| [1] | UNITED STATES COURT OF APPEALS, FOURTH CIRCUIT |
| [2] | No. 79-6819 |
| [3] | 1980.C04.40308 <http://www.versuslaw.com>; 613
F.2d 487 |
| [4] | decided: January 2, 1980. |
| [5] | JOSEPH CARL SHAW, PETITIONER, v. JOSEPH R. MARTIN, WARDEN, CENTRAL CORRECTIONAL INSTITUTION, AND HON. DANIEL R. MCCLEOD, ATTORNEY GENERAL FOR SOUTH CAROLINA, RESPONDENTS. |
| [6] | On Application to Single Circuit Judge for Stay of
Execution. |
| [7] | Dallas D. Ball, Kermit S. King, W. Thomas Vernon, William Gambrell,
Columbia, S. C., Richard H. Burr, Nashville, Tenn., Richard Shapiro, New
Orleans, La., John Charles Boger, New York City, for
petitioner. |
| [8] | Brian Gibbes, Asst. Atty. Gen. Columbia, S. C., for
respondents. |
| [9] | Before James Dickson Phillips, Circuit Judge, Fourth Judicial
Circuit. |
| [10] | Author: Phillips |
| [11] | This matter came before me at 8:00 A.M. on December 13, 1979, on the
application of Joseph Carl Shaw for an order staying
execution of the death sentence imposed upon him by the State of South
Carolina and scheduled for 5:00 A.M., December 14, 1979. For reasons that
follow I decided to grant the stay on certain conditions looking to the
expeditious pursuit by Shaw of traditional avenues of
post-conviction review in state and federal courts that have not yet been
exhausted and that would otherwise be foreclosed. |
| [12] | The application was made to me as a single circuit judge acting under
the power conferred by 28 U.S.C. § 2251 to grant stays of execution in
pending habeas corpus proceedings, incident to appeal by Shaw from the
denial of his petition for habeas corpus and application for stay of
execution made to the United States District Court for the District of
South Carolina, Honorable Robert W. Hemphill. The application was
considered on a stipulated hearing record and the oral arguments of
counsel for Shaw and for the State of South
Carolina. |
| [13] | The record consisted of the following items in addition to the
application itself: 1) Order of the district court denying stay; 2)
Petition to district court for Writ of Habeas Corpus and Application for
Stay of Execution (filed by appointed counsel); 3) Supplemental Petition
for Writ of Habeas Corpus and Application for Stay (filed by retained
counsel); 4) Return to Petition for Writ of Habeas Corpus filed by State;
5) Opinion of the Supreme Court of South Carolina affirming conviction; 6)
Transcript of Record on Appeal to State Supreme Court; 7) Application for
certificate of probable cause to appeal and for appeal in forma pauperis;
8) Stipulation of counsel re State Supreme Court's denial of motion of
appointed counsel to be relieved; 9) Motion of appointed counsel to State
Supreme Court for relief from representation and for stay of execution;
10) Authorization by Shaw for representation by retained
counsel; 11) Stipulated chronology of proceedings. |
| [14] | Representing the Petitioner Shaw at the hearing were
Messrs. Dallas D. Ball, Kermit S. King, W. Thomas Vernon, and William
Gambrell, all of the South Carolina bar; and Messrs. Richard Burr, Richard
Shapiro, and John Boger (of counsel) of the Southern Prisoners' Defense
Fund of Nashville, Tennessee. |
| [15] | Representing the State of South Carolina was the Honorable Brian
Gibbes, Assistant Attorney General. |
| [16] | I |
| [17] | At the outset, I was concerned about the status of the various
attorneys appearing for Shaw, and, for reasons that I
considered relevant to determination of the application, sought to
establish that status for the record. These facts appeared. |
| [18] | Messrs. Ball and King were appointed by the State of South Carolina to
defend Shaw in the early stages of the criminal prosecution,
and have represented him throughout. Mr. Vernon was added to the appointed
defense team by subsequent appointment by the State; and Mr. Gambrell is
an associate in Mr. King's law firm. This group of attorneys is hereafter
referred to as "appointed counsel." |
| [19] | Messrs. Burr and Shapiro associated with the Southern Prisoners'
Defense Fund, were retained by Shaw, first orally, then by
written authorization filed in the record of this proceeding. Mr. Boger,
associated with the Legal Defense Fund of the NAACP, appeared of counsel
to the Southern Prisoners' Defense Fund, having been associated by Messrs.
Burr and Shapiro. This group of attorneys is hereafter referred to
collectively as "retained counsel." |
| [20] | II |
| [21] | The salient facts before me on this application are quickly stated.
The hideously brutal crimes of which Shaw stands convicted
occurred on October 29, 1977. Shaw and two others were
arrested on November 3, 1977, and each was indicted for two counts of
murder, two counts of conspiracy, rape, kidnapping, and armed robbery. On
the advice of his court-appointed counsel, Shaw pled guilty
to the crimes charged to him on December 12, 1977. On December 16, 1977,
after a sentencing hearing, a state trial judge sentenced
Shaw to death. |
| [22] | Shaw timely appealed to the Supreme Court of South
Carolina which, on May 28, 1979, affirmed the conviction and death
sentence. On August 24, 1979, appointed counsel then timely petitioned the
Supreme Court of the United States for writ of certiorari. On November 13,
1979, the Supreme Court denied the petition. Shaw's
appointed counsel received notice of the denial on November 15, 1979, and
immediately began considering the steps now to be taken in discharge of
their obligations of representation. At this time the Supreme Court of
South Carolina, acting pursuant to a state statute, S.C.Code § 17-25-370,
which directs setting of the execution of a death sentence on a date four
weeks after affirmance of a judgment of conviction, set the execution for
5:00 A.M. on December 14, 1979. |
| [23] | On November 28, 1979, in the course of consultation with his appointed
counsel about legal steps that might now be taken to obtain further
review, Shaw suggested a possible desire to have raised the
issue of ineffectiveness of the assistance provided him by those counsel.
On November 30, 1979, in further consultation, he confirmed a specific
desire to raise this issue by appropriate means. At this time he had
employed no other counsel. |
| [24] | Presented with an obvious problem of professional responsibility by
this development, Shaw's appointed counsel, facing an
execution date only two weeks away, now sought means by which they might
continue their representation in protection of Shaw's rights
and at the same time expedite the retention of other counsel to present
any claim of ineffective assistance of counsel thought warranted. To this
end, appointed counsel then moved expeditiously on several fronts. They
first filed a motion and conferred on November 30, 1979, with the state
trial judge whom they considered empowered to relieve them of
representation responsibilities so that other counsel could take over.
Advised, however, on December 4, 1979, to file their motion to be relieved
as appointed counsel and for stay of execution pending retention of new
counsel in the Supreme Court of South Carolina, they did so on December 6,
1979. On December 10, 1979, the State Supreme Court heard this motion on
the record and oral arguments; and on the same day denied it without
stating its reasons. |
| [25] | While these proceedings were underway, appointed counsel on December
8, 1979, filed a timely petition in the Supreme Court of the United States
for rehearing of the petition for certiorari. This had not been acted upon
at the time of the hearing before me. |
| [26] | Contemporaneously with these efforts, appointed counsel undertook the
responsibility of seeking out new counsel who might be competent,
independent, and acceptable to Shaw as retained counsel. It
was by this means that Mr. Burr of the Southern Prisoners' Defense Fund
was put in touch with Shaw. As a result of this contract and
ensuing conference, Shaw first orally, then in writing,
retained the attorneys associated with the Southern Prisoners' Defense
Fund who appeared with appointed counsel at the hearing before
me. |
| [27] | Following the denial on December 10, 1979, of their motion in the
State Supreme Court, appointed counsel filed a petition for habeas corpus
and for stay of execution incident thereto in the United States District
Court for the District of South Carolina. The habeas petition was based
upon a claimed denial by the State of Shaw's Present right
to effective assistance of counsel by its action in denying appointed
counsel's motion to be relieved, with the consequence of
Shaw's practical inability to pursue within the short time
remaining to him the post-conviction remedies provided by the
State. |
| [28] | Retained counsel also filed in the district court a supplemental
petition for habeas corpus and application for stay which raised, among
other issues, one of ineffective assistance of appointed counsel.
Following a hearing on December 12, 1979, the district judge denied the
petitions and the applications for stay. In an accompanying memorandum the
district judge noted that no state post-conviction proceedings had been
instituted by Shaw, and based his denial on a determination
that the petitioner had not met the burden of showing constitutionally
ineffective assistance of appointed counsel. This determination was made
on the basis of the state court record, and judicial notice of the general
competence and expertise of appointed counsel. The court did not address
any of the several additional grounds presented in retained counsel's
supplemental petition, nor did it specifically address appointed counsel's
claim of a present denial of effective assistance by reason of the state's
refusal to relieve appointed counsel and grant a stay to allow new counsel
an opportunity to assume representation and take such action as they might
deem appropriate. |
| [29] | Shaw then noted appeal to the United States Court of
Appeals for the Fourth Circuit and applied to me for stay of execution
incident to the appeal. I was advised at the hearing before me that
following the denial of relief in district court, Shaw,
through his retained counsel, had now commenced statutory post-conviction
proceedings in the state court system, and have assumed that to be the
fact. |
| [30] | III |
| [31] | There is no developed body of precedent to guide the decision to grant
or deny a stay of imminent execution of a death sentence. The wholly
unique situation presents a wholly unique problem in the administration of
criminal justice. Mr. Justice Rehnquist has captured both the general
situation and the problem, and has appropriately identified the essential
considerations for decision in the course of explaining his recent grant
of stay in Evans v. Bennett, 440 U.S. 1301, 99 S. Ct. 1481, 59 L. Ed. 2d 756
(1979). |
| [32] | There must come a time, even when so irreversible a penalty as that of
death has been imposed upon a particular defendant, that the legal issues
in the case have been sufficiently litigated and relitigated so that the
law must be allowed to run its course. If the holdings of our Court in
Proffitt v. Florida, 428 U.S. 242 (96 S.
Ct. 2960, 49 L. Ed. 2d 913) (1976), Jurek
v. Texas, 428 U.S. 262 (96 S. Ct. 2950, 49 L. Ed. 2d 929) (1976), and
Woodson v. North Carolina, 428 U.S. 280 (96
S. Ct. 2978, 49 L. Ed. 2d 944) (1976) are
to be anything but dead letters, capital punishment when imposed pursuant
to the standards laid down in those cases is constitutional; and when the
standards expounded in those cases and in subsequent decisions of this
Court bearing on those procedures have been complied with, the State is
entitled to carry out the death sentence. Indeed, just as the rule of law
entitles a criminal defendant to be surrounded with all the protections
which do surround him under our system prior to conviction and during
trial and appellate review, the other side of that coin is that when the
State has taken all the steps required by that rule of law, its will, as
represented by the legislature which authorized the imposition of the
death sentence, and the state courts which imposed it and upheld it,
should be carried out. |
| [33] | Id. at 1303, 99 S. Ct. at 1483. |
| [34] | This, it seems to me, defines as well and fully as can be the relevant
considerations. In the final analysis, there is required a practical
judgment whether in the particular situation "the legal issues have been
sufficiently litigated and relitigated that the law must be allowed to run
its course"; and whether the criminal defendant's entitlement to "all the
protections which . . . surround him under our system prior to conviction
and during trial And appellate review " (emphasis mine) have been
accorded. |
| [35] | My judgment, simply put, is that that point cannot fairly be thought
to have been reached in this case. To deny a stay in the circumstance
presented to me would be to prevent the following First instance decisions
being made in matters now actually pending in the courts, each in an
accepted, traditional avenue of post-conviction review of state court
criminal convictions: 1) a pending petition for rehearing of the denial of
certiorari by the Supreme Court of the United States; 2) a pending appeal
in the United States Court of Appeals from the denial by the district
court of a first petition for habeas corpus; 3) a pending post-conviction
proceeding in the state court system. None of these represents an attempt
to relitigate an issue already decided by the same tribunal before which
it is pending. Each, as indicated, lies within avenues of review so long
and so well established that they must be counted among the basic
"protections" with which our system has "surrounded" all persons convicted
of crime. Under these circumstances it seems imperative to me that the
jurisdiction of these courts to address the issues already regularly
pending before them must be preserved against mooting by execution of the
death sentence.*fn1 |
| [36] | I have been mindful that even with respect to issues pending for first
instance resolution, it may be appropriate to require a facial showing of
substance to justify a stay. See, e. g., Rosenberg v. United States, 346 U.S. 273, 288, 73 S. Ct. 1152, 97 L. Ed. 1607 (1953). But it seems
to me that the inquiry into substance properly stops with identification
of the nature of the issue, and with consideration as to whether it has
been already fairly litigated on the merits under procedures designed for
the purpose. In the very nature of proceedings on a motion for a stay of
execution, the limited record coupled with the time constraints imposed by
imminence of execution preclude any fine-tuned inquiry into the actual
merits. On the record before me, the issues presently pending in the
several courts must be accounted issues of substance that have not yet
been addressed by those courts and that can properly be addressed only by
them in the regular course of their procedures. It is on this essential
basis that I conclude that the jurisdiction of those tribunals must be
preserved for this purpose by stay of execution. |
| [37] | On this point I consider it of particular significance that the
Supreme Court of South Carolina has expressly recognized that the issue of
ineffective assistance of counsel is one properly addressed in the first
instance by a trial court equipped to make the necessary factual inquiry.
In Rogers v. State, 261 S.C. 288, 199 S.E.2d 761 (1973) the court noted
that the application of a defendant convicted of rape for post-conviction
relief under state procedures "was based entirely upon his claim that he
did not have the effective assistance of counsel because of their
incompetency in violation of his rights under the provisions of the
Constitution of the United States. "This allegation," the court continued,
"set forth a Prima facie violation of the (defendant's) constitutional
rights, and raised a question of fact which could only be determined in
the lower court by an evidentiary hearing." Id., 199 S.E.2d at 762. This
bespeaks a perception, with which I fully concur, that claims of
constitutionally ineffective assistance of counsel, certainly when
concerned with representation in capital cases, cannot adequately be
determined on a bare inspection of the documentary record and by taking
judicial notice of the general integrity, skill, and professional
responsibility of counsel. To deny a stay here would be to prevent
prosecution of a pending state post-conviction proceeding designed to
conduct exactly the sort of inquiry mandated in Rogers as a matter of
procedural right. Beyond that it would effectively foreclose any federal
collateral review with benefit of a state evidentiary record on an issue
as to which the jurisdiction of the federal courts has been
invoked. |
| [38] | IV |
| [39] | I have considered the possibility of deliberate dilatoriness in the
assertion of the protections to which Shaw, as any other, is
entitled under the rule of law. The state is obviously entitled finally to
exercise its legislative will without subjection to that tactic, however
understandable may be the impulse to employ it against the irreversible
judgment it defers. The constitutionally enforceable obligation to stay
execution runs only to the point where all the post-conviction protections
have been fairly accorded and not beyond into the realm of mere
possibility that something not yet considered may yet emerge in the minds
of old or new counsel, or that error of substance in decisions already
made may emerge from the same source. There have been some suggestions in
this matter of a calculated effort to create by eleventh-hour tactics a
crisis of time to maximize the chance of last-minute judicial reprieve out
of an abundance of caution. I reject any such suggestion. |
| [40] | Without exhaustive recapitulation of the course of proceedings earlier
summarized, I am satisfied that the record reveals an exercise of
expedition in the assertion of rights that utterly belies the suggestion.
The essential problem in terms of time and its effective utilization to
this point flows from the legislatively imposed four-week time frame
between affirmance of conviction upon direct appeal and mandated execution
date rather than any apparent dilatoriness of counsel.*fn2 |
| [41] | Finally, I have considered the question of the authority of the
persons who before me claimed the right to represent Shaw at
this stage of the proceedings. This is a matter of rightful concern in
assessing the right of the state to exercise its legislative will free of
unauthorized intrusions into the legal process by persons seeking to stay
an execution. I am satisfied of the Bona fides of the representation. In
view of the awkwardness of the situation created for appointed counsel by
Shaw's desire to raise the issue of the effectiveness of
their assistance, the conduct of both appointed and retained counsel in
the matter before me was of the highest order. |
| [42] | On this point, appointed counsel renewed before me a prayer that they
be now relieved as counsel. I declined to do this, on two bases. First, I
doubt the propriety of asserting such a power in the limited context in
which I was acting on an application for stay. Second, it seemed obvious
that Shaw's effective representation in the matter before me
could best be undertaken by joint representation under the lead of his
retained counsel. This arrangement was agreed to by both sets of counsel
and was handled in a professionally exemplary manner by both. The matter
of further representation seems to me best left to other tribunals in
subsequent proceedings. |
| [43] | V |
| [44] | For the reasons given, an order staying execution for the stated and
limited purpose of allowing expeditious pursuit of available avenues of
post-conviction review has been entered. In recognition of the continuing
obligation of this court in the matter, jurisdiction of the order is
retained in the district court, whose order denying stay is vacated. To
emphasize the court's continuing obligation to protect the interests of
the state as recognized in this opinion, the willingness of the court to
entertain motions by the state suggesting a failure of expeditious pursuit
of remedies by the petitioner is expressly noted. In deference to
principles of comity, and in direct response to a suggestion of the
Assistant Attorney General for the State of South Carolina, the order also
expresses a willingness to entertain a motion by the state to dissolve
this stay order if, as was represented might eventuate, the Supreme Court
of South Carolina should resolve itself to stay the execution pending
exhaustion of post-conviction review procedures. |
| [45] | SO ORDERED. |
|
| |
| Opinion Footnotes | |
|
| |
| [46] | *fn1
In strict contemplation it is presumably the case that my power under 28
U.S.C. § 2251 extends only to preservation of the jurisdiction of the
court of appeals and the district court before whom the petition for
habeas corpus is pending. In practical effect the stay thus operates to
preserve the jurisdiction of all courts against mooting. |
| [47] | *fn2
It is completely unrealistic to suppose a practical ability to exhaust
normal avenues of post-conviction review provided by both state and
federal law within such a time frame, even were every step to be taken
within the shortest conceivable time by both litigants and courts. The
mandatory execution date is of course subject to deferral by either
executive or judicial stay orders, and these are practically invited by
the law unless both courts and the executive are prepared to allow state
and federal procedural rights of review duly set in motion within the
four-weeks period to be foreclosed practically at the threshold by
execution of the defendant. |