451 U.S. 1028 (1981)

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U.S. Supreme Court

MCELROY v. HOLLOWAY , 451 U.S. 1028 (1981)

451 U.S. 1028

Clay E. McELROY, Warden
No. 80-1637

Supreme Court of the United States

May 26, 1981

On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

The petition for a writ of certiorari is denied.

Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.

Perhaps the tersest summary of the reasons I would grant certiorari in this case is contained in the "black letter" heading of Part II, section B, subsection 4 of the opinion of the Court of Appeals: "Where the states are left after Winship, Mullaney, and Patterson." 5 Cir., 632 F.2d 605, 624. The opinion of that court, which comprises 79 printed pages of the appendix to the petition for certiorari here, suggests that the answer is not crystal clear, even to the Court of Appeals for the Fifth Circuit whose judgment we are asked to review.

Mullaney v. Wilbur, 421 U.S. 684 (1975 ), established that a State must prove every element of a criminal offense beyond a reasonable doubt. It is equally well established, however, that state legislatures and state courts, not federal judges, define the elements of a state criminal offense. Id., at 691. The Court of Appeals for the Fifth Circuit in this case followed the former rule but not the latter and, on the strength of this possible error, ordered released from prison a person convicted of voluntary manslaughter whose conviction had been affirmed on direct appeal and state habeas corpus. Because I believe that it is for Georgia, and not the Court of

Page 451 U.S. 1028 , 1029

Appeals for the Fifth Circuit, to define the elements of the crime of voluntary manslaughter, under Georgia law, I would grant plenary consideration.

Respondent Holloway was tried before a Georgia jury for murder and convicted of the lesser included offense of voluntary manslaughter. Under Georgia law, "[a] person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being." Ga.Code 26-1101(a) (1978). Voluntary manslaughter is defined as causing the death of another human being under circumstances which would otherwise be murder if the killer "acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person." 26-1102. Respondent admitted that he intentionally killed the victim but claimed that he acted in self-defense. Georgia law recognizes the defense of self-defense, 26-902, and explicitly provides that a claim of self- defense "is an affirmative defense." 26-907. The trial judge accordingly instructed the jury, without objection from respondent's counsel, that after the State had proved an intentional homicide "the burden is on the slayer" to show that the killing was justified, in this case, by self-defense. 632 F.2d, at 619 (emphasis in original).

Respondent appealed his conviction, but did not raise any Mullaney issue. The Georgia Court of Appeals affirmed, 137 Ga.App. 124, 222 S.E.2d 898 (1975), and the Georgia Supreme Court denied certiorari. Respondent then sought federal habeas relief, but the District Court dismissed his application without prejudice for failure to exhaust, suggesting sua sponte that the trial court's instruction was " 'notably suspect under the principles of Mullaney v. Wilbur.' " 632 F.2d, at 614. The state trial court denied state habeas relief, and the Georgia Supreme Court affirmed. Rejecting respondent's Mullaney claim, the Georgia Supreme Court ruled that: "The burden placed on the defendant to excuse the homicide [451 U.S. 1028 , 1030]

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