumstance claim was founded, could be applied

retroactively to persons such as Wiley whose death sentences

became final before that decision was issued. The Court has now

decided in Stringer v. Black, 112 S. Ct. 1130 (1992), that

Clemons did not announce a new rule for purposes of Teague v.

Lane, 489 U.S. 288 (1989), and so may be applied retroactively. 

After receiving supplemental briefing on the effect of Stringer,

we are prepared to rule on all of Wiley's claims.

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.
 

2 We will describe more fully the district court's holdings

in our discussion of those claims presented on appeal.

3

2d 756 (Miss. 1984). The second sentencing hearing resulted in a

second death sentence. This time the Mississippi Supreme Court

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

479 U.S. 906 (1986) (Wiley II). Wiley then sought postconviction relief under the Mississippi Uniform Post-Conviction

Collateral Relief Act, Miss. Code Ann. § 99-39-1 et seq. (Supp.

1991). The Mississippi Supreme Court again denied relief. Wiley

v. State, 517 So. 2d 1373 (Miss. 1987), cert. denied, 486 U.S.

1036 (1988) (Wiley III). The court refused to hear eight of

Wiley's claims because they had already been litigated on direct

appeal and were thus res judicata under state law. Id. at 1377. 

The court refused to hear an additional eight claims on the

ground that they had not been raised at trial or on direct appeal

and were therefore procedurally barred. Id. at 1378. On the

only claims open for review, the court held that Wiley had not

been deprived of effective assistance of counsel at the trial or

sentencing. Id. at 1382-83.

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.
4

Wiley asks us to review the following issues, all of which

relate to the second sentencing hearing:

1. 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.

2. 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.

3. Whether the prosecution's exclusion of all but one black

juror from the sentencing jury violated Batson v. Kentucky,

476 U.S. 79 (1986).

4. Whether the prosecutor improperly referred to the

character of the victim.

5. Whether several statements made by the prosecutor

deprived Wiley of a fair trial.

6. 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. Miss. Code Ann. § 99-19-

101 (Supp. 1991). Mississippi is, therefore, what has been

termed a "weighing" state. Stringer, 112 S. Ct. at 1136. At

Wiley's sentencing, the trial judge instructed the jury, over

Wiley's objection, that it could consider four aggravating

circumstances. These were (1) whether the capital offense was
5

committed during the commission of an attempt to commit the crime

of robbery; (2) whether the capital offense was committed for

pecuniary gain; (3) whether the capital offense was especially

heinous, atrocious or cruel; and (4) whether the defendant was

previously convicted of a felony involving the use or threat of

violence to the person. Wiley II, 484 So. 2d at 350. In a

written verdict, the jury stated that it found the first three

aggravating circumstances. The jury further stated that the

mitigating evidence did not outweigh the aggravating

circumstances, and accordingly sentenced Wiley to death. Wiley

II, 484 So. 2d at 342. Wiley objects that his death sentence is

invalid under the Eighth Amendment for two reasons: the

"especially heinous" aggravating circumstances was too vague and

imprecise to channel the sentencer's discretion, and the robbery

and pecuniary gain circumstances were duplicative.

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
6

aggravating circumstance when reviewing the defendant's death

sentence. The Oklahoma court's mere conclusion that the evidence

supported the jury's finding of the aggravating circumstance was,

in the view of the Supreme Court, insufficient to "cure the

constitutional infirmity of the aggravating circumstance." Id.

Maynard was based in large part on Godfrey v. Georgia, 446 U.S.

420 (1980), in which the Court had identified similar flaws in

Georgia's use of the aggravating circumstance that the murder

"was outrageously or wantonly vile, horrible or inhuman in that

it involved torture, depravity of mind, or an aggravated battery

to the victim." Id. at 422. As in Maynard, the jury in Godfrey

had been instructed only in the bare words of the statute and the

state supreme court failed to apply a limiting construction to

the aggravating circumstance when reviewing the death sentence. 

See Godfrey, 446 U.S. at 428-29.

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
 

3 This conclusion rested in large part on Cabana v.

Bullock, 474 U.S. 376 (1986), in which the Court had held that an

appellate court can make the findings of intent to kill required

under Enmund v. Florida, 458 U.S. 782 (1982), for the imposition

of a death sentence. The Court also rejected the subsidiary

argument that, because Mississippi law permits only a jury to

impose a death sentence, allowing the appellate court to do so

would transgress a liberty interest in having a jury make all

determinations relevant to the sentence. Clemons, 494 U.S. at

746-47.

7

that this amounted to constitutional error. See Stringer, 112 S.

Ct. at 1139; Clemons, 494 U.S. at 756 n.1 (Blackmun, J.,

concurring in part and dissenting in part). The questions in

Clemons were whether the Sixth and Eighth Amendments barred the

state appellate court from upholding the death sentence despite

the jury's use of a vague aggravating factor and whether, if an

appellate court could do so, the Mississippi Supreme Court had

conducted the proper analysis of Clemons's sentence.

The Court first concluded in Clemons that nothing in the

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
 

4 Making Enmund findings is a prime example of appellate

courts' involvement in the review of capital sentences.

8

sentences4 and concluded that appellate courts were capable of

giving defendants the "individualized and reliable sentencing

determination" demanded by the Eighth Amendment. Id. at 748-49.

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 the 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
9

approval of appellate courts' application of a proper limiting

construction to an aggravating circumstance that has been vaguely

defined by statute. See Proffitt v. Florida, 428 U.S. 242, 255-

56 (1976) (opinion of Stewart, Powell & Stevens, JJ.) (approving

Florida death penalty statute in part because state supreme court

adopted limiting construction of "especially heinous" factor).

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 Court 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, --- U.S. ---, 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
 

5 To the extent the district court held that the death

sentence could automatically be affirmed so long as valid

aggravating factors remained, this conclusion was erroneous in

light of Clemons.

10

whether the Mississippi Supreme Court articulated any

constitutionally permissible basis for upholding the death

sentence.5 We agree with Wiley that the Mississippi Supreme

Court neither eliminated the "especially heinous" factor from the

mix and reweighed the remaining aggravating circumstances against

the mitigating evidence, nor engaged in any of the forms of

harmless error analysis sanctioned in Clemons. Rather, the

court, after reciting the limiting construction it had previously

adopted for the "especially heinous" factor, merely held that the

evidence supported the factor as narrowed. Wiley II, 484 So. 2d

at 353-54. That it did not reweigh or perform harmless error

analysis is not surprising. Its decision was rendered in 1986,

two years before Maynard, and at that time the Mississippi

Supreme Court did not find any constitutional infirmity in

submitting the "especially heinous" factor to the jury without a

limiting instruction. Thus, the court had no need to eliminate

an improperly defined factor and reweigh or perform harmless

error analysis. Compare Clemons v. State, 535 So. 2d 1354 (Miss.

1988) (post-Maynard decision in which court recognized difficulty

with "especially heinous" factor), vacated and remanded, 494 U.S.

738 (1990). Wiley thus argues that, as in Clemons, the case must

go back to the Mississippi Supreme Court.
11

We cannot agree with the State's contention that the

Mississippi Supreme Court cured the sentencing error when it

applied its narrowing construction to the "especially heinous"

circumstance and found that the evidence supported the finding of

the circumstance as narrowed. Without a doubt, the Supreme Court

has consistently held that the use of a vague aggravating

circumstance poses no Eighth Amendment problem so long as the

state appellate courts apply a proper narrowing construction. 

See Gregg v. Georgia, 428 U.S. 153, 201 (1976) (joint opinion)

(Georgia's "outrageously vile" circumstance not vague so long as

state supreme court applies limiting construction); Proffitt, 428

U.S. at 255 (Florida's "especially heinous" circumstance upheld

because state supreme court had already adopted limiting

construction); Walton v. Arizona, --- U.S. ---, 110 S. Ct. 3047,

3058 (1990) (death sentence upheld where state supreme court

applied proper narrowing construction to "especially heinous,

cruel or depraved" factor); Lewis v. Jeffers, --- U.S. ---, 110

S. Ct. 3092, 3100 (1990) (same). Cf. Godfrey, 446 U.S. at 432-33

(striking down death sentence where "outrageously vile"

circumstance was used because Georgia Supreme Court failed to

apply limiting construction); Maynard, 486 U.S. at 363-64

(Oklahoma Court of Criminal Appeals' failure to apply a limiting

construction to Oklahoma's "especially heinous" factor rendered

death sentence infirm). But after Clemons and Stringer, it is

clear that an appellate court must do more than simply find that

the aggravating circumstance as limited is supported by the
 

6 Of course, the appellate court may reweigh by eliminating

the aggravating factor altogether, and it also may perform

harmless error analysis by asking whether, beyond a reasonable

doubt, the death sentence would have been imposed had the vague

aggravating factor never been submitted to the jury. The options

discussed in the text describe the courses an appellate court may

follow if it decides to incorporate the aggravating factor as

limited.

12

evidence. Rather, once it makes this finding, the appellate

court must either perform the weighing function by incorporating

in the mix the aggravating circumstance as limited, or it must

perform harmless error analysis by asking whether, beyond a

reasonable doubt, the death sentence would have been imposed had

the aggravating circumstance been properly defined in the jury

instructions.6 Here, all the Mississippi Supreme Court did was

set forth its limiting construction of the "especially heinous"

factor and then conclude that there was enough evidence in the

record to support the factor as limited. It did not perform

anything resembling the kind of reweighing or harmless error

analysis described above.

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
13

sentence; a failure to reevaluate "the mix of mitigating factors

and aggravating circumstances," Clemons, 494 U.S. at 752, means

that the appellate court's review does not qualify as reweighing. 

Moreover, in speaking of harmless error analysis, the Court in

Clemons is clear that an appellate court does not simply apply

the limiting construction, but must inquire into "whether beyond

a reasonable doubt the result would have been the same had the

especially heinous aggravating circumstance been properly defined

in the jury instructions." Id. at 754 (emphasis added). This

imposes a burden which obviously is more exacting than the burden

of finding that the evidence supports the narrowed aggravating

factor.

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
14

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 vague 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
 

7 Our conclusion that a state appellate court may not

simply apply a limiting construction to a vague aggravating

circumstance is not inconsistent with Walton v. Arizona, --- U.S.

---, 110 S. Ct. 3047 (1990), or Lewis v. Jeffers, --- U.S. ---,

110 S. Ct. 3092 (1990). Both cases involved the Arizona capital

sentencing scheme, which, as described by the Supreme Court,

appears to be a weighing system. And, in both cases, the Court

upheld death sentences in which the sentencer (a trial judge)

used Arizona's "especially heinous, cruel or depraved"

aggravating circumstance. Even if the trial judge did not apply

the limiting construction (as he is presumed to do, Walton, 110

S. Ct. at 3057; Sochor v. Florida, --- U.S. ---, 112 S. Ct. 2114,

2121 (1992)), the sentences were not constitutionally infirm

because the Arizona Supreme Court applied an acceptable narrowing

construction on direct review. However, the Arizona Supreme

Court in both cases did not simply find that the evidence

supported the aggravating circumstances as limited; rather, it

also reconsidered the mitigating evidence and concluded that

there was insufficient mitigating evidence to call for leniency. 

Walton, 110 S. Ct. at 3053; Jeffers, 110 S. Ct. at 3097. Thus,

the Arizona Supreme Court's review constitutes the kind of

reweighing required by Clemons and Stringer. In the case before

us, by contrast, the Mississippi Supreme Court never reconsidered

the mitigating evidence against the "especially heinous"

circumstance as narrowly construed. This runs afoul of the need

to "give defendants the individualized treatment that would

result from actual reweighing of the mix of mitigating factors

and aggravating circumstances." Clemons, 494 U.S. at 752

(citation omitted).

15

relying upon the existence of an illusory circumstance." Id. at

1139. Thus, a court reviewing a death sentence in which the

weighing process has been skewed may not simply apply a limiting

construction to the factor that has skewed the weighing, but must

also reconsider the entire mix of aggravating and mitigating

circumstances presented to the jury.7

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
 

8 In a final attempt to avoid further proceedings in state

court, the State asserts that this court can perform harmless

error analysis itself. Clemons and Stringer are quite clear,

however, that any such analysis must be performed by the state

courts. See Clemons, 494 U.S. at 752; Stringer, 112 S. Ct. at

1136; see also Barclay v. Florida, 463 U.S. 939 (1983) (state

appellate courts could apply harmless error analysis when

reviewing death sentence imposed by judge who relied in part on

invalid aggravating factor).

16

import and effect of invalid aggravating factors," Stringer, 112

S. Ct. at 1136, that must accompany the modes of harmless error

analysis described in Clemons. See Sochor, 112 S. Ct. at 2123 (a

plain statement that a death sentence which incorporates an

invalid aggravating factor survives harmless error enquiry is

preferable to simply citing cases); id. (O'Connor, J.,

concurring) (Clemons requires more than a bald statement that

error was harmless).8

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
 

9 We note that, although the district court in this habeas

proceeding cannot remand directly to the Mississippi Supreme

Court as did the U.S. Supreme Court in the direct appeal in

Clemons, Mississippi procedures permit the State to place a case

directly before the Mississippi Supreme Court when a federal

district court has granted a writ of habeas corpus and left to

the State the task of initiating appropriate proceedings. In

Reddix and Bullock, two habeas cases in which the federal court

vacated the petitioners' death sentences in order to enable the

state courts to make factual findings necessary for imposition of

the death penalty, but in which the relevant findings could be

made at either the trial or appellate level, the State made a

motion to reinstate the death sentence directly in the Supreme

Court of Mississippi. Reddix v. State, 547 So. 2d 792, 794

(Miss. 1989); Bullock v. State, 525 So. 2d 764, 765 (Miss. 1987).

17

with choice of obtaining a determination from its own courts of

factual question which could be decided by either jury or

appellate court); Reddix v. Thigpen, 805 F.2d 506, 517 (5th Cir.

1986) (same).9

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.
18

Wiley is correct only about the Mississippi Supreme Court's

view on the propriety under state law of reweighing. In its

recent decision in Clemons v. State, the Mississippi Supreme

Court held that state law precludes it from reweighing

aggravating and mitigating factors to determine whether the death

penalty is warranted. Analyzing Miss. Code Ann. § 99-19-101,

which provides that the jury imposes the death penalty, and Miss.

Code Ann. § 99-19-105, which sets forth criteria for review of

death sentences by the Mississippi Supreme Court, the court held:

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

uphold 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.

593 So. 2d at 1006. 

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
 

10 Murder for pecuniary gain could refer to conduct

different than murder committed in the course of a robbery, as

the former may encompass murder-for-hire. In this case, there

were no instructions differentiating among the two, and under the

facts of the case both could only refer to the same conduct.

19

reasonable doubt because it was not convinced that the jury would

have found the "especially heinous" factor had it been properly

defined in the jury instructions. Id. at 1007. Nothing in the

opinion, however, suggests that a harmless error analysis is not

permitted under state law. The Mississippi Supreme Court

actually asked whether the error was harmless beyond a reasonable

doubt, but found that it was not. Thus, although it remanded to

the state trial court for resentencing in Clemons, there is no

guarantee that it would do so in this case. Accordingly,

returning this case to the Mississippi courts will not

necessarily moot Wiley's other federal claims. We proceed now to

consider those claims.

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.
 

11 Cook v. State, 369 So. 2d 1251, 1256 (Ala. 1978); People

v. Bigelow, 37 Cal. 3d 731, 209 Cal. Rptr. 328, 691 P.2d 994,

1006 (1984); Provence v. State, 337 So. 2d 783, 786 (Fla. 1976),

cert. denied, 431 U.S. 969 (1977); Willie v. State, 585 So. 2d

660, 680-81 (Miss. 1991); State v. Rust, 197 Neb. 528, 250 N.W.2d

867, 873-74 cert. denied, 434 U.S. 912 (1977); State v.

Glidewell, 663 P.2d 738, 743 (Okla. Crim. App. 1983).

 

12 The retroactivity issue was not raised by the State,

but, as did the Court in Teague, 492 U.S. at 300, we may consider

it sua sponte. Smith v. Black, 904 F.2d 950, 981 n.12 (5th Cir.

1990), vacated and remanded on other grounds, --- U.S. ---, 112

S. Ct. 1463 (1992).

20

A number of state courts have expressed disapproval of the

use of both the "robbery" and "pecuniary gain" aggravating

factors when both would apply to the same conduct, including (as

of 1991) Mississippi.11 These courts have not found this result

dictated by the Eighth Amendment, but instead have relied on

state law. If Wiley were relying purely on state law in raising

this claim, we would agree with the State that our consideration

of the claim is barred. See Pulley v. Harris, 465 U.S. 37, 41

(1984). But Wiley has raised federal constitutional objections,

so our powers as a federal habeas court are properly invoked. 

Having said that, there is an independent bar to our

consideration of this claim: Wiley asks us to create a "new

rule" within the meaning of Teague v. Lane, 489 U.S. 288 (1989),

and apply it retroactively to him, and he does not come within

either of the exceptions to the Teague doctrine.12

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
 

13 It was not raised at oral argument.

21

(1989). In the now-familiar parlance, "'a case announces a new

rule when it breaks new ground or imposes a new obligation on the

States or the Federal Government.' Or, '[t]o put it differently,

a case announces a new rule if the result was not dictated by

precedent existing at the time the defendant's conviction became

final.'" Penry, 492 U.S. at 314 (citing Teague, 489 U.S. at 301)

(brackets in Penry; emphasis in Teague); see also Butler v.

McKellar, 494 U.S. 407, 412 (1990); Stringer, 112 S. Ct. at 1135. 

These principles primarily serve federalism concerns: they

validate state courts' reasonable, good faith reliance on

precedents existing at the time they rendered their decisions,

Butler, 494 U.S. at 414, and reduce the tendency of federal

habeas review to undermine the finality of state criminal

convictions. See Teague, 489 U.S. at 308-09.

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
22

that his claim is "based on" this principle, however, is not the

same as saying his claim is dictated by precedent. A deathsentenced petitioner could raise any number of objections to the

use of aggravating circumstances and contend that all flow from

the basic Eighth Amendment narrowing requirement. Were a habeas

petitioner able to spark creation of a new rule simply by

invoking Gregg and its progeny, the practical limits the Court

has placed on retroactive application of new rules would be all

but eviscerated in the Eighth Amendment capital sentencing

context.

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
23

the state appellate court reviewing the sentence. Thus, Stringer

does not suggest to us that the relevant precedent is the broadbased Gregg principle, but rather some precedent that would speak

to the constitutionality of giving the jury in a weighing state

multiple, identical aggravating circumstances. Cf. Penry, 492

U.S. at 315-19 (requested rule that Texas juries be given special

instruction on ability to consider mitigating evidence is not

new, because the Texas capital sentencing scheme had been upheld

in 1976 on the specific understanding that the statute would not

preclude presentation of mitigating evidence); Saffle, 494 U.S.

at 491-92 (Penry was an application of the specific precedent of

Jurek).

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
24

to grant Wiley the relief he seeks we would necessarily "break

new ground," so the rule must be classified as new. Cf. Saffle,

494 U.S. at 490 (rule which would preclude sentencing jury from

being told to avoid any influence of sympathy relates to how

sentencer must consider mitigating evidence, not what evidence it

may consider, and so is not dictated by the Lockett-Eddings

principle).

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 accurate 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
25

sentencing phase. He asserts that an evidentiary hearing is

necessary to resolve disputed facts concerning his

representation. A federal habeas court must hold an evidentiary

hearing if there are disputed facts and the petitioner did not

receive a full and fair hearing in a state court, either at trial

or in a collateral proceeding. Townsend v. Sain, 372 U.S. 293,

312 (1963), overruled in part on other grounds, Keeney v. TamayoReyes, 60 U.S.L.W. 4339 (U.S. May 4, 1992). This standard

applies equally to ineffective assistance of counsel claims. If

the record is adequate to dispose of the claim, the federal court

need not hold an evidentiary hearing. Byrne v. Butler, 845 F.2d

501, 512 (5th Cir.), cert. denied, 487 U.S. 1242 (1988); see also

Paster v. Lynaugh, 876 F.2d 1184, 1190 (5th Cir. 1989), cert.

denied, 110 S. Ct. 272 (1990); Baldwin v. Maggio, 704 F.2d 1325,

1329 (5th Cir. 1983), cert. denied, 467 U.S. 1220 (1984).

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
26

wide, and our inquiry must focus on the particular decisions an

attorney made in light of all the circumstances. Id. at 689-90. 

This standard applies no less to an attorney's duty to

investigate than to the other duties associated with trial:

"strategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than

complete investigation are reasonable precisely to the extent

that reasonable professional judgments support the limitations on

investigation." Id. at 690-91. Second, "[t]he defendant must

show that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome." 

Id. at 694. A court evaluating a claim of ineffective assistance

need not address the reasonableness component first, and, if a

defendant fails on one part, the court need not address the

other. Id. at 697.

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 crossexamination testimony of the State's witnesses. Franks elicited

testimony from Terry Galt, a co-worker of Wiley at the time of
27

the crime, that Wiley was not a troublemaker and did not display

violent tendencies. Turner's wife and daughter, both of whom

knew Wiley from Wiley's visits to the convenience store, also

testified that they had not seen Wiley act violently. In crossexamining Mike Allen, a State forensic scientist and the State's

firearms expert, Franks attempted to cast doubt on the State's

theory that Wiley was moving toward Turner when he fired the

shotgun, thereby indicating a lack of intent to kill. James

Riley, chief deputy sheriff of DeSoto County, testified that

Wiley accepted blame for the crime, was a model prisoner, and

cooperated in the law enforcement investigation. According to an

affidavit Franks filed in connection with Wiley's habeas

petition, Franks questioned Wiley about witnesses that might

appear on his behalf, but Wiley "did not give me any names." 

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

Miss. Code Ann. § 99-19-101(6)(b),(f) (Supp. 1991). In his

petition, he proffered affidavits in which friends and family in

the DeSoto County area stated that they would have testified on

Wiley's behalf had they been contacted; Army and school records;
28

and the affidavits of a psychologist (Dr. Billy Fox) and a

psychiatrist (Dr. Robert Ritter) who examined Wiley in 1987. Dr.

Fox stated that he diagnosed Wiley as suffering from borderline

mental retardation, alcoholism and drug dependency, and

passive/aggressive personality disorder. Dr. Ritter's diagnosis

was similar. Both stated that, had they been called to testify

at the sentencing trial, they would have been able to present a

psychological profile of Wiley which would help explain his crime

and make him appear more sympathetic to the jury.

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
29

examined by mental health professionals prior to the sentencing

trial, that he had been diagnosed as suffering from any

particular disorder, or that his personality was such that a

reasonable person would have thought mental impairment a

promising line of defense.

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
30

to the possibility of a defense based on mental impairment due to

drugs. 

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 the decision not to
31

obtain a psychiatric evaluation entirely reasonable. Wiley

asserts that he told Franks that he had been under the influence

of drugs and alcohol, but this meager information alone would not

require the full-scale investigation Wiley suggests was

necessary. Although we are of the view that counsel could have

made an effort to locate friends and family who could have

testified about Wiley's favorable qualities, "'[w]e address not

what is prudent or appropriate, but only what is constitutionally

compelled.'" Burger, 483 U.S. at 794 (citing United States v.

Cronic, 466 U.S. 648, 665 n.8 (1984)). Wiley and Franks agree

that Wiley did not provide Franks with any leads on witnesses. 

Franks could reasonably have concluded that the most promising

line of defense at the sentencing trial was to force the State's

witnesses to tell the jury about Wiley's history of nonviolence,

cooperation in the investigation, good behavior as a prisoner,

and acceptance of blame for the crime. He could also reasonably

have concluded, as the state court noted, that introducing

evidence of any adverse psychological background would have

contradicted his attempt to portray Wiley as basically a

nonviolent person who had no intent to kill Turner. See Wiley

III, 517 So. 2d at 1380. In sum, we do not find that Franks's

decisions at Wiley's second sentencing trial were unreasonable,

and so we do not address the prejudice component of the inquiry.
32

IV. BATSON CLAIM AND IMPROPER PROSECUTORIAL COMMENTS

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 Miss. Code Ann. § 99-29-

21. Wilcher v. State, 479 So. 2d 710 (Miss. 1985)." Wiley III,

517 So. 2d at 1378.

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 erected 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
 

14 Because he objected at trial to the transcript, he could

raise only the inconsistency of the procedural bar as grounds for

its avoidance with respect to the transcript claim.

33

id. at 262-63; Murray v. Carrier, 477 U.S. 478, 485 (1986);

Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Wiley attempted to

circumvent the procedural bar with respect to the Batson claim

and the closing argument claim on the grounds that (1) his

counsel's ineffectiveness was cause for failing to object and (2)

the Mississippi courts did not consistently apply the procedural

bar rule cited by the Mississippi Supreme Court. The district

court rejected both arguments.14 On appeal, Wiley concedes the

state court's reliance on a procedural bar but reurges his two

arguments for disregarding it. We reject both.

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
 

15 The standards of Strickland apply fully in this context. 

Carrier, 477 U.S. at 488. In addition, in order to use

34

attempt to determine the reasons behind a prosecutor's

challenges. Id. at 369-70. Under the reasoning of Thomas and

Jones, cause for failing to object and resulting prejudice cannot

rescue the claim. However, because the Mississippi Supreme Court

relied on a state procedural bar we think it appropriate

(although not required) to address Wiley's cause and prejudice

arguments in the alternative.

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 be cause when default occurs in proceedings in which

petitioner had constitutional right to counsel).15
ineffective assistance to establish cause, a petitioner must

first exhaust it as an independent constitutional claim in state

court. Id. at 489. Wiley has properly exhausted a claim of

ineffective assistance of counsel for failing to raise a Batson

claim and for failing to object to the prosecutor's closing

argument. See Wiley III, 517 So. 2d at 1380-81.

35

With respect to the Batson claim, Batson had not yet been

decided when Wiley's second sentencing trial took place. Wiley

suggests, however, that his counsel's failure to object was

unreasonable because the basis for a challenge to the

prosecutor's conduct was established in Swain v. Alabama, 380

U.S. 202 (1965). The Court's description in Batson of the fatal

flaw in the Swain decision undercuts this contention. In order

to make out a violation of the Equal Protection Clause under

Swain, a defendant was required to show that prosecutors

repeatedly exercised peremptory challenges to remove blacks who

had been selected as qualified jurors and who survived challenges

for cause. See Batson, 476 U.S. at 92. Since the lower courts'

interpretation of Swain "ha[d] placed on defendants a crippling

burden of proof, prosecutors' peremptory challenges [were]

largely immune from constitutional scrutiny." Batson, 476 U.S.

at 92-93 (footnote omitted); see Willis v. Zant, 720 F.2d 1212,

1220 (11th Cir. 1983) (winning Swain claims extremely difficult),

cert. denied, 467 U.S. 1256 (1984). Wiley's counsel, like

countless other defense attorneys laboring under the onerous

proof burdens required by Swain, undoubtedly decided that he was

unlikely to mount a successful constitutional challenge to the

prosecutor's peremptory challenges. We must view this strategic
36

decision as reasonable under the standards articulated in

Strickland. See Poole v. United States, 832 F.2d 561, 565 (11th

Cir. 1987) (attorney not ineffective for failing to raise Batson

claim before decision because case was a clear break with

precedent), cert. denied, 488 U.S. 817 (1988); cf. Government of

Virgin Islands v. Forte, 865 F.2d 59, 62-63 (3d Cir. 1989)

(counsel's failure to raise Batson claim was ineffective only

because defendant asked him to object in light of fact that

Batson was pending). Consequently, ineffective assistance of

counsel does not function as cause for Wiley's failure to comply

with the state's contemporaneous objection rule.

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. 
 

16 With respect to the Batson claim, Wiley also suggests

that we disregard the bar of the contemporaneous objection rule

altogether. Not only does the bar "serve no legitimate state

interest," Wiley says, requiring a contemporaneous objection

where settled law bars a challenge to a prosecutor's use of

peremptories would merely encourage needless delay. We disagree

for two reasons. First, the Supreme Court has made it quite

clear that in the habeas context, a state's application of a

procedural rule to bar review is an adequate and independent

ground supporting the state judgment. See Coleman, 111 S. Ct. at

2554; Harris, 489 U.S. at 262; Sykes, 433 U.S. at 81, 87. Given

the concerns of "comity and federalism" which support the

independent and adequate state ground doctrine in habeas,

Coleman, 111 S. Ct. at 2554, we are not at liberty to disregard a

particular state rule even if we disagree with its utility in a

particular case. Second, to the extent that Wiley is arguing

that he had cause for the procedural default because the factual

or legal basis for a Batson claim was not reasonably available at

the time of his sentencing hearing in June 1984, we cannot agree. 

If this were the case, of course, it would constitute cause for

the procedural default. Reed v. Ross, 486 U.S. 1, 16 (1984);

Carrier, 477 U.S. at 488. But Swain's condemnation of race-based

peremptory challenges certainly raised the possibility that one

might prevail on the courts to find a constitutional violation

under a less onerous burden of proof than required by Swain

itself. "Swain should have warned prosecutors that using

peremptories to exclude blacks on the assumption that no black

juror could fairly judge a black defendant would violate the

Equal Protection Clause." Batson, 476 U.S. at 101 (White, J.,

concurring). Defense attorneys, too, were alerted to the

constitutional problem and could (but were not necessarily

required to) lodge an objection. Cf. McCray v. Abrams, 750 F.2d

1113, 1124-30 (2d Cir. 1984), reh'g en banc denied, 756 F.2d 277

(1985), vacated and remanded, 478 U.S. 1001 (1986).

37

Franks could reasonably have decided not to risk antagonizing the

jury by objecting, or he could have decided that his best

strategy was to let his own closing argument (recited before the

State's) speak for itself. Whatever the reason he chose not to

object, we do not view his conduct as ineffective assistance. 

Thus, Wiley has not established cause for failing to object to

the closing argument.16

C. Inconsistency of Mississippi's Application of the

 Procedural Bar
38

Wiley next relies on the principle that a state court's

invocation of a procedural bar will not preclude federal review

where the state courts do not regularly apply the rule cited as

the bar. See Johnson v. Mississippi, 486 U.S. 578, 587 (1988). 

The district court, relying on Hill v. Black, 887 F.2d 513 (5th

Cir. 1989), vacated on other grounds, 111 S. Ct. 28 (1990), held

that the Mississippi courts regularly apply the contemporaneous

objection rule as a procedural bar, and thus held the state

procedural bar effective.

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. Miss.

Code Ann. § 99-39-21 (Supp. 1991). Wiley is correct that the

Court in Johnson found Mississippi's application of this rule

inconsistent, but the inconsistency identified in Johnson arose

in only one limited context: the failure of a defendant to

challenge on direct appeal a conviction that forms the basis for

an enhanced sentence or supports an aggravating circumstance in a

capital sentencing. The Court cited specific cases in which the

Mississippi Supreme Court had held that a collateral attack,

rather than a direct appeal, was the appropriate forum for

challenging prior convictions. Johnson, 486 U.S. at 587-89.

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
39

component of the procedural bar statute was not at issue in

Johnson, and, as the district court recognized, this court held

in Hill that "the Supreme Court [of Mississippi] regularly

applies the contemporaneous objection rule to the cases before

it." 887 F.2d at 516. Second, Johnson does not indicate that

the Mississippi courts regularly hold that direct appeal is not

the appropriate forum for considering constitutional claims. As

noted above, Johnson was concerned only with the Mississippi

courts' failure to require that challenges to underlying

convictions be brought on direct appeal, and cited Mississippi

cases holding that that specific issue was not barred. This in

no way suggests that the Mississippi courts hold that all claims

should be brought in collateral proceedings, rather than direct

appeal. The claim which here is barred for failure to raise it

on direct appeal, the transcript claim, is not implicated by the

cases cited in Johnson. It is true, as Wiley points out, that

the Mississippi Supreme Court may disregard the procedural bar

rule when plain error exists. But we acknowledged this practice

in Hill and did not find that it detracted from the consistency

of Mississippi's application of the rule. Hill, 887 F.2d at
 

17 Although we went on to discuss the substantive merits of

the claims the Mississippi Supreme Court had held procedurally

barred in Hill, we did so in order to illustrate that the

district court had erred in granting the writ on the ground that

Mississippi applied the rule inconsistently. We pointed out that

"neither [claim] would have justified the Mississippi Supreme

Court in applying the exception to the Mississippi

contemporaneous objection rule to either allegation of error. 

Accordingly, the district court erred in granting habeas corpus

relief based on the Mississippi Supreme Court's application of

the Mississippi procedural bar rule." Hill, 887 F.2d at 518.

 

18 Payne was decided more than one year after the district

court issued its memorandum opinion.

40

516.17 Accordingly, the state procedural ground is adequate and

bars further federal review of these three claims.

V. EVIDENCE ABOUT THE VICTIM

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
41

the victim and about the impact of the murder on the victim's

family is relevant to the jury's decision as to whether the death

penalty should be imposed." Id. at 2608-09. Victim impact

evidence is constitutionally acceptable so long as it is not "so

unduly prejudicial that it renders the trial fundamentally

unfair." Id. at 2608.

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
42

Wiley argues that the introduction of photographs of

Turner's body lying in a pool of blood and of Patricia Harvey's

blood deprived him of a fair trial. On direct appeal, the

Mississippi Supreme Court held that the photographs were

sufficiently probative and did not simply have the effect of

arousing the jury's emotions. Wiley II, 484 So. 2d at 346. On

collateral review, the claim was held barred by res judicata. 

Wiley III, 517 So. 2d at 1377.

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
43

testimony of the law enforcement officials who found Turner's

body, and are not unusually gruesome. The State did not violate

Wiley's rights by introducing them.

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.