On petition for writ of certiorari to the United States Court of
Appeals for the Eleventh Circuit.
The motion of respondent for leave to proceed in forma pauperis
is granted. The petition for writ of certiorari is denied.
CHIEF JUSTICE BURGER, with whom Justice REHNQUIST joins,
dissenting from the denial of certiorari.
Eleven years ago, while in Cobb County, Georgia, Potts and a
female companion persuaded Robert Snyder to give them a ride in a
pickup truck. After Snyder agreed, Potts shot him through the left
ear and nose with a pistol. Snyder acted as if he were unconscious
while Potts dragged him out of the truck. Potts robbed
Page 475 U.S.
1068 , 1069
Snyder and then, unable to start the truck, walked to a nearby
home. There he told Michael Priest that an accident had occurred.
Priest drove Potts back to the truck. Upon their arrival, Priest
saw Snyder lying in a ditch and attempted to help him. But Potts
ordered Priest to drive him and his companion to the next county,
Forsyth County. Once there, he forced Priest out of the car at
gunpoint. Priest said, "Oh my God, don't kill me"; Potts retorted
that there was no such thing as God, and that he would determine
whether Priest would live or die. Potts then put a gun to Priest's
head and killed him.
Potts was convicted in the Superior Court of Cobb County of
kidnaping Priest with bodily injury, armed robbery of Priest, and
armed robbery and aggravated assault of Snyder. Potts was sentenced
to death for the kidnaping and for the armed robbery. He was
subsequently tried in the Superior Court of Forsyth County for the
murder of Priest and received another death sentence. Potts'
convictions and sentences were affirmed by the Georgia Supreme
Court, although the court vacated Potts' death sentence for armed
robbery. Potts v. State, 241 Ga. 67, 69,
243 S.E.2d
510, 514 (1978). He then sought and was denied state habeas
relief.
Potts next sought a writ of habeas corpus in the United States
District Court for the Northern District of Georgia. The District
Court ordered a new guilt/innocence trial with respect to the Cobb
County kidnaping conviction and a new sentencing trial with respect
to the Forsyth County murder conviction.
575 F.
Supp. 374 (1983). The Court of Appeals for the Eleventh Circuit
affirmed.
734 F.2d
526 (11th Cir.1984).
Potts' federal habeas petition contained several issues that had
never been presented to the Georgia state courts; for the first
time in his petition, he argued that he was denied effective
assistance of counsel . This issue had not been raised on direct
appeal or on state habeas. Indeed, in the District Court Potts
moved to amend his federal habeas petition to include this new
claim. The State contended that Potts had not exhausted his state
remedies, citing this Court's opinion in Rose v. Lundy,
455 U.S. 509 (1982). The
District Court nonetheless granted the motion to amend, stating
that it was "hard pressed to see how [the State] would be
prejudiced by the granting of the . . . motion." Of course, this
was a wholly insufficient basis for ignoring the requirement of
exhaustion of state remedies made explicit in Lundy. There we
ex-
Page 475 U.S.
1068 , 1070
plained that the exhaustion requirement is designed not only to
avoid prejudice to state prosecutors but also "to protect the state
courts' role in the enforcement of federal law and prevent
disruption of state judicial proceedings." Id., at 518.
In his federal habeas petition, Potts also argued that the trial
court erred in not instructing the jury that "bodily injury" was an
element of the crime of capital kidnaping. From an examination of
the record lodged with this Court, it seems clear that this issue
was not presented to the Georgia Supreme Court either on direct
appeal from the conviction or in the state habeas petition. Thus,
Potts had not exhausted his state remedies when he sought federal
habeas relief on this basis. Nonetheless, both the District Court
and the Court of Appeals granted relief on this claim without
giving the Georgia state courts any opportunity to review it.
Apart from the unnecessary "disruption of state-court
proceedings" created by this failure to require Potts to exhaust
state remedies, the record that resulted is unusual in several
respects. For example, the Court of Appeals embarked on an extended
discussion of the meaning of the Georgia capital kidnaping statute
without the benefit and guidance of a prior Georgia court
construction of the statute in light of Potts' objection. 734 F.2d,
at 529-530. Obviously our decision, and the decision of the court
below, would have been aided by such a construction.
The Court of Appeals also acknowledged after parsing the Cobb
County jury verdict that "there is . . . some degree of uncertainty
as to what the Cobb County jury intended to find with regard to the
kidnapping charge ." Id., at 530. The court nevertheless
confidently declared that the jury had never found "bodily injury"
because of defective instructions. The federal question presented
on a challenge such as this is " 'whether the ailing instruction by
itself so infected the entire trial that the resulting conviction
violates due process,' . . . not merely whether 'the instruction is
undesirable, erroneous, or even "universally condemned." ' "
Henderson v. Kibbe,
431 U.S. 145, 154, and
157, 1736, and 1738 (1977) (emphasis added) (quoting Cupp v.
Naughten,
414 U.S.
141, 147 (1973)). Of course the Georgia state courts, familiar
as they are with the nuances of trial procedure in that State, are
in a far better position to decide such a question in the first
instance than is the Court of Appeals.
By allowing Potts to raise these issues for the first time in
his federal habeas petition, the Court of Appeals also
effectively
Page 475 U.S.
1068 , 1071
circumvented sound state procedural rules that may have been
applicable. Although the trial transcript is not part of the record
lodged with this Court, it seems apparent that Potts never
contested that the kidnaping here did in fact end with bodily
injury. After all, Mr. Priest was found shortly after Potts had
kidnaped him-not merely injured, but dead with a bullet through his
head-and the whole record here is filled with evidence of mayhem.
Accordingly, if the trial court's instructions were in any way
defective on need for a jury finding of "bodily injury," it seems
extremely unlikely that Potts objected. Indeed, he may have even
invited the error or made a tactical decision not to object for the
purpose of diverting the jury's attention from the obvious injury
that resulted. In such circumstances, the state court might well
and properly have concluded that Potts was procedurally barred from
raising this claim, had he been required to proceed there first.
Such a conclusion could have precluded federal-court review of this
issue entirely since generally "if a defendant has an objection,
there is an obligation to call the matter to the court's attention
so the trial judge will have an opportunity to remedy the
situation." Estelle v. Williams,
425 U.S. 501, 508, n. 3,
96 S. Ct. 1691, 1695, n. 3 (1976). This possibility was foreclosed
by the Court of Appeals' hasty consideration of Potts' claim. The
correct course, clearly mandated by our prior opinions, was to give
the Georgia state courts "first crack" at Potts' constitutional
objections.
"The exhaustion doctrine seeks to
afford the state courts a meaningful opportunity to consider
allegations of legal error without interference from the federal
judiciary." Vasquez v. Hillery,
474 U.S.
254, 257, 620 (1986). Because the District Court and the Court
of Appeals entertained a petition contrary to established law, I
would vacate and remand with instructions to dismiss the petition
to " 'allo[w] the State an initial opportunity to pass upon and
correct alleged violations of [Potts'] federal rights.' " Lundy,
supra, 455 U.S., at 518 (quoting Duckworth v. Serrano,
454 U.S.
1, 3, 19 (1981)). We have followed essentially this procedure
in other cases when we discovered that a petitioner has obtained
relief on an unexhausted claim. See, e.g., Bergman v. Burton,
456 U.S. 953
(1982) ( after discovering exhaustion problem, vacating and
remanding for reconsideration in light of Lundy). Accordingly, I
dissent from the Court's denial of certiorari.
Justice BRENNAN took no part in the consideration or decision of
this motion and petition.
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