Benjamin A. Berry, Petitioner-appellant, v. C. Paul Phelps, Secretary of Department of Corrections Andhilton Butler, Warden of Louisiana State Prison,angola, Louisiana, Respondents-appellees, 819 F.2d 511 (5th Cir. 1987)

Benjamin A. Berry applies for a certificate of probable cause to authorize appeal to this court from a judgment of the district court denying his third federal petition for a writ of habeas corpus. Berry also seeks a stay of execution.

Berry raises two issues on appeal: (1) whether the prosecutor's reference during closing argument to the availability of appellate review violated federal due process, see Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985) (Caldwell claim); and (2) whether the Louisiana capital sentencing statute is unconstitutional because it allows the jury to base its sentence on aggravating factors that duplicate the elements of the underlying offense, see Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, --- U.S. ----, 106 S. Ct. 546, 88 L. Ed. 2d 475 (1985) (Collins claim). We agree with the district court that Berry has not made a substantial showing of the denial of a federal right; accordingly we deny a stay of execution and deny the application for certificate of probable cause.

Berry was sentenced to death by electrocution after his conviction for the first degree murder of Robert Cochran, a Jefferson Parish Deputy Sheriff. Berry shot Cochran while Berry and others were attempting to commit an armed bank robbery. A more detailed account of the facts surrounding Berry's crime is provided in State v. Berry, 391 So. 2d 406, 409 (La.1980), cert. denied, 451 U.S. 1010, 101 S. Ct. 2347, 68 L. Ed. 2d 863 (1981). Berry is now scheduled to be executed on June 7, 1987.

The Louisiana Supreme Court affirmed Berry's conviction and sentence on direct appeal. State v. Berry, 391 So. 2d 406 (La.1980). The Louisiana Supreme Court also denied Berry's first state petition for habeas corpus. State v. Berry, 430 So. 2d 1005 (La.1983).

Following the denial of habeas relief in the state court, Berry filed his first petition for federal habeas relief and raised eight claims; he included a Caldwell claim but did not include a Collins claim. The district court denied relief on all claims and Berry appealed that denial to this court. On appeal, Berry complained of the district court's denial of only two of the claims presented in his petition: ineffective assistance of counsel and exclusion of prospective jurors opposed to the death penalty. We rejected Berry's arguments on the two claims he presented to us and affirmed the district court's denial of habeas relief. Berry v. King, 765 F.2d 451 (5th Cir. 1985).

In Berry's second federal habeas round, he raised a single issue: whether the State of Louisiana discriminatorily administered its death penalty against defendants accused of killing Caucasians. See McCleskey v. Kemp, --- U.S. ----, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987). Berry failed to raise either of the two claims he presents to us today. Berry's second petition for federal habeas relief was denied by the district court, Berry v. Phelps, 639 F. Supp. 1515 (E.D. La. 1986), and we affirmed, Berry v. Phelps, 795 F.2d 504 (5th Cir. 1986).

Berry's instant federal habeas petition--his third--was denied by the district court in an oral opinion on June 3, 1987. The district court dismissed the petition based on the abuse of the writ doctrine. Rule 9(b), 28 U.S.C. foll. Sec. 2254. This appeal followed.

Berry now argues that the prosecutor's closing statement during the sentencing phase of his trial violated Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985). Caldwell held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Id. at 328-29, 105 S. Ct. at 2639. In Caldwell, the prosecutor told the jury that "your decision is not the final decision.... Your job is reviewable." Id. at 325, 105 S. Ct. at 2637.

We need not reach the merits of this argument, however, because Berry failed to raise these claims in his second federal writ application. We agree with the district court that the present assertion of this claim constitutes an abuse of the writ. Rule 9(b), 28 U.S.C. foll. Sec. 2254. We further agree that it is appropriate to bar the claim on that ground.

It is well settled that "the piecemeal presentation of post-conviction attacks on confinement cannot be tolerated." Daniels v. Blackburn, 763 F.2d 705, 706 (5th Cir. 1985). Woodard v. Hutchins, 464 U.S. 377, 104 S. Ct. 752, 78 L. Ed. 2d 541 (1984). Berry's attempt to raise in this habeas petition the Caldwell claim is a clear attempt to present piecemeal his post-conviction attack; it therefore is an abuse of the writ.

Berry has been represented by counsel at every step of this litigation. Counsel argued on direct appeal to the Louisiana Supreme Court that the trial court erred in allowing the prosecutor to suggest that the jury's imposition of the death penalty was subject to appellate review. Counsel raised the same issue in his first state habeas petition and again in his first federal habeas petition.¹  Thus, Berry and his counsel were well aware of this claimed error. In June 1985, the Supreme Court announced its decision in Caldwell and explicitly held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that a responsibility for determining the appropriateness of the defendant's death rests elsewhere." Caldwell, 472 U.S. at 328-29, 105 S. Ct. at 2639. Thus, in the unlikely event that counsel was entitled to harbor any reservations about the legitimacy of such an argument, see Maggio v. Williams, 464 U.S. 46, 54-56, 104 S. Ct. 311, 315-17, 78 L. Ed. 2d 43 (1983) (Stevens, J., concurring); Moore v. Blackburn, 774 F.2d 97 (5th Cir. 1985), such reservations were laid to rest by Caldwell.

Notwithstanding the unambiguous teaching of Caldwell, when Berry filed his second writ application in July 1986, more than one year from the date Caldwell was announced, Berry did not present the Caldwell claim.

Competent counsel would have been aware of Caldwell in July of 1986; we therefore agree with the district court that Berry cannot excuse his failure to include a Caldwell claim predicated on the argument that he was unaware of the Caldwell decision. As we recently stated in Daniels v. Blackburn, 763 F.2d 705 (5th Cir. 1985): "Even if [Berry] could prove at an evidentiary hearing, the personal ignorance that he has asserted, 'that [proof] would not be enough because [Berry] is chargeable with that awareness that a competent lawyer would have possessed.' " Id. at 710 (quoting Jones v. Estelle, 722 F.2d 159, 169 (5th Cir. 1983)).

We were presented with virtually the identical issue the instant case presents in Moore v. Blackburn, 774 F.2d 97 (5th Cir. 1985). In Moore, the petitioner, in his first habeas petition, filed before Caldwell was announced, asserted that the Louisiana Supreme Court failed to adequately consider that the death penalty was imposed as a result of "arbitrary factors including ... the injection of appellate review." 774 F.2d 98. In resolving the claim in the first habeas petition, we held that: "Moreover, we do not believe that the prosecutor's brief reference to appellate review diminished the jury's sense of responsibility for its sentence." Moore v. Maggio, 740 F.2d 308, 320 (5th Cir. 1984) (citing Corn v. Zant, 708 F.2d 549, 556-58 (11th Cir. 1983); McCorquodale v. Balkcom, 705 F.2d 1553, 1556 (11th Cir. 1983)).

After Caldwell was decided, Moore filed a second writ application and again asserted a claim predicated on the prosecutor's reference to appellate review. We rejected the claim for the following reasons:

Raised here for the second time, the issue is barred by Rule 9(b) and the principles enunciated in Sanders [v. U.S., 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148]. We ruled in the previous petition that "the prosecutor's brief reference to appellate review [did not] diminish [ ...] the jury's sense of responsibility for its sentence." 740 F.2d at 320. This pronouncement is consistent with the rule set forth in Caldwell. Alternatively, even if we were to conclude that this issue is being raised in this petition for the first time, we must deny it as an abuse of the writ, Rule 9(b). In Jones v. Estelle, 722 F.2d 159 (5th Cir. 1983) (en banc), we ruled that new claims in a successive petition must be dismissed if the failure to include them in a prior petition is an abuse of the writ. Claims must be included in the prior petition if a competent attorney should have been aware of the claims at the time of the prior petition. Id. at 169. That a competent attorney should have been aware of this claim is apparent from the Supreme Court's Caldwell opinion. See 105 S. Ct. at 2642.

Moore, 774 F.2d at 98.

Even if Berry had an acceptable excuse for his delay in asserting this claim, the claim has no merit. We read Caldwell as standing for the proposition that a prosecutor's remark would be unconstitutional only if it diminished the jury's sense of responsibility for its sentence.

In the instant case, the prosecutor stated in closing argument of the sentencing phase of Berry's trial that:

There is another provision of the act which says that the Supreme Court of Louisiana shall review every sentencing of death to determine if it is excessive. Every possible safeguard where a defendant for whom the jury is decided, who the D.A. has decided, who the judge has decided, who shall be sentenced to death shall go to the ultimate court of this state, and they will also determine is that sentence excessive, was the jury [erroneous] when they reached their verdict.

We agree with the district court that the prosecutor's brief remark did not deny Berry a fundamentally fair sentencing determination. First, the prosecution in the instant case made a brief, almost passing reference to appellate review. In contrast, the prosecutor in Caldwell made a direct attack on the defendant's case for mitigation. The prosecution's attack was in response to defense counsel's attempt to confront the jury with the gravity of its responsibility in determining whether it should impose the death sentence.² 

Second, the prejudicial effect of the prosecutor's remarks in Caldwell was then magnified when the trial court put its stamp of approval on the prosecutor's statement. In the instant case no objection was made to the prosecutor's reference to appellate review, and the trial court had no occasion to comment on its propriety.

Finally, the trial court in the instant case, instead of reinforcing the improper argument, instructed the jury that they must decide whether Berry should receive the death sentence.

In summary, the brief remarks of the prosecutor in this case, like those in Moore v. Blackburn, 774 F.2d 97 (5th Cir. 1985), did not diminish the jury's sense of responsibility for its sentence.

Berry argues next that the Louisiana capital sentencing scheme is unconstitutional because it allows a defendant to be sentenced to death based upon aggravating circumstances that may duplicate the essential elements of the underlying offense.³  Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985); Woodard v. Sargent, 806 F.2d 153 (8th Cir. 1986). The Supreme Court has held that statutory aggravating circumstances must "genuinely narrow the class of persons eligible for the death penalty" in order to comply with the eighth amendment. Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 2742, 77 L. Ed. 2d 235 (1983). In Collins, the Eighth Circuit held that " [w]e see no escape from the conclusion that an aggravating circumstance which merely repeats an element of the underlying crime cannot perform this narrowing function." Collins, 754 F.2d at 264.

Even though Collins was decided on January 31, 1985, Berry failed to raise the issue in his second petition for federal habeas corpus which he filed in July of 1986. Berry's counsel seeks to excuse this failure on grounds that Collins did not come to his attention until Justice White commented in March of 1987 that the Fifth and Eighth Circuits had conflicting rules on this question. See Williams v. Ohio, --- U.S. ----, 107 S. Ct. 1385, 1387, 94 L. Ed. 2d 699 (1987) (Brennan, Marshall, White, J.J., dissenting). We agree with the district court that this "can hardly be used as counsel's excuse now for suddenly perceiving that there was some conflict among the circuits when counsel had the benefit of both decisions and the ability to compare them himself at least five months prior to the time he filed the second writ seeking only a resolution of and raising only the so-called McCleskey issue." We conclude therefore that Berry has failed to justify his failure to include this claim in his July 1986 habeas petition, and his assertion of that claim in the instant petition is an abuse of the writ. Jones v. Estelle, 722 F.2d 159 (5th Cir. 1983); Maggio v. Williams, 464 U.S. 46, 55, 104 S. Ct. 311, 316, 78 L. Ed. 2d 43 (1983) (Stevens, J. concurring). We agree that it is appropriate to bar the claim on this ground.

Even if Berry's excuse justifies his abuse of the writ, we find no merit to the claim. No circuit court has followed the Eighth Circuit decision in Collins, and we have expressly rejected it on several occasions. Evans v. Thigpen, 809 F.2d 239 (5th Cir. 1987); Wingo v. Blackburn, 783 F.2d 1046 (5th Cir. 1986); Lowenfield v. Phelps, 817 F.2d 285 (5th Cir. 1987). This claim for relief is meritless.

Berry's final contention is that we should grant him a stay of execution because of the Supreme Court's recent decision to stay the execution in Welcome v. Blackburn, --- U.S. ----, 107 S. Ct. 1985, 95 L. Ed. 2d 825 (1987). We disagree. In the absence of a declaration by the Supreme Court that executions should be stayed in cases presenting this issue, we must follow our circuit's precedents and deny both a certificate of probable cause and a stay of execution. Wicker v. McCotter, 798 F.2d 155 (5th Cir. 1986); Evans v. Thigpen, 809 F.2d 239 (5th Cir. 1987). We therefore reject Berry's request for a stay of execution.

For all of the reasons stated above, we conclude that Berry has not made a substantial showing of the denial of a federal right. Barefoot v. Estelle, 463 U.S. 880, 883, 103 S. Ct. 3383, 3389, 77 L. Ed. 2d 1090 (1983). The application for a certificate of probable cause is DENIED; and the request for a stay of execution is DENIED.