Floyd M. Doby, Jr., Appellee, v. South Carolina Department of Corrections; Commissionerwilliam Leeke; Warden George Martin; State Ofsouth Carolina; and the Attorneygeneral of the State of Southcarolina, Appellants, 802 F.2d 718 (4th Cir. 1986)

The South Carolina Department of Corrections (the state) appeals from the district court's grant of a writ of habeas corpus to petitioner, Floyd M. Doby, Jr., a South Carolina prisoner. In an earlier habeas proceeding brought by Doby (Doby I), we ruled that the writ should issue unless South Carolina retried him. We concluded that Doby's Fourteenth Amendment right to due process was violated during his murder trial when the judge relied on the truth of his confession in ruling on its admissibility. On remand, the South Carolina court, prior to a scheduled new trial, held a de novo suppression hearing on Doby's confession and, without considering its truth, determined that it was constitutionally admissible.¹  The court reinstated Doby's conviction and declined to retry him. Doby then instituted this action claiming that our mandate in Doby I required either a complete new trial or his release. Feeling bound by the literal language of our mandate, the district court granted the writ, but delayed its issuance pending out preliminary review. We stayed issuance of the writ and now reverse the judgment of the district court.

In November 1981, Doby filed his first petition for a writ of habeas corpus in the United States District Court for the District of South Carolina. Doby alleged that his Fifth Amendment privilege against self-incrimination had been violated, because the state trial judge had impermissibly relied upon the truth of his confession in determining that it was voluntarily made and admissible. In August 1983, the district court denied the petition. Doby appealed, and in August 1984, this court, with two of the members of the present panel then sitting, reversed the judgment of the district court and held that the trial court's reliance on the apparent truth of the confession had violated the principles of Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961). It was clear to us that in admitting Doby's confession the trial judge had relied on his belief that Doby's confession was true.² 

We remanded the matter to the district court with instructions that "the writ of habeas corpus be issued, first allowing South Carolina a reasonable time in which to commence a new trial on the charges, should it so choose." Doby v. South Carolina Department of Corrections, 741 F.2d 76, 79 (4th Cir. 1984), cert. denied, 471 U.S. 1107, 105 S. Ct. 2343, 85 L. Ed. 2d 858 (1985). On remand, the district court ordered "that the state of South Carolina be granted seventy (70) days from May 13, 1985, either to retry or to release the prisoner from custody." The petitioner's second trial was then scheduled for August 12, 1985, in the South Carolina Court of General Sessions.

On August 9, 1985, prior to the scheduled trial, the South Carolina court addressed Doby's motion to suppress the same confession that had been admitted at the first trial. The state court considered the circumstances surrounding the taking of the confession, and, without considering the truth of the confession, found that the confession was given voluntarily and therefore was admissible. As a result of the hearing, the court reinstated Doby's sentence and did not proceed with the scheduled trial.

On August 14, 1985, Doby filed a second petition for habeas corpus. He did not challenge the state trial court's determination that his confession was voluntary. Instead, he argued that because South Carolina had failed to retry him within a reasonable time, the district court should comply with the Fourth Circuit's mandate to release him. The district court, appreciative of the limitations on the scope of its powers in construing mandates, concluded that it was required to issue the writ of habeas corpus. However, the district court delayed the issuance of the writ for thirty days, until January 29, 1986, to allow the state time to appeal. The South Carolina Department of Corrections in its appeal argues that it effectively complied with the Fourth Circuit's mandate by holding a hearing to determine the voluntariness of Doby's confession.

It is axiomatic that the Fifth Amendment forbids the use in a criminal trial of any involuntary confession made by the defendant. Rogers v. Richmond, 365 U.S. at 540-41, 81 S. Ct. at 739-40. A determination of voluntariness is inadequate if the trial judge considers the truth or reliability of the confession in deciding whether or not it was freely made. Id. at 543-44, 81 S. Ct. at 740-41. Where a state has failed to provide an adequate determination of voluntariness, a defendant's conviction cannot stand without further proceedings to resolve the voluntariness issue. Jackson v. Denno, 378 U.S. 368, 391-92, 84 S. Ct. 1774, 1788-89, 12 L. Ed. 2d 908 (1964). Those proceedings should take place in the state courts, though, and not in the federal habeas corpus court.³  Although the state must institute further proceedings in these circumstances, such proceedings need not include a complete new trial. After an evidentiary hearing, the state trial court may, as here, determine that the confession was given voluntarily and is admissible in evidence. In that event, there is no constitutional necessity for a new trial, because the defendant has already been tried and convicted by a jury with the confession placed before it. Id. at 394, 84 S. Ct. at 1790; United States v. Gonzalez, 736 F.2d 981, 983 (4th Cir. 1984); see also Boles v. Stevenson, 379 U.S. 43, 85 S. Ct. 174, 13 L. Ed. 2d 109 (1964) (modifying the Fourth Circuit's judgment to require only an evidentiary hearing rather than a complete new trial). A state defendant who has been afforded such a post-trial voluntariness determination generally is not entitled to further relief in the federal courts. Swenson v. Stidham, 409 U.S. 224, 229-30, 93 S. Ct. 359, 362-63, 34 L. Ed. 2d 431 (1972).

We held in Doby I that it was clear from language used by the trial judge that he had considered the truth of Doby's confession--a consideration prohibited by the United States Supreme Court. Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961). We instructed the district court to issue the writ of habeas corpus "first allowing South Carolina a reasonable time in which to commence a new trial on the charges, should it so choose." After the district court ordered the state to retry or release Doby within a specific period, the state court scheduled the trial within that period--namely, for August 12, 1985. Prior to trial, however, Doby again moved that his confession be suppressed and the trial court again conducted a hearing after which it determined properly that the confession had been given voluntarily. The trial court interpreted Jackson v. Denno as generally not requiring a new trial under those circumstances and reinstated Doby's sentence without conducting a new trial. We agree with this interpretation of Jackson v. Denno. Under the discrete circumstances of this case, the state court's suppression hearing prior to the scheduled second trial effectively complied with our mandate.

The judgment of the district court is, therefore, reversed.

REVERSED.