IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 90-1710

BOBBY GLEN WILCHER, Petitioner-Appellant,

versus

EDWARD HARGETT, Superintendent Mississippi State Penitentiary, Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi

(November 19, 1992)

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Bobby Glen Wilcher appeals denial of his petition for writ of

habeas corpus, challenging both his conviction and his death

sentence. He asserts that his conviction was obtained in violation

of his Fifth and Sixth Amendment rights and that his death sentence

was imposed in violation of the Eighth Amendment. We affirm the

district court's denial of Wilcher's petition on all claims except

his claim that the jury relied on an unconstitutionally vague

aggravating factor. We vacate the dismissal of the habeas petition

as to this claim and remand to the district court with instructions

to issue the writ unless the State of Mississippi initiates appropriate proceedings within a reasonable time as set forth in

Clemons v. Mississippi,

(1990).

I.

On March 5, 1982, Wilcher met two acquaintances, Velma Odell

Noblin and Katie Bell Moore in a Scott County bar. When the bar

closed, Wilcher convinced the two women to give him a ride home.

Wilcher then gave them directions leading to a deserted area in

Bienville National Forest. He stabbed Noblin and Moore to death,

left their bodies, and took their jewelry and their car.

Wilcher had cut his finger during the murder and went to the

hospital for treatment of his wound. En route, he was stopped for

speeding. The officer saw two purses on the front seat and a black

bra on the back seat. Wilcher was covered in blood. He told the

officer he was hurrying to the hospital to get his finger treated

and asked for an escort. The officer followed Wilcher to the

hospital, arriving at 2:00 a.m. At the hospital, Wilcher gave the

officer a blood-covered knife. Wilcher's thumb was treated and he

was released.

Later that day, Wilcher was arrested on an unrelated larceny

charge. Soon thereafter, Noblin and Moore's bodies were discovered

on the service road in the national forest. After learning about

Wilcher's hospital visit of the night before, Sheriff Glen L.

Warren and Deputy Otis Kelly gave Wilcher a standard Miranda

warning and questioned him. Wilcher declined to make any

statement.

2 Wilcher asked the Sheriff to see his parents. The officers

took him to his father's home and allowed him to talk to his

parents in a separate room. Wilcher was returned to the sheriff's

office and given Miranda warnings. At 9:14 p.m. on March 7, 1982,

Wilcher signed the waiver of his Miranda rights and gave a

statement which was reduced to writing. Wilcher signed this

statement which admitted killing both Noblin and Moore with a

knife.

On March 8, Wilcher's father, Gene Wilcher, invited officers

to his home and escorted them to his son's bedroom and pointed out

a styrofoam container on top of a chest. The container held a

watch, two rings, and a necklace later determined to belong to

Velma Noblin. On March 11, Wilcher directed Sheriff Warren and a

deputy to an unpaved road in rural Scott County and pointed out the

location of the two purses and the black bra that had been in the

car when he was stopped for speeding.

On the way back to the jail that day, Wilcher requested that

he be allowed to speak with his mother. The sheriff took him to

the Wilcher home where he was allowed to visit with his mother for

a while. After this visit, upon his return to jail, Wilcher gave

a more detailed statement again admitting that he killed Noblin and

Moore in order to rob them. This statement was more detailed than

the first statement. He tricked them into driving down a deserted

road and then stabbed them to death so that he could take their

jewelry.

3 At approximately the same time as Wilcher was giving this

statement, Wilcher was being indicted by the Scott County grand

jury for both murders. The district court found that Wilcher

signed the waiver form before giving this statement at 12:52 p.m.

and the statement was completed and signed by Wilcher at 2:05 p.m.

At about 1:30 that same afternoon, the Scott County Circuit Judge

appointed counsel for Wilcher. Wilcher was unaware that he had

been appointed counsel until after he had signed the second

statement.

Wilcher was indicted on March 11, 1982 for the capital murders

of Katie Moore and Velma Odell Noblin. He was tried separately for

the two murders. The first trial, held in Scott County,

Mississippi, for the murder of Velma Noblin led to a conviction of

capital murder and a sentence of death on July 31, 1982. The

sentencing jury found the following aggravating circumstances:

1. the capital offense was committed while the defendant was engaged in the commission of or an attempt to commit the crime of robbery or kidnapping.

2. The capital offense was especially heinous, atrocious, or cruel.

In accordance with Mississippi's capital sentencing procedure, the

jury found that these aggravating circumstances outweighed any

mitigating circumstances.

On direct appeal to the Mississippi Supreme Court, Wilcher

raised eleven claims.1

1

1. The trial court erred in not granting the appellant a change of venue;

4 The Mississippi Supreme Court affirmed the conviction and

sentence on February 15, 1984. This opinion was modified and

Wilcher's petition for rehearing was denied on April 25, 1984.

Wilcher v. State,

(Miss. 1984).

2. The trial court erred in overruling the appellant's motion for continuance;

3. The trial court erred in overruling appellant's motion to quash the death qualification and in excusing juror for cause;

4. The trial court erred in admitting into evidence the watch, rings and necklace of Velma Odell Noblin for the reason that they were the fruits of an illegal search;

5. The trial court erred in admitting appellant's written statements and the fruits thereof;

6. The trial court erred in overruling appellant's objection to the state eliciting from him on cross examination the fact that he was arrested for larceny, a charge unrelated to this case;

7. The trial court erred in granting instruction S-1A and S-7 and erred in refusing instructions D-2 and D- 37;

8. The trial court erred in overruling appellant's motion to make the final argument before the jury during the guilt phase;

9. The trial court erred in granting instructions S- 1, S-2, and S-5, and in refusing D-14, D-15, and D-16 during the sentencing phase of the trial;

10. The trial court erred in sustaining objections and excusing the jury during oral argument of appellant's counsel;

11. The trial court erred in not granting the appellant a mistrial during the argument when district attorney called appellant a "Butcher."

5 Wilcher filed a petition for writ of certiorari raising the

issues of the trial court's refusal to allow defense counsel to

describe the gas chamber and otherwise emphasize the gravity of the

jury's decision; whether there was sufficient evidence to permit

the jury to find an aggravating factor of kidnapping; whether the

Mississippi statutory aggravating factor of murder that is

"especially heinous, atrocious or cruel" is unconstitutionally

vague; and whether the Mississippi death penalty statute

impermissibly places the burden on the defendant to prove there are

sufficient mitigating factors to overcome the aggravating factors.

Wilcher v. Mississippi,

(1984).

Wilcher's trial for the capital murder of Katie Moore was

moved to Harrison County, Mississippi. The jury returned a verdict

of guilty and a sentence of death, finding the same aggravating

circumstances as were found in the Noblin trial: murder during the

commission of or attempt to commit robbery or kidnapping and an

offense that was especially heinous, atrocious or cruel.

On direct appeal to the Mississippi Supreme Court, Wilcher

again raised eleven challenges to his second conviction and

sentence.2

2

1. The trial court erred in not sustaining appellant's plea of former or double jeopardy;

2. The trial court erred in overruling the appellant's motions for continuance;

3. The trial court erred in allowing the death qualification voir dire questions;

4. The trial court erred in refusing to allow the

6 The Mississippi Supreme Court affirmed Wilcher's second

conviction and death sentence on July 11, 1984. Wilcher v. State,

(Miss. 1984), cert. denied, Wilcher v. Mississippi,

(1985).

Wilcher filed two Motions to Vacate or Set Aside Judgment and

Sentence in the Mississippi Supreme Court in accordance with the

Mississippi Uniform Post Conviction Collateral Relief Act. The two

motions, raising 18 grounds for relief, were consolidated. The

Mississippi Supreme Court denied the requested relief. Wilcher v.

State,

(Miss. 1985), cert. denied,

(1986).

defendant to cross examine Gene Wilcher when called as a witness for the state;

5. The trial court erred in admitting into evidence the watch, rings, and necklace of Velma Odell Noblin for the reason that they were the fruits of an illegal search;

6. The trial court erred in admitting into evidence, over objection of counsel, appellant's oral and written statements and the fruits thereof;

7. The trial court erred in granting instructions S-1 and S-7 and erred in refusing instruction D-2 during the guilt phase;

8. The trial court erred in refusing instructions D- 17 and D-37 during the guilt phase;

9. The trial court erred in refusing instructions D- 43 and D-44 during the guilt phase;

10. The trial court erred in refusing instruction D-11 during the sentencing phase;

11. The trial court erred in entering its supplemental judgment of September 23, 1982.

7 Wilcher filed petitions for writ of habeas corpus in the

United States District Court for the Southern District of

Mississippi challenging both his convictions and sentences. The

district court consolidated these petitions and denied relief on

June 19, 1990. Wilcher filed notice of appeal and application for

certificate of probable cause. The certificate of probable cause

was granted on September 24, 1990.

II.

Wilcher asserts here that Mississippi denied his Sixth

Amendment rights by taking a second statement after appointment of

counsel. This written statement was admitted over objection at

both trials.

A defendant's Sixth Amendment right to counsel attaches upon

the initiation of adversary proceedings. Michigan v. Jackson,

,

(1986). Under Mississippi law, adversary

proceedings arguably began when a warrant was issued for Wilcher's

arrest, but certainly so with his indictment. Wilcher executed a

written waiver of his right to counsel immediately before giving

his second statement to the officers. This voluntary waiver of his

Sixth Amendment rights was constitutionally valid. Montoya, 955

F.2d at 282; Patterson v. Illinois,

(1988) (waiver of

right to counsel after Miranda warning is constitutionally valid

waiver).

Wilcher asserts that even if his waiver was voluntary and

knowing, the questioning in this case violated the prophylactic

rule of Michigan v. Jackson,

. The Supreme Court

8 held in Jackson that "if police initiate interrogation after a

defendant's assertion at an arraignment or similar proceeding, of

his right to counsel, any waiver of the defendant's right to

counsel for that police-initiated interrogation is invalid."

The State argues that Wilcher never took any action to invoke his

right to counsel and therefore had not triggered the Jackson rule.

We recently addressed the effect of appointment of counsel on

the rights of a defendant who has never asserted or accepted the

counsel. We held that a defendant's Sixth Amendment rights are not

violated by questioning in the absence of his attorney unless the

defendant has asserted his right to an attorney. Montoya v.

Collins,

(5th Cir. 1992).

Montoya was appointed counsel at his arraignment, but made no

statement when counsel was appointed.

. After

arraignment, Montoya waived his rights and made an incriminating

statement to police officers. We held that "for purposes of

Jackson, an `assertion' means some kind of positive statement or

other action that informs a reasonable person of the defendant's

`desire to deal with the police only through counsel.'"

. Thus, we concluded that Montoya's interrogation did not

violate the rule of Jackson because he did not assert a right to

counsel and thereby trigger its protection.

Wilcher likewise did not assert a right to counsel in his

interrogation by the officers. Under Montoya he was not protected

by the rule in Jackson and voluntarily waived his right to counsel

under the Sixth Amendment. Montoya binds this panel.

9 10 III.

Wilcher asserts that in exacting his confessions, Mississippi

contravened the procedural protections of Miranda v. Arizona,

(1966). The basis for Wilcher's argument is the repeated

questioning of Wilcher between March 6 and March 11. Wilcher was

given Miranda warnings on March 6 at 7:18 p.m., and signed the

waiver of rights, but declined to make a statement. He asked to

see his parents and was taken to his parents' home. At 9:11 p.m.

Wilcher was again given Miranda warnings and executed a waiver. At

this point, Wilcher gave his first statement. At 10:20 p.m.

Wilcher was given his warnings again, but declined to make a

further statement. On March 9, Wilcher was again advised of his

rights and signed a waiver, but did not make a statement. On March

11, at 12:52 p.m. Wilcher was once more advised of his rights,

waived them, and made his second statement to the officers.

We ask whether Wilcher's "right to cut off questioning was

scrupulously honored." Michigan v. Mosley,

(1975). Determining whether this standard was met requires case-

by-case analysis. Charles v. Smith,

(5th Cir.

1990). Our review of the facts surrounding Wilcher's statements

convinces us that the officers acted within the bounds of Miranda

and committed no constitutional violations.

The officers questioning Wilcher gave him his Miranda warnings

before every questioning. Wilcher signed a written waiver of his

right to remain silent on each of these occasions. There is no

indication on this record that Wilcher ever asked that questioning

11 be stopped or that he invoked his right to remain silent. In fact,

at each turn Wilcher waived that right in writing.

Wilcher relies upon two aspects of the circumstances of his

questioning to support his claim. First, he asserts that the

Sheriff's decision to take him at his request to see his parents

"was part of an inducement by the Sheriff and Deputy to obtain

information from Bobby Wilcher." We are not persuaded that

allowing Wilcher to see his parents was so overbearing that it

worked a denial of constitutional rights.

Second, Wilcher seems to rely upon the amount of time elapsing

between questionings. The shortest time between unproductive

interrogations was almost two hours and that was on March 6, not

the "few minutes" we found troublesome in Charles. Wilcher had

been taken to see his parents, but he indicated when first

questioned that he would be willing to talk once he had seen his

parents. This record does not support the conclusion that the

officers "persist[ed] in repeated efforts to wear down [Wilcher's]

resistance and made him change his mind." Kelly v. Lynaugh,

(5th Cir. 1988). Compare,

(questioning hours

apart with repeated Miranda warnings) with United States v.

Hernandez,

(5th Cir. 1978) (repeated questioning

within minutes).

IV.

Wilcher asserts that the district court erred in failing to

grant him an evidentiary hearing on his ineffective assistance of

counsel claim. A petitioner is entitled to a federal evidentiary

12 hearing only where there are "disputed facts and the petitioner did

not receive a full and fair hearing in a state court." Wiley v.

Puckett,

(5th Cir. 1992). No hearing is required

where the record is complete and the evidence in the record is

sufficient to provide full review of the petitioner's claim.

Skillern v. Estelle,

(5th Cir. 1983).

Before a conviction or sentence will be overturned for

ineffective assistance of counsel, a petitioner must show both that

counsel's performance did not amount to reasonably effective

assistance and that the deficient performance prejudiced the

defense. Strickland v. Washington,

,

(1984). To show prejudice, Wilcher must demonstrate that

"there is a reasonable probability that but for counsel's

unprofessional errors, the result of the proceeding would have been

different." Id. at 2068.

Wilcher levels two challenges to counsel's performance: (1)

that counsel failed to reasonably search for mitigating evidence

and (2) that counsel failed to present any mitigating evidence

concerning Wilcher's background. The district court rejected this

claim in a detailed examination of the record, finding that

Wilcher's trial counsel had "rendered valuable and effective

assistance." We have found no basis for a contrary conclusion and

reject this claim for essentially the same reasons as the federal

district judge.

13 V.

Wilcher asserts that the jury instructions at his capital

sentencing proceedings did not allow a juror to consider a

mitigating circumstance not found by all jurors contrary to Mills

v. Maryland,

(1988) and McKoy v. North Carolina,

(1990).

Mississippi urges that this argument was never made to the

state trial or appellate courts. Mississippi continues that we

need not address procedural bar because in any event, the rule of

Mills and McKoy is a new rule under Teague v. Lane,

(1989), not available to Wilcher in federal habeas. Wilcher

replies that the rule is only an application of Lockett and

Eddings. This court has already decided this issue concluding that

Mills was a new rule barred by Teague. Cordova v. Collins,

(5th Cir. 1992).

Wilcher asserts that Cordova considered only the applicability

of the first exception to Teague, not its second exception for

rules prerequisite to fundamental fairness "implicit in the concept

of ordered liberty."

. We disagree with this

narrow reading of Cordova. It is true that Cordova did not

explicitly treat each Teague exception, but Cordova did implicitly

decide that such a failure to allow consideration by the jury of

all mitigating evidence is not subject to the second Teague

exception.

14 VI.

Wilcher asserts that the jury instructions impermissibly

created a risk that a non-unanimous jury could find an aggravating

circumstance. The jury found that "the capital offense was

committed while the defendant was engaged in the commission of or

an attempt to commit the crime of robbery or kidnapping." Wilcher

argues that by using "robbery or kidnapping" in the disjunctive, a

jury could return a finding of this circumstance with less than

twelve jurors agreeing that he was committing a robbery and less

than twelve agreeing on kidnapping.

The district court found this claim procedurally barred

because it was not objected to at trial or raised on direct appeal.

We have found in previous cases that "the [Mississippi] Supreme

Court regularly applies the contemporaneous objection rule to the

cases before it." Hill v. Black,

(5th Cir.

1989). The record does not reflect any objection in the trial

court to the use of the disjunctive "kidnapping or robbery"

instruction. We are barred from the merits of this claim.

Wilcher asserts that one of the aggravating circumstances

found by the jury in both his trials, that the offense was

"especially heinous, atrocious or cruel," is unconstitutionally

vague as held by the Supreme Court in Clemons v. Mississippi,

,

(1990). The district court held that

Wilcher could not rely upon the rule in Clemons on collateral

review because it was a new constitutional rule under Teague v.

15 Lane,

,

(1989). The district court did

not have the benefit of the Supreme Court's decision in Stringer v.

Black,

(1992) which held that Clemons was not new

under Teague.

Mississippi asserts that Wilcher's Clemons claim is

procedurally barred because it was not raised on direct appeal. On

direct appeal in the Noblin conviction, Wilcher challenged the

sufficiency of the evidence to support an instruction on the

"especially heinous" aggravating circumstance. On direct appeal in

the Moore conviction, Wilcher did not challenge the "especially

heinous" instruction.

Wilcher did challenge the sufficiency of the evidence

supporting the "especially heinous" instruction on collateral

review in the state courts in which both the convictions and

sentences were consolidated. The Mississippi Supreme Court's

dispatch of the claim was brief. This claim was labelled claim F

in the court's opinion. The court held

regarding Issues C,D,E,F,G,H,I,J,K,L and M, this Court holds that all enumerated questions were raised and addressed on the first appeal, or on the second appeal, or on both appeals. Therefore, these issues cannot be relitigated here as the issue is res judicata. Where the issue was not raised on direct appeal, or not raised at the trial court, the claims are procedurally barred and not subject to further review by this Court.

(Miss. 1985)(citations omitted).

Wilcher asserts that the state court did not make a "plain

statement" that review of his claim was procedurally barred under

Harris v. Reed,

(1989). Wilcher asserts that even if

the Mississippi Supreme Court held his Clemons claim procedurally

16 barred, the bar is not an adequate ground to preclude federal

relief because it has not been consistently enforced.

A state procedural ground to bar consideration of an issue is

not adequate unless it is "strictly or regularly followed."

Johnson v. Mississippi,

(1988). We have found a

time window during which the Mississippi Supreme Court did not

strictly or regularly assert a procedural bar to claims not raised

on direct appeal. Wheat v. Thigpen,

(5th Cir. 1986);

Reddix v. Thigpen,

(5th Cir. 1986); Smith v.

Black,

(5th Cir. 1990). The Mississippi Supreme

Court announced this procedural bar in 1983, but we found in Wheat

that in 1985 that court considered a claim in a collateral

proceeding that had not been raised on direct appeal.

, citing Caldwell v. State,

(Miss. 1985).

Wilcher's direct appeals were both decided in 1984. The

Mississippi Supreme Court decided his collateral review on October

30, 1985, before Caldwell was decided in December 1985. We are not

persuaded that Wilcher's Clemons claim is procedurally barred from

federal habeas corpus review.

The instruction on the "especially heinous, atrocious, or

cruel" aggravating circumstance given at Wilcher's sentencing

proceeding is indistinguishable from that found unconstitutional in

Clemons. See also Wiley v. Puckett,

(5th Cir. 1992).

We therefore conclude that one of the aggravating circumstances

used in imposing Wilcher's sentence was unconstitutionally vague.

We vacate the dismissal of Wilcher's petition for habeas corpus and

17 remand to the district court with instructions to issue the writ

unless the State of Mississippi initiates in a reasonable time

proceedings in state courts appropriate under Clemons. In all

other respects, the judgment of the district court dismissing the

petition is affirmed.3

3 See Wiley v. Puckett,

(5th Cir. 1992).

18