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While in custody in Orlando, he made statements to journalists,
reprinted in a newspaper story that was attached to the state's motion
for competency examination, that he was set up murder charges by
federal officials because he knew too much about the Kennedy
assassination. He had also sent postcards to the mayor of Gulfport,
Mississippi, stating that he knew the authorities were looking for him
and that they should contact the FBI or CIA since they knew his
whereabouts."
"The petitioner was eventually extradited to Harrison County,
Mississippi, to face the murder charges. As noted earlier, he wrote
two rather bizarre notes prior to the first trial in which he
indicated that although he was innocent of the Mayer murders, he
wanted to plead guilty to spare himself and his family. He again
mentioned the FBI's and CIA's alleged conspiracy to [*48] discredit
him."
~~~~~
Kenneth W. Wheat, Petitioner v. Morris Thigpen, Commissioner,
Mississippi Department of Corrections; Eddie Lucas, Warden,
Mississippi State Penitentiary, and Their Successors in Office, and
The State of Mississippi Respondents
Civil Action No. S83-0390(N)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI,
SOUTHERN DIVISION
1985 U.S. Dist. LEXIS 16703
August 19, 1985, Decided; August 20, 1985, Filed
OPINIONBY: [*1]
NIXON
OPINION: MEMORANDUM OPINION
Walter L. Nixon, Jr., Chief United States District Judge
Kenneth Wheat was sentenced to death for killing and robbing a young
Kentucky man who was honeymooning on the Mississippi Gulf Coast with
his bride of only two days. His conviction and sentence were affirmed
by the Mississippi Supreme Court. Wheat v. State, United 420 So. 2d
229 (Miss. 1982). n1 On direct appeal to the States Supreme Court,
certiorari was denied, Wheat v. Thigpen, 460 U.S. 1056, 103 S.Ct.
1507, 75 L.Ed. 2d 936 (1983). Wheat then unsuccessfully sought
post-conviction remedies in the Mississippi state courts. See Wheat v.
Thigpen, 431 So. 2d 486 (Miss. 1983).
n1 Wheat was also convicted of the capital murder of the young of the
man's wife but was sentenced to life imprisonment. That conviction and
sentence were affirmed by the Mississippi Supreme Court. Wheat v.
State, 435 So. 2d 1180 (Miss. 1983).
The instant habeas corpus petition alleges eleven grounds in support
of the petitioner's request that this Court issue the Great Writ
relative to the conviction and sentence or sentence only. By previous
order of this Court, Wheat's execution was stayed pending [*2]
resolution of the merits of the petition. In the interim, this Court
has received and read exhaustive briefs of the parties on the issues,
conducted two evidentiary hearings, committed the petitioner to a
federal hospital facility for psychiatric and psychological
examination, and carefully reviewed the entire state court trial
transcript.
A recapitulation of the facts and circumstances surrounding this
tragic slaying is not necessary. They are amply recited and summarized
in previous state court opinions and, in any event, are largely
irrelevant to the federal constitutional issues which we must decide.
Therefore, unless necessary to a complete understanding of our ruling,
the facts of the crime will not be repeated.
I.
The respondents herein, by their answer and various motions, have
lodged a broadside attack on the petition. Before any discovery or
evidentiary hearings were conducted in this matter, t:he respondents
simultaneously filed two motions -- a motion for summary judgment and
a motion to require the petitioner to plead each and every ground that
could be asserted to attack his conviction and sentence. We address
the latter motion first.
The latter motion obviously [*3] had its genesis in the United States
Supreme Court decision of Barefoot v. Estelle, U.S. , 103 S.Ct.
3383 (1983), and an order entered by the United States District Court
for the Southern District of Alabama in the habeas proceedings
attacking Alabama's death sentence of John Lewis Evans, III. The
district court's order in Evans required Evans' counsel to do exactly
what the respondents seek by way of their motion. The penalty
suggested for failure to comply was a presumption that the petitioner
had waived the merits of any claims not so identified in any future
proceedings. The Barefoot decision dealt, in the main, with an abuse
of the writ situation. Specifically, the court in Barefoot recognized
the potential disruptive nature of successive petitions and gave its
approval of procedures allowing for the expedited consideration of
second or successive petitions in cases where the death penalty has
been imposed as punishment. Id. at , 103 S.Ct. at 3395.
As commendable and prudential as the district court's order appears,
we think the more correct approach, and one supported by both the
Barefoot decision and Rule 9(b) of the rules [*4] governing these
type proceedings, is to deal with the issue if a second or successive
petition is filed. To rule otherwise would seem to suggest that the
court assumes the initial petition to be meritless. If the writ is
eventually issued, the relief requested would not only be premature
but unnecessary. But see. Autry v. Estelle, 719 F.2d 1251, 1252 (5th
Cir. 1983).
Turning next to the respondents' motion for summary judgment we note
that we implicitly overruled that motion by entry of our order
allowing discovery and a hearing on the petitioner's claims relating
to his mental competency at the time of trial and at present (Claims
VI A, B, C), and the claims relating to the alleged ineffective
assistance of counsel (Claim VI J). Further implicit in this order is
our rejection of the respondents' assertion that certain of the
petitioner's claims are insulated from federal habeas review under
either the doctrine of "independent and adequate state grounds"
applied in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.
2d 594 (1977) and Engle v. Issac, 456 U.S. 107, 102 S.Ct. 1558, 71
L.Ed. 2d 783 (1982), or the "presumption of correctness" doctrine
embodied in [*5] 28 U.S.C. 2254(d). In the following discussions of
the merits of the petitioner's claim, we will more fully discuss the
deference, if any, to be accorded factual findings, if any, made by
the state courts; for now, we make more explicit our view of the
respondents' "procedural bar" argument.
To be sure, notions of federalism and comity have led to the
recognition "that the failure to comply with a state procedural rule
may constitute an independent and adequate state ground barring [a
federal district court's] review of a federal question." Hathorn v.
Lovorn, 457 U.S. 255, 262 (1982); accord. Wainwright v. Sykes, 433
U.S. at 87-90, 97 S.Ct. at 2506-08. However, whether referred to as a
corrolary or an exception to the doctrine, where the state court has
reached the mer
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