Yates v. Aiken Brief for Petitioner

    No. 86-6060

IN THE

S u p re m e  C o u r t of tfje Vnitefc S ta te d
Octo ber  T e r m , 1986

D a l e  Ro bert  Ya tes , 

v.
Petitioner,

Ja m e s  A ik e n , Wa r d e n , a n d  th e  At to r n ey  
Ge n e r a l  of S outh  C a r o lin a ,'

Respondents

On Writ Of Certiorari Tb The 
Supreme Court Of South Carolina

BRIEF FOR PETITIONER

David I. Bruck*
(Appointed by this Court)
J ohn H. Blume 
Bruck & Blume 
1247 Sum ter S tree t 
Suite 202 
P.O. Box 11311
Columbia, South Carolina 2§211 
(803) 765-0650

* Counsel of Record Counsel for Petitioner

PRESS OP RAM PRINTING, HYATTSVILLE, MD 20711 (3011 H64-0M2

QUESTION PRESENTED t
May South Carolina avoid compliance with this Court’s 

previous order requiring 
case in light of Francis v. Frayiklin 
constitutional principles of Francis to be



11

TA BLE O F CONTENTS
Page

Ta b l e  of  Au t h o r i t i e s ..........................................................  iii
C itation To Opin ion  Be l o w .............................................  l
J u r i s d i c t i o n .............................................................................  1
C o n s t i t u t i o n a l  a n d  S t a t u t o r y  P r o v i s i o n s

I n v o l v e d ...........................................................................  2
Sta t em en t  of  t h e  Ca s e ...................................................... 2

A. How The Francis v. Franklin  Violation Occurred At
Trial .................................................................................... 3

B. How the Francis v. Franklin  Issue Arose On Collat­
eral R e v ie w ....................................................................... 7

C. How The Retroactivity Issue Arose On Remand . .  8
S ummary Of  A r g u m e n t ...................................................... 11
Ar g u m e n t .............................................................................  13

South  Caro lina  Was Not E n t i t l e d  to Avoid 
C o m p l i a n c e  W ith T h i s  C o u r t ’s P r e v i o u s  
R eman d  Ord e r  By Dec la rin g  t h e  Co n s t i t u ­
t i on a l  P r i n c i p l e s  of  F k a n c i s  v. F k a n k u n  to 
B e  N o n -Re t r o a c t i v e ..................................................  13

A. C ontrary  To The South Carolina Suprem e Court's
A ssertion  Below, The R etroactiv ity  Of Decisions 
Prohibiting Burden-Shifting Ju ry  Instructions In 
Criminal Cases Is A Question Of Federal Law . . .  13

B. Because N either Francis v. Franklin  nor State v.
Elmore Announced Any “New” Principle Of Law, 
N either Case Presents Any Issue Of Retroactive 
Application .......................................................................  17

C. Even If Francis v. Franklin  Had Announced New
Constitutional Doctrine, Full Retroactive Applica­
tion Would Be Required Because Francis is  P ri­
marily Designed To Safeguard The Truth-Seeking 
Function Of Criminal T r i a l s .........................................  22

D. The Fact That This Case Arises On S tate R ather
Than Federal Post-Conviction Review Does N ot 
Affect Its  R eso lu tio n ...................................................... 26

Co n c l u s i o n ................................................................................ 28

TABLE OF AUTHORITIES
Cases Page
Allen  v. Hardy, 478 U .S .____, 106 S.C t. 2878

(1986) ........................................................................ 11 ,24 ,26
Batson  v. Kentucky, 476 U .S_____, 106 S.C t. 1712 (1986) 26
Brown v. Louisiana, 447 U.S. 323 (1980)....................... 16, 28
Cook v. Foltz, 814 F.2d 1109 (6th Cir. 1987)........................ 19
County Court o f Ulster County v. Allen, 442 U .S. 140

(1979).................................................................................... 13
Desist v. United States, 394 U.S. 244 (1969)...........  20, 21, 24
DeStefano v. Woods, 392 U.S. 631 (1968)............................  23
Dobbs v. Kemp, 790 F.2d 1499, 1507-1509 (11th Cir. 1986),

cert, denied, 480 U.S. ------(No. 86-6603) (May 18,
1987)...................................................................................... 22

Engle v. Isaac, 456 U.S. 107 (1982)..................................... 19
Flowers v. Blackburn, 779 F.2d 1115 (5th Cir.), cert.

denied, 476 U .S_____ , 106 S.C t. 1661 (1986) . . . . . .  22
Francis v. Franklin, 471 U.S. 307 (1985)...............  1, passim
Gosa v. Mayden, 413 U.S. 665 (1973)..................................  23
Griffith v. Kentucky, 479 U .S .------, 107 S.C t. 708

(1987) ...................................................................  16, passim
Hankerson  v. North Carolina, 432 U.S. 233 (1977)... 21, 25

iii

Henry  v. City of Rock Hill, 241 S.C. 427, 128 S .E .2d 775 
(1962), vacated and remanded, 375 U.S. 6 (1963), 
a ffd  on remand, 244 S.C. 74, 135 S .E .2d 718, rev’d
376 U.S. 7 76 (1964).......................................................... 15

H ym an  v. Aiken, 111 F.2d 938 (4th Cir. 1985), vacated on
other grounds, 478 U .S .------, 106 S.Ct. 3327 (1986) 22

In  re Winship, 397 U.S. 358 (1970)............................  18, 19, 25
Ivan V. v. City of New York, 407 U.S. 203 (1972).............  25
Johnson v. Blackburn, 118 F.2d 1044 (5th Cir. 1 9 8 5 ).... 18
Lee v. Missouri, 439 U.S. 461 (1979) (per curiam )...........  20
Linkletter v. Walker, 381 U.S. 618 (1965)............................  16
Lockett v. Ohio, 438 U.S. 586 (1978)....................................  27
M cC'orr "  Stat*. 287 S.C. 1*0, 337 S .E .2d 218 (1985) 9, 10
McKane v. Durston, 153 U.S. 684 (1894)............................  27
McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230 (1934) 27
Mackey v. United States, 401 U.S. 667 (1971).................  21
M artin  v. Hunter's Lessee, 1 W heat. 304 (1816)...............  27
Matarese v. LeFevre, 801 F.2d 9 8 ,107 (2nd Cir. 1986) ce~t. 

denied, 480 U .S_____ 107 S.Ct. 1353 (1987).............  22



IV

Table of Authorities Continued
Page

M ullaney  v. Wilbur, 421 U.S. 684 (1975)..............  13, passim
Pennsylvania  v. Finley, ____ U.S. ____, 55 U.S.L.W .

4612 (May 18, 1987)..........................................................  27
Patterson v. New York, 432 U.S. 197 (1977)...................... 19
Reed v. Ross, 468 U.S. 1 (1984).............................................  19
Roberts v. Russell, 392 U.S. 293 (1968)..............................  23
Rose v. Clark, 478 U .S _____ , 106 S.C t. 3101 (1986)___  22
Sandstrom  v. M ontana, 442 U.S. 510 (1979)...........  7, passim
Shea v. Louisiana, 470 U.S. [51] (1985).............................  9
Skipper v. South Carolina, 476 U .S_____, 106 S .C t. 1669

(1986).................................................................................... 27
Solem  v. Stum es, 465 U.S. 638 (1984)....................... 15, 16, 24
State v. Adams, 277 S.C. 115, 283 S.E .2d 582 .................  6
State v. Butler, 277 S.C. 543, 546, 290 S .E .2d 420 (1982) 6
State v. Crocker, 272 S.C. 344, 251 S .E .2d 764.................  17
State v. Crowe, 258 S.C. 258, 188 S.E .2d 379 ...................  4
State v. Drayton, 287 S.C. 226, 228, 337 S .E .2d 2 1 6 . . . .  6
State v. Elmore, 279 S.C. 781, 308 S.E .2d 781

(1983).........................................................................  7, passi7n
State v. Gilbert, 273 S.C. 690, 695-696, 258 S .E .2d 890

(1979).................................................................................... 7
State v. Mattison, 276 S.C. 235, 277 S .E .2d 598 (1981).. 17
State v. Patterson, 278 S.C. 319, 320-321, 295 S .E .2d 264

(1982).................................................................................... 7
State v. Patrick, 289 S.C. 301, 303, 345 S .E .2d 481 (1986) 17
State v. Peterson, 287 S.C. 244, 246,335S .E .2 d 800(1985) 6
State v. Stone, 285 S.C. 386, 330 S.E .2d 286 (1985).......  9
State v. Thompson, 278 S.C. 1, 292 S .E .2d 581 (1982) . .  4
State v. Williams, 266 S.C. 325, 223 S .E .2d 38 (1976)... 9
State v. Woods, 282 S.C. 18, 316 S.E .2d 673 (1984X . . . .  8, 14 
State v. Yates, 280 S.C. 29, 310 S.E .2d 805 (1982), cert.

denied, 462 U.S. 1122 (1983)...................................... 1, 4, 6
Stone v. Powell, 428 U.S. 465 (1976)..................................... 27
Stovall v. Denno, 388 U.S. 293 (1967)...................  11, passim
Swain  v. Alabama, 380 U.S. 202 (1965)..............................  26
Testa v. Katt, 330 U.S. 386 (1947)......................................... 27

v

Table of Authorities Continued
Page

Thompson v. Aiken, 281 S.C. 239, 315 S .E .2d 110 (1984)... 7 
Truesdale v. A iken, 480 U .S .____, 107 S .C t. 1394 (1987)

(per curiam ).............................................................  20, 21, 26
Truesdale v. Aiken, 289 S.C. 488, 347 S .E .2d 101 (1986) 27
Tucker v. Kemp, 256 Ga. 571, 351 S .E .2d 196 (1987)-----  19
United States v. Johnson, 457 U.S. 537

(1982)....................................................................... 12, passim
Wiley v. Rayl, 767 F.2d 679 (10th Cir. 1985)...................... 22
Williams v. United States, 401 U.S. 646, (19711 • • 12, 24, 25
Williford v. Young, 779 F.2d 405 (7th Cir. 1985)...............  22
Witherspoon v. Illinois, 391 U.S. 510 (1968)...................... 23
Yates v. Aiken, 474 U .S _____ , 106 S .C t. 218 (1985) 1 ,2 ,8 ,1 5
Yates v. Aiken, 290 S.C. 232, 349 S .E .2d 84 (1986) 1, passim  
Constitutional P rovisions, Statutes and Court

R ules
U.S. Const, a rt. V I ..................................................................  15
U.S. Const, amend. XIV, § 1 .................................................  2
28 U .S.C . § 1257(3)....................................................................  1
S.C. Const, a rt. V §5..........................................................2 ,7 , 28
S.C. Code § 14-3-310 (1976)...................................................  7, 28
S.C. Code Ann. § 16-3-10 (1976 )........................................... 4
S.C. Code Ann. § 16-3-10 (1986 Cum. S u p p .) ...................  2
S.C. S .C t.R . 50 (9 )....................................................................  9
T reatises
16 W right & Miller, Federal Practice & Procedure, § 4024 

(1977)...................................................................................  27



I

BRIEF FOR PETITIONER

CITATION TO OPINIONS BELOW

The opinion of the Supreme Court of South Carolir 
denying Dale Yates' petition for a writ of habeas corpus or 
remand from this Court is reported as Yates v. Aiken, \ 
S.C. 232, 349 S.E.2d 84 (1986), and is reproduced in the 
Joint Appendix [J.A.] at 30-39. The previous decision 
this Court granting petitioner’s petition for writ of cer 
tiorari, vacating the judgment of the South Carolina"! 
Supreme Court and remanding the case for reconsidera-Jj 
tion in light of Francis v. Franklin, 471 U.S. 307 (1985), is*
reported as Yates v. Aiken, 474 U .S .___ , 106 S.Ct.
(1985) and is reproduced at J.A. 29. The previous 
cu ria m  order of the South Carolina Supreme Court deny-i 
ing Yates’ petition for habeas corpus is unreported, and i* 
reproduced at J.A. 27. The original opinion of the South 
Carolina Supreme Court affirming petitioner's convic­
tions and death sentence on direct appeal is reported as 
State v. Yates, 280 S.C. 29, 310 S.E.2d 805 (1982), cert, 
denied, 462 U.S. 1122 (1983), and is reproduced at J.A. 
10-26.

JURISDICTION

The jurisdiction of this Court rests upon 28 U .S.C.f|
§ 1257(3), petitioner having asserted below and asserting 
here a deprivation of rights secured by the Constitution of 
the United States.

The judgment of the South Carolina Supreme Court 
was entered on September 29, 1986. The petition forJ. 
certiorari was filed on December 19, 1986, and was ?' 
granted on March 30, 1987.



CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED

This case involves the Fourteenth Amendment to the 
Constitution of the United States, which provides in per­
tinent part:

“[N]or shall any state deprive any person of life . . . 
without due process of law . . . ”

This case further involves S.C. Code Ann. § 16-3-10 (1986 
Cum. Supp.), which provides:

Murder” is the killing of any person with malice 
aforethought, either express or implied.

It further involves S.C. Const, art. V, § 5, which provides 
in pertinent part:

The Supreme Court shall have power to issue writs 
or orders of . . . habeas corpus, and other original 
and remedial writs.

STATEMENT OF THE CASE

Ordered by this Court to reconsider the constitu­
tionality of the malice instructions given at petitioner’s 
trial in light of Francis v. Franklin, 471 U.S. 307 (1985)
Yates v. Aiken, 474 U.S----- , 106S.Ct. 218(1985); J. A. at
29, the South Carolina Supreme Court acknowledged the 
constitutional invalidity of the challenged instructions 
under Francis, but nevertheless declined to vacate peti­
tioner’s conviction on the grounds that the constitutional 
principles set forth in Francis were not to be applied 
retroactively to cases already final on direct appeal at the 
time that Francis was decided. Yates v. Aiken, 290 S.C. 
232, 349 S.E.2d 84 (1986), J.A. 30-34. The question now 
before this Court is the correctness of the state court’s 
retroactivity holding.

3

A. How The Francis v. Franklin Violation Occurred At lYial

The petitioner and an accomplice, Henry Davis, robbed 
a country store in Greenville County, South Carolina.. 
During the robbery, petitioner shot and slightly wounded 
one of the proprietors, Willie Wood, and then ran out of 
the store carrying some stolen money. Yates v. Aiken, % 
supra, 290 S.C. at 237, 349 S.E.2d at 87, J.A. at 35. Atjj 
about that time, Mr. Wood’s mother, Helen Wood, enteredi 
the store. While petitioner sat in the car outside, Davis, 
who remained inside the store, stabbed Mrs. Wood to | |  
death. Mr. Wood then seized a pistol and shot and killed^, 
petitioner’s accomplice, Henry Davis. Petitioner was sub­
sequently found guilty of Mrs. Wood’s murder. Id .1

At trial, petitioner contended that he had abandoned the 
robbery prior to Mrs. Wood’s arrival in the store, and that he had 
not intended that she be killed. Indeed, as the South Carolina 
Supreme Court recognized, petitioner had fled the store at about 
the time Mrs. Wood arrived, State v. Yates, supra, 280 S.C. 
at 33, 310, S.E.2d at 807-808, J.A. at 11, and petitioner 
insisted at trial that he had never seen Mrs. Wood at any 
time before, during or after the crime. Tr. 1103.2 The 
South Carolina Supreme Court summarized petitioner’s 
trial testimony as having been to the effect that “he did 
not kill Mrs. Wood and that it was his intent all along to 
abandon the robbery without hurting anybody if the vic­
tim refused to co-operate.” 280 S.C. at 33, 310 S.E.2d at 
808, J.A. at 11.

1 He was also found guilty of conspiracy and armed robbery, and of 
assault and battery with intent to kill in connection with the shooting 
of Mr. Wood.

2 References to the transcript of petitioner’s trial are cited in this 
brief as “Tr."



An essential element of murder in South Carolina is 
that the killing was carried out with malice aforethought. 
S.C. Code Ann. § 16-3-10 (1976). In order to establish 
petitioner’s criminal liability for the homicidal act of his 
accomplice Davis, the prosecution relied on the law of 
parties, under which each member of an unlawful conspir­
acy is criminally liable for all of the acts of his co-conspir­
ators. See State v. Crowe, 258 S.C. 258, 188 S.E.2d 379 
(1972).3 This legal principle did not, however, relieve the 
state of the burden of establishing the element of peti­
tioner’s own malicious mental state beyond a reasonable 
doubt: petitioner’s participation in a dangerous felony is 
not, under South Carolina law, a substitute for evidence of 
actual malice, but is merely a circumstance from which 
the jury is permitted to infer the existence of malice. See 
State v. Thompson, 278 S.C. 1, 7, 292 S.E.2d 581, 585 
(1982).4

Since state law required the jury to determine whether 
the state had proven the element of malice beyond a 
reasonable doubt, the trial judge undertook to define 
express and implied malice for the jury. The malice 
instructions, in their entirety, were as follows:

In order to convict one of murder, the State must 
not only prove the killing of the deceased by the 
defendant, but that it was done with malice 
aforethought, and such proof must be beyond a rea-

3 In accordance with state law, the trial judge charged the jury that 
when two or more parties combine together to commit a dangerous 
unlawful act which results in death, “the hand of one is the hand of 
all,” and all participating in the unlawful act are equally guilty of the 
murder. J.A. at 8.

4 The state did not rely on a felony-murder theory in its prosecution 
of petitioner. State v. Yates, supra, 280 S.C. at 34, 310 S.E.2d at 810 
J.A. at 17.

5

sonable doubt. Malice is defined in the law of homi­
cide as a technical term, which imports wicke 
and excludes any j ust cause or excuse for your actior 
It is something which springs from wickedness an 
excludes any just cause or excuse for your action. Itds 
something which springs from wickedness, frc~ 
depravity, from a depraved spirit, from a hes 
devoid of social duty, and fatally bent on cres 
mischief The words “express” and “implied” do not. 
mean different kinds of malice, but they mean dif­
ferent way s in which the only kind of malice known.to| 
the law may be shown.

Malice may be expressed as where previous' 
threats of vengeance nave been made or is wheref 
someone lies in wait for someone else to come by so] 
that they might attack them, or any other circum-s 
stances which show directly that an intent to kill was' 
really and actually entertained.

Malice may also be implied as where, althoughno| 
expressed intention to kill was proven by direct evi­
dence, it is directly and necessarily inferred from 
facts and circumstances which are, themselves, 
proved. Malice is implied or presumed by the la 
from the willful, deliberate, and intentional doing < 
an unlawful act u/ithout any fust cause or excuse^ 
its general signification, malice means the doing of 
wrongful act, intentionally, without justification|or 
excuse.

I tell you, however, that if the facts proven arey 
sufficient to raise a presumption of malice, that pre­
sumption is rebuttable, that is, it is not conclusive or 
you, but is rebuttable by the rest of the evidence, j 
tell you, also, that malice is implied or presumed 
from the use of a deadly weapon. I further tell you f 
that when the circumstances surrounding the use of 
that deadly weapon have been put in evidence and ■" 
testified to, the presumption is removed. And it 
ultimately remains the responsibility for you, ladie* 
and gentlemen, under all the evidence to make



6

determination as to whether malice existed in the 
mmd and heart of the killer at the time the fatal blow 
was struck.

There must be malice aforethought. While the law 
does not require that malice exists for any particular 
length of time before the commission of an act it 
must be aforethought; that is, it must exist for,’ at 
least, some time before the commission of the pre­
vious evil intent and the act which produces the evil 
result.

J.A. 6-7, Tr. 1207-12.08 (emphasis added).
After hearing these instructions, the jury convicted 

petitioner of the murder of Mrs. Wood, as well as of 
conspiracy, robbery, and assault on Willie Wood. He was 
sentenced to death on the murder charge, and his convic­
tions and death sentence were affirmed by the South 
Carolina Supreme Court. State v. Yates, 280 S.C. 29, 310 
S.E.2d 805 (1982), cert, denied, 462 U.S. 1162 (1983).

Petitioner did not object to the malice instructions at 
trial nor did he assign them as error on direct appeal. 
However, in affirming petitioner’s conviction the South 
Carolina Supreme Court stated that while “[ijssues not 
argued are normally not considered by this Court but in 
light of the penalty involved, we have considered all 
exceptions and the entire record to ascertain if there has 
been committed prejudicial error; we find none." State v 
Yates, 280 S.C. at 45, 310 S.E.2d at 814, J.A. at 26.«

The fact that petitioner did not object to the malice instructions at 
trial or on direct appeal creates no procedural bar under South 
Carolina law. The South Carolina Supreme Court has consistently 
refused to recognize procedural default in capital cases, State v 
Drayton, 287 S.C. 226, 228, 337 S.E.2d 216, 217 (1985); State v 
Peterson, 287 S.C. 244, 246, 335 S.E.2d 800, 801 (1985); State v. 
Butler, 277 S.C. 543, 546, 290S.E.2d 420,421(1982); Statev. Adams,

7

B. How The Francis v. Franklin Issue Arose On Collateral ’ 
Review

Tten months after its decision in petitioner’s case,* 
South Carolina Supreme Court reversed a capital mi 
conviction on the basis of malice instructions virti 
identical to those given at petitioner’s trial. State 
Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983); seef  
State Woods, 282 S.C. 18, 316 S.E.2d 673 (1984). In ! 
Elmore and Woods, the state supreme court acknov 
edged that the malice instructions had created burd€ 
shifting mandatory presumptions.

Following Elmore and Woods, Yates filed a petition fox 
writ of habeas corpus in the South Carolina Supreme 
Court seeking vacation of his conviction for murderwS* C«j 
Const, art. V, § 5; S.C. Code Ann. § 14-3-310(1976). Ihh~ 
petition, Yates asserted that the instructions whi< ^ 
guided the jury at his trial created mandatory rebuttable 
presumptions of malice in violation of Sandstrom v., 
tana, 442 U.S. 510 (1979), and cited State v. Eh

277 S.C. 115,119,283 S.E.2d 582,584 (1981), and has reversed capita^ 
convictions and death sentences on grounds not raised by the.; 
appellants at any stage of the trial or appellate process. State v. 
Patterson, 278 S.C. 319, 320-321, 295 S.E.2d 264 (1982); State v. 
Gilbert, 273 S.C. 690 , 695-696, 258 S.E.2d 890, 894 (197&X In,) 
Thompson v. Aiken, 281 S.C. 239, 315 S.E.2d 110 (1984), moreover, 
the South Carolina Supreme Court granted post-conviction relief o n -  
the basis of a claim of improper prosecution jury argument which had i  
been raised for the first time on collateral attack after the death m  
sentence had become final on direct appeal. In view of South Car-:; 
olina’s clear rejection of procedural default in capital cases, peti*. 
tioner’s challenge to the malice instructions at issue here is not 
procedurally barred as a matter of state law, and the South C a ro l in a ^  
Supreme Court has never suggested otherwise.

k r l
38



supra, and State v. Woods, supra* In its return to the 
habeas petition, respondents denied that the challenged
S o n e ^ rUCtl°nS/ i0lated dUG process- but consented to 
Hnn 1 requff l t0 consoIidate his habeas corpus peti- 

on challenging the instructions with the post-conviction
Petk?nnhf6n S ' ? the state supreme court. Return to PetUwn for Habeas Corpus, Yates v. Aiken, February 14,

On April 29, 1985, while petitioner’s habeas petition 
was pending before the South Carolina Supreme Court,
n o 8 ^ rt 5leClded Francis v- franklin , 471 U.S. 307
(1985). Two days later, petitioner submitted a supplemen­
tal memorandum asserting that Francis controlled his
n  ooqmred that his murder conviction be vacated 
On May 22, 1985, however, the South Carolina Supreme 
Court summarily denied habeas relief. J.A. at 27. Peti­
tioner then sought a writ of certiorari here. This Court 
granted the wnt, summarily vacated the judgment of the 
South Carolina Supreme Court, and remanded peti­
tioners case for further consideration in light of Francis 
v. b rankhn. Yates v. Aiken, 474 U.S 106 S Pt 9 is
(1985); J.A. at 28-29. «»a > .u .* 18

C. How The Retroactivity Issue Arose On Remand

Within a few days of the South Carolina Supreme 
Courts receipt of the mandate of this Court ordering

"This habeas corpus petition was filed together with a petition for 
wnt^of certiorari seeking state supreme court review of the denial of 
petitioner’s application for post-conviction relief. See J.A 1 The 
issues raised in the post-conviction relief application and the'state 
certioran petition were unrelated to petitioner’s Sandstrwn claim.

7 Respondent’s return stated that “(t]o assure continuity of these 
proceedings and prevent unnecessary multiple litigation. Respond­
ents have no objection to the consolidation motion to resolvVthe 
apparent issues.” Id., at 2

reconsideration of petitioner's case in light of Francis y, 
Franklin, the state supreme court issued a brie 
curiam order establishing for the first time the. 
nonretroactivity by which it ultimately disposed of ] 
doner’s constitutional claim. McClary v. State, 28JI i 
160, 337 S.E.2d 218 (1985). In McClary, a defendant 
sought post-conviction relief in a state trial court oi 
grounds that his trial counsel had been ineffecth 
failing to object to instructions which were later hel 
State v. Elmore, supra, to create unconstitutional raa 
datory rebuttable presumptions of malice.8 Follov ‘ 
denial of his application, the prisoner sought re\ 
way of a petition for writ of certiorari in the Sout 
olina Supreme Court. Rule 50(9) Rules of Practice ;bf the, 
South Carolina Supreme Court (Uniform Post-Conviction 
Procedure Act). The state supreme court normally does 
not issue opinions when it denies such petitions for <$scre-i  ̂
tionary review, and the retroactivity of Elmore and South‘d 
Carolina’s other recent decisions on burden-shifting jury 
instructions had not been briefed or otherwise raised bys 
the parties in McClary. The South Carolina court nev-* 
ertheless used the occasion of its denial review of Mc- 
Clary’s ineffective-assistance claim to announce, "adept- 
ing the reasoning of Shea v. Louisiana, 470 U.S. [51) 
(1985). . . Elmore's retroactive effect is limited to cases 
pending on direct appeal and will not apply to collateral 
attacks on criminal convictions.” McClary v. State}, 
supra, 287 S.C. at 161, 337 S.E.2d at 218.

.

9 i  f ,

• i
%

8 Because McClary was a non capital case, the defendant^ failure 
to object to the malice instruction at trial presumably barred aim ~£ 
from raising his Sandstrorn claim either on appeal or in post-convic­
tion proceedings. State v. Stone, 285 S.C. 386, 330 S.E.2d 286(1986); 
State v. Williamn, 266 S.C. 325, 223 S.E.2d 38 (1976).



In their-brief filed in the South Carolina Supreme Court 
on remand m this case, respondents relied upon McClary 
to argue for the first time that State v. Elmore’s prohibi- 
tion of mandatory rebuttable presumptions of malice 
should not be accorded retroactive effect in collateral 
proceedings such as this one. Brief of Respondents, Yates 
v. Aiken, supra, at 11. Respondents also argued, as they 
had in their Brief in Opposition to the petition for writ of 
certiorari in this Court, that the challenged instructions 
did not in fact create unconstitutional mandatory rebutta­
ble presumptions of malice. Finally, respondents asserted 
for the first time that the error, if any, was harmless. Id. 
at 19.

In its opinion on remand, the South Carolina Supreme 
Court summarily dismissed respondents’ contention that 
the challenged instructions satisfied current constitu­
tional standards by acknowledging that “[tjhe jury 
instruction at Yates’ trial suffered from the same infir­
mities present in Elmore and addressed in Francis v. 
Franklin.” Yates v. Aiken, 290 S.C. 232, 234, 349 S.E.2d 
84, 85 (1986); J.A. at 31. The South Carolina court nev­
ertheless denied relief. The sole basis for this denial was 
the court’s conclusion, first announced in its recent Mc­
Clary decision, that its prior holding in State v. Elmore 
which declared burden-shifting jury instructions to be 
unconstitutional, should not be applied to cases such as 
petitioner’s which were already final on direct appeal 
when Elmore was decided. 290 S.C. at 236, 349 S.E.2d at 
85-86, J.A. at 34. Despite the court’s acknowledgement 
that the malice instructions shared the constitutional 
defects of those at issue in Francis v. Franklin, the 
majority opinion characterized the issue before it as the 
retroactivity, under state law, of a “prior state decision ” 
State v. Elmore, and did not discuss the effect of the

federal constitutional character of petitioned claim 
the question of retroactivity. 290 S.C. at 234-236, 
S.E.2d at 85-86, J.A. at 31-34. Justice Finney dissent 
arguing that full retroactive application of Francis 
compelled by United States Supreme Court precedent,! 
and that Francis, Sandstrom and Elmore required 
petitioner be granted a new trial. 290 S.C. at 238-240,: 
S.E.2d at 87-89, J.A. at 36-39.

SUMMARY OF ARGUMENT

In refusing to carry out this Court’s order to reconside 
its prior denial of habeas corpus relief in light of Francis 
Franklin, 471 U.S. 307 (1985), the South Carol 
Supreme Court characterized the issue before it 
remand as involving the retroactivity of a “state decision, 
State v. Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983). “ 
fact, Elmore is nothing but South Carolina’s recognition 
of the constitutional principles of Sandstrom v. Montay 
442 U.S. 510 (1979), a case decided two years bef< 
petitioner’s trial, and neither the date nor the holding c 
Elmore has any bearing on South Carolina’s obligation to 1 
apply Sandstrom to the facts of petitioner’s case. Moj 
over, Francis v. Franklin established no new constit 
tional doctrine, but simply applied Sandstrom  to 
arguably different set of facts. Thus the issue of “ret 
tivity” identfied by the South Carolina Supreme Court is] 
illusory.

Even if a genuine question of retroactivity were raised1 
by Francis v. Franklin, this Court’s precedents govern­
ing the retroactivity of new constitutional rules of crimi­
nal procedure in collateral proceedings make clear that 
full retroactive application is required. Stovall v. Denno,
388 U.S. 293, 297 (1967); Allen v. Hardy, 478 U.S------ f
106 S.Ct. 2878,2080 (1986). Complete retroactive effectis

I



normally accorded to new constitutional rules whose 
mtwor purpose “is to overcome an aspect of the cn m iL

and^ soâ s e s Stantlaily impairS itS truth-findin« A ction  and so raises senous questions about the accuracy of
S f r ?  willia™  v- United States,
01 U.8. 646 653 (1971) (plurality opinion); United States

v. Johnson 457 U.S. 537, 544 (1982). The principle of 
Francis v. Franklin is unquestionably-sucha rule As

Z s t  “ vWyemhe C°Urt "  FmnCU the against evidentiary presumtions in a jury charge that
have the effect of relieving the S ta t e d f t s  bu^en of
persuasion beyond a reasonable doubt of every essential
element of a crime . . . protects the ‘fundam l J v i e
determination of our society . . . that it is far worse to

T an than t0 let a ̂  man t e e ’”4/1 U.S. at 313 (citations omitted). This makes clear that 
Francis is squarely among that category of constitutional
ff T n5 WhlCh are invariably accorded full retroactive 

effect. Moreover, the appropriateness of retroactive 
application !s all the greater here because no state could 
justifiably have relied on any contrary legal rule prior to 
Francis, and because the impact of full retroactive
application of Francis on the administration of justice will 
be minimal.

FWlly, the fact that this case arises on state rather 
than federal collateral review is without significance for 
the issue presented here. The retroactivity of federal 
constitutional decisions is a question of federal law to be 
determined by this Court. No state may maintain a pro­
cedure for adjudicating collateral attacks on criminal con­
victions while at the same time refusing to apply 
controlling federal law.

13

A. Contrary to the South Carolina Supreme Court’s asser­
tion below, the retroactivity of decisions prohibiting 
burden-shifting jury instructions in criminal cases is a 
question of federal law.

At the outset, petitioner wishes to clarify just what it is 
that the South Carolina Supreme Court has refused to 
apply in his case. The South Carolina court began its 
opinion on remand by acknowledging that the challenged 
jury instruction “suffered from the same infirmities . . . 
addressed in Francis v. Franklin, [471 U.S. 307 (1985)].” 
Yates v. Aiken, 290 S.C. 232, 234, 349 S.E. 2d 84, 85
(1986); J.A. at 31. However, the court then proceeded to 
frame the issue before it as involving the retroactivity of a 
“prior state decision,” State v. Elmore, 279 S.C. 417,308 
S.E.2d 781 (1983). On this basis, the court characterized 
the issue as one of state law only, and asserted that it had 
authority “to determine our own standards regarding 
retroactivity.” Yates v. Aiken, supra, 290 S.C. at 234,349 
S.E.2d at 85, J.A. at 31-32.

What this preamble to the South Carolina Supreme 
Court’s opinion overlooks is that State v. Elmore was 
simply South Carolina’s application of the constitutional 
principles set forth in Sandstrom v. Montana, 442 U.S. 
510 (1979), County Court of Ulster County v. Allen, 442 
U.S. 140 (1979), and Mullaney v. Wilbur, 421 U.S. 684 
(1975). In Elmore, the court sustained a federal con- 
titutional challenge to malice instructions materially 
indistinguishable from those given in this case. The

ARGUMENT

SOUTH CAROLINA WAS NOT ENTITLED TO AVOID 
COMPLIANCE WITH THIS COURT’S PREVIOUS REMAND 

ORDER BY DECLARING THE CONSTITUTIONAL 
PRINCIPLES OF FRANCIS V. FRANKLIN TO BE NON­

RETROACTIVE.



appellant in Elmore had asserted that these instructions 
“created a mandatory presumption of malice which uncon­
stitutionally relieved the prosecution of its burden to 
prove that element of the offense of murder beyond a 
reasonable doubt,” and cited this Court's decisions in 
Sandstrom and County Court of Ulster C(runty v. Allen, 
supra. Brief of Appellant at 24, State v. Elmore, supra. 
The South Carolina Supreme Court agreed with this con­
tention and reversed without any substantial discussion of 
the issue beyond its acknowledgement that the instruc­
tion of the presumption of malice from the use of a deadly 
weapon “constituted a mandatory presumption rather 
than a permissive inference.” Id., 279 S.C. at 421, 308 
S.E.2d at 784; accord State v. Woods, 282 S.C. 18, 316 
S. E.2d 673 (1984). Any possible doubt that Elmore repre­
sents anything other than the application of United States 
Supreme Court case law was removed, moreover, by the 
South Carolina Supreme Court's statement in its opinion 
on remand in this case that the jury instruction at peti­
tioner’s trial suffered from the same infirmity present in 
Elmore and addressed in Franklin. Yates v. Aiken, 
supra, 290 S.C. at 234, 349 S.E.2d at 85, J.A. at 31.

Accordingly, the Elmore case to which South Carolina 
has refused to accord retroactive effect in this case is a 
“state decision” only in the most formal sense. The princi­
ple of law which South Carolina has refused to apply in 
petitioner’s case is nothing other than the constitutional 
prohibition against burden-shifting presumptions which 
this Court discussed and applied in Sandstrom v. Mon­
tana and Francis v. Franklin.9

14

9 The legal relevance of State v. Elrnore, is all the more doubtful 
when it is recalled that petitioner’s case was before the South Car­
olina Supreme Court as a result of this Court’s order to reconsider the

Under these circumstances, the South Carolina 
Supreme Court’s reasoning is not easy to understand. 
Despite its express recognition of the federal constitu­
tional character of the legal error involved in both EImore 
and in this case, the majority opinion treated the error as 
merely one of state law. The South Carolina majority then 
castigated this Court’s decisions regarding retroactive 
application of new rules of criminal law as “a mass of 
confusion,” announced that its task in petitioner’s case 
was to apply those decisions “at the state level to deter­
mine the retroactive effect of a prior state decision,” and 
asserted that the one “controlling” factor in this Courts 
retroactivity decisions is that “‘[rjetroactive application 
is not compelled, constitutionally or otherwise. Yates v. 
Aiken, 290 S.C. at 234, 349 S.E.2d at 85. J.A. at 31 
(quoting Solem v. Stumes, 465 U.S. 638, 642 (1984)). The 
state supreme court majority concluded from this that it 
was free to determine its own standard regarding retroac­
tivity of state decisions, and that United States Supreme 
Court decisions concerning retroactivity were not bind­
ing upon it. Id.

If these statements were meant to suggest that the 
application of Sandstrom’s prohibition of burden-shifting

state court’s previous denial of habeas corpus relief “in light of Fran­
cis v. Franklin." Yates v. Aiken, 474 U.S-------106 S.Ct. 218 (1986).
Whatever the effect of previous South Carolina decisions such as 
Elmore might have been, the South Carolina Supreme Court* obliga­
tion to comply with the terms of this Court’s order on remand ia clear. 
U.S. Const, art. VI. To be sure, South Carolina* failure to abide by 
this Court’s remand order is not completely without historical prece­
dent. Henry v. City of Rock Hill, 241 S.C. 427,128 S.E.2d 775 (1962), 
vacated and remanded, 375 U.S. 6 (1963), affirmed on remand, 244 
S.C. 74,135 S.E.2d 718 (1963), redd, 376 U.S. 776 (1964) (per cunamX 
But the state court’s opinion in this case is noteworthy for its failure U) 
offer any explanation whatever for its lack of compliance with the 
explicit mandate of this Court.



mt
mi

\ tm
m i

 i
*"i

 .1

1U

jury instructions was purely a matter of state law, then 
the South Carolina court’s error is self-evident. Griffith v
Kentucky, 479 U.S-------107 S.Ct. 708 (1987); Brown v
Louisiana, 447 U.S. 323 (1980); Linkletter v. Walker, 381 
U.S. 618 (1965). But since the majority opinion had begun 
by acknowledging that the jury instructions in Elmore, 
Francis v. Franklin and this case all involve “the same 
infirmities, the court could not have supposed that the 
underlying constitutional claim in this case was controlled 
by state law alone. Rather, the majority opinion appears 
to have misread the Court’s general remarks in Solem v. 
Stumes as indicating that the states are free to ignore the 
entire body of this Court’s decisions concerning retroac­
tive application of federal constitutional decisions.

This view is, again, self-evidently wrong. While this 
Court has repeatedly recognized that retroactive applica­
tion of constitutional decisions in the criminal law is not in 
and of itself required by due process, Linkletter v. Walker, 
supra, 381 U.S. at 628-629 (1965); Solem v. Stumes, 
supra, this has meant only that the retroactive applica­
tion of such decisions to criminal convictions already final 
on direct appeal must be determined on a case-by-case 
basis, with due regard for the nature of the right impli­
cated by each decision. United States v. Johnson, 457 
U.S. 537 (1982). Once this Court has determined whether 
and to what extent a rule of constitutional law is to be 
applied retroactively, that determination is binding on the 
states. Solem v. Stumes, supra; Stovall v. Denno, 388 
U.S. 293 (1967); Linkletter v. Walker, supra. And when 
those retroactivity precedents are applied here, it 
becomes clear that this case presents no retroactivity 
issue, and that even if it did, full retroactivity would be 
required.

17

B. Because Neither Francis v. Franklin Nor State v. Elmore 
Announced Any “New” Principle Of Law, Neither Case 
Presents Any Issue Of Retroactive Application.

As pointed out above, the constitutional basis of peti­
tioner^ challenge to the instructions given at his 1981 
murder trial is this Court’s decision in Sandstrom v. Mon­
tana, 442 U.S. 510 (1979), a case decided two years before 
petitioner’s trial. The fact that four years elapsed between 
Sandstrom  and the South Carolina Supreme Court’s 
recognition in State v. Elmore of the invalidity, under 
Sandsrom, of the malice instruction given here does not 
entitle South Carolina to postpone Sandstrom's effective 
date to that of Elmore. The simple fact is that the instruc­
tions given at petitioner’s trial were constitutionally 
invalid under Sandstrom at the moment they were read to 
the jury, and the South Carolina Supreme Court major­
ity’s suggestion that petitioner’s present claim could not 
have been made and accepted prior to Elmore and Fran­
cis is patently without merit.10

Nor can South Carolina’s suggestion that Francis v. 
Franklin represents some sort of “new” constitutional

10 The state court’s attempt to defer the effective date of the federal 
constitutional principles of Sandstrom until the filing of its own 
opinion in State v. Elmore is even more inexplicable in view of the fact 
that the South Carolina Supreme Court had cautioned against the use 
of mandatory rebuttable presumptions of malice in a series of cases 
decided prior to Elmore. See, e.g., Stale v. Mattison, 276 S.C. 235, 
277 S.E.2d 598 (1981); State v. Crocker, 272 S.C. 344, 251 S.E.2d 764 
(1979) (rejecting Mullaney attack on basis of determination that 
challenged instructions created permissive inference of malice rather 
than mandatory presumption). Moreover, the same court has expres­
sly acknowledged that Elmore’s prohibition of instructions creating 
burden-shifting presumptions of malice flows from the principles erf’ 
Sandstrom as well as of Fraricis. State v. Patrick, 289 S.C. 301, 303, 
345 S.E.2d 481,482(1986).

\



decision bear scrutiny in light of the Francis opinion 
itself. As the Francis Court stated,

[t]he question before the Court in this case is almost 
identical to that before the Court in Sandstrom: 
whether the challenged jury instruction had the 

effect of relieving the State of the burden of proof 
enunciated m Winship on the critical question of 
state of mind/ 442 U.S. at 521, by creating a man­
datory presumption of intent upon proof by Oie State 
of other elements of the offense.

471 U.S. at 313. Later in its opinion, the Court rejected as 
simply inaccurate” the suggestion of a dissenting Justice 

that Francis had extended the holding of Sandstrom. 
Sandstrom, the Court observed, rested upon equally 
valid alternative rationales, one of which was that a man­
datory rebuttable presumption of intent violated due pro­
cess. Id. at 317-318, n.5.u Indeed, the unconstitutionality 
of mandatory rebuttable presumptions had been “defini­
tively established” even before Sandstrom by Mullaney 
v. Wilbur, 421 U.S. 684 (1975), and Patterson  v. N ew  York 
432 U.S. 197(1977). Id. 12 * 12

"  Justice Powell dissented from the majority’s conclusion that the 
challenged instruction actually violated Sandstrom's prohibition 
against burden-shifting rebuttable presumptions, but agreed with 
the Court that the governing legal principles were those set forth in 
Sandstrom. Id. at 327.

12 That Francis established no new constitutional law has also been 
recognized both implicitly and explicitly by those courts which have 
had to consider whether the advent of Sandstrom and Francis could 
constitute “cause" to excuse defendants’ failure to raise timely chal­
lenges to burden-shifting instructions given at pre-Francis trials 
Typical of these is Johnson v. Blackburn, 778 F.2d 1044 (5th Cir. 1985) 
in which the court rejected a claim that the unconstitutionality of 
burden-shifting instructions on intent were sufficiently unforeseea­
ble at the time of the defendant’s trial shortly before Sandstrom as to

19

In this case, therefore, “the answer to the retroactivity 
question [must be] determined. . . through application of| 
a threshold test.” United States v. Johnson, 457 U.S. 537, < 
548 (1982). The pertinent portion of this threshold inquiry, 
as described in Johnson, is as follows:

[W]hen a decision of this Court merely has applied < 
settled precedents to new and different fact situa­
tions, no real question has arisen as to whether the ? 
new decision should apply retrospectively. In suchl 
cases, it has been a foregone conclusion that the rule j 
of the later case applies in earlier cases, because the* 
later decision has not in fact altered that decision :~ 
any material way.

Id., at 549 (citations omitted).
The need for this “threshold test" is self-evident. Ii 

every constitutional decision applying settled legal prece- 
dents to new facts were deemed to give rise to a “retroac­
tivity” question, no decision would ever have any 
precedential effect, since each decision would establish on 
the date of its announcement a new starting date for the 
constitutional right involved. For this reason, the Court 
has invariably insisted upon “automatic" retroactive 
application of any decision which “did nothing more than '

justify his failure to object. Compare Reed v. Ross, 468 U.S. 1 (1984)  ̂
(novelty of constitutional claim excused failure to object to burden- 
shifting instruction given at trial held prior to In re Winship, 397 U .S.f 
358 (1979)). In Johnson, the Fifth Circuit pointed out that Sandstrom1 
was “an entirely foreseeable extension” of In re Winship, Mullaney v. 
Wilbur, 421 U.S. 684 (1975), and Patterson v. New York, 432 U.S. 197 
(1977). 778 F.2d at 1047. Accord Cook v. Foltz, 814 F.2d 1109 (6th Cir. 
1987); Tucker v. Kemp, 256 Ga. 571, 351 S.E.2d 196 (1987) (petitioner 
should have challenged instruction identical to that involved in Fran­
ds in his 1980 state habeas petition; Francis did not change applicable 
law and thus did not justify successive petition); see generally Engle 
v. Isaac, 456 U.S. 107 (1982).



apply settled precedent to different factual situations.”
Griffith v. Kentucky, 479 U.S____ , 107 S.Ct. 708, 714
(1987); see also Truesdale v. Aiken, 480 U .S .___ , 107
S.Ct. 1394 (1987) (per curiam); Lee v. Missouri, 439 U.S. 
461 (1979) (per curiam).

In refusing on retroactivity grounds to apply Francis v. 
Franklin and State v. Elmore to review the constitu­
tionality of the malice instructions given at petitioner's 
trial, the South Carolina Supreme Court described itself 
as adopting the view expressed by Justice Harlan in his 
influential dissent in Desist v. United States, supra. Yates 
v. Aiken, 290 S.C. at 235-236,349 S.E.2d at 86. J. A. at 33. 
According to the state supreme court, Justice Harlan’s 
Desist dissent supported its refusal to apply State v. 
Elmore and Francis v. Franklin retroactively in collat­
eral proceedings because these rulings established nei­
ther that the trial court’s action was void ab initio nor that 
the defendant’s conduct was not subject to criminal 
punishment. 290 S.C. at 236, 349 S.E.2d at 86, J.A. at 32.

Even had this view of the scope of retroactivity in 
habeas cases won the acceptance of a majority of this 
Court, which it has not, Griffith v. Kentucky, 479 U.S.
:---- > 107 S.Ct. 708, 717 (1987) (Rehnquist, C.J., dissent­
ing), the South Carolina court plainly overlooked the first 
step injustice Harlan’s retroactivity analysis, which is to 
determine whether the decision at issue actually created 
any genuinely “new” constitutional rule. The very opinion 
of Justice Harlan cited by the state supreme court made 
this point with unmistakable clarity:

First, it is necessary to determine whether a par­
ticular decision has really announced a “new" rule at 
all or whether it has simply applied a well-estab­
lished constitutional principle to govern a case which 
is closely analogous to those which have been pre­

21

viously considered in the prior case law. . . .  In such 
a context it appears very aifflcult to argue against the 
application of the “new* rule in all habeas cases since 
one could never say with any assurance that this 
Court would have ruled differently at the time the 
petitioner’s conviction became final.

Desist v. United States, 394 U.S. 244, 263-244, 263-264 
(1969) (Harlan, J. dissenting).13 Because the South Car-, 
olina Supreme Court failed to recognize that Francis v. 
Franklin and State v. Elmore made no new law and thus

18 Dissenting from the Court’s summary reversal of another South
Carolina retroactivity decision, Truesdale v. Aiken, 480 U.S---------
107 S.Ct. 1394 (1987), Justice Powell recently observed that “(alt least 
in the context of habeas petitions, we have not addressed the stan­
dards by which a court should determine the retroactive effect of iv 
cases. . . that arguably follow from existing precedents." 107 S.Ct. at 
1395 (Powell, J. dissenting). This statement appears to reflect Justice 
Powell’s view, consistently advanced since Hankerson v. North Car­
olina, 432 U.S. 233 (1977), that the Court should abandon its long- #  
standing  method of determ ining the re troac tiv ity  of new ; 
constitutional rules in habeas proceedings, Stovall v. Denno, 388 '  
U.S. 293 (1967), and should adopt in its place the position advanced in 
Justice Harlan’s dissenting opinion in Desist v. United States, supra, 
and his concurring opinion in Mackey v. United States, 401 U.S. 667, 
675-698 (1971). That position, as summarized by Justice Powell, is that 
“cases on collateral review [should] ordinarily be considered in light of 
the rule as it stood when the conviction became final." Hankerson v. 
North Carolina, supra, 432 U.S. at 248 (Powell, J. concurring);
Griffith v. Kentucky, 479 U.S. ------ , 107 S.Ct. 708, 716-718 (1987)
(Powell, J., concurring). Whatever the merits of such an abrupt 
change’in the Court’s long-established retroactivity doctrine, they 
are not involved in this case. For as the excerpt quoted above from 
Justice Harlan’s Desist opinion makes clear, the retroactivity issue 
detected here by the South Carolina Supreme Court is entirely 
illusory. Accordingly, petitioner respectfully submits that this case 
provides no occasion for the Court to reconsider how genuine ques­
tions of retroactivity should be resolved when they arise in collateral 
attacks on final convictions.



created no issue concerning retroactive application, the 
court erred in concluding that petitioner could be denied 
the benefit of the constitutional principles of both cases.14

C. Even If Francis v. Franklin Had Announced New Consti­
tutional Doctrine, F\ill Retroactive Application Would 
Be Required Because Francu Is Primarily Designed lb  
Safeguard The Truth-Seeking Function Of Criminal TVi- 
als.

Petitioner has pointed out above that this case presents 
no genuine question of retroactivity, since neither State v. 
Elmore nor Francis v. Franklin did any more than apply 
Sandstrom v. Montana to a particular set of jury instruc­
tions. But even had Francis v. Franklin been the first in 
the Mullaney/Sandstrom line of cases, rather than the 
most recent, this Court’s retroactivity decisions, leave no 
doubt that full retroactive application would be required.

u  Petitioner is not aware of even a single state or federal circuit 
court case from any jurisdiction other than South Carolina which so 
much as discusses whether Francis v. Franklin presents any sub­
stantial question of retroactivity. Cases discussing the effect of Fran­
cis in federal habeas corpus proceedings without any express 
consideration of retroactivity include Matarese v. LeFevre, 801 F.2d
98, 107 (2d Cir. 1986), cert, denied, 480 U.S. ____, 107 S.Ct. 1363
(1987); Hyman v. Aiken, 777 F.2d 938 (4th Cir. 1985), vacated on other
grounds, 478 U.S------- , 106S.Ct. 3327(1986); Flowers v. Blackburn,
779 F.2d 1115 (5th Cir.), cert, denied, 476 U .S .____, 106 S.Ct. 1661
(1986); Williford v. Young, 779 F.2d 405 (7th Cir. 1985); Wiley v. Rayl, 
767 F.2d 679 (10th Cir. 1985) (reserving question of retroactivity of 
Sandstrom); Dobbs v. Kemp, 790 F.2d 1499,1507-1509 (11th Cir. 1986), 
cert, denied, 480 U.S. ------, (No. 86-6603) (May 18, 1987). Addi­
tionally in Rose v. Clark, 478 U.S--------, 106 S.Ct. 3101 (1986), this
Court considered without any discussion of retroactivity the legal 
effect of a Francis v. Franklin violation on a state conviction which 
had become final after Sandstrom but before Francis.

!
1

I

II

!

In the first modem decision concerning the retroac-^ 
tivity of “new” constitutional rules of criminal procedure,1 
Linkletter v. Walker, 381 U.S. 618 (1965), the Court held! 
that retroactivity determinations should be made on the 
basis of “the prior history” of the constitutional rule 
involved, “its purpose and effect, and whether retrospec­
tive application will further or retard its operation.” 381 
U.S. at 629. The Court later summarized these criteria as 
involving:

■ ^
(a) the purpose to be served by the new standards;

(b) the extent of the reliance by law enforcement 
authorities on the old standards; and

(c) the effect on the administration of justice of a] 
retroactive application of the new standards.

Stovall v. Denno, 388 U.S. 293, 297 (1967). Although the- 
Stovall factors no longer limit the retroactive application; 
of new constitutional rules to cases not yet final on direct 
appeal when the new rule was announced, Griffith v.
Kentucky, 479 U.S____, 107 S.Ct. 708 (1987), this Court
has consistently looked to the Stovall factors to determine 
whether retroactive application should extend to cases 
arising on collateral attack on convictions which had 
become final prior to the date of the decision announcing
the new rule. See, e.g. Allen v. Hardy, 478 U .S.-----, 106-
S.Ct. 2878, 2080 (1986); Solem v. Stumes, 465 U.S. 6381 
643 (1984); Gosa v. Mayden, 413 U.S. 665, 679 (1973)a| 
Williams v. United States, 401 U.S. 646, 652 n.5 (1971)' 
(plurality opinion); Witherspoon v. Illinois, 391 U.S. 510, 
523 n.22 (1968); Roberts v. Russell, 392 U.S. 293, 294 
(1968); DeStefano v. Woods, 392 U.S. 631,633 (1968). For 
the reasons that follow, the Court’s Stovall analysis 
plainly requires that Francis v. Franklin be given com- ■; 
plete retroactive effect.



24

“Foremost among (the Stovall] factors is the purpose to 
be served by the new constitutional rule.” Desist v. 
United States, 394 U.S. 244, 249 (1969). Thus “[a]t one 
extreme” of its spectrum of retroactivity decisions, “the 
Court has regularly given complete retroactive effect to 
new constitutional rules whose major purpose ‘is to over­
come an aspect of the criminal trial that substantially 
impairs its truth-finding function and so raises serious 
questions about the accuracy of guilty verdicts in past 
trials.’” United States v. Johnson, 457 U.S. 537, 544 
(1982) {quoting Williams v. United States, 401 U.S. 646, 
653 (1971) (plurality opinion)); see also, Solem v. Stumes,
supra, 465 U.S. at 643-644; Allen v. Hardy, 478 U.S____,
106 S.Ct. 2878, 2880 (1986). As the Court explained in 
Williams v. United States, supra, new constitutional doc­
trine designed to overcome defects in the truth-seeking 
process in criminal trials is invariably given complete 
retroactive effect, and “(njeither good faith reliance by 
state or federal authorities on prior constitutional law or 
accepted practice, nor severe impact on the administra­
tion of justice has sufficed to require prospective applica­
tion in these circumstances.” 401 U.S. at 653.

There can be no doubt that Francis v. Franklin's pro­
hibition against burden-shifting presumptions is among 
the rules which must, under Stovall v. Denno and United 
States v. Johnson, be given full retroactive effect. The 
principle of Francis v. Franklin which “prohibits the 
State from using evidentiary presumptions in a jury 
charge that have the effect of relieving the State of its 
burden of persuasion beyond a reasonable doubt of every 
essential element of a crime . . . protects the ‘fundamen­
tal value determination of our society . . . that it is far 
worse to convict an innocent man than to let a guilty man 
go free.’” 471 U.S. at 313 (quoting In re Winship, 397U.S.

25

358, 372 (1970) (Harlan, J., concurring)). This Court has 
already held that In re Winship and Mullaney v. Wilbur, 
421 U.S. 684 (1975), the first two decisions expounding 
what Francis v. Franklin described as this “bedrock, 
‘axiomatic and elementary’” constitutional principle, 471 
U.S. at 313, are to be given retroactive effect. Ivan V. v. 
City of New York, 407 U.S. 203 (1972) (applying Winship \ 
retroactively), Hankerson v. North Carolina, 432 U.S. 
233 (1977) (apply Mullaney retroactively). Since Sand- 
strom v. Montana, 442 U.S. 510 (1979) and Francis v. 
Franklin simply applied Winship and Mullaney to the 
question of burden-shifting jury instructions, it is plain 
that these cases, like Winship and MuUvney, belong to 
that class of constitutional decisions which lie at the 
“extreme” of full retroactivity to which the Court refei 
in United States v. Johnson.

In sum, this Court’s long-established framework fori 
analyzing the question of retroactivity of “new” constitu-; 
tional rules of criminal procedure on collateral revi 
would plainly require South Carolina to afford petitioi 
the benefit of the constitutional principles enunciated in 
Francis v. Franklin even had Francis declared these 
principles for the first time. Under such circums 
neither the second or third Stovall factors-—good 
reliance by state or federal authorities on prior cons 
tional law or accepted practice, and severe impact on 
administration of justice—could suffice to limit ret 
tive application. Williams v. United States, supra, 401: 
U.S. at 653.

But the results would remain the same even if the 
remaining Stovall factors were weighed in the balance. 
Since Francis merely applied the constitutional princi-; 
pies of Sandstrom to the particular facts involved in that 
case, no state court after Sandstrom could justifiably



26

have relied on any precedent inconsistent with the princi­
ples applied in Francis. This point is amply demonstrated 
by the fact that the South Carolina Supreme Court itself 
anticipated and applied the constitutional principles of 
Francis well before Francis was decided. See State v. 
Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983). Further­
more, because the unconstitutionality of burden-shifting 
jury instructions in criminal cases was clearly established 
before Francis, the impact on the administration of jus­
tice which will result from applying Francis retroactively 
in state and federal habeas corpus proceedings would 
appear to be minimal.15 * Thus, even if the second and third 
Stovall factors could ever suffice to limit the retroactive 
application of a constitutional principal designed to safe­
guard the accuracy of the fact-finding process in criminal 
cases, every relevant consideration weighs on the side of 
full retroactive application.

D. The Pact That This Case Arises On State Rather Than 
Federal Post-Conviction Review Does Not Affect Its Res­
olution.

Before concluding, petitioner would note a question 
raised by Justice Powell in his recent dissent in Truesdale
v. Aiken, 480 U.S------ , 107 S.Ct. 1394 (1987) concerning
whether the same retroactivity rules should govern state 
and federal post-conviction proceedings. This question

16 This case may, therefore, be contrasted with Allen v. Hardy, 478
U.S--------, 106 S.Ct. 2878,2881 (1986), in which the Court addressed
the retroactivity, on collateral review, of Batson v. Kentucky, 476
U .S .------ , 106 S.Ct. 1712 (1986). In Allen, the Court acknowledged
that Batson marked a clear break with Swain v. Alabama, 380 U.S. 
202 (1965), upon which state and federal prosecutors, trial judges and 
appellate courts had justifiably relied for more than two decades. 
Given this reasonable reliance upon Swain, it was plain that retroac­
tive application of Batson on collateral review of final convictions 
would seriously disrupt the administration of criminal justice.

27

appears to have been implicitly answered in the affir­
mative by the Court’s summary action in Truesdale.16 The 
reasons for this are clear. While the states are not consti­
tutionally required to provide any form of post-conviction
remedy, Pennsylvania v. Finley, ----- U.S. -----, 55
U.S.L.W. 4612, 4614, (May 18, 1987), it is plain that no 
state may maintain a post-conviction forum—-or any other 
legal procedure, for that matter—in which litigants are 
prohibited from seeking to vindicate valid federal legal 
and constitutional claims. McKnett v. St. Louis &S.F. Ry. 
Co., 292 U.S. 230 (1934); Testa v. Katt, 330 U.S. 386 
(1947); 16 Wright & Miller, Federal Practice and Pro­
cedure §4024 (1977). On the contrary, “state courts, like 
federal courts, have an obligation to . . . uphold federal 
law." Stone v. Powell, 428 U.S. 465,494 n.35 (1976) (citing 
M artin  v. Hunter's Lessee, 1 Wheat. 304, 341-344 
(1816)).17 Since the retroactivity of federal constitutional

18 Truesdale involved a death-sentenced prisoner's effort to raise a
claim under Skipper v. South Carolina, 476 U.S------- - 106 S.Ct. 1669
(1986) by means of an application for post-conviction relief in the 
South Carolina state courts. The South Carolina Supreme Court 
ruled, in a decision rather similar to the one which the same court 
issued less than three months later in this case, that Skipper's retro­
active effect would be limited to cases pending on direct appeal, and 
that Skipper would not apply to death sentences which had become 
final before Skipper was decided. Truesdale v. Aiken, 289 S.C. 488, 
347 S.E.2d 101 (1986). This Court granted certiorari and summarily 
reversed, citing Skipper, Lockett v. Ohio, 438 U.S. 586 (1978), and 
United States v. Johnson, 457 U.S. 537, 549 (1982).

17 That South Carolina is free to dispense with all forms of 
conviction remedy has no more bearing on its obligation to apply 
federal law in its courts than does the state’s undoubted freedom to 
dispense with the right of direct appeal. McKane v. Durston, 153 
U.S. 684, 687 (1894). For if the mere fact that states are not constitu­
tionally required to entertain collateral attacks on criminal convic­
tions authorized state judges to ignore federal law when they do 
decide such cases, it would be hard to see any reason why state courts 
should be bound by federal law in deciding cases on direct appeal.



criminal law decisions is unquestionably a matter of 
federal law, Brawn v. Louisiana, 447 U.S. 323 (1980), 
South Carolina is simply not at liberty to create and 
maintain a habeas corpus remedy, as it has done through 
S.C. Const, art. V § 5 and S.C. Code § 14-3-310 (1976), and 
yet refuse to accord to habeas petitoners the benefit of the 
law of retroactivity of federal constitutional decisions as 
expounded by this Court. Because the South Carolina 
Supreme Court attempted to do just that in this case, its 
judgment should be reversed.

CONCLUSION

For the foregoing reasons, the Petitioner submits that 
the judgment of the Supreme Court of South Carolina 
should be reversed.

Respectfully submitted,
David I. Bruck*
(Appointed by this Court)
Jo hn  H . B lum e 
B ruck  & B lum e 
P.O. Box 11311
Columbia, South Carolina 29211 
(803) 765-0650

*C ounsel o f  Record C ounsel fo r  P etitioner