Jimmy Lee Gray v. Eddie Lucas and the State of Mississippi

Citations: 710 F.2d 1048; 1983 U.S. App. LEXIS 25773Docket: 83-4404

Court: Court of Appeals for the Fifth Circuit; July 15, 1983; Federal Appellate Court

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Jimmy Lee Gray, a Mississippi prisoner on death row, appeals the denial of his habeas corpus relief by the district court. Gray was originally convicted in 1976 for the murder of a three-year-old girl; his conviction was reversed and remanded for a new trial, where he was reconvicted and sentenced to death. The Mississippi Supreme Court upheld this second conviction, and the U.S. Supreme Court denied his petition for certiorari. Gray subsequently filed for a writ of error coram nobis and a stay of execution in state court, which was denied. He then petitioned for habeas corpus in federal court, where an evidentiary hearing occurred, but his claims were rejected. As of May 1983, an execution date was set.

On June 22, 1983, Gray requested a stay of execution and filed a new petition for a writ of error coram nobis, presenting several supporting affidavits. His petition includes seven claims, notably asserting that he is presently insane, which would bar execution under the Eighth and Fourteenth Amendments. It also contends that the trial judge improperly instructed the jury on the burden of proof regarding mitigating circumstances, that prosecutorial references to his future dangerousness affected the jury's decision, and that the method of proportionality review by the Mississippi Supreme Court was constitutionally insufficient. Additionally, Gray argues that an aggravating factor used in his sentencing was unconstitutionally vague.

Claim Six argues that Mississippi's lethal gas execution method violates the Eighth and Fourteenth Amendments due to its characterization as cruel and unusual punishment. Claim Seven contends that the petitioner’s trial counsel provided ineffective assistance, infringing upon the Sixth and Fourteenth Amendments. On June 29, 1983, the Mississippi Supreme Court denied the petitioner’s request for relief without an evidentiary hearing, stating that the application for a writ of error coram nobis and related motions were denied. The petitioner subsequently filed a Petition for Writ of Habeas Corpus in federal district court, asserting the same claims as in the state coram nobis petition. The district court denied a stay of execution and a certificate of probable cause but allowed the petitioner to appeal in forma pauperis, delaying a ruling on the evidentiary hearing and habeas corpus petition. On July 2, 1983, the appellate court granted a certificate of probable cause and stayed the execution. The State of Mississippi’s motion to vacate the stay was denied by the U.S. Supreme Court. Following the Supreme Court's decision in Barefoot v. Estelle on July 6, 1983, which set standards for stays of execution, the appellate court recognized that the state’s motion to vacate the stay presented no barriers. However, the court concluded it could not resolve the issue of the evidentiary hearing before the execution deadline, thus consolidating the requests for stay and merits of the habeas corpus claims for later consideration. The district court dismissed the petition on July 8, 1983, prompting the petitioner to file an appeal. The standard of review for the claims will be guided by the principles established in Barefoot v. Estelle, highlighting the distinction between first and subsequent federal habeas corpus petitions to prevent abuse of the process.

Rule 9(b) of the Rules Governing Section 2254 Cases allows for the dismissal of a second or successive petition if it does not present new grounds for relief or if the petitioner previously failed to raise those grounds, which could be seen as an abuse of the writ. Even if dismissal is not warranted, the district court can expedite consideration of the petition. For a stay to be granted, substantial grounds for relief must be present, and a petitioner must demonstrate that the denial of a federal right is debatable among jurists, that a court could resolve the issues differently, or that the questions merit further proceedings.

Claim One asserts that Gray's execution should be stayed due to his current insanity. Affidavits submitted to the Mississippi Supreme Court and federal district court indicate Gray has sufficiently shown his present insanity, warranting at least an evidentiary hearing. U.S. law prohibits executing individuals who are presently insane, a principle established across American jurisdictions. The criteria for assessing execution-staying insanity and the corresponding procedures vary by state. Although it has been suggested, no definitive ruling exists that guarantees a federal constitutional right against execution due to present insanity.

In Mississippi, both statutory law and case law provide mechanisms to halt the execution of an insane person. However, the insanity must have arisen after the judgment was rendered, rather than being present during the trial. The issue can be raised in Mississippi state courts through affidavits in a petition for a writ of coram nobis, which the court may deny without an evidentiary hearing if the affidavits do not reasonably establish a probability of insanity since conviction.

The Mississippi Supreme Court denied Gray's petition for a writ of coram nobis, stating it considered all claims presented, including one for relief based on current insanity. Strong affidavits indicated Gray's chronic psychosis; however, this condition predated his trial and conviction, leading to the conclusion that he was not denied due process under Mississippi law. Thus, his request for federal relief was rejected. Gray further contends that the federal constitution prohibits the execution of an insane person, regardless of whether the insanity existed before or arose after trial. While the Supreme Court has not definitively ruled against executing presently insane individuals, it may be argued that federal constitutional protections exist based on Fifth and Eighth Amendment standards.

The criteria for determining insanity in this context are inconsistent across states and common law, with ambiguity surrounding the rationale for the prohibition against executing the insane. Justice Frankfurter noted the historical consensus against such executions in his dissent in Solesbee v. Balkcom, proposing that the standard for insanity after sentencing should assess the prisoner’s capacity to understand the legal proceedings and the nature of their punishment. Both parties in Gray's case agree to use this standard.

Gray supports his claim for an evidentiary hearing on his current insanity with various affidavits detailing his mental health diagnosis, childhood abuse, and inadequate pre-trial mental examinations, asserting that these factors have resulted in significant mental impairment.

Gray's mental condition is characterized by chronic psychosis, including delusions, auditory hallucinations, and bizarre beliefs, as assessed by Dr. Dorothy Otnow Lewis, a certified psychiatrist. Her evaluation, based on a six-hour examination and a review of hospital records from June 15, 1983, highlights that Gray exhibits significant cognitive impairments, such as lapses in attention and episodes of intense fear, anxiety, and perceptual disturbances. Dr. Lewis indicates that Gray's intelligence enables him to conceal his symptoms, complicating efforts to obtain a comprehensive history of his psychiatric state. She states that Gray's profound paranoia and limited understanding of his condition hinder his ability to assist legal counsel in his defense, resulting in a grave impairment in recognizing the nature of his psychotic experiences related to his crimes. She concludes that his mental state significantly contributed to the offenses for which he is incarcerated, indicating he lacked the capacity to appreciate the criminality of his actions. Although the document does not definitively address constitutional protections regarding the execution of mentally incompetent individuals, it suggests that procedural rights, including an evidentiary hearing, may be necessary to explore this issue further.

Gray has not demonstrated sufficient grounds to warrant an evidentiary hearing regarding the constitutionality of his execution based on his mental condition. Although he has serious psychotic impairments that may distort his perception of reality, these deficiencies do not prevent him from understanding the legal proceedings against him or the implications of his punishment. Consequently, his claims do not meet the standard necessary for federal constitutional protection against execution.

In Claim Two, Gray contends that the trial judge improperly placed the burden of proof on him during the penalty phase, specifically by instructing the jury to find mitigating circumstances by a preponderance of the evidence, which he argues violates the Eighth and Fourteenth Amendments. The jury was instructed to consider mitigating factors, including the defendant's emotional state and capacity to understand the law. However, for a federal court to grant relief under 28 U.S.C. § 2254 based on alleged errors in jury instructions, the error must be egregious enough to constitute a constitutional violation or render the trial fundamentally unfair. The claim regarding the jury instruction does not rise to that level.

In Claim Three, Gray asserts that the prosecution's closing arguments unduly emphasized his potential future dangerousness and the risk of reoffending if sentenced to life imprisonment. The prosecution argued that the only way to prevent Gray from killing again was through a death penalty verdict, highlighting the perceived threat he posed, particularly to young girls.

The argument presented emphasizes the need for a death penalty verdict based on the demonstrated dangerous potential of the defendant, Gray, who allegedly has a history of repeat offenses. A critical point is made regarding the procedural history of Gray's claims, particularly that an argument raised in his original federal habeas petition was not pursued on appeal and thus barred from further consideration, as established in *Gray v. Lucas*. In his first petition, Gray asserted that he suffered violations of his Fourteenth Amendment rights due to prejudicial misconduct by the prosecution during closing arguments. 

In Claim Four, Gray requests the court to delay judgment until the Supreme Court clarifies the requirements for proportionality review in capital cases, citing a recent grant of certiorari on this matter. He criticizes the Mississippi Supreme Court's method of comparative review for only considering cases where the death penalty was imposed, a position previously rejected by the Supreme Court in *Proffitt v. Florida*. Additionally, Gray seeks to postpone decisions pending the outcome of *Pulley v. Harris*, which addresses constitutional review requirements.

Claim Five asserts that the statutory aggravating factor of "heinous, atrocious or cruel" is unconstitutionally vague, a claim previously dismissed on appeal. Gray argues that recent Mississippi Supreme Court rulings have muddied the distinction between types of homicide, but the court remains unconvinced of the statute's vagueness.

In Claim Six, Gray challenges the constitutionality of Mississippi's lethal gas execution method, arguing it constitutes cruel and unusual punishment and requests an evidentiary hearing to assess its compliance with Eighth Amendment protections against torture and unnecessary pain. The court notes that the Eighth Amendment prohibits punishments that are torturous or result in a lingering death, referencing historical precedents that inform this interpretation.

Recent case law indicates that the Eighth Amendment prohibits not only physically brutal punishments but also those that violate broader principles of dignity, humanity, and decency. Key cases, such as *Gregg v. Georgia*, *Trop v. Dulles*, and *Weems v. United States*, highlight the necessity of aligning penal measures with the evolving standards of decency in society and rejecting punishments that cause unnecessary pain. In Mississippi, executions are conducted via lethal gas, specifically requiring a properly constructed gas chamber filled with a lethal gas until death occurs. Gray argues that this method constitutes cruel and unusual punishment, rendering it unconstitutional. To support this claim, he provides affidavits from witnesses of lethal gas executions, including Tad Dunbar, who described witnessing a painful and distressing death of Jesse Walter Bishop in Nevada, characterized by violent convulsions and prolonged suffering. Another witness, Howard Brodie, recounted the execution of Aaron Mitchell in California, noting the immediate and brutal effects of cyanide gas. Both accounts emphasize the perceived inhumanity and suffering associated with this execution method.

A detailed account describes the agonizing death of Eddie Daniels during a lethal cyanide gas execution, witnessed by Reverend Myer Tobey. Daniels exhibited extreme distress, thrashing in his restraints, attempting to evade the gas, and showed visible signs of suffering, including heaving chest movements and bulging eyes, indicating he was conscious and aware of his pain. He was pronounced dead twelve minutes after the gas was released, during which he experienced multiple convulsions and moments of apparent consciousness. Medical expert Dr. Richard Traystman provided evidence that cyanide gas induces painful asphyxiation by blocking oxygen utilization in cells, leading to a hypoxic state. This condition can leave the victim conscious for several minutes, experiencing severe pain akin to a heart attack, as the body is deprived of oxygen. The document emphasizes the prolonged suffering endured by individuals subjected to this method of execution.

Agitation and anxiety in a hypoxic state trigger responses from the autonomic nervous system, leading to drooling, urination, defecation, vomiting, and muscular contractions, which can occur whether the individual is conscious or unconscious. Anoxia allows the brain to remain viable for two to five minutes, while the heart may continue beating for five to seven minutes or longer at a reduced output, with death potentially occurring ten to twelve minutes after gas release. Dr. Traystman noted that asphyxiation for research is largely disfavored, with most laboratories not employing cyanide gas for euthanasia. Gray argues that new scientific evidence contradicts the previous belief that death by lethal cyanide gas is painless, asserting that it is, in fact, a painful and distressing process. Despite various legal precedents supporting methods of execution like the electric chair and gas chamber, no federal court has specifically addressed whether the gas chamber constitutes cruel and unusual punishment. Recent legislative changes in Nevada and New Mexico have replaced the gas chamber with lethal injection, and North Carolina offers inmates a choice between methods. Gray claims that evidence shows cyanide gas execution can inflict prolonged pain, potentially violating the Eighth Amendment's prohibition against cruel punishment. However, it was concluded that the facts presented do not legally substantiate Gray's Eighth Amendment claim, thus no evidentiary hearing is warranted, as traditional execution methods inherently involve the risk of pain and suffering.

Contemporary standards of civilized conduct do not support a claim that death by cyanide gas is significantly different from other execution methods regarding Eighth Amendment implications. Gray’s previous habeas counsel did not succeed in proving ineffective assistance of trial counsel, and current counsel argue that this prior counsel, Richard Shapiro, was ineffective. Gray cites eight errors by Shapiro, primarily related to not adequately addressing his mental state and failing to challenge a witness's misstatement regarding a test report related to Gray's criminal behavior. 

There is a growing trend in habeas cases where successive counsel are blamed for ineffective assistance. However, claims of ineffective assistance during discretionary appeals do not constitute a violation of the Sixth Amendment, as established in Wainwright v. Torna, where the Supreme Court ruled that ineffective assistance cannot violate the Sixth Amendment without a corresponding right to counsel. Shapiro’s representation of Gray during collateral attacks on his conviction does not invoke a Sixth Amendment right, rendering Gray’s claim regarding Shapiro's ineffectiveness meritless.

Gray also contends that due to his habeas counsel’s ineffectiveness, his claims of ineffective trial counsel should be reconsidered, despite a prior rejection of those claims. He requests an evidentiary hearing to explore the factual issues raised. However, the standard for evaluating counsel's effectiveness requires consideration of the overall context rather than isolated errors, focusing on the totality of circumstances, including the seriousness of charges and the strength of both the prosecution's case and the defenses available to the defendant.

In capital cases, attorneys are not held to a higher standard; however, the severity of the charge is a factor in assessing effective assistance of counsel. To establish a constitutional violation, a petitioner must show both a significant inadequacy in counsel's performance and a substantial disadvantage to their defense resulting from that inadequacy. The deficiencies claimed against Shapiro pertain to his failure to adequately develop the habeas record regarding Gray's mental status, which echoes previous arguments. Although Shapiro's representation may not have been flawless, the court concluded it was legally adequate after extensive review. As such, no basis for federal habeas relief was found, leading to the affirmation of the district court's judgment. Gray's claim regarding the constitutionality of his arrest was not pursued in this appeal. The Mississippi Supreme Court's denial of a coram nobis application effectively removed any procedural bar to a federal court's review of Gray's claims on their merits. The question of whether due process prohibits the execution of an insane person remains unresolved by the Supreme Court, though some justices have suggested it might. The standards for determining insanity for execution differ from those used for assessing criminal responsibility and trial competency.

The standard for assessing a prisoner's capacity at the time of punishment involves determining if the individual possesses sufficient intelligence to comprehend the legal proceedings, the nature of the charges, the purpose of the punishment, the consequences they face, and any facts that may render the punishment unjust or unlawful. Additionally, the individual must be capable of communicating relevant information to their attorneys or the court. A recent Mississippi Supreme Court decision indicates that if evidence of mental illness had been presented at Gray's sentencing hearing, he likely would have been entitled to a jury instruction on mitigating circumstances related to his impaired ability to conform to the law, despite not being exculpated from criminal responsibility. Currently, among the thirty-nine jurisdictions that impose the death penalty, eight utilize lethal gas as a method of execution.