General - Miscellaneous Research Vol. 2 of 3

    \    

  

Tasha 

y Robert Alon BARRE, Pon, 

    

   
ian DH VASQUEZ, Warden of the ..'., California State Prison at 

A e, Sam Sui Ropes 

Died Ses Court of Appi, 

   
   Defendant petitioned. for writ of habe- 

as corpus: following state: court conviction 
of defendant and scheduling of defendants 
‘execution. The’ District Court’ denied the * 
petition. * Defendant moved for issuance of 
certificate of probable cause to appeal from 
denial of ‘the petition and requested a stay 
of ‘execution pending’ resolution of appeal. 
The" Cotirt ‘of Appeals, Noonan, Circuit 
Judge, held that defendant was entitled to 
a'stay of execution in order to obtain a 
hearing on his'¢laim that he was denied 
competent psychiatric assistance during the 
penalty phase of his trial. tl a 

Jo, ordered. 9 - HaidY pel al 

Application to vacate denied, 110 8.0. 

a See. als0, 886 — 1354. 

1. Habeas Corpus ¢>898(3) 

Defendant was ‘entitled to a stay of 

execution in order to obtain a hearing on 

his ¢laim that he was ‘denied competent 
psychiatric assistance during the penalty 
phase of his trial, Sven though the defen. 
dant had not raised the issue in one of his 
two, previous petitions for habeas corpus; 
defendant was now urging 4 new funds- 
mental rule that was ot available to him at 
time of his previous petitions, which pre- 

ceded Ake decision, snd Ake decision argu- 
ably eould be invoked in ‘collateral attack 
on state judgment due to fact that rule was 

901 FEDERAL REPORTER, ml SERIES 

one of: fundamental fairness. uses : 
mg Amendse Sp Ad. a 4 

     
    

in ‘custody pursuant to a judgment of 
state court, an evidentiary hearing   
quired when the petitioner's lessons} A 
proved, would establish the right: 

tes elovant tats. 28 US.C. 
il 

“ ales 'M, Sevilla and Mic } 
McCabe, San Diego, Cal, for 

gE pa 
Louis R. Hanoian and Jay M. Bloom, San 
Diego, Cal, for respondent. 

SUMMARY 

dor! Constitutional Law 

+i Granting a certificate of probable 
to appeal from the district court’s denial 
8 petition for a writ of habeas ‘¢ 

Judge ‘Noonan of the court of ‘appeals 
stayed the petitioner's execution until 

ther action by the court. 

"Petitioner Robert Alton * Harris 
the court for the issuance of a certi 
probable cause to appeal from the 
his: ‘petition for a writ of habeas cor x 

which was entered on March 28, 1990 

#nd a reputable psychiatrist that ps 

rie help given him at the penalty p 
incompetent.’ He was entitled to co! 

assistance. “[2] The district court 

the issue should have been raised 
the two previous petitions for habes 

pus. Harris’ answered that the State 

  

   

       

    

    

    

provides for habeas application by:apersan ; 

      

   

   
   
   

   

    

    

   
     

   

    

    

     

   
   
   

have now raised the issue of competency 
of paychiatric help he received from the 
State in 1979. Only the volunteering of 
funds by. his lawyers after filing of the 
second: federal petition has produced the 
evidence that is the basis for his claims. 13] 
‘A second way of viewing the claim is that 
the constitutional right to competent assist- 
ance was only definitely established by A/e 
v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 
84 L.Ed.2d 58 (1985). Harris now urged a 

"new fundamental rule that was not avail- 
able to him at the time of the previous 
petitions. [4] If speedy justice in capital 
cases ‘is a desideratum, the Constitution 
should be amended to make it attainable. 
As the Constitution now stands, the federal 
courts are committed to a process in which 
speed ‘is sacrificed to thoughtful examina 
tion, and rough and ready justice for hei- 
nous crimes has been replaced by deliber- 
ate examination and dispassionate review. 
[6] Judge Noonan concluded that the issue 
raised by Harris’ first claim is debatable 
among jurists of reason and could be re 
solved i different ways. There are sub. 
stantial grounds upon which relief might 
be gran, 

ORDER 

NOONAN, Circuit Judge: 

Robert. Alton Harris, the petitioner, 
moves this court for the issuance of a 
certificate of probable cause to appeal from 
the denial by the district court of his peti. 
tion for writ of habeas corpus which was 
entered «oni March 28, 1990 and requests 
this court to issue a stay of his execution 
pending the resolution of the appeal in this 
case to this court. 

The issue before this court. The issue 
before this court is not the rightness or 
wrongness of the death penalty or its 
wisdom or unwisdom or its constitutionali- 
ty or unconstitutionality. It is not the task 

of this court to make workable or unwork- 
able a particular state statute, even one 
invested with the grave symbolic signifi- 
cance of capital punishment. It is not the 

' responsibility of this court to perform the 

  

HARRIS v. VASQUEZ rid; Cite as 901 F.2d 724 (9th Cir. 1990) 
Let) 

functions of the state judicial system or to 
repeat mechanically the conclusions of t}- 
system even though thoughtful and experi 
enced and conscientious judges of that 
tem have passed on the petitioner's clair - 
and found them wanting, It is our ul 
mate task to decide whether the petitio 13 
er'’s rights under the Constitution of {| 
United States have been violated. 

That ultimate task cannot be discharge 
without facing a preliminary issue which 
must be addressed now: is there a hac 
for staying the petitioner's execution 
scheduled for April 37 If there is, a certif 
cate of probable cause must be issued 

Probable cause “requires somethin; 
more than the absence of frivolity.” Peti 
tioner must make “a substantial showin; 
of the denial of a federal right.” Thi 
standard does not mean that the petitioner 
show that he will prevail on the merit 
“Rather, he must demonstrate that the i 
sues are debatable among jurists of reason 
that a court could resolve the issues [in a 
different manner]; or that the question: 
are ‘adequate to deserve encouragement { 
proceed further.” Barefoot uv. Estelle, 
463 U.S. 880, 898, n. 4, 103 S.Ct. 3383, 3394, 
n. 4, 77 L.Ed.2d 1090 (1983). (emphasis in 
original). 

When a certificate of probable cause ic 
issued, the petiboner “must then be afford 
ed an opportunity to address the merits 
and the court of appeals is obligated to 
decide the merits of the appeal. Accord 
ingly, a court of appeals when necessary to 
prevent the case from becoming moot by 
the petitioner's execution, should grant a 
stay of execution pending disposition of an 
appeal when a condemned prisoner obtains 
a certificate of probable cause on his initial 
habeas appeal.” Id. at 893-894, 103 S.Ct. 
at 3395. 

Second and successive federal habeas 
corpus petitions “present a different is 
sue.” The granting of a stay “should re. 
flect the presence of substantial grounds 
upon which relief might be granted.” Jd. 
at 895, 108 S.Ct. at 3396. (emphasis sup 
plied). The petitioner's petition here is his 
third in the federal courts.  



> 

726 

THE “SUBSTANTIAL: GROUND THAT 
MIGHT JUSTIFY". "REMEF: iN THE 
PRESENT’ CABE: 

THE ‘RIGHT TO comput PSYCHI- 
ATRIC ASSISTANCE IN THE DEATH 
PENALTY PHASE OF THE TRIAL. 
{1}, Harris’ first asserted basis for relief 

is as follows: He presents by affidavit the 
opinions of a reputable clinical psychologist 

and ‘a reputable’ psychiatrist that psychiat- 
rie help given him at the penalty phase was 
incompetent. He was entitled to competent 
assistance, The Supreme Court has stated 
that “when the State has 'made the defen- 
dant's ‘mental condition relevant to his 
criminal capability: and (to the punishment 
he might suffer, the assistance of a psychi 
atrist may well be crucial tothe defen-. 
dant’s ability to marshal his defense.” Ake 
Oklahoma, 470. U.8. 68,80, 105 S.Ct. 
10871005, 84 LEd:2d 63 (1985). : 

"Ini! particular, “when the State presents 
Teyiateie evidence of the’ defendant's fu- 
ture dangerousness” in a’ capital -sentene- 
ing proceeding, ‘the defendant is entitled to 
psyechiatyic’ assistance. 
8.0t. at 1096. Psychiatric testimony is typ 
jexlly: n. battle of ‘experts.’ The battle ‘is 
one-sided or non-existent if the defendant 
has no competent psychiatric witness on his 
side, | As the Court puts it: “Without a 
psychiatrist's assistance, the defendant 
cannot offer a well-informed expert's op- 
posing view and thereby: loses a significant 
opportunity .to raise in the jurors’ minds 

questions about. the. State's proof, of an 
SEETAVAting actor.” » Id bag 105.8.Ct. at 
1097... 

In the ehpital ailing rbecedite) the 

State did offer the: testimony of Dr. Gris- 
wold, a+ psychiatrist, as’ to Harris’ future 
dangerousness. If Harris was denied com- 
petent. psychiatric assistance, he was. de- 
nied a federal constitutional right of due 
process of law secured by. Ake. 

“21M is reasonably’ arguable that we 
cannot’ determine on’ this ‘record whether 
Harris ‘was: denied competent psychiatric 

must be remanded to the’ district court to 
take evidence on this ‘issue. * In’ habeas 

Id. at 88-84, 106 

901 FEDERAL REPORTER, 2d SERIES 

proceedings under 28 U.S.C. § 2054 fanevie 
dentiary hearing is required when: (1) the 
‘petitioner's allegations, if proved, would:és- 
‘tablish the tight to relief (prima facie case); 
and (2) the state court trier of fact has net, 
after a full and fair hearing, reliably. found 
‘the relevant facts. Van Pilon v. Reed;:799 
F.2d.1882, 1388 (9th Cir.1986),; The state 
court trier of facts has not found the rele 
vant facts. The petitioner's allegations, Af 
proved, would. establish a right to relief. 

«The distriet court held that ithe’ issue 
should have been raised in one of the two Eh 
‘previous petitions for habeas corpus The 
answer made by Harris is that the State | 
denied him funds for the kind of tests that 
have iow raised the issue of the competen- 
oy. of psychiatric help he received from: the 
State. in 1979. Only the volunfeerin 
funds by his lawyers after the filing. ke 
second federal petition has produced the ce 
evidence , that is. the basis for his X; 

s1rNo abuse of the writ occurs “u 
the ptiione hu fade AT CONSCio 

Higation, He has raised the el 
to ‘vex, harass, or delay.” Horrig# 
ley, 852 F.2d 1546; 1572 (9th Cir. 
the evidence was, at least arguably, 

to withhold it, and arguably one cand 
that the litigation is needlessly pi 
nor, arguably, isthe claim raised 

i “A second way of viewing the 
that the constitutional right 
psychiatric assistance was onl 
established by Ake in 1985, 
after the second federal petition 
The Fule was tiew in 1985 when th 
in Ake considered “whether fundam 
fairness today! required such: 
Alcea; 470 U8. at; 85,105 3.Ct. at: 109 
petitioner is now: mrging a new, ren: 

tal rule that was not available to him ak the 
time of the previous petitions. 

“It is objected that if the rule’is new, 
cannot be invoked in this collateral ‘atts 
oh the State judgment. Teague v. Lane 
we (US omy 109 S.Ct. 1060, 1075; 108 
LiEd.2d 834 (1989), extended to capital 

   



SS ir 

HARRIS v. VASQUEZ 
as 901 F.2d 724 (9th Cir, 1990) 

vers. In the petitions for habeas coi 

Cite 

cases by Penry v. Lynaugh, — U.S. - — 
109 S.Ct. 2034, 2944, 106 1.Ed.2d 256 
(1989)... Teague, however, contains an ex- 
ception: the new rule may be invoked if it 
“implicate[s] the fundamental fairness of 
the trial” and enhances the “accuracy of 
the convictions,” Teague, 109 S.Ct. at 
1076. The analysis in Ake by the Supreme 
Court of the need for psychiatric assistance 
shows that, at least arguably, the rule is 
one of fundamental fairness, enhancing the 
accuracy of the jury's conclusions. The 
accuracy of the jury in imposing the death 

. Penalty. is arguably as important as the, 
accuracy of the jury in finding guilt, 

The objection may be made that the re- 
quirement of psychiatric assistance at the 
death penalty phase is only a dictum in Ake 
because the Court also found a psychiatrist 
necessary at the earlier guilt phase of the 
trial and so had no need to reach the sen- 
tencing phase. This 

                                        

    

   

       

  

    

     

  

    

     
   

dress major ‘questions, 
The state, as the district court observed, 
is entitled to due process just as much as 

the petitioner. In considering what process 
is due, it is appropriate to consider the 
gravity of the harm to the petitioner if his 

_ execution is not stayed, Barefoot, 463 US, 
at 898, 108 S.Ct. at 8394. 

tied out and its just penalties exacted. The 
state also has an interest in its punish- 
ments being carried out in accordance with 
the Constitution of the United States. For 
eleven years this latter interest of the state 
has predominated over its interest in execu- 
tion of the penalty. 
+ It is understandable that those charged 
with the responsibility of defending the 

  

whose adjudication has taken so much | 
the petitioner presented not frivolous 
unsubstantial, but serious questions w}, 
resolution required argument, rege; 
analysis, and deliberation. It was 
state’s own interest in constitutional 
cess that was protected in the resolutio 
those questions. If the state’s intere; 
exacting the penalty is again postponed i 
is in vindication of the state and fed 
interest that no one be put to death with 
due process of law. 

Such a process under our precedents |, 
made speedy justice difficult. 
justice in capital cases is a desideratum, 
should amend the Constitution to mak 
attainable. As the Constitution stands, (1. 
federal courts are committed to ga proc 
in which speed is sacrificed to thought fu 
examination, and rough and ready justice 
for heinous crimes has been replaced Hh 
deliberate examination and dispassion: i 
review. 

I conclude: The issue raised by the peti 
tioner's first claim is debatable among ii 
rists of reason. The issue could be re 
solved in different ways. There ar 
present substantial grounds upon which rs 
lief might be granted. It is unnecessary i 
address petitioner's other claims at thi 
time. The cegpfficate of probable cause | 
granted. The petitioner's execution 
stayed until further action by the court 
ALARCON and BRUNETTI, Circuit 

Judges, did not participate in the decision 
to grant the applications. See Ninth Cir 
cuit General Order 6.3(e) (“Any member of 
the [motions] panel may enter an orde 
granting [an] application” for a stay of 
execution), 

Ww 
0 $1 NUMBER SYSTEM 

If sped, 

1 

  

Re — B



   
Mary Ann DEAN, 

Plaintiff/Counter-Defendant/Appellant, 

Vv. 

Denise E. JOHNSON, Douglas CC. Dean, 

Maurice Dean, Edna Dean, United Ser- 

vices Automobile Association, and 

United States of America, Defen- 

dants/Counter-Claimants/Appellees. 

No. 87-2787. 

United States Court of Appeals, 

Tenth Circuit. 

Aug. 9, 1989. 

Wife of insured under federal employ- 

ees’ group life insurance policy brought 

action for declaratory judgment that she 

was entitled to proceeds of insured’s policy 

although he had filed change of designated 

beneficiary with his employer prior to his 

death. The United States District Court 

for the District of New Mexico, Edwin L. 

Mechem, J., ruled that wife was not enti 

tled to proceeds, and she appealed. The 

Court of Appeals, John P. Moore, Circuit 

Judge, held that Act preempted state do- 
mestic relations court order prohibiting in- 

sured from changing designated benefi- 

ciary. 

Affirmed. 

Divorce ¢=254(1) 

States ¢=18.27 

Federal Employees’ Group Life Insur- 

ance Act preempted state domestic rela- 

tions court order prohibiting insured from 

changing designated beneficiary. 5 U.S. 

C.A. § 8705(a). 

Joseph William Reichert, Albuquerque, 
N.M., for plaintiff/counter-defendant/ap- 

pellant. 

G. Richard Mantlo, Albuquerque, N.M., 

for  defendants/counter-claimants/appel- 

lees. 

Before MOORE, ANDERSON, and 

BRORBY, Circuit Judges. 

948° 881 FEDERAL REPORTER, 2d SERIES 

JOHN P. MOORE, Circuit Judge. 

The single issue in this appeal is whether 

an insured’s change of designated benefi- 
ciary under a Federal Employees’ Group 
Life Insurance Policy (FEGLI) takes prece- 
dence over a state court order prohibiting a 

change of designated beneficiary. We af- 
firm the district court’s finding federal law 
controls this issue. 

Mary Ann Dean instituted this action for 

a declaratory judgment that she is entitled 
to the proceeds of her deceased husband's 
FEGLI policy although he had filed a 
change of designated beneficiary with his 

employer prior to his death. To support 

her position, Ms. Dean cited a prior inter- 

locutory order issued by a domestic rela- 

tions judge in her state divorce action 

which, she claimed, nullified the filed 

change of beneficiary form. The order pro- 

hibited the parties from changing the 

names of any beneficiaries under any of 

the couple's insurance policies and ordered 

them to undo any changes made since their 

separation. While the order remained in 

effect, Chester Dean changed the designat- 

ed beneficiary of the policy. 

The following year, Mr. Dean died in an 
automobile accident. Ms. Dean claimed the 
proceeds of the FEGLI policy, contending 
the Federal Employees’ Group Life Insur- 

ance Act, 5 U.S.C. §§ 8701-8716, (FEGLIA) 
does not preempt valid state court orders in 

divorce proceedings. Alternatively, since 
the premiums had been paid out of commu- 
nity property, she maintained she should be 

entitled to the proceeds. 

We agree with the district court that 

FEGLIA and its accompanying regulations 

establish a preemptive scheme for group 

life insurance policies for federal employ- 
ees. This case is similar to one recently 
decided in the Eleventh Circuit. In O'Neal 
v. Gonzalez, 839 F.2d 1437 (11th Cir.1988), 

two insured federal employees agreed to 

name each other as beneficiary of their 

respective FEGLI policies as a means of 

ensuring that the mortgage to their jointly 

owned house would continue to be paid. 

Subsequently, without informing the other, 

one of the parties changed the designated 

      

   

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a 
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beneficiary naming an aunt notwithstand- 

ing their contract. Upon the death of the 

insured, decedent's aunt and plaintiff 

claimed the proceeds. Despite the harsh- 
ness of the result, the Eleventh Circuit 

found § 8705(a)! and corresponding regu- 

lation, 5 C.F.R. 870.901 (1986) 2, precluded 

Ms. O'Neal's claiming all of the proceeds. 
Citing Metropolitan Life Ins. Co. nw. 

McShan, 577 F.Supp. 165 (N.D.Cal.1983), 

and Knowles v. Metropolitan Life Ins. Co., 
514 F.Supp. 515 (N.D.Ga.1981), the Elev- 
enth Circuit concluded the language and 

intent of FEGLIA are clear. “This lan- 
guage indicates that Congress intended to 

establish, for reasons of administrative con- 

venience and for the benefit of designated 

beneficiaries, an inflexible rule that the 

beneficiary designated in accordance with 
the statute would receive the policy pro- 

ceeds, regardless of other documents or the 
equities in a particular case.” 839 F.2d at 

1440.3 

No facts or circumstances distinguish 

this case from the cited precedent despite 
Ms. Dean’s arguments to the contrary. 

The state domestic relations court order 
ostensibly restricts the federal insured’s 
right to designate a beneficiary and thus 
cannot be valid under FEGLIA.* No other 
circumstances of payment can override this 
principle. We therefore AFFIRM the or- 
der of the district court granting summary 

judgment in favor of decedent's parents 

and children. 

O ¢ KEY NUMBER SYSTEM 

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~
m
s
E
 

I. Section 8705(a) states in part: 

The amount of group life insurance and 
group accidental death insurance in force on 
an employee at the date of his death shall be 
paid, on the establishment of a valid claim, to 

the person or persons surviving at the date of 

his death.... For this purpose, a designa- 

tion, change, or cancellation of beneficiary in 

a will or other document not so executed and 

filed has no force or effect. 

2. Section 870.901 states in part: 

(a) A designation of beneficiary shall be in 

writing, signed, and witnessed, and received 
in the employing office. . .. 

GUNN v. NEWSOME 
Cite as 881 F.2d 949 (11th Cir. 1989) 

949 

Calvin GUNN, Petitioner-Appellee, 

v. 

Lanson NEWSOME, Warden, 

Respondent-Appellant. 

No. 87-8287. 

United States Court of Appeals, 
Eleventh Circuit. 

Aug. 7, 1989. 

State prisoner, whose malice murder 

conviction was affirmed by the Georgia 

Supreme Court, 245 Ga. 359, 264 S.E.2d 

862, filed petition for federal habeas relief. 

The United States District Court for the 
Northern District of Georgia, No. C86- 

747A, Charles A. Moye, Jr., J., granted 

petition, and state appealed. The Court of 

Appeals, 851 F.2d 1294, affirmed, but sub- 

sequently decided to rehear case en banc 

and vacated panel opinion. The Court of 

Appeals, Kravitch, Circuit Judge, held that: 

(1) District Court’s finding that reasonable 

lay person would not have recognized chal- 

lenged jury instruction constituted basis 

for federal habeas corpus relief, and that 

thus, subsequent petition was not abuse of 
writ, was not abuse of discretion; (2) jury 

instructions, taken as whole, impermissibly 

shifted burden on issue of intent from state 

in violation of due process; and (3) errone- 

ous jury instruction was not harmless. 

Affirmed. 

Roney, Chief Judge, filed concurring 

opinion. 

(e) A change of beneficiary may be made at 

any time and without the knowledge or con- 
sent of the previous beneficiary. This right 

cannot be waived or restricted. 

3. The court also cited S.Rep. No. 1064, 89th 

Cong., 2d Sess. 2, reprinted in 1966 U.S.Code 
Cong. & Admin.News 2070, 2071. 

4. We do not imply, however, Mr. Dean could 
not have been subjected to the contempt powers 
of the domestic court during his lifetime. That 
court's power to alter federal law is the only 

question we decide in this case.  



  

950) 

Hill, Circuit Judge, filed dissenting 

opinion in which Fay, Vance, Cox, Circuit 

Judges, and Henderson, Senior Circuit 

Judge, joined. 

Edmondson, Circuit Judge, filed dis- 

senting opinion. 

1. Habeas Corpus &=204 

Because writ of habeas corpus is eq- 

uitable in origin, under certain circumstanc- 

es court may decline to entertain petition 

properly within its jurisdiction. 28 U.S. 

C.A. § 2254. 

2. Habeas Corpus ¢=602 

Focus of court's inquiry in making 

threshold determination of whether court 

should decline to entertain habeas petition 

properly within its jurisdiction is on con- 

duct of habeas petitioner. (Per Kravitch, 

Circuit Judge, with five Circuit Judges con- 

curring and one Circuit Judge concurring 

in result.) 28 U.S.C.A. § 2244; Rules Gov- 

erning § 2254 Cases, Rules 9, 9(a, b), 28 

U.S.C.A. foll. § 2254. 

3. Habeas Corpus €=897, 898(1) 

Habeas petition that raises claim al- 

ready adjudicated through prior petition is 

“successive petition’; in contrast, petition- 

er that raises grounds for relief not raised 

in prior petition is analyzed as “abuse of 
the writ.” (Per Kravitch, Circuit Judge, 

with five Circuit Judges concurring and 

one Circuit Judge concurring in result.) 28 

US.C.A. § 2254. 
See publication Words and Phrases 

for other judicial constructions and 
definitions. 

4. Habeas Corpus &=897, 899 

Although res judicata does not apply in 

context of habeas corpus, equity usually 

will not permit petitioner to reassert claim 

already resolved against him in hope that 

his successive petition will be heard by 

different and perhaps more sympathetic 

judge; in such cases, court may dismiss 

successive petition unless petitioner can 

show that entertaining petition would serve 

ends of justice. (Per Kravitch, Circuit 

Judge, with five Circuit Judges concurring 

and one Circuit Judge concurring in result.) 
  

  

881 FEDERAL REPORTER, 2d SERIES 

Rules Governing § 2254 Cases, Rules (bj 
9 note, 28 U.S.C.A. foll. § 2254. 

5. Habeas Corpus ¢=899 

If court determines that habeas peti 

tioner has abused writ, court may summar- 

ly dismiss habeas petition unless to enter 
tain petition will serve ends of justice; if, 
on other hand, court finds that petitioner - 

has not abused writ, court shall entertam 

petition on merits. (Per Kravitch, Cireuit 

Judge, with five Circuit Judges concurring 

and one Circuit Judge concurring in result} 

28 U.S.C.A. § 2254. 

6. Habeas Corpus &=899 

Government has burden of pleading 
that habeas petitioner has abused writ 
however, once government does so, burden 

shifts to petitioner to show that his conduet 

was not abuse of writ. (Per Kravitch, Cie 

cuit Judge, with five Circuit Judges concur 
ring and one Circuit Judge concurring in 

result.) 28 U.S.C.A. § 2254. 

7. Habeas Corpus &>898(2) 

Habeas petitioner can meet burden of 
showing that his conduct was not abuse of 

writ by showing that his failure to raise 
claim in prior petition was result of excusa 

ble neglect, or, expressed differently, peti 
tioner may prove to court that he had some 

justifiable reason for omitting claim in pri 

or petition. (Per Kravitch, Circuit Judge, 
with five Circuit Judges concurring and 

one Circuit Judge concurring in result.) 28 

US.C.A. § 2254. 

8. Habeas Corpus €¢=898(2) 

Whether second or subsequent habeas 

petition constitutes abuse of writ—that is, 
whether petitioner's conduct was result of 
inexcusable neglect, or whether he has 
shown some justifiable reason for his fail- 

ure to raise claim earlier—is left to sound 
discretion of district court. (Per Kravitch, 
Circuit Judge, with five Circuit Judges con- 
curring and one Circuit Judge concurring 

in result.) Rules Governing § 2254 Cases, 

Rule 9 note, 28 U.S.C.A. foll. § 2254. 

9. Habeas Corpus &=898(1) 

If habeas petitioner knowingly and de- 

liberately withheld claim from prior peti- 

tion, then petitioner in bringing subsequent    
  

   
     

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petition has abused writ. (Per Kravitch, 
Circuit Judge, with five Circuit Judges con- 
eurring and one Circuit Judge concurring 

is result) Rules Governing § 2254 Cases, 
Rule 9 note, 28 U.S.C.A. foll. § 2254. 

10. Habeas Corpus €=898(3) 

Habeas petitioner may present in sub- 
sequent petition claim based upon new rule 

of law that is to be applied retroactively or 
daim based upon facts that were not 
known when prior habeas petition was 
prosecuted. (Per Kravitch, Circuit Judge, 

. with five Circuit Judges concurring and 
. gme Circuit Judge concurring in result.) 

Rules Governing § 2254 Cases, Rule 9 
mote, 28 U.S.C.A. foll. § 2254. 

11. Habeas Corpus &=898(3) 

Habeas petitioner may present claim in 

subsequent petition based upon facts that 

were known to him when he filed his prior 

petition, if he was not aware that those 
facts constituted grounds for federal habe- 

a relief. (Per Kravitch, Circuit Judge, 

with five Circuit Judges concurring and 
ese Circuit Judge concurring in result.) 
Rules Governing § 2254 Cases, Rule 9 
sote, 28 U.S.C.A. foll. § 2254. 

12. Habeas Corpus €=898(3) 

For abuse of writ purposes, habeas 
petitioner who reasonably should have 

known of certain facts, or that certain facts 

: 3 ] constituted legal grounds for federal habe- 
as relief, stands in same position before 

court as one who did know but unreason- 
ably did not present claim in prior petition, 
or delayed unreasonably before presenting 
it. (Per Kravitch, Circuit Judge, with five 
Circuit Judges concurring and one Circuit 
Judge concurring in result.) 28 US.C.A. 
§ 254; Rules Governing § 2254 Cases, 
Rule 9(b), 28 U.S.C.A. foll. § 2254. 

13. Habeas Corpus &=898(3) 

Equitable principles of abuse of writ 
doctrine permit habeas court to inquire into 
reasonableness of petitioner's prior lack of 

knowledge of facts, or knowledge that 
those facts constituted legal grounds for 

E federal habeas relief. (Per Kravitch, Cir- 

cuit Judge, with five Circuit Judges concur- 

ring and one Circuit Judge concurring in 

GUNN v. NEWSOME 951 
Cite as 881 F.2d 949 (11th Cir. 1989) 

result.) 28 U.S.C.A. § 2254; Rules Govern- 

ing § 2254 Cases, Rule 9(b), 28 U.S.C.A. 

foll. § 2254. 

14. Habeas Corpus ¢=668 

Courts should construe habeas petition 

filed pro se more liberally than one drawn 

up by attorney. (Per Kravitch, Circuit 

Judge, with five Circuit Judges concurring 

and one Circuit Judge concurring in result.) 

28 U.S.C.A. § 2254. 

15. Habeas Corpus ¢=896 

In determining whether pro se habeas 

petitioner has abused writ, pro se petitioner 

will not be held to same knowledge as 

lawyer. (Per Kravitch, Circuit Judge, with 

five Circuit Judges concurring and one Cir- 

cuit Judge concurring in result) 28 U.S. 
C.A. § 2254; Rules Governing § 2254 

Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254. 

16. Habeas Corpus ¢=899 

District court’s finding that reasonable 

layperson who read jury instruction given 

in state murder prosecution on issue of 

intent would not realize it violated Consti- 
tution and could be legal basis for federal 

habeas relief was not clearly erroneous; 

thus district court's decision not to dismiss 

subsequent habeas petition for abuse of 

writ on ground petitioner failed to raise 

issue in prior petition was not abuse of 

discretion. (Per Kravitch, Circuit Judge, 

with five Circuit Judges concurring and 

one Circuit Judge concurring in result.) 28 

US.C.A. § 2254; Rules Governing § 2254 

Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254. 

17. Habeas Corpus €=898(3) 

Habeas petitioner abuses writ when he 

raises in subsequent petition claim based 
on facts known when he filed prior petition 

pro se only if petitioner knew or reasonably 

should have known that those facts consti- 

tuted legal ground for federal habeas re- 

lief. (Per Kravitch, Circuit Judge, with 

five Circuit Judges concurring and one Cir- 
cuit Judge concurring in result.) 28 US. 
C.A. § 2254; Rules Governing § 2254 

Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254. 

18. Criminal Law €=328 

State may not shift to accused issue of 
intent, effectively requiring accused prove  



   
lack of intent, when intent is element of 

crime charged. 

19. Constitutional Law &=268(11) 

Criminal Law €=778(6) 

Jury instruction in murder prosecution 

that person of sound mind and discretion is 

presumed to intend natural and probable 

consequences of his acts, which presump- 

tion can be rebutted, unconstitutionally 

shifted state's burden on issue of intent to 
defendant in violation of his due process 

rights, where instructions did not explain 

or cure burden-shifting error. U.S.C.A. 

Const.Amend. 14. 

20. Criminal Law €=1172.2 

Jury instruction which impermissibly 

shifts state's burden of proof on element of 

crime is harmless where erroneous instruc- 

tion was applied to element of crime that 

was not at issue in trial, or evidence as to 

element of crime subject to burden-shifting 

instruction is overwhelming. 

21. Habeas Corpus €=498 

Error in state court murder prosecu- 

tion instruction which impermissibly shift- 

ed state's burden on issue of intent to 

defendant in violation of his due process 

rights was not harmless, where issue of 

intent was not conceded by defendant and 

remained in case, and evidence as to ele- 

ment of intent was not overwhelming. 

U.S.C.A. Const. Amend. 14. 

William B. Hill, Jr., Asst. Atty. Gen. 

Susan V. Boleyn, Atlanta, Ga., for respon- 

dent-appellant. 

Steven F. Hauser, ¢/o The Coca-Cola 

Co., Atlanta, Ga. (court appointed), for peti- 

tioner-appellee. 

Appeal from the United States District 
Court for the Northern District of Georgia. 

Before RONEY, Chief Judge, 

TJOFLAT, HILL, FAY, VANCE, 

KRAVITCH, JOHNSON, HATCHETT, 

ANDERSON, CLARK *, EDMONDSON 

* Judge Clark, did not hear oral argument, but 

elected to participate in the decision of this case. 

952, 881 FEDERAL REPORTER, 2d SERIES 

and COX, Circuit Judges, and 
HENDERSON **, Senior Circuit Judge. 

KRAVITCH, Circuit Judge: 

While serving a Georgia life sentence for 
malice murder, Calvin Gunn petitioned the 

district court pro se for a writ of habeas 

corpus under 28 U.S.C. § 2254. Gunn's 

sole basis for relief was that the trial 

court's jury instruction on the issue of in- 

tent had unconstitutionally shifted the 
state's burden of proof on that issue to 
Gunn. It was Gunn's second federal habeas 

petition, and he had not raised this issue in 

his first petition, which he had also filed 

pro se. The state argued that the district 

court should summarily dismiss the petition 

under Rule 9(b) of the Rules Governing 

Section 2254 Cases as an abuse of the writ, 

and opposed the petition on the merits. 

Taking note of Gunn's pro se status at the 

time he filed his first federal habeas peti- 

tion and of the abstruse nature of the legal 

claim involved, the district court concluded 

that Gunn's second petition was not an 
abuse of the writ. Upon reaching the mer- 
its, the court found in Gunn’s favor, and 

granted the writ unless the state retried 

Gunn within 120 days. The state appealed. 

A panel of this court agreed that the jury 
instruction had unconstitutionally shifted 

the state's burden, and that the error was 

not harmless; the panel was divided, how- 

ever, on the abuse of the writ issue, with a 

majority voting to affirm the district court. 

851 F.2d 1294 (1988). We determined to 

rehear the case in banc, and vacated the 

panel opinion. Id. at 1301. We now AF- 

FIRM. 

L 

A. FACTUAL BACKGROUND 

In the early evening of March 23, 1979, 

Eddie Williams was bowling at the Frontier 

Lounge in Rabun County, Georgia, with his 

cousin, Russell Ivester, and Michael Shir- 

ley. Some time after the match had begun, 

Gunn arrived and asked if he could join the 

** Senior U.S. Circuit Judge Henderson elected 
to participate in this decision pursuant to 28 
U.S.C. § 46(c). 

       



GUNN v. NEWSOME 953 
Cite as 881 F.2d 949 (11th Cir. 1989) 

Everyone agreed that Gunn could 

During the bowling match, Gunn 

and Williams had an argument. Ivester 

testified that Gunn threatened to kill 

Williams, and Williams made similar threat- 

ening remarks to Gunn. The two had 

fought in the past, and they stepped out- 

side the lounge to settle their dispute. A 

bartender intervened before blows were ex- 

changed. 

Gunn and Williams then left the lounge 

in separate vehicles. Mike Shirley accom- 
panied Williams. Gunn followed Williams's 
vehicle. Williams noticed Gunn following 

him, and exclaimed, “I'm not going to let 

the son-of-a-bitch follow me everywhere. 

I'm going to stop and get this over with.” 

He then pulled into a vacant parking lot, 

and Gunn followed. According to Gunn, 

the two had agreed to meet at this parking 
lot after the bartender had intervened at 

the lounge. It appears that this parking 

lot was the customary venue for fights. 

game. 

do so. 

After Williams, Shirley, and Gunn got 

out of the cars, Shirley walked to a bush 
twenty-five yards away to relieve himself. 

Williams and Gunn then exchanged words, 

and Gunn pulled out the butt end of a 

sawed-off cue stick and struck Williams on 

the head. Shirley testified that Gunn 

struck Williams two or three clean blows to 

the head before Williams was able to ward 

off further blows with his hands. Gunn 
testified that he hit Williams with the cue 
stick in self-defense because Williams had 
a large rock in his left hand and had at- 

tempted to strike him. Shirley testified 
that he did not see a rock, but he was 

unable to see Williams's left hand. Gunn 

and Williams grappled together and fell to 
the ground, Gunn losing the cue stick in 

the scuffle. At this point Shirley retrieved 
the cue stick and bludgeoned Gunn about 

the back. Shirley's intervention allowed 

Williams to gain the advantage in the fight. 

Gunn asked to be released, and Williams 

obliged. Williams then drove back to the 

lounge with Shirley as a passenger. 

When Williams and Shirley arrived at the 

lounge, Williams remained in the car, com- 

plaining that he did not feel well. Gunn 

1. We note that while Gunn was allegedly saying 

then drove up and purportedly told Shirley, 

“I got your buddy, Shirley, I'm going to kill 

you next.” ! Williams went home that eve- 

ning saying he would be all right. The 

following morning, however, he was found 

convulsing and was taken to the hospital, 

where he died a short time later. 

The physician who treated Williams 

when he arrived at the hospital also per- 

formed the autopsy, and testified that 

Williams died as the result of a blow to the 
left side of the head which fractured the 
skull resulting in cerebral edema. The doc- 

tor further testified that a blow with a 

sawed-off cue stick would have been com- 
patible with Williams's injury. 

B. PROCEDURAL HISTORY 

Gunn was tried before a Rabun County 
jury in June of 1979. The court instructed 

the jury on both malice murder and volun- 

tary manslaughter. As part of its jury 

instructions, the court instructed the jury 

that the law presumes a person intends 

“the natural and probable consequences of 

his acts, but this presumption may be re- 

butted.” Gunn's lawyer did not challenge 

the constitutionality of the jury instruction. 

On June 20, 1979, the jury returned a ver- 

dict of guilty as to malice murder. Gunn 

was sentenced to mandatory life imprison- 
ment. 

Gunn appealed to the Georgia Supreme 

Court, raising six issues. Two issues in- 

volved the impanelling of the grand jury 

that had indicted Gunn. The other issues 

were the denial of a motion for change of 

venue, failure to grant a continuance to 

locate a witness, introduction into evidence 

of a cue stick similar to the one Gunn 
allegedly used, and improper questioning 
by the prosecutor that impermissibly put 

Gunn's character into issue. Gunn's law- 

yer did not challenge the jury instructions 

on appeal. The Supreme Court of Georgia 

affirmed Gunn's conviction. Gunn wv. 

State, 245 Ga. 359, 264 S.E.2d 862 (1980). 

Gunn's first federal habeas petition, 

which he filed pro se, simply repeated five 

of the six issues that Gunn's lawyer had 

this, Williams was alive and sitting in the car.  



   
raised on direct appeal. These claims were 

that the grand jury had been unconstitu- 

tionally impanelled (Claim 1), that he had 

been denied a fair trial by the trial court's 

denial of a motion for change of venue 

(Claim 2), that he had been denied a fair 

trial by the trial court’s denial of a motion 

for continuance (Claim 3), the admission of 

evidence—the cue stick—that was preju- 

dicial and not related to the crime (Claim 4), 

and that the prosecutor impermissibly put 

his character into issue in the case (Claim 
5). Gunn did not challenge the constitu- 

tionality of the jury instructions. 

The state responded on the merits to 

each claim. The magistrate held an eviden- 

tiary hearing, after which the district court, 

adopting the recommendation of the magis- 

trate, denied relief in April of 1983. 

In September of 1985, four months after 

the Supreme Court's decision in Francis v. 

Franklin, 471 U.S. 307, 105 S.Ct.1965, 85 
L.Ed.2d 344 (1985), Gunn pro se filed a 

state habeas petition in the Superior Court 

of Tattnall County, Georgia. Gunn's sole 

ground for relief was that the trial court's 

jury instruction on intent—virtually identi- 

cal to the one found unconstitutional in 

Franklin—had created an unconstitutional 
presumption of intent to kill. 

The state did not raise any state law 

procedural default bar as a defense; in- 

stead, the state responded to Gunn's claim 

on the merits. After an evidentiary hear- 

ing, the state court denied Gunn's petition, 

concluding that the jury instruction created 

only a permissive inference of intent, and 

thus did not shift the state's burden of 

proof. The Georgia Supreme Court denied 

Gunn's application for a certificate of prob- 

able cause in March of 1986. 

Having exhausted his state remedies, 

Gunn now returned pro se to federal court 

and filed his second petition for a writ of 

2. The state did not seek a stay of the court's 

order pending appeal. Arguing that the writ 

irretrievably issued 120 days after the date of 

the district court's order, Gunn has moved this 

court to dismiss the state's appeal as moot. By 

separate order we have denied Gunn's motion to 

dismiss. Gunn, who is currently on parole, has 

not challenged the power of the state to enforce 

the conditions of his parole while this appeal 

  

954, 881 FEDERAL REPORTER, 2d SERIES 

habeas corpus on April 1, 1986. The sole 

ground for relief that Gunn raised was the 

constitutionality of the trial court's jury 

instruction on the issue of intent. 

The state responded to Gunn's petition 

by arguing that the petition should be sum- 

marily dismissed as an abuse of the writ. 

The magistrate concluded that Gunn's sec- 
ond petition was not an abuse of the writ, 

and invited the state to respond to the 
merits of Gunn's claim. After the state 
had responded, the magistrate concluded 

that the jury instruction on the issue of 

intent had impermissibly shifted part of the 
government's burden of proof. The dis- 

trict court, before whom the state had re- 

newed its motion to dismiss the petition as 

an abuse of the writ, reviewed the record 

de novo and concluded that Gunn's second 

petition was not an abuse of the writ and 

that he should prevail on the merits of his 

claim. The district court granted the writ 

unless the state retried Gunn within 120 

days. The state appeals.’ 

The state raises three issues in its ap- 

peal. First, the state challenges the dis- 

trict court's determination that Gunn did 

not abuse the writ. Second, the state chal- 

lenges the district court's decision on the 

merits that the jury instruction unconstitu- 

tionally shifted the government's burden to 

Gunn. Finally, the state contests the dis- 

trict court’s conclusion that the constitu- 

tionally infirm jury instruction was not 

harmless error. 

II. ABUSE OF THE WRIT 

A. 

[1,2] Because the writ of habeas cor- 

pus is equitable in origins, under certain 

circumstances a court may decline to enter- 

tain a petition properly within its jurisdic- 

tion.? The focus of the court’s inquiry in 

has been pending; therefore, the issue of wheth- 

er the state must seek a stay pending appeal of 

an order conditionally granting habeas relief is 
not properly before us, and we decline to spec- 

ulate on the subject. 

> By “entertain” we mean “a federal court's con- 

clusion, after examination of the application 
with such accompanying papers as the court 

deems necessary, that a hearing [or determina-   
  

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GUNN v. NEWSOME 955 
Cite as 881 F.2d 949 (11th Cir. 1989) 

making this threshold determination is on 

the conduct of the habeas petitioner, be- 

cause ‘‘a suitor’s conduct in relation to the 

matter at hand may disentitle him to the 

relief he seeks.” Sanders v. United 

States, 3731.8. 1, 17, 33 S.Ct. 1063, 1078, 

10 L.Ed.2d 148 (1963) (quoting Fay v. Nota, 

372 U.S. 391, 438, 33 S.Ct. 322 349, 9 

L.Ed.2d 837 (1963)). 

Title 28 U.S.C. § 2244 and Rule 9 of the 
Rules Governing Section 2254 cases in the 
United States District Courts identify con- 
duct that may cause a petitioner to forfeit 

his right to prosecute a federal habeas 

petition. For example, where a petitioner 

unreasonably delays in asserting a claim, 

and the state is prejudiced by the delay, 

Rule 9(a) applies equity's rule of laches to 

the habeas petitioner.! Rule 9(b) and 28 

U.S.C. § 2244 in turn address the problem 

of prisoners repeatedly filing successive ha- 

beas petitions or abusing the writ by as- 
serting their claims piecemeal.’ 

[3,4] In a successive petition, the peti- 

tioner raises a claim that he had raised in a 
prior petition and that had been resolved on 

the merits.® Although res judicata does 

not apply in the context of habeas corpus, 

Sanders, 373 U.S. at 7-8, 83 S.Ct. at 1073, 

tion] on the merits legal or factual is proper.[ ]" 

Brown v. Allen, 344 U.S. 443, 461, 73 S.Ct. 397, 

409, 97 L.Ed. 469 (1953). 

4. Under Rule 9(a), if the court determines that 

the petitioner knew, or with reasonable dil- 

igence should have known, of the grounds he 
has raised in the allegedly-delayed petition, and 
that his delay in asserting the claim was unrea- 
sonable as a matter of law, then the court may 

dismiss the petition if the state can make a 
particularized showing of prejudice resulting 
from the petitioner's delay. Thomas v. Dugger, 

846 F.2d 669 (11th Cir.1988); Lawrence v. Jones, 

837 F.2d 1572 (11th Cir.1988); Davis v. Dugger, 

829 F.2d 1513 (11th Cir.1987). See also Hill v. 

Linahan, 697 F.2d 1032 (11th Cir.1983) (quoted 
with approval in Jones). The advisory commit- 
tee note to Rule 9 observes, “[s]Jubdivision (a) is 

not a statute of limitations. Rather, the limita- 
tion is based on the equitable doctrine of lach- 

es.... [T]he language of the subdivision, ... is 

permissive rather than mandatory. This clearly 

allows the court which is considering the peti- 

tion to use discretion in assessing the equities of 

the particular situation.” 

5. Rule 9(b) provides as follows: 

equity usually will not permit a petitioner 

to reassert a claim already resolved against 

him in the hope that his successive petition 

will be heard by a different and perhaps 

more sympathetic judge. See Sec. 2254 

Cases R. 9 advisory committee's note (“a 

successive application already decided on 

the merits may be submitted in the hope of 
getting before a different judge in multi- 

judge courts”). In addition, the important 
need for finality in criminal law counsels 
strongly against courts repeatedly review- 

ing criminal convictions. See Teague v. 

Lane, — U.S. ——, 109 S.Ct. 1060, 103 
L.Ed.2d 334 (1989) (“Without finality, the 
criminal law is deprived of much of its 

deterrent effect”) (plurality opinion). In 

such a situation the court may dismiss the 

successive petition unless the petitioner can 

show that entertaining the petition would 

serve the ends of justice. Kuhlmann v. 

Wilson, 477 U.S. 436, 448-53, 106 S.Ct. 
2616, 2624-26, 91 L.Ed.2d 364 (1986); 
Sanders, 373 U.S. at 15, 16-17. 83 S.Ct. at 

1077, 1077-78. 

Rule 9(b) also addresses the case of a 

second or subsequent petition that raises a 

claim the petitioner did not raise in his 

prior petition, or, if he did present the 
claim, it was not adjudicated on the merits.” 

Successive Petitions. A second or succes- 

sive petition may be dismissed if the judge 

finds that it fails to allege new or different 

grounds for relief and the prior determination 

was on the merits or, if new and different 
grounds are alleged, the judge finds that the 
failure of the petitioner to assert those 
grounds in a prior petition constituted an 
abuse of the writ. 

6. It may be helpful to clarify our terminology. 
A petition that raises a claim already adjudi- 

cated through a prior petition is a “successive 

petition.” In contrast, a petition that raises 
grounds for relief not raised in the prior peti- 
tion is analyzed as an “abuse of the writ.” See 

Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 
2616, 2622 n. 6, 91 L.Ed.2d 364 (1986) (plurality 

opinion). See also, e.g, Sanders v. United 
States, 373 U.S. 1, 10, 83 S.Ct. 1068, 1074, 10 

L.Ed.2d 148 (1963). 

7. That portion of Rule 9(b) that speaks to the 

abuse of the writ is coterminous with 28 U.S.C. 

§ 2244(b); therefore we do not treat Rule 9(b) 

and § 2244(b) separately. 28 U.S.C. § 2244(b) 
provides as follows: 

When after an evidentiary hearing on the 
merits of a material factual issue, or after a 

  

: ¥ 3  



   
» 

In this situation, “[n]othing in the tradi- 

tions of habeas corpus requires the federal 

courts to tolerate needless piecemeal litiga- 

tion, to entertain collateral proceedings 

whose only purpose is to vex, harass, or 

delay.” Sanders, 373 U.S. at 18, 83 S.Ct. 

at 1078.% Thus, a court may dismiss such a 

petition, but not simply because it is a 

second or subsequent petition, for “not all 

piecemeal litigation is ‘needless,’ Booker 

v. Wainwright, 764 F.2d 1371, 1376 (11th 

Cir.), cert. denied, 474 U.S. 975, 106 S.Ct. 

339, 88 L.Ed.2d 324 (1985). See Miller v. 

Dugger, 858 F.2d 15636 (11th Cir.1988); Ha- 

ley v. Estelle, 632 F.2d 1273, 1276 (5th 

Cir.1980).* See also Woodard v. Hutchins, 

464 17.8."377, 383, 104 S.Ct. 752, 755, 78 

L.Ed.2d 541 (1984) (White and Stevens, JJ., 

dissenting). Rather, the court may dismiss 

the petition because equity will not permit 

the petitioner to invoke the powers of the 

very court which he has sought to use as 

his instrument of vexation, harassment, or 

delay. The court's focus is on the conduct 

of the petitioner, and whether the petition- 

er's conduct is such that he has disentitled 

himself from seeking the federal habeas 

relief. E.g., Paprskar v. Estelle, 612 F.2d 

1003 (6th Cir.) (“When we examine the 

conduct of petitioner in light of the equi- 

ties, we clearly cannot conclude that this 

petition constitutes ‘needless piecemeal liti- 

gation’ or that its ‘purpose is to vex, ha- 

hearing on the merits of an issue of law, a 

person in custody pursuant to the judgment of 

a State court has been denied by a court of 

the United States or a justice or judge of the 

United States release from custody or other 

remedy on an application for a writ of habeas 
corpus, a subsequent application for a writ of 
habeas corpus in behalf of such person need 
not be entertained by a court of the United 

States or a justice or judge of the United 

States unless the application alleges and is 

predicated on a factual or other ground not 

adjudicated on the hearing of the earlier ap- 

plication for the writ, and unless the court, 

justice, or judge is satisfied that the applicant 

has not on the earlier application deliberately 

withheld the newly asserted ground or other- 

wise abused the writ. 

Although we have noted that by their terms 

Rule 9(b) and § 2244(b) apply only to a claim 

adjudicated on the merits on the prior petition, 

we express no sentiment as to how that princi- 

ple interrelates with the requirement that a 

court must dismiss without prejudice a “mixed” 

petition containing both exhausted and unex 

956 881 FEDERAL REPORTER, 2d SERIES 

rass, or delay.” There was no abuse of the 

writ.”"), cert. denied, 449 U.S. 885, 101 S.Ct. 

239, 66 L.Ed.2d 111 (1980). 

[51 If a court determines that the peti- 

tioner has abused the writ, it may summar- 

ily dismiss the petition unless to entertain 

the petition will serve the ends of justice. 

Sanders, 373 U.S. at 18-19, 83 S.Ct. at 

1079; Davis v. Kemp, 829 F.2d 1522, 1526 

(11th Cir.1987), cert. denied, — U.S. ; 

108 S.Ct. 1099, 99 L.Ed.2d 262 (1988). If, 
on the other hand, the court finds that the 

petitioner has not abused the writ, then the 

court shall entertain the petition on the 

merits. 

  

[6,71 The government has the burden 

of pleading that the habeas petitioner has 

abused the writ. Price v. Johnston, 334 

U.S. 266, 291-92, 68 S.Ct. 1049, 1063, 92 

L.Ed. 1356 (1948). Once the government 

does so, the burden shifts to the petitioner 

to show that his conduct was not an abuse 

of the writ. Id. at 292, 68 S.Ct. at 1063; 

Witt v. Wainwright, 755 F.2d 1396, 1397 
(11th Cir.), cert. denied, 470 U.S. 1039, 105 

S.Ct. 1415, 84 L.Ed.2d 801 (1985). The 

petitioner can meet this burden by showing 

that his failure to raise the claim in a prior 

petition was the result of “excusable ne- 

glect.” Potts v. Zant, 638 F.2d 727, 740-41 

(5th Cir. Unit B),'® cert. denied, 4564 U.S. 

hausted claims. Cf. Rose v. Lundy, 455 U.S. 509, 

520-21, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 

(1982) (plurality opinion). The issue is not be- 
fore us, therefore we do not address it. 

8. Although Sanders involved a petition brought 

under 28 U.S.C. § 2255, the Court noted that the 

same rules apply to federal habeas petitions 
brought by a state prisoner under 28 U.S.C. 

§ 2254. Sanders, 373 U.S. at 14-15, 83 S.Ct. at 

1076-77. Thus, for our purposes in discussing 
the abuse of the writ, we may look to case law 
developed under both § 2254 and § 2255. 

9. In Bonner v. City of Prichard, 661 F.2d 1206, 

1209 (11th Cir.1981) (in banc), this court 

adopted as binding precedent all decisions of 
the former Fifth Circuit handed down before 

October 1, 1981. 

10. In Stein v. Reynolds Securities, Inc., 667 F.2d 
33 (11th Cir.1982), this court adopted as binding 
precedent all decisions of Unit B of the former 
Fifth Circuit handed down after September 30, 
1981.   

  

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GUNN v. NEWSOME 957 
Cite as 881 F.2d 949 (11th Cir. 1989) 

877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981). 
Or, expressed differently, the petitioner 

may prove to the court that he had some 

“justifiable reason” for omitting the claim 

in the prior petition. Fleming v. Kemp, 

837 F.2d 940 (11th Cir.1988), cert. denied, 
— U.S. ——, 109 S.Ct. 1764, 104 L.Ed.2d 
200 (1989); Henry v. Wainwright, 743 F.2d 
761, 762 (11th Cir.1984)."! These rules ‘“re- 

flect the effort to adjust the tension be- 
tween the need to consider all nonfrivolous 

claims and the need to prevent manipu- 
lation and obstruction of judicial proceed- 

ings by successive petitions.” Jones v. Es- 

telle, 722 F.2d 159, 164 (5th Cir.1983), cert. 

denied, 466 U.S. 976, 104 S.Ct. 2356, 80 

L.Ed.2d 829 (1984). 

[8] Whether a second or subsequent pe- 

tition constitutes an abuse of the writ—i.e., 

whether the petitioner's conduct was the 

result of inexcusable neglect, or whether 

he has shown some justifiable reason for 

his failure to raise the claim earlier—is left 

to the sound discretion of the district court. 
Sanders, 3713 U.S. at 18, 83 S.Ct. at 1079; 

Darden v. Dugger, 825 F.2d 287 (11th Cir. 

1987) (successive petition), cert. denied, — 

U.S. —, 108 S.Ct. 1125, 99 L.Ed.2d 285 
(1988); Allen v. Newsome, 795 F.2d 934 

(11th Cir.1986); Humphrey v. United 
States, 766 F.2d 1522 (11th Cir.1985); Potts 

v. Zant, 638 F.2d at 741; Sec. 2254 Cases 

R. 9 advisory committee's note (“The bar 
set up by subdivision (b) is not one of rigid 
application, but rather is within the discre- 

tion of the courts on a case-by-case basis.”). 

See also Stephens v. Kemp, 464 U.S. 1027, 
1029-30, 104 S.Ct. 562, 563, 78 L.Ed.2d 370 
(1983) (Powell, J., dissenting from grant of 

stay of execution) (“consideration of abuse 

normally is left to the ‘discretion of federal 

11. “Excusable neglect,” “justifiable reason,” or 

the more generic “conduct that does not consti- 

tute an abuse of the writ” are simply different 
ways of saying the same thing. Neither phrase 
provides a substantive standard to guide courts; 
instead, that standard is developed through the 

case law under the equitable principles that 
inspire the abuse of the writ doctrine. 

12. Elsewhere, Justice Frankfurter observed: 
Here as elsewhere in matters of judicial ad- 
ministration we must attribute to them the 
good sense and sturdiness appropriate for 
men who wield the power of a federal judge. 

trial judges’); Jones v. Estelle, 722 F.2d 

at 165. It is proper to leave such questions 

to the discretion of the district courts: 

“[TTheirs is the major responsibility for the 

just and sound administration of the feder- 

al collateral remedies, and theirs must be 

the judgment as to whether a second or 

successive application shall be denied with- 
out consideration of the merits.” Sanders, 

373 U.S. at 18, 83 S.Ct. at 1079. 

Yet discretion in such matters is not un- 

fettered. The district court must exercise 

its discretion within certain guidelines, oth- 

erwise we run the risk that courts will 

engage in “the exercise not of law but of 

arbitrariness.” Brown v. Allen, 344 U.S. 

448, 497, 78 S.Ct. 397, 441, 97 L.Ed. 469 

(1953) (opinion of Frankfurter, J.) (quoted 

in Kuhlmann v. Wilson, 106 S.Ct. at 2622 

(plurality opinion)).'? 

B. 

[9] The outer limits of the district 

court’s discretion may be readily ascer- 

tained. If the petitioner knowingly and 

deliberately withheld the claim from a prior 

petition, then he has abused the writ. An- 

tone v. Dugger, 465 U.S. 200, 104 S.Ct. 962, 

79 L.Ed.2d 147 (1984) (per curiam) (denial 

of petition for certiorari and application for 

stay of execution); Wong Doo v. United 

States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 
999 (1924); Sec. 2254 Cases R. 9 advisory 

committee’s note (“Thus, for example, if a 

petitioner deliberately withholds one of two 

grounds for federal collateral relief at the 

time of filing his first application ... he 

may be deemed to have waived a hearing 

on a second application presenting the with- 

held ground.” (quoting Sanders, 373 U.S. 
at: 18 33 S.Ct. at 1078). See: also 

Certainly, we will not get these qualities if we 

fashion rules to the contrary. But it is impor- 
tant, in order to preclude individualized en- 

forcement of the Constitution in different 

parts of the Nation, to lay down as specifically 
as the nature of the problem permits the stan- 
dards or directions that should govern the 
District Judges in the disposition of applica- 
tions for habeas corpus by prisoners under 

sentence of State Courts. 
Daniels v. Allen, 344 U.S. 443, 501-02, 73 S.Ct. 

437, 443, 97 L.Ed. 469 (1953). 

   



   
McLaughlin v. Gabriel, 726 F.2d 7 (1st 

Cir.1984). 

[10] Conversely, a petitioner may 

present a claim in a successive petition 

based upon a new rule of law that is to be 

applied retroactively. Fleming v. Kemp, 

837 F.2d 940 (11th Cir.1988), cert. denied, 

— U.S, — , 109 S.Ct. 1764, 104 L.Ed.2d 

200 (1989); McCorquodale v. Kemp, 829 

F.2d 1035 (11th Cir.), cert. denied, 483 U.S. 

1055, 108 S.Ct. 32, 97 L.Ed.2d 818 (1987). 
A petitioner may also raise in a subsequent 

petition a claim based on facts that were 

not known when he prosecuted his prior 

habeas petition. Ford v. Strickland, 734 

F.2d 538 (11th Cir.1984); Sec. 2254 Cases 
R. 9 advisory committee's note (“There are 

instances in which petitioner's failure to 

assert a ground in a prior petition is excus- 

able. A retroactive change in the law and 

newly discovered evidence are examples.”). 

See also Harris v. Pulley, 852 F.2d 1546 

(9th Cir.1988); Nell v. James, 811 F.2d 100 

(2d Cir.1987). 

[11] Similarly, a petitioner may present 

a claim in a successive petition based on 

facts that were known to him when he filed 

his prior petition, if he was not aware that 

those facts constituted grounds for federal 

habeas relief. Booker v. Wainwright, 764 

F.2d 1371 (11th Cir.1985); Haley v. Estelle, 

632 F.2d 1273 (5th Cir.1980); Mays v. Balk- 

com, 631 F.2d 48 (5th Cir.1980). See also 

Nell v. James, 811 F.2d 100 (2d Cir.1987); 

Passman v. Blackburn, 797 F.2d 1335 (5th 

Cir.1986), cert. denied, 480 U.S. 948, 107 

S.Ct. 1609, 94 L.Ed.2d 794 (1987). This is 

simply another illustration of the equitable 

nature of the abuse of the writ doctrine. A 

13. The relevant portion of the district court's 

order is as follows: 

To find an abuse of the writ for the presenta- 

tion of new claims, the Court must find that 

the petitioner intentionally withheld those 

grounds from the prior petition or that his 

neglect in not presenting them was inexcusa 

ble. Moore v. Zant, 734 F.2d 585, 590 (11th 

Cir.1984). However, “[i]f the petitioner is 

able to present some justifiable reason ex- 

plaining his actions, reasons which make it 
fair and just for the trial court to overlook 

allegedly abusive conduct, the trial court 

should address the successive petition.” Potts 

v. Zant, 638 F.2d 727, 741 (5th Cir. Unit B 

958 881 FEDERAL REPORTER, 2d SERIES 

petitioner who does not know that certain 

facts constitute a ground for federal habe- 

as relief is not seeking to ‘vex, harass, or 

delay” by failing to raise that ground, and 

has done nothing to disentitle himself from 

seeking federal habeas relief. 

In the instant appeal, the district court 

found that Gunn fell into this category of 

excusable neglect. Taking into account 

Gunn’s pro se status at the time he filed his 

first petition and the obscure and technical 

nature of the legal claim involved, the 

court found that Gunn had not abused the 

writ because he had not known that the 

jury instruction constituted a ground for 

federal habeas relief.” We must now de- 

cide whether a district court, in exercising 

its sound discretion, may properly consider 

the status of the petitioner—pro se or coun- 

seled—and the subtlety of the legal ques- 

tion involved, when determining if the peti- 
tioner abused the writ." 

Whether a court may consider the status 

of the petitioner at the time he filed his 

prior habeas petition in turn depends on the 

standard of knowledge by which we judge 

the habeas petitioner. If we were to apply 

the same standard of knowledge to a pro se 

petitioner as we do to a counseled petition- 

er, then the petitioner's status would be 

irrelevant. On the other hand, if we judge 

the petitioner by either a subjective stan- 

dard, focusing our inquiry on the petition- 

er's actual knowledge at the time he filed 

the prior petition, or by an objective, rea- 
sonable person, standard, then a court 

should take into account the petitioner's 

status. Thus, we turn to the question of 

which standard of knowledge—subjective, 
objective, or counseled—we attribute to a 

1981). In light of the petitioner's pro se status 

and in light of the fact that Francis was decid- 

ed after Gunn's first habeas petition, the Court 
finds that the petitioner has not abused the 
writ. 

14. We note that our discussion here is limited to 
the question of whether a petitioner has abused 
the writ. Because we conclude that the district 
court was within its discretion in determining 

that Gunn did not abuse the writ, we do not 

reach the entirely separate question of whether 

the ends of justice would be served by entertain- 

ing the petition had Gunn in fact abused the 
writ.   

  

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GUNN v. NEWSOME 959 
Cite as 881 F.2d 949 (11th Cir. 1989) 

pro se petitioner at the time he prosecuted 

his prior pro se petition. 

G 

We need not dwell long on the use of a 

subjective test of the petitioner's knowl- 
edge at the time he prosecuted his prior 
writ pro se, for our case law makes clear 

that such an inquiry is the first step in any 

abuse of the writ analysis. 

As noted above, a petitioner who deliber- 

ately and knowingly withholds a ground 

for relief has abused the writ. We have 

recognized that for a petitioner to know of 

a ground for relief he must know both the 

facts underlying that ground and the legal 

significance of those facts, i.e. that those 

facts constitute a legal ground for relief. 

This is simply a subjective test: Did the 
petitioner know of the facts and did he 
know that they might provide a legal basis 

for federal habeas relief. If the petitioner 

actually knew both, yet did not assert the 

ground for relief in the prior petition, then 

he must meet a very heavy burden indeed 

before the court may excuse his omission. 

D: 

[12] An inquiry into the subjective 

knowledge of the petitioner is unquestiona- 
bly the first step, but it is not the only step. 

For just as a petitioner's deliberate affirm- 

ative conduct “may disentitle him to the 

relief he seeks,” Sanders, 373 U.S. at 17, 

83 S.Ct. at 1078, so too will his unreason- 
able inaction. A petitioner who reasonably 

should have known of certain facts, or that 

certain facts constitute legal grounds for 

federal habeas relief, stands in the same 

position before the court as one who did 

know but unreasonably did not present the 

claim in a prior petition, or delayed unrea- 

sonably before presenting it.'” See Ste- 

phens v. Kemp, 469 U.S. 1043, 105 S.Ct. 
530, 83 L.Ed.2d 417 (1984) (Brennan, J., 

dissenting from denial of certiorari) (“For 

‘newly discovered evidence’ by definition 

15. Indeed, we are not introducing anything new 

to federal habeas procedure. Under Rule 9(a) 

courts must conduct the very same inquiry into 

whether the petitioner knew or reasonably 

should have known of the availability of a 
881 F.2d—23 

  EE — 

always existed at an earlier time; the in- 

quiry, rather, is whether the petitioner rea- 

sonably either did not know about it or 

could not have presented it”) (emphasis 

added); Moore v. Kemp, 824 F.2d 847, 862 
(11th Cir.1987) (in bane) (Tjoflat, J., concur- 

ring in part and dissenting in part) 

(“Whether a petitioner's failure to assert 
his claim in an earlier habeas proceeding 

will depend, of course, on the reasonable- 

ness of his conduct under the circumstane- 

es.... [The court may deem a pro se 

petitioner to have waived his claim if ... a 

reasonable person standing in his shoes 

could have brought the claim.”), vacated 

and remanded, — U.S. ——, 109 S.Ct. 

1518, 103 L.Ed.2d 922 (1989). 

We have long recognized this implicitly, 

when we have ruled that some claims are 
so basic and obvious that we have effec- 
tively presumed that the petitioner must 

have known them. See Gay v». United 

States, 816 F.2d 614, 615 (11th Cir.) (ap- 

proving district court order that noted, 

“Nor has [petitioner] shown that his peti- 

tion is based on grounds of which he could 

not have had knowledge by the exercise of 

reasonable diligence.”), ceri. denied, 484 

U.S. 861, 108 S.Ct. 176, 98 L.Ed.2d 129 
(1987); Allen v. Newsome, 795 F.2d 934, 

939 (11th Cir.1986) (affirming district court 

conclusion that “[i]t does not require legal 

advice to appreciate the fact that an inten- 

tional distortion of a trial transcript, or the 

deliberate tampering with the evidence, if 

proven, amount to constitutional claims”). 

See also Winfield Associates v. Stomect- 

pher, 429 F.2d 1087 (10th Cir.1970) (“In 

this type of [independent] action, it is fun- 

damental that equity will not grant relief if 

the complaining party ‘has, or by exercis- 

ing proper diligence would have had, an 

adequate remedy ...'") (quoted with ap- 

proval in Booker v. Dugger, 825 F.2d 281, 

284) (11th Cir.1987) (abuse of the writ 

case), cert. denied, — U.S. ——, 108 S.Ct. 

1488, 99 L.Ed.2d 716 (1988)). This is sim- 
ply another way of saying that if the peti- 

ground for relief. Court's will find it no more 

difficult to make this determination under Rule 

9(b) than they do now under Rule 9(a). See 

supra note 4.  



   
tioner did not know of the claim his lack of 

knowledge was unreasonable, and will not 

be an excuse. 

[13] We note that the Fourth and Fifth 

Circuits have come to the opposite conclu- 

sion, and ruled that a court's inquiry under 

Rule 9(b) is limited—in the case of the pro 

se petitioner—to his actual knowledge at 

the time he prosecuted his prior petition. 

Miller v. Bordenkircher, 764 F.2d 245 (4th 

Cir.1985); Passman v. Blackburn, T97 

F.2d 1335 (5th Cir.1986), cert. denied, 480 

U.S. 948, 107 S.Ct. 1609, 94 L.Ed.2d 794 

(1987). Nevertheless, we disagree, and 

conclude that the equitable principles of the 

abuse of the writ doctrine also permit a 

court to inquire into the reasonableness of 

the petitioner's prior lack of knowledge. 

An objective standard has the salutary 

effect of requiring petitioners to be diligent 

and bring their claims in their first petition, 

an important goal for the administration of 

federal habeas corpus. Cf. Galtier: v. 

Wainwright, 582 F.2d 348 (5th Cir.1978). 

Without holding prisoners to a standard of 

reasonable diligence, petitioners would 

have little incentive to research and present 

their possible claims in one petition, thus 

opening the door for ‘needless piecemeal 

litigation.” By applying an objective 

standard of knowledge to a petitioner at 

the time of his prior pro se application for 

federal habeas relief, courts may properly 
minimize abusive conduct without unduly 

foreclosing the consideration of subsequent 

petitions that are not truly abusive. 

The equitable principles of the abuse of 

the writ are both a sword and a shield: the 

abuse of the writ doctrine will not deny the 

petitioner his federal forum unless he has 

done something to disentitle himself, yet it 

requires that the petitioner conduct himself 

with reasonable diligence. The court's fo- 

cus remains on the conduct of the petition- 

er, and whether he has done something to 

disentitle himself from the relief he seeks. 

16. We recognize that for most petitioners the 

incentive of getting out of prison as soon as 

possible will be incentive enough to try to raise 

all possible claims in their first petition. Never- 

theless, to the extent that some petitioners may 

seek to use the federal habeas mechanism to 
“vex, harass, or delay,” the objective standard 

960- 881 FEDERAL REPORTER, 2d SERIES 

In applying the objective standard of 
knowledge to the pro se petitioner, how- 

ever, courts must be careful not to fore- 

close pro se petitioners who have done 

nothing to deserve forfeiture: “Under the 

guise of fashioning a procedural rule, we 

are not justified in wiping out the practical 

efficacy of a jurisdiction conferred by Con- 

gress on the District Courts.” Daniels v. 

Allen, 344 U.S. 443, 498-99, 73 S.Ct. 437, 
442, 97 L.Ed. 469 (1953). 

E. 

The state urges us to hold pro se peti- 

tioners to a still higher standard. The 

state would have us cut abuse of the writ 

loose from its equitable origins, and instead 

adopt a rule that pro se petitioners should 

be held to the same standard of knowledge 

as a lawyer. Mindful that “the importance 

of the writ necessit[ates] that it not lose its 

effectiveness in a procedural morass,” 

Price v. Johnston, 334 U.S. at 269, 68 S.Ct. 

at 1052, and mindful of the fairness implicit 

in equitable doctrines, we reject the state’s 

argument. 

If Gunn had been counseled when he 

filed his prior habeas petition, then we 

would attribute to Gunn the knowledge of 

his counsel at the time the first petition 

was filed. FE.g., Ritter v. Thigpen, 828 

F.2d 662 (11th Cir.1987). That is to say, 

our inquiry as to whether the petitioner 

knew whether certain facts constitute a 

grounds for legal relief would change to 

whether his counsel knew or should have 

known.'” The Supreme Court has ruled 

that Francis v. Franklin, 471 U.S. 307, 105 

S.Ct.1965, 85 L.Ed.2d 344 (1985) was mere- 

ly an application of Sandstrom v. Mon- 

tana, 442 U.S. 510, 99 S.Ct. 2450, 61 

L.Ed.2d 39 (1979), and thus did not repre- 
sent a new rule of law. Yates v. Aiken, 

484 U.S. 211, 108 S.Ct. 534, 98 L.Ed.2d 546 

will provide an added incentive to them to con- 
solidate all claims in one petition. 

17. We observe a certain symmetry in the law 

after our decision here. An objective standard 
will be applied both to pro se petitioners and, as 
we have done in the past, to lawyers.   

  

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GUNN v. NEWSOME 961 
Cite as 881 F.2d 949 (11th Cir. 1989) 

(1988)."" Therefore, we would attribute to 
Gunn's hypothetical lawyer the construec- 

tive knowledge of the Franklin/Sand- 

strom claim. Thus, if Gunn had been coun- 

seled when he prosecuted his prior habeas 

petition, his failure to raise the Frank- 

lin/Sandstrom claim would constitute an 
abuse of the writ, unless he were able to 

present some other “justifiable reason” for 

omitting the claim. E.g., Tucker v. Kemp, 
819 F.2d 978 (11th Cir.), cert. denied, 481 

U.S. 1073, 107 S.Ct. 2472, 96 L.Ed.2d 364 
(1987). 

The rule that a counseled petitioner is 

held to a higher standard than a pro se 

petitioner does not supplant the abuse of 

the writ doctrine. Instead, it places “the 

elemental role of counsel in our adversary 

system” in the context of the equitable 

abuse of the writ doctrine. Jones v. Es- 

telle, 722 F.2d at 167. As the Fifth Circuit 

has observed, it is “inevitable that our in- 

quiry into excuse for omitting a claim from 

an earlier writ will differ depending upon 

whether petitioner was represented by 

counsel in the earlier writ prosecution.” 

Id. 

The salient fact of this appeal, however, 

is that Gunn did not have counsel when he 

filed his first federal habeas petition. 

[14] Pro se habeas petitioners do not 

stand in the same position as counseled 
petitioners. Because habeas petitioners 

“are often unlearned in the law and unfa- 

miliar with the complicated rules of plead- 

ing,” we do not “impose on them the same 

high standards of the legal art which we 
might place on the members of the legal 

profession.” Price v. Johnston, 334 U.S. 

at 292, 68 S.Ct. at 1063. Accordingly, we 

have never wavered from the rule that 
courts should construe a habeas petition 

filed pro se more liberally than one drawn 
up by an attorney. Mays v. Balkcom, 631 
F.2d at 51 (“A pro se applicant will more 
than likely not be aware of all the possible 
sets of facts which could result in a grant- 

18. The question of whether a decision repre- 
sents a new rule of law is very different from 

that of whether a reasonable person would 
know that certain facts present a ground for 
relief. Thus, the fact that Franklin did not con- 

  

ing of relief”); Golden v. Newsome, T55 
F.2d 1478 (11th Cir.1985); Booker v. Wain- 

wright, 764 F.2d 1371 (11th Cir.), cert. de- 

nied, 474 U.S. 975, 106 S.Ct. 339, 88 

L.Ed.2d 324 (1985); Williams r. Griswold, 

743 F.2d 1533 (11th Cir.1984); Roberts v. 

Wainwright, 666 F.2d 517 (11th Cir.), cert. 

denied, 459 U.S. 878, 103 S.Ct. 174, 74 

L.Ed.2d 143 (1982). Nor will we do so now. 

Acknowledging our rule that pro se peti- 

tioners will not be treated the same as 

counseled petitioners, the state argues that 

we should limit that rule to how courts 

construe pleadings. Janus-like, the state 

would have us recognize that pro se peti- 

tioners are not the same as lawyers—and 

thus should not be held to the same stan- 

dards as lawyers when it comes to the 
rules of pleadings-—while at the same time 

denying that very truth with respect to 

knowledge of the substantive law. Such a 

rule would be untenable. 

We do not hold pro se petitioners to the 

same standards as counseled petitioners be- 

cause ‘“[a] pro se applicant will more than 

likely not be aware of all the possible sets 

of facts which could result in a granting of 

relief by habeas corpus.” Mays v. Balk- 

com, 631 F.2d at 51 (emphasis added). 

This is no less true when it comes to wheth- 

er a pro se petitioner should be held to 

know that certain facts constitute a legal 

ground for federal habeas relief. There- 
fore, we construe pro se petitions liberally 

“to make [the writ] effective for unlettered 

prisoners.” Darr v. Burford, 339 U.S. 200, 

203, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950). 

Moreover, the equitable origins of the 
abuse of the writ doctrine necessitate some 

level of individualized inquiry into the 

knowledge and conduct of the petitioner. 
As we have discussed above, we believe it 
is consistent with this that the petitioner be 

held to an objectively reasonable standard. 

It is entirely inconsistent with those same 

equitable principles, however, to suggest 

that courts should impute the knowledge of 
a lawyer to a pro se petitioner. We will 

stitute new law does not have any bearing on 

the question of whether a reasonable lay person 
would know that a Franklin-type jury instruc- 

tion violates the constitution. 

   



   
not so distort the law as to articulate the 

rule that a petitioner knowingly forgoes 

something that he does not know about, 

nor with reasonable diligence could have 

discovered. We take some solace from the 

observation that, until now, no court has 

even considered the state's view a credible 

alternative. 

[15] Therefore, in determining whether 

a pro se petitioner has abused the writ, we 

do not attribute to the pro se petitioner the 

knowledge of a lawyer. 

F. 

With this in mind, we turn to the case at 

hand. The district court recognized that 

Gunn had proceeded pro se when he filed 

his prior petition. Thus, the court did not 

impute the knowledge of a lawyer to Gunn. 

Instead, the court looked at the nature of 

the substantive legal claim involved and 

found that it was so complex that Gunn's 

failure to raise it in his prior petition was 

not an abuse of the writ." Viewed in the 

analytical framework we have outlined 

above, the district court concluded that 

Gunn's neglect in raising the Sand- 

strom/Franklin claim was excusable be- 

cause he did not know, nor should he rea- 

sonably have known, that the jury instrue- 

tion on intent constituted a legal ground 

for relief.? 

[16] We cannot say that the district 

court erred. The district court’s factual 

finding that a reasonable person who read 

the jury instruction in question would not 

realize that it violates the Constitution, and 

19. See supra note 13. 

20. Had the district court judged Gunn solely by 

his subjective knowledge, then the court would 

have stopped after it found as a fact that Gunn 

did not know of the existence of the Frank- 
lin/Sandstrom claim. On the other hand, if the 
court had attributed to Gunn the same standard 

of knowledge as that of a lawyer, then he would 
not have observed that Gunn was pro se, nor 

would he have had cause to consider the com- 

plexity of the Franklin claim. Thus, the court 

applied the objective test: once it found that 

Gunn was pro se when he prosecuted his prior 

petition, the court proceeded to the question of 
whether a reasonable person would have real- 

ized that a Franklin-type jury instruction was 
unconstitutional. 

  i — 

962. 881 FEDERAL REPORTER, 2d SERIES 

thus could be a legal basis for federal 

habeas relief, is not clearly erroneous. 

Eminently reasonable jurists read just such 

a charge and found no constitutional viola- 

tion. See Francis v. Franklin, 471 U.S. at 

333, 105 S.Ct. at 1981 (Rehnquist, J., joined 

by Burger, C.J., and O'Connor, J., dissent- 

ing); Skrine v. State, 244 Ga. 520, 260 

S.E.2d 900 (1979) (Georgia Supreme Court 

unanimously rejects constitutional chal- 

lenge to Franklin charge). It would be 

odd indeed if we were to hold that the court 
had erred in finding that a pro se petitioner 

was not reasonable in reaching the same 

conclusion as that reached by justices of 

the Georgia Supreme Court and of the 

United States Supreme Court.?! 

Having found that Gunn did not know of 

the availability of the Sandstrom claim, 

and that he should not reasonably be held 

to have known of the claim, the district 

court exercised its equitable discretion and 

decided to entertain Gunn's successive peti- 

tion. We cannot say that the court's deci- 

sion was an abuse of its sound discretion. 

Had the district court come to a conclu- 

sion other than the one it did, we cannot 

say that that decision would have been an 

abuse of discretion either. There will al- 

ways be cases such as this one: cases that 

fall within the range of the court's discre- 

tion, and about which reasonable minds 

may differ.’ It remains the primary duty 

of the district courts to determine such 

matters. 

The state posits that because Gunn could 

recognize the legal significance of Frank- 

21. We do not suggest that a petitioner is excused 

from omitting a claim every time he can point 

to one court opinion or one dissent. Each case 

depends on its own unique set of facts, and we 

cannot articulate bright-line rules. Such fact- 

specific determinations are the province of the 
district courts. 

22. Cf Kuhlmann v. Wilson, 106 S.Ct. at 2639 

(Stevens, J., dissenting) (“I believe that the Dis- 

trict Court did not abuse its discretion in enter- 

taining the petition in this case, although I 
would also conclude that this is one of those 

close cases in which the District Court could 

properly have decided [not to entertain the peti- 
tion]").   

     



  
  

GUNN v. NEWSOME 963 
Cite as 881 F.2d 949 (11th Cir. 1989) 

lin, he must also have been able to recog- 

nize the legal significance of Sandstrom, 

which was decided well before he filed his 

first pro se petition, and that Sandstrom 

would apply to his case. This is simply a 

challenge to the district court’s factual 

finding that Gunn did not in fact know of 

the legal significance of the jury charge 

given in his trial. This argument is based 

merely on the state's conjecture, and is not 

persuasive. 

If we were to adopt the state's reasoning 

we would create a Catch-22 for pro se 

petitioners: any petitioner who subsequent- 

ly realizes that he has a legal grounds for 

federal habeas relief will be barred from 
raising that ground, because, if he was 

smart enough to recognize it at all, he 

should have recognized it originally. In 
Alice-in-Wonderland fashion, only those 

prisoners who do not realize that they may 

have a legal basis can present that basis— 

of which they are, alas, unaware—in feder- 

al court. “ ‘The great writ of liberty’ 

ought not to be treated as though we were 

playing a game.” Darr v. Burford, 339 

U.S. at 225, 70 S.Ct. at 601 (Frankfurter, J., 

dissenting). 

[17] In summary, a petitioner abuses 

the writ when he raises in a subsequent 

petition a claim based on facts known when 

he filed his prior petition pro se only if he 

knew or reasonably should have known 

that those facts constituted a legal ground 

for federal habeas relief. In this appeal, 

we hold that the district court did not err in 

finding that a reasonable person would not 

have realized that the jury instruction giv- 

en on the issue of intent violated the Con- 

stitution, nor did the district court abuse its 

sound discretion in determining to enter- 

tain the petition once it found that the 

petitioner’s omission was the result of ex- 

cusable neglect. 

III. SANDSTROM/FRANKLIN ERROR 

A. 

Having found that Gunn did not abuse 

the writ, the district court turned to the 

merits of the petition, as we do now. The 

court concluded that the jury instructions 

  

taken as a whole unconstitutionally shifted 

the state's burden of proof on the issue of 

intent to Gunn. We review this question de 

novo. See Francis v. Franklin, 471 U.S. 

307, 105 S.Ct.1965, 85 L.Ed.2d 344 (1985); 
Sandstrom v. Montana, 442 U.S. 510, 99 

S.Ct. 2450, 61 L.Ed.2d 39 (1979). 

[18] In Sandstrom, the Supreme Court 

unanimously ruled that the jury instruction 

“[t]he law presumes that a person intends 

the ordinary consequences of his voluntary 

acts’ is unconstitutional. Because the 

Constitution “protects the accused against 

conviction except upon proof beyond a rea- 

sonable doubt of every fact necessary to 

constitute the crime with which he is 
charged,” In re Winship, 397 U.S. 358, 

364, 90 S.Ct. 1068, 1073, 25 1..Ed.2d 368 
(1970), the state may not shift to the ac- 

cused the issue of intent, effectively requir- 

ing the accused to prove lack of intent, 

when intent is an element of the crime with 

which he has been charged. Sandstrom, 

442 U.S. at 521, 99 S.Ct. at 2458. 

In Francis v. Franklin, the Court faced 

a constitutional challenge to a jury instruc- 

tion that presumed intent, but explicitly 

informed the jury that the presumption 

“may be rebutted.” At Franklin's trial the 

Georgia Superior Court judge gave the fol- 

lowing instruction: 

The acts of a person of sound mind and 

discretion are presumed to be the prod- 

uct of the person’s will, but the presump- 

tion may be rebutted. A person of sound 

mind and discretion is presumed to in- 

tend the natural and probable conse- 

quences of his acts but the presumption 

may be rebutted. A person will not be 
presumed to act with eriminal intention 

but the trier of facts, that is the Jury, 

may find criminal intention upon consid- 

eration of the words, conduct, demeanor, 

motive and all other circumstances con- 
nected with the act for which the accused 

is prosecuted. 

Franklin, 471 US. at 311, 105 S.Ct. at 

1969-70. A majority of the Court ruled 

that such an instruction, if not cured else- 

where in the jury instructions, violates the 

Constitution because it may appear to a 

juror to shift the burden on the issue of  



   964 881 FEDERAL REPORTER, 2d SERIES 

intent to the accused. The Court conclud- 

ed: 

Because a reasonable juror could have 

understood the challenged portions of 

the jury instruction in this case as creat- 

ing a mandatory presumption that shift- 

ed to the defendant the burden of per- 

suasion on the crucial element of intent, 

and because the charge read as a whole 

does not explain or cure the error, we 

hold that the jury charge does not com- 

port with the requirements of the Due 

Process Clause. 

Id. at 325 105 S.Ct. at 1977. 

B. 

[19] In the instant appeal, another 

Georgia Superior Court gave an instruction 

in part identical to the instruction found 

offensive to the Constitution in Franklin. 

The court instructed the jury in part as 

follows: 

A person of sound mind and discretion 

is presumed to intend the natural and 

probable consequences of his acts, but 

this presumption may be rebutted. A 

person will not be presumed to act with 

criminal intent but you the jury may find 

such intention upon consideration of the 

words, conduct, demeanor, motive and all 

other circumstances connected with the 

act for which the accused is prosecuted. 

Nowhere in the instructions did the court 

explain or cure the burden-shifting error it 

had made. Thus, because intent is an es- 

sential element of malice murder, the jury 

instruction impermissibly shifted the 

state's burden on the issue of intent to 

Gunn in violation of the Due Process 

Clause. 

IV. HARMLESS ERROR 

Although we have found that the jury 

instruction on intent unconstitutionally 

shifted the state’s burden, we must deter- 

mine whether the impermissible jury in- 

struction was harmless error. Rose wv. 

Clark, 418:U.8. 570, 106 S.Ct. 3101, 92 

L.Ed.2d 460 (1986). Under Chapman uv. 

California, 386 U.S. 18, 87 S.Ct. 824, 17 

L.Ed.2d 705 (1967), “before a constitutional 

error can be declared harmless, the court 

must be able to declare a belief that it was 
harmless beyond a reasonable doubt.” Id. 
at 24, 87 S.Ct. at 828. 

We stand in the same position as the 

district court in determining whether, upon 

reviewing the record as a whole, the consti- 

tutionally infirm jury instruction is harm- 

less beyond a reasonable doubt. Thus, our 

review of this question is plenary. See 

Rose v. Clark, supra; Chapman v. Cali- 

fornia, supra. 

[20] A Sandstrom/Franklin error is 

harmless “where the erroneous instruction 

was applied to an element of the crime that 
was not at issue in the trial,” Bowen ov. 

Kemp, 832 F.2d 546, 548 (11th Cir.1987), 

cert. denied, — U.S. , 108 S.Ct. 1247, 

99 L.Ed.2d 445 (1988), or where the evi- 

dence as to the element of the crime sub- 

ject to the burden-shifting instruction is 

overwhelming. Brooks v. Kemp, 762 F.2d 

1383, 1390 (11th Cir.1985) (in banc), vacated 

and remanded, 478 U.S. 1016, 106 S.Ct. 

3325, 92 L.Ed.2d 732 (1986), reinstated, 809 

F.2d 700 (11th Cir.) (in banc), cert. denied, 

483 U.S. 1010, 107 S.Ct. 3240, 97 L.Ed.2d 

744 (1987). 

  

[21] As we noted above, intent was an 

essential element of the crime for which 

Gunn was being prosecuted. A defendant 

may, by claiming self-defense, concede that 

he intended the natural and probable conse- 

quences of his acts, see Holloway v. McEl- 

roy, 632 F.2d 605, 618 (5th Cir.1980), cert. 

denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 

L.Ed.2d 398 (1981), but this is not always 

true. For example, a defendant may con- 

cede that he intended to kill the victim, or 

cause him grievous bodily injury, albeit in 

self-defense. In such a case, the defendant 

will have conceded the ultimate issue that 

is the subject of the impermissible burden- 

shifting jury instruction, and the Sand- 

strom error would be harmless. E.g., Ste- 
phens v. Kemp, 846 F.2d 642, 662-64 (11th 

Cir.) (Tjoflat, J., concurring), cert. denied, 

— U.S. —, 109 S.Ct. 189, 102 L.Ed.2d 

158 (1988). 

Here, Gunn testified that he intended not 

to cause Williams's death, but merely to 

stop Williams long enough so that he   
  

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GUNN v. NEWSOME 965 
Cite as 881 F.2d 949 (11th Cir. 1989) 

(Gunn) could “get gone.” Thus, the issue 

of whether Gunn intended that the death of 
Williams be the natural and probable conse- 

quences of his acts was not conceded by 

way of his defense, and therefore remained 

in the case. See Baker v. Montgomery, 

811 F.2d 557 (11th Cir.1987); Patterson v. 

Austin, 728 F.2d 1389 (11th Cir.1984); Ma- 
son v. Balkcom, 669 F.2d 222, 227 (5th Cir. 

Unit B 1982), cert. denied, 460 U.S. 1016, 

103 S.Ct. 1260, 75 L.Ed.2d 487 (1983).% 

Nor can we say that the evidence as to 

the element of intent was overwhelming. 

Here, while Gunn undoubtedly intended to 
fight Williams and to strike him with the 

cue stick, the evidence was not overwhelm- 

ing that he struck the blow with the intent 
to kill Williams. Because the court in- 

structed the jury on malice murder and on 

the lesser charge of manslaughter, the is- 

sue of intent was central to the jury's 
deliberations, and it is possible that the 
impermissible presumption of intent affect- 

ed the jury's verdict. The jury could rea- 

sonably have concluded that Gunn intended 

to kill Williams, or they could just as rea- 

sonably have concluded that he did not 

intend to kill. Therefore, we cannot say 

that the error was harmless beyond a rea- 

sonable doubt. 

V. CONCLUSION 

We affirm the district court's finding 

that Gunn had not abused the writ in fail- 

ing to raise his constitutional challenge to 

the jury instruction on the issue of intent in 

his first pro se federal habeas petition. 

The district court did not abuse its discre- 

tion in concluding that Gunn did not abuse 
the writ because a reasonable lay person 

would not have recognized that the chal- 

lenged jury instruction constituted a basis 

for federal habeas relief. Turning to the 

merits of Gunn's claim, the jury instruc- 

tions, taken as a whole, impermissibly 
shifted the burden on the issue of intent to 

23. Indeed, Sandstrom involved just this situa- 
tion: 

[W]hether the crime was committed purpose- 
ly or knowingly is a fact necessary to consti- 

tute the crime of deliberate homicide. In- 

deed, it was the lone element of the offense at 

issue in Sandstrom’s trial, as he confessed to 

Gunn, in violation of the Due Process 

Clause. Furthermore, because intent was 

still an issue in the trial, and because the 

evidence that Gunn intended to kill 

Williams was not overwhelming, the consti- 

tutionally impermissible jury instruction 

was not harmless error. Accordingly, the 

district court's order granting the writ of 

habeas corpus unless the state retries 

Gunn within 120 days is AFFIRMED. 

RONEY, Chief Judge, concurring: 

I concur in the result reached by the 

opinion of Judge Kravitch, and much of 

what is said therein. 1 also agree with 

much of what is said in Judge Hill's and 

Judge Edmondson’s dissenting opinions. 

There is no doubt the present federal habe- 
as corpus law presents difficulties in termi- 

nating litigation. Following the logic and 

the rationale of the United States Supreme 

Court decisions at this time, however, I am 

compelled to conclude that as the law now 

stands, Judge Kravitch has decided this 

case the way it must be decided by this 

Jourt. In my judgment, pro se litigants 

should not be accorded the deferential 

treatment now given them by the decided 

cases, but to deny the distinction here 

made between pro se and counselled habe- 

as corpus petitioners would he inconsistent 

with what is already on the hooks. 

HILL, Circuit Judge, dissenting, in 

which FAY, VANCE, COX, Circuit 

Judges, and HENDERSON, Senior 

Circuit Judge, join: 

The court today holds that a new indul- 

gence is to be tendered to the pro se liti- 

gant. We have, heretofore, construed his 

pleadings liberally. Today we hold that the 

consequences of pro se litigation shall not 

fall upon the pro se litigant as they do upon 

the counseled litigant. 

This holding is made in a second round of 

federal habeas corpus litigation in the fed- 

causing the death of the victim, told the jury 

that knowledge and purpose were the only 
questions he was controverting, and intro- 

duced evidence solely on those points. 

Sandstrom, 442 U.S. at 521-22, 99 S.Ct. at 2457- 
58. 

   



   
eral courts. It is not needed. It is not 

wise. I respectfully dissent. 

The judicial systems of the nation and of 

the states have long been frustrated by 

unending litigation preventing finality in 

the administration of criminal justice. A 

state criminal defendant is afforded many 

rights to prevent an unjust conviction. 

Representation by counsel, trial by jury, 

confrontation and cross-examination of wit- 

nesses, compulsory process for the produc- 
tion of testimony and other evidence, pre- 

sumption of innocence and the burden upon 

the prosecutor to prove guilt beyond a rea- 

sonable doubt are among a defendant's 

protections. If convicted, a defendant may 

appeal; should the appeal be unsuccessful, 

a defendant has the right to petition the 

United States Supreme Court for a writ of 

certiorari directed to the highest court of 

the state. Great care is taken to see to it 

that a defendant is protected and that con- 

victions are proper. 

Nevertheless, collateral attack upon such 

convictions follows collateral attack; a 

judgment of guilt in a criminal case may, 

apparently, never be said to be final as 

long as the convicted defendant lives. The 

House Report accompanying the 1966 revi- 

sions of the procedures applicable to review 

by lower federal courts of habeas corpus 

petitions by state prisoners recognized that 

“[w]hile in only a small number of these 

applications have the petitioners been suc- 

cessful, they nevertheless have not only 

imposed an unnecessary burden on the 

work of the Federal courts but have also 

greatly interfered with the procedures and 

processes of the State courts by delaying, 

in many cases, the proper enforcement of 

their judgments.” H.R.Rep. No. 1892, 89th 

Cong., 2d Sess. 5 (1966). Courts, judges, 

and scholars likewise have referred to the 

frustrations inherent in this state of af- 

fairs. See, e.g., Kuhlmann v. Wilson, 4717 

U.S. 436, 450-54, 106 S.Ct. 2616, 2625-27, 
91 L.Ed.2d 364, 378-81 (1986) (plurality 
opinion); Barefoot v. Estelle, 463 U.S. 880, 

887, 103 S.Ct. 3383, 3391-92, 77 L.Ed.2d 
1090, 1100 (1983); Thigpen v. Smith, 792 

F.2d 1507, 1513 (11th Cir.1986); Friendly, 
Is Innocence Irrelevant? Collateral Attack 

on Criminal Judgments, 38 U.Chi.L.Rev. 

  

966 881 FEDERAL REPORTER, 2d SERIES 

142 (1970); see generally, Teague v. Lane, 

— U.S. , 109 S.Ct. 1060, 1075, 103 
L.Ed.2d 334 (1989) (“the principle of finali- 

ty ... is essential to the operation of our 

criminal justice system[;][w]ithout finality, 

the criminal law is deprived of much of its 

deterrent effect.”) Federal judges appear 

to seek laws enacted by the legislative 

branch which may permit us, in appropriate 

cases, to reach finality. However, when 

such laws are given to us, we tend to reject 

them out of hand. Our yearning for finali- 

ty does not often equal our delight in insin- 

uating our own ideas of right and wrong 
into the judgments of state courts. We tip 

our hat to finality, but create most ingen- 

ious contrivances to avoid it. I have taken 

note of this tendency on some past occa- 

sions in which I have felt the need to 

remark that “[i]t may be that what we do 
speaks so loudly that no one will hear what 

we say.” See Rhodes v. Interstate Bat- 

tery System of America, 722 F.2d 1517 

(11th Cir.1984) (Hill J., dissenting); Wilson 
v. First Houston Investment Corp. 566 

F.2d 1235, 1244-45 n. 1 (5th Cir.1978) (Hill 
J., dissenting), vacated, 444 U.S. 959, 100 

S.Ct. 442, 62 L.Ed.2d 371 (1979). 

We have, here, an example. Congress 
recognizes that there can be no strict appli- 

cation of the doctrine of res judicata to 

habeas corpus cases. There must not be 

any absolute rule of law that provides ab- 

solute finality in cases of deprivation of life 

or liberty through the operation of the 

criminal laws. That is simply because, 

should an innocent person be in custody or 

in jeopardy of the execution of a death 

sentence, there must be an opportunity for 

that person to repair to a court of justice 

for relief. Were that not the case, there 

would be no principled reason for not ap- 

plying res judicata to these collateral at- 

tack cases as is done in other litigation. 

  

Therefore, when Congress sought to give 

us an opportunity to reach finality in the 
administration of criminal justice, it did not 

enact the doctrine of res judicata into habe- 
as corpus rules, but it did provide for the 
application of the considerations which in- 
form the doctrine of res judicata in collat- 

eral attack cases insofar as that can be   
  

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GUNN v. NEWSOME 967 
Cite as 881 F.2d 949 (11th Cir. 1989) 

done without risking the loss of the “safety 

valve” for the innocent, described above. 

Rule 9(b) of the Rules Governing Section 

2254 Cases in the United States District 

Courts provides for the dismissal of a sec- 

ond or successive petition if it raises only 

claims that were previously brought and 

decided on the merits, or it raises claims 

for the first time that previously were 

available and the judge finds that the fail- 

ure of the petitioner to assert those 
grounds in a prior petition constitutes an 

abuse of the writ.! Rule 9(b), Successive 

Petitions, Rules Governing Section 2254 

Cases, 28 U.S.C. fol. § 2254 (1982). 

One need not speculate as to why these 

provisions were added. The reasons were 

clearly stated in the legislative history of 

the amendments to sections 2244 and 2254. 

Both the Senate Report and the House 

Report state that the purpose of the new 

text was to provide for “a qualified applica- 

tion of the doctrine of res judicata.” 

S.Rep. No. 1797, 89th Cong., 2d Sess., re- 

printed im 1966 U.S.Code Cong. & Admin. 

News 3663, 3664; H.R.Rep. No. 1892, 89th 
Cong., 2d Sess. 5-6 (1966). The Senate 

Report adds that the bill “seeks to alleviate 

the unnecessary burden [of an increasing 

number of petitions filed in federal court] 

by introducing a greater degree of finality 

of judgments in habeas corpus proceed- 

ings.” S.Rep. No. 1797, 89th Cong., 2d 

Sess. reprinted in 1966 U.S.Code Cong. & 

Admin. News 3663, 3664. Congress heard 

and responded to our expressed alarm at 

endless collateral litigation. 

There is no need to tarry long to demon- 

strate that, but for an exception discovered 

by the court today, Mr. Gunn's second peti- 

tion would be an abuse of the writ. The 

only issue upon which the court orders 

relief is the contention that a jury instruc- 

tion on intent had created a presumption of 

intent to kill and thus violated the rule of 
law laid down by the Supreme Court in 

1. Rule 9(b) restates the provisions of 28 U.S.C. 
§ 2244(b). 

2. In holding petitioner's neglect to be excusable, 
the court states that “[i]t would be odd indeed to 

rule that it was an abuse of the court's discre- 

tion to find that a pro se petitioner was not 
reasonable in reaching the same conclusion as 

Sandstrom v. Montana, 442 U.S. 510, 99 

S.Ct. 2450, 61 L.Ed.2d 39 (1979). Sand- 
strom was decided on June 18, 1979. Two 

days later, petitioner was convicted in the 
state court. In November, 1979, petitioner 

took his direct appeal to the Georgia Su- 

preme Court, but he did not claim that the 

jury instruction on the issue of intent had 

impermissibly shifted part of the govern- 

ment’s burden of proof. More than three 

years after Sandstrom was decided, Mr. 

Gunn brought a petition for habeas corpus 

in the federal district court. He again 

raised the issues that had heen presented 

to the Supreme Court of Georgia in the 

direct appeal but did not challenge the con- 

stitutionality of the jury instructions. The 

district court denied relief on that petition 
in April, 1983. In October, 1985, more than 

six years after Sandstrom had been decid- 

ed, petitioner in his initial state habeas 

corpus petition first challenged the burden 

shifting instruction. On April 1, 1986, peti- 

tioner filed his second federal petition for 

habeas corpus, raising, as his sole ground, 

the Sandstrom issue. The state immedi- 
ately asserted that this constituted an 

abuse of the writ. It is this second federal 

petition, granted by the district court, that 

we consider in his appeal. 

The court readily concludes that the sec- 

ond habeas petition raising the Sandstrom 

issue for the first time would constitute an 

abuse of the writ absent the exception it 

has discovered for petitioner. It states, 

“... if Gunn had been counseled when he 
prosecuted his prior habeas petition, his 

failure to raise the Franklin/Sandstrom 

claim would constitute an abuse of the 

writ, unless he were able to present some 

other “justifiable reason’ for omitting the 
claim. E.g., Tucker v. Kemp, 819 F.2d 978 
(11th Cir.1987), cert. denied, 481 U.S. 1073, 
107 S.Ct. 2472, 96 L.Ed.2d 364 (1987).” 

The court has discovered that a petition- 

er’s pro se or counseled status is crucial.? 

that reached by justices of the Georgia Supreme 

Court and of the United States Supreme Court.” 

This reasoning is flawed for it leads logically to 
a conclusion that lawyers, and thus counseled 
petitioners, who failed to recognize the constitu- 

tional claim at issue in the interim between 

Sandstrom and Franklin also should be excused 

  EAU  



   
In so doing, the court comes to the rather 

astonishing conclusion that a litigant is 

more responsible for what his agent fails to 

do than for what he fails to do himself. If 

a petitioner has a lawyer who acts for him 

in litigation, the petitioner is responsible 

for the negligence of the lawyer in omitting 

a claim in his first petition, thereby render- 

ing his second petition abusive. However, 

if the litigant acts for himself and negli- 

gently omits a claim in the first petition, he 

in many cases would not be held respon- 

sible for that omission and may freely liti- 

gate the matter in a second petition. 

The court's opinion speaks of the equities 

inherent in habeas corpus litigation and, 

facially, states reasons that appear suffi- 

cient for giving special consideration to the 

pro se litigant in this context.® If the first 

habeas petition in this case were ambigu- 

ous as to whether or not it was raising a 

particular issue, we might construe it lib- 

erally, finding that the issue was raised. 

However, what the court does today is hold 

that the consequences of litigation are not 

the same for one who litigates pro se and 

one who litigates through counsel. 

Facially, it may appear “fair” to allow 

pro se litigants in habeas corpus, who are 

presumably ignorant of the law and the 

court procedures, to do what would other- 

wise be an abuse of the writ if represented 

by counsel. However, a brief reflection 

demonstrates that this will not do. The 
court adopts a purportedly ‘‘objective” 

standard through which a district court 

does not look to the actual knowledge of a 

petitioner at the time of his prior petition 

but rather “inquire[s] into the reasonable- 

ness of the petitioner’s prior lack of knowl- 

edge.” In inquiring into the reasonable- 

ness of a petitioner's prior lack of knowl 

unless the court has concluded that lawyers 

should know more than justices of the Supreme 
Court of Georgia and the United States Supreme 
Court. Nevertheless, as depicted above, the 

court states that constructive knowledge of a 

Sandstrom/Franklin claim would be attributed 
to a lawyer, and thus to a represented petition- 

er. | submit that there is no real defensible 

basis for differentiating between counseled and 

pro se petitioners. 

This case, unlike the ones cited below, does 
not involve a court liberally construing a pro se 

= 

968~ 881 FEDERAL REPORTER, 2d SERIES 
| 

edge, would not a court consider, in addi- 

tion to pro se or counseled status, such 

factors as intelligence, litigation experi- 

ence, and the existence and quality of as- 

sistance in determining the culpability vel 

non of a petitioner? Would not a petition- 
er who has become schooled in habeas cor- 

pus law be treated less gently than one 

who has no knowledge at all of collateral 

attack litigation? Similarly, if a pro se 

litigant has been acting with the guidance 

and assistance of a “writ writer” in the 

penal institution, might he not be held ac- 

countable as would one who has been rep- 

resented by counsel? At any rate, would it 

not be necessary for the court to determine 

the skill of the writ writer representing or 

counseling the particular petitioner, com- 

paring the writ writers’ skill in collateral 

attack litigation with the skills of the aver- 

age attorney? If such skill measured up, 

would the petitioner not be held as account- 

able as a petitioner represented by an aver- 

age attorney? 

The permutations will be almost endless 

once we depart from treating a litigant as a 

litigant and begin treating a pro se and a 

represented petitioner differently for the 

purpose of ascertaining the consequences 

of litigation. There are so many facets of 

the posture of the litigant that ought to be 

inspected that the notion of abuse of the 

writ will probably disappear—just when 

the administration of criminal justice in this 

country most desperately needs it.* 

I respect the right of a litigant to repre- 
sent himself or herself. Pro se pleadings 

should be liberally construed to insure that 

the litigant has access. When the litigant 

has availed himself of this right, the conse- 

pleading to help a pro se petitioner have the 

same access to the courts that he would have 

had if he had been represented. Golden v. New- 

some, 755 F.2d 1478, 1480 (11th Cir.1985); Phil- 

lips v. Mashburn, 746 F.2d 782, 784 (11th Cir. 

1984); Williams v. Griswald, 743 F.2d 1533, 

1542-43 (11th Cir.1984); Roberts v. Wainwright, 

666 F.2d 517, 519 (11th Cir.1982), cert. denied, 

459 U.S. 878, 103 S.Ct. 174, 74 L.Ed.2d 143 

(1982). 

4. "We have met the enemy and it is us!” (apolo- 
gies to Pogo).   

  

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GUNN v. NEWSOME 969 
Cite as 881 F.2d 949 (11th Cir. 1989) 

quences should be the same for him and 
for one who is represented. 

I respectfully DISSENT.5 

EDMONDSON, Circuit Judge, 

dissenting: 

Judge Hill's opinion makes good points, 

but I want to add a little. In this case, our 

job is to interpret Rule 9(b) of the Rules 

Governing Section 2254 Cases. As I under- 

stand it, Rule 9(b) is simple and provides 

federal courts with an objective standard to 

apply in dealing with second petitions for 

habeas corpus by state prisoners. 

If a state prisoner files a petition raising 

a claim that was available but not raised in 

his earlier petition, the prisoner has abused 

the writ.! See Kuhlmann v. Wilson, 477 

U.S. 436, 444 n. 6, 106 S.Ct. 2616, 2622 n. 6, 

91 L.Ed.2d 364 (1986) (plurality opinion). A 

claim is available whenever an arguable 

basis in fact and in law exists for it. Cf. 
Smith v. Murray, 477 U.S. 527, 537, 106 

S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986); 

Neitzke v. Williams, — U.S. ——, 109 

S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989); 

Anders v. California, 386 U.S. 738, 744, 87 

S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). 

That some or even all courts might ulti- 

mately resolve the argument against the 

petitioner's contention does not mean that 

the claim is unavailable.? 

When a court faces an abuse of the writ, 

the court’s discretion comes into play; and 

the court may decline to dismiss the peti- 

tion. In general, petitions abusing the writ 

should be dismissed: Rule 9(b) was intend- 

5. I do not overlook that the court's opinion 

suggests that Mr. Gunn may not have been 

guilty of the crime—murder—for which he was 
convicted. This suggestion, though, comes in 
that part of the opinion reaching the conclusion 

that the jury instruction condemned in Sand- 
strom/Franklin was prejudicial in the guilt-inno- 
cence trial. If the court were suggesting that 

this petition presents the “colorable showing of 

factual innocence” referred to in Kuhlmann v. 

Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 

91 L.Ed.2d 364, 381 (1986) (plurality opinion), I 

assume the opinion would have said so. No 
claim that an abusive petition ought to be heard 
because it asserts such innocence was claimed 

in pleadings, briefs, or argument; therefore, 1 
take it that it need not be evaluated. 

  

ed to lead to substantially more finality in 

the disposition of habeas corpus petitions 

by state prisoners in federal courts. Still, 

a colorable showing by a petitioner that he 

was in fact innocent would justify a court’s 

refusal to dismiss in even the worst case of 

abuse of the writ; and—apart from factual 

innocence—a showing that some objective 

factor external to the petitioner and his 

agents blocked his effort to present an 

available claim earlier might justify a 

court’s decision not to dismiss. That the 

first petition was filed pro se is an unsound 

basis for declining to dismiss, however. 

Neither the Constitution nor statutes re- 

quire that habeas petitioners have the as- 

sistance of legal counsel. Because the 

presence of legal expertise has not been 

made essential to participating fully in fed- 

eral habeas proceedings, a petitioner's 

thinking and acting like a lawyer is ines- 

sential to his being bound by earlier habeas 

proceedings. In addition, a claim’s avail- 

ability—that is, whether an arguable legal 

basis exists for it—does not hinge on the 

qualities of the person looking for the 

claim. The claim is available or it is not. 

Whether a legal point is arguable or 

inarguable is a question of law. 

The effect of Sandstrom r. Montana, 

442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 
(1979), on jury instructions about intent in 

criminal cases was a live issue in the law 

when petitioner filed his first petition for 

federal habeas corpus. Petitioner left out 

of his first petition a claim that was then 

available as a matter of law. By omitting 

an available claim and later filing a second 

1. Deliberately withholding a known claim or 
filing a second habeas petition only to vex, ha- 

rass and delay are examples of abuse of the 
writ, but neither the Congress nor the Supreme 
Court has said that these are the exclusive ways 

of abusing the writ. Instead, these acts seem to 
be only the most obvious ways. 

2. Judicial decisions rejecting a claim can show 
that the issue was alive at the time. Engle v. 

Isaac, 456 U.S. 107, 131 n. 41, 102 S.Ct. 1358, 

1574 n. 41, 71 L.Ed.2d 783 (1982). Incidentally, 

Engle also sets out a good discussion of some 
costs of the Great Writ; in my view, recognition 

of these and other costs, especially those related 
to federalism, led to 28 U.S.C. section 2244(b) 

and Rule 9(b). 

   



    

970) 881 FEDERAL REPORTER, 2d SERIES 
™ - 

petition, he abused the writ. He asserted 

no ground that warranted the district 

court's decision to decline to dismiss the 

second petition for habeas relief. In the 

light of Rule 9(b), I would reverse the 

judgment of the district court. 

O ¢ KEY NUMBER SYSTEM 
“
m
E
 

UNITED STATES of America, 

Plaintiff-Appellee, 

v. 

Clifford WISE, Defendant-Appellant. 

No. 88-3752. 

United States Court of Appeals, 

Eleventh Circuit. 

Aug. 7, 1989. 

Defendant was convicted in United 

States District Court for the Middle Dis- 

trict of Florida, No. 88-54-CR-T-17(A), 

Elizabeth A. Kovachevich, J., of various 

violations of narcotics and firearms laws 

and he appealed. The Court of Appeals, 

Tjoflat, Circuit Judge, held that evidence 

sustained finding that defendant possessed 

over 500 grams of cocaine base. 

Affirmed. 

1. Criminal Law &=986.4(1) 

Presentence report and addendum 

serve the same purpose as a pretrial stipu- 

lation in a civil bench trial, with the report 

establishing the factual and legal backdrop 

for the sentencing hearing and the adden- 

dum enumerating the disputed factual and 

legal issues that the court must resolve. 

2. Criminal Law &=986(3), 986.4(1) 

At sentencing hearing, court must re- 

solve all factual and legal disputes raised in 

addendum to presentence report as well as 

* Honorable Virgil Pittman, Senior U.S. District 

Judge for the Southern District of Alabama, 

  

any other objections raised by the parties 

during the course of the hearing; court 

performs the task by making findings of 

fact and conclusions of law. 

3. Criminal Law &=986.4(3) 

It was improper for presentence report 

to recite Government's contention as to the 
amount of cocaine involved in conspiracy 

rather than making a finding of fact. 

4. Criminal Law &=986(3) 

To facilitate judicial review of sentenc- 

ing decisions and avoid unnecessary re- 

mands, sentencing judges should make ex- 

plicit findings of fact and conclusions of 

law. Fed.Rules Civ.Proc.Rule 52(a), 28 

U.S.C.A. 

5. Criminal Law &986.1 

Finding, for sentencing guidelines pur- 

poses, that conspiracy of which defendant 

was convicted involved over 500 grams of 

cocaine base was supported by evidence as 

to the amount which Government had paid 

for each gram of cocaine and the amount of 

money involved. Sentencing Guidelines, 

§ 2D1.1. 

Mark A. Pizzo, Asst. Federal Public De- 

fender, Tampa, Fla., for defendant-appel- 

lant. 

Ward A. Meythaler, U.S. Atty., Walter E. 

Furr, Asst. U.S. Atty, Tampa, Fla., for 
plaintiff-appellee. 

Appeal from the United States District 
Court for the Middle District of Florida. 

Before TJOFLAT and VANCE, 
Circuit Judges, and PITTMAN *, Senior 

District Judge. 

TJOFLAT, Circuit Judge: 

On February 25, 1988, a federal grand 
jury returned a six-count indictment that 

charged appellant Clifford Wise with vari- 

ous violations of the narcotics and firearms 

sitting bv designation.   
  

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U.S. v. WISE 971 
Cite as 881 F.2d 970 (11th Cir. 1989) 

laws of the United States.! After a three- 
day jury trial, appellant was convicted on 

all counts. Because appellant's offenses 

occurred after November 1, 1987, the dis- 

trict court sentenced appellant pursuant to 

the sentencing guidelines promulgated by 

the United States Sentencing Commission. 

See United States v. Burgess, 858 F.2d 

1512, 1514 (11th Cir.1988). Applying the 

guidelines to the facts of appellant's case, 

the district court sentenced appellant to a 

fifty-year term of incarceration, followed 

by a ten-year period of supervised release.? 

Appellant now challenges both his convie- 
tions and his sentences, alleging various 

errors at his trial and sentencing hearing. 

We conclude that only one of appellant's 
claims merits discussion.? 

I. 

In sentencing appellant for his narcotics 
offenses, the district court rightly looked to 
Sentencing Guidelines § 2D1.1 (Oct.1987) 
(“Unlawful Manufacturing, Importing, Ex- 
porting, or Trafficking (Including Posses- 
sion with Intent to Commit These Of- 
fenses”)). Under that guideline, the base 
offense level generally reflects the amount 
of narcotics implicated in the defendant's 
offense conduct. See id. § 2D1.1(a)(3).t 
In applying guideline 2D1.1 to the facts of 
appellant's case, the district court deter- 

I. Count one of the indictment alleged that ap- 
pellant conspired to possess more than 50 grams 
of cocaine with intent to distribute in violation 
of 21 U.S.C. § 846 (1982). Count two alleged 
that appellant possessed more than 50 grams of 
cocaine with intent to distribute in violation of 
21 US.C. § 841(a)(1) (1982). Counts three 
through six alleged that appellant distributed 
various amounts of cocaine at various times in 
violation of 18 U.S.C. § 2 (1982) and 21 U.S.C. 
§ 841(a)(1) (1982). Count seven alleged that 
appellant violated 18 U.S.C. § 924(c) (Supp. IV 
1986) by using a firearm during the commission 
of a drug trafficking felony, and count eight 
charged appellant with possession of a firearm 
in violation of 18 U.S.C. § 922(g) (Supp. IV 
1986). 

Lid
 

Specifically, the district court sentenced appel- 
lant to a forty-five year term of incarceration on 
counts one, two, five, and six; a thirty-year term 
of incarceration on counts three and four; and 
a five-year term of incarceration on counts sev- 
en and eight. These sentences were to run 
concurrently, except for the five-year term of 

  

  

mined that appellant’s offense involved 
over 500 grams of “crack’ cocaine base: 
the court therefore concluded that the base 
offense level for appellant's crime was 36. 
See id. § 2D1.1 drug quantity table. Ap- 
pellant now argues that the district court 
improperly found that over 500 grams of 
cocaine base were involved in his offense. 
We disagree. 

A. 

In order to apply the guidelines, the dis- 
trict court first must establish the facts 
and circumstances of the defendant's of- 
fense conduct. The court performs this 
function by means of an adversarial fact- 
finding process, similar to a civil bench 
trial. The presentence report prepared by 
a United States probation officer initiates 
this process. 

[1] In preparing the presentence report, 
the probation officer's goal is “to provide 
the court with solid, well researched, verifi- 
able information that will aid the court in 
selecting the proper guideline range.” Di- 
vision of Probation, Administrative Office 
of the United States Courts, Presentence 
Investigation Reports Under the Sentenc- 
ing Reform Act of 1984, at 2 (1987) [herein- 
after “Probation Officer's Manual”]. In 
the report, the probation officer begins by 
setting out the details of the defendant's 

incarceration imposed on count seven which 
was to run consecutively, as required by statute. 

See 18 U.S.C. § 924(c)(1) (Supp. IV 1986). 

3. Appellant also argues that the district court 
erred (1) in refusing to give a jury instruction 
proposed by appellant, (2) in denying a motion 
to dismiss count two of the indictment as du- 
plicitous, (3) in denying appellant's motion to 
suppress certain evidence, (4) in concluding that 
appellant was a career offender under 28 U.S. 
C.A. § 994(h) (West Supp.1989), and (5) in cal- 
culating appellant's criminal history category. 
Having examined the record, we conclude that 
these arguments are without merit and unwor- 
thy of discussion. 

4. In some circumstances, the amount and type 
of narcotic drug has less relevance. For exam. 
ple, the guidelines provide a fixed base offense 
level of 38 or 43 for certain narcotics offenses 
that result in death or serious bodily injury. 
See Sentencing Guidelines § 2D1.1(a)(1), (2) 
(Oct.1987). 

TTT Ta 

 



875 FEDERAL REPORTER, 2d SERIES 

Arthur James JULIUS, 

Petitioner-Appellant, 

Vv. 

Charlie JONES, Warden, Holman Unit, 

Respondent-Appellee. 

No. 89-7089. 

United States Court of Appeals, 

Eleventh Circuit. 

May 31, 1989. 

Thomas M. Goggans, Montgomery, Ala., 

Julius L. Chambers, Richard H. Burr, III, 

George H. Kendall, New York City, for 

petitioner-appellant. 

Don Siegelman, Ed Carnes, Attys. Gen, 

Montgomery, Ala., for respondent-appellee. 

Appeal from the United States District 

Court for the Middle District of Alabama, 

Truman Hobbs, Judge. 

Before VANCE, HATCHETT and 

CLARK, Circuit Judges. 

PER CURIAM: 

This is an appeal from the district court's 

denial of petitioner's second petition for 

habeas corpus relief. We have reviewed 

the materials submitted by appellant and 

so much of the record as pertains to the 

points argued. Finding that the district 

court made no error, we AFFIRM the dis- 

trict court's order and amendment, at- 

tached as an Appendix. 

APPENDIX 

In the United States District Court 

for the Middle District of Alabama 

Northern Division 

Arthur James Julius, Petitioner 

VS. 

Charlie Jones, Warden, Holman 

Unit, Respondent. 

Civil Action No. 89-H-84-N. 

MEMORANDUM OPINION 

This Court has issued an order denying 

petitioner's habeas corpus petition, but 

finding probable cause for appellate review 

of this order and granting petitioner a stay 

from the imminent execution of his deat, 

sentence in order that petitioner can effect 

said review. This Court now issues itg 

memorandum opinion stating the reasong 

for its Orders entered January 25, 1989 

PRIOR PROCEEDINGS 

The petitioner was convicted of capital 

murder in September, 1978. He was found 

guilty of murdering his cousin while on a 

pass from prison where he was serving a 

life sentence. His 1978 sentence of death 

was reversed by the Alabama Supreme 

Court due to a decision by the United 

States Supreme Court that the Alabama 

death penalty statute was unconstitutional. 

See Ex parte Julius, 407 So.2d 152 (Ala. 

1981). 

After the Supreme Court of Alabama 

cured the constitutional vice of the Ala- 

bama statute, petitioner was retried. On 

April 20, 1982, petitioner was again convict- 

ed of murder, and on May 24, 1982 was 

again sentenced to death by the Circuit 

Court of Montgomery County, Alabama. 

After his conviction and sentence were . 

affirmed by both the Alabama Court of 

Criminal Appeals and the Supreme Court 

of Alabama, the United States Supreme 

Court denied petitioner's petition for writ 

of certiorari in January, 1985. Petitioner 

then filed a writ of error coram nobis peti- 

tion in the Circuit Court of Montgomery 

County. Following an evidentiary hearing, 

the petition was denied. This action was 

reviewed and affirmed by the Alabama 

Court of Criminal Appeals. Petitioner then 

filed a petition of habeas corpus in this 

Court in August 1985. After said petition 

was denied by this Court, petitioner appeal- 

ed to the Court of Appeals for the Eleventh 

Circuit, which affirmed the denial of the 

writ. 840 F.2d 1533 (1988). On an applica- 

tion for rehearing, the Court of Appeals 

modified its opinion but denied the applica- 

tion for rehearing. 854 F.2d 400 (1988).    



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JULIUS v. JONES 1521 Cite as 875 F.2d 1520 (11th Cir. 19389) 

R, 2d SERIES 

fling probable cause for appellate review 
is order and granting petitioner a stay 
the imminent execution of his death 

ence in order that petitioner can effect 
| review. This Court now issues its 
orandum opinion stating the reasons 
its Orders entered January 25, 1989, 

PRIOR PROCEEDINGS 

he petitioner was convicted of capital 
der in September, 1978. He was found 

of murdering his cousin while on a 
p from prison where he was serving a 
sentence. His 1978 sentence of death 
reversed by the Alabama Supreme 
due to a decision by the United 

es Supreme Court that the Alabama 
penalty statute was unconstitutional, 

Ex parte Julius, 407 So.2d 152 (Ala. 
). 

er the Supreme Court of Alabama 
d the constitutional vice of the Ala- 
p statute, petitioner was retried. On 
| 20, 1982, petitioner was again convict- 
f murder, and on May 24, 1982 was 

sentenced to death by the Circuit 
of Montgomery County, Alabama. 

er his conviction and sentence were 
med by both the Alabama Court of 
inal Appeals and the Supreme Court 
labama, the United States Supreme 
denied petitioner's petition for writ 

rtiorari in January, 1985. Petitioner 
filed a writ of error coram nobis peti- 
in the Circuit Court of Montgomery 
ty. Following an evidentiary hearing, 
petition was denied. This action was 
wed and affirmed by the Alabama 
of Criminal Appeals. Petitioner then 

a petition of habeas corpus in this 
in August 1985. After said petition 

fenied by this Court, petitioner appeal- 
the Court of Appeals for the Eleventh 
it, which affirmed the denial of the 
840 F.2d 1533 (1988). On an applica- 
or rehearing, the Court of Appeals 
ied its opinion but denied the applica- 
or rehearing. 854 F.2d 400 (1988).   

APPENDIX—Continued 

Petitioner again unsuccessfully sought 
review in the Supreme Court of the United 
States.! 

On January 17, 1989, petitioner filed a 
petition for post-conviction relief in the Cir- 
cuit Court of Montgomery County. An 
evidentiary hearing was held on January 
21, 1989 before Judge Gordon and on Janu- 
ary 22, 1989 the Circuit Court issued its 
opinion denying the petition wholly on the 
ground that petitioner was procedurally 
barred from having any of his asserted 
grounds for relief considered because such 
grounds were known or could have been 
known at trial or on previous post-trial 
challenges to petitioner's conviction. Be- 
cause this Court is unable to agree that all 
of petitioner's asserted grounds in his 1989 
petition should be procedurally barred, the 
Court will address why these claims should 
not be procedurally barred, and will state 
why, although not procedurally barred, 
they are insufficient to justify the granting 
of the writ. 

Petitioner presents five separate claims 
which he argues entitle him to a writ of 
habeas corpus. Claim I is based on newly 
discovered evidence of an exculpatory na- 
ture which was suppressed by the prosecu- 
tion. Claim II alleges prosecutorial mis- 
conduct by the knowing use of false or 
misleading testimony. Count III alleges 
error in the prior denial of petitioner’s 
claim that he was denied a fair trial by 
failing to receive a jury instruction on a 
lesser included offense. Claim IV alleges 
error in the prior denial of plaintiff's inef- 
fective assistance of counsel claim. Lastly, 
Claim V alleges error of constitutional 
magnitude in the trial court's jury instruc- 
tions at the sentencing phase of his trial. 
The Court will address each of these claims. 
individually. 

I. CLAIM I: NEWLY DISCOVERED 
EVIDENCE OF AN 

EXCULPATORY NATURE 
Petitioner contends that the State violat- 

ed the rule in Brady v. Maryland, 373 US, 
1. Petitioner filed at least two pro se petitions in this Court which were denied and the denials 

oy 8 “ x A a oT Ss = 

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by 
failing to produce allegedly exculpatory ey- 
idence when requested by defense counsel, 
Defendant was convicted of the murder of 
Susie Sanders who was found dead, nude, 
physically abused and apparently strangled 
in her home by her father shortly after 5:00 
p.m. on the afternoon of January 29, 1978. 

A. Wheeler Allegedly Ezculpatory Ma- 
terial 

The evidence at trial from Ms. Wheeler 
was that around 4:00 p.m. on the afternoon 
of January 29, she called the victim on the 
telephone. After a brief conversation the 
victim Susie Sanders told Ms. Wheeler that 
she was going to talk with her cousin Bobo 
and she would call Ms. Wheeler right back. 
Ms. Wheeler testified that if Ms. Sanders 
had company when she called, Ms. Sanders 
would usually tell you she would talk to 
you later. (Tr. 223) 

Petitioner suggests that because a police 
report used the name Bozo rather than 
Bobo, failure to produce this record was a 
violation of the Brady rule. But the tran- 
scribed notes of the police officer who took 
Ms. Wheeler's statement on January 29 
reported the name as Bobo. It was in the 
typed reproduction that the name “Bozo” 
appeared. Ms. Wheeler testified at the tri- 
al and before the grand jury that the name 
was Bobo. 

Mrs. Sanders, the mother of the victim, 
testified that she had a nephew who called 
himself Bobo, and she had heard her 
daughter call him Bobo. Others also had 
heard the defendant called Bobo. Petition- 
er is entitled to no relief because in one 
typed police report, the word is typed Bozo. 

In his brief, petitioner also suggests that 
if his trial counsel had been aware that Ms. 
Wheeler had given a statement to the po- 
lice that in their afternoon telephone con- 
versation the victim had said she was going 
to talk to her cousin Bobo, this would have 
allowed reasonable jurors to conclude that 
Bobo was not at her house but that she 
were affirmed in the Court of Appeals.  



SE BH RE A El i gs Se PE bh i Sh 
ET ————— a. A — RG cer LR BS ee BGR SIRE 

1522 

APPENDIX—Continued 

was going to meet him elsewhere (Petr’s 

brief R. 25). Petitioner, therefore, argued 

that Brady was violated when this report 
was not furnished. But Ms. Wheeler's trial 

testimony was precisely along the line of 

the alleged newly discovered exculpatory 

evidence. She testified that Ms. Sanders 
said: “Let me go talk to my cousin Bobo 

and I'll call you right back.” (Tr. 223) 

The Court finds nothing in Ms. Wheeler's 

testimony that would be exculpatory or 

that ‘was different than the trial testimony 

by Ms. Wheeler. 

B. Gray Allegedly Exculpatory Mate- 
rial 

A young man, Wiliam Gray, Jr.,, who 

was a high school student at the time of 

the murder, testified that he had seen a car 

which in some particulars answered the 
description of a car driven by petitioner on 

the date of the murder. Gray placed the 
car at the victim's house about 5:10 or 5:15 

p.m. Petitioner had that day borrowed a 
car from his cousin, Willie Clayton, after 

petitioner was released from prison on a 
pass. Petitioner had inquired of Mr. Clay- 
ton about Susie Sanders before Clayton 

lent petitioner his car. Clayton testified 
that petitioner had his car from 3:30 p.m. to 

6:25 p.m. 

Petitioner argues that there was a fail- 

ure to disclose to the defense that Gray, 

when initially questioned by the police, 

gave a false name and address. Gray testi- 

fied at trial that he left home to take his 

sister to work at about 4:50 or 4:55 p.m. on 

the day of the murder. He picked up some 

food at a drive-through restaurant, and on 

returning home saw a car parked in front 

of the victim's house. He identified the car 

from a photograph as the one which was 

the borrowed car driven that day by defen- 

dant. 

The initial interview with Gray took place 

when Gray was stopped for speeding while 
driving his sister's car. Officer Helton 

who stopped Gray made a report of the 
conversation the next day. In the report 
he described Gray’s traffic violation and 
reported that Gray explained his speeding 

Lida Nia 

875 FEDERAL REPORTER, 2d SERIES 

by referring to the fact that his cousin hag 
just been strangled. Gray reportedly apo). 
ogized for the speeding and told the officer 
that he had passed the victim’s house that 
afternoon and had seen a car there that he 
had never seen there before. He reporteq- 
ly said the car was in the driveway but that 

“he did not want anything to come back op 

him because he had told me about this” 
He then gave the officer a false name ang 

address. Gray described the car reportedly 
in the driveway as a Ford LTD about a ’68 

model with a cloth top that had colors of 
green, white and gold in it. 

The following day Officer Helton went to 

the Gray home with Officer Duncan who 

filed a report stating that the officers 

talked to William Gray, Jr. in his father’s 

presence. At this occasion there is no men- 

tion in the report of Gray making any 

reference of seeing the car. He described 

taking his girl friend home the previous 

afternoon and returning directly to his 

house. After the officers left the house, 
Officer Helton told Officer Duncan that he 

was sure Gray was the same person whom 
he had stopped for speeding the previous 

day. 

At a follow-up interview on January 31 

at Carver High School, police officers again 

interviewed Gray, Jr. On this occasion, a 

report in the police files states that Gray, 

Jr. told the officers: 

On this date we went to Carver High 

School and contacted Det. Davis School 

Relations Officer at that location, and in 

the presence of Det. Davis, we did talk 
with William Gray, Jr., b/m, age 16, 3125 

Mobile Dr., 265-1861. After talking to 

him at some length he finally advised us 

that on the day of this incident that he 

had took his sister, Linda to work at 

Hardee's on Fairview and dropped her 
off approx. 10 minutes until 5:00. He 
stated from there he went to McDonald's 

on Fairview and ordered a hamburger to 

go and after getting hamburger he de- 

parted McDonald's and drove the back 
way back to his home. He described this 

back way as taking him past the victim’s 
house in this case. He stated it was 
probably 5:00 or 5:10 PM when he went 

by the victim’s house and that he drove    



ER TR ES RS STs 
RTT TS WS Coe = ® 

hal ci 0 Os ee EE RRS es RR nthe RGR i Lr tan So it pi 

R, 2d SERIES 

pferring to the fact that his cousin been strangled. Gray reportedly 5 d for the speeding and told the off e had passed the victim's house noon and had seen a car there that he ever seen there before. He reporteq. the car was in the driveway but that id not want anything to come back op, ecause he had told me about this.” en gave the officer a false name apg BS. Gray described the car reportedly driveway as a Ford LTD about a gg with a cloth top that had colors of white and gold in it. 
following day Officer Helton went t, ay home with Officer Duncan wh, 

report stating that the officers to William Gray, Jr. in his father’s Pe. At this occasion there is no men- the report of Gray making any 
ce of seeing the car. He describeq his girl friend home the Previous on and returning directly to his After the officers left the house, 
Helton told Officer Duncan that he 
e Gray was the same person whom 
stopped for speeding the previous 

ollow-up interview on January 31 
tr High School, police officers again 
ved Gray, Jr. On this occasion, a 
» the police files states that Gray, 
the officers: 
is date we went to Carver High 
and contacted Det. Davis School 

ns Officer at that location, and in 
sence of Det. Davis, we did talk 
illiam Gray, Jr., b/m, age 16, 3125 
Dr., 265-1861. After talking to 
some length he finally advised us 

| the day of this incident that he 
bk his sister, Linda to work at 
's on Fairview and dropped her 
Tox. 10 minutes until 5:00. He 
rom there he went to McDonald’s 
view and ordered a hamburger to 
after getting hamburger he de- 
cDonald’s and drove the back 

k to his home. He described this 
¥ as taking him past the victim's 

this case. He stated it was 
5:00 or 5:10 PM when he went 

ictim’s house and that he drove 

icer 

  

EN Shas Sl 
2 

JULIUS v. JONES : 1523 Cite as 875 F.2d 1520 (11th Cir. 1989) 
APPENDIX—Continued 

by her house he did see a Ford sedan 
somewhere between 1967-1971 model, 
green in color with plaid top. He stated 
the top of the car looked odd because it 
was kinda light green, yellow and white 
looking color. He stated the car was 
parked on the side of the street that 
Susie’s house was on and that car was 
parked facing the oncoming traffic. Go- 
ing into more detail he stated that on the 
previous Sunday he had observed the car 
drive past his house from direction of 
victim’s house and that a black male had 
been driving the car. He described the 
black male and when given a series of 
black and white photographs in which 
the defendant's picture was included, he 
looked through photographs and picked 
the defendant as being individual who 
had been driving the car on previous 
Sunday. He did report that car he saw 
on the previous Sunday was the same car 
he had seen parked in front of the vie- 
tim’s house on the date of this incident. 
At the time we talked with him he did 
not give us a written statement and later 
on in the day we went to his house on 
Mobile Dr. and his mother and father 
brought him to the Detective Office 
where he did give us a written signed 
statement in the presence of his parents 
concerning the above incident. . .. 

This Court has read Gray's trial testimo- 
ny, and it is substantially as reported in the 
police file in the January 31 interview (R. 
59-66). 

Petitioner argues that the prosecutor 
was required to produce all the reported 
interviews of Mr. Gray because in one of 
the interviews he gave a false name and 
address and falsely reported that it was his 
cousin who was strangled (Gray is no rela- 
tion to the victim) and in another interview 
did not mention seeing the car which was 
later identified as having been driven by 
defendant on that afternoon. Moreover, 
one report stated that Gray had placed the 
car in a driveway rather than on the street. 

The Court is of the opinion that the fur- 
nishing of all the reported interviews with 
Mr. Gray was required under Brady v. 

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 
L.Ed.2d 215 (1963). Brady requires that 
evidence that is both favorable to the de- 
fendant and “material to either guilt or 
punishment” must be produced. 

On analysis of all the reported inter- 
views, the Court is of the opinion that 
defense counsel could have made some use 
of the three or four interview reports. De- 
fense counsel could have argued the unreli- 
ability of the testimony of one who gave a 
false identification and address to the po- 
lice, even though the statement of false 
identity was next to the reported statement 
that Gray did not want to become involved 
in the strangulation death of his cousin. 

Clearly in the opinion of this Judge, the 
better practice for the prosecutor would 
have been to produce the reported inter- 
views, and the Court will treat such produc- 
tion as being required by Brady. How- 
ever, although this Court would have com- 
pelled production of these documents at the 
trial level, their suppression does not neces- 
sarily warrant an automatic grant of the 
writ. A court may order a new trial on the 
ground of suppression of Brady material 
“only if there is a reasonable probability 
that had the evidence been disclosed to the 
defense, the result of the proceeding would 
have been different. A ‘reasonable proba- 
bility’ is a probability sufficient to under- 
mine confidence in the outcome.” United 
States v. Bagley, 473 U.S. 667, 682, 105 
S.Ct. 3375, 3382, 87 L.Ed.2d 481 (1985). 

Evidence that the defendant was at the 
victim's home on the afternoon of her 
death also came from a statement by de- 
fendant, although defendant placed the 
time he was at the house earlier in the 
afternoon than the time Mr. Gray's testi- 
mony placed him there. 

As the Court of Appeals stated in its 
1988 opinion in an earlier habeas petition of 
this petitioner: “Although the evidence 
convicting Julius was all circumstantial, it 
was overwhelming.” Julius v. Johnson, 
840 F.2d 1533, 1541 (11th Cir.1988). This 
Court has read the trial transcript with the 
significance of the withheld testimony in 
mind, and such reading confirms the con- 
tention of the State that there is no reason-   

EE ips LES Se ai a Sop ED Lai” 

 



- = 5 o v |_|" — a, Be P dS CS Si ES a Sn A a RS AR IR 

1524 

APPENDIX—Continued 

able probability that had this evidence been 
disclosed, the result would have been dif- 
ferent. 

C. Other Person Allegedly Exculpato- 
ry Evidence 

On the night of the murder, the police 
sought any information which might give 

them a lead on any individual who might 
have committed the crime. They did have 
reports which showed that the victim had 
received phone calls with heavy breathing 

and harassing phone calls during the period 
of a week or more prior to her death. 

There was in the reports that she had other 

boy friends than her fiancee. There was a 

reported statement that the father of the 

victim’s daughter was unhappy about the 

victim’s proposed marriage. As with the 

Gray reported interviews the Court is of 

the opinion that these reports should have 

been produced under the Brady rule. As 
with the Gray reports, however, the Court 

concludes that there is not a reasonable 
probability that the disclosure of the evi- 

dence would have altered thr -esult. 

D. Broken Eyeglasses and Evidence 
that Mr. Sanders Did Not Know of 

Bobo Nickname Exculpatory Evi- 
dence 

Petitioner also contends that a statement 

in the police files that the victim’s father 
did not know anyone named Bobo and that 
a pair of broken glasses were found at the 

murder scene would have been exculpato- 
ry. The Court fails to see the materiality 
of the glasses. As for the father not know- 

ing the defendant by the name of Bobo, 

there was evidence at the trial from a 

friend of the victim that when she was in 

the presence of the victim and defendant 

on two occasions, she never heard him 

called Bobo (Tr. 263). On the other hand, 

in addition to Ms. Wheeler's statement that 

Susie was going to talk with her cousin 

Bobo, Susie’s mother and Jessie Bullard 

had heard Susie refer to defendant as 
Bobo, although Ms. Bullard was not clear 
as to whether the name was Bobo, Lobo, 
Jabbo, or something similar. Defense 

875 FEDERAL REPORTER, 2d SERIES 

counsel made an issue at the trial ag to 
whether persons knew defendant as Bop, 
Defense counsel knew even before the first 
trial that the victim's father would be 4 
witness. If the defense deemed his testi- 
mony on this point as critical, it certainly 
could have made inquiry. The Court doeg 
not deem his testimony as anything more 
than cumulative of the fact established by 
the defense without dispute that certain 
friends of the victim had never known of 
the nickname Bobo. The Court does not 
deem the failure to produce Mr. Sanders’ 
statement as justifying the issuance of g 
writ. United States v. Bagley, supra. 

E. Inventory List Exculpatory Ewv;- 

dence 

Petitioner told Mr. Clayton on the day 
Mr. Clayton lent petitioner his car that 
petitioner only had eight cents. When Mr. 
Clayton met petitioner about 6:30 p.m. on 
the afternoon of the murder, petitioner had 
money. He had bought gas for the car and 
offered to give some money to Mr. Clayton. 
He told Mr. Clayton that a girl had given 

him the money when they went to a motel 
together. 

The State showed that the victim’s fian- 

cee had given her thirty dollars the morn- 

ing of her death. This created a basis for 

believing that petitioner had taken this sum 

from the victim. Among the documents 

delivered to defense counsel in December, 

1988, was a property inventory reflecting 

that a twenty-dollar and a ten-dollar bill 

were recovered by the police from the vic- 
tim’s residence. 

The Montgomery County Circuit Court 

found that petitioner failed to show that 

the basis of this claim was unknown to him 

or that his counsel could not have ascer- 

tained this information through reasonable 

diligence at least by the time of petitioner's 

second trial, or at the time of the first 

coram nobis proceeding in 1985. The Cir- 
cuit Court pointed out that defense counsel 
never sought the property inventory. The 

knowledgeable Circuit Judge expressed the 
opinion with which this Court has no basis 

for disagreeing that had it been sought it 
would have been produced. Finally, the    



PP RR Rs 
St sa TT ati Sot fe ae gS RR J Spe Tg es 

v . ge et pal Ce EL SR Cs SL pi Re Se RE AANA 
> ; REEL a Te Oc Se i 3 Se Rt Se ch ak 

d SERIES 

ade an issue at the tri 
persons knew Peg > 
counsel knew even before the f; 
the victims father would pe 
If the defense deemed his Ni 
this pom as critical, it certa; 
e made inquiry. The Co 
his testimony as i Sore 

ulative of the fact establisheq W 
se without dispute that certan 

f the victim had never known of 
Ame Bobo. The Court does not 

: failure to produce Mr. Sanderg’ 
as justifying the issuance of a 

pited States v. Bagley, supra. 

rentory List Exculpatory Ev. 
ce 

er told Mr. Clayton on the day 
on lent petitioner his car that 
only had eight cents. When Mr 
et petitioner about 6:30 p.m. 0 

hoon of the murder, petitioner had 
e had bought gas for the car and 
give some money to Mr. Clayton. 

ir. Clayton that a girl had given 
oney when they went to a motel 

te showed that the victim’s fian- 
iven her thirty dollars the morn- 
* death. This created a basis for 

hat petitioner had taken this sum 

victim. Among the documents 
to defense counsel in December, 

a property inventory reflecting 
enty-dollar and a ten-dollar bill 

ered by the police from the vic- 
ence. 

ntgomery County Circuit Court 
t petitioner failed to show that 

pf this claim was unknown to him 

counsel could not have ascer- 

information through reasonable 

t least by the time of petitioner's 

al, or at the time of the first 

his proceeding in 1985. The Cir- 

pointed out that defense counsel 

Eht the property inventory. The 
able Circuit Judge expressed the 

‘which this Court has no basis 
eing that had it been sought it 

e been produced. Finally, the   

JULIUS v. JONES 1525 

Cite as 875 F.2d 1520 (11th Cir. 1989) 

APPENDIX—Continued 

3 Circuit Judge referred to the testimony of 

petitioner's present counsel that if he had 

read the trial transcript from the 1978 and 

1982 trials, and had exercised reasonable 

diligence in tracking the chain of custody 

of the currency, he would have discovered 

the property inventory. Since defense 

counsel must concede that due diligence 

would have enabled him to obtain the infor- 

mation on the property inventory, proce- 

dural default appears to be correct. Mur- 

ray v. Carrier, 411 U.S. 478, 488, 106 S.Ct. 

2639, 2645, 91 L.Ed.2d 397 (1986). 

The presence of the money in the house 

does not rule out the contention of the 

State that the defendant took money from 

the house after strangling the victim. Peti- 

tioner’s relative, Mr. Clayton, testified as to 

defendant’s implausible explanation rela- 

tive to the money. The Court is not of the 

opinion that the property inventory would 

have been of such materiality as to justify 

granting the writ. 

F. Erxculpatory Evidence and Proce 

dural Default 

Judge Gordon, who conducted a lengthy 

evidentiary hearing on the instant petition 

on January 21, 1989, concluded that the 

claims based on allegedly newly discovered 

exculpatory evidence were procedurally 

barred because the petitioner or his counsel 

knew of the material or through the exer- 

cise of reasonable diligence could have se- 

cured the material. In part Judge Gordon 

may have logically based this opinion on 

the fact that as soon as petitioner's counsel 

in December of 1988 asked attorneys at the 

Attorney General's office if there was any 

Brady material in the police reports, the 

attorneys immediately set about to collect 

all the materials in the files of the Mont- 

gomery Police Department and made the 

files_ available to counsel for petitioner. 

This surely could have been done on peti- 

tioner's appeal or on his 1985 habeas peti- 

tion. In both of these proceedings, the 

2. The Court concedes that whether a statement 

is exculpatory and subject to production under 

Brady is not always free of doubt. The safe 

State was also represented by the Office of 

the State Attorney General. 

Petitioner's attorneys assert that they 

did not ask earlier for the police files be- 

cause they had assumed the Montgomery 

district attorney’s office had provided the 

Brady material. They state that they had 

cause to suspect this might not be true 

when the Supreme Court of Alabama in Ex 

Parte Clarance Womack, 541 So.2d 47. 

(Ala.1988), reversed a conviction because of 

failure of the Montgomery district attor- 

ney’s office to provide clearly exculpatory 

materials in violation of Brady. 

This Court is unwilling to hold on the 

facts of this case that, if the prosecutor 

failed to produce evidence which was re- 

quired to be produced under Brady and 

which failure was unknown to defendant's 

counsel, the claim is procedurally barred 

because defense counsel did not ferret out 

the violation. Such a ruling would reward 

the wrongdoer because he was not timely 

found out. This Court feels strongly that 

the repeated delays and appeals which take 

many years of almost endless litigation are 

serious and flagrant flaws in our judicial 

system. The rule that invokes a procedur- 

al bar in most instances is a much needed 

and salutary rule, but not if it is to be 

applied because the defendant’s counsel 

was too trusting and accepted the represen- 

tations of the prosecutor. Defense counsel 

should be able to rely on a belief that 

prosecutors will comply with the Constitu- 

tion and will produce Brady material on 

request. 

Although concluding that a procedural 

bar is not appropriate, this Court neverthe- 

less has denied the writ because it has 

found that, even if such reports should 

have been produced it is not reasonably 

probable that they would have caused a 

different result. Because the state courts 

have not considered this newly produced 

evidence on the merits, viewing such issue 

as procedurally barred, this Judge is the 

only judge who has considered petitioner’s 

claims with respect to this evidence. The 

course for the prosecutor is to produce the state- 

ment for in camera inspection by the court 

_where there is reasonable cause for doubt.    



RR Te EE 

1526 

APPENDIX—Continued 

Court believes that in this capital case an- 
other court should review this Court’s con- - 

clusion as to whether such evidence re- 

quires an issuance of the writ under Bag- 

ley. For this reason, this Court has found 
probable cause for the appeal and has 
stayed petitioner's execution until such re- 

view has been effected. 

II. CLAIM II. KNOWING USE OF 
FALSE OR MISLEADING EVI 
DENCE; THE FORENSIC TESTIMO- 
NY 

Petitioner filed a claim before Judge Gor- 

don in the Circuit Court that the State's 
expert serologist, William Landrum, know- 

ingly created a false impression concerning 

a semen stain on a nightgown found at the 

victim’s house after her murder. After the 

hearing before Judge Gordon on January 
21, petitioner withdrew the charge of know- 

ingly creating a false impression. Land- 

rum had testified that the stain on the 

victim’s nightgown was a pure semen stain; 
that the person leaving the semen stain had 

AB type blood. He further testified that 

both the victim and the defendant had AB 
type blood, and only about four percent of 

the population have AB type blood. 

Petitioner's expert who testified before 
Judge Gordon stated that in attempting to 
determine the blood type of a male donor in 
a semen stain, it is important to know 

whether the stain is a pure semen or 

whether it is a stain mixed with physiologi- 
cal fluids from the female because if the 
female is a secretor, her fluids could mask 

the presence of the male donor’s blood. [It 

is admitted that petitioner is a secretor, and 
it is impossible to determine after her 

death whether the victim was a secretor.] 

Petitioner's expert thought Landrum 

should have done further testing than was 

done to yerify that the semen stain was not 

a mixed stain. He testified that Landrum’s 

testimony could be true that the stain was 

a pure stain but he did not believe that it 

was “absolutely true that the lack of 

epithelial cells indicates the lack of vaginal 

fluid.” (IH Tr. 31) 

i bs PE a deh Lm te Sn hs (SR oS Ga ie 

875 FEDERAL REPORTER, 2d SERIES 

When petitioner's expert was asked 

whether Landrum analyzed the stain in ac- 

cord with the standards of practice in the 

serology profession, he responded: 

I want to make something clear. I think 

Mr. Landrum acted in good faith and on 

his experience as a serologist ... And I 

think he did the best he could. And he 

believed that what he stated was correct. 

My feeling is that he may not have been. 

Petitioner’s expert said of course he was 

not saying that Mr. Landrum made any 
false statements or testified falsely. He 

did not know whether electrophoretic test- 

ing was being performed in Alabama in 

1978, and, if not, then Landrum’s work was 

reasonable. 

Landrum testified that his examination 

of the semen stain caused him to determine 

that it was a pure semen stain, and that is 

still his opinion. Moreover, it is his expert 

opinion that even without electrophoretic 

testing he had a sufficient evidentiary basis 

for arriving at his conclusion. Although 

Landrum was familiar with electrophoretic 

testing, the Alabama Department of Foren- 

sic Sciences did not have such testing 
equipment in 1978. (IH. Tr. 76) 

This claim clearly does not involve the 

failure to produce exculpatory evidence, 
and petitioner now concedes that there is 

no basis for any contention that Landrum’s 

testimony was a knowing use of testimony 

to create a false impression. This Court 

finds no basis for granting the writ based 

on this claim relating to Landrum’s testi- 

mony. 

III. CLAIMS III AND IV: PLAIN 
ERROR IN PREVIOUSLY 

DECIDED ISSUES 

The Court notes that Claims III and IV 

of the present petition for writ of habeas 

have been presented to this Court and to 

the Eleventh Circuit in a prior petition. 

Julius v. Johnson, 840 F.2d 1533, as 

amended, 854 F.2d 400 (11th Cir.1988). 

However, since the doctrine of res judicata 

does not apply to habeas corpus, Sanders 
v. United States, 373 U.S. 1, 8, 83 S.Ct. 

1068, 1073, 10 L.Ed.2d 148 (1963), the Court 
must determine whether the ends of justice    



Ta St LR NS Ee GE NS i Se SG fe GO ol RS i eb 

pd SERIES 

petitioner's expert was asked 
Landrum analyzed the stain in ac. 

the standards of practice in the 

profession, he responded: 

to make something clear. I think 

ndrum acted in good faith and op 

perience as a serologist ... And | 

e did the best he could. And he 

d that what he stated was correct. 

ling is that he may not have been. 

ner’s expert said of course he was 
g that Mr. Landrum made any 
tements or testified falsely. He 

now whether electrophoretic test- 

being performed in Alabama in 

l, if not, then Landrum’s work was 
le. 

im testified that his examination 

en stain caused him to determine 

as a pure semen stain, and that is 

ppinion. Moreover, it is his expert 

at even without electrophoretic 

e had a sufficient evidentiary basis 

ing at his conclusion. Although 

was familiar with electrophoretic 

he Alabama Department of Foren- 

ices did not have such testing 
t in 1978. (IH. Tr. 76) 

aim clearly does not involve the 

0 produce exculpatory evidence, 

ioner now concedes that there is 

or any contention that Landrum’s 

7 was a knowing use of testimony 

a false impression. This Court 

basis for granting the writ based 

laim relating to Landrum’s testi- 

LAIMS III AND IV: PLAIN 
RROR IN PREVIOUSLY 
DECIDED ISSUES 

urt notes that Claims III and IV 

lesent petition for writ of habeas 

In presented to this Court and to 

enth Circuit in a prior petition. 

. Johnson, 840 F.2d 1533, as 

, 854 F.2d 400 (11th Cir.1988). 

since the doctrine of res judicata 

apply to habeas corpus, Sanders 
| States, 373 U.S. 1, 8, 83 S.Ct. 
8, 10 L.Ed.2d 148 (1963), the Court 
frmine whether the ends of justice   

JULIUS v. JONES 1527 
Cite as 875 F.2d 1520 (11th Cir. 1989) 

APPENDIX—Continued 

would be served by redetermining these 

issues in the present proceeding. The bur- 

den lies with the petitioner to demonstrate 

that a reconsideration would serve the ends 

of justice. Bass v. Wainwright, 675 F.2d 

1204, 1206 (11th Cir.1982). Although what 

circumstances would mandate a reconsider- 

ation has never been fully catalogued, see 
Sanders v. United States, 373 U.S. at 17, 

83 S.Ct. at 1078, the Eleventh Circuit has 

held that where a legal conclusion reached 
in a prior habeas proceeding was plainly 

erroneous, then such a claim requires rede- 

termination. See, e.g., Raulerson v. Wain- 

wright, 753 F.2d 869, 874 (11th Cir.1985). 

In the case at bar, petitioner asserts that 

the legal conclusions as to the issues of 

failure to instruct on a lesser included of- 

fense and ineffective assistance of counsel 

were plainly erroneous in that they were 

based on a mistaken analysis of the under- 
lying facts. For the reasons stated below, 
this Court finds that the Eleventh Circuit's 

legal conclusions were not plainly errone- 

ous and therefore that the ends of justice 
would not be served by the redetermination 

of the third and fourth claims of the 
present petition. 

A. Claim III: Failure to Instruct on a 

Lesser Included Offense 

Petitioner argues that he was entitled to 

an instruction on the lesser included of- 

fense of manslaughter because the State’s 

evidence as to malice is capable of more 

than one reasonable inference, one of 

which is that malice did not exist. In decid- 

ing this question the Eleventh Circuit stat- 

ed: “‘Due process requires that a lesser 

included offense instruction be given only 

when the evidence warrants such an in- 

struction.” [Hopper v. Evans, 456 U.S. 

605, 611, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 

367 (1981) (emphasis in original).] Julius 

did not present any evidence suggesting 

that this crime was a manslaughter, nor did 

he suggest such a verdict during closing 

arguments ...” Julius v. Johnson, 840 

F.2d at 1545. Petitioner contends that he 

did suggest a verdict of manslaughter dur- 

ing closing arguments and that, although 

he did not personally present evidence of 

manslaughter, the State’s evidence left 

such a conclusion open to a reasonable 
jury. 

Whether Julius’ counsel argued that 

proof of malice was absent from the State’s 

evidence is immaterial to the decision in 
question since, in the paragraph preceding 

the one containing the alleged “error,” the 

Eleventh Circuit stated: “Beck v. Alabama 

requires the giving of a lesser included 

offense instruction only where ‘there was 

evidence which, if believed, could reason- 

ably have led to a verdict of a lesser of- 
fense.’” Id. at 1545. The legal question 

thus turns on the evidence presented at 
trial, and not the arguments of defense 
counsel. 

The Eleventh Circuit noted that Julius 
did not present any evidence which would 

suggest that the crime was manslaughter. 

Such emphasis on petitioner's failure to 

produce evidence is clarified by the fact 

that the court there was addressing the 

argument that “the circumstances of the 

crime, without any supporting testimony, 

could have warranted a manslaughter con- 

viction.” Id. at 1544. Petitioner again ar- 

gues that he had no obligation to present 

evidence to support such a charge since a 

reasonable jury could infer such a result 

from the evidence presented by the prose- 

cution. Petitioner asserts that, since the 

evidence presented might support the rea- 

sonable inference of consensual sexual ac- 

tivity, “[oJne could reasonably have in- 

ferred that the attack was the result of 

provocation even though the particular 

provocation was unknown.” Petition for 

Writ of Habeas at 49. This Court does not 

address the case law cited by petitioner to 

support his renewed argument, since it ap- 

pears that, as a primary hurdle, there must 

be evidence submitted at trial to support a 

charge of a lesser included offense. Peti- 

tioner seeks to overcome this hurdle by 

arguing that, given that the sexual encoun- 

ter may have been consensual, such evi- 

dence supports an inference of a lesser 

included offense. However, even petition- 

er recognizes that in order to reduce an 

offense from murder to manslaughter, 

there must be evidence of “sufficient prov- 

ocation.” Petition for Writ of Habeas at  



Si) Ent ACL So Le Ee Gu rT ge ad TI. 

1528 875 FEDERAL REPORTER, 2d SERIES 

APPENDIX—Continued 

47, citing Julius v. State, 455 So.2d 975, 

979 (Ala.Ct.Crim.App.1983). Where, as 

here, the entire record is devoid of evidence 

of any provocation, much less “sufficient 

provocation,” the conclusion of the Elev- 

enth Circuit appears to be clearly correct, 

rather than plainly erroneous. Therefore, 

the ends of justice do not mandate that this 

claim be redetermined on the merits. 

B. Claim IV: Ineffective Assistance of 

Counsel 

Petitioner claims that he was denied the 

right to effective assistance of counsel be- 

cause his trial counsel failed to request an 

instruction limiting the jury’s consideration 

of his 1972 murder conviction in the guilt 

phase of his trial. The Eleventh Circuit 

previously held that this failure did consti- 

tute ineffective assistance of counsel, but 

that such failure did not prejudice petition- 

er given the overwhelming, albeit circum- 

stantial, evidence at trial. Julius v. John- 

son, 840 F.2d at 1541. Given this Court's 

analysis of all of petitioner's claims up to 

this point, the conclusion of the Eleventh 

Circuit appears correct. Therefore, the 

ends of justice do not mandate a redetermi- 

nation of this issue. 

IV. CLAIM V: CONSTITUTIONAL 
ERROR IN JURY INSTRUCTIONS 

AT SENTENCING PHASE 

Petitioner bases his fifth claim on what 

he characterizes as a “no sympathy” in- 

struction during the sentencing phase of 

the trial. This claim has not been raised in 

any previous proceeding. Petitioner ar- 

gues that this is a classic “new law” claim, 

in that the claim is based on the law as 

enunciated in California v. Brown, 479 

U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 

(1987) and therefore could not have been 

brought in any prior proceeding. Assum- 

ing, arguendo, that this claim is not proce- 

durally barred, this Court declines to grant 

the writ on this basis. 

Petitioner argues that the trial court's 

instruction at the guilt phase of the trial 

that “no sympathy, bias or prejudice for 

any person or individual should enter in 

your deliberations in rendering a verdict in 

this case ...,” and afterwards the instruc- 

tion at the sentencing phase that “I want 

to again remind you of the charge I gave 

you earlier concerning the basic law, as far 

as reasonable doubt and moral certainty 

are concerned, as well as your functions as 

jurors ...” offended the Eighth Amend- 

ment requirement that a capital sentencer 

be free to consider any evidence or factor 
offered by the defendant as a reason for a 
sentence less than death. Petitioner ar- 
gues that his sentencer was precluded from 

considering his mitigating evidence before 

making its sentencing decision. This Court 

disagrees. ™ : 

In evaluating this alleged constitutional 

error, the Court must determine how a 

reasonable juror could construe the instruc- 

tion. Francis v. Franklin, 471 U.S. 307, 

315-316, 105 S.Ct. 1965, 1971-1972, 85 
L.Ed.2d 344 (1985). The Court first notes 

that the trial court did not repeat its previ- 

ous instructions as to sympathy, but rather 

referenced “the basic law, as far as reason- 

able doubt and moral certainty are con- 

cerned,” which was contained in the charge 

in the guilt phase of the case. The refer- 

ence to sympathy in the guilt phase was 

clearly an instruction which would benefit 

an accused. It is illogical to believe that 

the jurors thought that the reference to 

sympathy in the guilt phase applied to the} 

sentencing phase, especially given the in- 

structions which followed the reference to 

which petitioner now objects. The trial 

court specifically instructed the jury at the 

sentencing phase that 

... You can consider the evidence you 

heard in the guilt phase in considering 

any aggravating or mitigating circum- 

stances at the present stage of the case. 

And that is what this hearing is all 

about, for you to consider and weigh 

aggravating circumstances and mitigat- 

ing circumstances against each other in 

determining what the punishment for the 

Defendant will be in this case. 

You are to consider all relevant evidence, 

not only as to why the death sentence 

should be imposed, but to weigh and 

consider all of the evidence as to why it 

should not be imposed ... 

Record at 803-304. Furthermore, the trial 

court instructed the jury that    



R, 2d SERIES 

at the sentencing phase that “Iw 
again remind you of the charge | gave 
earlier concerning the basic law, ag far 
reasonable doubt and mora] certain 
concerned, as well as your functions as 
prs..." offended the Eighth Ameng. 

t requirement that a capital sentencer 
ree to consider any evidence or factor 
red by the defendant as a reason for a ence less than death. Petitioner ar 
s that his sentencer was precluded from 
pidering his mitigating evidence before 
ing its sentencing decision. This Coypt 
grees. > 

evaluating this alleged constitutiong] 
, the Court must determine how a 

onable juror could construe the instrue- 
Francis v. Franklin, 471 US. 307, 

316, 105 S.Ct. 1965, 197i-1972, gs 
.2d 344 (1985). The Court first notes 
the trial court did not repeat its previ- 
nstructions as to sympathy, but rather 
enced “the basic law, as far as reason- 
doubt and moral certainty are con- 
d,” which was contained in the charge 

e guilt phase of the case. The refer 
to sympathy in the guilt phase was 

ly an instruction which would benefit 
cused. It is illogical to believe that 
urors thought that the reference to 
athy in the guilt phase applied to the 
ncing phase, especially given the in- 
tions which followed the reference to 
| petitioner now objects. The trial 
specifically instructed the jury at the 
cing phase that 
You can consider the evidence you 

rd in the guilt phase in considering 
aggravating or mitigating circum- 

ces at the present stage of the case. 
| that is what this hearing is all ; 
ut, for you to consider and weigh 
avating circumstances and mitigat- 

circumstances against each other in 
rmining what the punishment for the 
ndant will be in this case. 
are to consider all relevant evidence, 
only as to why the death sentence 
Id be imposed, but to weigh and 
ider all of the evidence as to why it 
ld not be imposed ... 
at 303-304. Furthermore, the trial 
structed the jury that 

SHAHAWY v. HARRISON 

I ER EE I a Tm es ST JE Tmo pi i pis fae Fo To re eed . x - 

1529 Cite as 875 F.2d 1529 (11th Cir. 1989) 
APPENDIX—Continued 

4 ’ Now, the fact that I list these mitigating 
= circumstances to you does not mean that 

those are the only mitigating circum- 
stances that you can consider in this 
case. That is not meant to be an all 
inclusive of mitigating circumstances. 
You may find that there are other miti- 
gating circumstances in this case from 
the evidence you heard and from any- 
thing that you may have heard in the 
evidence about Defendant’s character or 
his life ... 

Record at 308. Given these instructions as 
a whole, this Court finds a reasonable juror 
could not have construed that the trial 
court's instruction prohibited the jury at 
the sentence phase from considering miti- 
gating evidence regarding petitioners char- 
acter and background. Therefore, the 
Court declines to grant the writ on this 
basis. 

V. CONCLUSION 

Having found no merit in petitioner's 
claims regarding the suppression of Brady 
material, or the use of Landrum’s forensic 
testimony, or the alleged error in the trial 
court’s instructions to the jury at the sen- 
tencing phase, and further having found 
that petitioner’s other claims do not merit a 
redetermination, the Court finds no basis 
upon which to issue a writ of habeas cor- 
pus. Therefore, the petition has been de- 
nied. 

DONE this 31st day of January, 1989. 

/s/ Truman Hobbs 
UNITED STATES 
DISTRICT JUDGE 

  

In the United States District Court 

for the Middle District of Alabama 

Northern Division 

Arthur James Julius, Petitioner 

VS. 

Charles E. Jones, Warden, 

etc., Respondent 

Civil Action No. 89-H-84-N. 

ORDER 
Pursuant to respondent’s request for 

~ clarification or modification of this Court's 

[3 

Memorandum Opinion entered January 81, 
1989, and for good cause shown, said re- 
quest is GRANTED. This Court hereby 
VACATES Part LE. of its opinion. Peti- 
tioner did not present the issue contained in 
Part LE. to the Court in his petition for 
writ of habeas corpus, and therefore said 
issue was not properly before the Court. 

The Court mistakenly considered this is- 
sue due to the numerous documents previ- 
ously filed with the Court in this cause. 
Said documents erroneously stated that the 
inventory list indicated that the money in 
question came from the victim's house. 
However, in the testimony presented to 
Judge Gordon on January 21, 1989, it was 
shown that the money included on the in- 
ventory list had been taken from petitioner. 
In light of this testimony, it appears that 
petitioner correctly concluded that the 
claim should be dropped. 

DONE and ORDERED this 2nd day of 
February, 1989. 

/s/ Truman Hobbs 

UNITED STATES 
DISTRICT JUDGE 

  

O ¢ KEY NUMBER SYSTEM 

Mahfouz El SHAHAWY, M.D., MS, F.A. 
C.C. Individually and Mahfouz El Sha- 
hawy, M.D., P.A., a Florida Profession- 
al Association, Plaintiffs-Appellants, 

Y. 

William T. HARRISON, Jr., Individually, 
F. Edwards Rushton, M.D., Individual- 
ly, et al, Defendants-Appellees. 

No. 87-3408. 

United States Court of Appeals, 
Eleventh Circuit. 

June 27, 1989. 

Physician and his medical association 
brought action against hospital committee 
members and hospital officials based on 
allegations that committee’s denial of cardi- 
ac catheterization laboratory privileges vio-  



th mitigat- 

Paragraph 

ur? No, I 

id not oc- 

hat is a 

hen Bern- 

ng, which 

ce judicial 

| ask you, 
rection to 

hen Bern- 

is Court? 

ou is, do 

hing said 

dealing 

ibjects of 

ating cir- 

ript, Dr. 

the point 

not you 

ror with 

purpose 
k apart 

at you 
wrong? 

at tran- 

Ee or re- 
stimony 
u were 
dealing 

‘eement 

DARDEN v. DUGGER 287 
Cite as 825 F.2d 287 (11th Cir. 1987) 

APPENDIX A—Continued 
Q If Mr. Bernstein said that there was 

a meeting at your office and that there 

were other such meetings in the hallways 
and/or his office where you discussed miti- 
gating factors, can you swear to the Court, 

sir, today, that that is not a fact? 

A I cannot swear to that. 

Q Did you mean to say that in your 

affidavit? 

A Did I mean to say? 

Q That Mr. Bernstein was lying? 

A No, I didn’t mean to say that. 

© ¢ KEY NUMBER SYSTEM 

Willie Jasper DARDEN, 

Petitioner-Appellant, 

Vv. 

Richard L. DUGGER, Secretary, Florida 

Department of Corrections, 

Respondent-Appellee. 

No. 86-3705. 

United States Court of Appeals, 
Eleventh Circuit. 

Florida prisoner under sentence of 

death filed petition for writ of habeas cor- 

pus. The United States District Court for 

the Middle District of Florida, No. 86-0146- 
Civ-T-10-C, Wm. Terrell Hodges, Chief 

Judge, denied petition without hearing, and 

petitioner appealed. The Court of Appeals, 
Fay, Circuit Judge, held that: (1) dismissal 

of petition based on claim of ineffective 

assistance of counsel without hearing was 

not abuse of discretion, where claim had 

been decided on merits in previous peti- 
tions, and affidavit submitted by petitioner 
were contrary to overwhelming evidence 

submitted at trial; (2) petitioner was not 

entitled to hearing on claim that suggestive 

and unreliable identification procedures 

were used to obtain his conviction, where 

petitioner presented claim in his first peti- 

tion but later withdrew and abandoned it; 

and (3) petitioner was not entitled to hear- 

ing on claim that Florida's death penalty 

statute was unconstitutional, where peti- 

tioner presented claim in first petition and 

it was denied on the merits. 

Affirmed. 

1. Habeas Corpus &7 

Dismissing successive petition for writ 

of habeas corpus without hearing is within 

sound discretion of federal trial judges. 

2. Habeas Corpus &7 

Federal court may dismiss subsequent 

petition for habeas corpus on ground that 

petitioner abused writ when petitioner files 

petition raising grounds that were available 

but not relied upon in prior petition, or 

engages in other conduct that disentitles 

him to relief he seeks. 

3. Habeas Corpus &7 

Dismissal of successive petition for 

writ of habeas corpus based on claim of 

ineffective assistance of counsel without 

hearing was not abuse of discretion, where 

petitioner presented claim in his first peti- 

tion for writ of habeas corpus, petitioner 

directly challenged investigative techniques 

and thoroughness of defense counsel with 

regard to alibi defense, and affidavits sub- 

mitted by petitioner to support his alibi 

were contrary to overwhelming evidence 

presented at trial. Rules Governing § 2254 

Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254. 

4. Habeas Corpus &=7 

Petitioner may be deemed to have 

waived his right to hearing on successive 

application for federal habeas relief when 

he deliberately abandons one of his 

grounds at first hearing. Rules Governing 

§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll. 

§ 2254. 

5. Habeas Corpus &=7 

Habeas petitioner was not entitled to 

hearing on claim that suggestive and unre- 

liable identification procedures were used 

in obtaining his conviction, where petitioner 

raised claim in his first petition for writ of 

fo rl so A SAR er A ME VERE Ss i rR   

 



288 

habeas corpus, but later withdrew and 
abandoned claim as being not well founded, 

and there was overwhelming evidence to 

support finding of guilt. Rules Governing 

§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll. 
§ 2254. 

6. Habeas Corpus &=7 

Federal habeas petitioner was not enti- 

tled to hearing based on claim that Flor- 
ida’s death penalty statute was unconstitu- 

tional, where petitioner raised claim in his 

first petition for writ of habeas corpus and 

it was denied on the merits, and United 

States Supreme Court held that substan- 
tially similar death penalty statute was con- 

stitutional. Rules Governing § 2254 Cases, 

Rule 9(b), 28 U.S.C.A. foll. § 2254; U.S. 
C.A. Const.Amends. 8, 14. 

Larry Helm Spalding, Office of Capital 

Collateral Representative, James Lohman, 

Mark Evan Olive, Robert Augustus Har- 

per, Jr., Tallahassee, Fla., for petitioner-ap- 
pellant. 

Jim Smith, Atty. Gen., Richard W. Pros- 

pect, Asst. Atty. Gen., Daytona Beach, Fla., 

for respondent-appellee. 

Appeal from the United States District 

Court for the Middle District of Florida. 

Before FAY, JOHNSON and 

CLARK, Circuit Judges. 

FAY, Circuit Judge: 

Willie Jasper Darden (“Petitioner”), a 

Florida prisoner under sentence of death, 

appeals the district court's order dismissing 
his third petition for writ of habeas corpus 
without a hearing. Because all issues 
raised are either successive and have been 

Previously heard and determined or have 
been brought up and abandoned, thereby 

constituting an abuse of the writ, we af- 
firm. * 

1. The recitation of the facts is essentially the 
same as set forth by the Supreme Court in 
Darden v. Wainwright, 477 U.S. 187, 106 S.Ct. 
2464, 2467-68, 91 L.Ed.2d 144 (1986). 

825 FEDERAL REPORTER, 2d SERIES 

I. FACTS! 

The thirteen years of judicial proceedings 
in this case manifest substantial care ang 
patience. Although a detailed recitation of 
the facts of this case appear in at least four 
opinions from different courts,® we again 
set forth the evidence presented at petition- 
er’s trial in January, 1974, that led to his 
conviction and death sentence. 

On September 8, 1978, at about 5:30 p.m. 
petitioner entered Carl’s Furniture Store 
near Lakeland, Florida. The only other 
person in the store was the proprietor, Mrs. 
Turman, who lived with her husband in a 

house behind the store. Mr. Turman, who 

worked nights in a juvenile home, had 

awaked at about 5:00 p.m., had a cup of 

coffee at the store with his wife, and re- 

turned home to let their dogs out for a run. 

Mrs. Turman showed the man around the 

store. Petitioner stated that he was inter- 

ested in purchasing about $600 worth of 

furniture for a rental unit, and asked to see 

several items. He left the store briefly, 
stating that his wife would be back to look 
at some of the items. 

Petitioner returned a few minutes later 

asking to see some stoves, and inquiring 

about the price. When Mrs. Turman 

turned toward the adding machine, he 

grabbed her and pressed a gun to her back, 

saying “Do as I say and you won't get 

hurt.” He took her to the rear of the store 

and told her to open the cash register. He 

took the money, then ordered her to an 

area of the store where some boxsprings 

and mattresses were stacked against a 

wall. At that time Mr. Turman appeared 

at the back door, Mrs. Turman screamed 

while the man reached across her right 

shoulder and shot Mr. Turman between the 

eyes. Mr. Turman fell backwards, with 

one foot partially in the building. Ordering 

Mrs. Turman not to move, the man tried to 

pull Mr. Turman into the building and close 

the door, but could not do so because one 

of Mr. Turman’s feet was caught in the 

2. See Darden v. Wainwright, 477 U.S. 187, 106 
S.Ct. 2464, 91 L.Ed.2d 144 (1986); Darden, 699 
F.2d 1031 (11th Cir.1983); Darden, 513 F.Supp. 
947 (M.D.Fla.1981); Darden v. State, 329 So.2d 
287 (Fla.1976).  



1 

icial proceedings 
tantial care ang 
iled recitation of 

r in at least four 

urts,? we again 

pnted at petition- 

that led to his 
nce. 

about 5:30 p.m., 
rniture Store 

he only other 
proprietor, Mrs. 

br husband in a 

r. Turman, who 

ile home, had 

, had a cup of 
s wife, and re- 

s out for a run. 

an around the 

t he was inter- 

$600 worth of 

nd asked to see 

store briefly, 
pe back to look 

minutes later 

and inquiring 

Mrs. Turman 

machine, he 

n to her back, 
you won't get 
ar of the store 

register. He 

ed her to an 

ne boxsprings 
ed against a 
man appeared 

an screamed 

pss her right 
n between the 

kwards, with 

ng. Ordering 
fF man tried to 

ling and close 

) because one 

aught in the 

U.S. 187, 106 
); Darden, 699 
en, 513 F.Supp. 
rate, 329 So.2d 

DARDEN v. DUGGER 289 
Cite as 825 F.2d 287 (11th Cir. 1987) 

door. Petitioner left Mr. Turman face-up 

in the rain, and told Mrs. Turman to get 
down on the floor approximately five feet 

from where her husband lay dying. While 

she begged to go to her husband, petitioner 

told her to remove her false teeth. Peti- 

tioner unzipped his pants, unbuckled his 

belt, and demanded that Mrs. Turman per- 
form oral sex on him. She began to cry, 
“Lord, have mercy.” He told her to get up 
and go towards the front of the store. 

Meanwhile, a neighboring family, the Ar- 

nolds, became aware that something had 

happened to Mr. Turman. The mother sent 
her sixteen year-old son Phillip, a part-time 

employee at the furniture store, to help. 

When Phillip reached the back door he saw 

Mr. Turman lying partially in the building. 

When Phillip opened the door to take Mr. 

Turman’s body inside, Mrs. Turman shout- 

ed “Phillip, no, go back.” Phillip not know- 

ing what she meant, asked petitioner, who 

he could see because the light bulb inside 

the door was on, to help get Mr. Turman 

inside. The man replied, “Sure, buddy, I 

will help you.” As Phillip looked up, the 

man was pointing a gun in his face. He 

pulled the trigger and the gun misfired; he 

pulled the trigger again and shot Phillip in 

the mouth. Phillip started to run away, 

and was shot a second time in the neck. 

While he was still running, he was shot a 

third time in the side. Despite these 

wounds, Phillip managed to stumble to the 

home of a neighbor, Mrs. Edith Hill. Mrs. 

Hill testified that she heard four shots 

fired—a single shot, then three in a row, at 

approximately 6:00 p.m. Mrs. Hill had her 

husband call an ambulance while she tried 

to stop Phillip’s bleeding. While she was 

helping Phillip, she saw a late model green 

Chevrolet leave the store and head towards 
Tampa on State Highway 92. Phillip sur- 
vived the incident; Mr. Turman, who never 

regained consciousness, died later that 

night. 

Minutes after the shooting, petitioner 

was driving towards Tampa on highway 92, 

3. At trial Petitioner admitted that his pants were 
unzipped and his buckle was undone but claims 
that he thought he was hurt and wanted to 
examine himself. 

just a few miles away from the furniture 

store. He was out on furlough from a 

Florida prison, and was driving a car bor- 

rowed from his girlfriend in Tampa. Peti- 
tioner testified that because he was driving 

fast on a wet road he was unable to slow 

down as he came up on a line of cars in his 
lane. He attempted to pass, but was 

forced off the road to avoid a head-on colli- 

sion with an oncoming car. Petitioner 

crashed into a telephone pole. The driver 

of the oncoming car, John Stone, stopped 

his car and went to petitioner to see if he 

could help. Stone testified that as he ap- 

proached the car, petitioner was zipping up 

his pants and buckling his belt.® Police at 

the site of the collision later identified peti- 

tioner’s car as a 1969 Chevrolet Impala of 

greenish golden brown color. Petitioner 

paid a bystander to give him a ride to 

Tampa. Mary Simmons, the driver of the 

car, testified that she picked him up at 

approximately 6:30 p.m. Petitioner later 

returned with a wrecker, only to find that 

the car had been towed away by the police. 

By the time the police arrived at the 

scene of the accident, petitioner had left. 

The fact that the car matched the descrip- 
tion of the car leaving the scene of the 

murder, and that the accident had occurred 

within three and one-half miles of the furni- 

ture store and within minutes of the mur- 

der, led police to suspect that the car was 

driven by the murderer. They searched 

the area. An officer found a revolver 

about forty feet from the crash site. The 

arrangement of shells within the chambers 

exactly matched the pattern that should 

have been found in the murder weapon: 

one shot, one misfire, followed by three 

shots, with a live shell remaining in the 

next chamber to be fired. A specialist for 

the FBI examined the pistol and testified 

that it was a Smith & Wesson .38 special 

revolver. An examination of the bullet 

that killed Mr. Turman revealed that it 

came from a .38 Smith & Wesson Special. 

4. Both Mrs. Turman and Phillip Arnold de- 
scribed the sequence of the shots in this man- 
ner. Mrs. Hill testified that she heard one shot, 
then three shots in a row.   

 



290 

On the day following the murder peti- 
tioner was arrested at his girlfriend's 

house in Tampa. A few days later Mrs. 

Turman identified him at a preliminary 

hearing as her husband’s murderer. Phil- 

lip Arnold selected petitioner’s picture out 

of a spread of six photographs as the man 
who shot him.5 

II. PROCEDURAL HISTORY 

Petitioner was tried and found guilty of 
murder, robbery and assault with intent to 
commit murder in the Circuit Court of Cit- 
rus County, Florida, in January, 1974. 
Pursuant to Florida's capital sentencing 

statute, the same jury that convicted peti- 

tioner heard further testimony and argu- 

ment in order to make a recommendation 

as to whether a death sentence should bef 

imposed. The jury recommended a deaths 

sentence, and the trial judge accepted thd ® 

On direct appeal@ jury’s recommendation. 

the Florida Supreme Court affirmed both 
the conviction and the sentence. Darden 

v. State, 329 So0.2d 287 (Fla.1976).6 The 

United States Supreme Court granted a 

petition for writ of certiorari, Darden v. 

Florida, 429 U.S. 917, 97 S.Ct. 308, 50 

L.Ed.2d 282 (1976), and limited review to 

the sole issue of whether the prosecution’s 

summation to the jury deprived petitioner 

of due process of law. Darden v. Florida, 

429 U.S. 1036, 97 S.Ct. 729, 50 L.Ed.2d 747 

(1977). After that issue was briefed and 

orally argued, the Court dismissed the writ 

of certiorari as improvidently granted. 

5. There are some minor discrepancies in the 
eyewitness identification procedure. However, 
both Mrs. Turman and Phillip Arnold repeatedly 
and unwaveringly identified petitioner as the 
attacker at trial. See Darden, 106 S.Ct. at 2468 
n.-1. 

6. Six issues were raised in the appeal. Of the 
six, two of the same issues raised in the most 
recent! federal habeas petition were raised and 
disposed of on the merits by the Florida Su- 
preme Court. Those issues concerned the con- 
stitutionality of the Florida death penalty stat- 
ute, and the pretrial identification procedures. 

7. While petitioner alleged some twenty-five con- 
stitutional violations, of import in this appeal is 
the disposition in the first federal habeas peti- 
tion of the three claims raised in this petition. 
Petitioner alleged: ineffective assistance of 

825 FEDERAL REPORTER, 2d SERIES 

Darden v. Florida, 430 U.S. 704, 97 S.Ct. 
1671, 51 L.Ed.2d 751 (1977). 

Petitioner next filed a motion for post- 
conviction relief pursuant to Fla.Crim.P. 
3.850 in the state trial court alleging inef- 
fective assistance of counsel based on coun- 
sel’s alleged failure to investigate an alibi 
defense. The state trial court denied relief 
and the Florida Supreme Court affirmed on 
the merits. Darden v. State, 372 So0.2d 437 
(Fla.1979). After the Governor signed a 
warrant for petitioner's execution, petition- 
er filed a petition for writ of habeas corpus 
in federal district court. The district court 

considered all claims on the merits and 

denied the petition. Darden v. Wain- 
wright, 513 F.Supp. 947 (M.D.Fla.1981). 
Petitioner raised three issues in his first 

appeal to this court. He challenged the 
. process by which prospective jurors were 

excused, the propriety of the prosecutor's 

summation and the effectiveness of coun- 

sel. This court affirmed the district court's 

order denying relief. Darden v. Wain- 

wright, 699 F.2d 1031 (11th Cir.1983). This 
court granted rehearing en banc, and af- 

firmed the district court. Darden v. Wain- 

wright, 708 F.2d 646 (11th Cir.1983). Fol- 

lowing a second rehearing en banc? this 

court reversed on the claim of improper 

excusal of a prospective juror. Darden v. 
Wainwright, 725 F.2d 1526 (11th Cir. 
1984). The United States Supreme Court 
granted the State’s petition for certiorari 

on that claim, vacated the Court of Ap- 
peal’s judgment and remanded for recon- 

sideration in light of Wainwright v. Witt, 

counsel for failure to investigate an alibi de- 
fense; the unconstitutionality of Florida's death 
penalty statute; and withdrew and abandoned 
the constitutional attack on the pretrial identifi- 
cation procedures. 

8. While a second death warrant was signed in 
early August, 1983, by the Governor of Florida, 
the court's decision to rehear the case en banc 
effectuated a stay of execution. Darden v. 
Wainwright, 715 F.2d 502 (11th Cir.1983). 

9. The court agreed with the first panel's evalua- 
tion of the claims regarding prosecutorial sum- 
mation and ineffective assistance of counsel and 
reinstated the relevant portions of the panel's 
decision. Darden, 699 F.2d at 1033-37.  



. 704, 97 S.Ct. 

otion for post- 
to Fla.Crim.P. 

alleging inef- 
based on coun- 

tigate an alibi 

denied relief 

rt affirmed on 

372 So.2d 437 

rnor signed a 

ution, petition- 

habeas corpus 
b district court 

e merits and 

en v. Wain- 

.D.Fla.1981).7 

bs in his first 

hallenged the 

e jurors were 

e prosecutor's 

bness of coun- 

district court's 

Hen v. Wain- 

ir.1983). This 

banc, and af- 

rden v. Wain- 

ir.1983). Fol- 

bn banc? this 

p of improper 
r. Darden v. 

b6 (11th Cir. 

preme Court 

for certiorari 

Court of Ap- 
ed for recon- 

right v. Witt, 

hte an alibi de- 

Florida's death 

and abandoned 

pretrial identifi- 

t was signed in 
rnor of Florida, 
e case en banc 

bn. Darden v. 

Cir.1983). 

panel's evalua- 

secutorial sum- 
of counsel and 

of the panel's 
1033-37. 

DARDEN v. DUGGER 291 
Cite as 825 F.2d 287 (11th Cir. 1987) 

469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 
(1985). On remand, the en banc court de- 

nied relief, Darden v. Wainwright, 767 
F.2d 752 (11th Cir.1985). 

Petitioner filed another motion for post 
conviction relief pursuant to Fla.R.Crim.P. 
3.850 in the state trial court. Petitioner 
raised five new constitutional issues !° and 
realleged error relating to the prosecutions 
summation. The state trial court denied 
relief and the Florida Supreme Court af- 
firmed Darden v. State, 475 So.2d 214 (Fla. 

1985). Petitioner then filed his second ha- 

beas petition in district court asserting the 

same challenges rejected by the state 

courts. The State plead abuse of the writ 
in its motion to dismiss and the district 
court dismissed the petition with prejudice 
as an_abuse of the writ pursuant to 28 
U.S.C. § 2244(b) (1982) and Rule 9(b) of the 
Rules Governing Section 2254 cases. Dar- 

den v. Wainwright, No. 85-1420-Civ-T-10 

(M.D.Fla. September 3, 1985). On the 

same day, our court denied petitioner's 

emergency motion for stay of execution 

and denied the motion for certificate of 

probable cause. Darden, 772 F.2d 668 
(11th Cir.1985). Petitioner filed an applica- 
tion for stay of execution in the Supreme 
Court. The Court treated this as a petition 
for certiorari and granted the application, 
thus staying petitioner's execution. Dar- 

den, 473 U.S. 928, 106 S.Ct. 21, 87 L.Ed.2d 
699 (1985). 

The Court in Darden, 477 U.S. 187, 106 

S.Ct. 2464, 91 L.Ed.2d 144 (1986), addressed 

the following three claims concerning, the 

10. The five new constitutional issues included: 
(1) alleged violations of the fifth, sixth, eighth 

and fourteenth amendments due to the trial 
court's use of non-record psychological evalua- 
tion in imposing the sentence of death when the 
evaluation was obtained without the petitioner's 
waiver of his right to be free from self-incrimi- 
nation, or to confront the author of the report; 
(2) alleged eighth and fourteenth amendment 
violations due to lack of consideration by the 
reviewing authority of the extensive nonstat- 
utory mitigating evidence and findings of the 
trial court; (3) alleged eighth amendment viola- 
tion because“the preparation for and conduct of 
the sentencing hearing robbed the jury and 
judge of the ability to conduct individualized 
sentencing; (4) alleged eighth and fourteenth 
amendment violations resulting from comments 
made by the trial judge allegedly resulting in the 

validity of petitioner's criminal conviction 
and death sentence: (1) whether the prose- 

cution’s closing argument during the guilt 
phase of a bifurcated trial rendered the 
trial fundamentally unfair and deprived the 
sentencing determination of the reliability 
required by the eighth amendment; (2) 

whether the exclusion for cause of a mem- 
ber of the venire violated the principles 

announced in Wainwright v. Witt, 469 U.S. 
412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); 
and (3) whether petitioner was denied effec- 

tive assistance of counsel at the sentencing 

phase of his trial. The Court of Appeals 
was affirmed and the case was remanded 
for proceedings consistent with the opin- 

ion.!! Accordingly, the Eleventh Circuit 

sitting en banc pronounced the judgment 

of the Supreme Court as the judgment of 
the en banc court and affirmed the district 

court’s order denying the petition for writ 

of habeas corpus. Darden v. Wainwright, 
803 F.2d 613 (11th Cir.1986). 

On the same day the Eleventh Circuit 

opinion was published, petitioner filed.a 
third motion for post-conviction relief in 

state court pursuant to Fla.R.Crim.P. 

3.850. The motion was based on_ two 

claims. The first claim alleged ineffective- 

ness of counsel for failure to investigate 

the alibi defense. The state court found 

that Tallure to locate witnesses fixing an 
earlier time of the crime was not the result 

of ineffectiveness or lack of diligence.’ 
The second claim alleged the unconstitu- 

tionality of Florida s death penalty statute. 
The second claim was denied on the merits. 

reduction of the jurors’ sense of responsibility 
with regard to its function at sentencing; and 
(5) alleged sixth, eighth and fourteenth amend- 
ment violations resulting from ineffective assist- 
ance of appellate counsel. 

11. Petitioner's motion for rehearing was denied. 
— US. —, 107 S.Ct. 24, 92 L.Ed.2d 774 
(1986). 

12. The state trial court did not reach the ques 
tion of the effect of the new evidence in the 
form of affidavits because it was not a proper 
matter for consideration in a 3.850 motion. It 
can only be presented in an error coram nobis 
petition to the Florida Supreme Court. State v. 
Darden, No. 69,481 (Fla. 10th Cir. October 15, 
1986).  



292 

The Florida Supreme Court affirmed the 

trial court’s order denying relief and denied 

the requested stay of execution.!® Darden 

v. State, 496 So.2d 136 (Fla.1986). The 

Florida Supreme Court denied relief on pe- 

titioner’s ineffective assistance of counsel 

claim because he was procedurally barred 

from raising the issue in a successive peti- 

tion. As to the unconstitutionality of 

Florida's death penalty statute, the Florida 

Supreme Court declared the issue proce- 

durally barred because the claim could 

have been raised in his previous 3.850 mo- 

tions. The Florida Supreme Court stated, 

however, were it to reach the merits, the 

court would reject the contention. See 

Stewart v. State, 495 So.2d 164 (Fla.1986); 

Smith v. State, 457 So0.2d 1380 (Fla.1984); 

State v. Henry, 456 So.2d 466 (Fla.1984). 

On the same day the Florida Supreme 

Court denied petitioner relief, petitioner 

filed his third federal habeas petition in 

district court. Petitioner again attacked 

the validity of his conviction and death 

sentence by alleging three constitutional 

violations. Petitioner-alleges sixth, eighth 
and fourteenth amendment violations due 

to ineffective assistance of counsel for fail- 

ing to investigate an alibi defense;| eighth 

ahd fourteenth amendment violations due 

to grossly suggestive and unreliable identi- 

fication proceduresg—and—eighth—and—feur< 
teenth amendment violations due to the 

unconstitutionality of Florida's death penal- 

ty statute./ The State filed a motion to 
dismiss the petition pleading both abuse of 

the writ and successive petitions. The dis: 
trict court entered an order dismissing the 

petition for writ of habeas corpus gs._an, 

abuse of the writ. The court noted that 
the three claims presented were presented 

in THE OTIgInal petition although the argu- 

13. A fifth death warrant had been signed by this 
time. 

14. Petitioner raised this issue in his first 3.850 

motion, Darden v. State, 372 So.2d 437 (Fla. 

1979). 

15. Petitioner contends that the district court's 
order of dismissal requires reversal because the 
court did not address the claims presented with- 
in the proper analytical framework. We dis- 
agree. District Judge Hodges has handled these 
petitions for habeas corpus relief since May, 

825 FEDERAL REPORTER, 2d SERIES 

ments and contentions in support of these 
claims were somewhat different. Petition- 

er raises the same three issues in his ap- 

peal to this court as he presented in his 
petition to the district court. 

III. DISCUSSION 

[1] Dismissing a successive petition for 

writ of habeas corpus without a hearing is 
within the sound discretion of the federal 

trial judges. Sanders v. United States, 
373 US. 1, 18, 83 S.Ct. 1068, 1078, 10 

L.Ed.2d 148 (1963). “Theirs is the major 

responsibility for the just and sound admin- 
istration of the federal collateral remedies, 
and theirs must be the judgment as to 

whether a second or successive application 

shall be denied without consideration of the 
merits.” Id. We must therefore affirm 

the district court’s order dismissing peti- 

tioner’s third habeas petition unless we 

find that the district court abused its dis- 

cretion.!® 

Petitioner’s third application for federal 
habeas relief contained three claims. Two 

of the three claims have been decided op 
the meritg in previous petitions. It was 
within the district court’s discretion to dis- 

y miss those two claims unless the petitioner 

established that the ends of justice would 

be served by reconsideration of the claims. 

Sanders, 373 U.S. at 15, 83 S.Ct. at 1077; 

Witt v. Wainwright, 755 F.2d 1396, 1397 

(11th Cir.1985); Rule 9(b) of the Rules Gov- 

erning Section 2254 cases. Whether the 
ends of justice require reconsideration is 

determined by objective factors, such as 

“whether there was a full and fair hearing 

on the original petition or whether there 

was an intervening change in the facts of 

the case or the applicable law.” Witt, 755 

F.2d at 1397; see also Kuhlmann v. Wil- 

1979. The dismissal of the third petition is 
proper. While we do not agree with the district 
court's reasoning that the submission of the 
third petition is a fortiori an abuse because the 
filing of the second petition constituted an 
abuse, Darden, No. 86-1456 Civ-T-10(c) p. 2 

(M.D.Fla. October 16, 1986), we do agree that it 

was within the district court’s sound discretion 
to dismiss the third petition without a hearing. 
The record amply supports Judges Hodges’ deci- 
sion.  



    
   

support of these 

fferent. Petition- 
issues in his ap- 
presented in his 

burt. 
   

      

   
    

   

  

   

PSION 

essive petition for 

thout a hearing is 

on of the federal 

h. United States, 

. 1068, 1078, 10 

leirs is the major 

and sound admin- 

pllateral remedies, 

judgment as to 

essive application 

nsideration of the 

therefore affirm 

dismissing peti- 

tition unless we 

rt abused its dis- 

   

   

ation for federal 

ree claims. Two 

been decided on 

betitions. It was 

| discretion to dis- 

less the petitioner 

b of justice would 

ion of the claims. 

83 S.Ct. at 1077; 

p F.2d 1396, 1397 

of the Rules Gov- 

es. Whether the 

econsideration is 

factors, such as 

1 and fair hearing 

or whether there 

ke in the facts of 

law.” Witt, 755 

uhlmann v. Wil- 

   

    

   

   

   

    

   

   

   
   

  

   

   

he third petition is 
gree with the district 
submission of the 

n abuse because the 
tion constituted an 

56 Civ-T-10(c) p. 2 

, we do agree that it 
rt's sound discretion 
without a hearing. 

Judges Hodges’ deci- 

   

   

   

        

DARDEN v. DUGGER 293 
Cite as 825 F.2d 287 (11th Cir. 1987) 

son, 477 U.S. 436, —, 106 S.Ct. 2616, 
2627, 91 L.Ed.2d 364 (1986) (plurality opin- 
ion) (“[T]he ‘ends of justice’ require federal 

courts to entertain [successive] petitions 

only where the prisoner supplements his 

constitutional claim with a colorable show- 

ing of factual innocence.”). 

[2] The remaining claim was presented 
in petitioner’s first petition for federal ha- 
beas corpus relief filed in May, 1979, but 

withdrawn and abandoned. Since the State 
has affirmatively plead abuse of the writ in 
its motion to dismiss the third petition, 

petitioner has the burden to rebut the 
State’s contention. Sanders, 373 U.S. at 

17, 83 S.Ct. at 1078; Witt, 755 F.2d at 1397. 

Petitioner must demonstrate that the fail- 
ure to present the claim in the prior federal 
habeas proceeding was “neither the result 
of an intentional abandonment or withhold- 

ing nor the product of inexcusable..ne- 

glect.” Witt, 755 at 1397. The concept of 
“abuse of the writ” is founded on the egq- 
uitable nature of habeas corpus. Thus, a 

federal court may dismiss a subsequent 
petition on the ground that the petitioner 
abused the writ when a petitioner files a 

petition raising grounds that were available 

but not relied upon in a prior petition, 

Kuhlmann, 106 S.Ct. at 2622 n. 6, or en- 

gages in other conduct that ‘“disentitle[s] 

him to the relief he seeks.” Sanders, 373 

U.S. at 17, 83 S.Ct. at 1078. With these 
principles in mind, we turn to the three 
claims presented. 

A. WHETHER COUNSEL REN- 
DERED INEFFECTIVE ASSIST- 
ANCE FOR FAILURE TO REA- 
SONABLY INVESTIGATE THE 
TIME OF THE OFFENSE WHEN 
ALIBI WAS THE DEFENSE 

This claim has been exhaustively litigat- 
ed and is thereby categorized as successive. 

Petitioner presented this claim in his first 
petition for writ of habeas corpus in May, 

16. Christine Bass is prepared to affirm that peti- 
tioner was outside her house with car trouble 
from 4:00 p.m. to 5:30 p.m. on the day of the 
murder. 

17. We note“that the affidavit was prepared thir- 
teen years after the commission of the crime. 

1979. Petitioner directly challenged the in- 
vestigative techniques and thoroughness of 

defense counsel with regard to the alibi 
defense, and argued that his innocence 

would be apparent if the attorneys had 

represented him effectively. The claim 

was denied on the merits. Darden wv. 

Wainwright, 513 F.Supp. 947 (M.D.Fla. 

1981). The judgment of the district court 

was affirmed by this court, Darden, 699 

F.2d 1031 (11th Cir.1983), and on this issue, 

by every subsequent revisitation by the 
Eleventh Circuit, sitting en banc. See 708 

F.2d 646 (11th Cir.1983); 725 F.2d 1526 
(11th Cir.1984); 767 F.2d 752 (11th Cir. 
1985). 

Petitioner has the burden of showing this 

court that the ends of justice requires re- 

consideration of this claim. Petitioner of- 

fers two affidavits that support his alibi. 

The affidavits support the alibi that peti- 

tioner could not have been in two different 

places at the same time. One of the affi- 

ants stated he was at the crime scene at 

5:55 p.m. and opined that the crime was 

committed between 5:00 p.m. and 5:15 p.m. 

He concluded that petitioner was innocent 

since petitioner was reported to be in front 

of Christine Bass’ house with car trouble 
from 4:00 p.m. to approximately 5:30 p.m.!® 
The second affidavit corroborated the con- 

tention that the crime was committed be- 

tween 5:00 p.m. and 5:15 p.m." 

[3] We must examine the affidavits 

presented in light of the total record to 

determine whether the ends of justice re- 

quire relitigation of this claim. The over- 

whelming evidence of the time of the com- 

mission of the crime is contrary to the 

affidavits submitted by petitioner. Mrs. 

Turman, Mrs. Hill and Phillip Arnold all 

testified that the crime occurred at approxi- 

mately 6:00 p.m. John Stone witnessed 
petitioner's automobile wreck at about 6:00 
p.m. Mary Simmons offered petitioner a 
ride to Tampa after the 6:30 p.m. news. 

The facts are layed out in detail. The affiant 
excused its previous non-existence because he 
personally believed that petitioner was guilty. 
He comes forth now to “save an innocent man's 
life.” 

     

    
    

  

   

    

  

    

   
   
     

     

    

    

   

    

    
    

    
     

        

      

   
          

    
         

  

    

      

       
    

     
        

        

       

      
      

        

  

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294 

The call reporting the homicide was re- 
ceived by the Lakeland Police Department 
at 6:31 p.m. The accident was reported to 
the Hillsborough County Police Depart- 
ment at 6:32 p.m. After reviewing the 
record in its entirety we conclude that peti- 
tioner has failed to meet his burden of 
showing that the ends of Justice require a 
federal court to revisit this claim for a 
sixth time.!”® The district court, within its 
sound discretion, properly dismissed this 
claim without a hearing.!® 

B. WHETHER THE USE OF GROSS- 
LY SUGGESTIVE AND UNRELIA- 
BLE IDENTIFICATION PROCE- 
DURES VIOLATED PETITION- 
ERS EIGHTH AND FOUR 
TEENTH AMENDMENT RIGHTS 

This claim was presented in petitioner's 
first petition for writ of habeas corpus but 
later withdrawn and abandoned as being 
not well founded in the context of a sepa- 
rate 1ssye.®’ In his third petition for feder- 
al habeas relief, eight years later, petition- 
er raises this claim for the second time. In 
its motion to dismiss the third petition filed 
October 16, 1986, the State plead both 
abuse of the writ and successive applica- 
tions as a basis for dismissal. The reason- 
ing advanced by the State, in part rested on 
the record in Case No. 85-1420, heard in 
September, 1985, and on the record in Case 
No. 79-566, heard in May, 1981. Petitioner 
must show this court that he did not abuse 
the writ. 

Petitioner asserts that counsel, not peti- 
tioner, deleted the identification challenge 
from the first petition before adjudication 
in the district court. He further asserts 
that even if abuse is shown, the merits 

18. Since petitioner has failed to meet his burden 
of showing that the ends of justice require revis- 
iting the claim under a sound discretion stan. 
dard, it follows that he failed to meet the heavi- 
er burden of “colorable showing of factual inno- 
cence” which would be determined by reference 
to all probative evidence of guilt or innocence. 
Kuhlmann v. Wilson, 106 S.Ct. at 2627 n. 17. 

19. We recognize that this issue was raised in 
terms of ineffective assistance of counsel. This 
court, Darden, 699 F.2d at 1037 (effective at 
guilt and penalty phase), as well as the Supreme 

825 FEDERAL REPORTER, 2d SERIES 

must be heard because this involves a claim 
of innocence. We disagree. 

[4] The record shows that the issue 
presented in this third petition was specifi. 
cally withdrawn from the district court’s 
consideration as being not well foundeq 
The issue was abandoned. ITtentiona) 
abandonment of a claim is precisely the 
context that application of the concept of 
abuse of the writ is intended to address, 
Witt, 755 F.2d at 1397. Petitioner may be 
deemed to have waived his right to a hear- 
ing on a successive application for federal 
habeas relief when he deliberately aban. 
dons one of his grounds at the first hear- 
ing. Kuhlmann, 106 S.Ct. at 2622 n. 6; 
Sanders, 373 U.S. at 18, 83 S.Ct. at 1078; 
Wong Doo v. United States, 265 U.S. 239, 
241, 44 S.Ct. 524, 525, 68 L.Ed. 999 (1924). 
“The_petitioner had full opportunity to of- 
fer proof ... [on this claim] at the hearing 
on the first petition; and, if he was intend. 
ing to rely on that ground, good faith re 
quired that he produce the proof then.” 
Wong Doo, 265 U.S. at 241, 44 S.Ct. at 525. 
The federal courts will not “tolerate need 
less piecemeal litigation, or ... entertain 
collateral proceedings whose only purpose 
is to vex, harass, or delay.” Sanders, 373 
U.S. at 18, 83 S.Ct. at 1078. 

[5] As to petitioner's contentions of in- 
nocence, we again look at the record in its 
totality and agree, as did the United States 
Supreme Court, Darden, 106 S.Ct. at 2472- 
73, with the Florida Supreme Court that: 
“[TIhere was overwhelming eyewitness and 
circumstantial evidence to support a find- 
ing of guilt on all charges and a recommen- 
dation of a death sentence for first degree 
murder.” 329 So0.2d at 291 (Fla.1976). The 
district court, in its discretion, denied peti- 

Court, Darden, 106 S.Ct. at 2473 (effective at 
penalty phase), has determined that petitioner 
received effective assistance of counsel. The 
allegation of time error in the affidavits present- 
ed does not alter what has been determined 
regarding counsel's performance as a matter of 
law. 

20. The denial of this claim was affirmed on 
direct appeal to the Florida Supreme Court irf 
1976. Darden v. State, 329 So.2d 287 (Fla.1976)! 
See supra n. 6.   

 



        
8 involves a claim 
ee. 

5 that the issue 
tition was specifi- 
e district court's 
ot well founded, 
ed. Intentiona) 
is precisely the 

f the concept of 
nded to address. 
Petitioner may be 
b right to a hear- 
ation for federal 
bliberately aban- 
t the first hear 
t. at 2622 n. 6; 

B3 S.Ct. at 1078; 
2s, 265 U.S. 239, 
Ed. 999 (1924). 

pportunity to of- 
] at the hearing 

f he was intend- 
, good faith re- 
e proof then.” 
44 S.Ct. at 525, 
“tolerate need- 

r ... entertain 
be only purpose 

Sanders, 373 

   

   

   

    

   

   

  

   

  

   

  

ntentions of in- 

e record in its 

e United States 

b S.Ct. at 2472- 

e Court that: 

eyewitness and 

upport a find- 

d a recommen- 

or first degree 
2.1976). The 

n, denied peti- 

173 (effective at 

H that petitioner 
f counsel. The 
idavits present- 

een determined 

€ as a matter of 

affirmed on 

preme Court in 

i 287 (Fla.1976). 

    DARDEN v. DUGGER 295 
Cite as 825 F.2d 287 (11th Cir. 1987) 

tioner a hearing on this claim and we af- 
firm that ruling which was based upon 
abuse of the writ. 

C. WHETHER THE DEATH PENAL- 
TY IN FLORIDA IS IMPOSED IN 
VIOLATION OF THE EIGHTH 
AND FOURTEENTH AMEND- 
MENTS 

Petitioner presented this claim in his first 

petition for writ of habeas corpus and it 
was denied on the merits. Darden, 513 

F.Supp. 947 (M.D.Fla.1981). Petitioner did 
not appeal the ruling conceding defeat on 
the merits based on the law in effect at the 
time the claim was presented. See Spink- 
ellink v. Wainwright, 578 F.2d 582 (5th 

Cir.1978), cert. denied, 440 U.S. 976, 99 

S.Ct. 1548, 59 L.Ed.2d 796 (1979).2! Peti- 
tioner included this claim in his third peti- 
tion for federal habeas relief filed in Octo- 
ber, 1986,22 asserting that there are viable 
studies now available to rely upon and the 

intervening grants of certiorari in McCle- 

sky v. Kemp, — U.S. —, 106 S.Ct. 3331, 

92 L.Ed.2d 737 (1986) and Hitchcock wv. 

Wainwright, — U.S. —, 106 S.Ct. 2888, 

90 L.Ed.2d 976 (1986) warrant merits reso- 

lution of his claim. This claim is successive 

and does not warrant reconsideration be- 

cause the Supreme Court decision in 

McCleskey v. Kemp, — U.S. —, 107 
S.Ct. 1756, 95 L.Ed.2d 262 (1987), resolved 

21. The Eleventh Circuit, in Bonner v. City of 
Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) 

(en banc), adopted as precedent decisions of the 
former Fifth Circuit rendered prior to October 
1, 1981. 

22. Petitioner also filed a motion for post-convic- 
tion relief pursuant to Fla.R.Crim.P. 3.850 on 
this claim in the state trial court. The trial 
court denied relief and the Florida Supreme 
Court affirmed. Darden, 496 So.2d 136 (Fla. 
1986). The Florida Supreme Court declared 
petitioner procedurally barred from raising this 
claim but alternatively rejected it on the merits. 

23. Petitioner rests his claim on the same proof 
as Hitchcock presented in his case before the 
Supreme Court. In Hitchcock's Petition for 
Writ of Certiorari he states that the 

magnitude of the race-based disparity in capi- 
tal sentencing in Florida is virtually identical 
to the magnitude of the disparity in Georgia. 
After multiple regression analysis of the Flor- 

a substantially similar challenge to the im- 
position of the Georgia death-penalty stat- 
ute based on the Baldus Study which yield- 
ed almost identical results to the study 

done by Gross and Mauro that petitioner 
submits on his behalf.? 

[6] In McCleskey, the Court declined to 
hold that the study presented supported an 
attack of Georgia's imposition of the death 

penalty as violative of the eighth or four- 

teenth amendments. In Hitchcock v. Dug- 
ger, — US. —, 107 S.Ct. 1821, 95 

L.Ed.2d 347 (1987), the Court declined to 
reach the claim that the Florida death-pen- 
alty statute discriminates against capital 

defendants who murder whites and against 

black capital defendants in violation of the 

eighth and fourteenth amendments, but re- 

fers the reader to “a similar challenge to 

the Georgia death-penalty statute. See 

McCleskey v. Kemp, — U.S. —, 107 

S.Ct. 1756, 95 L.Ed.2d 262 (1987).” Hitch- 
cock v. Dugger, 107 S.Ct. at 1822 n. 1. 
Since we are bound to follow the Supreme 

Court’s disposition of the constitutional 

challenge to a substantially similar death- 

penalty statute on identical grounds, peti- 

tioner’s request for a hearing on this claim 
must be denied. 

IV. CONCLUSION 

For the foregoing reasons we AFFIRM 

the district court’s order dismissing peti- 

ida data, Gross and Mauro found that the 
likelihood of receiving a death sentence in 
Florida for killing a white victim was 4.8 
times greater than for killing a black victim. 
Using the same methodology, Baldus found a 
4.3 times greater likelihood of death for kill- 
ing a white victim in Georgia. McCleskey v. 
Kemp, 753 F.2d at 897 (footnote omitted). 

Brief for Petitioner, Petition for Writ of Cer- 
tiorari at 48, Hitchcock v. Wainwright, — 
US. —, 106 S.Ct. 2888, 90 L.Ed.2d 976 
(1986). 

24. We note that the outcome of the Supreme 
Court case is consistent with the Florida state 
court disposition finding the constitutional at- 
tack on the Florida death-penalty statute with- 
out merit. Smith v. State, 457 So.2d 1380 (Fla. 
1984); State v. Henry, 456 So.2d 466 (Fla.1984); 

Darden v. State, 329 So.2d 287 (Fla.1976). 
Some of the lower federal courts addressing 
that issue concur. See e.g., Spinkellink v. Wain- 
wright, 578 F.2d 582 (5th Cir.1978); Darden v. 
Wainwright, 513 F.Supp. 947 (M.D.Fla.1981). 

S
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296 

tioner’s writ of habeas corpus without a 
hearing on abuse of the writ as well as 
successive application grounds. 

Ww 
() £ rey NUMBER SYSTEM 

T 

In re NATURAL LAND 

CORPORATION, 

Debtor. 

NATURAL LAND CORPORATION, 
Plaintiff-Appellant, 

Vv. 

BAKER FARMS, INC, 

Defendant-Appellee. 

No. 85-3443. 

United States Court of Appeals, 
Eleventh Circuit. 

Aug. 21, 1987. 

Mortgagee petitioned bankruptcy court 
to dismiss debtor’s petition for reorganiza- 
tion and to lift automatic stay due to debt- 
or’s failure to file petition in good faith. 
The Bankruptcy Court dismissed petition 
and lifted stay. Debtor appealed. The 
United States District Court for the Middle 
District of Florida, No. 84-266-Civ-Orl-18, 
George Kendall Sharp, J., affirmed. Ap- 
peal was taken. The Court of Appeals, 
Tjoflat, Circuit Judge, held that: (1) bank- 
ruptey court could determine whether debt- 
or filed petition in good faith, even though 
debtor had not filed proposal for reorgani- 
zation, and (2) debtor that purchased prop- 
erty from mortgagors on very date that 
state court entered foreclosure order in 
favor of mortgagee filed petition for reor- 
ganization in bad faith and was not entitled 
to protection of stay. 

Affirmed. 

1. Bankruptcy 604 

Bankruptcy court could determine 
whether debtor filed petition in good faith, 

825 FEDERAL REPORTER, 2d SERIES 

even though debtor had not filed proposal 
for reorganization; taint of petition filed in 
bad faith would extend to any subsequent 
reorganization proposal and would defeat 
requirement to file reorganization proposal 
in good faith. Bankr.Code, 11 U.S.CA. 
§§ 1112(b), 1129, 1129(a)(3). 

2. Bankruptcy =604 

No single factor necessarily leads to 
finding that petition for reorganization is 
filed in bad faith. Bankr.Code, 11 U.S.C.A. 
§§ 1112(b), 1129, 1129(a)(3). 

3. Bankruptcy €=659.5(1) 

Debtor that purchased property from 
mortgagors on very date that state court 
entered foreclosure order in favor of mort- 
gagee filed petition for reorganization in 
bad faith and was not entitled to protection 
of stay, where debtor had never paid any 
employees, had never previously engaged 
in business, had no legitimate creditors oth- 
er than mortgagors, and had no assets 
until it acquired property. Bankr.Code, 11 
US.CA.  §§ 362(a), 11120), 1129, 
1129(a)(3). 

4. Bankruptcy €=659.5(1) 

Debtor's contention that property’s 
value had risen and that mortgagee there- 
fore was not harmed by inability to fore- 
close was frivolous with regard to issue 
whether debtor had filed reorganization pe- 
tition in good faith; debtor abused bank- 
ruptcy process when it used automatic stay 
provision to bide time in hope that value of 
foreclosed property would rise and produce 
windfall profit. Bankr.Code, 11 U.S.C.A. 
§§ 362(a), 1112(b), 1129, 1129(a)3). 

Raymond J. Rotella, Orlando, Fla., for 
plaintiff-appellant. 

Phillip H. Logan, Sanford, Fla., for de- 
fendant-appellee. 

Appeal from the United States District 
Court for the Middle District of Florida.   

 



    

        

   

    

  

   

  

        

    
   
   

   

   
   

   

    
issue in Mille, v. 

her the techniques 
rents” are compat. 
ion. 474 US. at 
Iso as in Miller 4 
sue here does not 
credibility and de. 
ts occur in secret: 

: erstandable relue- 
wise reliable eyi- 
-18, 106 S.Ct. at 
Angelo v. Wain 
1th Cir.), cert. de- 
107 S.Ct. 444, 93 

    

          

   

   
   
   
   
   

  

    

   

  

    
    

   
    

       

    

   
   
    
   
    
    
   

      
   

     
    
   
    

    

   
   
    
   
    
    
   

havers ‘“‘deliberate- 
natory statements 
ny judgment, man- 
s v. Henry. The 
far stronger than 
basis of the Su- 

in Henry. There, 
luded on far weak- 
formant, Nichols, 
onversation which 
criminating state 
‘enry, the Federal 
1 official had ex- 
iformant, Nichols, 
+ initiate conversa-’ 
reme Court never- 
on if the agent's 
. intend that Nich- 
re steps to secure 
a is accepted, he 

such propinquity 
result.” Henry, 

.. at 2187. In the 
not caution Chav- 
ightbourne or ini- 
h him. Further- 
a the first taped 
took from Chav- 
are early on that 
iting information 

        

  

    

  

          

sons, I conclude 

atisfied both the 
eliberately elicit” 
m. In my judg 

                    

  

          

     
    

                  

  

      

  

          

   

  

McCORQUODALE v. KEMP 1035 
Cite as 829 F.2d 1035 (11th Cir. 1987) 

ment, Lightbourne has established that his 

Sixth Amendment right to counsel was vio- 

lated under Henry. : 

However, Lightbourne’s claim that the 

court erred in not suppressing his incrimi- 

nating statements must be subjected to 

harmless error analysis. With respect to 

the guilt issue, I would find that the error 

is harmless beyond a reasonable doubt. 

Evidence of Lightbourne’s guilt was over- 

whelming, though mostly circumstantial, 

even without his confession to Chavers. 

Indeed, Lightbourne had confessed to an- 

other jailhouse informant who later testi- 

fied against him. However, the error is 

not harmless with regard to sentencing. 

Chavers’ testimony contained the only di- 

rect evidence of oral sexual assault on the 

victim as well as the only graphic descrip- 

tions of the sexual attack and comments by 

the defendant about the victim's anatomy. 

Since this evidence would support the exist- 

ence of an aggravating circumstance, and 

since it was likely to have been influential 

with the jury on the sentencing issue, I 

cannot conclude that the testimony was 

harmless with regard to sentencing. Thus 

I would reverse the judgment of the dis- 

trict court and remand with instructions 

that the writ of habeas corpus be issued 

unless the state affords Lightbourne a new 

sentencing hearing. 

I respectfully dissent. 

Ww 
o Ever NUMBER SYSTEM 

7 

Timothy Wesley McCORQUODALE, 

Petitioner-Appellant, 

Vv. 

Ralph M. KEMP, Superintendent, Geor- 

gia Diagnostic and Classification 

Center, Respondent-Appellee. 

No. 87-8724. 

United States Court of Appeals, 
Eleventh Circuit. 

Sept. 20, 1987. 

Appeal was taken from order of the 

United States District Court for the North- 

ern District of Georgia, No. C-87-2071-A, 

Orinda D. Evans, J., denying petition for 

writ of habeas corpus. The Court of Ap- 

peals held that trial court's curative in- 

struction was sufficient to correct any im- 

proper impression created when prosecutor 

made comment emphasizing role of appel- 

late court in capital murder case. 

Affirmed. 

1. Habeas Corpus &=7 

Petitioner who had argued in his first 

habeas petition that prosecutorial state- 

ments regarding appellate review had 

made his capital murder trial fundamental- 

ly unfair was not precluded from arguing 

in his third petition that same statements 

violated Eighth Amendment; Supreme 

Court case decided after first petition was 

filed held for first time that such remarks 

could violate Eighth Amendment, and law 

at time first petition was filed did not give 

clear indication that such statements raised 

Eighth Amendment issue. Rules Govern- 

ing § 2254 Cases, Rule 9(b), 28 U.S.C.A. 

foll. § 2254; U.S.C.A. Const.Amend. 8. 

2. Criminal Law €=730(1) 

Trial court’s curative instruction was 

sufficient to correct any improper impres- 

sion created when prosecutor made remark 

emphasizing role of appellate court in capi- 

tal murder case; court immediately in- 

structed jury to eliminate prosecutor’s ar- 

gument from its consideration and told jury 

that case was concluded when it reached its 

verdict. U.S.C.A. Const.Amend. 8. 

John R. Myer, Atlanta, Ga., Julius L. 

Chambers, John Charles Boger, NAACP 

Legal Defense and Educational Fund, Inc, 

New York City, for petitioner-appellant. 

Michael A. Bowers, Atty. Gen. of Ga. 

Atlanta, Ga., Mary Beth Westmoreland, 

Asst. Atty. Gen., for respondent-appellee. 

Appeal from the United States District 

Court for the Northern District of Georgia. 

   

     



   



    

   

   

    

re confined 

>nt that a res A 

de the defendants os 
ner. Silky, his As. 

  

   

                

       

  

10ld the distr: 
d convincing eyid nitive acts js p is evidence includes: the Marshall ej 
g to protect the n though Merig; 
on meeting disey a of fresh water pj; set and cement g ace feet below the base o leridian’s failure to jel est pit in a manne; 
Ss seal; Meridian’s an inadequate plas 
s after a ‘Commission fying the liner ag 
1s failure to plug 
formations separate 
'Ssion rules. The dis °T in submitting ‘this 

  

   

          

    

    
   

   

    

ert Meridian js pre- 
1e sufficiency of the 
eal because it fajleq 
>rdict at the close of 
ailed to move for 
ant notwithstanding 
r. We are not per- 
argument that the 
he evidence has not 
eal.” At the concly. 
it moved for 5 di- | 

¥» and specifically 

    

   

  

   

     

   

  

     

  

   

   

   
   

  

    

   
   

   

_ ip ‘respect to the issue of punitive dam- 
* 4 The district court denied the motion. 
> After the court’s ruling, the Marshalls 
E ted two rebuttal witnesses who testi- 

fied regarding the value of Marshalls’ prop- 
This testimony does not go to the 

issue of punitive damages. Meridian’s pre- 
vious motion for directed verdict is suffi- 

"cent to preserve for appeal the issue of the 
sufficiency of the evidence to support the 
punitive damages award. United States v. 
953 Cases * * * Mountain Valley Mineral 
Water, 247 F.2d 473, 476-77 (8th Cir.1957). 
Meridian’s failure to move for judgment 

notwithstanding the verdict does not bar an 

appeal. Hansen v. Vidal, 237 F.2d 453, 

454 (10th Cir.1956). Nor does its failure to 
move for a new trial bar an appeal where 

the issue of the sufficiency of the evidence 

was brought to the trial court’s attention in 

the motion for directed verdict at the close 

of the evidence. Cf Holmes v. Wack, 464 

F.2d 86, 89-90 (10th Cir.1972) (“Failure to 
move for a directed verdict bars appellate 

review of the sufficiency of the evidence.” 
(Quoting Brown v. Poland, 325 F.2d 984, 
986 (10th Cir.1963))). 

The district court’s decision 
FIRMED. 

is AF- 

   
       O & KEY NUMBER SYSTEM    

Bennie E. DEMPS, 

Petitioner-Appellant, 

Y. 

Richard L. DUGGER, as Secretary, 
Department of Corrections, State 

of Florida, Respondent-Appellee. 

No. 87-3767. 

United States Court of Appeals, 
Eleventh Circuit. 

_ March 28, 1989. = 
_ As Amended June 13{1989.; 

   

Petitioner sought habeas corpus relief 
from conviction for jailhouse ‘murder of “ 

DEMPS v. DUGGER 
Cite as 874 F.2d 1385 (11th Cir. 1989) 

  

1385 

fellow inmate. The United States District 
Court for the Middle District of Florida, 

No. 87-924-Civ-J-14, Susan H. Black, J. 

denied relief. Petitioner appealed. The 
Court of Appeals, Fay, Circuit Judge, held 
that: (1) instruction that prohibited jury 
from considering nonstatutory mitigating 
evidence was harmless in capital murder 
case, and (2) petitioner abused writ of habe- 
as corpus. 

Affirmed. 

Johnson, Circuit Judge, concurred in 
part, dissented in part, and filed opinion. 

Clark, Circuit Judge, concurred special- 
ly and filed opinion. 

1. Constitutional Law ¢=270(2) 
Criminal Law €1213.8(8) = + 

__ Eighth and Fourteenth Amendments 
require sentencer to consider all relevant 
mitigating evidence in” capital cases. U.S. 
C.A. Const. Amends. 8, 14. 

2. Criminal Law 1172.9 

Judge’s consideration of nonstatutory 
mitigating evidence as primary sentencer in 
capital murder case did not render harm- 
less instruction that prohibited jury from 
considering nonstatutory mitigating cir- 
cumstances. U.S.C.A. Const. Amends. 8, 
14. 

3. Homicide ¢=340(1) 

Instruction that prohibited jury from 

considering nonstatutory mitigating cir- 
cumstances was harmless in canital murder 
case; petitioner’s honorable military com- 
bat service, history of drug abuse, alleged 
absence of problems during seven-year 
prison term, and life sentences for ¢operpe- 
trators would not have persuaded jury to 
recommend life imprisonment. * U.S.C.A. 
Const. Amends. 8, 14. 

; 4. Homicide 3571) { - ; 8 od 

"History of drug addiction and absence 
"of problems during prison term could be 
classified as mitigating evidence in capital 
murder prosecution. eA E Fe te bd aT    

    

  

      

    

          
  

     

    

        
     
     

       

         

        

  

            

        

      
       
    
       

     
      

     
     

      
     

      
        
       

      
    
      
      

    

     

     

  

  

   

    

 



1386 874 FEDERAL REPORTER, 2d SERIES 

5. Habeas Corpus ¢=897 

Identical ground for relief in succes- 

sive habeas corpus application may be de- 

nied even when supported by different fac- 

tual allegations or legal arguments or 

when couched in different language. 

Kules Governing § 2254 Cases, Rule 9(b), 

28 U.S.C.A. foll. § 2254. 

6. Habeas Corpus 897 

Even if prior habeas corpus claim was 

denied on merits, petitioner is entitled to 
show that in interest of justice claim should 

be redetermined. Rules Governing § 2254 
Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254. 

7. Habeas Corpus €=897 

Petitioner for habeas corpus may ob- 

tain reconsideration of claim by showing 

that evidentiary hearing on prior applica- 

tion was not full and fair, that intervening 

change in law occurred, or that similar 

justification prevented petitioner from ar- 

-guing crucial point. Rules Governing 

§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll. 
§ 2254. 

8. Habeas Corpus €=898(1) 

Abuse of writ of habeas corpus can 
involve failure to assert claim in prior appli- 

cation or lack of adjudication of prior claim 

on merits and can occur if petitioner delib- 

erately refrains from asserting one of two 

grounds for relief in first petition in at- 

tempt to obtain two hearings instead of 

one. Rules Governing § 2254 Cases, Rule 

9(b), 28 U.S.C.A. foll. § 2254. 

9. Habeas Corpus €=898(2) 

If claim was not asserted in prior habe- 
as corpus proceeding, petitioner must show 

that failure to present ground did not re- 
sult from intentional abandonment or with- 
holding or inexcusable neglect. Rules Gov- 

erning § 2254 Cases, Rule 9b), 28 US.CA. 

foll. § 2254. ; 

10. Habeas Corpus 898(3) 

Claim that prosecutor and judge misled 
jury as to proper role in capital sentencing 
could have been asserted in previous habe- 
as corpus petition filed six months after 

United States Supreme Court decision per- 
tinent to claim and constituted abuse of the 
writ. U.S.C.A. Const.Amends. 8, 14; Rules 

Governing § 2254 Cases, Rule 0 : 
C.A. foll. § 2254. : 

11. Habeas Corpus e=898(3) 

Ends of justice did not require 
eration of ‘claim that could have: 
serted in habeas corpus petiti 
months after pertinent United Si 
preme Court case on acts of prosee 
judge misleading jury as to proper 
capital sentencing. U.S.C.A. 
Amends. 8, 14; Rules Governing 
Cases, Rule 9(b), 28 U.S.C.A. foll. § 2 

12. Habeas Corpus &=897 

Petitioner abused writ of habeas 

pus by asserting that state improperh 

withheld evidence regarding witness’ eon 

plicity in crime, deal offered to witness, and 
witness’ mental illness and propensi 

lie; prior petition alleged state’s ir 
withholding of evidence of deal mad 
witness. U.S.C.A. Const.Amends. 6 
Rules Governing § 2254 Cases, Rule 
28 U.S.C.A. foll. § 2254. 

13. Habeas Corpus ¢=898(1) 
Petitioner abused writ of habeas 

pus by failing to raise ineffective ass 
ance of counsel claim in prior petitions 
Rules Governing § 2254 Cases, Rule 9(b 
28 U.S.C.A. foll. § 2254; US.CA. Con 
Amend. 6. 

Michael A. Mello, ‘South Royales, Vv 
for petitioner-appellant. 

Mark Menser, Asst. Atty. Gen, fulishas 

see, Fla., for respondent-appellee. 

Appeal from the United States Distri- 
Court for the Middle District of Florida 

Before FAY, JOHNSON and: 
CLARK, Circuit Judges. 

FAY, Circuit Judge: 

This appeal concerns the third federal 
habeas corpus petition filed by Bennie E. 
Demps, pursuant to 28 U.S.C. § 2254. In 
1978, Demps was convicted of the jailhouse 
murder of a fellow inmate and sentenced to 

affirn 

1. B: 

A, ¥ 

Th 

forth 

er's 
wrigl 
there 

estal 
Alfre 

Flori 
woul 
gis I 

a co’ 

 



   

   
   

4 Cases, Rule 9(b), 28 U. 

pus €-898(3) 
ice did not require cong; 
that could have beey: 
corpus petition filed 

tinent United Stateg ig; 
on acts of prosecutor an 
jury as to proper rolg 
ing. ~ US.CA: or 

   

  

   

2254. 

i €=898(1) : 
‘ed writ of habeas cor 
‘aise ineffective assist. 
aim in prior petitions 
2254 Cases, Rule 9(b), 
2254; US.CA. Const, 

      

South Royalton, Vt., | 
int. - 

.. Atty. Gen., Tallahas- 
dent-appellee. 

United States District 
e District of Florida, 

NSON and. 
Tes. 

“ 
- 

ns the third federal 
1 filed by Bennie E. 
8 US.C. § 2254. In 
icted of the jailhouse 
ate and sentenced to 
as petition sets forth 

1) Petitioner’s capi- 

    

   

DEMPS v. DUGGER    1387 
Cite as 874 F.2d 1385 (11th Cir. 1989) 

tal sentencing proceeding did not comport 
TIT oot Dagar TRIOS 305, 

. .Ct. , 95 L.Ed.2d 347 (1987), _or 
Lockett_v. Ohio, 438 U.S. 586, 98 S.Ct. 
5954, 571 L.Ed.2d 973 (1978), and therefore, 
resentencing is required because the state 

cannot demonstrate that the error was 
harmless; 2) The comments made to_the 
sentencing jury di eir re ibility 
in violation of v. Mississippi, 472 
U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 
(1985); 3) The state withheld critical excyl- 
patory evidence regarding its witness, Lar- 

7 Hathaway, in violation of petitioner's 
sixth, eighth and fourteenth amendment 

rights; and 4) Petitioner’s trial counsel was 

rejudicially ine e ior failing to im- 

peach Hathaway and for failing to intro- 

duce mitigating evidence regarding peti- 

tioner’s background. The federal district 

court denied relief on all four claims.! We 
affirm. 

I. Background 

A. Facts 

This court has already reviewed and set 

forth the facts giving rise to the petition- 

er's conviction. See Demps v. Wain- 
wright, 805 F.2d 1426 (11th Cir.1986). We 
therefore only generally outline the facts 

established at trial. On September 6, 1976, 
Alfr is Ww oung i 

Florida State Prison bleeding from stab 
wounds. On the way to the hospital, Stur- 
gis in a dying declaration told A.V. R ( . 
a correctional officer, that Demps, Jackson 

and Mungin had been the assailants. At 

  

  

  

1. Demps also claims that Florida's capital sen- 
tencing statute is unconstitutional. Technically 
this claim is procedurally barred because he 
failed to raise this argument in district court. 
However, we can reject this argument on the 
merits since the Supreme Court plainly upheld 
the constitutionality of the statute in Proffitt v. 
Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 

913 (1976). This holding was later reaffirmed 

in Lockett v. Ohio, 438 U.S. at 606, 98 S.Ct. at 
2965. Suis 

2. Demps received the death penalty for these 
convictions, However, the death sentence was 
commuted to life imprisonment following Fur- 
man v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 
L.Ed.2d 346 (1972). ' pT han 

3. In a prior habeas corpus petition, this court 
denied Demps’ challenge that the state court 
erred in excluding cross-examination regarding 

  

the time of the stabbing, Demps was serv- 

ing sentences for the first-degree murder 

of two persons and the attempted murder 
of another.? 

Inmates Bennie Demps, James Jackson 

and Harry Mungin were indicted, tried and 

convicted of first degree murder. At trial, 

in addition to Rhoden’s testimony regard- 
ing Sturgis’ dying declaration, the state 
presented testimony of Larry Hathaway, a 

fellow inmate of the defendants. In ex- 

change for Hathaway's testimony, the 

state agreed to transfer Hathaway to an- 

other correctional institution with his ho- 

mosexual lover, Robert Zeigler? Hatha- 
way testified that as he walked along a 
TTI in ib doi So 
standing in a cell doorway, apparently act- 

ing as a lookout. As Hathaway passed by 

Mungin, he_saw Demps holding Sturgis 

down while Jackson stabbed him. At the 

sentencing phase of the trial, the jury reec- 

ommended the death penalty for Jackson 

and Demps, and life imprisonment for Mun- 

gin. The trial judge sentenced Mungin and 

Jackson to life, but sentenced Demps to 

death. : 

  

  

B. Procedural Posture 

On appeal, the Florida Supreme Court 

affirmed Demps’ death sentence and the 

United States Supreme Court denied certio- 
rari. Demps v. State, 395 So.2d 501 (Fla.), 

cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 

L.Ed.2d 239 (1981).! Thereafter, petitioner 

Hathaway's homosexual relationship with Zeig- 
ler, allowing Demps to establish only that they 
were close friends. See Demps v. Wainwright, 
805 F.2d 1426 (11th Cir.1986). The trial court, 
however, allowed Demps to fully cross-examine 
Hathaway regarding any transfer in exchange 
for his testimony. Id. at 1431. 

4. The petitioner challenged his conviction on 
three grounds: 1) The state violated discovery 
rules and deprived petitioner of a valuable tool 
for cross-examination by not producing ‘A.V. 
Rhoden’s written statement of his conversation 
with Sturgis en route to the hospital; 2) The 
judge improperly instructed the jury regarding 
mitigating circumstances; 3) The disparity of 
sentences among Demps’ codefendants violated 
the proposition that equally culpable defendants 
should receive equal sentences. = - 

On September 9, 1980, Mr. Demps, along with 
other death row inmates, filed an application 

     

  

         

  

   
    

     
        
        

   

         
          

    
    
       

        

       

       
      
       

  

   
       

        
    
       
   

   

      

      

       
         

      
    
     

     
    
        

        

           
       
       
       
    
        

       

     
     

      
    
      
      
     
      

    
     



874 FEDERAL REPORTER, 2d SERIES 

filed a motion to vacate, set aside or cor 
rect the judgment which the state trial 
court denied without a hearing.5 The Flor- 
ida Supreme Court affirmed the trial court 
ruling on all claims except for the petition- 
er’s claim of state interference with a de- 
fense witness, which was remanded for an 
evidentiary hearing. - Demps v. State, 416 
So.2d 808, 809 (1982). The trial court con- 
ducted a hearing and again denied the peti- 
tioner’s motion. The denial was affirmed 
on appeal.  Demps v. State, 462 So0.2d 1074 
(Fla.1984). 

On March 28, 1985, Demps filed a_peti- 
tion for a writ of habeas corpus in federal 
district court raising six grounds for re- 
lief.% The district court denied relief on all 
grounds and this court altirmeq. Demps 
v. Wainwright, 8 i (11th Cir. 
1986). The Supreme Court denied certiora- 
ri. Demps v. Dugger, — U.S. —, 108 
S.Ct. 209, 98 L.Ed.2d 160 (1987). On De- 
cember etitioner filed a sec- 
ond writ of habeas corpus alleging that the 
excusing of jurors opposed to the death 
penalty denied the petitioner an impartial 
jury from a cross-section of the community 
in violation of his sixth and fourteenth 
amendment rights. The district court dis: 
missed the petition and the petitioner did 
not appeal. 

The Governor of Florida signed a second 
death warrant and the petitioner's execu- 
tion was scheduled for Thursday, Novem- 
ber 5, 1987 at 7:00 a.m. The petitioner 
returned to the Florida Supreme Court 
seeking a stay of execution on the ground 
that his sentencing proceeding was uncon- 
stitutional under the authority of Hitch- 
cock v. Dugger, 481 U.S. 393, 107 S.Ct. 
1821, 95 L.Ed.2d 847 (1987). The Florida 
Supreme Court denied relief, finding the 

  

  

  

for extraordinary relief and petition for writ of 
habeas corpus in the Florida Supreme Court. 

. Relief was denied, Brown v. Wainwright, 392 
So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). | 

5. Mr. Demps also applied for executive clemen- 
cy, which was denied. “On’ June 1, 1982, the 
Governor signed a death’ warrant.’ Ay 

? 24 Y PREY anand REMIT & 
6. The petition raised the following. grounds for 

relief: 1) The state substantially. interfered with 
a defense witness; 2) The state failed to reveal 

Hitchcock error harmless; Demy 
ger, 514 So.2d 1092 (Fla.1987), 
this denial, the petitioner again 
emergency mofion to vacate. the sen 
state trial court which was dep 
appeal, the Florida Supreme ¢ 
firmed. Demps v. State, 515 So, 
(F1a.1987). Thereafter, the petition; 
his third petition for habeas relief in 
al district court raising the four issy 
forth above. The district court denie 
lief on all grounds and the petitioner 
pealed to this court challenging the dist yi 
court’s rulings. We review each issue 
spectively. Ls Gh 
II. Hitchcock Claim cy 

[1] Petitioner first contends tha: . 
cording to Hitchcock the jury instru fiona 

  

statute, Fla.Stat. § 921.141 (1975 
Hitchcock, the advisory jury was instru 
ed not to consider, and the sen 
judge refused to consider, evidenc 

Supreme Court found this violated pe it 
er’s constitutional right to “present 

mitigating evidence that is availab ; 
Hitchcock, supra, at 399, 107 S.Ct. at 18° 

USS. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (198 
The eighth and fourteenth amendments # 

mitigating evidence in capital 
Hitchcock, 107 S.Ct. at 1822 (citations 
ted); Lockett v. Ohio, 438 U.S, 586, 604, 9 
S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) 
Eddings v. Oklahoma, 455 U.S: 104, 102 

the deal which had been made with its ke 
witness, Larry Hathaway; 3) The trial co 9 
limited the jury's consideration of mitigatin 

, circumstances which violated petitioner's eigh 
‘and fourteenth amendment rights; 4) The tria 
court unconstitutionally limited the cross-exam 
ination of Larry Hathaway; 5) The petiti 

“death sentence is disproportionate, arbitrary 
and capricious; and 6) The testimony of Wilda 
Paschall was wrongfully excluded at the : 
evidentiary hearing, i. imi Loan 

oie »  



    

    
harmless, Demps 4 : 092 (Fla. 1987). Fojiae 
petitioner again fileg 
n to vacate the Sentenen 
which was denieq. 

rida Supreme Cou 
v. State, 515 So 

cafter, the petitions 
for habeas relief jp # 
aising the four issues 
: district court denied. ¢ ds and the petitionep 
ct challenging the distriet Ve review each issue ra. 

   

   

  

iim : 

first contends tha ‘ag 
ck the jury instructio 
precluded the jury from 
ting circumstances mas 
> Florida death p 

§ 921.141 (1975), 
isory jury was instrue 
r, and the senten in 
msider, evidence of 
g circumstances. Th 
1d this violated petition- 
ight to “present [at th 

| any and all relevan 
e that le 
t 399, 107 S.Ct. at 1824 
South Carolina, 47 

9, 90 L.Ed.2d 1 (1986), 
teenth amendments re. 
to consider all relevant 
2 in . capital cage 

    

   

   

   

  

    been made with its key 
way; 3) The trial court 
sideration of mitigating 
iolated petitioner's eighth 
ment rights; 4) The trial 
y limited the cross-exam. 
way; 5) The petitioner's 
proportionate, arbitrary 
The testimony of Wilda 

ly excluded at the state 

   
   

  

    

     

   
    

   

   
   

    
    

   

DEMPS v. DUGGER 

  

1389 Cite as 874 F.2d 1385 (11th Cir. 1989) 

g.Ct. 869, 71 LEd.2d 1 (1982) 

2] In_this case, the judge gave an in- 

traction Functionally TontieT bs-ThaT Ev. 
en in Hitchcock.® Hence, we assume the 
i not yonsider any nonstatutory mit: 
ating evidence in making their sentencing 
Teton? However, evidence in 
the record leads us to conclude that the 
udge In 1ac er the n ry 

mitigating evidence jn carrying out his role 
as the primary sentencer.!® In this case, 

we refrain from deciding wheter Both the 
judge and the jury must refuse or be pro- 

hibited from considering nonstatutory miti- 
gating evidence to constitute a Hitchcock 

error.” Since a harmless error does not 

  

     

7. In Lockett, the Supreme Court recognized that 
“in noncapital cases, the established practice of 
individualized sentences rests not on constitu- 
tional commands, but on public policy enacted 
into statutes.... The nonavailability of correc- 
tive or modifying mechanisms with respect to 
an executed capital sentence underscores the 
need for individualized consideration as a con- 
stitutional requirement in imposing the death 
sentence.” Lockett, 438 U.S. at 604-605, 98 S.Ct. 
at 2965. 

8. The jury instructions in Mr. Demps’ case stat- 
ed: ; : 

[Alt the conclusion of the taking of the evi- 
dence and after argument of counsel, you will 
be instructed on the factors in aggravation 
and mitigation you may consider. The miti- 
gating circumstances which you may consid- 
er, if established by the evidence, are as fol- 
lows: [listing statutory mitigating circum- 
stances]. GY, 

Record on Appeal at pp. 1095-96. The jury 
instructions in the Hitchcock case stated: : 

[You will be instructed] on the factors in 
aggravation and mitigation that you may con- 
sider under our law. [T]he mitigating cir- 
cumstances which you may consider shall be 
the following: [listing the statutory mitigating 
circumstances]. 

Hitchcock, 107 S.Ct. at 1824. . 

9. . We have held that allowing the defendant to 
introduce nonstatutory mitigating evidence is 
meaningless if the jury is instructed not to con- 
sider it in making its sentencing recommenda- 
tion. “Magill v. Dugger, 824 F.2d 879, 893 (11th 
Cir.1987). viel adt na pe 

10. The trial judge indicated that these standard 
jury instructions would not limit his own ability 
to consider” nonstatutory mitigating evidence. 

" During the charge conference, the judge stated 
that: “[t]here’s no doubt that the statute uses the 
term limited as far as to aggravating circum- 
stances and does not use that term, of course, 
mitigating. - The case law on it boils down to 

merit reversal, we address the preliminary 
question of whether the alleged Hitchcock 
error in this case is harmless.!? 

[3] First, we stress that an alleged 
Hitchcock error is evaluated on a case-by- 
case basis. See Knight v. Dugger, 863 
F.2d 705 (11th Cir.1988). To determine 
whether an error occurred and whether it 
affected the jury requires an indepth re- 
view of the entire record. Id. at 708. Fur- 
ther, evaluating whether an error is harm- 
less is governed by the strict Chapman 
criterion. Chapman v. California, 386 
U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). 
The error must be harmless beyond a rea- 

  

not only the mitigating factors enumerated in 
the statute, but any relevant information that 
would go to mitigation.” Transcript vol. V at p- 
996. 

11. In Elledge v. Dugger, 823 F.2d 1439 (11th 
+ Cir.1987), this court held that no Hitchcock er- 
ror occurred despite improper jury instructions, 
since the judge clearly had the proper view of 
the law and considered the nonstatutory miti- 
gating circumstances in carrying out his role as 
primary sentencer. That portion of the opinion 
was later withdrawn and thus, has no prece- 
dential value. Elledge v. Dugger, 823 F.2d 1439 
(1987), opinion withdrawn in part, 833 F.2d 250 
(11th Cir.1988), cert. denied, — U.S. —, 108 
S.Ct. 1487, 99 L.Ed.2d 715 (1988). However, the 
issue was reconsidered and determined by this 
court in Jones v. Dugger, 867 F.2d 1277 (11th 
Cir.1989). Our court in Jones v. Dugger held 
that where there is Lockett error in the court's 
instructions to the advisory jury, the sentencing 
judge's consideration of nonstatutory factors in 
reaching his sentencing decision will not render 
the erroneous instruction harmless. Hence, in 
this case, the judge's consideration of the non- 
statutory mitigating evidence does not render 
the Lockett error harmless. Instead, we consid- 
er whether the alleged nonstatutory mitigating 
evidence, if considered by the jury would have 
affected its sentencing decision. 

12. Although this court has applied harmless er- 
ror analysis to Hitchcock errors in prior deci- 
sions, petitioner urges us to reexamine this is- 
sue. We believe that our post Hitchcock opin- 

ions make it clear that harmless error analysis 
is appropriate for a Hitchcock violation. See 
Knight v. Dugger, 863 F.2d 705 (11th Cir.1988); 
Hargrave v. Dugger, 832 F.2d 1528, 1532 (11th 
Cir.1987); Armstrong v. Dugger, 833 F.2d 1430, 
1436 (11th Cir.1986); Magill v. Dugger, 824 F.2d 
879. (11th Cir.1987); Clark v. Dugger, 834 F.2d 
1561 (11th Cir.1987), cert. denied, — US, —, 
108 S.Ct. 1282, 99 1.Ed.2d 493 (1988). 1    

    
   

  

    

      
          

       
          

         

        
       

      
     
          

         
     

       

       
      

        

        

        

  
     
           

         

        
           

     
       

            
        

       
       

  

    

  

      
        

        

              
        
       

         

  

    



1390 874 FEL ERAL REPORTER, 2d SERIES 

sonable doubt. Jd. at 24, 87 S.Ct. at 828. 
To be harmless in the Hitchcock context, 
the court must determine beyond a reason- 
able doubt that the proposed mitigating 
evidence regarding the defendant’s charac- 
ter would not have influenced the jury to 
recommend a life sentence. 

In_this case. we conclude be oh & a rea- 
sonable doubt that the proposed mitigating 
evidence would not have persuaded the 
jury to recommend Tife.” Petitioner present- 
ed Tour types of evidence which he alleges 
would have influenced the jury to recom- 
mend life. (¥iFst_petitioner argues that his 
“honorable military combat service” would 
have supported a jury recommendation of 
life. The evidence, however, reflected 
something quite different than “honorable 
military combat service.” On November 
20, 1969, Demps enlisted in the United 
States Marine Corps for a two year period. 
His service record revealed one special 
court-martial conviction and two nonjudigal 
punishments for five assaults, communica- 
tion of a threat, and disobeying a lawful 
order. Due to these offenses, after eleven 
months of service, Demps received a dis- 
honorable discharge in November, 1970. is 
In January, 1979, under a special discharge 
review program, Demps’ dishonorable dis- 
charge was upgraded to a general dis- 
charge. Contrary to petitioner's allega- 
tions that he had served in military combat, 
the record reflects no evidence indicating 
any Overseas Combat experience. Rather, 
the record shows that Demps had been 
stationed at Camp LeJeune, North Car- 
olina. We do not believe Demps’ military 
record reflected at all favorably on his 
character and hence, we are persuaded that 
the evidence would not have influenced the 
jury to recommend life. 

[41 Second, ) petitioner presented evi- 
dence to the jury of his history of drug 
abuse and argues that this was evidence 
which would have mitigated his death sen- 
tence. It is true that a history of drug 
addiction can be considered by juries as 
nonstatutory _ “mitigating _ “evidence. See 
re a ev — EE 

13. In recommending, a dishonorable discharge, 
a reviewing officer stated that “[t]he nature of 
his offenses indicate that he is insubordinate 
and has no respect for constituted authority. As 

Hargrave v. Dugger, 832 F.2d 15 
(11th Cir.1987); Fead v. State, 51: 
176, 179 (F1a.1987) (jury could have fa: 
as mitigating, evidence that the defe 
committed crime under the influence o 
cohol). However, in this case, we 
think this evidence would have i 
the jury’s recommendation. The eviden 
available indicated that Demps had 

ry of drug addiction prior to being adm 
into the correctional system. The murd 
of Alfred Sturgis occurred in prison and + 
evidence exists to show that drugs ¢ or 
ment for drug dependency m any v 
“Tluenced Demps’ participation in thi 
der. Therefore, while the evidence 
history of drug addiction can be mitigatis 
evidence, we believe that the circumstan, 
in this case indicate beyond a reascna 

CThird, petitioner asserts that his 
indicated he presented no problems dy 
his seven year prison term prior. 

stabbing. Like his history of drug abu 

cated that Demps had a prison rac ; 
continuing disciplinary problems. Tn on 
opinion, Demps’ record would not haye 
fected the mind of a juror in any 

where the murder for which the jury 
ommended death occurred in the prise 

(Finally, petitioner stresses that the 

coperpetrators of the murder received 
life sentence “while he alone was sentences 
fo death, Petitioner claims that this shoul Jo 

be considered as mitigating. Petition 

lies on the language in Downs ». Dugge 
514 So.2d 1069 (Fla.1987), where the Fl 

ida Supreme Court stated that it “has re 
ognized as mitigating the fact that an 

is evidenced by ‘the short time’ between hi 
court-martial and his next infraction he is 
amenable to rehabilitation.” Appendix, M 
randum of Review, Oct. 29, 1970. 

eomplice 

of equal 
jesser St 

1072 (cif 
viewing 
that of | 

preme 
Demps 
having 
first-deg 
attempt 
gallows 

Furmai 

2726, 3: 

Dugger, 
We con 

recorc 

mor: st 

Since 
that the 
conside: 

sentenc 

that an 

was ha 

is not 1 

HL. S 
the Wi 

Beca 

raised ° 

or faile 

law we 

that pe 

success 

and th 

For | 

nal thr 

review 

success 

Rule @ 

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dismis: 

tion w 

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habea:  



     

       

       

            
         

       

, 832 F.2d 1528 
d v. State, 512 a, 
ury could have fo, 
«ce that the defends 
er the influence 
this case, we 

vould have infly 
dation. The evid 
at Demps had a 
rior to being adm 
system. The my 

irred in prison and : 

w that drugs or 
dency in any way 
ticipation in this nur 

       

          
     

  

     

        
      

     
     

  

     

         

       
    

     

  

    
    
    
    

           
     

    
    

      

                        

hat the circumstance 
beyond a reasonabl 

      

    
     

         
       
     

             
     

     

      
         

      

     
      

      
    

    

     

  

      
      
     
       

         
    

     
      
    

          

    
      
    

     
       

   

   
    

     

  

classified as mitigat- 
per, 476 U.S. 1, 106 
2d 1 (1986) (evidence 
ell-behaved and well- 
s relevant mitigating 
quite to the contrary, 
stigation report .indi- 
d a prison record o 

   

    

tresses that the two. 
2 murder received a 
alone was sentenced 

laims that this should’ 
ating. Petitioner re- 
in Downs v. Dugger, 
187), where the Flor- 

ited that it “has rec 

the fact that an ac- 

   

   

      

   
   
   

  

   

horP time botwean’ his’ 
ext infraction he is not’ 
ion.” Appendix, Memo- 
. 29,-1970. : 

    
   

        

DEMP: v. DUGGER 1391 
Cite as 874 F.2d 1385 (11th Cir. 1989) 

complice in the crime in question, who was 

of equal or greater culpability, received a 

Jesser sentence than the accused.” Id. at 

1072 (citations omitted). However, in re- 

viewing Demps’ sentence as compared to 

that of his co-perpetrators, the Florida Su- 

preme Court_also recognized that “only 

Demps had the loathsome distinction of 

having been previously convicted of the 

first-degree murder of two persons and 

agempted murder of another, escaping the 

gallows only through the intervention of 

Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 

2726, 33 L.Ed.2d 346 (1972).” Demps v. 

Dugger, 514 So.2d 1092, 1093 (Fla.1987). 

We conclude that Demps’ prior criminal 

record was sufficient to justify imposing a 

more serious penalty. 

Since we find beyond a reasonable doubt 

that the evidence excluded from the jury’s 

consideration would not have affected its 

sentencing recommendation, we conclude 

that any error which may have occurred 

was harmless and therefore, resentencing 

is_not required. 

III. Successive Applications and Abuse of 

the Writ 

Because petitioner has either previously 

raised the grounds for relief which follow 

on) failed to raise them whep the facts and 

Taw_were readily accessible, We conclude 

that petitioner's last three claims constitute 

successive claims or an abuse of the writ 

and thus are procedurally barred. 

For purposes of analyzing petitioner’s fi- 

nal three issues, we will attempt a concise 

review of when a claim may be classified as 

successive or as ‘an abuse of the writ. 

Rule 9(b) of the Rules Governing Section 

9954 Cases deals with successive habeas 

petitions. It provides that the judge may 

dismiss a second or successive habeas peti- 

tion where 1) “it fails to allege new or 

different grounds for relief and the prior 

determination was on the merits,” or 2) “if 

new and different grounds are alleged, - 

judge finds that the failiire of the petition- 

er to assert those grounds i in a prior peti- 

tion constituted an: abuse. of. the writ.” 

This rule codified many of the judicially 

developed principles regarding successive 

habeas petitions. See Advisory Committee - 

Note, Federal Civil Judicial Procedure 

and Rules (1988). 

[5] As the rule indicates, 2 successive | 

application involves a new habeas applica- | 

tion which sets forth an identical ground | 

for relief as was raised in an earlier appli- 

cation. Sanders v. United States, 373 U.S. 

1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). 

The identical ground, for relief may be de- 

nied even when supported by different fac- 

tual allegations or Tegal arguments, or 

when couched in different language. Id. at 

16, 83 S.Ct. at 1077; see, e.g., Raulerson v. 

Wainwright, 758 F.2d 869, 873 (11th Cir. 

1985) (different factual support for same 

legal argument); United States v. Jones, 

194 F.Supp. 421 (D.C.Kan.1961), affd 

mem., 297 F.2d 835 (10th Cir.1962) (claim 

couched in different language). The 

government carries the burden to plead 

abuse of the writ. Sanders, 373 U.S. at 10, 

83 S.Ct. at 1074. However, once the 

government has done this, the petitioner 

has the burden of proving that he has not 

abused the writ. Price v. Johnston, 334 

U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 

1356 (1948). 

[6,7] Evenif the prior claim was denied 

on the merits, an applicant is entitled to 

show that in the interest of justice the 

claim should be redetermined. Sanders, 

373 U.S. at 16, 83 S.Ct. at 1077.f 11 factual) 

Gssues are involved, the applicant may ob- | 

thin reconsideration of the claim by show- | 

ihg that the evidentiary hearing on the | 

prior application was not full and fair, Jd. 

gt 17, 83 S.Ct, at 1078 HM legal questions 

are volved, the applicant may show that 

an intervening change in the law occurred 

or a similar justification prevented the ap- 

Plicant from arguing a crucial point. 7d. 

8, 9] “An abuse of the writ can also 

involve situations where the claim was not 

asserted in a prior application or where the 

claim was presented earlier, but not  adjudi- 

cated on the merits. [TT the claim was not \ 

asserted in a prior proceeding, the petition- 

er must show that the failure to present 

the ground did not result from intentional 

Abandonment or Withholding, or Thexcusa- 

Ble neglect. Witt v. Wainwright, 155 F.2d 

 



iF 

1392 874 FEDERAL REPORTER, 2 d SERIES 
1396, 1397 (11th Cir.) cert. denied, 470 US. den of disproving an abuse of the wi 1039, 105 S.Ct. 1415, 84 L.Ed.2d 801 (1985). therefore, we deny relief on this’ For example, an abuse of the writ can 

Get occur where a petitioner deliberately re- B. Exculpatory Evidence Claim frains from asserting one of two grounds [12] Petitioner also contends th for relief in the first petition in an attempt state withheld critical exculpatory evig to obtain two hearings instead of one. regarding jts key Witness, Larry Sanders, 313 U.S. at 18, 83 S.Ct. at 1078. way. Specifically, Detitioner asserts | However, a retroactive change in the law _the state Withheld/ evidence regardin | & newly discovered evidence may justify Larry Hathaway's complicity in the crf 
| the petitioner's failure to assert the claim 2) the true deal the state had with Hathy, earlier. In any event, a court must reach way, and 3) Hathaway's mental illness, a the merits of the claim if the ends of justice | propensity to lie. Pelifioner contends pro 

So require. Id. Within this framework, we | the withholding of this evidence vi lat, i Ba 
| we 

2 Moe 
Mig er’ he th 

his first not 
A. Caldwell Claim | In Dar [10] First, petitioner contends that the : Yard ; cific 
prosecutor and the JIOZE ISIE the Jury as garding the deal made with Hathaway (i alleg 
to TES proper role In" capital sentencing memorandum written by a prison offic sion regarding Hathaway's transfer to a; ton, + 

which diminished its responsibility in viola- tion of the eighth and fourteenth amend- correctional facility). Seo Demps v. Wei 80 L 

IV. 

ments. Caldwell », Mississippi, 472 US. wright, 805 F.24 1426, 1432 (11th Cir.18 
We conclude that petitioner's failure to rejected that the alleged withholding Be 

{ analyze petitioner’s fina] three grounds for | his sixth, eighth and fourteenth am frelief. Lae 
ment rights. ik 

320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Addressing the merits of the claim, 
raise this claim in an earlier Detition consti- this evidence violated Brady v. Maryl ror v 
tutes an abuse of the writ. + 83, 83 S.Ct. 1194, 10 L.Ed.2q 21 less, Petitioner's failure to raise this claim in (1963). Demps », Wainwright, 805 F 2d at ee 
his\second habeas petition Ts the Tesaliar 1432. ro De 
inexcusable Tieglect. “The United States Su- Similarly, in his present petition, Dem oe 
preme Court issued the Caldwell decision raises an identical claim, but has asse Gt 
on June 11, 1985, Petitioner filed his sec- different factual support. In addition : 

d p 
his prior allegation that the state withhe 5 t evidence regarding the 4 

re i Hathaway, 
withheld e 

iF 

  

y 4 

sion of evidence aimed at i 

g law occurred and petitioner has pointed to no other circum- stances ‘to explain his failure to raise the claim in an earlier petition. We conclude that petitioner has failed to carry his bur- 
| 14. Were we to reach 

ell In Harich v. Dugger, 844 Fod 1484 Mth. ir. 
claim, it judge's 

statements merely explained to the 
: 

10t : Jury the respective functions of the judge an 
importance of j i cing. JULY. cotiig: 5 Shots a 
Rather, the state 

Yo Lame EIR E 2, ALS  



[2 

exculpatory es 
tness, Larry H 

. Brady v. Maryla 
1194, 10 L.Ed.2d. 

oport. In addition 

hat the state withhel 
the deal made wi 
alleges that the sta 
egarding Hathawa 

me and his propens 

-¢ the claim asserted in 

ition, alleges suppre 

»d at impeaching Ha 
‘etitioner is attemp 
claim by rephrasing it 

1al support. No evi 
ite petitioner was ham 
from asserting these 

:n he raised this cla 

844 F.2d 1464 (11th. 
ts merely explained to the 
unctions of the judge d 

DEMPS v. DUGGER 
1393 

Cite as 874 F.2d 1385 (11th Cir. 1989) 
, 

reviously: Hence, we conclude that the 

Pr tion of this claim in petitioner's third 

peas petition constitutes an abuse of the 

See In re Shriner, 135 F.2d 1236 

wp 
(11th Cir.1984). 

Ineffective Assistance of Counsel 

[13] Finally, petitioner asserts that trial 

counsel's failure to effectively impeach 

Hathaway and to present compelling miti- 

gating evidence constituted ineffective as- 

sistance Of counsel. Since petitioner 

presents no reasonable justification for his 

gailure to raise this claim in a prior petition, 

we deny this claim as an abuse of the writ. 

Moreover, even if we were to address the 

merits, it is apparent that petitioner does 

not state a viable-ineffective assistance of 

counsel claim. Petitioner identifies no spe- 

cific act or omission of counsel which is 

allegedly the result of unreasonable profes- 

gional judgment. Strickland v. Washing- 

ton, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 

go L.Ed.2d 674 (1984). 

IV. Conclusion 

Because we find that any Hitchcock er- 

ror which occurred in this case was harm- 

less, resentencing is not required. Fur- 

ther, since petitioner either failed to raise 

his last three claims in a prior petition or 

had presented these claims previously, 

their assertion in this third habeas petition 

constitutes an abuse of the writ. There 

fore, we affirm the district court’s denial of 

relief on all of the asserted grounds. 

AFFIRMED. 

JOHNSON, Circuit Judge, concurring 

in part, and dissenting in part. 

I concur in the majority’s disposition of 

the petitioner’s second, third, and fourth 

claims for relief and with the majority's 

determination that Hitchcock error Was 

committed at petitioner's sentencing hear- 

ing. However, because of the insufficiency 

of the record before us, I must respectfully 

dissent from the majority's finding that the 

error was harmless. © = od SIE 

“The majority is correct in asserting that 

Hitchcock error may be ‘harmless in some 

cases. See Clark v. Dugger, 834 F.2d 

1561, 1569-70 (11th Cir.1987), cert. denied, 

US. —, 108 S.Ct. 1282, 99 L.Ed.2d 

493 (1988) (error harmless where “there 

simply were no nonstatutory mitigating cir- 

cumstances to consider”); see also Knight 

v. Dugger, 863 F.2d 705, 708-10 (11th Cir. 

1988) (dicta that Hitchcock error may be 

harmless). However, this Court has only 

once found Hitchcock error to be harmless, 

see Clark, supra, and the Supreme Court 

has never found the error to be harmless in 

its four reversals of death sentences for 

failure of the sentencer to consider non- 

statutory mitigating circumstances. See 

Hitchcock v. Dugger, 481 U.S. 393, 107 

S.Ct. 1821, 95 L.Ed.2d 347 (1987); Skipper 

». South Carolina, 476 US. 1, 106 S.Ct. 

1669, 90 L.Ed.2d 1 (1986); Eddings ?. 

Oklahoma, 455 U.S. 104, 102 S.Ct. 869, T1 

L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 

586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). 

In addition, a recent decision from this 

Court emphasized the narrow range of situ- 

ations in which Hitchcock error may be 

harmless. In Knight, supra, the State of 

Florida argued that the failure of a jury to 

consider all mitigating factors was harm- 

less because ‘‘so many aggravating factors 

were found (four) that no amount of non- 

statutory mitigating evidence could change 

the result in the case.” 863 F.2d at 710. 

In rejecting the state’s reasoning, we stat- 

ed: 

No authority has been furnished for this 

proposition and it seems doubtful that 

any exists. The State’s theory, in prac 

tice, would do away with the requirement 

of an individualized sentencing determi- 

nation in cases where there are many 

aggravating circumstances. It is this re- 

quirement, of course, that is at the heart 

of Lockett and its progeny. 

Jd. The Knight decision leaves little room 

for the application of harmless error analy- 

sis, except in the situation where no non- 

statutory mitigating evidence could have 

been proffered. See Clark, supra. 

In fact, this is what the majority holds— 

that Demps” evidence was not mitigating at 

all. If Demps has no true mitigating evi- 

dence to offer, then it must be conceded 

that any error in the jury instructions was  



1394 874 FEDERAL REPORTER, 2d SERIES 

harmless. However, the district court be- 
low made no ruling as to the quality or 
quantity of mitigating evidence. In the 

absence of factual findings on Demps’ 
claims of mitigating evidence, this Court 

should not make any determination on the 
question of harmlessness.! 

In the district court below, Demps 
claimed that the jury was improperly pre- 

vented from considering evidence of what 

he alleged to be an honorable military 
record, good adjustment to prison, a histo- 

ry of drug addiction, and an unequal sen- 
tence received by a co-perpetrator? If any 
of his claims were true, excluding them 

from the jury's consideration would have 

constituted reversible error. However, the 

district court made ne findings as to the 

truthfulness of Demps’ claims. It instead 

held on the basis of Elledge v. Dugger, 823 
F.2d 1439 (11th Cir.1987) (per curiam), 

opinion withdrawn in relevant part, 833 

F.2d 250 (11th Cir.1988), cert. denied, —— 
U.S. ——, 108 S.Ct. 1487, 99 L.Ed.2d 715 

(1988), that the trial judge’s consideration 

of all mitigating factors rendered the erro- 

neous jury instructions harmless. Its dis- 

position of the case leaves us no basis upon 

which to make a ruling regarding the valid- 

ity of Demps’ factual claims of the exist- 
ence of mitigating factors. 

The determination of whether the error 
committed in Demps’ case was harmless or 

not depends entirely on the truth of his 

claim that unconsidered mitigating factors 

existed. Without an evidentiary hearing 

having been conducted below, it is inappro- 

priate for this Court to pass upon such 

crucial facts de novo. See United States 

i. The “record” to which the majority refers is 
woefully incomplete. For example, although 
some documents indicate that Demps had a less 
than distinguished service record, other partial 
records before us indicate that Demps may have 

suffered a racially motivated beating while in 
the military, and may have been railroaded into 
accepting his discharge. In addition, the major- 
ity, based on records of Demps’ criminal histo- 
ry, confidently finds that it was appropriate for 
Demps to have received a penalty greater than 

that of his co-perpetrators.. However, the ¢rimi- 
nal histories of his co-perpetrators are not part 
of the record. When a life hangs in the balance, 
"the teed for a 2 fully developed record § is impsie 
tive, ¥ : 

v. C.G., 736 F.2d 1474, 1479 ith Cir 1 
United States v. Johnson, 700 F.24 8 
701 (11th Cir.1983); United States 
inson, 625 F.2d 1211, 1217 (5th 
The parties’ briefs present two én 
ferent versions of the same Rig. 
Our Job is normally to review the 

for an evidentiary hearing. it 
Dugger, 848 F.2d 1512, 1519-20. (11th 

1988) (per curiam) (Tjoflat, J, diss 
(remand to district court for hearing 

of this case is an affirmance of - 8 
court’s denial of relief. Judge Fay, Ju 
Johnson, and I all agree that there was 
erroneous Hitchcock instruction. Our 

agreement over defining the issue in 
case is the reason our analyses diffei 
am unable to join Judge Fay’s opinion 
cause he bases his analysis on the 

essness of filchcock error. Howéve 

dé not agree with Judge Johnson 

Demps presented any evidence of nons 

utory mitigating circumstances that is 

arguably credible. Since Demps has 
presented such evidence, the * pet 

should be denied. : 

Judge Fay concludes: 

To be harmless in the Hitchcock contex 

the court must determine beyond a T 

2. Such evidence is considered to be mitigati: 
at the penalty phase of a capital case. 
Masterson v. State, 516 So.2d 256, 258 (Fla. 1987 
(vacating death sentence imposed by judge w 
failed to find defendant's military record am 
history of drug abuse to be mitigating); Ski; 
476 USS. at 8, 106 S.Ct. at 1673 (vacating dea 
sentence where testimony of defendant's 
adjustment to prison was excluded); Har, 
v. Dugger, 832 F.2d 1528, 1534 (11th Cir.1 

(finding history of drug abuse to be a mitiga 
factor); Brookings v. State, 495 So.2d 135, 
(F1a.1986) (vacating death sentence imposed 
judge over jury's recommendation of life impr; 
onment where Ga) receive les 

~ punishment). TR EN 

sonal 

ing 
char: 
jury 

in 
reas 
gath 

sual 

At 13 
circuit 

court ¢ 

ing th 
agains 

stance 

woulG 
mend 

(11th 

To « 

there 

that ¢ 

nonst 

the a 
evide! 

dence 

erati 
even 

time 

admi 

Hitcl 

an e 

has | 

statu 

ed tc 

cates 

limit 
gatii 

exist 

stat 

Edd 

S.Ct 

v2. S 

166¢ 

T 

divi  



        

  

       

        

  

474, 1479 (11th i 
Johnson, 700 x 

); United States 
211, 1217 (5th ©          

    

       
       

      
   

    
    

     

          
         

        
      

    

   ly to review the f. 
courts and rot §o 1 

elves. oF Consequently 

   ors to the distri 61 

hearing. See Ruf he 

1512, 1519-20 (11th       

  

   

Judge, specially 

appropriate disposition 
firmance of the 
lief. Judge Fay, 
-gree that there was 
kt instruction. Our 
fining the issue in tk 

our analyses differ. 

udge Fay’s opinion 
analysis on the ha 

ck error. However, 
Judge Johnson th: 

y evidence of nons 
umstances that is 
Since Demps has 

sidence, the - peti 

           

      

           

         

      
    
    

      
      
    

      

  

     

      

   

   

    

   

    

   
    
    
    
     

    
     

  

   
          

     

    

         
    
    

     
      

       
      

   

les: Fa 
the Hitchcock conte 
‘ermine beyond 

        

   asidered to be mitigatin 
of a capital case,” See 
So.2d 256, 258 (Fla. 1987) 
ce imposed by judge wh 
t's military record a 
o be mitigating); Skippe; 
- at 1673 (vacating deat 

     
       
       

       

      

  

     

   28, 1534 (11th Cir.1987 
: abuse to be a mitigatin 
“tate, 495 So.2d 135; 143 
ath sentence imposed by 
mendation of life impris- 
setrators received lesser 

    

   

   

    

     
   

          

   

   

DEMPS v. DUGGER 1395 
Cite as 874 F.2d 1385 (11th Cir. 1989) 

sonable doubt that the proposed mitigat- 

ing evidence regarding the defendant's 

character would not have influenced the 

ry to recommend a life sentence. 

In this case, we conclude beyond a 

reasonable doubt that the proposed miti- 

ating evidence would not have per- 

suaded the jury to recommend life. 

At 1390. I believe that the law of the 

circuit is as Judge Johnson relates. This 

court does not undertake the task of weigh- 

ing the nonstatutory mitigating evidence 

against the statutory aggravating circum- 

stances to determine whether the evidence 

would have persuaded the jury to recom- 

mend life. Knight v. Dugger, 863 F.2d 705 

(11th Cir.1989), stands for that proposition. 

To constitute a potential Hitchcock error 

there must be (1) an instruction to the jury 

that excludes the jurors from considering 

nonstatutory mitigating evidence—and (2) 

the availability of nonstatutory mitigating 

evidence. There are cases where the evi- 

dence was heard but excluded from consid- 

eration and other cases where it was not 

even offered because Florida law at the 

time taught that such evidence was not 

admissible. This case is not a potential 

Hitchcock error case. Although there was 

an erroneous Hitchcock instruction, there 

has been no showing that any credible non- 

statutory mitigating evidence was present- 

ed to the jury. Moreover, the record indi- 

cates that counsel did not believe he was 

limited to presenting only statutory miti- 

gating circumstances.! If such evidence 

exists, the case should be returned to the 

state court for resentencing as was done in 

Eddings v. Oklahoma, 455 U.S. 104, 102 

S.Ct. 869, 71 L.Ed.2d 1 (1982) and Skipper 

v. South Carolina, 476 U.S. 1, 106 S.Ct. 

1669, 90 L.Ed.2d 1 (1986). 

The evidence urged to be mitigating is 

divided into four categories: (1) evidence of 

Demps’ military record, (2) his good adjust- 

ment to prison, (3) a history of drug addic- 

tion, and (4) the unequal sentence received 

ju 

1. At trial, defense counsel and the trial judge 

agreed that the statutory list of mitigating cir- 

cumstances was not exclusive. Transcript, Vol. 

V, at 995-96. nkir3 a1 ahh on ab 

by his accomplices. Although all four of 

these factors ean be mitigating, there are 

no credible facts in the record to show that 

these mitigating facts exist in this case. 

At the penalty phase, defense counsel 

presented Demps’ military file to the jury. 

He argued that Demps had an honorable 

record in the Marines and that he was 

wounded in combat. As Judge Fay points 

out, the record shows that Demps was ini- 

tially given an undesirable discharge that 

was later upgraded to a general discharge. 

The record also reflects that Demps was 

not wounded in combat.? 

Defense counsel also argued that Demps 

had no disciplinary problems in prison. 

Demps’ presentence investigation report, 

which is part of the record, belies that 

allegation. He had sixteen charges against 

him at the Florida State Prison between 

September 28, 1971 and December 1, 1977, 

not including his participation in the mur- 

der of Sturgis. . These offenses included 

attempting. to escape, creating distur 

" bances, flooding his cell, interfering with 

officers, fighting, destroying state proper- 

ty and inciting a minor disturbance. .. 

Defense counsel argued that Demps’ his- 

tory of drug addiction was relevant miti- 

gating evidence. This addiction predated 

his 1971 conviction and imprisonment for 

murder of two persons locked in the trunk 

of an automobile and there is no evidence 

in the record to show that Demps was 

addicted at the time of the murder we are 

‘concerned with. Although there is passing 

reference in the psychologist’s report that 

drug addiction “may have resulted in the. 

kind of brain damage suggested by current 

test results,” (Appendix BB, Record Ex- 

cerpts) there is no evidence that the drug 

addiction affected Demps at the time of 

this murder. 

Finally, appellant argues that his accom- 

plices’ life sentences could have been con- 

sidered as mitigating evidence by Demps’ 

2.. It appears that the basis for counsel's argu- 

ment that Demps was wounded in combat came 

from Demps’ initial medical classification at 

Florida State Prison. . Those records stated that 

Demps had a bullet wound in the leg from the 

SErVICe, ric fv Eiveiilie brag sonprey 

  

 



1396 874 FEDERAL REPORTER, 24 SERIES 
sentencing jury. I find that argument un- persuasive in this case and uncontrolled by the authorities cited in Judge Johnson’s dissent. In this case, all three perpetrators were convicted in one single trial. The jury returned death recommendations for Demps and Jackson, but gave a life recom- mendation for co-defendant Mungin. The trial judge overrode th 

to Jackson. 
therefore is 
was a nons 
stance the j 
sentencing 
stand the 

and the trig- 
ife sentence, 

case, Demps 
kson stabbed 
life sentence given to Mungin, who was the lookout, was mitigating evidence for Demps. 

In this case, defense counsel argued that nonstatutory mitigating circumstances ex- isted to spare Demps’ life. A thorough review of the record demonstrates that there are no facts to support the existence of these mitigating circumstance. At this stage after several appeals to the Florida Supreme Court, U.S. Supreme Court and to our court, it is incumbent op counsel for the petitioner to present in a credible form facts which counsel can prove true in an evidentiary hearing. Normally, this is not a problem since the penalty phase will con- tain the testimony of witnesses with re- spect to such nonstatutory mitigating cir cumstances? If the state contests the ve- racity of the evidence, an evidentiary hear- ing might be in order. In this case, how- ever, the record demonstrates that these mitigating circumstances do not exist. The Petitioner has failed to allege facts to prove 
3 Additionally, if the Hitchcock claim is prem- ised on the fact that counsel believed himself . ed to’ statutory mitigating evidence, peti- tioner will append affidavits, psychiatric or psy- 

the existence of nonstatutory mis: circumstances. In such a case, an av tiary hearing is not required, 
For the foregoing reasons, I do. the issue as requiring a Chapman Jornia, 386 US, 18, 87 S.Ct. 824, ; 2d 705 (1967), harmless error gy Nor do I see this as a case that requir evidentiary hearing since no New nongt. utory evidence is adduced by petition This case is comparable to Clark » ger, 834 F.24 1561, 1569-70 (11th Cir cert. denied, — US, 

99 L.Ed.2d 493 (1988). 
found: ue 

Here, however, there simply nonstatutory mitiga 
consider. 

at any testimony the penalty phase could only prove m- ful. Thus, Clark failed to introduce any mitigating evidence whatever, : 834 F.2d at 1569 (footnotes omitted). 
Admittedly the Clark panel held that “any Hitchcock e 

Chapman v. Ca 

7k panel an 
is no nonstaf 

pen-. 
time, a federa] 

nders on when 
tckeock error. It: 

presented.   
This is the 

Stat 

murder 

tioned f{ 

United & 

District 

W. Melt 

er appe: 
F.2d 150 

part, an 

After r 
1964, 90 

held tha 

tion tha 

capital f 
victim s 
requiren 
ty, and ( 
not den 
Fourteer 

Affi



        
     
       

        

       

      

statutory mitigati ing 

ch a case, an eviden 
required. 

reasons, I do not 

a Chapman v. 

7 S.Ct. 824, 17 L. 
nless error anak 

case that requires 
ince no new non: 

        

          
     

   
      

     

     
    
    
    
        

      

      

   

        

ble to Clark ». 

59-70 (11th Cir.1 

, 108 S.Ct. 

      

       

     

     
      

     
           

  

      

   

        
        

      
     
      
     

      
      

       

     
        

        
         

     
     

         
     

   

   

   
uld only prove han 
iled to introduce = 
whatever. 

tnotes omitted). 

   

    

the Clark panel 

* there is no nons 
nce there can be n 
armlessness need not 

  

   

    

   n it an inappropriate 
court to weigh non- 
vidence against ag 
:s and decide wheth- 
‘et the death penalty. 
esentencing hearing 
the separate states’ 
for their courts to 
encing in death pe 
me time, a federal 
blinders on when 

Hitchcock error. I 
to examine a peti- 

        

   

   

   

   

i school or medical 

evidence that was not 

    

GRIFFIN v. DUGGER 1397 
Cite as 874 F.2d 1397 (11th Cir. 1989) 

tioner’s alleged nonstatutory mitigating ev- 

:dence to determine if such evidence does in 
fact exist. If it is nonexistent, the case 

should stop there. If there is credible evi- 

Jence demonstrated by the petitioner, we 

should return the case to the state court 

for resentencing. In this case, there being 

no credible evidence, the petition should be 

denied. 

   
Ww 
€ xy NUMBER SYSTEM 

T 

: 

Kenneth GRIFFIN, 
Petitioner-Appellant, 

V. 

Richard L. DUGGER, 
Respondent-Appellee. 

No. 84-3196. 

United States Court of Appeals, 

Eleventh Circuit. 

May 19, 1989. 

State prisoner sentenced to death for 
murder of victims during robbery peti- 

tioned for writ of habeas corpus. The 

United States District Court for the Middle 

District of Florida, No. 84-00185, Howell 
W. Melton, J., 588 F.Supp. 1549, and prison- 
er appealed. The Court of Appeals, 760 
F.2d 1505, affirmed in part and reversed in 
part, and prisoner petitioned for certiorari. 

After remand, 476 U.S. 1112, 106 S.Ct. 

1964, 90 L.Ed.2d 650, the Court of Appeals 

held that: (1) state trial court's determina- 

tion that defendant played major role in 

capital felony and was actual killer of one 
victim satisfied culpability determination 
requirement for imposition of death penal 

ty, and (2) imposition of death penalty was 
not demonstrated to ‘violate Eighth or 
Fourteenth Amendments. 

: Affirmed. 

1. Homicide &=357(7, 12) 

State trial court’s finding that criminal 
Sepa played major role in capital felo- 

y and was actual killer of one victim satis- 

fied requirement that culpability be com- 
mensurate with imposition of death penal- 

ty, despite felony-murder instruction that 

would have permitted conviction in absence 

of premeditated design or intent to kill. 
U.S.C.A. Const. Amend. 8. 

2. Constitutional Law €=250.3(1), 270(2) 

Criminal Law €=1213.8(8) 

State prosecutor's references to race 

of victims and statistical evidence that de- 
fendant convicted in Florida of murdering 

white victim was nearly five times more 

likely to receive death penalty than one 
convicted of murdering black victim did not 

establish that death sentence was imposed 

in violation of the Eighth Amendment or 

due process and equal protection clauses of 

the Fourteenth Amendment. U.S.C.A. 
Const.Amends. 8, 14. : 

Patterson, Bleknap, Webb, & Tyler, Fred 

Davis, Robert LoBue, Donald Baer, Doug- 

las B. Maynard, New York City, John D. 

Middleton, Atty., Gainesville, Fla., for peti- 

tioner-appellant. 

Gary L. Printy, Tallahassee, Fla., for re- 

spondent-appellee. 

Appeal from the United States District 
Court for the Middle District of Florida. 

ON REMAND FROM THE UNITED 
STATES SUPREME COURT 

Before TJOFLAT, KRAVITCH and 
HATCHETT, Circuit Judges. 

PER CURIAM: 

By applying the Supreme Court's hold- 

ings in Cabana v. Bullock, 474 U.S. 376, 

106 S.Ct. 689, 88 L.Ed.2d 704 (1986) and 

McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 

1756, 95 1.Ed.2d 262 (1987), we affirm the 
district court's denial of the petitioners 
petition for writ of habeas corpus. 

The facts and procedural history in this 
capital case are found in Griffin v. Wain- 
wright, 760 F.2d 1505 (11th Cir.1985), cert.    



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2 PAPRSKAR v. ESTELLE 1003       
Cite as 612 F.2d 1003 (1980) 

that as to the class issues suit would be—as 

Congress intended—the last and not the 

first resort. We vacate the judgment be- 

low and remand for the entry of such a 

limited stay. 

VACATED AND REMANDED. 

     
    O = KEYNUMBER SYSTEM    

Michael J. PAPRSKAR, 

Petitioner-Appellant, 

v. 

W. J. ESTELLE, Jr., Director, Texas 

Department of Corrections, 

Respondent-Appellee. 

No. 79-2170. 

United States Court of Appeals, 

Fifth Circuit. 

- March 3, 1980. 

Texas prisoner appealed from an order 

of the United States District Court for the 

Southern District of Texas, Woodrow B. 

Seals, J., dismissing his petition for a writ 

of habeas corpus as a successive petition 

“abuse of the writ.” The Court of Appeals, 

Frank M. Johnson, Jr., Circuit Judge, held 

that the second petition did not constitute 

an “abuse of the writ” where, at the time 

the district court considered petitioner’s 

earlier petition, the allegations raised in the 

second petition had not been finally acted 

upon by the state courts and therefore re- 

mained unexhausted and the issues raised 

in the initial petition were ready to proceed 

toward resolution. 

Vacated and remanded. 

Coleman, Chief Judge, filed a concur- 

ring opinion. 

1. Habeas Corpus @=7 

Second habeas corpus petition did not 

constitute “abuse of the writ” where, at the 

  

time the district court considered petition- 

er’s earlier petition, allegations raised in 

second petition had not been finally acted 

upon by state courts and therefore re- 

mained unexhausted and issues raised in 

initial petition were ready to proceed to- 

ward resolution. Rules Governing Section 

2254 Cases, Rule 9(b), 28 U.S.C.A. following 

section 2254. 

2. Habeas Corpus &=50 

In order to prevail on laches claim in 

habeas corpus case, respondent must make 

particularized showing of prejudice. Rules 

Governing Section 2254 Cases, Rule 9(a), 28 

U.S.C.A. following section 2254. 

Michael Anthony Maness, Houston, Tex., 

for petitioner-appellant. 

Douglas M. Becker, Asst. Atty. Gen., Aus- 

tin, Tex., for respondent-appellee. 

Appeal from the United States District 

Court for the Southern District of Texas. 

Before COLEMAN, Chief Judge, FRANK 

M. JOHNSON, Jr., and POLITZ, Circuit 

Judges. 

FRANK M. JOHNSON, Jr, Circuit 

Judge: 

On November 16, 1978, the United States 

District Court for the Southern District of 

Texas dismissed petitioner Michael J. 

Paprskar’s second federal habeas corpus pe- 

tition as a successive petition “abuse of the 

writ”. The district court erred in making 

that determination. Accordingly, we va- 

cate the judgment below and remand to the 

district court for further consideration of 

Paprskar’s petition. 

This appeal marks Michael Paprskar’s 

second appearance in this Court challenging 

his Texas conviction for murder or aspects 

of his confinement in the Texas penal sys- 

    

   
    
    

   

   
    
   

   

   

    

    

      

    

                          

    
   
   

   
   
   

   

  

   

  

   

      

   

    

  

   
    

   

  

    

    

    
   

     

  

    

  

    

   

   

  

    



  

1004 612 FEDERAL REPORTER, 2d SERIES 

tem.! In his initial Section 2254 petition. 
filed in Deemer TO7H, petitioner alleged 
that state incarcerating authorities had un- 
constitutionally withheld credit for ‘good. 
time’ on thirty- -nine months of pre- convic- 
tion detention.” "ATthough the district court 
granted Paprskar’s petition, this Court ulti- 
mately reversed. Paprskar v. Estelle, 566 

- F.2d 1277, 1281 (5th Cir.), cert. denied, 439 
U.S. 843, 99 S.Ct. 136, 58 L..Ed.2d 142 (1978). 

Paprskar and his family retained an at- 
torney to replace the lawyer who had repre- 
sented petitioner since his arrest in 1970. 
Over a period of time, however, the re- 
tained counsel failed to seek post-conviction 
relief in the state courts. In the meantime, 
Paprskar proceeded pro se on his first Sec- 
tion 2254 petition? and the federal district 
court appointed Attorney Maness, who rep- 
resents Paprskar here, as counsel for peti- 
tioner in that action. Finally, in March, 
1976, Paprskar’s retained lawyer filed a 
state post-conviction action challenging pe- 
titioner’s conviction. The state courts did 
not dispose of the matter until November, 
1976. Even this belated action by the re- 
tained counsel, however, was insufficient in 
that, directly contrary to Paprskar’s wishes, 

1. Paprskar was arrested in January, 1970, and 
charged with three murders. In June of that 
year he was tried and convicted in the state 
courts for one of the murders and was sen- 
tenced to die in the electric chair. His appeal 
to the Texas Court of Criminal Appeals was 
successful and the conviction was reversed on 
the ground that evidence used to convict Papr- 
skar was the fruit of an unreasonable search 
and seizure. Paprskar v. State, 484 S.W.2d 731 - 
(Tex.Cr.App.1972). 

Following the state court’s reversal of Papr- 
skar’s conviction, the Texas authorities charged 
him with the remaining two murders and 
dropped charges concerning the murder for 
which he was initially convicted. On April 6, 
1973, Paprskar pleaded guilty to the murders 
and was sentenced to two concurrent twenty- 
year sentences running from January 20, 1970, 
the date of the murders. Paprskar did not 
directly attack the convictions in the Texas 
courts. See Paprskar v. Estelle, 566 F.2d 1277, 
1278-79 (5th Cir.), cert. denied, 439 U.S. 843, 
99 S.Ct. 136, 58 L.Ed.2d 142 (1978). 

2. See note 1, supra. 

3. Paprskar’s pro se application to the state 
courts was denied without hearing in 1974, 

that lawyer raised no claims of the ineffec- 
tive assistance of petitioner's original attor- 
ney. Thereafter, Attorney Maness filed a 
state post-conviction action raising the inef- 
fective assistance allegations. 

As these attempts at relief proceeded to- 
ward exhaustion in the Texas state court 
system, the federal district court granted 
Paprskar's “good time” petition. As noted 
above, however, this Court reversed and the 
Supreme Court ultimately denied certiorari. 

After frustration of his attempt for good 
time relief, Paprskar on April 19, 1978, filed 

To se > his second habeas corpus petition in 
the Tederal courts, the petition under con- 
sideration here. Unlike the earlier habeas 
corpus application, the second petition omit- 
ted any reference to conditions of Papr- 
skar’s confinement and instead challenged 
petitioner’s conviction.® 

Respondent filed a motion to dismiss the 
second application, asserting that it was a 
“successive petition” within the purview of 
Rule 9(b) of the Rules Governing Section 
2254 Cases in the United States District 
Courts (28 U.S.C. following § 2254) and 
constituted an “abuse of the writ” because 

thereby exhausting state remedies on his “good 
time” claim. 

4. The claim was exhausted in the Texas courts 
in October, 1977. 

5. Attorney Maness had earlier agreed to file the 
second federal petition. Because of delays no 
doubt at least partially the result of the time 
spent in preparation of a petition for certiorari 
to the United States Supreme Court in the 
“good time” case, Paprskar filed the second 
Section 2254 petition pro se. 

The second habeas corpus petition raised 
claims that: 

(1) petitioner received ineffective assistance 
of counsel in derogation of his Sixth Amend- 
ment rights; 
(2) Paprskar involuntarily entered a plea of 
guilty because his mental capacity was im- 
paired due to drugs administered to him by 
his jailers; 

(3) he was denied his Sixth Amendment right 
to speedy trial; and 
(4) he was denied due process under the 
Fourteenth Amendment by the trial court’s 
denial of his motion for discovery of a tape 
recording containing exculpatory material. 

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PAPRSKAR v. ESTELLE 1005 
Cite as 612 F.2d 1003 (1980) 

Paprskar “should have submitted in his ini- 
tial federal habeas corpus application [the 

“good time” case] all of the issues” raised in fo ClerTninG whether given ORT aeE consti-} 

J 4 tutes abuse of the writ, however, reference § 
the second petition.” The district court di- 
rected Paprskar to explain the reason the | 

contentions raised in the second petition | 

had not been asserted in the first applica- | 
The case was then referred to the § 

recom- § 

tion.8 

United States Magistrate who 

mended that the district court dismiss the | 

petition as “a classic case of abuse of the | 

writ.” ? The district court followed that 
recommendation.!? 

IL. 

The district court dismissed Paprskar’s 

second petition under the authority of the 

prohibition of Rule 9(b) against abuse of the 

writ. For that decision, respondent invites 

the imprimatur of this Court. We decline 

the invitation. 

Rule 9(b) provides that: 

A second or successive petition may be 

dismissed if the judge finds that it fails 

to allege new or different grounds for 

relief and the prior determination was on 

the merits or, if new and different 

grounds are alleged, the judge finds that 

the failure of the petitioner to assert 

7. The motion to dismiss the petition failed to 

mention that the courts of Texas did not com- 

plete action on the contentions raised in the 

second federal habeas petition until after the 

district court’s final judgment in the “good 

time” case. Nor did the motion to dismiss 

refer to the fact .that a large portion of the 

delay from which respondent alleged prejudice 

arose resulted from Paprskar’s efforts to ex- 

haust state remedies. 

8. Paprskar’s explanation (prepared without 

benefit of counsel) in essence asserted ineffec- 

tive assistance by all three of his attorneys. He 

failed to state that the claims could not have 

been raised earlier because his state remedies 

remained unexhausted. 

9. The Magistrate’s “memorandum and recom- 

mendation” similarly omitted any reference to 

the jroblem of exhaustion of state remedies. 

10. Following the district court’s dismissal of 

the petition, Mr. Maness, by now aware of the 

proceeding described above, timely filed notice 

of appeal. Later, Attorney Maness filed an 

application for certificate of probable cause 

and for leave to appeal in forma pauperis in 

which he attempted to explain that the exhaus- 

  

those grounds in a prior petition consti- 

tuted an abuse of the writ. wh 
4 y 

   
to pre-Rule 9 case law is necessary. Rule | 

§ 9(b) did not in any way change the stan- i
.
 

dards that govern habeas corpus petitioners } 

in the federal courts. 

restates principles that had previously been § 

judicially developed. 

The Supreme Court in Sanders v. United 

States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 

L.Ed.2d 148 (1963) announced that “full 

consideration of the merits [of a habeas 

corpus petitioner’s allegations] can be 

avoided only if there has been an abuse of 

the writ "As enacted by Con- 

gress, Rule 9(b) codifies the standard of 

Sanders. Advisory Committee Note, Rule 

9, Rules Governing Section 2254 Cases in 

the United States District Courts (28 U.S.C. 

following § 2254); H.R.Rep.No.1471, 94th 

Cong., 2d Sess. 5-6, reprinted in [1976] U.S. 

Code Cong. & Admin.News, pp. 2478, 2482; 

Galtieri v. Wainwright, 582 F.2d 348, 356 & 

n.18 (5th Cir. 1978) (en banc); 17 C. Wright, 

A. Miller & E. Cooper, Federal Practice and 

Procedure, § 4267 at 690-91 (1978).11 Whe 

tion requirement had precluded Pa 

raising the constitutional challenges to his con- 

viction in the “good time’ habeas corpus pro- 

ceeding. Nevertheless, again on the recom- 

mendation of the Magistrate, the district court 

denied a certificate of probable cause and leave 

to proceed in forma pauperis. This Court, 

however, subsequently granted Paprskar’s ap- 

plication for a certificate of probable cause and 

leave to appeal in forma pauperis. 

11. Although the decision below was based on 

Rule 9(b) and the parties here have argued only 

whether that statute required dismissal of 

Paprskar’s second Section 2254 petition, it is 

interesting to note 28 U.S.C. § 2244(b). Sec- 

tion 2244(b) provides in relevant part that: 

a subsequent application for a writ of habeas 

corpus need not be entertained by 

a court of the United States or a justice or 

judge of the United States unless the applica- 

tion alleges and is predicated on a factual or 

other ground not adjudicated on the hearing 

of the earlier application for the writ, and 

Rather, the Rule § H 

unless the court, justice, or judge is satisfied 

that the applicant has not on the earlier ap- 

plication deliberately withheld the newly as- 

serted ground or otherwise abused the writ. 

  

      
       

  

   
   

  

   

   

  

        

      

    
        

      

   
   

  

   
   

          

   
   

    
       

   
   
    
   
    

   
   
       

  

   
   
    
   

   

  

   
   
   

  

   
   
   
    
    
   

 



612 FEDERAL REPORTER, 2d SERIES 

we examine the conduct of petitioner 12 in 
light of the equities, see Sanders, supra, 373 

U.S. at 17, 83 S.Ct. at 1078, we clearly 

cannot conclude that this petition consti- 

tutes “needless piecemeal litigation” or that 

its “purpose is to vex, harass, or delay.” Id. 

at 18, 83 S.Ct. at 1078. There was here no 

of the writ of habeas corpus. 

The Sanders Court spoke of a circum- 

stance in which abuse of the writ is present. 

“a prisonet dollberalaliidibals one 
of two grounds for federal collateral relief 

at the time of filing his first application 

he may be deemed to have waived 

his right to a hearing on a second applica- 

tion presenting the withheld ground.” 373 

U.S. at 18, 83 S.Ct. at 1078 (emphasis add- 

ed). However, from Sanders’ incorporation 

of the standards of Townsend v. Sain, 372 

U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) 

and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 

9 L.Ed.2d 837, see 373 U.S. at 18, 83 S.Ct. at 

1078 (1963), it is clear th: ; i 

be an abuse of. the writ only if due to 

“inexcusable neglect,” Townsend, supra, 372 

U.S. at : .Ct. at 759, or because of 

“‘an intentional relinquishment or aban- 

donment of a known right or privilege,’ ” 

Fay, supra, 372 U.S. at 439, 83 S.Ct. at 849, 

  

quoting Johnson v. Zerbst, 304 U.S. 458, 

A64, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 
(1938). See 28 U.S.C. § 2244(b); Turnbow 

v. Beto, 464 F.2d 527, 528 (5th Cir. 1972); 
Galtieri, supra, 582 F.2d at 368 (Goldberg, 

J., dissenting). 

The Sanders Court recognized that 

“I[nJothing in the traditions of habeas cor- 

pus requires the federal courts to tolerate 

needless piecemeal litigation, [or] to enter- 

28 U.S.C. § 2244(b) (emphasis added). Like 

Rule 9(b) the provision has also been interpret- 

ed as a codification of the Sanders rule. 17 

Wright, Miller & Cooper, supra, § 4267 at 689 

90; Statute Note, 45 Tex.L.Rev. 592, 593 

(1967), see Historical and Revision Notes, 28 

U.S.C. § 2244. Nevertheless, it preceded by ten 

years the enactment of Rule 9(b). 

12. In the present case, respondent met the bur- 

den placed upon it by Sanders that it plead 

abuse of the writ. See 373 U.S. at 10-11, 83 

S.Ct. at 1074-1075. Thereafter, under Price v. 

Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 

1063, 92 L.Ed. 1356 (1948), Paprskar was given 

tain collateral proceedings whose only pur- 

pose is to vex, harass, or delay.” 373 U.S. 

at 18, 83 S.Ct. at 1078 (emphasis added). 

The Sanders ruling was based on the princi- | 

ple “that ‘habeas corpus has traditionally 

been regarded as governed by equitable 

principles.” United States ex rel. Smith v. 

Baldi, 344 U.S. 561, 573, 73 S.Ct. 391, 397, 97 

L.Ed. 549 (dissenting opinion). Among 

them is the principle that a suitor’s conduct 

in relation to the matter at hand may disen- 

title him to the relief he seeks.” Sanders, 

supra, 373 U.S. at 17, 83 S.Ct. at 1078. 

[1] In the present case there was nei 

ther inexcusabl eglect nor deliberate 

A col for relief. See 
Turnbow-v:~Beto, supra-—At-thé time the 

district court considered Paprskar’s “good 

time” case, the allegations raised in his 

second federal petition, see note 6, supra, 

had not yet been finally acted on by the 

courts of Texas and therefore remained 

unexhausted. The “good time” case, how- 

ever, was ready to proceed toward resolu- 

tion. As stated in our en banc decision in 

Galtieri, supra, 582 F.2d at 351, “[t]he rule 

in this circuit is that a federal district court 

generally must dismiss, without prejudice, a 

state prisoner’s petition for a writ of habeas 

corpus that contains a mixture of exhausted 

and unexhausted claims.” Given that rule, 

we certainly can fault neither the district 

court for proceeding with the “good time” 

litigation nor Mr. Maness for not derailing 

resolution of claims concerning the condi- 

tions of petitioner’s confinement until ex- 

haustion in the state courts of challenges 

wholly unrelated to the facts and law in- 

volved in the “good time” case. The simple 

the opportunity (and the burden) of “answering 

that allegation and of proving that he has not 

abused the writ.” See Advisory Committee 

Note, Rule 9(b). Paprskar responded inade- 

quately to the opportunity. See note 8, supra. 

However, when Mr. Maness learned of the dif- 

ficulties Paprskar faced, he apprised the Court 

of the actual circumstances involved. See note 

- 10, supra. Because the proper response to re- 

spor:ddent’s motion to dismiss was ultimately 

raised and because equities govern our consid- 

eration of the case, we examine the circum- 

stances in the context of the response of Mr. 

Maness. 

  

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fact is that the “i 

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extraordinary ap! 

Wainwright, 48% 

1973). Clearly, it 

here, there was ' 

for failure to rai: 

first petition. [' 

266, 291, 68 S.Ct 

(1948). Responder 

search revealed! 

abuse of the writ 

es involved her: 

Respondent ar; 

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F.2d at 357, req 

the writ here. 

inapposite. 

First, as no.¢! 

change the judi 

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the goal of one 

courts, of itself, 

of abuse here. 

view the Galti 

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filed his second 

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PAPRSKAR v. ESTELLE      1007 
Cite as 612 F.2d 1003 (1980) 

fact is that the “good time” case was ripe 

for adjudication and the claims challenging 
nderlying conviction were not. “The 

‘abuse of the Writ’ doctrine is of rare and 

extraordinary application.” Simpson v. 

Wainwright, 488 ¥.2d 494, 495 (5th Cir. 

1973). Clearly, it is inapplicable where, as 

here, there was “some justifiable reason” 

for failure to raise the contentions in the 

first petition. Price v. Johnston, 334 U.S. 

6, 291, 68 S.Ct. 1049, 1062, 92 L.Ed. 1356 

(1948). Respondent cites no case, nor has a 

search revealed any, that indicates that 

abuse of the writ exists in the circumstanc- 

es involved here. 

Respondent argues that the forceful reit- 

eration in Galtieri of the goal of “one feder- 

al proceeding embracing all claims,” 582 

F.2d at 357, requires us to find an abuse of 

the writ here. The argument, however, is 

inapposite. 

First, as noted above, Rule 9(b) did not 

change the judicial interpretation of the 

abuse of the writ standard and no cases 
evidence that abuse of the writ occurred 

here. Even Galtieri’s forceful statement of 

the goal of one habeas trip to the federal 
courts, of itself, would not require a finding 

of abuse here. Second, even if we were to 

view the Galtieri language as justifying a 

disrpissal of Paprskar’s second petition, we 

must recognize that at the time petitioner 

filed his second Section 2254 petition, Galti- 

eri had not yet been decided by this Court 

en banc. Indeed, the magistrate’s recom- 

mendation of dismissal, accepted by the dis- 

trict court, that stated that Paprskar’s ac- 

tions constituted a “classic abuse of the 

writ” preceded by a few days the announce- 

ment of Galtieri. Last, although Galtieri 

recognizes the role of Rule 9(b) in achieving 

“the goal,” the Galtieri court explicitly rec- 

13. In Jones, the Court noted that “to the best of 

counsel's knowledge, [the unexhausted claims] 

will not be raised in the future[,]” 608 F.2d at 

183, implying that an intention to raise the 

claims later might alter the Court's analysis. 

However, the Third Circuit has held that: 

It is no bar to federal adjudication of the 

"merits of the present claim that a separate 

claim for relief on a different ground is pend- 

ing in a state court. 

ognized that a petitioner could avoid Rule 

9(b) dismissal of a second petition if the 

second petition asserts claims that were. 

unexhausted at the time the first petition 

was brought. 582 I'.2d at 358 59. 

The circumstances involved here are not 

those of Jones v. Wainwright, 608 F.2d 180 

(5th Cir. 1979), in which this Court had an 

opportunity to determine whether the possi- 

bility of a second habeas corpus petition 

alleging claims unexhausted at the time the 

first petition was brought would require 

that the first petition be dismissed without 

prejudice.’ There, a dismissal would not 

“bar the federal courthouse door” to any of 

the claims of the petitioner. See Galtier, 

supra, 582 F.2d at 355. Conversely, in the 

present case, if the district court decision is 

allowed to stand, Paprskar will be forever 

foreclosed from a federal forum in which to 

assert constitutional challenges to his con- 

viction. Equity does not compel--indeed it 

cannot tolerate—such a result. 

[2] Although we vacate the order of the 

district court, we cannot at this juncture 

mandate that the court reach the merits of 

Paprskar’s petition. In its motion to dis- 

miss the petition, respondent alleged preju- 

dice resulting from petitioner's delay in 

bringing the second petition. See note 7, 

supra. Rule 9(a) offers a laches defense to 

delayed petitions. In Galtieri, the Court 

specifically contemplated Rule 9(a) as the 

appropriate tool to help prevent unneces- 

sary successive petitions asserting claims 

previously unexhausted. 582 F.2d at 358— 

59; see id. at 374 & n.12 (Goldberg, J. 

dissenting). The district court on remand 

should consider respondent’s Rule 9(a) de= 

fense. We note, however, that “‘fdlelay 

alone is no bar to federal habeas relief 

We recognize, as did the district court, the 

desirability, where circumstances permit, of 

including all grounds for habeas corpus in a 

single petition. But we think this does not 

outweigh the legitimate interest of 

in obtaining prompt federal! consideration of 

an adc uate and properly asserted ground for 

relief (hat has been urged unsuccessfully be- 

fore the state courts. 

United States ex rel. Boyance v. Myers, 372 

F.2d 111, 112 (3d Cir. 1967) (citation omitted). 

+ prisoner 

        

   

  

   
   

    

   

    

    

    

   

  

   
   
      

    

        

    

   

  

   

  

    

      

    

  

    

  

   

      

   

  

    
   

      

   

  

    

    

     



    

1008 
- 

rr” 
. ksi United States ex rel. Barks- 

dale v. Blackburn, 610 F.2d 253, 260 (5th 

Cir: 1980) [quoting Hamilton v. Watkins, 

* 436 F.2d 1323, 1326 (5th Cir. 1970). In 

order to prevail on a laches claim respon- 

dent must make a particularized showing of 

prejudice. See Jackson v. Estelle, h70 F.2d 

546, 547 (5th Cir. 1978). 

VACATED and REMANDED. 

COLEMAN, Chief Judge, concurring. 

1 agree that in the present state of habe- 

as corpus law the judgment of the District 

Court must be vacated and remanded. 

Nevertheless, I must make a few comments 

on this case. 

On January 20, 1970, ten years ago, 

Paprskar and a companion killed three peo- 

ple because Paprskar thought he had been 

sold “bad heroin”. One of those killed was 

a four year old child. The father of the 

child had just been killed when the malefac- 

tors unexpectedly discovered the presence 

of the child, in an automobile parked at the 

scene. They discussed the matter and 

agreed that the child “had to be killed”, 

which was done forthwith. A more deliber- 

ate, cold-blooded murder of an inoffensive 

child who hardly could have comprehended 

the danger he was in, or why he was in it, 

would be hard to imagine. 

For the murder of the child, Paprskar 

was convicted and assessed the death penal- 

ty. This, however, was reversed because 

certain items seized as the result of a war-. 

rantless search had not been suppressed, 

Paprskar v. State, 434 S.W.2d 731 (Tex.Cr. 

App., 1972). Paprskar was never again 

tried for the murder of the child. Instead, 

represented by retained counsel, he was al- 

lowed to plead guilty to the indictments 

which charged the murder of the other two 

individuals and received concurrent sen- 

tences of twenty years. As a matter of 

ultimate fact, Paprskar was sentenced to 

twenty years for three murders. 

He has been in prison for ten years. Af- 

ter unsuccessfully filing several other peti- 

tions for habeas corpus he again seeks to 

invoke the Constitution, on grounds never 

before suggested, to void his pleas of guilty 

and to avoid an unusually mild sentence. 

612 FEDERAL REPORTER, 2d SERIES 

Of course, the Constitution is supreme 

and must be obeyed. I do not quarrel with 

that. I do find it to be painfully incongru- 

ous that he whe defies all civilized notions 

of due process in the summary theft of a 

human life is allowed, years after the event 

and years after his conviction has become 

final, to raise all kinds of constitutional 

claims which, if they existed, could have 

been raised at trial or, at least, soon there- 

after. 

The fault, of course, is not with the Great 

Writ. It lies in the manner in which it is 

allowed belatedly to be invoked. While 

Congress has commendably made some ef- 

fort to limit jurisdiction for the entertain- 

ment of these eleventh hour attacks on 

state court convictions it is readily apparent 

to one regularly dealing with the subject 

that those efforts have not met with much 

success. 

Very few belated applications for habeas 

corpus claim that the petitioner is innocent. 

The fundamental purpose of the Writ has 

been distorted. The confidence of the gen- 

eral public in the ability of state courts to 

bring criminals to justice has been eroded. 

The deterrent effect of law prohibiting 

criminal conduct has been seriously dam- 

aged. The decisions say that the Writ may 

not be used as a second appeal, but from 

experience the outlaws know better. In-: 

stead of being a bulwark of freedom for the 

citizen it has been allowed to become a last, 

and too often a sure, refuge for those who 

have respected neither the law nor the Con- 

stitution. 

I would not limit the Writ, if I could, but 

I most assuredly would limit its application 

in situations such as we encounter in this 

case. 

As I do here, I must follow the law as it 

exists. I do not understand, however, that 

I am not allowed to mention serious defects 

in the law. 

In this case it is a fact that Paprskar did 

plead guilty in two cases. On remand, I 

would like to direct the attention of the 

District Court (if that is necessary) to the 

following language in Tollett v. Henderson, 

411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 

L.Ed.2d 235 (1973): 

a
 

i
E
 

  

  
fim 
A
 

  

“[A] guilty plea repr 
the chain of events whi. 

in the criminal process. 
defendant has solemnly 
court that he is in & 
offense with which he i 

nol thereafter vuie in 
relating to the deprive: 

tional rights that occo: 

entry of the guilty ple: 
attack the voluntary and 

acter of the guilty plea 

the advice he received | 

not within the standard: 
trilogy].” 

m
s
 

mr a 
\1s or
 

UNITED STATES oo 
Plaintiff-Appe 

y. 

G. Cecil HARTLEY, Def: 

No. 79-359" 

Summary Cale: 

United States Court 

Fifth Circuit 

March 3, 19% 

Defendant appealed 
double jeopardy ciaim hy i} 
District Court for the Mi: 
Florida, at Tampa, George | 
Court of Appeals held th. 
determination by Defense I 
contractor’s criminal indict 
quate evidence on which t. 
of fraud, so as to warrant t 
pending contractor from - 
the Department, did not 
ground of res judicata or coli 
trial under criminal indict 
fendant’s double jeopardy + 
be infringed either by his 1 
guilty, punishment, for the el, 
indictment alleging that de; 

612 F.2d—22 

 



itution is supreme 
19 not quarrel with 
painfully incongru- 
Al civilized notions 
unmary theft of a 
irs after the event 
iction has become 
of constitutional 

vizted, could have 
least, soon there- 

wl with the Great 
quer in which it is 
invoked. While 

ly made some ef- 
for the entertain- 
hour attacks on 

3 readily apparent 

vith the subject 
i met with much 

tions for habeas 

inner is innocent. 
of the Writ has 

uce of the gen- 
F state courts to 
fas been eroded. 
flaw prohibiting 

seriously dam- 

at the Writ may 

ppeal, but from 
now better. In- 
"freedom for the 

0 become a last, ¢ 

tor those who 

iw nor the Con- 

it, if T could, but 
‘LU its application 
wounter in this 

however, that 
1 serious defects 

“aprskar did 

On remand, 1 

ttention of the 

essary) to the 

{t v. Henderson, 

JOE, 1608, 86 

      
  

UNITED STATES v. HARTLEY        1009 
Cite as 612 F.2d 1009 (1980) 

“[A] guilty plea represents a break in 

the chain of events which has preceded it 

in the criminal process. When a criminal 

defendant has solemnly admitted in open 

court that he is in fact guilty of the 

offense with which he is charged, he may 

not thereafter raise independent claims 

relating to the deprivation of constitu- 

tional rights that occurred prior to the 

entry of the guilty plea. He may only 

attack the voluntary and intelligent char- 

acter of the guilty plea by showing that 

the advice he received from counsel was 

not within the standards set forth in [the 

trilogy.” 

     

    
   
[) £ KEY NUMBER SYSTEM 

T 

UNITED STATES of America, 

Plaintiff-Appellee, 

Vv. 

G. Cecil HARTLEY, Defendant-Appellant. 

No. 79-3597 

Summary Calendar.* 

United States Court of Appeals, 

Fifth Circuit. 

March 3, 1980. 

Defendant appealed from denial of 

double jeopardy claim by the United States 

District Court for the Middle District of 

Florida, at Tampa, George C. Carr, J. The 

Court of Appeals held that: (1) summary 

determination by Defense Department that 

contractor’s criminal indictment was ade- 

quate evidence on which to base a suspicion 

of fraud, so as to warrant temporarily sus- 

pending contractor from contracting with 

the Department, did not preclude, on 

ground of res judicata or collateral estoppel, 

trial under eriminal indictment, and (2) de- 

fendant’s double jeopardy rights would not 

be infringed either by his trial or, if found 

guilty, punishment for the charges stated in 

indictment alleging that defendant 2:4 oth- 

ers defrauded the Government by selling it 

shrimp which did not conform to contract 
specifications. 

Affirmed. 

1. Judgment &=634 

Res judicata applies only when a court 
of competent jurisdiction has rendered a 

final judgment on the merits of an action. 

2. Judgment ¢=T713(1) 

Collateral estoppel applies when an is- 
sue of ultimate fact has once been deter- 
mined by valid and final judgment. 

3. Judgment &=648 

Summary determination by Defense 
Department that contractor’s criminal in- 
dictment was adequate evidence on which 
to base a suspicion of fraud, so as to war- 
rant temporarily suspending contractor 

from contracting with the Department, did 
not preclude, on grounds of res judicata or 
collateral estoppel, trial under the criminal 
indictment. 

4. Criminal Law &=161 

Double jeopardy clause is a guarantee 
against being put twice to trial for the 
same offense and against being subjected to 
double punishment. U.S.C.A.Const. 
Amend. 5. 

5. Criminal Law &=163 

Double jeopardy principles did not pre- 
clude trial of officer of a government con- 

tractor under criminal indictment alleging 
that defendant and others defrauded the 

Government by selling it shrimp which did 

not conform to contract specifications, 
though the Defense Department had tem- 
porarily suspended defendant from con- 

tracting with the Department on ground 

that he was suspected of fraud on adequate 
evidence, since the summary suspension 

procedure did not involve a trial nor was 

the suspension in purpose or in fact a pun- 
ishment of defendant within scope of the 
double jeopardy clause. U.S.C.A.Const. 
Amend. 5. 

Arnold D. Levine, Tampa, Fla., for de- 

fendant-appellant. 

* Fed.R.App.P. 34(a);, 5th Cir. R. 18. 

612 F.2d—22 

   

  

    

            

   

  

   
    

    

    

            

   
    

  

   
    
   
   

                

   

    

   

    

     

     
   

    

   
    
    

      

   

  

   
   

  

   

   
    
   

     

      

     

     



  

S
e
 
A 
A
E
 
a
 

TT
 

  

  

  

    
  

671 FEDERAL REPORTER, 2d SERIES 

Carl Wayne VAUGHAN, 

Petitioner-Appellant, 

V. 

W. J. ESTELLE, Jr., Director, Texas 

Department of Corrections, 

Respondent-Appellee. 

No. 81-1302 

Summary Calendar. 

United States Court of Appeals, 
Fifth Circuit. 

March 25, 1982. 

The United States District Court for 

the Northern District of Texas, Jerry Buch- 

meyer, J., adopted recommendations of 

magistrate and entered judgment dismiss- 

ing petition for writ of habeas corpus, and 

appeal was taken. The Court of Appeals, 

Politz, Circuit Judge, held that petitioner’s 

filing of second petition for writ of habeas 

corpus could not be found to have been 

abuse of the writ where petitioner was not 

permitted reasonable opportunity to offer 

justification for his failure to raise in earli- 

er application contentions made in his 

second petition. 

Vacated and remanded. 

1. Habeas Corpus 7 

Inexcusable neglect or intentional 

withholding of claim of errop constitutes 

abuse of writ of ha corpus, but if peti- 

  

joner’s unawareness of facts which might 
support habeas application is excusable, or 

if his failure to understand legal signifi- 

cance of known facts is justifiable, subse- 

quent filing of petition is not abuse of the 

writ. Rules Governing § 2254 Cases, Rule 

9(b), 28 U.S.C.A. foll. § 2254. 

1. The State of Texas maintains that the present 

petition is Vaughan’s third federal habeas ap- 

plication. The record refers to only one other, 

proceedings in the Northern District of Texas 

bearing docket number CA-3-78-0959-F, com- 

menced August 1, 1978 and denied June 25, 

2. Habeas Corpus &=85.2(1) 

In resolving abuse of writ of habeas 

corpus question, once government has 

raised issue, or it has been raised sua 

sponte, burden then shifts to petitioner to 

prove that he has not abused the writ, and 

he is to be afforded reasonable opportunity 

- to traverse suggestion of abuse. Rules 

Governing § 2254 Cases, Rule 9(b), 28 U.S. 

C.A. foll. § 2254. 

3. Habeas Corpus &=7 

Petitioner's filing of second petition for 

writ of habeas corpus could not be found to 
have been abuse of the writ where petition- 

er was not permitted reasonable opportuni- 

ty to offer justification for his failure to - 

raise in earlier application contentions made 

in his second petition. Rules Governing 

§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll. 

§ 2254. : 

Carl Wayne Vaughan, pro se. 

Brenda K. Smith, Asst. Atty. Gen., Aus- 

tin, Tex., for respondent-appellee. 

Appeal from the United States District 

Court for the Northern District of Texas. 

Before BROWN, POLITZ and WIL- 

LIAMS, Circuit Judges. 

POLITZ, Circuit Judge: 

Carl Wayne Vaughan appeals the dis- 

missal of his second ! federal habeas corpus 

petition. The district court adopted the 

recommendations of the magistrate and dis- 

missed the petition as an abuse of the writ, 

pursuant to the authority of Rule 9(b) of 

the Rules Governing Section 2254 Cases in 

the United States District Courts.? Finding 
that the record before us does not support 

the conclusion of abuse, we vacate and re- 

mand for further proceedings. 

1979. This discrepancy is not determinative in 

our resolution. 

Rule 9(b) provides that: 

A second or successive petition may be dis- 

missed if the judge finds that it fails to allege 

new or different grounds for relief and the  



85.2(1) 

e of writ of habeas 

e government has 

as been raised sua 

hifts to petitioner to 

abused the writ, and 
tasonable opportunity 

n of abuse. Rules 

ks, Rule 9(b), 28 U.S. 

7 

of second petition for 

ould not be found to 

writ where petition: 

reasonable opportuni- 

on for his failure to 

Lion contentions made 

. Rules Governing 

b), 28 U.S.C.A. foll. 

hn, pro se. 

Asst. Atty. Gen., Aus- 

bnt-appellee. 

Inited States District 

rn District of Texas. 

POLITZ and WIL- 

bs. 

dge: 

han appeals the dis- 

federal habeas corpus 

t court adopted the 

he magistrate and dis- 

an abuse of the writ, 

ority of Rule 9(b) of 

Section 2254 Cases in 

trict Courts.? Finding 

e us does not support 

se, we vacate and re- 

ceedings. 

'y is not determinative in 

hat: 

sive petition may be dis- 

finds that it fails to allege 

ounds for relief and the 

  

VAUGHAN v. ESTELLE | 153 
Cite as 671 F.2d 152 (1882) 

Vaughan pleaded guilty in Texas state 
court to five counts of aggravated robbery 
and received concurrent sentences of 50, 50, 
75, 75 and 90 years. The convictions were 
affirmed by the Texas Court of Criminal 
Appeals, and state habeas relief was denied. 
Vaughan’s prior section 2254 petition was 
filed in August 1978 and denied in June 
1979. The pending 2254 petition was filed 

in March 1981, alleging multiple errors in 
the sentencing phase of the trig]. Vaughan 
attempts to explain his failure to raise 
any of these grounds in the earlier habeas 
application by noting that he did not have 
then the assistance of counsel 

The magistrate did not hold an evidentia- 
ry hearing, sought no further explanation 
from Vaughan, characterized Vaughan’s as- 
sertion of lack of knowledge of his legal 
rights as “self-serving,” and recommended 
that the application be dismissed as an 
abuse of the writ. Vaughan objected to the 
magistrate’s recommendation, and asked 
for a hearing to examine into the issue of 
abuse. The district court adopted the mag- 
istrate’s recommendation, without conduct- 
ing a hearing, and dismissed Vaughan’s ap- 
plication under Rule 9(b) as a successive 
petition. 

“Rule 9(b) codifies the seminal case of 
Sanders v. United States, 373 U.S. 1, 83 
S.Ct. 1068, 10 L.Ed.2d 148 (1963), with its 
guidelines concerning abuse of the writ.” 
Potts v. Zant, 638 F.2d 727, 739 (5th Cir. 
1981) (citations omitted). See Haley v. Es- 
telle, 632 F.2d 1273 (5th Cir. 1980). But, in 
this circuit, the “ ‘abuse of the Writ’ doc- 
trine is of rare and extraordinary applica- 

prior determination was on the merits or, if 
new and different grounds are alleged, the 
judge finds that the failure of the petitioner 
to assert those grounds in a prior petition 
constituted an abuse of the writ. 

- Vaughan asserts five errors: (1) denial of counsel at sentencing; (2) absence of convict- ing jurisdiction; (3) inflammatory prosecutorial remarks possibly prejudicial to the lengths of sentences and likelihood of probation; (4) deni- al of the assistance of adequate representation on appeal; and (5) improper jury instructions. 

4. Vaughan states in paragraph 13 of his present application that the errors assigned were not raised in his prior federal application 

tion.” Paprskar v. Estelle, 612 F.2d 1003, 
1007 (5th Cir.), cert. denied, 449 U.S. 885, 
101 S.Ct. 239, 66 L.Ed.2d 111 (1980) (citation 
omitted). See Hardwick v. Doolittle, 558 
F.2d 292 (5th Cir. 1977), cert. denied, 434 
U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 
(1978); Simpson v. Wainwright, 488 F.2d 
494 (5th Cir. 1973). The doctrine is applied 
narrowly because, under this rubric, full 
consideration of the merits of a new peti- 
tion is not necessary if the filing is found to 
be abusive. Our reluctance to invoke the 
rule, save in rare and extraordinary in- 
stances, was dramatized in Haley v. Estelle 
in which we noted that “The principle be- 
hind Rule 9(b) is to dismiss those petitions 
that constitute ‘needless piecemeal litiga- 
tion’ or whose ‘purpose is to vex, harass, or 
delay.’ ” 632 F.2d at 1275 (quoting Sanders 
v. United States, 373 U.S. at 18, 83 S.Ct. at 
1078). 

[1-3] Inexcusable neglect or intentional 
withholding of a claim of error constitutes 
an abuse of the writ. Paprskar. But if a 
petitioner’s unawareness of facts which 
might support a habeas application is excus- 
able, or if his failure to understand the 
legal significance of the known facts is jus- 
tifiable, the subsequent filing is not a 

Nussat the writ.’ In resolving the 
question, once the government has raised 
the issue, or it has been raised sua sponte, 
“the burden then shifts to the petitioner to 
prove that he has not abused it.” Mays v. 
Balkcom, 631 F.2d 48, 51 (5th Cir. 1980) (cit- 
ing Galtieri v. Wainwright, 582 F.2d 348 
(5th Cir. 1978) (en banc)). The applicant is 
to be afforded a reasonable opportunity to 
traverse the suggestion of abuse. Addition- 

because he “was not represented by Counsel 
and was therefore totally unaware of his legal 
rights to the extent petitioner was unable to 
ascert [sic] the above claims until now.” 

5. “The Supreme Court has stated that in a 
habeas corpus proceeding, the ‘primary pur- 
pose’ is to assure that no one is unjustly im- 
prisoned. Therefore, if a prisoner is unaware 
of the legal significance of relevant facts, it 
would be unreasonable to prohibit his attempt 
for judicial relief.” Haley v. Estelle, 632 F.2d at 
1275 (citing Price v. Johnston, 334 U.S. 266, 68 
S.Ct. 1049, 92 L.Ed. 1356 (1948)).   

      

   



  
  

  

    

154 

al written submissions may be adequate. 
In some instances, a hearing may be re- 
quired.® In the present case, Vaughan was 
not permitted a reasonable opportunity to 
offer justification for his failure to raise his 

contentions in the earlier habeas applica- 
tion,” and the inquiry was not addressed 
adequately. 

Following further consideration on re- 

mand, it may be determined that Vaughan’s 
allegations should have been raised in his 

prior habeas application. That determina- 
tion, however, cannot be made on the basis 

of the record now before us. If indeed 
Vaughan has described accurately his rea- 

son for not articulating his complaints in 

the prior federal writ application, an issue 
we cannot and do not now decide, then he 

“should not be penalized because his inexpe- 

rience in jurisprudence left him unaware of 

claims he had not considered at the time of 
his first application for habeas corpus.” 
Haley v. Estelle, 632 F.2d at 1276. In that 

instance, his application should be examined 

on the merits. 

VACATED and REMANDED. 

W 
° £ KEY NUMBER SYSTEM 

7 

RICHLAND PLANTATION COMPANY, 
Plaintiff-Appellee, 

Vv. 

JUSTISS-MEARS OIL COMPANY, INC, 
Defendant-Appellant. 

No. 81-1366 
Summary Calendar. 

United States Court of Appeals, 

Fifth Circuit. 

March 25, 1982. 

Rehearing Denied April 20, 1982. 

Lessor under mineral lease brought di- 
versity action against lessee seeking addi- 

6. When “a substantial conflict exists, it may be 

necessary to hold a hearing to determine the 

actual facts.” Haley v. Estelle, 632 F.2d at 

1276. 

671 FEDERAL REPORTER, 2d SERIES 

tional royalty payments allegedly due unde, 

overriding royalty agreement executed 
simultaneously with primary lease. The 

United States District Court for the North. 

ern District of Texas, Mary Lou Robinson, 
J., rendered judgment for lessor, and lessee 

appealed. The Court of Appeals, Tate, Cjp. 

cuit Judge, held that: (1) agreement wag 

ambiguous as to whether proportionate roy. 

alty clause of lease applied to the overriding 

royalty agreement, and (2) substantial evi. 

dence supported finding that intent of over. 

riding royalty be based on entire minera] 

production and not just the one-half miner. 

al interest owned by lessor. 

Affirmed. 

1. Contracts &=143(2) 

Under Texas law, a contract is “ambig- 

uous” when, after applying established 

rules of construction, it is reasonably sus- 

ceptible to more than one meaning. 

See publication Words and Phrases 
for other judicial constructions and 
definitions. ; 

2. Contracts «=176(2) 

Under Texas law, determination of 

whether a contract is ambiguous in order to 

permit extrinsic evidence of intent is a 

question of law and once the contract is 

found to be ambiguous determination of the 

parties’ intent becomes a fact question. 

3. Contracts 152 

In construing a contract Texas courts 

take the wording of the instrument, con- 

sider the same in light of the surrounding 

circumstances, and apply pertinent rules of 

construction thereto. 

4. Contracts 164 

When several documents represent one 

agreement, all must be construed together 

7. After dismissal of his application, Vaughan 

filed an affidavit of an inmate who claimed that 

he assisted Vaughan in preparing the earlier 

petition and was responsible for prior omis- 

sions and errors.  



  

880 FEDERAL REPQP” ~ ERIES 

& 

Kimberly J. FERGUSO>? 2 £ 

Flainiiff-Apper 4 

BAYERJ' of 

AG is as 

> 
OS 

£y 

d not 
énce in- 

court! the 

«der Fed.R. 
2 trial judge 

committed plain «. tited States v. 
Solomon, 856 F.2d i. 1575 (11th Cir. 

1988), cert, denied, — U.S. —, 109 S.Ct. 
1352, 108 L.Ed.2d 820 (1989). “Plain error 

consists of error which, when examined in 

the context of the entire case, is so obvious 
that failure to notice it would seriously 
affect the fairness, integrity and public 
reputation of judicial proceedings.” Unit- 
ed States v. Russell, 703 F.2d 1248, 1248 
(11th Cir.1983). As noted above, no trial 
transcript was furnished to this ‘court. 
However, after a careful review of the 

pleadings, the transcript of the charge con- 
ference, the jury instructions and all objec- 
tions, the briefs of the parties and coun- 

sels’ arguments, we find that the district 
court did not commit plain error in charg- 
ing the jury on the issue of contributory 
negligence. 

Crim.P. 52(b) 

Having found no error by the district 
court, we AFFIRM. 

W 
( £ KEY NUMBER SYSTEM 

1. Defense counsel merely objected again to the. 
court's failure to give appellant's requested 

Peioner-Appellsa 

Lanson NEWSOME, 

Respondent-Appelice, 

No. 88-8347 5 

United States Court of Ap 

Eleventh Circuit. 

Aug. 10, = 

Petitioner sought habeas c ¥ 
from murder conviction. 
States District Court for the No he 
trict. of Georgia, No. 1:87 cv 88 
Orinda D. Evans, J., denied relict = 
tioner appealed. The Court of Apes 
Morgan, Senior Circuit Judge, held 
(1) error arising from instruction 
mandatory rebutable presumpt ¢ 
cerning the issue of inten! 
(2) claims regarding alles ed 
treatment received by witness: 
barred by procedural default; (3) 
did not receive constitutionally 
assistance of counsel; "and @) cla 
cerning composition of petit 4 
barred by procedural default. 

Homicide e145 

Mandatory robitabl 

cution was cei under 
process clause; intent was clearly ¢ 
of malice murder under applicabl 
law, and thus, presumption coull 
lieved the state of its duty to pk 

Cliirgo 38, 14 

~ from instruct 
table presum 
tent in mur 
struction ma: 
malice, and is. 
impermissible 
C.A. Const. A: 

3, Habeas Cq 

In decidin 

~ whelming, fo 

whether error 

ating mandat 

concerning th 

prosecution \'3 

relates to "whe 

ing evidence 0 

inclusive ques 
Amends. 5, 1: 

| 4, Habeas Co 

When def 

murder prose 

narily find err 

tion creating 

sumption conc 

harmless on t! 

at issue, unles 

alleged by 1 

U.S.C.A. Cons 

5. Habeas Co 

Failure to 

crime such as 

matically to 

jury’s conside 
harmless error 

{ ating mandat 
concerning the 

prosecution. 

_6. Habeas Co: 

District co 
“cal sequence 
whether evide: 

whelming so : 
arising from in 

rebuttable 

issue of inter 
there was a to 
‘ing the defend 
‘A. Const.Amer  



    

   

  

        

     
        
         
       

      

      

      
      

     

  

      

      

      

       

         
      

  

    
      
    
      

  

       

        
             
    
    
    
     

     
    
    

     
      

      

   ward LANCASTE > 

toner-Appellant, 
Ye. : 

on NEWSOME, 

ondent-Appellee, : 

No. 88-8347. ; 

ates Court of A ppeals, 
eventh Circuit, : 

ug. 10, en 

  

  
   

   

      

   ns, J. denied relic ih 
The Court of Appeals; 

+ Cireuit Judge, ‘held Has 
; from inste 

    

umpti 
1e of intent was 

      

    

unsel; “and (4) i aim 
ition * of “petit firy was 
dural default. 

   

   

srmissible under the due 
‘ntent was. ® early ar 

           

     
        
    
      

    
    
    

             

     
      

LANCASTER v. NEWSOME 
Cite 2s 880 F.2d 362 (11th Cir. 1989) 

from instruction creating mandatory rebut- 
table presumption concerning issue of in- 
tent in murder prosecution; specific in- 
struction may refer to broader element, 

malice, and is, at best, inconsistent with the 

impermissible mandatory instruction. U.S. 
C.A. Const. Amends. 5, 14. 

3. Habeas Corpus &498 

In deciding whether evidence was over- 
whelming, for purposes of determining 
whether error arising from instruction cre- 

ating mandatory rebuttable presumption 
concerning the issue of intent in murder 

prosecution was harmless, crucial inquiry 
relates to whether there exists overwhelm- 

ing evidence of intent, rather than the more 

inclusive question of guilt. U.S.C.A. Const. 

Amends. 5, 14. 

4. Habeas Corpus €=498 

When defendant claims self-defense in 

murder prosecution, court may not ordi- 

narily find error, which arises from instruc- 

tion creating mandatory rebuttable pre- 
sumption concerning issue of intent, to be 

harmless on the ground that intent was not 

at issue, unless defendant admits that act 

alleged by prosecution was intentional. 

U.S.C.A. Const. Amends. 5, 14. 

5. Habeas Corpus 2498 

Failure to dispute essential element of 
crime such as intent does not operate auto- 
matically to remove issue entirely from 
jury’s consideration at ‘trial and render 
harmless error arising from instruction cre- 
ating mandatory rebuttable presumption 

concerning the issue of intent in murder 
prosecution. : , 

6. Habeas Corpus €=498 

District court properly relied on physi- 
cal sequence of events in determining 
whether evidence of intent to kill was over- 

whelming so 2s to render harmless error 

arising from instruction creating mandato- 
ry rebuttable presumption concerning the 
th of intent, in murder prosecution; 
there was a total lack of evidence concern- 
ing the defendant's state of mind. U.S.C. 
A. Const.Amends. 5 14. 

7. Criminal Law 2312 

Juries are free to infer intent from 

conduct. 

8. Habeas Corpus €=498 

Error arising from instruction creating 

mandatory rebuttable presumption con- 

cerning issue of intent in murder prosecu- 
tion was harmless; from the overwhelming 

evidence of intent to kill, it was clear be- 

yond reasonable doubt that rational jury 

would have found it unnecessary to rely on . 

the erroneous presumption in deciding the 

issue of intent. U.S.C.A. Const.Amends. 5, 

14. 

9. Criminal Law &=778(6), 822(11) 

“Malice shall be implied” instruction 

did not impermissibly shift burden of proof 
on essential element of crime charged, in 

murder prosecution; viewing instructions 
as a whole, any ambiguity in instruction on 

implied malice could not have been under- 

stood by reasonable juror as Shifting { the 

burden of persuasion. 

10. Habeas Corpus €=816 

Whether trial court erred in not charg- 
ing jury on state’s burden of proof on issue 
of self-defense could not be considered for 

the first time on appeal from district 

court’s denial of habeas corpus relief from 

murder conviction. 

11. Habeas Corpus &=364 

 ' District court properly treated petition- 
er’s second state habeas corpus petition as 
his first state court petition in determining 
whether claims were barred by procedural 
‘default; although styled as writ for habeas 
corpus, the first petition primarily con- 
cerned appointment of counsel and location 
of imprisonment and was properly con- 
strued as motion to return to county of 
conviction. 0.C.G.A. §§ 9-14-51, 42-5-50. 

12. Habeas Corpus €=898(1) 

Grounds that could have been raised in 
earlier habeas corpus petition are waived in 
subsequent habeas corpus petition unless 
Federal or State Constit ution otherwise re- 
quires or presiding judge finds grounds i in 
subsequent petition which could not reason- 

ably have been raised in the origin or 
amended petition. 0.C.G.A, § 9-14-51. 

      

  

  

  

 



364 
13. Habeas Corpus e314 

Federal habeas corpus court will not 
consider issue if petitioner did not pursue 
that issue in the state court and thereby 
committed procedural default, unless he 
can demonstrate cause for and actual prej- 
udice from the default. 28 US.CA. 
§ 2254. flag 

14. Habeas Corpus ¢=339 ; : 
Federal habeas corpus review of claim concerning alleged favorable treatment of 

witness was barred by procedural default; 
district court found that petitioner failed to 
provide any evidence indicating that there 
was, in fact, evidence of favorable treat- ment given to witness. 28 U.S.C.A. § 2254. 

15. Criminal Law €=998(20) 
Habeas Corpus e745 
Lack of counsel at state habeas corpus 

proceeding does not per se establish basis 
for federal evidentiary hearing as to “cause and prejudice” for claims deemed ‘in de- 
fault; there is no right to assistance of attorney in state collateral attacks. 28 
US.CA. § 2254; US.CA. Const.Amend. 6. 

16. Habeas Corpus 690, 745 
Petitioner's lack of counsel at state 

habeas corpus hearing did not result in lack 
of fundamental fairness or entitle petition-- er to federal evidentiary hearing as to 
“cause and prejudice” for claims deemed in 
default. 28 US.CA. § 2254; US.C.A. 
Const.Amend. 6, ; 

17. Habeas Corpus €=339, 409 : 
Federal habeas corpus review of claim regarding alleged favorable treatment re- ceived by witness was barred by procedural default; witness’ testimony was largely corroborative of other testimony, and thus, petitioner could not make requisite showing 

of prejudice. 28 US.CA. § 2254. 

18. Habeas Corpus CWE Be 2 
Although claim” of ineffectiveness is mixed question’ of fact and law, federal court must treat the state court's finding of fact with substantial deference, in feder- al habeas corpus proceeding, 

880 FEDERAL REPORTER, 2d SLES 

13. Criminal Law ¢=641.13 y. 
Failing to object to array of . jurors was not ineffective as. 

counsel in murder Prosecution; ‘eoypqus tified that he did not object 4 fhe ee tion of the jury in timely manner 
in his opinion the method g cho rors was constitutional. UJ. 
Amend. 6. > 

Failing to object to erroneous’ 
tion creating mandatory rebutt Ble sumption concerning issue of 
not ineffective assistance of gine 
murder prosecution; ‘Overwhelming of intent was demonstrated at trial. 

20. Criminal Law €=64113(2) 

A. Const.Amend. 6. 

21. Criminal Law ¢=641.13(1)" : 
Defendant was not entitled to gr free representation, only represent that fell within range of competeige manded of attorneys in criminal 

conformed to professional standards sonable ‘investigation of facts and 
standing of ‘the law. U. CA 
Amend. 6. ! 2 

David A. Cook, Decatur, Ga., for 
er-appellant. Ving 

Susan V. Bolevn, Asst. Atty. : La 
of Law, Atlanta, Ga., for respon; 

lee. i Ras 

Appeal from the United ‘States Di 
Court for the Northern District of G 

$2 

» Senior Circuit  



        
   

    
           

    

      
        

          

      

         

     
        

  

UES 

    

aw &=641. 132) 

object to array of 1 

t ineffective assists 
er prosecution: counsel 
d not object. to the comme; 
“in timely manne 
the method of choo: 

itutional. U. vs C2 

        

   

  

aw 6411302)" ; 

bject to erroneous instr 
nandatory rebuttable          

      
           

        

      
      
    

        

  

       

  

    
     
      
    

     

  

    

         
    

   

     

     

      

           
    
    
    
    
    
    

  

   

assistance of ¢ 

    

ition; ra 
monstrated at trial : 
1. 6. 

    

ition, only Ge 
range of com ot 

    

ration of facts 

ie law. U.S.       

  

“fective assistance o 

ar was afforded ro 
   

  

     
    
    
     
     

          

    
        

LANCASTER v. NEWSOME 365 
Cite as 880 F.2d 362 (iith Cir. 1989) 

MORGAN, Senior Circuit Judge: 

Petitioner, Bob Edward Lancaster, ap- 

peals from the district court's denial of his 

petition for habeas corpus relief. Lancas- 

ter was found guilty of murder in the Supe- 

rior Court of Cobb County, Georgia, in 

June of 1982, and sentenced to life impris- 

onment. The Georgia Supreme Court af- 

firmed his conviction and sentence on direct 

appeal. Lancaster v. State, 250 Ga. 871, 

301 S.E.2d 882 (1983). 

~ After three unsuccessful a pie to ob- 

  

Lancaster filed this petition or a writ of 

habeas corpus under 28 U.S.C. Sec. 2254. 

Petitioner, who proceeded pro se in all his 

stBle court petitions, was represented by 

counsel at the federal level. In his federal 

ancas ®%ed as grounds for 

relief that (1) the trial court gave unconsti- 

tutional burden-shifting jury charges, (2) 

the prosecution failed to reveal favorable 

treatment extended to key government wit- 

nesses, (3) his counsel was ineffective, (4) 

the composition of the jury was unconstitu- 

tional, and (5) the prosecution failed to re- 

veal that armed robbery charges were 

pending against a key government witness. 

The magistrate issued his report and rec- 

ommendation that the petition be dis- 

missed. On April 7, 1988, the district court 

entered an order denying habeas corpus 

relief. Lancaster v. Newsome, No. 1:87- 

CV-884-ODE (N.D.Ga. Apr. 7, 1988). Lan- 

caster subsequently filed an application for 

a certificate ‘of probable cause on May 5, 

1988, 'A notice of appeal was filed May 17, 

1988. A panel of this court concluded that 

while the notice of appeal was untimely as 

it was filed more than 30 days after the 

entry of final judgment, the application for 

a certificate of probable cause clearly evi- 

denced an intent to appeal and was thus 

construed as a timely notice of appeal. 

Lancaster v. Newsome, 880 F.2d 362 (11th 

Cir,1988) (anpublished gpiuionk This ap- 

peal follows. oh | 

FACTS 

"The district. court, in reviewing lence 

ter’ s federal petition for writ of habeas 

corpus, found the following facts: = 

According to the testimony at Petition- 

er's murder trial, Lancaster moved in 

with his sister, Margaret Lancaster, on 

February 15, 1980. The next day, Lan- 

caster became involved in an argument 

with the victim, “Boozie” Baker, his sis- 

ter’'s paramour.” Everyone except the 

victim, Petitioner, and Petitioner's neph- 

ew, six-year old Tommy Lancaster, left 

the apartment after the argument began. 

Regina Higgins, the chief witness in the 

case, arrived at the apartment shortly 

thereafter. She testified that Lancaster 

and Baker were “hollering” at each other 

‘when she entered the apartment. Both 

men were in the kitchen. Higgins testi- 

fied that she saw Lancaster go upstairs 

and then return. She noticed that Lan- 

caster had a knife in his right hip pocket 

“when he returned to the kitchen. Tom- 

my Lancaster also testified that he saw 

the knife; He stated that Petitioner held 

the knife in his hand close to his right leg 

as he returned to the kitchen. 

According to Higgins, Lancaster then _ 

approached Baker; the two men were 

separated by a small kitchen table. Hig- 

gins testified that Lancaster pushed Bak- 

er. Baker recovered then lunged toward 

Lancaster as he reached for a knife on 

the kitchen table. [In ther prior state- 

ments, Ms. Higgins waivered [sic] in 

whether or not Baker reached for a 

‘knife. However, this is the version she 

gave at trial, and it is the version most 

favorable to Lancaster's claim of self-de- 

fense.] Higgins testified that she then 

saw Lancaster strike Baker in the chest 

with an upward sweeping motion. Baker 

staggered, then stumbled out the back 

door. * Lancaster followed him out. 

Another witness, Tommy Lee Bryant, 

who was outside the apartment at the 

time, testified that he saw Baker run out 

of the kitchen door with Lancaster in 

pursuit. Bryant testified that he saw 

Baker run underneath a clothes line. 

The clothes line canght Lancaster around 

the throat, and be fell to the ground. 

Lancaster then came back towards the 

apartment, saying “You're dead, mother a 

f—er.” The’ medical examiner T testified 

    

  
  

    
  

 



880 FEDERAL REPORTER, 2d SERIES 
at trial that Baker died of a single stab 
‘wound to the heart. . . . 

Lancaster v. State, 250 Ga. at 871-72, 301 
S.E.2d 882. TEL gaa Bs 

Lancaster's defense at trial was self-de- 
fense. The defense presented no evidence 
but instead relied on the cross-examination 
of the state’s witnesses to assert this de- 
fense. Petitioner, who had voluntarily 
turned himself in to the authorities, did not 
testify at trial, nor did he make a statement 
to the police concerning the events sur- 
rounding Baker's death. 

\ DISCUSSION ~~ ° 
A. Burden-Shifting Jury Charges 

Petitioner's first’ argument is that the 
trial court’s charge to the jury impermissi- 
bly shifted to petitioner the burden of proof 
and persuasion on the issue of intent. Lan- 
caster contends that the burden-shifting 
jury charges given at his ‘trial were the 
exact charges found ‘unconstitutional in 
Francis v. Franklin, 471 US. 307, 105 
S.Ct. 1965, 85 L.Ed.2d 344 (1985). Specifi- 
cally, petitioner challenged in’ the state ha- 
beas corpus court the following language: 

The acts of a person of sound mind and 
discretion are presumed to be the prod- 
uct of the person’s will, but the presump- 
tion may be rebutted.... A person of 
sound mind and discretion is presumed to 
intend the natural and probable conse- 
quences of his acts, but the presumption 
may be rebutted. {ol 

~ To assist jurors in the difficult task of 
determining’ what ‘a ‘defendant intended 
during the commission of a crime, some 
courts have utilized mandatory presump- 
tions in ‘their instructions on intent. See, 

. e.g., Sandstrom v. Montana, 442 US. 510, 
513, 99 S.Ct. 2450, 2453,:61 L.Ed.2d 39 
(1979) (“the law presumes that a person 
intends the ordinary consequences of his 
voluntary acts”); see, e.g, Franklin, 471 

1. We note that the trial court properly instruct. ~ ed the jury that the accused is presumed inno- 
cent until proved guilty, and that the burden is _ on the state to prove the elements of the crime charged beyond a reasonable doubt. The court further instructed the jurors that they were not to be prejudiced against the defendant because 

# 

U.S. at 311, 105 S.Ct, at 1969.75 
person of sound mind and gi 
presumed to be the product of 
will"). The Supreme Coup 
and Franklin held that su 
tions unconstitutionally : 
government the burden of 
element of the crime beyond 
doubt. See In re Winship 

364, 90 S.Ct. 1068, 1075, 
(1970). The Court reason 
structions deprived a erimi 
due process because the char ; 
been interpreted by the jury ag shifti 
burden of proof on intent—an essen: 
ment of the erime—to the defendant, 
by undermining his constitutions 
be presumed innocent. Sands; 
U.S. at 524, 99 S.Ct. at 2459, A d 
Court clarified in Franklin, an acco; 
ing instruction that any presurmp 
intent to act “may be rebut 
render the unconstitutional ins 
stitutional. Franklin, 471 U 
105 S.Ct. at 1974, 11% © 

[1,2] The lesson of Frankl 
~—a mandatory rebuttable presump 
cerning the issue of intent is impers 
under the Due Process Clause. We 
with petitioner that the intent instruction 
this case created a mandatory. rebi 
presumption which 18 _srtually ident 
the charges condemned in Sands 
rankiin. Since intent is clear! 

ment of malice murder under Georg 
see 0.C.G.A. Sec. 16-5-1 (1988), a presur 
tion which in the mind of a reasonable j 
could have relieved the state of its du 
prove every element of the offense ey 
a reasonable doubt was constitutionally in 
permissible. | Reviewing the instruction 
a whole, we also conclude that the cons 
tionally infirm 

  

‘an indictment was returned against hir or. is 

instruction was not ui. 

man v. Ca, 

824, 17 L.E 
instructions 

Franklin. 

clearly inst 

Sandstrom 

wise. valid 
court may 

record, th: 
harmless b 

US. at § 
Delaware 

681, 106 © 

(1986).3 

[3] Ha 
stitutiona! 

this case, 
Clark to 
If, on the 
jury inst 

Sandstro 
trial. “In 

to Sands 

identified 

less erro 

where’ th 
plied to : 
not at is 

evidence 

overwhel 

v. Kemp 
solidated 

tion, a 

m 

ho 
ific 

esu 

; Hy infi 

refer tc 
* best, i 

datory 
322, XK 

2. InC 
argum 

Csiold T 
“ convic 
“fore a 

* harml  



    
SERIES    

   
: Supreme Court i in , 
lin held that such Sas 
stitutionally remo Ty 
t the burden of gp 
the crime rs bhp. 

2 In re Winship, 
ot. 1068, 1072, 25 LEd?9, 
e Court reasoned tha thess fe 
teprived a criminal defer: 
» because the charge may 
ceted by the jury as shiftifig 11s : 
roof on intent—an essen ial ¢ 

   

   

    

   
   

5    
     

          

  

          

ning his ‘constitutional 
:d innocent. Sandstrom, 

, 99 S.Ct. at 2459, And as 
ied in Franklin, an 2 a 

      

  
  

              

ct “may be rebut 

            

t 1974. 

      

   issue of intent is 

ue Process Clause. 
   
    

     

  

  

                                      

  

    

    

    

   

  

   

  

   

   
   

  

   

  

   

   

    

   
   

   

  

    

      

   

raw an adverse i 
n his failure fo 

> Court held in 
Franklin that ‘such 
presumption. of i in 

‘n of persuasion d 
ses as they are 
ith a conclusive or t 

* {71 LANCASTER v. NEWSOME       367 
Clte as 880 F.2d 362 (11th Cir. 1989) 

Until recently, the question of whether 
Sandstrom errors could be harmless had 

riot been authoritatively resolved. In Rose 
v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 
L.Ed.2d 460 (1986), the Supreme Court held 

that the harmless error ‘standard of Chap- 
man v. California, 386 U.S. 18, 87 S.Ct. 

824, 17 L.Ed.2d 705 (1967) ? applies to jury 
instructions that violate Sandstrom and 

Franklin. The Court in Rose v. Clark 

clearly instructed the court in reviewing a 

Sandstrom error not to set aside an other- 

wise, valid conviction “if the reviewing 

court may confidently say, on the whole 
record, that the constitutional error was 

harmless beyond a reasonable doubt.” 478 
US. at 576, 106 S.Ct. at 3106 (quoting 

Delaware v. Van Arsdall, 475 U.S. 673, 
681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 
(1986). 

[3] Having found language that uncon- 

stitutionally shifted the burden of proof in 
this case, we are now required by Rose v. 
Clark to undergo a harmless error Teview. 
If, on the facts of the case, the erroneous 

jury instruction was harmless, then the 
Sandstrom error would not require a new 

trial. “In applying harmless error analysis 

to Sandstrom violations, ‘this court has 

identified two situations ‘where the harm- 

less error doctrine can be mvoked: “(1) 

(where the erToneous Instruction was_ap- 
| plied to an element. of the crime that.akas 
| not _at issye in the trial, or (2) where the 
“evidence as to the defendants guilt was 
overwhelming.” “Bowen 7. Kemp and Dix 
v. Kemp, "832 F.2d 546 (11th Cir.1987) (con- 

solidated en banc). Under ‘the first situa- 

tion, a Sandstrom error on intent may be 

presumption.” Sandstrom, 442 U.S. at 518-19 
n. 7, 99 S.Ct. at 2456 n. 7. Nor does the more 
specific instruction that “[a] person will not be 
presumed to act with criminal intention” cure 
the infirm charge because such instruction may 
refer to a broader element, malice, and are, at 

* best, inconsistent with the impermissible man- 
datory instruction. See Franklin, id us. at 
322, 105 S.Ct. at 1975. : 

2. In Chapman, the Supréiig € Court elo the 
argument that errors of constitutional dimen- 

“sion necessarily require reversal of criminal 
convictions. The Court held, however, that “be- 
fore a federal constitutional error can be held 
harmless, the court must be able to declare a 

harmless where intent to kill is conceded by 

the defendant or otherwise not put in issue 

at trial. See, e.g., Tucker v. Kemp, 762 

F.2d 1496, 1501 (11th Cir.1985) (en banc), 

cert. denied, 478 11.8. 1022, 106 S.Ct. 3340, 

92 L.Ed.2d 743 (1986) (erroneous instruc- 

tion on intent harmless where defendant’s 

“sole defense was non-participation in kill- 

ing”). “ Under the second prong of the 

harmless error test, a Sandstrom error 

may be harmless where the evidence of 

defendant's guilt is sufficiently overwhelm- 

ing to make inclusion of the unconstitution- 

al jury instruction irrelevant to the out- 

come of the jury verdict. Dick v. Kemp, 

833 F.2d 1448, 1453 (11th Cir.1987). In 

deciding whether the evidence was over- 

whelming, the crucial inquiry relates to 

whether or not there exists overwhelming 

evidence of intent, rather than the more 

inclusive. question of guilt, Davis 

Kemp, 152 F.2d 1515, 1521 n. 10 (11th 

Cir.1985). 

[4] We must cDsiie: both aspects of 

the ‘harmless error test in this case: wheth- 

er Lancaster’ s defense put the issue_ of 
intent squarely to the jury so that a Sand- 
strom error cannot be harmless under the 

first prong; and, if so, whether evidence at 

trial overwhelmingly showed intent to kill 

on the part of Lancaster. In a recent pro- 

nouncement on harmless error under Sand- 

strom, this court in Bowen/Dix held that 

when a defendant asserts a claim of insani- 

ty, the court may not ordinarily find a 

Sandstrom error to be harmless on the 

grounds that intent was not at issue. 832 

F.2d at 547. The question arises in this 

case whether a Sandstrom error can be 

belief that it was harmless beyond a reasonable 

: doubt.” 386 U.S. at 24, 87 S.Ct. at 828. 

3. The Supreme Court explained: 

The thrust of the many constitutional rules 
governing the conduct of criminal trials is to 
ensure that those trials lead to fair and cor- 
rect judgments. Where a reviewing court can 

find that the record developed at trial estab- 
lishes guilt beyond a reasonable doubt, the 

. interest in fairness has been satisfied and the 
judgment should be affirmed. As we have 

repeatedly stated, “the Constitution entitles a 

criminal defendant. to a fair trial, not a pe T= 

wos: fect onet is i i 
Rose v, Clark, 478 U S. at 79, 106 s, cr. at 3107. EC 

   

     

  

   

        
      

     
        
     

     
      

  

  

 



880 FEDERAL REPORTER, 2d SERIES * 

harmless on the grounds that intent, was 

not at issue when a defendant asserts the 

defense of self-defense. We have previous- 
ly held that under Georgia law a defendant 
claiming self-defense may admit that the 
killing occurred, but does not necessarily 
concede intent to kill Patterson v. Austin, 
728 F.2d 1389, 1395 (11th Cir.1984) (citing 
Mason v. Balkcom, 669 F.2d 222, 227 (5th 

Cir. Unit B 1982), cert. denied, 460 U.S. 
1016, 103 S.Ct. 1260, 76 L.Ed.2d 487 
(1983)).* Accordingly, we hold that when a 
defendant claims self-defense, the ‘court 
may not ordinarily find a Sandstrom érror 
to be harmless on the grounds that intent 
was not at issue® 

[5] Our harmless error analysis does 
not end, however, simply because a defen- 
dant raises a defense which contests the 
intent of a defendant. See Baker v, Mont- 
gomery, 811 F.2d 557, 558 (11th Cir.1987). 
In this circuit, failure to dispute an essen- 
tial element of the crime such as intent 

  

  

4. In Mason, we discussed the relationship be- 
tween a claim of self-defense and the element of 
intent to kill as follows: 

Apparently, the district court believed that by 
raising self-defense the defendant admitted 
having the intent to kill. This analysis is too 
broad. When claiming self-defense, one does 
not necessarily admit intent to kill, but rather 
admits that the killing occurred. As the peti- 

_ tioner points out in his brief, one can shoot to 
kill in self-defense, shoot to wound in self-de- 
fense, shoot to frighten in self-defense; or 
even shoot reactively in self-defense with no 
specific purpose. The mere raising of self-de- 
fense clearly does not establish that the defen- 
dant had the intent to kill. 

669 F.2d at 227. * 

8. In reaching its holding, the Bowen/Dix court 
recognized that in “rare situations” a defendant 
in presenting an insanity defense “may admit 
that the act alleged by the prosecution was in- 
tentional.” 832 F.2d at 550 n. 13 (citing Cooks 
v. Foltz, 814 F.2d 1109, 1113 (6th Cir.1987)). 
Likewise, we recognize this SxcspHion in the 
context of self-defense. ; 

6. See Connactont v. Jolirson.: 460 Us. n, 87, 
1103 S.Ct. 969, 977, 74 L.Ed.2d 823 (1983) (Black- 
mun, J., writing for a plurality of four justices) 
(“In addition, an error may be harmless if the 
defendant conceded the i issue of intent,... In 
presenting a defense such as alibi, insanity, or 
self-defense, a defendant may. in some cases 
admit that the act alleged by the prosecution 
was intentional, thereby sufficiently teducing. 

does not operate SS ntaly & 

tion at trial and render a San 
on the element harmless; 8 
Kemp, 846 F.2d 642, 660 (‘1 
“But the defendant's (defensive 

plo. that where the issue of inten is an 
disputed by the defendant at bit 

ing under the second prong of the ha Tle: 
error test. Id., (citing Davis, 752 F.2d a 
1521; Tucker, 762 F.2d at 150009 

the likelihood that the jury applied I 
ous instruction as to permit the appellate 0 

* to consider the error harmless. 
to the lower courts to determine whi 
raising a particular defense or by his 
actions, a defendant himself has taken th 
of intent away from the jury. ) 

- that its reasoning is  eopiicable to the facts ¢ 
present case. This court in Tucker noted: 

If a Sandstrom error can be harmless v 
the issue of intent is conceded, it is only 
short step to ‘hold that the harmless & 
doctrine should similarly be applicable 
a defendant does not formally concede infe 
but focuses his defense entirely upon a 
a similar defense, in the face of overwheli ng 

,evidence that whoever committed the offer: : 
did so intentionally. When such overwhel 
ing evidence of intent is left wholly unrebut 
ted, it is not unreasonable to think 
appellate court can, depending upon 
facts and circumstances of the case, be atis- 
fied beyond a reasonable doubt that the 

: 1985), “We note that this court has previ ; 
utilized the reasoning of Davis and Tucke 
. the context of Self defense, ee Stephens, 846 
F.2d at $60, : 

i 

requisite int 

at trial focu 
ter Was jus 
intent rema 

was not co 

_ remained o. 
nificant th 

contest the 

unrebutted 

the killing 

Kemp, 162 
According] 

posture “c 

harmless « 
our consid 

dence of ¢ 

1502; Da: 

“Having 

harmless 

harmless 

eration of 

the evide: 

lished Lar 

that a de 
cede inte; 

acts by i 
the Bows 

intent is : 

whelming 

the phys 
victim's « 
evidence 
832 F.2d 

conclusiv 

killed h 

peatedly 
her. T} 
ex-wife 

both ca 
guilty b; 
expert 
raised ¢ 

sanity ¢ 
cases, 2 

cluded 

state o! 

prohibit 

1 In t 
from 
‘malice 

© site in 
"ingly 

* subst: 

‘intent  



      
      
     

      

           

       

       

       
       

          

        

     

   on $v 
F.2d 642, 660 (11th Cir 195 

    

ase may remain an impo; 
> harmless error analysi 
se does not as a matter of law 
remove from the jury's ¢ 
element on which the 
ipermissily shifted.” 

   

ere the issue sox 
the defendant at trial § 

   

a coon prong of the Hv 
Id, bith Davis, 152 F.24 

    

on as to permit the a 
he error harmless. . ay 

   

    

n-participation, we ‘a 

ning is applicable to the | 

from error can be. 

    
ot unreasonable 
ourt can, depending 

LANCASTER v. NEWSOME 
Cite as 880 F.2d 362 (11th Cir. 1989) 

requisite intent to kill; 7 rather, the defense 
at trial focused entirely on whether Lancas- 
ter was justified in killing Baker. While 
intent remained at issue in the sense that it 
was not conceded and the burden of proof 
remained on the state, we consider as 'sig- 
nificant the fact that the defense did not 
contest the issue of intent, thus leaving 
unrebutted the government's evidence that 

the killing was intentional.. Tucker wo. 
Kemp, 762 F.2d 1496, 1501 (11th Cir.1985). 
Accordingly, although Lancaster’s defense 
posture “does not by itself conclude the 
harmless error analysis, it is relevant to 
our consideration of .,. whether the evi- 

dence of guilt was overwhelming.” Id. at 
1502; Davis, 752 F.2d at 1521, ; 

Having concluded that the error was not, 
harmless under the first prong of the 

harmless error test, we proceed to a consid- 
eration of the second situation: ‘whether 
tHe evidence at trial overwhelmingly estab- 
lished Lancaster’s intent to kill. In holding 
that a defendant ordinarily does not con- 
cede intent as to the consequences of his 
acts by pleading the defense of insanity, 
the Bowen/Dix court noted that “Iwlhen 
iffent 1s at issue, ... we cannot infer over- 

¥helming ITY of intent directly trom 
the"physical sequence that resulted in the 
VieUm's death. We must also Took £33 ‘the 
evidence of defendants state of ‘mind. ” 
832 F.2d at 651. In Bowen, the evidence 
conclusively established that the defendant 
killed his twelve-year-old victim by re- 
peatedly stabbing her after he had raped 

her. The defendant in Diz tortured his 
ex-wife and then stabbed her to death. In 

both cases, the defendants pleaded not 

guilty by reason of insanity. In both cases, 
expert testimony was . admitted which 
raised a question as to ‘each defendant's 
sanity at the time of the murder. In both 
cases, a majority of the en banc court con- 

cluded that the evidence of the defendant's 
state of mind was sufficiently plausible to 
prohibit the finding that a burden-shifting 

7. In this respect, “this case is distinguishable 
from Franklin. Franklin's sole defense to the 
malice murder charge was a lack of the requi- 
site intent to kill. ‘The facts did hot overwhelm- 
ingly preclude that defense. Franklin ‘offered 

intent. A presumpticn that Franklin intended 
substantial evidence tending to show a lack of | 

jury instruction B invelving intent was harm- 
less. 

Ina hea ont case, Corn V, Kemp, 837 

F.2d 1474 (11th Cir.1987), a panel of this 

court applied the harmless error analysis to = 

an equally gruesome murder. The defen- 
dant also presented expert testimony at 
trial supporting his insanity defense. The 
panel determined that the evidence regard- 

ing the defendant’s state of mind raised the 
question of intent in a manner sufficient to 

prohibit a finding that the Sandstrom er- 
ror was harmless. Jd. at 1477. 

/7AS In the three cases mentioned above) 
the evidence at Lancaster's trial proved 
overwhelmingly that he committed the 

! physical acts which resulted in the victim's 
death. The intent issue in this case differs, 
however, from Bowen/Dix and Corn in 

two significant ways. First, the three 
- cases cited above involved an insanity de- 
fense. An insanity defense raises the 
question of whether the defendant is capa- 
ble of forming the requisite intent such 
that he can be held legally accountable for 
his actions. In a self-defense case such as 
the present one, the defendant may have 
the intent to kill his victim but still be 
found not guilty, so the question becomes 
whether the accused acted with malice or 
was justifiably protecting himself._Thus, 
the issue of intent plays a slightly different 
rol€ in a self-defense case than it does in an 

insanity’ case. 

Second, and most importantly, in all.of 
the above cases there was substantial evi- 
dence at trial concerning defendant’s state 
of mind at the time of the murder... In 
Bowen, there was evidence, supported by 
expert testimony, indicating that the defen- 
dant was extremely depressed and could 
not remember whom he had attacked. In 

Dix, the examining psychiatrist supported 
Dix’s claim that he did not remember kill- 
ing his ex-wife. Likewise, in Corn, an 

to kill completely liininated his defense of “no 
intent." Because intent was plainly at issue in 
Franklin, and was not overwhelmingly proved 

by the evidence, the court could not find the: 
erroneous instruction on intent to be harmless. 

471 US. at 325-26, 105 S.Ct. at 1977. 

  

  
        
      
      

      
        

        
      
      
      
     
      
     

         
    
     

  
  

      

       

            

    

        

  

       

  

    
     

      

         

  

    

  

  
     
      

        
         

      
       



370 day 830 FEDERAL REPORTER, 2d SERIES 
expert witness who testified for the de- 
fense opined that, on the day of the mur- 
der, defendant did not know what he was 
doing. The defendant’s statement that he 
didn’t mean to hurt the victim was also 
offered to explain the defendant’s intent. 
Thus, all three cases contained substantial 
evidence regarding the defendant's state of 
mind as to his ability to form the requisite 
intent to kill because of insanity. 

In this case, the district court found that 
absolutely “no” evidence concerning peti- 
tioner’s state of mind was presented to the 
jury to contest inten. Lancaster made no 
statements to the authorities to the effect 
that he did not intend to kill the victim, nor 
did he take the stand at frial to explain his 
state of mind at the time of the killing. 
The court made clear in a footnote, how- 
ever, that it was not inferring guilt because 
petitioner relied upon his constitutional 
right not to_testify, but was simply ac- 
knowledging that certain type of evidence, 
specifically “evidence of defendant’s state 
of mind,” was not offered by way of Lan- 
caster’s own testimony. Defense counsel 
presented the jury with the invitation to 
infer from the “physical sequence that re- 
sulted in the victim's death” that Lancaster 
acted in self defense, but this argument 
was not accompanied by any evidence re- 
garding the defendant’s state of mind. 

[6] It is this total lack of evidence con- 
cerning the ~defendant’s state of. mind 
which distinguishes this case from cases 
such as Bowen/Diz and Corn. Conse- 
quently, the reviewing court must deter 
mine from the narrative of the physical 
sequence of events whether Lancaster's in- 
tent to kill was proved overwhelmingly be- 
cause no other type of evidence was of- 
fered. We conclude that, under the partic- 
ular circimstances or This Case, the district 
¢OUrt properly relied on the physical 56- 
quence of | events in defermintg=whether 

{| the evidence “of intent to L Was over- 
| whelming. . 

8. In Franklin, the Supreme Court ‘made it clear 
that permissive presumptions or inferences do 

not violate the ' Due. Process Clause, except 
where they are € patently unreasonable. 471 U S. 

[7] . It should be emphas 
are free to infer intent from 
Brooks v, Kemp, 762 F.2d 1388, 
Cir.1985) (Kravitch, J, concurring : 
senting) (“ ‘intent’, by its very nature 
not be proven by direct evidence, un] 
defendant expressly states his int, 
also Rose v. Clark, 478 US. : 
S.Ct. at 8107. (‘“[Iln. many. cas 
there is no direct evidence of inter; 
intent is established [by inference rom a 
fendant’s conduct]”). The: constitute 
error in this case is not that the 
allowed to presume Lancaster’ 8 
kill? rather the error here i is that the 
was compelled to presume such in 
thus shifting the burden of proof to i& 
defendant. Brooks, 762 F.2d at 1. 
(Kravitch, J, concurring and disse ntin 
While the jury was improperly instruct 
to rely on the presumption as a mean 
finding intent, it is clear that “ther e ma 
many cases in which the facts a 
stances so conclusively establish 
ment that the instruction is wholl 
fluous.” Connecticut v. Johnson, 460 
at 95, 108 S.Ct. at 981, (Powell, J.. dis 
ing); see Rose v. Clark, 478 US. at 58 
106 S.Ct. at 8107. (“In many ca 
predicate facts conclusively establ 
tent, so that no rational jury could find { } 
the defendant committed the relevant cris 
inal act but did not intend to ca 1 
ry.”’). 

[81 In this case, the’; sequence of e 
leading to the death of Baker ove 
ingly establish Lancaster's intent 
The district court concluded tha 
there was some evidence supporting 
tioner’s claim of self-defense, including 
verbal altercation between ‘two men 

shoved by petitioner, in direct a d ovel 
whelming contrast was evidence: 

[Proving that Lancaster had a 
ous intent [which] included (1) 

: there Was a verbal altercation, ne Hi 

at 314.35, 105 s. ct at 1971 (citing Ulster Count 
Court v. Allen, 442 U.S. 140, 157, 99.S.Ct. 2213 
2224-25, 60 1. Ed, 32d 7 7 P9790: see ¢ Broo 
3 F.2d. at 1423. it FoR 

upstairs t 

any physi 
Baker, (3) 
Baker be! 

on the tal 

er out of 
rather th; 
dence, de 
counsel a 

that proc 
was over 

From the o 
to kill in the 

a reasonal 
¢ would have 

the errone: 

issue of ir 
| sent the ¢ 
rational ju 

inferences 

that he in’ 
| we conclu 

was harm 
[9,10] 

trial cour 
impermiss 

jury shou 

state’s bu 

We find t 

instructio 

and speci 
trict cour 

instruetio 

9. In Ros: 

3105, the 
Strom er’ 

was S0 
court ca 

the jury 

“challen 
Humph 
“fila vi ¢ 

instruc 

instruc 
able ju  



   

       

     
      

      
        

       
      
     

        
            

SERIES 

ould be emphasized ‘ 
nfer intent from o i. 
emp, 762 F.2d 1883, 1423 
ravitch, J, concurring and 
ntent, by its very nature 
n by direct evidence, 
pressly states his 
. Clark, 478 US. : 
". (“[IIn many cases w! 
direct evidence of intent 
ablished [by inference Jone 
mnduct]”’), The constity 

upstairs to get a knife before there was 
any physical contact between himself and. 
Baker, (3) her testimony that he shoved 

Baker before Baker reached for a knife 

on the table, and (4) that he chased Bak- 

er out of the door after stabbing him 
rather than retreat. In light of this evi- 
dence, despite the eloquent argument of 
counsel at trial, the court must conclude 

that proof of Lancaster's intent to kill 

was overwhelming. 

From the overwhelming evidence of intent 

to kill in the present case, it is clear beyond 
a reasonable doubt that a rational jury 
would have found it unnecessary to rely on 

"the erroneous presumption in deciding the 
issue of intent? In other words, even ab- 

sent the erroneous charge on intent, no 

rational jury ‘would have drawn any other 
inferences from Lancaster's conduct but 
that he intended to kill his victim. Thus, 

we conclude that the Sandstrom violation 

was harmless error. 

[9,10] Lancaster also asserts that the 
trial court’s instructions on malice were 

impermissibly burden-shifting and that the 
jury should have been charged on the 
state’s burden of proof as to self-defense. 
We find that the “malice shall be implied” 
instruction was not clearly raised below 
and specifically not considered by the dis- 
trict court. Even assuming that the malice 
instruction was raised below, however, the 

        

   

       
    

    
      

    

  

  

      

     
      
    
      

      
     

      

      
     
     

     
    
    
     
       

    
      

      

   
concurring and a 

ary was mopar lush 2 
   

    

nnectiout ?. Johns 

Ct. at pel Lowel 
   

9. In Rose v. Clark, 478 U.S. at 583, 106 S.Ct. at 
3105, the Court noted that “in cases of Sand- 
strom error, ‘the inquiry is whether the evidence 
was so dispositive of intent that a reviewing 
court can say beyond a reasonable doubt that 
the jury would have found it unnecessary to rely 
on the presumption.” (Citing Connecticut v. 
Johnson, 460 U.S. at 97 n. 5, 103 S.Ct. at 982-983 
n. 3 (Powell, J., dissenting). 

      

    
      
    
    
     
    

       

  

10. Lancaster asserts that the following charge 
impermissibly shifted the burden of proof on an 
essential element of the crime charged: 

~ Malice shall be implied wheré no considera- 
~ ble provocation appears. and where all the 

_ circumstances of the killing showed an aban- 
doned and malignant heart." . © 

‘We have previously considered and upheld a 

  

trast was “evider : 

that Lancaster 

  

        

  

    
    
    

    

   

  

   

: Humphrey, cited above. The Lamb court noted, 
““[i]n view of the strong circumstantial evidence 
$ instruction preceding this [the implied malice] 
“instruction, ... we cannot conclude that reason- 
able jurors would have interpreted the latter 

  

", 442 u.s. 1. [57 
L.Ed 24, 721. (1 790): 

   

  

   ; 

LANCASTER v. NEWSOME 
Cite as 880 F.2d 362 (11th Cir, 1939) 

“challenge to the same jury charge in Lamb and 

      371 

challenge affords no basis for relief as it is 

identical to charges found constitutional in 

Lamb v. Jernigan, 683 F.2d 1332 (11th 

Cir.1982) ani Humphrey v. Boney, 785 

F.2d 1495 (11th Cir.1986).1 In addition, 

petitioner contends for the first time before 
this court that the trial court erred in not 

charging the jury on the state’s burden of 

proof on the issue of self-defense. This 

issue clearly was never raised below by 

petitioner nor considered by the district 

court. Thus, this court declines to decide 

these issues raised for the first time on this 
appeal. Stephens v. Zant, 716 F.2d 276, 
277 (5th Gir 1089) 

   B. Brady Claims 

Petitioner's second and fifth ound for 

relief is that the government =o to dis- 

ote har Tr Fo oat: 
ment ‘Withesses. Speci tically, Lancaster 

urges in ground two of his federal petition 
that Regina Higgins was on probation at 
the time of her testimony and was extend- 
ed favorable treatment in exchange for her 
trial testimony. In ground five of his peti- 
tion, petitioner claims that the state failed 
to disclose favorable treatment to Tommy 
Lee Bryant. These grounds present claims 

under Brady v. Maryland, 373 U.S. 83, 83 

S.Ct. 1194, 10 L.Ed.2d 215 (1963), for prose- 

cutorial misconduct in failing to turn over 
potential impeachment evidence. 

  

[charge] as changing the reasonable-doubt bur- 
den of proof they were initially told the prosecu- 
tor had to meet." 683 F.2d at 1340. The cir- 
cumstantial evidence charge preceding the im- 
plied malice instruction in this case was equally 
as strong as that furnished in Lamb and Hum- 
phrey. Thus, viewing the instructions as a 
whole, we find that any ambiguity in jury in- 
struction on implied malice “could not have 
been understood by a reasonable juror as shift- 
ing the burden of persuasion.” Franklin, 471 

. U.S. 307, 105 S.Ct. at 1973; see Stephens. v. 
Kemp, 846 F.2d 642, 659 (11th Cir.1988) (hold- 
ing that the “malice shall be implied” language 

{ did not impermissibly. shift the burden of proof 
..on malice.) , 

11. In Brady ; v. Maryland, the Supreme Court 
"held that “the suppression by the prosecution of 
evidence favorable to the accused upon request. 

Violates due process where the evidence is mate- 
‘rial either to guilt or to punishment, irrespective SA 

faith th or bad faith of the prosecu- = 
Id. at 87, 83 S.Ct. at 1196.97, The By Eo i 

of the good 
~ tion.” 

  

  

  

  
  

  

    



  

[11,12] The government argues that 

state law because they were not raised 
until Lancaster’s second state habeas peti- 

not raised in an original or amended peti- 
tion for habeas corpus are deemed waived 
by virtue of the petitioner's procedural de- 
fault. 0.C.G.A. Sec.. 9-14-51 : 
rounds that could have been raised in an 

earlier petition are waixedn a subsequent) 
habeas corpus petitio f unles) 
state constitution otherwise requir BL BI TR TTT ET 
pT tdi ason- 
ably have been raided in the original or 
dmended penton. 1d, see, e.g. Dix v. 

880 FEDERAL REPORTER, 2d SERIES 

are barred by a state's suc cess pe 
rule. Presnell v. Kemp, 835 Fog 
(11th Cir.1988). Accordingly, wa 
abide by a state court's impositior 
procedural default rule when Correct] 
plied unless cause and prejudice is a. 
Sinclair v. Wainwright, 81. 
1522 (11th Cir.1987).. 

The state court found that the allegs 
regarding the favorable treatment of 
na Higgins was procedurally defay} 
petitioner’s failure to raise the cl 
first petition in Tatnall County. 
magistrate and the district court 
the finding of procedural default hy 
state habeas corpus court. The dis         Zant, 249 Ga. 810, 811, 294 S.E.2q 527 

(1982); Smith v. Zant, 250 Ga. 645, 647,   801 S.E2d 32 (1983). 
deral habeas court will not 

consider an issue if the petitioner aid not 

  

€ 8 court an 
thereby committed a procedural default, 

unless x can demonstrate cause for and 
actual prejudice from the default. Wajsn- 
wright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 
53 L.Ed.2d 594 (1977); Engle v. Isaac, 456 
U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 
(1982). This court has recently held that 
the “cause and prejudice”. test will be ap- 
plied to claims in a federal petition which 

preme Court has determined that “[i}mpeach- 
ment evidence, [] as well as exculpatory evi- 
dence, falls within the Brady rule.” See United 
States v. Bagley, 473 US. 667, 676, 105 ‘S.Ct. 
3375, 3380, 87 ‘L.Ed.2d 481 (1985). © 

1. Al foe district courl, there was 2 disp a _dispute regarding Lancaster's first ha petition filed 
in state co ollowing his conviction, ‘but 
rior to his appeal of 
a corpus in the Superior Court of Habers- 
Toy where he was incarcerated. Al 
though styled as a writ of habeas corpus, that 
petition primarily concerned the appointment 

“of courisel Ba The Tomaon oF To 
Ment. The district ‘court concluded that this 
document was properly construed as a motion ' 
to return to the county of conviction under OCGA. Sec. 42-550. 

Lancaster filed a seco 

  

etition for writ of 

»4. Although the state 
court determined that this second writ was suc- 
cessive in light of the first writ filed prior to 
Lancaster's appeal, the court did not dismiss the 

court found that, during the hearing by 
first Tatnall County petition, 
questioned his trial counsel regarding coun. 
sels efforts to obtain exculpatory 
from the prosecution. He did ng 
ever, raise as separate grounds fi 
the allegation that the government £ 
comply with the Brady motion that Lane: 
ter’s attorney had filed. "Thus, a 
to the district court, Lancaster procé 
defaulted on this claim. © 

We conclude that the court below prop 
ly honored the finding of successive ess 
the state habeas corpus court as to peti 
er’s contention that the prosecutor 
held impeachment evidence concerning 

petition on those grounds. Instead, after ¢ 
hearing, the court ruled on all the g 
presented in the petition. Lancaster the 
third petition in 1985 in Tatnall unty, RTT pean was ATSTESee a8 See 

=0.C . » UpIe 
~ Court refused to entertain an appeal.’ We 

that the district court properly treated Lancas- 
ter's sii nabeas pet tion, the first in Tatr 
County, as his first state court petition eter 

VS 

mining whether his claims should be barred. 

13. Georgia's successive petition statute, 0.CGA. 
Sec. 9-14-51 provides: ele biane 

All grounds for relief claimed by a ; 
er for a writ of habeas corpus shall 

petition. Any grounds not so raised an 
waived unless the Constitution of th 

States or of this state otherwise requires 
.....unless any judge to whom the petition 
signed, on considering a subsequent pe 

finds grounds for relief asserted 

in the original or amended petition. 
which could not reasonably have heen raised 

¥ 

Hoa : 

by a petitioner in his original or amer ed 

Higgins. 1 
the basis fo 

treatment : 

of question 
as a subst 
Brady 
tion rule, ( 
er is barre 

habeas pe 
could hav 
original pe 

1575; Mo» 

Cir.), cert 

2486, 96 1 
er has cc 

respect 
petition. 

[14-16] 

cause, ti 
Lancaste 

was prej 
to turn « 

peached 
ly credit 
the stat 

want to 

he did 1 
testified 

“critical 

only sot 

have r¢ 

table, s 

defense 
ing her 

produc 
14, Th 
“hear: 
of Br 
_attor: 

filed. 
as co 

moti 

came 

duct 
- issue 
_broa 
: give: 

petit 
: stan 

1s. V 
‘was 

def: 3] ¢  



   
2d SERIES 

  

red by a state’ 8 Succenst 
Presnell v. Kemp, 835 
Jir.1988). Accordingly 
y ; rate Sours imposition of ral default rule when correct Iv an 
less cause and pron i8 gh 2p: 
rv. Wainwright, S14 Pq 
lth Cir,1987).. si 

tate court found that th 
'g the favorable Wt 
ins was procedurally” defaults 
r’s failure to raise the claim i the ition in Tatnall Coun ¢ 
te and the district ys Bo ; He ing of procedural default by 
beas corpus court, “The 
ind that, during the erin 
tnall County petition, petition: 
2d his trial counsel] regarding = me 
rts to obtain exculpatory matesal 
: prosecution, He did pe 
se as separate grounds fo 
ation that the government #: 
ith the Brady motion that 
rney had filed. Thus, ac 
trict court, Lancaster procedi 
| on this claim. 

clude that the court 
d the finding of stce 
habeas corpus court as to 
:ntion that the pros 
achment evidence €o 

  

      
    
   
  

  

         

           
     
     
    
   
    

  

pe
 

       

        

   

  

   

  

   
   

   

            

   
    

  

   

    

  
   

on those grounds Instead, 
the court ruled on all the 
lin the petition. Lanca 
ition in 1985 in Tatnall 
tion was dismissed as Succ 
Sec. 9-14-51, The Georgia 
used to entertain an appea 
listrict court properly tr 
nd habeas petition, the first 
s his first state court petition 
‘hether his claims shoul : 

     

  

   
   
   

   

   

  

   

   

   

  

   

  

    
   

a’s successive pe tition ‘statute. OCC 
-31 provides: 

ounds for relief claf 

   
    
   

   
   

    

      

titioner in his or ‘ 
Any grounds"; 

    

   

                

   
   

    

   
     

   

    

LANCASTER v. NEWSOME 
   

  

373 
Cite as 880 F.2d 362 (11th Cir. 1989) 

Higgins. Lancaster clearly was aware of 
the basis for raising the claim of favorable 
treatment at the time of the first habeas 
action, but pursued this only in the context 

lof questioning counsel and did not raise it 

as a substantive due process claim under 
Brady. Under Georgia's successive ‘peti- 
tion rule, 0.C.G.A. Sec. 9-14-51, a petition- 
er is barred from raising in a subsequent 
habeas petition a claim that reasonably 
could have been raised in an earlier or 
original petition. See Presnell, 835 F.2d at 
1575; Morris v. Kemp, 809 F.2d 1499 (11th 

Cir.), cert. denied, 482 U.S. 907, 107 S.Ct. 

2486, 96 L.Ed.2d 378 (1987). Thus, petition- 

er has committed procedural default with 
respect to the second ground of his federal 
petition. 

[14-16] Pgetermitting the question of 

cause, the district court also found that 
Lancaster could not demonstrate that he 
was prejudiced by the governments raiure 
to turn over evidence which may have im- 
peached Ms. Higgins. The court specifical- 
ly credited the testimony of trial counsel at 
the state habeas hearing that he did not 
want to obtain her criminal record because 
he did not want to impeach her. "Counsel 
testified that Ms. Higgins’ testimony was 

“critical” to their defense as she was the 
only source of evidence that the victim may 
have reached for a knife on the kitchen 
table, supporting petitioner’s claim of self- 
defense. As the court noted, “[ijmpeach- 

ing her testimony would have been counter- 

productive.” Moreover, pursuant to the 

14. ‘The transcript of petitioner's state habeas 
hearing indicates that he had an understanding 
of Brady v. Maryland when he questioned his 
attorney about the Brady motion that had been 
filed. Lancaster admitted before the state habe- 
as court that his attorney had filed a discovery’ 
motion under Brady v. Maryland, and that an in 
camera inspection of the state's file was con- 
ducted.” In cross-examining trial counsel on the 
issue of ineffectiveness, it is clear that pris 
broached the subject of whether the state ha 
given favorable treatment to Ms. Higgins, but 

iy pefitioner never “assericd. these _ matters as sub- 

sTERtve due process claims. 

15. We note that petitioner also argacs that he 
was not afforded a full and fair hearing as to 
“cause and prejudice” for the claims deemed in 
default. In support of his argument for a feder- 
al evidentiary hearing, Lancaster relies primari- 

Brady motion filed by petitioner's trial 
counsel, the trial court reviewed the 
government's entire file to determine 
whether there was any further exculpatory 
material which had not been furnished to 

the defense. After conducting an in cam- 
era inspection of the state’s file, the court 
turned over to petitioner's counsel one ad- 

ditional piece of evidence which the state 
had not provided. The district court found 
that petitioner failed to provide “any evi- 
dence ... indicating that there was, in fact, 
evidence of favorable treatment given to 
Ms. Higgins.” Having failed to meet the 
cause and prejudice standard under Pres- 
nell, we agree with the lower court that 

petitioner is barred from raising this claim 
in his federal petition.!® 

In ground five of the petition, petitioner 
coptends that the prosecutor also failed to 
disclose favorable treatment to Tommy Lee 
Bryant. The court below noted that peti- 
tioner never specified what favorable treat- 
ment was allegedly given Bryant. The 
court found it was “not quite clear” wheth- 
er Lancaster was raising the issue as a 
substantive Brady violation or as an exten- 
sion of his ineffectiveness claim. If the 
issue was being raised as a Brady claim, 
the court noted that petitioner was barred 
for not having raised the issue in his earlier 
state petition, as explained in the court's 
treatment of the similar claim regarding 
Regina Higgins. In reviewing this argu- 
ment as part of the ineffectiveness claim, 
the court below ruled that petitioner did 

ly on the fact that he proceeded pro se in the 
original Tatnall County action. We emphasize, 

“however, that the lack of counsel does not per se 
establish a basis for a rederal evidentiary hear- 
ing because there is no right to the assistance of 
an attorney in state collateral attacks. Pennsyl- 
yania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 
L.Ed.2d 539 (1987); Carter v. Montgomery, 769 
F.2d 1537, 1543 (11th Cir.1985). “The test that 
federal courts must apply to determine whether 
an evidentiary hearing is necessary is whether 
the lack of counsel at the state hearing resulted 
in a lack of fundamental fairness.” Carter, 769 
F.2d at 1543 (citing Norris v. Wainwright, 588 
F.2d 130 (5th Cir.), cert. denied, 444 U.S. 846, 
100 S.Ct. 93, 62 L.Ed.2d 60 (1979). We hold 

- that petitioner's lack of counsel at the state 
habeas hearing did not result i ina lack f funda: 
mental fairness. : 

   

  

  

      

  

   



880 FEDERAL REPORTER, 2d SERIES 
not demonstrate sufficient prejudice to ren- ‘der his counsel ineffective for failing to 
impeach the testimony of Tommy Lee 
Bryant. The court found that Bryant's testimony was largely corroborative of the testimony offered by Regina Higgins and 
Tommy Lancaster, and that the only “inde- 
pendent” testimony provided by. Bryant 
was simply the incident regarding petition- 
er being caught by the clothesline and yell- 
ing to the victim, “You're dead....” The 
court held, “In the total absence of 
Bryant’s testimony, there was sufficient 
evidence to demonstrate [Lancaster’s] guilt.” 3 

{17] We conclude that petitioner was 
properly barred from litigating this issue 
on the merits. Petitioner specifically ques- 

~ tioned counsel regarding Mr. Bryant at the state habeas corpus hearing. Petitioner 
never raised a substantive Brady claim re- 
garding any alleged favorable treatment’ given to Bryant in exchange for Bryant's 
testimony in the first state collateral ac- 
tion, although petitioner obviously had 
knowledge of the subject and could reason- 
ably have raised such a claim 16 Thus, like 
his allegation regarding the favorable 
treatment of Ms. Higgins, Lancaster com- 
mitted procedural default for his failure to 
have raised the substantive issue in his first Tatnall petition. See 0.C.G.A. Sec. 
9-14-51. In order to establish prejudice 
for his procedural default, petitioner must 
show that had the alleged favorable treat- ment in exchange for the testimony of Mr. 
Bryant been revealed to the jury, the result of the trial would have been different. See United States v. Bagley, 473 US. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1987); 
see also McCleskey Kemp, 153 F.2d 8717, 882-85 (11th Cir.1985) (en bane). As 
found by the district court, petitioner can- not make the requisite showing of preju- dice because ‘the testimony of Bryant is largely corroborative of other testimony and fails to satisfy the standard of Bagley. 
16, Petitioner specifically questioned cotinsel re- garding Bryant at the state habeas corpus hear. ing. The record shows that counsel had inter- viewed Bryant prior to trial and was aware Bryant had a prior conviction but did not obtain his record. Petitioner asked if counsel knew 

Thus, this allegation affords 2p 
relief. bho 

C. Ineffective Assistance f 
'Lancaster’s third ground for 

he was denied effective assistanas <b : 
sel at trial. Since petition 
argument in his state court 
will review the merits of his 
tioner raises three specific ing 
effectiveness: (1) counsel's £ 
quately investigate the case; 
to object to the array of the pan 
and (8) counsel's failure to ob 
burden-shifting jury charges, 

[18] The ineffectiveness clair 
tensively reviewed at Lancaster’s prior 
beas hearing in state court, Whil 
of ineffectiveness is a niixed qu 
fact and law, a federal court must trent 
state court's finding of fact with suk tial deference. Martin v. Kemp, 760 
1244 (11th Cir.1985); 28 U.S.C. See. 
In this case, the state court fo 
petitioner's attorney interviewed 
eyewitnesses, ‘and the other witne Se 
gested to him by petitioner. * The 
further determined that the attorne 
viewed ‘all the police officers conne 
with the case and investigated the er 
scene. In addition, counsel filed a B 
motion and obtained an in camera ins 
tion of the prosecution's file by the 
court.’ Based on his investigatio 
counsel developed and presented the theo of self-defense. The district court, n 
that petitioner did not Present any reaso 
to believe these findings were erroneous 
concluded that Lancaster's claim of a lack 
of investigation was completely “wit Sn 
merit.” BL RR v : os git] ; 

[19] Petitioner also’ contended that 
counsel was ineffective for not objecting to the ‘array of the petit jury. Lancaster is 
black. He was tried by an all white jury in 
Cobb County, Georgia... The district court 
whether Ms. Higgins and Bryant had criminal : Sliarges ‘pendi 

: y tri 

ryan 
ROCRRES ya   

lenge. Cour 

gould not have 
ict court reliec 

760 F.2d 1505, 

nied, 765 F.2d : 

¥ peld that an in 
counsel is not 

relief, in conch 
produce “any 
trial counsel ¥ 
not to file whe 
less motion.” 

[20] Finall 
trial counsel's 

den-shifting 1 
sistance ineffe 
sumed for the 
an objection : 
caster could 1 
ing of preju 
whelming prc 

trial.” See 
F.2d 1687, 1 
court held th: 

petitioner of 

Sixth Amenc 

Under the 

land v. Wa 
S.Ct. 2052, 8 
must _demor. 
rors 80 eric 
tioning 28 ti 

Sixth, Amen 

“17. "Although 
ed, and ne! 

tucky, 476 1 
(1986), pet 
Batson-typ¢ 
that Ber. 

i 

However, t 
478 US. 2 
(1986), ‘hel 

retroactive



hoy by du 
942 763 FEDERAL REPORTER, 2d SERIES Gulu bo 

  

APPENDIX—Continued 

stay the obligation of the licensee to 

present the key employee's application 

within the 30-day period herein proscribed. 

(Adopted: 7/76. Amended: 5/77.) 

8.010 ‘General. 

1. No person shall sell, purchase, as- 

sign, lease, grant or foreclose a security 

interest, hypothecate or otherwise transfer, 

convey or acquire in any manner whatsoev- 

er any interest of any sort whatever in or 

to any licensed gaming operation or any 

company, nor become a controlling affiliate 

of a corporate licensee or a holding compa- 

ny, nor become a holding company of a 

corporate licensee or a holding company 

without first obtaining the prior approval 

of the commission in accordance with Reg- 

ulations 4 and 8. 

(Effective: 9/73.) 

i 

{ 

| 
ail 
! 

l. 

0 EY NUMBER SYSTEM — 

ser p 75 
portion thereof, or enter into or create a 

voting trust agreement or any other agree- 

ment of any sort in connection with any   

  
  

    

licensed gaming operation or any portion 

thereof, except in accordance with law and 

these regulations.’ 

2. No licensee shall permit any person 

to make any investment whatever in, or in 

any manner whatever participate in the 

profits of, any licensed gaming operation, 

or any portion thereof, except in accord- 

ance with law and these regulations. 

3. No person shall transfer or convey in 

any manner whatsoever any interest of any 

sort whatever in or to any licensed gaming 

operation, or any portion thereof, to, or 

permit any investment therein or partic- 

ipation in the profits thereef by, any person 

acting as agent, trustee or in any other 

representative capacity whatever for or on 

behalf of another person without first hav- 

ing fully disclosed all facts pertaining to 

such representation to the board. No per- 

‘son acting in any such representative ca- 

pacity shall hold or acquire any such inter- 

est or so invest or participate without first 

having fully disclosed all facts pertaining 

to such representation to the board and 

obtained written permission of the board to 

so act. 

4. Regulation 8 shall apply to transfers 

of interest in corporations subject to Reg. 

15, but shall not apply to transfers of inter- 

est in corporations subject to Reg. 16. 

(Amended: 9/73.) 

15.1594-6 Prohibition with respect to 

ownership of corporate licensees. No 

person shall acquire any equity security 

issued by a corporate licensee or a holding 

James Dea ALKER, Appellant, 719 57 

A.L. LOCKHART, Superintendent of 

the Arkansas Department of 

Corrections, Appellee. 

No. 81-1700 (Habeas). 

United States Court of Appeals, 

Eighth Circuit. 

Submitted Jan. 17, 1985. 

Decided May 17, 1985. 

Mandate Extended June 10, 1985. 

State prisoner petitioned for writ of 

habeas corpus. The United States District 

Court for the Eastern District of Arkansas, 

514 F.Supp. 1347, denied relief in part, and 

petitioner appealed. The Court of Appeals, 

726 F.2d 1238, granted petition for recall of 

mandate affirming District Court, and re- 

manded with instructions. The District 

Court, Henry Woods, J., 598 F.Supp. 1410, 

concluded that record contained no credible 

evidence which merited new trial, and peti- 

tioner appealed. The Court of Appeals, 

Bright, Circuit Judge, held that: (1) trial 

judge’s bias deprived defendant of fair tri- 

al, and (2) state's failure to disclose excul- 

patory transcript provided independent ba; 

sis for granting the habeas corpus petition. 

    

    

  
  

Writ conditionally granted. 

{ 

i 

| 
{ 

  

 



    controlling affiliate 
pr a holding compa- 
ling company of a 

holding company 
the prior approval 
ordance with Reg- 

  

WALKER v. LOCKHART 943 Cite as 763 F.2d 942 (1985) 
Arnold, Circuit Judge, filed concurring 

opinion. : 

John R. Gibson, Circuit Judge, filed 
* dissenting opinion in which Ross, Fagg and 
Bowman, Circuit Judges, joined. 

5. Habeas Corpus €=90.2(8) 
tate’s failure to disclose existence of 

transcript of recorded conversation be- 
tween petitioner’s companion on night of 

. I) — ald mur etitioner was convicted 

  

R, Appellant,     
berintendent of 

artment of 

ppellee. 

abeas). 

of Appeals, 
uit. 

7, 1985, 

ly 1985, 

ine 10, 1985,    
   
   

  

ned for writ of 

d States District 
rict of Arkansas, 

elief in part, and 

ourt of Appeals, 

tion for recall of 

Court, and re- 

The District 
P8 F.Supp. 1410, 
kined no credible 

trial, and peti- 

rt of Appeals, 

i that: (1) trial 

dant of fair tri- 

b disclose excul- 

independent ba- 

corpus petition. 

ted. 

  

      
   
     
   

   
    

   
   
     
   
    
   

   
    

   

   

  

      
  

  

  

and companion’s sister, which contained ex- 
culpatory evidence, despite Sweeping dis- 
covery requests and previous court order 3 v ; directing state to turn over all material : Witness who testified fully at eviden- held on petitioner —cre independent tiary hearing held on remand to district ground Tor granting habeas relief on recon- court following Court of Appeals’ recall of sideration of second application for relief. mandate denying habeas corpus petition 

waived his right to claim privilege against 6. Habeas Corpus ¢=45.3(1.30) self-incrimination. U.S.C.A. Const.Amend. State prisoner raising for first time on 5 : reconsideration of second habeas applica- = tion issue whether state withheld exculpa- 
tory evidence did not waive his right to Under Arkansas law, party may im- federal hearing on the claim where he had peach his own witness by use of prior in- not deliberately withheld the ground for consistent hearsay statement; however, relief and where his failure to raise it soon- probative value on issue of impeachment er was not due to any lack of diligence on must outweigh prejudicial effect arising his part, but rather, was due to state’s from danger that jury will give substantive failure to disclose. effect to prior inconsistent statement. 

  

1. Witnesses ¢=305(1) 
  

  

  

  

  

2. Witnesses ¢=380(5) 

7. Habeas Corpus €=45.3(1.10) 3. Habeas Corpus &=7 While rule of exhaustion of state sina dies generally is to be strictly en- Whether “ends of justice” standard oleate : Ss had been satisfied to permit reconsidera- forced, it is not jurisdictional. tion of merits of claims raised in habeas 8. Habeas Corpus €=45.3(1.50) petitioner’s prior_habeas petition is mixed State was deemed to have waived issue question of fact and law, and it is within whether habeas petitioner failed to exhaust discretion of district court to make that state remedies where state did not argue determination. ; the point. 
4. Habeas Corpus &=7 9. Habeas Corpus ¢=45.3(1.30) 

District court abused its discretion ne ven ¥ State Prisoner secking recon 
determining that habeas petitioner hag net sideration of denial of federal habeas relief 
met “ends of justice” standard to permit had not exhausted Sate remedies with re- reconsideration of merits of claims raised SPect to allegation that State Withhely ox in his first habeas petition, in that, al- gulp Blory SVijence, the evidence could still though not all evidence produced at eviden- be gonsilere d as weighing into the balance tiary hearing was favorable to petitioner, under the “ends of justice Standard. when considered against backdrop of exist- 10. Criminal Law e=444 ing record, evidence, including admission of Purported transcript of recorded con- petitioner’s companion that he owned gun  versation between defendant's companion identified as murder weapon in question, on night of murder for which defendant and evidence that the companion fired a was convicted and companion’s sister, gun on the night in question, created suffi- which contained exculpatory evidence, was cient additional doubt about petitioner’s sufficiently authenticated where the tran- guilt to tip balance of ends-of-justice stan- script was in possession of state crime labo- dard. 

ratory’s chief firearm examiner who was   



  

    
  

      
  

    
                

944 

formerly head of criminal investigation di- 

vision of state police, and where defend- 

ant’s companion confirmed that the tran- 

script reflected general nature of his con- 

versation with his sister and as much as 

admitted making the exculpatory statement 

contained in the transcript, and in view of 

apparent age of the paper, its date, and 

location in which it was found. Ark.Rules 

of Evid., Rule 901(a). 

11. Witnesses €379(4) 

Although transcript of recorded con- 

versation between defendant's companion 

on night of murder for which defendant 

was convicted and companion’s sister, 

which contained exculpatory evidence, was 

hearsay, it would be admissible for im- 

~ peachment purposes. 

12. Constitutional Law &=268(5) 

In order to establish due process viola- 

tion from state’s failure to disclose exculpa- 

tory material, habeas petitioner would be 

required to show that the evidence was 

suppressed, that it was favorable to peti- 

tioner, and that it was material. U.S.C.A. 

Const. Amends. 5, 14. 

13. Constitutional Law &=268(5) 

For purpose of determining existence 

of due process violation in statg’s failure to 

disclose exculpatory material, it was irrele- 

vant whether state acted in good faith or 

bad faith; negligent suppression might be 

sufficient. U.S.C.A. Const.Amends. 5, 14. 

14. Criminal Law &=627.5(1) 

Prosecutor undertakes no obligation to 

provide defense counsel with unlimited dis- 

covery. 

15. Criminal Law &700(2) 

Prosecutor violates his constitutional 

duty of disclosure of evidence only if his 

omission is of sufficient significance to re- 

sult in denial of defendant’s right to fair 

trial. U.S.C.A. Const.Amend. 6. 

16. Criminal Law ¢=1166(10.10) 

In cases in which defendant has made 

general requests for all exculpatory materi- 

al, conviction will be set aside only if omit- 

ted evidence creates reasonable doubt that 

763 FEDERAL REPORTER, 2d SERIES 

did not otherwise exist, and thus, undis- 

closed material must be evaluated in con- 

text of entire record. 

17. Criminal Law ¢=700(7) 

Knowledge of state police concerning 

its possession of exculpatory document be- 

fore defendant’s second trial would be im- 

puted to prosecution and state would be 

charged with suppression of the evidence 

where former head of criminal investiga- 

tion division of state police was aware of 

the document’s contents and was very fa- 

miliar with facts of the case, even though 

he was not involved with general investiga- 

tion of the crime in question. 

18. Habeas Corpus €=90.2(8) 

For purpose of reconsideration of 

state prisoner's second habeas corpus pe- 

tition on ground that state withheld ex- 

culpatory evidence, admission made by per- 

son who was defendant’s companion on 
night of the murder in question that he 

“did shoot at that policeman” was material 

despite contention that it was not clear 

which of two policemen the statement re- 

ferred to, since only one of the recovered 

weapons had been fired, and thus, the 

statement in effect took alleged murder 

weapon out of defendant’s hand. 

19. Judges &49(2) 

Bias of trial judge in murder prosecu- 

tion, as reflected by trial judge's instruc- 

tion to deputy sheriff, after granting de- 

fendant’s request to go to church to be 

baptized, that if defendant “made a move 

to shoot him down, because he didn’t want 

him brought back to him because he intend- 

ed to burn the S.0.B. anyway,” and by 
number of comments adverse to defendant 

during retrial, deprived defendant of fair 

trial. U.S.C.A. Const. Amend. 6. 

20. Habeas Corpus &=25.1(1) 

Claim of newly discovered evidence rel- 

evant only to guilt is not ground for habeas 

relief. 

21. Habeas Corpus €292(1) 

Federal habeas power goes only to con- 

stitutionality of detention, not to question 

of guilt or innocence.  



bnd thus, undis- 

valuated in con- 

) 
police concerning 

bry document be- 

ial would be im- 

state would be 

of the evidence 

iminal investiga- 

ce was aware of 

hnd was very fa- 

ase, even though 

reneral investiga- 
ion. 

2(8) 

pconsideration of 

abeas corpus pe- 

ate withheld ex- 

sion made by per- 
's companion on 

question that he 
an” was material 

it was not clear 

the statement re- 

of the recovered 

d, and thus, the 
k alleged murder 

’s hand. 

n murder prosecu- 

al judge's instruc 

bfter granting de- 
hb to church to be 
hnt “made a move 

use he didn’t want 
because he intend- 
anyway,” and by 
verse to defendant 
defendant of fair 

mend. 6. 

5.1(1) 

hvered evidence rel- 

ground for habeas 

p2(1) 

er goes only to com” 
on, not to questio? 

  
      

~ WALKER v. LOCKHART 945 
Cite as 763 F.2d 942 (1985) 

Bill Bristow, Jonesboro, Ark., for appel- 
lant. 

Theodore Holder, Asst. Atty. Gen., Little 

Rock, Ark., for appellee. 

Before LAY, Chief Judge, and HEA- 

NEY, BRIGHT, ROSS, McMILLIAN, AR- 

NOLD, JOHN R. ‘GIBSON, FAGG, and 

BOWMAN, Circuit Judges, En Banc. 

BRIGHT, Circuit Judge. 

In January 1984 this court, in a five to 

four decision, affirmed the district court's! 

denial of James Dean Walker's second peti- 

tion Tor a writ of habeas corpus. Walker 

v. Lockhart, 726 F.2d 1238 (8th Cir.) (en 

banc), petition for cert. dismissed by stip- 

ulation, — U.S. —, 105 S.Ct. 17, 82 

L.Ed.2d 912 (1984). Thereafter, new eyi- 

dence surfaced relating to the crime for 

which Walker had been convicted. We re: 
called our mandate on June 13, 1984, and 

remanded the case to the district court with 
mstructions to hold a hearing on the new 
evidence and to certify its findings to this 

court. Id. at 1265{ Upon Ul TEVIew 0 

e new evidence and the district court’s 

indings, we_conclude that the ends of jus- 

tice will be served by now directing the 
district court to grant the writ unless the 

  

  

  

  

  

  

  

  

  

  State of Arkansas commences proceedings 
to retry Walker within ninety days from 
issuance of the mandate of this court. 

I. BACKGROUND. 

The factual background and lengthy pro- 
cedural history of this case are set forth in 
Some detail by both the majority and the 
dissent in this court’s recent en banc opin- 
on. Briefly, on April 16, 1963, James 
Dean Walker and a companion, Russell 
Kumpe, were at a Little Rock nightclub 
  

With two women, Linda Ford and Mary 
  

oberts; Following an altercation 

Which another patron was shot, Walker, 

Kumpe, and Ford left the Little Rock area 
In Kumpe’s Oldsmobile. Roberts, who was 
toncerned about Ford, followed in a cab 
1. The Honorable Henry Woods, United States 

District Judge for the Eastern District of Arkan- 

driven by Aaron Paul Alderman. Police 

Officer Gene Barentine pursued and 

stopped the Oldsmobile and parked his ve- 

hicle behind it. Officer Jerrell Vaughan 

arrived on the scene almost immediataly 

thereafter, as did cabdriver Alderman and 

‘another cabdriver, Thomas Short. 

Barentine ordered Kumpe out of the 

driver's sfde 67 the car and began to search 
him. Vaughan approached the Oldsmobile 

on the passenger's side of the car. At this 
point, the precise order of events becomes 

uncertain, but following an 

gunfire, Officer Vaughan lay dead or near 

death with a single bullet wound to his 

heart. Walker, who sustained five gunshot 

wounds, lay face down beside the Oldsmo- 
bile a few feet from Vaughan. In his right 
hand, Walker held a fully-loaded, updis- 
charged gun. Kumpe, who tried to escape 

at some point during the confusion, had 

been shot twice by Barentine. — 

  

  

  

  

  

  er Eg erm 

It is undisputed that the gun found in 

Walker's hand was not the murder weapon. 

Police found a second gun, a fully loaded 

Colt .38, under the front seat of the Olds- 

mobile. A third gun, found either under- 

neath or near Walker's body, was later 

| identified as the murder weapon. 
  

~ The State charged Walker with first de- 
gree murder. At trial, the prosecution pro- 

ceeded on the theory that Walker shot Vau- 

ghan with the gun that was found near his 

body, and that Barentine then shot Walker. 

Linda Ford and cabdriver Thomas Short 

offered evidence indicating that Walker 

shot at Vaughan. Ballistics evidence Indi- 
cated that the bullet which killed Vaughan 

was fired from the gun found on the 

ground near Walker. The jury convicted 

Walker of first degree murder and sen- 

  

  

    

  

  

tenced Rim to death. The Arkansas Su- 

preme Court reversed his conviction and 

remanded the case for a new trial. Walker 

v. State, 239 Ark. 172, 388 S.W.2d 13 
(1965). 

sas.   

 



    

      

A
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AO
 
A
 

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b
 
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.
 

I
 

: 

  

      
    
    

      

946 763 FEDERAL REPORTER, 2d SERIES 

Prior to Walker’s second trial, defense 
counsel moved to disqualify the state trial 
judge on the ground that he was grossly 
prejudiced. The defense presented uncon- 
tradicted evidence that the judge, after 
granting Walker's request to go to church 
to be baptized, had instructed the deputy 
sheriff that if Walker “made a move to 
shoot him down, because he didn’t want 
him brought back to him because he intend- 
ed to burn the S.0.B. anyway.” [R. II, 
83.]2 The trial judge declined to recuse 
himself. During the retrial, he made a 
number of rulings and comments adverse 
to Walker. 

Before the second trial, defense counsel 
obtained disclosure of ballistics evidence 
demonstrating that Vaughan, not Baren- 
tine, had shot Walker. Consequently, the 

  

  

  

    

State changed its theory at the second trial 
  and contended that Walker fired first, and 

that Vaughan, although fatally wounded, 
managed to shoot Walker five times before 
hedied. To support this theory, the State 
adduced essentially the same evidence as at 
the first trial. However, Linda Ford was 
not present at the second trial. The prose- 
cufion € was unavailable, 
and over defense counsel's objections, read 
her testimony from the prior trial into the 
record. The defense was thus unable to 
cross-examine Ford in light of the State's 
altered theory. The ju victed 
Walker of first degree murder, but sen- 
tenced him to life imprisonment. The Su- 
preme Court of Arkansas affirmed the con- 
viction. Walker v. State, 241 Ark. 300, 
663, 408 S.W.2d 905 (1966), cert. denied, 
386 U.S. 682, 87 S.Ct. 1325, 18 L.Ed.2d 403 
(1967). 

Walker then filed his first petition for 
habeas ging, inter alia, 
that the trial judge was biased and that the 
prosecution had suppressed testimony of 

  

  

  

  

  

  

    

  

2. References to the record of Walker's first trial 
will be designated throughout this opinion as R. 
I, ; references to the record of his second 
trial as R. II, ; references to Walker's first 
habeas corpus proceeding will be designated as 
H.1, ; and references to the transcript of 
the October 1984 evidentiary hearing as T. 

cabdriver Aaron Paul Alderman which 
would have been highly favorable to Walk: 
  

  er. At the habeas hearing, Alderman testi- 
fied that Kumpe had scrambled underneath 
the Oldsmobile when the shooting started. 
[H. I, 142.] Alderman claimed that he saw 
Vaughan fire several shots at Walker {H.1 
155], and that Vaughan remained standing 
after Walker had fallen to the ground. [H. 
I, 142.] There was a momentary lull in the 
shooting, and then Alderman heard a final 
shot which had a hollow, muffled sound— 
as though it had been fired from a barrel 
or pipe. [H. I, 141.] Vaughan fell immedi- 
ately after that shot. The police then told 
Kumpe to come out from under the car. 
[H. I, 142] Alderman testified that he 
removed the fully-loaded gun from Walk- 
er's hand. As he walked away, he saw 
another gun near the rear end of the Olds- 
mobile where Kumpe had been during the 
exchange of gunfire. [H, I, 145] 
  

Alderman gave his statement to police 
immediately after the shooting. [H. I, 
146.] Although he moved to Florida a 
month or two later, he claimed that he 
called the “criminal court office” or the 
prosecuting attorney’s office before the 
first trial to advise of his location and avail- 
ability as a witness. [H. I, 169-70.] How- 
ever, he was never called as a witness or 
notified about Walker's trials. bs 
  

  

The district court (Judge Henley) ques- 
tioned Alderman’s credibility on the issue 
of suppression because no written state- 
ment by Alderman had surfaced, he was 
unable to remember details about where 
and how he gave. his statement, and he 
could not identify the person he called to 
advise of his availability as a witness. 
Walker v. Bishop, 295 F.Supp. 767, 779 
(W.D.Ark.1967). The habeas court noted, 
moreover, that Alderman’s account of 
events varied from that of other witnesses. 

3. The district court acknowledged, however, 
that other investigative statements taken from 
witnesses were missing, and that “Alderman 
told a story of some sort” to officials. Walker v. 
Bishop, 295 F.Supp. 767, 779 (W.D.Ark.1967).   

 



Alderman which 

favorable to Walk- 
ng, Alderman testi- 

ambled underneath 

he shooting started. 

laimed that he saw 

ots at Walker [H. I, 

remained standing 

to the ground. [H. 

bmentary lull in the 

trman heard a final 

, muffled sound— 

fired from a barrel 

hughan fell immedi- 

he police then told 

om under the car. 

testified that he 
td gun from Walk- 
ed away, he saw 

ar end of the Olds- 

d been during the 

H. I, 145.] 

itatement to police 

shooting. [H. I, 

oved to Florida a 

e claimed that he 

urt office” or the 

office before the 

location and avail- 

. I, 169-70.] How- 

d as a witness or 

trials. 

ldge Henley) ques- 

bility on the issue 

no written state- 

surfaced, he was 

btails about where 

statement,® and he 

erson he called to 

ity as a witness. 

F.Supp. 767, 779 

habeas court noted, 

nan’s account of 

of other witnesses. 

nowledged, however, 

atements taken from 

and that “Alderman 
o officials. Walker v. 

779 (W.D.Ark.1967). 

  

WALKER v. LOCKHART 947 
Cite as 763 F.2d 942 (1985) : 

- e district court denied the writ, con- 
cluding, inter alia, that it was not con- 
vinced that the State had suppressed Alder- 
man’s testimony, and that the prejudice of 
the trial judge was not sufficient to deny 
Walker due process. A panel of this court 
affirmed the judgment of the district court. 
Walker v. Bishop, 408 F.2d 1378 (8th Cir. 
1969). 

The present litigation originated in 1981 
when Walker filed a second application for 
habeas relief. The district court (Judge 
Woods) ruled that four of the seven claims 
asserted by Walker in his second petition 
had previously been determined adversely 
to him in his original application for habeas 
relief. The court considered the guidelines 
for successive habeas petitions set forth IF 

7s v. Unite ates, 373 U.S. 1, 83 
S.Ct. 1068, 10 L.Ed.2d 143 (1963),* and con- 
cluded that because the prior defermina- 
tions “were on the merits, no intervening 
change in the law had occurred, and Walk- 
ef had presented No new evidence, the 
“ends of justice” would not be served by 
reconsideration of the same claims. Walk- 
er v. Lockhart, 514 F.Supp. 1347, 1350-51 
(E.D.Ark.1981). The trial court permitted 
Walker to present evidence on his newly 
asserted claims, but found the additional 
grounds to be without merit and denied 
the writ. 

  

  

  

  

    

  

  

On appeal, following arguments before a 
panel of this court, the case was referred 
to the court en banc. The court requested 
additional briefing on several issues, includ- 
ing whether the constitutional violations 

  

4. In Sanders, the Supreme Court established 
guidelines governing consideration of successive 
petitions for habeas corpus relief. When a suc- 
cessive application raises grounds previously 
heard and determined, a court need not recon- 
sider those grounds if they were (1) “determined 
adversely to the applicant on the prior applica- 
tion, (2) the prior determination was on the 
merits, and (3) the ends of justice would not be 
served by reaching the merits of the subsequent 
application.” 373 U.S. at 13, 33 S.Ct. at 1077. 
When the successive application presents a dif- 
ferent ground, or if the same ground was 
presented earlier but not adjudicated on the 
merits, “full consideration of the merits of the 
new application can be avoided only if there has 
been an abuse of the writ * * *” Jd. at 17, 83 
S.Ct. at 1078. See Walker v. Lockhart, 726 F.2d 

alleged (prejudice of the trial judge, sup- 
pression of evidence, or other violations) 
had grossly flawed the guilt determination 
in this case. After an en banc hearing, this 
court affirmed the judgment of the district 
court, holding that Walker had failed to 
show that the ends of justice required re- 
consideration of issues determined adverse- 
ly to him in his first habeas application. 

The four dissenting judges concluded 
that a great injustice had been done, and 
that Walker was entitled to habeas relief, 
In particular, the dissent emphasized that 
the admitted prejudice of the trial judge 
had deprived Walker of a fair trial, that the 
prosecution had suppressed evidence favor- 
able to Walker, and that “the record as a 
whole indicates the strong probability that 
Walker did not shoot Vaughan.” 726 F.2d 
at 1252.6 

Judge Arnold, although voting with the 
majority to deny the writ, agreed in a con- 
curring opinion that Walker had been tried 
before a prejudiced trial judge. He pointed 
out that “[i]f due process means anything, 
it means a trial before an unbiased judge 
and jury.” Id. at 1249. Judge Arnold fur- 
ther indicated that he disagreed with this 
cOUrt’s 1969 decision denying Walker's first 

  

  

  

  

  

habeas petition. He noted t 
mere disagreement is not enough to justify 
granting relief on a successive habeas ak 
plication. Something more is required, 
such as a change in the law or “new evi- 
dence unrevealed at the time of the first 
habeas proceeding.” Id. at 1250. 

  

at 1241-43, for a more thorough discussion © 
the Sanders criteria. 

5. On appeal, Walker did not seriously urge error 
with respect to the findings on these additional 
grounds, and, as this court noted, the trial 
court's determinations on the new claims were 
not clearly erroneous. 726 F.2d at 1249. 

6. Judge Heaney served on the panel of this 
court which denied Walker relief in 1969. He 
Joined the dissent on Walker's second petition, 
and joins with the majority in this opinion, 
underscoring his strong belief that the previous 
panel erred, and that only by granting Walker 
habeas relief can we right a grievous miscar- 
riage of justice.   

 



  

He
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948 

In sum, notwithstanding the denial of 

relief, a majority of the en banc court con- 

—eTaded that this court erred in 1969 when it 

denied Walker's application for habeas re- 

lief because Walker had not received a fair 

trial before an unbiased judge. 

    

  

  

  

After issuance of our mandate denying 

‘the=writ of habeas corpus, Walker, on 

March 15, 1984, filed a petition for recall of 

mandate on the ground that new evidence 

about the crime had surfaced. That evi- 

gence came in the form offa diary entry 

written in 1968 by Russell Kumpe, Walk- 

er's companion on the night Officer Vau- 

ghan was killed. The entry indicated that 

Kumpe fired a gun at or near the time 

“Vaughan was shot. In addition, Walker's 

counsel offered to prove that Kumpe ad- 

mitted to his former wife that he, not 

Walker, shot the officer. In response, the 

  

  

  

  

    

  

  

  

“tate indicated that it possessed a tape-re- 

corded statement, which it had never of- 

fered into evidence, in which Walker alleg- 

edly confessed to the crime. 

e granted the motion for recall of man- 

date by a divided vote. The order recited 

in part: 

The case is remanded to the district 

court with instructions«o take evidence 

from Russell Kumpe and his former 

wife, Peggy Davidson, relating to 

Kumpe’s alleged firing of a gun at or 

near the time that Officer Vaughan was 

shot on the night of April 15-16, 1963. 

That evidence is to include the diary en- 

try apparently dated January 16, 1968, 

relating to that incident. 

On remand, the State—may—offes as 

evidence the recorded—confession.. of 

Walker allegedly made after his first tri- 
al. Walker may offer evidence to ex- 

plain that alleged confession. 

The remand proceedings may be limit- 

ed to the receipt of the evidence men- 

tioned by both sides in their papers with 

respect to the recall of mandate, includ- 

ing the Kumpe statements and the re- 

corded confession of petitioner and any 

explanation thereof and such additional 

evidence as the district court in its discre- 

  

  

763 FEDERAL REPORTER, 2d SERIES 

tion may deem relevant to these proceed- 

ings. : 

The district court should determine 

whether any of this evidence is credible 

enough to deserve the attention of a 

jury; whether the evidence would be ad- 

missible if a new jury trial were held; 

and whether the new evidence, when con- 

sidered against the background of the 

existing record, sufficiently tips the bal- 

ance of the “ends of justice” standard to 

require that a new trial be held. These 

findings should then be certified to this 

Court, sitting en banc, which can then 

consider, after briefing and oral argu- 

ment, whether the new evidence, in the 

light of the district court’s findings, re- 

quires a new trial. 

726 F.2d at 1265. 

Judge Arnold, in a separate concurrence 

to the order recalling the mandate, ob- 

served that if the new evidence could estab- 

lish that Kumpe had in fact fired his gun 

on the night in question, such evidence 

would give credibility to Alderman’s ac- 

count of the shooting, which exonerates 

Walker and which has never been heard by 

a jury. 726 F.2d at 1266. Judge Arnold 

concluded that the new material “suffi- 

ciently adds to the uncertainties of this 

case to justify additional proceedings.” Id. 

at 1267. 

Pursuant to our instructions, the district 

court held an evidentiary hearing in Octo- 

Ber 1084. The court heard testimony from 

some thirty witnesses, and considered the 

evidence specifically mentioned in our re- 

mand order, as well as additional evidence 

which surfaced after the recall of mandate. 

The district court concluded that the record 

Contained no credibte evidence whici merit- 

ed a new trial; that only part of the new 

evidence would be admissible if another 

jury trial were held;_that Walker's right to 

due process had not been violated by the 

suppression of, exculpatory material; and 

“That the Tew evidence did not sufficiently 

tip the balance of the “ends of justice” 

standard to require that a new trial be 

held. Walker v. Lockhart, 598 F.Supp. 

1410 (E.D.Ark.1984). 

  

  

  

  

  

  

  

    

  

 



    
to these proceed- 

    
bhould determine 

idence is credible 

e attention of a 

ence would be ad- 
trial were held; 

idence, when con- 

ckground of the 

intly tips the bal- 

ptice”’ standard to 

be held. These 

certified to this 

which can then 

and oral argu- 

evidence, in the 

rt’s findings, re- 

       

      
    
      

   
   

    

    
   

   
    

   

   

   

  

    

    

      

   

  

   

   

   

    

   

    

   

rate concurrence 

e mandate, ob- 

ence could estab- 

het fired his gun 

, such evidence 
Alderman’s ac- 

hich exonerates 

er been heard by 

Judge Arnold 
material “‘suffi- 

rtainties of this 

roceedings.” Id. 

ions, the district 

hearing in Octo- 

I testimony from 

d considered the 
ioned in our re- 

ditional evidence 

bcall of mandate. 

d that the record 

nce which merit- 

part of the new 

sible if another 

alker’s right to 

violated by the 

material; and 
not sufficiently 

bnds of justice” 
a new trial be 

rt, 598 F.Supp. 

   

    

  

  

  

WALKER v. LOCKHART 949 Cite as 763 F.2d 942 (1985) 
This matter is now before us for further 

review in light of the evidence presented 
and the district court’s findings. 

II. DISCUSSION. 

The question before this court is whether 
the new evidence sufficiently tips the bal- 
ance of the ends of justice standard to 
permit us to reconsider the merits of the 
claims raised in Walker’s first habeas peti- 
tion. We must assess, among other things, 
the admissibility and credibility of the evi- 
dence presented, but as to credibility, the 
issue is not whether the district court or 
this court would find the new evidence 
credible, but whether the evidence possess- 
es sufficient credibility that it should be 
heard by the real factfinder: the jury.” 

  

  

  

A. Evidence Considered Under The 
Ends of Justice Standard. 

1. Kumpe’s Testimony. 

Russell Kumpe, who did not testify at 
any of the prior proceedings in this case,’ 
appeared at the evidentiary hearing as a 
witness for both the petitioner and the 
State. Kumpe, while blaming Walker for 
Vaughan’s death, offered a version of 
events inconsistent, with the State’s theory 
at the second trial that Walker fired first 

7. The dissent suggests that the court has ignored 
the district court's finding that the newly discov- 
ered evidence is not sufficiently credible to de- 
serve the attention of a jury. Post, at 964. Although we directed the district court to make 
that determination in our remand order, the 
district judge seems instead to have made his 
own assessment of the credibility of the evi- 
dence. See 598 F.Supp. at 1430. However, to 
the extent that the district court did make a 
factual determination on the lower threshold 
question of whether the evidence was at least 
sufficiently credible to be heard by a jury, we 
believe that the court's determination that the 
evidence did not meet that minimal level of 
credibility is not plausible in light of the record 

and Vaughan, although fatally wounded, 
returned the fire. Kumpe repeatedly as- 
serted that Vaughahs 1ired 
first According to Kumpe, Officer Baren- 
tine ordered him to get out of the Oldsmo- 
bile, and then told him to “spread eagle the 
police car,” which was parked directly be- 
hind Kumpe’s vehicle. [T. 105.] Kumpe 
leaned over the left front fender with both 
arms spread out and his stomach pressed 
up against the police car. [T. 20.] From 
that position, he looked “down toward the 
Oldsmobile.” [T. 106.] 

And while I was looking down Walker 
cracked the door and when he did the 
dome light came on and I could see that 
he had a pistol in his hand. And about 
this same time Vaughan came up and he 
parked directly behind Barentine but 
slightly to the right so the two police 
cars were behind one another. 

[T. 106.] Barentine was searching Kumpe 
as Vaughan approached the Oldsmobile. 
umpe warned Vaughan that Walker had 

a gun, and Vaughan responded “that he 
had a gun and he'd get the S.0.B. And as 
he approached the car, the door—the door 
came open and Vaughan shot Jim and Jim 
returned the fire and shot and killed Vau- 
ghan.” [T. 107] Vaughan fired first; the 
first two flashes came from his gun, and 

  

  

  

  

tween the Sanders ends of justice standard and 
Rule 33 motions for new trial. Post, at 965 n. 
4. Jones, however, was not a habeas case and 
did not involve a successive petition. Moreover, 
it was decided three years before the Supreme 
Court formulated the ends of justice standard in 
Sanders. In Jones, the court was faced with a 
motion for a new trial. In addition, the trial 
judge in Jones had heard all of the evidence, 
unlike the present case in which Judge Woods, 
who was not the trial judge or the district court 
judge in the first habeas proceeding, has not 
heard all of the evidence. Thus, contrary to the 
dissent’s assertion, Jones is neither persuasive 
nor illustrative. 

: is : : 8. At the hearing, Kumpe stated that hen the 
Viewed in its entirety, and is therefore clearly tmp Wien €rroneous. See Anderson v. City of Bessemer 
City, — U.S. ———— we, 105 8.C1. 1504, 1511, 84 
L.Ed.2d 518 (1985). 

The dissent further asserts, relying on Jones v. 
United States, 279 F.2d 433 (4th Cir.1960), that, 
in assessing whether newly discovered evidence 
is sufficiently credible to be heard by a jury, we 
ave drawn an unwarranted distinction be- 

prosecutor asked him about testifying at Walk- 
er’s trials, he indicated his unwillingness to do 
so. “[The prosecutor] told me that he was going 
to subpoena me and put me on the stand and if 
I lied he'd charge me with perjury. And I dis- 
tinctly remember telling [him] that I was aware 
he could put me in jail for lying but he couldn't 
do anything to me for having a bad memory 
and I had no intention of testifying.” [T. 94.]   



  

      
    

            

950 

the next flash came “[f]Jrom the car from 
where Walker was.” [T. 107.] Kumpe did 

not actually see Walker's hand when he 

fired the shot; he saw only the flash of the 
gun. [T.55.] Kumpe swung off the police 

car and “took off.” Barentine, who by that 

time had unholstered his gun, shot Kumpe 
twice. Kumpe ran around the police car, 

then looked back and saw Barentine stand- 
ing near the front of the police car firing 

down toward Walker and the Oldsmobile. 
[T. 108.] 

Kumpe’s testimony that Vaughan fired 

763 FEDERAL REPORTER, 2d SERIES 

Colt .38 in his possession on the night in 

question. [T. 21-24, 112.] Kumpe claimed 
that he left both weapons in the Oldsmo- 
bile.?? [T. 22.] Yet, several witnesses tes- 
tified at the hearing that Kumpe told them 
he was armed when he got out of the car.1? 
[T. 174-75, 207, 240, 278.] Although 
Kumpe denied making any such state- 
ments, a jury could reasonably infer from 
the testimony of these witnesses and other 
new evidence adduced at the hearing that 
the gun that killed Vaughan was in 
Kumpe’s—not Walker’s—possession at the 

  

a ss 
State's theory about Vaughan’s death; but 
th& credibility of Linda Ford's testimony 
that Walker initiated the shooting, and that 

testimony was crucial to the conviction of 
Walker.? 

After the shooting, police found three 

weapons at the scene: a fully-loaded 

Colt .38 revolver found under the front 

seat of the Oldsmobile; a fully-loaded .38 

caliber Smith & Wesson with a two-inch 

barrel found in Walker’s right hand,!® and 

the weapon which caused Vaughan’s death, 

a .38 caliber Smith & Wesson with a four- 

inch barrel, variously described as having 

been found underneath Walker’s body [H. 

I, 272], near the rear end of the Oldsmobile 

[H. I, 145], under the right rear wheel of 

the Oldsmobile [H. I, 366], and underneath 

the passenger’s side of the car. [T. 595.] 

Kumpe has now admitted ownership of the 

murder weapon. [T. 21-22] He also ad- 

mitted that he had that weapon and the 

  

    

9. It is worth noting that cabdriver Thomas 
Short did not actually see Walker fire. [H. I, 
300.] In addition, Barentine testified at the 
1984 hearing that he did not see Walker fire a 
shot. [T. 587.] 

10. No witness has testified to seeing Walker 
with more than one gun at the time of the 
shooting. 

11. Importantly, at the October 1984 hearing, 
Officer Barentine authenticated a police report 
he filed on April 16, 1963, which stated: “We 
removed the gun from [Walker's] hand then 

found another gun underneath the passenger's 
side of the car on the ground.” [T. 594-95.] 

12. Kumpe testified that when he and Walker 
left the Little Rock area, he put one of the guns 

time of the shooting. 

2. Kumpe’s Diary Entry. 

In November 1983, while cleaning out a 
closet, Russell Kumpe’s former wife, Peg- 
  

gy Davidson, found a box containing some 
of"Kumpe's belongings. Included among 
  

  “—the belongings was a diary written by 
  

Kumpe in 1968 while he and Walker were 
inmates in the Arkansas Penitentiary. The 
diary entry for January 16, 1968, reads in 
pertinent part as follows: 

Awakened at 1:30 A.M. by nite sheriff— 
Told only to go to Mr. O’s office—Emer- 
gency. A great deal of agitating being 

done by James Dean Walker. I look at 
him and feel much remorse that I fired 
too high on 4-16-63. He, according to 
rumor has vowed that he will kill me at 
first opportunity. I do not underesti- 
mate his potential, but am not alarmed. 

[PLExh. 1] (emphasis added). 

The authenticity of the diary stands un- 
questioned. At the hearing, Kumpe identi- 

in his waistband and the other on the front seat 

of his car. He further testified that, before he 

got out of the car, he placed the gun that had 
been in his waistband under the driver's seat. 

13. According to the witnesses, Kumpe said that 
the gun was in his waistband, but Barentine 
missed it when he frisked Kumpe because 
Kumpe pressed himself hard against the police 
car, and Barentine had not completed the 
search when the shooting began. To refute the 
witnesses’ testimony, Kumpe claimed that Bar- 
entine’s search had been thorough enough not 
to have missed a gun in Kumpe's waistband. 
[T. 132-33.] Barentine testified, however, that 

he had not completed his search when the 
shooting began [T. 587], and that he shot 
Kumpe because he did not know whether or not 
he was armed. [T. 602.]  



     

    

    

    

  

   

  

   

              

   

  

    

  

    

  

   

    

  

pn the night in 
Kumpe claimed 
in the Oldsmo- 

| witnesses tes- 
mpe told them 

but of the car.!? 

8.] Although 
y such state- 
hbly infer from 
esses and other 
e hearing that 
ghan was in 

bssession at the 

Entry. 

cleaning out a 

mer wife, Peg- 
ontaining some 
ncluded among 
hry written by 

d Walker were 
hitentiary. The 

, 1968, reads in 

y nite sheriff— 

s office—Emer- 
agitating being 
lker. I look at 
brse that I fired 

fe, according to 

ep will kill me at 

not underesti- 

m not alarmed. 

fd). 

Hiary stands un- 

r, Kumpe identi- 

   

    

     

  

     

   

      

   

        

   

r on the front seat 

ied that, before he 

i the gun that had 
the driver's seat. 

   
    

  

s, Kumpe said that 
nd, but Barentine 

{ Kumpe because 
i against the police 
jot completed the 
gan. To refute the 

k claimed that Bar- 
brough enough not 
umpe's waistband. 
fied, however, that 

search when the 
and that he shot 
now whether or not 

    

    

    

   

   
    
   

  

  

    
    
    

  

    

WALKER v. LOCKHART 951 
Cite as 763 F.2d 942 (1985) 

fied the handwriting as his [T. 36], and 

acknowledged that he kept the diary for 

over a year. [T. 139-40.] Although 

Kumpe did not deny making the entry in 

question [T. 39], he explained that he made 

a mistake when he wrote “I fired too high,” 
because he meant to write “he fired too 

high” (referring to Officer Barentine).!4 

[T. 41.] Kumpe offered several reasons for 

his alleged mistake,'® but ultimately denied 
that : 

any particular thing caused me to write 

“I” instead of “he” * * * I think it was 

the fact that probably that I was writing 

along and using the pronoun, personal 

pronoun “I, I, I” and when I got to that 

point—I'm guessing. now because I was 

only—I wrote “I” instead of “he” * * * 

And I can’t give you a better answer 

than that. 

[T. 138.] 

The district court characterized Kumpe’s 

explanation that he substituted “I” for 

“he” as “somewhat dubious.” Walker v. 
Lockhart, 598 F.Supp. at 1428. Whether a 

jury would credit his explanation remains 

to be seen.'® What is clear, however, is 

that the diary provides admissible evidence 

that Kumpe said he fired a shot on the 

night in question, See 1d. 

3. Kumpe’s Statements to His 

Former Wife. 

Peggy Davidson, who was married to 

Kumpe from 1968 to 1975, testified that 

Kumpe told her on’ two or three occasions 

  

  

  

‘that he was armed at the time of the shoot: 
  

ing. [T. 180.] On one of those occasions, 

14. Although the entry contains no other refer- 
ence to Barentine, Kumpe offered the following 
explanation for his contention: “Well, Mr. Bar- 
entine was firing rather wildly and he certainly 
was shooting over Mr. Walker if Mr. Walker is 
in the position where he was, and he’s shooting 
through the Oldsmobile so certainly he's firing 
too high.” [T. 54.] 

15. Kumpe variously suggested that the mistake 
was the result of writing the diary with his hand 
inside a desk drawer [T. 40], writing the entry 
hurriedly and in poor lighting [T. 124], and 
writing the entry after a brief encounter with 
Walker that left him agitated. [T. 136-37.] 

16. A jury might deem it significant that Kumpe 
chose the word “remorse” to describe his feel- 

in the presence of Davidson and two other 

people, Kumpe stated that he had a gun in 

his pants when he got out of the car which 

Barentine missed during the search, and 

that he, Kumpe, fell down under the Olds- 

mobile after the shooting started. [T. 175, 

178.] During that conversation, Kumpe 

did not say whether he had fired any shots. 

[T. 177-78.] Afterwards, however, when 

they were alone, Davidson recounted that 

she said to Kumpe: “ ‘Russell, you 

shouldn't tell that. The way you tell that,’ 

I said, ‘it sounds like you did it.” And he 

kind of grinned and he said, ‘I did.” ” 17 [T. 

178.] According to Davidson, Kumpe told 

her on another occasion that “he only made 
  

  

~gme mistake. He didn't kill James Dean 
  

Watker too.” |[T. 179.] 

T istrict court found that Pe 

Davidson’s testimony should be viewed 

with skepticism because of her apparent. 

animosity toward Kumpe and her sympa- 
thy for Walker. 598 F.Supp. at 1428, Yet 

this important testimony, supported by 

Kumpe’s diary entry, is certainly credible 

enough to deserve the attention of a jury. 
gro—" 

Pe 

  

  

  

  

  

  

[1] It may be that Kumpe’s diary and 

his statements to Davidson and others, as 

hearsay, would not be admissible as sub- 

stantive evidence at a new trial. Neverthe- 

less, such evidence could at least come 

before the jury for purposes of impeach- 

ment. It is reasonable to assume that if 

the State retries Walker, Kumpe would 

again be called as a witness, and that he 

would be available to testify.!® Having 

ings about firing too high. “Remorse” usually 
reflects the feeling a person has about his own 
acts or omissions, not the acts of others. 

17. Kumpe denied making this response and as- 
serted that he had once responded to a question 
from Davidson about the possibility that Walker 
might be innocent by saying, “ ‘Well, Christ, 
Baby, there were only three people out there. If 
[Walker] didn't do it and the policemen didn't 

do it, I said, ‘that only leaves me.”” [T. 87.] 

18. Kumpe is presently an inmate in the Arkan- 
sas prison system. If, however, Kumpe is una- 

vailable for some reason at the time of a new 
trial, the diary and his alleged statements might 
be admitted under the hearsay exception for



    
      

        
    

952 

testified fully at the October 1984 hearing, 

Kumpe has waived his right to claim the 

privilege against self-incrimination. Nor 

could he now claim (as he did to avoid 

testifying at Walker's first two trials) that 

he has no memory of the events in ques- 

tion. Presumably the State, having charac- 

terized his testimony as “critical” [Appel 

lee’s Brief at 4], would call Kumpe to give 

his account of the events surrounding Vau- 

ghan’s death. On cross-examination, the 

defense could ask Kumpe whether he fired 

a gun that night. If Kumpe’s answer is 

no, he could then be asked about the diary 

entry, and about other newly discovered 

evidence indicating that he fired a weapon 

that night. If Kumpe admits the diary 
entry and other statements now attributed 

to him, then, as Judge Arnold explained in 
voting to recall the mandate, 

the fact of these prior inconsistent state- 

ments would then be before the jury, 

together with whatever explanation 

Kumpe might wish to offer. If, on the 

other hand, he denies making the alleged 

prior inconsistent statements, extrinsic 

evidence of these statements, including 

the diary itself and the testimony of 

Kumpe’s former wife, could be offered 

for impeachment purposes. See Jones, 

Case Note, Roberts v. State* 4 Limita- 

tion on the Impeachment of Witnesses 

by Extrinsic Evidence of Prior Incon- 

sistent Statements, 37 Ark.L.Rev. 688 

(1984). In either event, the jury would 

know about the diary entry and the al- 

leged oral admissions. It would have an 
opportunity to observe Kumpe in person 

and to assess his credibility in light of all 

the circumstances, including the prior in- 

consistent statements. Ordinarily, newly 

discovered evidence is not sufficient to 

declarations against penal interest. Ark.Stat. 
Ann. § 28-1001, Rule 804(b)(3) (Repl.1979). 

19. Under Arkansas law, a party may impeach 
his own witness by use of a prior inconsistent 
hearsay statement. Roberts v. State, 278 Ark. 
550, 648 S.W.2d 44, 45 (1983). However, the 

probative value on the issue of impeachment 
must outweigh “the prejudicial effect arising 
from the danger that the jury will give substan- 
tive effect to the prior inconsistent statement.” 
Id. In Roberts, the Arkansas Supreme Court 

763 FEDERAL REPORTER, 2d SERIES 

justify new proceedings if it goes only to 
the credibility of a witness, but this case 
is so evenly balanced that this sort of 
impeachment of Kumpe’s credibility 
could well be decisive in the mind of the 
jury. : 

726 F.2d at 1266. 

[2] Even if the State does not call 
Kumpe as a witness, the defense may do 
so. The State argues, citing Allen w. 
State, 281 Ark. 1, 660 S.W.2d 922, 924 
(1983), that Arkansas law does not permit a 
party to call a witness merely to lay a 
foundation for a prior inconsistent state- 
ment. However, in the present case, the 
defense would undoubtedly wish to call 
Kumpe not merely for impeachment pur- 
poses, but for the substantive purposes of 
establishing that Vaughan fired first and 
that Kumpe owned the murder weapon and 

had it in his possession on April 16, 1963. 

On cross-examination, Kumpe would very 

probably offer his account of the shooting. 
The defense would then, on redirect, have 
an opportunity to impeach Kumpe with his 
prior inconsistent statements.!® 

4. Walker’s Alleged Confession. 

a. The Walker-Karam Tape. 

In May 1964, shortly after he was con- 

victed and sentenced to death at his first 

trial, Walker agreed to make a tape-record- 

ed statement for Jimmy Karam, a member 

of the Gideons. While in jail, Walker had 

undergone a religious conversion and had 

been baptized. Karam wanted to obtain 
Walker's personal testimony for use by 
Billy Graham and by the Gideons at church 
meetings and revivals “to help young peo- 

ple not to fall by the wayside” as Walker 

had done. [T. 558.] The tape, which was 

ruled that the impeachment should not have 
been allowed because the danger was too great 
that the defendant would be convicted on the 
basis of unsworn testimony. No such danger 

© exists with respect to the impeachment evidence 
in question here. Rather, the evidence would 
go to impeaching the credibility of a witness 
who has claimed to be “the only person that 
actually knew what happened out there that 
night.” [T. 46.]   

  

       



it goes only to 
ts, but this case 

at this sort of 

he’s credibility 
e mind of the 

does not call 

lefense may do 

iting Allen wv. 

W.2d 922, 924 

bes not permit a 

erely to lay a 

onsistent state- 

esent case, the 

y wish to call 

beachment pur- 

ive purposes of 

fired first and 

der weapon and 
April 16, 1963. 

pe would very 
bf the shooting. 

redirect, have 

umpe with his 
19 

onfession. 

hm Tape. 

er he was con- 

ath at his first 

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elp young peo- 

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WALKER v. LOCKHART 953 
Cite as 763 F.2d 942 (1985) 

intended to show Walker's conversion and 
repentance, was recorded by a state police 
officer at the Pulaski County Jail. The 
original tape has apparently been in the 
possession of the Arkansas State Police 
since May 1964. [T. 525.] In the course of 
his testimony as a born-again Christian, 
Walker says, among other things: 

And I come to Little Rock, Arkansas, and 
again, I was drinking and that led to a 
fight up here in a nightclub. Now it’s 
led to murder. I killed a man out here, 
plus ... it’s probably late now to say 
that it wasn’t done intentionally, but it 
wasn’t. * * * One day we were having a 
prayer, and I asked the Lord to forgive 
me if he could for my sins that I commit- 
ted because I had committed I can say, 
ah, every sin imaginable ... stealing up 
to adultery, fornication ... murder even. 

* * * * * * 

Yes, I know it’s hard on you to take a life 
Her [Mrs. Vaughan’s] husband's 

dead and that in some way, I don’t know 
how, I would like to tell her that ... I 
know “I'm sorry” doesn’t say very much, 
but ... that’s how ... it's a terrible 
thing to have happen.” 

[Def.Exh. B.] 

Although the taped statement was avail- 
able to the State at the time of Walker's 
second trial, the State did not attempt to 
offer it into evidence. Thus, while the tape 
is new to us, it is not new to the parties, 
nor is it newly discovered evidence in the 
Same sense as Kumpe’s statements. 
Nevertheless, on remand we authorized the 
State to offer the alleged confession into 
evidence. 

At the hearing, Walker did not deny hav- 
ing made the statements quoted above. 

20. Walker denies that either he or the Gideons 
for whom he made the tape intended his “Chris. 
tian testimony” to be a confession of legal guilt. 
Near the beginning of the tape, Karam states 
that Walker is there to “take” the jury's verdict 
of murder in the first degree. Yet the Gideons 
were not suggesting that Walker should accept 
the verdict as a legal matter. In fact, the Gide- 
ons not only encouraged Walker to appeal, they 
retained counsel for the purpose of challenging 
the legal verdict. [T. 558, 657, 695.] 

He explained, however, that the statement 
he recorded for Karam “was never meant 
to be any kind of a confession to murder 
* * * [o]r to shooting Officer Vaughan.” 
[T. 657.] Rather, Walker intended only to 
indicate his acceptance of moral—as distin- 
guished from legal—responsibility for Vau- 
ghan’s death [T. 650], a responsibility 
which he accepts to this day.?® [T. 642.] 
He explained that, regardless of what actu- 
ally happened at the scene, he was morally 
responsible for the whole chain of events 
leading up to a man’s death, and his accept- 
ance of that responsibility, as reflected in 
his statement, was part of his acceptance 
of Christian teaching. [T. 641-42.] With 
respect to the tone of the tape and his 
mode of expression, Walker recounted that, 
just prior to the taping, Karam encouraged 
him to make the testimony as powerful as 
possible so that it would have the greatest 
impact on young people. [T. 649.] In fact, 
during the taping, Karam encouraged 
Walker to elaborate more and “ ‘[bleef it 
up’ a little bit, so to speak.” [T. 654.] 

Walker further explained that, from the 
time he woke up in the hospital to the time 
of his first trial, he did not know whether 
or not he was directly responsible for Vau- 
ghan’s death. As soon as he regained con- 
sciousness, he was told that he had killed a 
policeman. [T. 630-31.] He remembered 
being 

thoroughly confused. I began to search 
my mind on the events that had hap- 
pened and I knew that I could not re- 
member firing a shot, and I kept search- 
ing my mind as to the possibility that 
maybe in the process of being shot, 
maybe I could have fired a round reflex- 
ively. But I, I could not recall firing, no. 

21. Walker also explained that, while he has nev- 
er denied moral responsibility for Vaughan be- 
ing killed, “[t]here’s a great difference between 
someone being murdered and someone getting 
killed, and Officer Vaughan got killed that night 
somehow, and I simply don’t know how.” IT. 
664.]  



  

    
  

      
            

954 

[T. 631.] During the months before his 

first trial, Walker considered the possibility 

that, as he was being shot, he might have 

squeezed the trigger as a reflex action. [T. 

675.] But at his first trial, when Walker 

learned for the first time that the gun 

removed from his right hand was fully- 

loaded, he knew (he says) that he could not 

have shot Vaughan because he only had 

one gun.?? [T. 693.] 

The district court found that Walker's 

explanation for his apparent admission “did 

not ring true.” 598 F.Supp. at 1429. Yet a 

jury might accept Walker’s explanation for 

his statement to Karam. A jury would, 

moreover, view all of Walker's statements 

in the context of the record as a whole, 

including Alderman’s testimony and some 

of the newly discovered evidence which 

suggest that someone else may have fired 

the bullet that killed Vaughan. 

The district court, after hearing the evi- 

dence on remand, attached particular sig- 

nificance to the idea that Walker could 

have shot Vaughan reflexively. The court 

noted that if Vaughan opened fire, it is 

“logical that Walker would return the fire 

either deliberately or by reflex action after 

Vaughan shot him.” Id. at 1429-30. The 

trial judge's statement carries with it the 

implication that if Walker fired a gun at 

all, he may have done so unintentionally, in 

which case the crime committed did not 

amount to first degree murder. The trial 

judge’s suggestion is thus completely at 

odds with the theories advanced by the 

State at either of Walker's trials. See 

ante, at 945-946. 

22. During the remand hearing, Judge Woods 
ascertained that Walker remembered getting out 
of the car with a gun in his hand. The judge 
then asked: “Do you think that maybe as a 
result of getting shot that by reflex action, it’s 
possible that you could have shot Officer Vau- 
ghan?” Walker responded, “I have thought that 
that could have been possible, Your Honor.” 

" [T. 666.] When asked later if he had not essen- 
tially admitted the possibility that he may have 
shot Vaughan, Walker explained that his answer 
to the judge's question was intended only to 
reflect the beliefs he held prior to his first trial. 
[T. 675-76, 684-85, 689-90.] 

763 FEDERAL REPORTER, 2d SERIES 

b. The Carnahan Testimony. 

Ray Carnahan testified that in 1973, 

when he served as a Highway Patrolman, 

he and his immediate superior, Bill Skipper, 

drove Walker from an Arkansas prison fa- 

cility to a Little Rock church for a speaking 

engagement. According to Carnahan, 

Walker stated on the way there that “he 

had gotten into the wrong crowd as a 

young man and that one thing led to anoth- 

er and the night that the officer was killed 

that he didn’t want to go to jail and he shot 
the officer.” [T. 152.] 

~ Walker denied ever telling anybody that 

he shot Officer Vaughan. [T. 664, 674.] 

Bill Skipper, who was driving the car and 

who sat next to Carnahan, remembered 

that a conversation took place during the 

drive, but did not remember that Walker 

said he shot anyone. [T. 160-62.] The 

credibility of Carnahan’s story again would 

be a matter for the jury. 

[3,4] After carefully reviewing all of 

the evidence presented at the hearing, we 

conclude that a significant portion of that 

evidence bears on the question of Walker's 

guilt or innocence, that it would be admissi- 

ble if a new trial were held, and that it is 

credible enough to be heard by a jury.? 
Although not all the evidence produced in 

response to our order of remand is favor- 

able to Walker, when considered against 

the backdrop of the existing record, the 

evidence creates sufficient additional doubt 

about Walker's guilt to tip the balance of 

the ends of justice standard and permit 

reconsideration of claims previously deter- 

mined by a panel of this court.?* Of partic- 

23. It is worth recalling that two of the witnesses 
to the events in question, Kumpe and Alderman, 
have never been heard by a jury. 

24. The dissent states that the court has ignored 
the district court's finding that the newly discov- 
ered evidence does not sufficiently tip the bal- 
ance of the ends of justice standard to permit 
further consideration of Walker's claims. 
Whether the ends of justice standard has been 
satisfied is a mixed question of fact and law, 
and it is within the discretion of the district 
court to make that determination. For the rea- 
sons discussed in the text, we hold that the 

district court abused its discretion in concluding 
that the ends of justice standard has not been  



imony. 

hat in 1973, 
hy Patrolman, 

, Bill Skipper, 

sas prison fa- 

or a speaking 
o Carnahan, 

here that “he 

crowd as a 

led to anoth- 

cer was killed 

hil and he shot 

anybody that 

[T. 664, 674.] 
g the car and 
remembered 

ce during the 

that Walker 

160-62.] The 
again would 

iewing all of 

e hearing, we 

ortion of that 

bn of Walker's 

1d be admissi- 

and that it is 

d by a jury.? 
e produced in 

mand is favor- 

idered against 

g record, the 
dditional doubt 

the balance of 

rd and permit 

eviously deter- 
rt.2¢ Of partic- 

o of the witnesses 

pe and Alderman, 
ry. 

ourt has ignored 
the newly discov- 
ently tip the bal- 
andard to permit 
Walker's claims. 

tandard has been 

of fact and law, 
bn of the district 

tion. For the rea- 
we hold that the 

tion in concluding 

lard has not been 

WALKER v. LOCKHART = 955 
Cite as 763 F.2d 942 (1985) 

ular importance is Kumpe’s admission that 

he owned the gun identified as the murder 

weapon, and the evidence that Kumpe fired 

a gun on the night in question, as indicated 

by the testimony of his former wife, and 

his own diary entry of January 16, 1968. 

Because Walker has established that the 

newly discovered evidence justifies recon- 

sideration of his claims, he is entitled to 

habeas relief. In our recent en banc opin- 

ion, both the majority and the dissent thor- 

oughly considered the merits of Walker's 

claim that the bias of the trial judge de- 

prived him of a fair trial. - Five of the 

judges of the en banc court agreed that 

Walker had been tried before a biased 

judge and had, therefore, been deprived of 

his right to due process. See In Re Mur- 

chison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 

99 L.Ed. 942 (1955). Four of the judges 

(Lay, Heaney, Bright, and McMillian) voted 

to grant habeas relief. The fifth judge, 

Judge Arnold, voted with the majority to 

deny relief because the ends of justice stan- 

dard had not been satisfied. Upon the 

additional record, a majority of the en banc 

court is now satisfied that we may review 

Walker's claims, and that the merits re- 

quire reversal ofthe denial of Walker's 

successive petition for habeas corpus relief. 

B. Suppressed Evidence: The Kumpe- 
Eisner Transcript. 

Less than a week before the October 

1984 hearing began, the S over 

to Walker's counsel a most extraordinary 

  

  

and revealing piece olf evidence: a tran- 
  

script of a surreptitiously recorded conver- 
  

tisfied in the circumstances of this case. Our 
holding is particularly appropriate in light of 
two factors. First, much of the existing record 
in this case—all of which must be weighed in 
the balance under the ends of justice standard— 
was not made before Judge Woods, and has 
been thoroughly and independently reviewed by 
this court. Second, Judge Woods’ suggested the- 
ory of the crime (see ante, at 954) contradicts 

the State's trial theory that Walker intentionally 
fired the first shot. 

25. The tape recording itself has not surfaced. 
The transcript is a typed carbon copy the head- 

ing of which indicates that it is a “recorded 
visit” between Kumpe and Eisner which oc- 

sation between Russell Kumpe and his sis- 

ter Mitdred “Eisner (now deceased). The 

conversation occurred during one of Ms. 
  

- Eisner’s visits with her brother at the Ar- 

kansas Penitentiary. The eleven-page 

transcript of the conversation 2° dated No- 

vember 12, 1963, includes the Tollowing 
statement by Kumpe: 

Now look, I am going to explain some- 

thing to you. You understand that I did 

shoot at that policeman and he will go 

crazy trying to figure out what happened 

to the gun. If they place the gun in my 

hand naturally they could, no, they 

-couldn’t either cause [sic] I had been 

back in his custody, I don’t know what 

they could have done and at the time I 

didn’t care fro [sic] everybody was shoot- 

ing at everybody else and I had some 

things on me that would have got me a 

hundred years. I had to get rid of them. 

[PL.Exh. 2.] 

[5-9] Walker contends that the Kump: 

Eisner transcript contains exculpatory ew- 
dente; that-it—has—been inthe State's peos- 

Session for over twenty years, and that the 

State's failure to disclose it—despite 
sWeepmg—diseovery—requests~and a 1967 

court order directing the State to turm over 

all material held on James Dean Walker— 

creates an independent basis for granting 

habeas relief. We agree. Although’ the 

transcript 1s relevant to the “ends of jus- 

tice” analysis, the State’s suppression of 

this exculpatory material constitutes a sep- 

arate and independent ground for relief 

which we now review for the first time.26 

  

  

  

  

curred between 1:00 P.M. and 3:00 P.M. on 

November 12, 1963. 

26. Although Walker made a suppression argu- 
ment in his first habeas petition, this particular 
claim has not previously been raised or con- 
sidered. Therefore, under Sanders v. United 
States, full consideration of the merits of the 
claim can be avoided only if there has been an 
abuse of the writ. 373 U.S. at 17, 83 S.Ct. at 
1078. In the present case, Walker has not delib- 

erately withheld this ground for relief, nor was 
his failure to raise it sooner due to any lack of 
diligence on his part. Rather, the cause for 

Walker's delay in presenting this claim rested on 
the State’s failure to disclose. Under the circum-  



  

  
    

  
      

956 

1. Authenticity of the Transcript. 

[10] As a threshold matter, we must 

consider whether the transcript has been 
sufficiently authenticated to be admitted 

into evidence. The district court rejected 
Walker's efforts at authentication, and 

found the transcript to be inadmissible 

hearsay. We disagree. 

Rule 901(a) of the Arkansas Rules of 

Evidence provides: “[T]he requirement of 

authentication or identification as a condi- 

tion precedent to admissibility is satisfied 
by evidence sufficient to support a finding 

that the matter in question is what its 
proponent claims.” Ark.Stat. Ann. § 28- 

1001, Rule 901(a) (Repl.1979). The nature 

of the document itself and the location in 

which it was found, together with Kumpe’s 

own testimony, establish adequate authen- 

tication to render the transcript admissible. 

Paul McDonald, now Chi i X- 

aminer for the Arkansas State Crime Labo- 

ratory, and formerly head of the Criminal 

Investigation Division of the Arkansas 

stances, Walker has not waived his right to a 
federal hearing on the claim. The district court 
has, in fact, already received and considered 
evidence on this issue, and the memorandum 
opinion discusses the merits of this suppression 
claim at some length. 598 F.Supp. at 1430-33. 

Although we review this as essentially a new 
claim by a state prisoner, no exhaustion prob- 
lem exists. While the exhaustion rule generally 
is to be strictly enforced, it is not jurisdictional. 
See Strickland v. Washington, — U.S. —, 104 

. S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). The 

State has not argued that failure to exhaust is a 
problem, so that point may be deemed waived. 
See Pickens v. Lockhart, 714 F.2d 1455, 1464 n. 9 

(8th Cir.1983). In any event, even if an exhaus- 
tion problem existed, the Kumpe-Eisner tran- 

script could still be considered as weighing into 
the balance under the ends of justice standard. 

  

  

  

27. The State has offered no reasonable explana- 
tion for how this document could exist and be 
in McDonald's files if it were not what it pur- 
ports to be. At oral argument, the following 
colloquy took place between Judge Arnold and 
the Assistant Attorney General for the State of 
Arkansas: 
JUDGE ARNOLD: Let's assume that Captain 
McDonald * * * doesn't know where it came 
from. Where could it have come from? 
MR. HOLDER: I don't know. 
JUDGE ARNOLD: I mean it's just not the sort 
of thing that happens without some color of 
authenticity to it. 

763 FEDERAL REPORTER, 2d SERIES 

State Police, had possession of the tran- 

script: onald testified as a ballistics 

expert at both of Walker's trials and at 

Walker’s 1967 habeas proceeding. At the 

October hearing, McDonald testified that 
the State prosecutor, Wilbur C. Bentley, 

contacted him in February or March of 

1984, and asked him to search his files for 

any information about the Walker case. 

[T. 444.] While looking for the Walker- 

Karam tape, McDonald found the Kumpe- 

Eisner transcript in a box of files that had 

formerly been in a locked cabinet.?” [T. 

447.] McDonald stated that he did not 

know where the document came from or 

how long it had been in his files. [T. 455.] 

Yet his testimony suggests that the tran- 

script probably came into his possession 

through a “liaison man” stationed by the 

Arkansas State Police at the Penitentiary 

where Mildred Eisner visited Kumpe. 

Such liaison men passed along information 

about criminals and criminal activities to 

interested departments or state criminal in- 

MR. HOLDER: Captain McDonald testified 
that he had a file drawer, cabinet or whatever 
that he just put things in, and he has been 
putting things in it since 1940 or something. 
The state police are more or less in an adviso- 
ry position, as you know, Judge Arnold, and 
the State of Arkansas, on most things, on 
many things, unless they are specifically 
asked to investigate, and I am sure he’s just 

filed all kinds of things in there. He probably 
couldn't tell you where a lot of it came from. 
JUDGE ARNOLD: * * * [What I am trying 

to sort out, I am trying to hypothesize in my 
own mind some way this document could 
exist and not be authentic. Who would have 
made up a thing like this? 
MR. HOLDER: Some supporter of the peti- 
tioner, I would think. 
JUDGE ARNOLD: And put it in Captain Mc- 
Donald's file? 
MR. HOLDER: Could have sent it to him in 
the mail, Judge Arnold, one of them made up 
something I said. * * * I am speculating, 
and I am also speculating that one could 
probably heat up some paper like that and 
make it look a lot older than it is. 

Transcript of oral argument at 25-27, No. 81- 
1700, Walker v. Lockhart (January 17, 1985). 
The State provides us with an incredible expla- 
nation.   

 



   
   

sion of the tran- 

ed as a ballistics 

br’s trials and at 

pceeding. At the 

ald testified that 

ilbur C. Bentley, 

hry or March of 

parch his files for 

he Walker case. 

for the Walker- 

ound the Kumpe- 

k of files that had 

ed cabinet?” [T. 

that he did not 

nt came from or 

is files. [T. 455.] 

sts that the tran- 

0 his possession 

stationed by the 

the Penitentiary 

visited Kumpe. 

along information 

minal activities to 

state criminal in- 

   
     

   
    
   
   
   
    

    
    
   

    
   

    
   
    

  

   
    
   
   
   
     

   

   

  

McDonald testified 
cabinet or whatever 

n, and he has been 

1940 or something. 
or less in an adviso- 

, Judge Arnold, and 
on most things, on 
ey are specifically 

i I am sure he's just 
there. He probably 
lot of it came from. 
[W]hat I am trying 

o hypothesize in my 
his document could 
ic. Who would have 

s? 

pporter of the peti- 

     
   
   

    
   

    
   

   
   
   

   
   

put it in Captain Mc- 

ave sent it to him in 
one of them made up 
* | am speculating, 
ting that one could 
paper like that and 
than it is. 
nt at 25-27, No. 81- 
(January 17, 1985). 
an incredible expla- 

    

  

  

WALKER v. LOCKHART 

  

957 
Cite as 763 F.2d 942 (1985) 

vestigators. [T. 435-36.] Although the 
transcript was the first taped conversation 
McDonald ever recalled receiving from a 
liaison man, he recognized that the doc- 
ument originated at the Penitentiary. [T. 
495-96.] 

In any case, Kumpe’s own testimony, 
viewed objectively, served to authenticate 
the transcript. He testified that he had 
several conversations at the Penitentiary 
with his sister during which the two dis- 
cussed a number of topics contained in the 
document. [T. 67-72; 126-27.] Kumpe did 
not deny making the statement “you under- 
stand that I did shoot at that policeman,” 
although he could not recall his exact word- 
ing. [T.73,77.] After looking over a copy 
of the document, Kumpe said, “I don’t re- 
call whether or not I said everything in 
here. But since it’s in the document or it’s 
in the transcript, I will say that I probably 
said it then, and if I did, I was pressuring 
my sister to take what I would call a little 
more expedient action.” 2 [T. 75.] 

Thus, besides confirming that the tran- 
script reflected the general nature of his 
conversation with Eisner, Kumpe as much 
as admitted making the statement that he 
shot at Vaughan. In addition to the con- 
tent of the document, the apparent age of 
the paper, its date, and the location in 
which it was found tend to support its 
genuineness. Under these circumstances, 
we conclude that the evidence overwhelm- 
ingly supports a finding that the document 
is authentic, and that the district court's 
finding to the contrary is clearly erroneous. 

[11] Although the transcript is hearsay, 
it would be admissible for impeachment 
purposes on the same basis as Kumpe’s 
diary entry. In addition, it may also be 
admissible as substantive evidence under 
Rule 803(16) of the Arkansas Rules of Evi- 
dence, which creates an exception to the 
hearsay rule for a “[s]tatement in a doc- 
ument in existence twenty [20] years or 

28. Kumpe further explained that if he made the 
statement to his sister, he lied to her “to pres- 
sure her into acting with a little more haste.” 
[T. 74.] He wanted to encourage her to “get on” 
his attorney to “get the appeal effected and try 

more the authenticity of which is estab- 
lished.” 

2. Violation of Walker’s Due Process 
Rights By Suppression of Evidence. 

[12-16] Walker argues that the State, 
in failing to disclose the transcript, violated 
his due process rights by suppressing ex- 
culpatory material. In order to establish a 
due process violation, Walker must show: 
(1) that the evidence was indeed sup- 
pressed, (2) that it was favorable to Walk- 
er, and (3) that it was material. See Moore 
v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 
2562, 2567-68, 33 L.Ed.2d 706 (1972). See 
also Brady v. Maryland, 373 U.S. 83, 83 
S.Ct. 1194, 10 L.Ed.2d 215 (1963). It is 
irrelevant whether the State acted in good 
faith or bad faith in failing to disclose the 
evidence; negligent suppression may be 
sufficient. See id. at 87, 83 S.Ct. at 1196. 
The prosecutor, however, undertakes no 
obligation to provide defense counsel with 
unlimited discovery. The prosecutor vio- 
lates his constitutional duty of disclosure 
only if “his omission is of sufficient signifi- 
cance to result in the denial of the defend- 
ant’s right to a fair trial.” United States 
v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 
2399, 49 L.Ed.2d 342 (1976). In cases such 
as this where the defendant has made gen- 
eral requests for all exculpatory material, 
the conviction will be set aside only if “the 
omitted evidence creates a reasonable 
doubt that did not otherwise exist.” Id. at 
112, 96 S.Ct. at 2402. The undisclosed ma- 
terial must therefore be evaluated in the 
context of the entire record. “[IJf the ver- 
dict is already of questionable validity, ad- 
ditional evidence of relatively minor impor- 
tance might be sufficient to create a rea- 
sonable doubt.” Id. at 113, 96 S.Ct. at 
2402. 

a. Suppression of the Transcript. 

At the evidentiary hearing, a great deal 
of testimony was directed toward the ques- 

to have bond set.” [T. 73.] It is unclear, how- 
ever, why Kumpe thought his sister would expe- 
dite his release if he indicated that he was guilty 
of unsuspected wrongdoing.   



    

    

  
        

958 
tion of when the transcript came into Paul 
McDonald’s possession. In a videotaped 
interview with reporters several days be- 
fore the hearing,?® McDonald stated that he 
received the Kumpe-Eisner transcript while 
he was the head of the Criminal Investiga- 
tion Division of the Arkansas State Police, 
a position he held from 1960 to 1965. [T. 
427] In addition to conceding that the 
document had been “around since 1963,” he 
engaged in the following interchange with 
the reporters: 

REPORTER: You found this report only 
recently? 

McDONALD: Not recently. 
REPORTER: Well, here’s what I want 
to know: Why—this is dated 1963— 

~ that’s twenty-one years ago. Why is thi 
just now being turned over to any attoy- 
ney’s—defense attorneys, prosecuting or 
anyone. 

McDONALD: I don’t know. 

763 FEDERAL REPORTER, 2d SERIES 

ing it for Bentley in 1984, but he could not 
remember when. [T. 460, 491.] Although 
he was uncertain when he received the 
document, he believed that it had been 
within the past ten years (that is, since 
1974). [T. 484-86.] Yet he could not ex- 
plain how a document dated 1963 would 
suddenly show up in his files ten years 
later 

The district court assumed, without ex- 
plicitly deciding, that the Kumpe-Eisner 
transcript was in McDonald's possession at 
the time of Walker's conviction, and that 
the prosecution had a duty to disclose the 
statement to the defense. 598 F.Supp. at 
‘1432. We believe that any findings to the 
contrary would be clearly erroneous. Po- 
lice are treated as an arm of the prosecu- 
tion for Brady purposes, “and the taint on 
the trial is no less if they, rather than the 
state’s attorney, were guilty of the nondis- 
closure. The duty to disclose is that 

  

  

  

  

  
REPORTER: But you knew about this ih 
1963. 

McDONALD: In 1963, I did. 
REPORTER: You knew that Russe 
Kumpe said he fired a shot at the police 
man? 

McDONALD: I did. 

REPORTER: This wasn’t considered 
crucial enough to turn over, Tir. Me- 
Donald? 

McDONALD: I don’t know. That came 
from the Penitentiary. 

[PLExh. 12 at 1.] McDonald added that 
when he received the transcript, he re- 
viewed it before placing it in his files. He 
explained that he did not turn the doc- 
ument over to anyone because he assumed 
“it was common knowledge,” and that he 
had received a copy only for his informa- 
tion. Id. at 2. 

At the evidentiary hearing several days 
later, McDonald told a different story. He 
testified that he had no knowledge of the 
transcript at the time of Walker's trials or 
his first habeas hearing. [T. 479.] He 

- recalled seeing the transcript before locat- 

  

29. The videotape and a transcript of the video- 
tape were part of the record at the remand 

of the state, which ordinarily acts through 
the prosecuting attorney; but if he too is 
the victim of police suppression of the ma- 
terial information, the state’s failure is not 
on that account excused.” Barbee u. 
Warden, Maryland Penitentiary, 331 F.2d 
842, 846 (4th Gir.1964) 

  
  

[17] Although not all police knowledge 
should be imputed to the prosecution, on 
the record before us it is reasonable to 
charge the State with suppression of the 
Kumpe-Eisner transcript. The evidence in- 
dicates that the State Police possessed the 
document before Walker's second trial im 
1965. The record discloses that McDonald 
was aware of its contents because he ad- 
mits having read the document when he 
received it. Moreover, having testified as a 
ballistics expert at both of Walker's trials 
and at the first habeas hearing, McDonald 
was very familiar with the facts of the 
case. Even though he was not involved in 
the general investigation of the crime, he 
knew that only one of the weapons recov- 
ered at the scene had been fired. Thus, the 

  

  

hearing.  



he could not 

.] Although 

received the 

it had been 

at is, since 

ould not ex- 

1963 would 

ps ten years 

| without ex- 

Lumpe-Eisner 

possession at 
jon, and that 

pb disclose the 

p8 F.Supp. at 

ndings to the 

oneous. Po- 

the prosecu- 

d the taint on 

ther than the 

pf the nondis- 

isclose is that 

acts through 

t if he too is 

on of the ma- 

failure is not 

Barbee v. 

iary, 331 F.2d 

ce knowledge 

osecution, on 

reasonable to 

ession of the 

e evidence in- 

possessed the 
econd trial in 

hat McDonald 

ecause he ad- 

nent when he 

rr testified as a 

alker’s trials 

ng, McDonald 
facts of the 

ot involved in 

the crime, he 

eapons recov- 
red. Thus, the 

WALKER v. LOCKHART = . 959 

Cite as 763 F.2d 942 (1985) : 

significance of Kumpe’s statement that he 

shot at a policeman that night should not 

have been lost on McDonald. Indeed, even 

if McDonald overlooked the significance of 

the statement, or incorrectly assumed that 

the prosecution was aware of the doc- 

ument, the State’s constitutional obligation 

is not measured by McDonald's willfulness 

or negligence, but by the character of the 

undisclosed evidence.?® Agurs, 427 U.S. at 
110, 96 S.Ct. at 2400. In this instance, the 

suppressed Kumpe-Eisner transcript is 

both favorable to Walker and material on 

the question of Walker's guilt. See ante 

part II(B)(2)(b). io 

b. Materiality of the 

Undisclosed Evidence. 

[18] The district court noted that, “on 

the whole the transcript is not helpful to 

Walker. While Kumpe allegedly said he 

shot at ‘the policeman,’ it is not clear which 

policeman he was talking about—Barentine 
or Vaughan. Later in the transcript 

Kumpe makes statements that strongly 

suggest Vaughan died as a result of the 

shoot-out with Walker.” 598 F.Supp. at 

1428. The court concluded that, in the 
oo 

context of the entire record, “the Kumpe- 

Eisner statement does not create a reason- 

able doubt concerning the guilt of the peti- 

tioner in the shooting death of Officer Vau- 

ghan.” Id. at 1433. In short, the district 

court determined that even if the transcript 

had been improperly suppressed, it was not 

material and, therefore, no due process vio- 
lation had occurred. We disagree. 

As this court has discussed in prior opin- 

ions, the evidence used to convict Walker 

30. In any event, the district court ordered the 
State to turn over all material held on James 
Dean Walker prior to the 1967 habeas hearing 
and McDonald apparently was aware of that 
court order. [T. 532-34.) McDonald turned 
‘over neither the Kumpe-Eisner transcript nor 
the Walker-Karam transcript, both of which 
were in his possession at that time. 

31. The dissent asserts that this constitutes an 
“extraordinary finding” by this court. Post, at 
964. To the contrary, we have made no finding 
on this matter, but have merely reflected on the 

entire record in this case, including the record 

was close. Therefore, “additional evidence 

of relatively minor importance might be 

enough to create a reasonable doubt.” 

Agurs, 427 U.S. at 113, 96 S.Ct. at 2402. A 

statement by Kumpe indicating that he 
shot at a policeman is of more than minor 

importance, particularly in view of other 

newly discovered evidence suggesting that 

the murder weapon was in Kumpe’s posses- 

sion, and that he “fired too high.” 

The district court emphasized that it was 

not clear from Kumpe’s statement whether 

he fired at Barentine or Vaughan. Be- 
cause Kumpe added “he will go crazy try- 

ing to figure out what happened to that 

gun,” the reference appears to be to some- 

one who is still living, that is, Barentine 

rather than Vaughan. However, evidence 

that Kumpe fired a gun at anyone is excul- 

patory because only one of the recovered 

weapons (apart from the policemen’s weap- 

ons) had been fired. Thus, Kumpe’s admis- 

sion that he “did shoot at that policeman” 

in effect takes the alleged murder weapon 

out of Walker's hand.?! 

In addition to the passage quoted above, 

the transcript includes the following ex- 

change: 

EISNER: I heard from everybody that 

you gave them no trouble. 

KUMPE: I didn’t until he shot me. You 

don’t know what happened over there. I 

do. The policeman committed suicide, he 

shot Walker first. See if he don’t shoot 

Walker then we don’t have all the trou- 

ble and he is still alive. What would you 

do if someone shot you first? 

before the court in prior proceedings which has 
been extensively discussed in the prior Walker 
opinions. No evidence exists anywhere in the 
complete record of the Walker proceedings that 
places the alleged murder weapon in Walker's 
hands or directly ties Walker to possession of the 
alleged murder weapon found on the ground at 
the murder scene. As we have observed, Walker 

held an undischarged gun in his hand. 

If Kumpe did fire the alleged murder weapon 
found at the scene, that fact would dispel any 
possible inference that Walker held that gun at 
the time of the murder.  



  

      
    

    

960 

[PLExh. 2 at 7.] The district court inferred 
from this exchange that Kumpe was sug- 
gesting that Walker shot Vaughan because 
Vaughan shot him first. Therefore, ac- 
cording to the district court, the transcript 
as a whole was not helpful to Walker. Yet 
Kumpe’s statement could also be interpret- 
ed as indicating that he (Kumpe) did not 
give the police “trouble” (that is, get in- 
volved in the shooting) until after Baren- 
tine shot him. “What would you do if 
someone shot you first?” applies to 
Kumpe’s situation as well as Walker's. 

Indeed, that interpretation is consistent 
not only with Kumpe’s earlier statement 
that he “shot at that policeman,” but also 
with Kumpe’s diary entry stating that he 
“fired too high.” Furthermore, that inter- 
pretation tends to corroborate Alderman’s 
testimony at the first habeas hearing sug- 
gesting that Kumpe fired a gun while un- 
der the Oldsmobile. See Walker v. Lock- 
hart, 726 F.2d at 1258. In fact, the 
Kumpe-Eisner transcript not only lends 
credibility to Alderman’s account of events 
exonerating Walker, it lends credence to 
the theory that the prosecution suppressed 
Alderman’s testimony. See id. If, at the 
time of the original habeas proceeding, the 
district court had known about the suppres- 
sion of the transcript, as well as about the 
other new evidence that has surfaced, it 
might have made a substantial difference 
in that court’s factual analysis. 

In sum, the Kumpe-Eisner transcript con- 
stitutes powerful corroboration of newly 
discovered evidence favorable to Walker 
which we asked the district court to consid- 
er on remand. Although the transcript 
may be weighed into the balance under the 
ends of justice standard, it also provides an 
independent basis for setting aside Walk- 
er’s conviction. We conclude that the tran- 
script itself, when considered in the context 
of the entire record, is sufficient to create a 
reasonable doubt about ‘Walker's guilt. 
Suppression of the document therefore con- 
stituted a violation of Walker's due process 
rights. 

763 FEDERAL REPORTER, 2d SERIES 

III. CONCLUSION. 

[19] After careful review of the record, 
we conclude that the newly discovered evi- 
dence sufficiently tips the balance of the 
ends of justice standard to permit this 
court to reconsider Walker's habeas peti- 
tion, specifically his claim concerning the 
bias of the state trial judge. Although 
none of the evidence presented at the re- 
mand hearing relates to the state trial 
judge’s actions, the evidence casts suffi- 
cient doubt on the factual basis for Walk- 
er’s conviction to justify reexamination of 
our prior legal conclusions. We now hold 
that the trial judge’s bias deprived Walker 
of a fair trial. Walker is therefore entitled 
to habeas corpus relief. The suppressed 
Kumpe-Eisner transcript, although rele- 
vant to the ends of justice inquiry, provides 
an independent basis for granting Walker's 
petition for relief. 

[20,21] The dissent asserts that the 
court is granting the writ on the basis of 
newly discovered evidence. That is not the 
case. We quite agree with the dissent that 
a claim of newly discovered evidence rele- 
vant only to guilt is not a ground for 
habeas relief. The federal habeas power 
goes only to the constitutionality of deten- 
tion, not to the question of guilt or inno- 
cence. In this case, Walker's detention is 
unconstitutional not because new questions 
have been raised about guilt or innocence, 
but because the judge who tried his case 
was prejudiced against him. The newly 
discovered evidence is relevant only be- 
cause it casts sufficient doubt on the factu- 
al basis for the conviction to justify reexa- 
mination of a legal ground (bias of the trial 
judge) previously rejected by this court. 

The dissent further suggests that the 
court has summarily concluded that bias 
supports granting the writ without any 
analysis or review of prior decisions reach- 
ing a different conclusion on this issue. 
Again, that is not the case. In the previous 
en banc opinion of this court, four dissent- 
ing judges and Judge Arnold in his concur- 
ring opinion considered the merits of the 
bias issue and concluded that Walker did 
not receive a fair trial before an impartial  



bw of the record, 

y discovered evi- 

b balance of the 

to permit this 

br’s habeas peti- 

concerning the 

jdge. Although 

ented at the re- 

the state trial 

nce casts suffi- 

basis for Walk- 

eexamination of 

We now hold 
deprived Walker 

erefore entitled 

The suppressed 

although rele- 

nquiry, provides 

anting Walker's 

vib 

kserts that the 

on the basis of 

That is not the 

the dissent that 

d evidence rele- 

a ground for 

1 habeas power 

bnality of deten- 

pf guilt or inno- 

br’s detention is 

e new questions 

ilt or innocence, 

0 tried his case 

m. The newly 

evant only be- 

ibt on the factu- 

0 justify reexa- 

bias of the trial 

by this court. 

bgests that the 

luded that bias 

it without any 

decisions reach- 
on this issue. 

In the previous 

rt, four dissent- 

d in his concur- 

e merits of the 

hat Walker did 

bre an impartial 

WALKER v. LOCKHART ~~. 961 
Cite as 763 F.2d 942 (1985) 

judge. See 726 F.2d at 1249 (Arnold, J., 

concurring), and 1258-60 (Bright, J., dis- 
senting, joined by Lay, C.J., Heaney and 

McMillian, J.J.). The newly surfaced evi- 
dence gives us the power, in order to attain 

the ends of justice, to reach the bias ques- 
tion. The state trial judge's statements 

about Walker's forthcoming trial stand un- 
disputed, particularly the judge’s statement 

that he “intended to burn the S.0.B. [Walk- 
er] anyway.” In no way can that state- 

ment be squared with the requirement that 

a defendant be tried before a fair tribunal. 

We need not repeat all of this court’s prior 

discussions on this point. Given the undis- 

puted expression of prejudice by the state 

trial judge (Judge Kirby), the previous le- 

gal conclusion, which we readopt, that 

Walker was tried before a prejudiced judge 
impels us to grant the writ.32 

In his concurrence to this court’s en banc 

decision, Judge Arnold emphasized that, al- 

though justice to the petitioner is crucial in 

our system, we must consider as well the 

State’s right to fairness, and the effect on 

the State of granting this writ. 726 F.2d at 

1250. We agree. We note, however, that 

at the remand hearing, the Attorney Gener- 

al of Arkansas remarked that the State had 

come before the*district court “seeking to 

do justice,” and that if the court recom- 
mended a new trial, the State wins because 

justice has been done. [T. 13.] We are 

convinced on the record before us that 

Walker's trial and éonviction before an ad- 
mittedly prejudiced trial judge constituted 

a gross miscarriage of justice. Retrial of 

Walker after more than two decades might 

present some difficulties for the State, but 
none that would seriously prejudice the 

prosecution. Many of the State’s witness- 

es are still available, notably Barentine and 

McDonald—and now Kumpe as well. Tes- 

timony of witnesses no longer available has 

been preserved on the record and presum- 

ably could be offered in record form as it 

was for witnesses said to be unavailable at 

the time of Walker's second trial. Surely 

here, where justice has been so long de- 

layed, the equities weigh heavily in favor 

32. We fail to see how our drawing this obvious 

conclusion, which we decide as a matter of law, 

of correcting this stain on our criminal 
justice system. 

Accordingly, we conclude that James 
Dean Walker is entitled to habeas corpus 
relief. We direct the district court to grant 
the writ unless the State of Arkansas com- 
mences proceedings to retry Walker within 
ninety days from May 17, 1985, the date of 
this opinion. 

LET OUR MANDATE ISSUE FORTH- 
WITH. 

ARNOLD, Circuit Judge, concurring. 

Some of the arguments made in the dis- 
senting opinion deserve, in my view, a brief 
comment. 

1. The statement is made that “[t]he 
Court today frees James Dean Walker 
++" Post, at 962, . That is not at all 

what the Court is doing. We are simply 
holding that fundamental fairness, embod- 
ied in the Due Process Clause of the Four- 
teenth Amendment, requires a new trial. 
If Walker is ultimately freed, it will only be 
because he is acquitted by a jury, assuming 
that the state does not drop the matter on 

its own motion, which seems most unlikely. 

2. I yield to no one in my conviction 
that the clearly-erroneous rule of Fed.R. 
Civ.P. 52 is central to the legitimate exer- 
cise of appellate power. The dissent 
charges that the Court is ignoring findings 
of fact by the District Court. Again, I 

must disagree. As our opinion recalling 

the mandate clearly stated, the District 

Court’s duty was not to make its own find- 

ings of fact, using its own assessment of 

credibility, as in the ordinary case, but to 

make the lesser, threshold judgment 

whether the new evidence was sufficiently 

credible to deserve the attention of a jury. 

Except with respect to the Kumpe-Eisner 

conversation, we are not rejecting the Dis- 

trict Court’s findings of fact in the usual 
sense. Having read every page of the 
most recent transcript, as well as the earli- 

in any way constitutes an abuse of authority or 
power as the dissent contends. Post, at 967.  



    

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962 763 FEDERAL REPORTER, 2d SERIES 

er ones, I have no hesitation in joining the 
Court’s opinion today. 

3. The dissenting opinion quotes my 
statement in an earlier concurrence, Walk- 
er v. Lockhart, 726 F.2d 1238, 1250 (8th 
Cir.1984) (concurring opinion), to the effect 
that the bias on the part of the trial judge 
had not been shown to have done Walker 
any actual harm that would not have oc- 
curred if the case had been tried by anoth- 
er judge. That statement, of course, was 
made at a time when no newly discovered 
evidence was in the case. As I also stated 
in that concurrence, I believe this Court 
erred in 1969 when it initially rejected the 
claim of bias. This belief is based not on 
any assessment of actual prejudice, but 
rather on the view that everyone, whatever 
the evidence against him, is entitled to be 
tried before an impartial judge. Such a 
trial Walker has never had, and the newly 
discovered evidence that has now come into 
the case gives us the power, in order to 
attain the ends of justice, to reach and 
decide the bias question anew. : 

4. Our holding today benefits not only 
James Dean Walker. It benefits also all 
the people of Arkansas, who have a vital 
interest in the honor and fairness of their 
own courts. Walker, like anyone else ac- 
cused of crime, should have a fair trial 
before an impartial judge. Unless and un- 
til he receives such a trial, he should not be 
deprived of his liberty. 

With these additional comments, I join 
the Court’s opinion in its entirety. 

JOHN R. GIBSON, Circuit Judge, dis- 
senting, joined by ROSS, FAGG, and BOW- 
MAN, Circuit Judges. 

The court today frees James Dean Walk- 
er essentially on the basis of newly discov- 
ered evidence that would have value only 
to impeach Russell Kumpe. Yet Kumpe 
was not called to testify by either side at 

1. Granting “the great writ of liberty,” Burns v. 
Wilson, 346 U.S. 137, 148, 73 S.Ct. 1045, 1052, 97 
L.Ed. 1508 (1953) (separate opinion of Frank- 
furter, J.); Darr v. Burford, 339 U.S. 200, 225, 70 
S.Ct. 587, 600, 94 L.Ed. 761 (1950) (Frankfurter, 
J., dissenting), is equivalent to freeing the peti- 

Walker's trials even though his where- 
abouts and availability were known. In 
reaching its conclusions, the court ignores 
the district court’s finding of fact that the 
new evidence is not sufficiently credible to 
deserve the attention of a jury. Rather, 
viewing the evidence in a light most favor- 
able to Walker, the court engages in whole- 
sale fact-finding on grounds never asserted 
in his habeas corpus petitions. 

I. 

First, the court errs in relying on new 
evidence to set Walker free.! The Supreme 
Court held in Townsend ». Sain, 372 U.S. 
293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), that 
a claim of newly discovered evidence rele- 
vant only to guilt is generally not a ground 
for habeas relief. To justify granting the 
writ, “such evidence must bear upon the 
constitutionality of the applicant’s deten- 
tion; the existence merely of newly discov- 
ered evidence relevant to the guilt of a 
state prisoner is not a ground for relief on 
federal habeas corpus.” Jd. at 317, 83 
S.Ct. at 759. No argument is made that 
the evidence discussed by the court bears 
upon the constitutionality of Walker's de- 
tention. It plainly has to do with only his 
guilt. This court applied the rule from 
Townsend in Drake v. Wyrick, 640 F.2d 
912 (8th Cir.1981). In Drake, the petition- 
er’s newly discovered evidence consisted of 
a prior inconsistent statement by one of the 
prosecution’s witnesses. The court held 
that such evidence did not bear upon the 
constitutionality of the petitioner's deten- 
tion and denied relief under Townsend. Id. 
at 913. Drake’s argument for habeas re- 
lief presented even a better claim than 
Walker does because the evidence there 
allegedly impeached a witness who actually 
testified at trial. Here, however, the evi- 
dence relates only to the statements of a 
person who did not testify at Walker's tri- 
als. Even if we assume that Kumpe’s tes- 

tioner. See Lefkowitz v. Newsome, 420 U.S. 283, 
303, 95 S.Ct. 886, 896, 43 L.Ed.2d 196 (1975) 
(Powell, J., dissenting). While the court's order 
is conditional, it effectively frees Walker unless 
the state obtains a third conviction.   

 



his where- 

known. In 

ourt ignores 

fact that the 

ly credible to 

ry. Rather, 

t most favor- 

ges in whole- 

ever asserted 

lying on new 

The Supreme 

ain, 372 U.S. 

[0 (1963), that 

evidence rele- 

not a ground 

granting the 

ear upon the 

icant’s deten- 

newly discov- 

e guilt of a 

d for relief on 

fat 317, 83 

is made that 

he court bears 

Walker's de- 

with only his 

he rule from 

ick, 640 F.2d 

e, the petition- 

e consisted of 

t by one of the 
e court held 

bear upon the 

tioner’s deten- 

lownsend. Id. 

for habeas re- 

er claim than 

evidence there 

ks who actually 

ever, the evi- 

atements of a 

ht Walker's tri- 

t Kumpe’s tes- 

bme, 420 U.S. 283, 

Ed.2d 196 (1975) 

b the court's order 

es Walker unless 

ction. 

  

WALKER v. LOCKHART 963 
Cite as 763 F.2d 942 (1985) 

timony is credible and would be admissible 

in Arkansas state court, it does not pro- 

vide a basis for habeas relief. As the 

Eleventh Circuit recently held, “newly dis- 

covered evidence in the form of a confes- 

sion by another does not render the convic- 

tion void and subject to collateral attack by 

habeas corpus because it goes to the merits 

of the conviction, not its legality.” Drake 
v. Francis, 727 F.2d 990, 994 (11th Cir. 

1984) (quoting Shaver v. Ellis, 255 F.2d 

509, 511 (56th Cir.1958)). Thus, the new 

evidence does not provide grounds for ha- 

beas relief under Townsend. 

II. 

Second, the court ignores the findings of 

the district court regarding Sanders wv. 

United States, 373 U.S. 1, 83 S.Ct. 1068, 10 

L.Ed.2d 148 (1963). After discussing the 

“ends of justice” test, Justice Brennan stat- 

ed in Sanders: 

The principles governing * * * justifica- 
tions for denial of a hearing on a succes- 

sive application are addressed to the 

sound discretion of the federal trial 

judges. Theirs is the major responsibili- 

ty for the just and sound administration 

of the federal cgllateral remedies, and 
theirs must be the judgment as to wheth- 

er a second or successive application 

shall be denied without consideration of 

the merits. 

Id. at 18, 83 S.Ct. at 1079 (emphasis added). 

In 1981, Judge Woods found that the ends 

of justice would not be served by reconsid- 

ering Walker's judicial bias claim. Walker 

v. Lockhart, 514 F.Supp. 1347, 1353 (E.D. 

Ark.1981). In 1984, after considering the 

new evidence, Judge Woods again conclud- 

ed that reconsideration would not further 

justice: 

I have been directed to determine 

whether the new evidence, when con- 

sidered against the background of the 

2. .The court observes that “[i]t may be that” 

Kumpe's diary and other statements “would not 
be admissible as substantive evidence at a new 
trial.” Supra at 951. The district court held as 
a matter of local law that the new evidence 
could be used only for impeachment. 598 
F.Supp. at 1433. This conclusion should not be 

existing record, sufficiently tips the bal- 

ance of the “ends of justice” standard to 

require that a new trial be held. My 

answer to this question is strongly in the 

negative. I believe that the evidence in 

the hearing before me taken as a whole 

confirms Walker's guilt in accordance 

with the two decisions of the Supreme 

Court of Arkansas on appeal from jury 

verdicts of guilt. 

Walker v. Lockhart, 598 F.Supp. 1410, 

1434 (E.D.Ark.1984). This court directed 

the district court to make these findings. 

With only the briefest discussion, it finds 
that the district court abused its discretion 

in reaching its conclusions, which are es- 

sentially factual. 

III. 

The foundation for granting the writ is 

newly discovered evidence: the Kumpe dia- 

ry and the transcript of a conversation 

between Kumpe and his sister, Eisner. 

The only evidentiary value that either of 

these documents would have would be to 

impeach Kumpe’s testimony. 

Little is to be gained at this late date 

from a detailed analysis of the voluminous 

record in this case. Suffice it to say that 

on the subject of Kumpe’s alleged state- 

ments to his then wife, the district court 

found as follows: 

[There is little or no credible testimony 

- that Kumpe fired a gun on the night in 

question. * * * Kumpe's wife came 

closest to such testimony, but her testi- 

mony deserves a great deal of skepti- 

cism. She obviously has much animosity 

toward Kumpe. She admitted shooting 

Kumpe on one occasion, and Kumpe 

claimed she tried to kill him on another 

occasion. Her animosity toward Kumpe 

is mixed with sympathy and admiration 

for Walker. : 

lightly disregarded. Cf. Kansas State Bank v. 
Citizens Bank, 737 F.2d 1490, 1496 (8th Cir.1984) 

(district court's conclusions of local law entitled 

to substantial deference). If, however, the evi- 

dence is admissible for substantive purposes, 
Townsend is still controlling, for the new evi- 
dence does not have constitutional implications.  



  
      

        

964 

598 F.Supp. at 1427-28. As to the diary 

entry, the district court found: 

If Kumpe wrote this entry exactly as 

intended and if it reflects the truth, this 

is the only admissible evidence where 

Kumpe said he fired a shot on the night 

in question. Not a single eyewitness has 

testified that Kumpe fired a shot. In 

fact, the overwhelming proof is that 

Kumpe was being searched when the 

shoot-out between Walker and Vaughan 
ensued. 

Id. at 1428. Regarding the pistol Kumpe 

claims to have secreted, the district court 
concluded: 

I find no such credible evidence in this 

record [that Kumpe shot Vaughan]. I 
further find no credible evidence in this 

record that Kumpe shot at Vaughan. I 

find very little evidence worthy of belief 

that Kumpe fired any shot on the night 

in question. Kumpe has denied under 

oath that he did so. The only evidence to 

the contrary appears in a very strange 

and ambiguous statement in a diary be- 

ing kept by Kumpe, which has been dis- 
cussed in detail. 

Id. at 1430. 

Contrary to these findings, the court to- 

day decides that “the diary provides admis- 

sible evidence that Kumpe said he fired a 

shot on the night in question,” supra at 

951, and that in the Eisner-Kumpe tran- 

script “Kumpe as much as admitted mak- 

ing the statement that he shot at Vau- 

ghan.” Id. at 957. From this interpreta- 

tion flows the extraordinary finding that 

the “alleged murder weapon [was] out of 

Walker's hand.” Id. at 959. The court 
concludes: 

After carefully reviewing all of the 

evidence presented at the hearing, we 

conclude that a significant portion of that 

evidence bears on the question of Walk- 

er’s guilt or innocence, that it would be 

admissible if a new trial were held, and 
that it is credible enough to be heard by 
a jury. * * * Of particular importance is 

3. The court explicitly finds the district court 
clearly erroneous in only two respects, the au- 
thenticity of the Eisner-Kumpe transcript and 

763 FEDERAL REPORTER, 2d SERIES 

Kumpe’s admission that he owned the 

gun identified as the murder weapon, 

and the evidence that Kumpe fired a gun 

on the night in question, as indicated by 

the testimony of his former wife, and his 

own diary entry of January 16, 1968. 

Id. at 954-955. 

Actions under 28 U.S.C. § 2254 (1982) 

are civil suits, in which the findings of the 

district court may be reversed only if clear- 

ly erroneous. See Wade v. Mayo, 334 U.S. 

672, 683-84, 68 S.Ct. 1270, 1275-76, 92 

L.Ed. 1647 (1948). The conclusions above 

are reached by the court without determin- 

ing that the district court was clearly erro- 

neous in reaching its findings.? The court 

flatly disregards Judge Woods’ finding that 

no credible evidence indicated that Kumpe 

shot at Vaughan and that little credible 

proof showed that Kumpe fired any shot. 

598 F.Supp. at 1430. The court’s action 

flies in the face of principles that recently 

have been clarified by the Supreme Court. 

In Anderson v. City of Bessemer City, — 

U.S. —, 105 S.Ct. 1504, 84 L.Ed.2d 518 

(1985), the Court explained: 

[The clearly erroneous] standard plainly 

does not entitle a reviewing court to re- 

verse the finding of the trier of fact 

simply because it is convinced that it 

would have decided the case differently. 

The reviewing court oversteps the 

bounds of its duty under Rule 52 if it 

undertakes to duplicate the role of the 

lower court. ‘In applying the clearly er- 

roneous standard to the findings of a 

district court sitting without a jury, ap- 

pellate courts must constantly have in 

mind that their function is not to decide 

factual issues de mowvo.” If the district 

court’s account of the evidence is plau- 

sible in light of the record viewed in its 

entirety, the court of appeals may not 

reverse it even though convinced that 

had it been sitting as the trier of fact, it 

would have weighed the evidence differ- 

ently. Where there are two permissible 

views of the evidence, the factfinder’s 

the minimum credibility threshold. See supra 
at 949 n. 7, 957.  



     

  

he owned the 

rder weapon, 

pe fired a gun 

hs indicated by 

r wife, and his 

hary 16, 1968. 

  

    

   

    
     

   

    

   

  

§ 2254 (1982) 

indings of the 

d only if clear- 

ayo, 334 U.S. 

, 1275-76, 92 

lusions above 

hout determin- 

ps clearly erro- 

Fs.3 The court 

Is’ finding that 

d that Kumpe 

little credible 

ired any shot. 

court’s action 

b that recently 

upreme Court. 

pmer City, — 
4 L.Ed.2d 518 

      

     

     
    

   

      

    

    

    

      

   

   

   

   

   

   

  

    

ndard plainly 

g court to re- 

trier of fact 

inced that it 

se differently. 

bversteps the 

Rule 52 if it 

e role of the 

the clearly er- 

findings of a 

but a jury, ap- 

antly have in 

b not to decide 

If the district 

dence is plau- 

i viewed in its 

eals may not 

onvinced that 

rier of fact, it 

vidence differ- 

vo permissible 

e factfinder’s 

wld. See supra 

  

choice between them cannot be clearly 
erroneous. * * * 

This is so even when the district 
court’s findings do not rest on credibility 
determinations, but are based instead on 
physical or documentary evidence or in- 
ferences from other facts. 

Id. at —, 105 S.Ct. at 1511-12 (citations 
omitted). In ignoring the findings of the 
district court and reaching its own factual 
conclusions, the court blatantly disregards 
holdings of the Supreme Court. 

The court today announces a new test: 
whether newly discovered evidence is suffi- 
ciently credible to deserve the attention of 
the jury. It relies on no authority for this 
standard, which seems to be created by the 
court precisely for this case. As far as I 
can discover it has no basis in the Constitu- 
tion, statutes, or opinions of the courts. 
Whether or not this is a newly minted 
lower threshold, its essence is a determina- 
tion of the credibility of evidence, which is 
singularly the province of the district 
courts. Without detailed discussion, the 
court today holds that the district court 
was clearly erroneous in its finding on this 
issue. The court concludes that the dis- 
trict court went beyond this limited assign- 
ment and “seems instead to have made his 

4. Any evidence that is relevant and material 
may be credible enough to be heard by a jury. 
See Fed.R.Evid. 402. Nevertheless, it does not 
follow that the discovery of such credible evi- 
dence is grounds for a new trial after a jury has 
returned its verdict; cf. United States v. Agurs, 
427 U.S. 97, 111 & n. 19, 96 S.Ct. 2392, 2401 & n. 
19, 49 L.Ed.2d 342 (1976) (under Fed.R.Crim.P. 

33, newly discovered evidence is not grounds 
for a new trial unless it “probably would have 
resulted in acquittal”), or during habeas pro- 
ceedings. The court would distinguish this 
case, however, as involving Sanders rather than 
Rule 33. Such a distinction is unwarranted, as 
illustrated in Jones v. United States, 279 F.2d 433 
(4th Cir.1960). In Jones, two prisoners moved 

for a new trial on the grounds of newly discov- 
ered evidence. The evidence consisted of a con- 
fession by a third party that he and an accom- 
plice had committed the crimes for which the 
defendants had been convicted. The district 
court denied relief, and the court of appeals 
affirmed: 

Where there is a grave question of the credi- 
bility of the after-discovered evidence, * * * 

the role of the trial judge is that of the fact- 
finder, so much so that the Supreme Court 

  

WALKER v. LOCKHART 965 
Cite as 763 F.2d 942 (1985) 

own assessment of the credibility of the 
evidence.” The court draws too fine a dis- 
tinction. Judge Woods has made a deter- 
mination of credibility and it has not been 
shown to be clearly erroneous. . 

IV. 

The most troublesome question is wheth- 
er there was suppression of the Kumpe- 
Eisner transcript so as to entitle Walker to 
relief under Brady v. Maryland, 373 U.S. 
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 
The issue is whether the “omitted evidence 
creates a reasonable doubt that did not 
otherwise exist.” United States v. Agurs, 
427 U.S. 97, 112, 96 S.Ct. 2392, 2402, 49 
L.Ed.2d 342 (1976). There are at least two 
reasons why the transcript is not grounds 
for relief under Brady. First, it has never 
been properly authenticated. The district 
court made the following factual findings 
concerning the transcript: “It is not au- 
thenticated. McDonald testified that it 
was sent to the State Police by parties 
unknown sometime in the last ten years. 
He does not know who took it or how it 
was taken. * * * [N]o one has attested to 
its authenticity.” 598 F.Supp. at 1430-31. 
The court today, however, finds this conclu- 

has said an appeal from his resolution of the 
facts should be dismissed as frivolous. The 
rule has been applied where, as here, a third 
party confession is the after-discovered evi- 
dence upon which the motion for new trial is 
founded. 

This remedial procedure, a motion for new 
trial based upon after-discovered evidence, is 
designed to serve the ends of justice. * * * 
That purpose would hardly be served if the 
law required the trial judge, who heard all the 
evidence and saw all of the witnesses, to as- 
sume that a jury would believe testimonial 
evidence however improbable and unworthy 
of belief he finds it to be. If the purpose of 
the remedy is to be served, without subjecting 
it to undue abuse, the trial judge who ap- 
proaches the question of the probable effect 
of the new evidence upon the result, in the 
event of a new trial, should be vested with 
broad discretion in considering matters of 
credibility as well as of materiality. 

Id. at 436 (footnotes omitted). This reasoning 

and the absence of legal support for the court's 
conclusion here strongly suggest that Judge 
Woods’ findings should not be overturned.   



        

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sion clearly ‘erroneous and reasons that 
“Kumpe’s own testimony, viewed objective- 
ly, served to authenticate the transcript.” 
Supra at 957. It underscores Kumpe's 
statement that “since it’s in the document 
or transcript, I will say that I probably said 
it then and if I did, I was pressuring my 
sister to take a little more expedient ac- 
tion.” Id. Nevertheless, the district court 
interpreted the testimony this way: 

Kumpe was shown a document purported 
to be a transcript of a conversation with 
his sister. Kumpe would not admit to 
having made the statements contained 
therein. (T. 76.) He was asked about a 
statement, ‘You understand that I did 
shoot at that policeman’ (T. 73.) 
Kumpe said that if he made such a state- 
ment, he lied ‘to pressure her into acting 
with a little more haste.” (T. 74.) In 
answer to a question from the court, 
Kumpe stated that he could not say that 
he had the conversation set forth in the 
transcript. He testified that from time 
to time, when his sister was visiting, he 
did discuss certain items related in the 
transcript. (T. 127). 

598 F.Supp. at 1420-21. Kumpe testified 
in person before the district court. When 
the court today concludes that his testimo- 
ny establishes the authenticity of a tran- 
script, the critical parts of which he has 
testified were lies, if said at all, it is engag- 
ing in a credibility determination, thereby 
reaching conclusions directly contrary to 
the district court’s. Thus, the court again 
disregards the dictates of Bessemer City, 

in which the Supreme Court stated: 
When findings are based on determina- 

tions regarding the credibility of witness- 

5. The court also relies on the Kumpe-Eisner 
transcript in concluding that the new evidence 
satisfies the “ends of justice” test. To the extent 
that the transcript is not authenticated, how- 
ever, it cannot support relief under that ground 
either. 

6. The Supreme Court has never held whether 
Brady and Agurs apply to evidence admissible 
only for impeachment purposes. Several courts 
have decided that these cases do so apply but 
only upon a more substantial showing of mate- 
riality. See United States v. Oxman, 740 F.2d 
1298, 1321 (3d Cir.1984) (Sloviter, J., dissent- 

966 763 FEDERAL REPORTER, 2d SERIES 

es, Rule 52 demands even greater defer- 
ence to the trial court’s findings; for 
only the trial judge can be aware of the 
variations in demeanor and tone of voice 
that bear so heavily on the listener's 
understanding of and belief in what is 
said. * * * Documents or objective evi- 
dence may contradict the witness’ story; 
or the story itself may be so internally 
inconsistent or implausible on its face 
that a reasonable factfinder would not 
credit it. * * * But when a trial judge’s 
finding is based on his decision to credit 
the testimony of one of two or more 
witnesses, each of whom has told a co- 
herent and facially plausible story that is 
not contradicted by extrinsic evidence, 
that finding, if not internally inconsist- 
ent, can virtually never be clear error. 

— U.S. at , 105 S.Ct. at 1512-13 (cita- 
tions omitted). 

Second, the transcript is not material 
when considered in light of the whole 
record. The district court found that “the 
Kumpe-Eisner statement was surreptitious- 
ly acquired and not under oath. The only 
sworn statement given by Kumpe disavows 
any participation in the actual shooting of 
Officer Vaughan.” 598 F.Supp. at 1433. 
The district court also correctly observed 
that suppressed evidence is less likely to be 
material if it relates only to impeachment. 
See Lindhorst v. United States, 658 F.2d 
598, 606 (8th Cir.1981), cert. denied, 454 
U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 309 
(1982); United States v. Librach, 520 F.2d 
550, 554 n. 3 (8th Cir.1975); Link v. United 
States, 352 F.2d 207, 212 (8th Cir.1965), 
cert. denied, 383 U.S. 915, 86 S.Ct. 906, 15 
L.Ed.2d 669 (1966).® It concluded that in 

ing). Apparently, however, no court has held 
that impeachment evidence is material under 
Brady when the witness allegedly impeached did 
not testify. Kumpe was certainly known to be a 
direct eyewitness and his whereabouts were 
known during both the first and the second 
trials. He was called to testify in neither. The 
court indeed weaves a gossamer web to grant 
the writ on the basis of newly discovered im- 
peachment testimony of a witness who could 
have been called to testify in the trial but was 
not.  



en greater defer- 
's findings; for 

be aware of the 

nd tone of voice 

bn the listener’s 

belief in what is 

or objective evi- 

e witness’ story; 

be so internally 

ible on its face 

inder would not 

n a trial judge’s 

ecision to credit 
bf two or more 

has told a co- 

ible story that is 

trinsic evidence, 

rnally inconsist- 

be clear error. 

at 1512-13 (cita- 

is not material 

t of the whole 

found that “the 

Fas surreptitious- 

oath. The only 

Kumpe disavows 

tual shooting of 

Supp. at 1433. 

rrectly observed 

b less likely to be 

to impeachment. 
States, 658 F.2d 

ert. denied, 454 

71 L.Ed.2d 309 

tbrach, 520 F.2d 

Link v. United 

(8th Cir.1965), 

86 S.Ct. 906, 15 

ncluded that in 

no court has held 

is material under 

edly impeached did 
iinly known to be a 
whereabouts were 

st and the second 

ify in neither. The 
mer web to grant 

wly discovered im- 

witness who could 

n the trial but was 

WALKER v. LOCKHART 967 
Cite as 763 F.2d 942 (1985) 

the context of the entire record, the 
“Kumpe-Eisner statement does not create a 
reasonable doubt concerning” Walker's 
guilt. 598 F.Supp. at 1433. This conclu- 
sion may be set aside only if it is clearly 
erroneous. See United States ex rel 
Moore v. Brierton, 560 F.2d 288, 292 (7th 
Cir.1977), cert. denied, 434 U.S. 1088, 98 
S.Ct. 1285, 55 L.Ed.2d 794 (1978). The 
court today concedes that the transcript is 
susceptible of different interpretations, not 
all of which are favorable to Walker. The 
district court’s choice of the views unfavor- 
able to Walker is not clearly erroneous. 
See Bessemer City, — U.S. at —, 105 
S.Ct. at 1511. Thus, the suppression claim 
must fail on materiality grounds. 

Y. 
The court’s exercise in reviewing the 

newly discovered evidence issue is merely a 
springboard to justify a reconsideration of 
the judicial bias claim.” The court con- 
cludes that newly discovered evidence justi- 
fies reconsideration of the bias issue, then 
immediately determines that the question 
has been decided by the dissent in the 
earlier en banc opinion, which found bias in 
the trial court's denying Walker a recess to 
locate witnesses and its rejection of a bal- 
listies report. Supra at 960-961. In 
reality, the court is reaching this conclusion 
independent of any findings by a district 
court. 

In the first habeas proceeding Judge 
Henley rejected Walker's argument of judi- 
cial bias and this finding was unanimously 
affirmed on appeal. In the second habeas 
Proceeding, Judge Woods refused to con- 
sider the claim because he found that 
Sanders had not been satisfied. Following 
the recall, Judge Woods did not consider 
the merits of the bias argument because 
the new evidence did not concern the issue. 
Thus, the only district court findings relat- 
ing to bias in this extensive history are 
adverse to Walker. Moreover, in an earlier 

7. The purpose of recalling the mandate and 
Temanding the case to the district court was to consider the impact of new evidence. Based on 
this new evidence, the court now holds that the 
trial judge's bias deprived Walker of a fair trial. 

opinion, Judge Arnold wrote that while he 
believed there was bias on the part of the 
trial judge, he was not persuaded that it 
“did Walker any actual harm that would 
not have occurred if the case had been tried 
by another judge.” Walker v. Lockhart, 
726 F.2d 1238, 1250 (8th Cir.1984) (Arnold, 
J., concurring). He specifically concluded 
that the denial of the recess was not crucial 
and that the ruling on the ballistics report 
was not to be faulted. 

Now the court summarily concludes that 
bias supports granting the writ. Even 
without the opinions in the first round of 
habeas proceedings, the court would be 
arrogating the role of the district court by 
making initial factual findings on appeal. 
See Anderson wv. Fuller, 455 U.S. 1028, 
1030, 102 S.Ct. 1734, 1735, 72 L.Ed.2d 150 
(1982) (Burger, C.J. dissenting). But this 
zealousness is rendered doubly improper 
because the court contradicts the earlier 
district court finding and our prior approv- 
al of that finding without any effort to 
analyze or review these decisions. The 
court thus seriously abuses its authority in 
deciding the bias issue. 

VI. 

The history of the Walker habeas efforts 
demonstrates the eagerness of the court to 
find its own facts and to free Walker. The 
first habeas proceedings, the earlier deci- 
sion of this court en bane, and the opinion 
today reflect Walker's shifting factual 
claims. From the speculative reexamina- 
tion of the facts engaged in by the dissent 
in this court’s earlier en banc consideration, 
the court today proceeds to discard the 
district court's carefully reached findings 
and to take the most appealing path of 
finding its own facts. It has no power to 
do so. The application for a writ of habeas 
corpus should be denied. 

This conclusion does not follow because, as the 
court concedes, none of the evidence presented 
at the remand hearing related to the bias claim. 
Supra at 960.  



              

      ) 

ut, 

661 FEDERAL SUPPLEMEN 

Edward Earl JOHNSON 

Vv. 

Donald CABANA, Acting Commissioner 

of the Department of Corrections. 

Civ. A. No. J87-0277(B). 

United States District Court, 

'S.D. Mississippi, 
Jackson Division. 

May 19, 1987. 

State prisoner under sentence of death 
sought habeas corpus. The District Court, 

Barbour, J., held that: (1) failure to raise 

most issues in first habeas corpus petition 

was not due to ineffective assistance of 

counsel so as to permit the issues to be 

raised in second petition; (2) trial counsel 

was not ineffective; and (3) prisoner was 

not entitled to hearing on claim that he was 

mentally incompetent or insane at the 

present time. 

Petition denied. 

Judgment affirmed 818 F.2d 333. 

See also — So0.2d —. 

1. Criminal Law €=1001 

Stay of execution ngrmally should is- 

sue if the merits of petition for writ of 

habeas corpus cannot be satisfactorily con- 

sidered in the time available. 28 U.S.C.A. 
§ 2254. 

2. Habeas Corpus 7 

Claim of abuse of writ of habeas cor- 

pus may be pleaded by the state or raised 

by the federal district court sua sponte. 
Rules Governing § 2254 Cases, Rule 9(b), 

28 U.S.C.A. foll. § 2254. 

3. Habeas Corpus ¢=7 

Petitioner's claim that he was so men- 

tally incompetent at the present time that 

execution would be in violation of Eighth 

Amendment was based on facts or legal 

theories about which he had no knowledge 

when prosecuted in his prior habeas corpus 

petition and thus was not subject to abuse 

of the writ challenge. Rules Governing 

p v9 

Drndomee 
§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll. 
§ 2254; U.S.C.A. Const.Amend. 8. 

4. Habeas Corpus &=45.2(8) 

Case pending before the United States 

Supreme Court involving question of in- 

flicting death penalty on individual who 

was a child of 15 at the time of the crime 

would not establish “new law” with respect 

to pending execution of person who was 18 

years old at time of the crime and was tried 
as an adult, so that court would not hold 

execution in abeyance pending resolution 

of the pending Supreme Court decision. 

5. Habeas Corpus &=7 

Petitioner is not necessarily entitled to 

evidentiary hearing on whether he has 

abused the writ. Rules Governing § 2254 

Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254. 

6. Habeas Corpus &7 

Counsel in first habeas corpus petition 

were not ineffective for failing to raise 

claims of improper jury selection or uncon- 

stitutional capital sentencing where the 

jury instructions as a whole did not shift 

the burden during the penalty phase and 

there was no evidence that jury was in- 

structed by trial court to consider only the 
enumerated statutory mitigating circum- 
stances. 

7. Habeas Corpus &=7 

Habeas corpus counsel's failure to 

raise question of ineffective assistance of 

counsel at trial was not ineffective assist- 

ance itself, so as to permit the issue to be 

raised in a second habeas corpus petition, 
even though one of two counsel in the first 
habeas petition was also the trial counsel. 

8. Habeas Corpus ¢=90.2(3) 

No evidentiary hearing on issue of trial 

counsel’s deficient performance was war- 

ranted in federal habeas corpus proceeding 

where all relevant evidence was either pre- 

served in state court record or presented to 

the federal court by affidavit. 

9. Criminal Law ¢=641.13(5) 

Counsel's allegedly erroneous advice to 

defendant concerning acceptance of plea 

was not prejudicial to him where he was 

never formally offered a plea bargain. 

G15 F.2d 333( 5%, 1957)   

 



S.C.A. foll. 
8, 

ited States 

stion of in- 

idual who 

f the crime 

with respect 

ho was 18 

id was tried 

1d not hold 

resolution 

decision. 

I entitled to 

er he has 

ing § 2254 

oll. § 2254. 

bus petition 

lg to raise 

or uncon- 

where the 

d not shift 

phase and 

ry was in- 

er only the 

ng circum- 

failure to 

sistance of 

tive assist- 

issue to be 

us petition, 

in the first 

ial counsel. 

sue of trial 

was war- 

proceeding 

either pre- 

resented to 

is advice to 

ce of plea 

re he was 

bargain. 

  

JOHNSON v. CABANA 357 
Cite as 661 F.Supp. 356 (S.D.Miss. 1987) 

10. Criminal Law €=641.13(7) 

Counsel was not ineffective at trial 

when presenting mitigating evidence of de- 

fendant’s background in penalty phase 

where counsel presented three witnesses 

who testified as to defendant's reputation 

and character as a good person and hard 

worker. 

11. Criminal Law &=641.13(7) 

Trial counsel's failure to present miti- 

gating evidence of mental impairment did 

not render assistance ineffective where the 

failure was not based on error or incom- 

petence but, rather, on considered conclu- 

sion that the evidence was insubstantial. 

12. Criminal Law €¢=641.13(7) 

Counsel’s determination to spend argu- 
ment at penalty phase primarily on gener- 

alized objections to death penalty rather 

than emphasizing the defendant’s good 

character, diligence, and youth did not ren- 

der assistance ineffective. 

13. Habeas Corpus €=90.2(5) 

Affidavits and evidence in record did 

not create question of fact as to whether 

state prisoner under sentence of death was 

incompetent or insane so as to require fac- 

tual hearing in habeas corpus proceeding 

prior to execution. 
pie ont 

Robert B. McDuff, Lawyers’ Committee 

for Civil Rights under Law, Washington, 

D.C., Clive A. Stafford Smith, Atlanta, Ga., 

for petitioner. 

Marvin White, Asst. Atty. Gen., Jackson, 

Miss., for Cabana. 

  

MEMORANDUM OPINION 
AND ORDER 

(BARBOUR, District Judge. 
Earl Johnson was convicted by a 

Leake County jury in 1980 for the capital 

1. The factual background of Johnson's convic- 
tion and the framework of previous appeals and 
habeas petitions are set forth in prior opinions 
and will not be repeated. here. See Johnson v. 
Thigpen, 623 F.Supp. 1121 (S.D.Miss.1985) and 
Johnson v. Thigpen, 806 F.2d 1243 (Sth Cir. 
1986); see also Johnson v. Thigpen, 449 So.2d 
1207 (Miss.1983); Johnson v. State, 416 So.2d 

383 (Miss.1982). 

murder of Town Marshal J.T. Trest, and at 
a subsequent sentencing hearing the jury 

imposed a sentence of death.! Johnson has 
exhausted previous appeals and habeas pe- 

titions and the sentence of execution is to 

be carried out on Mey 20, 1987, at 12:01 

a.m. 

[1] This matter is now before the Court 

on a second federal habeas corpus petition.2 

Petitioner Johnson has requested a stay of 
execution. A stay of execution normally 

should issue if the merits of the petition 

cannot be satisfactorily considered in the 

time available. Dobbert v. Strickland, 670 

F.2d 938, 940 (11th Cir.1982). The Petition- 

er enumerates these issues in his second 

habeas petition: 

  

1. Counsel at trial rendered ineffec- 

tive assistance based on failure to 

present mitigating evidence of mental im- 

pairment, failure to present mitigating 

evidence of Johnson’s background, 

wrongfully advising Johnson about a 

plea bargain, failure to appear at two 

hearings, misstating Johnson's age in 

closing arguments, and failure to include 

all arguments in closing arguments with- 

in the allowed time; 

2. Johnson's present mental incom- 

petence or insanity would render an exe- 

cution cruel and unusual punishment; 

3. A jury instruction at the penalty 

phase unconstitutionally shifted the bur- 

den of proof to the Petitioner; 

4. One juror had a substantial reason 

to favor the prosecution; 

5. The conviction and sentence were 

secured by use of a statement taken 

without counsel present; 

6. It is an Eighth Amendment viola- 

tion to impose the death sentence on a 

person who was 18 years old at the time 

2. The Court terms this a “second” petition al- 
though it is in fact the third one Johnson has 
filed with this Court. The initial petition for 
federal habeas relief was dismissed without 
prejudice for failure to exhaust state remedies. 
The first habeas petition to be considered on the 
merits was that considered in the opinion ren- 
dered December 13, 1985. See Johnson v. Thig- 
pen, 623 F.Supp. 1121 (8.D.Miss.1985).  



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358 661 FEDERAL SUPPLEMENT 

of the crime and too young to sit on a 
jury; 

7. The Mississippi capital statute in 
force at the time of Johnson's trial was 
facially unconstitutional. 

The Petitioner has presented these same 
issues to the Mississippi Supreme Court for 
post-conviction collateral relief and the 
state court has denied that relief. Johnson 
v. State, — S0.2d —— No. DP-16, Slip 
Op. (Miss.1987). Thus, Johnson has come 
to the federal court for federal habeas re- 
lief. 

Successive or second habeas petitions are 
verned by 28 U.S. ) 

of the Rules Governing Section 2254 cases. 
Rule 9(b) provides: 

A second or successive petition may be 
dismissed if the judge finds that it fails 
to allege new or different grounds for 
relief and the prior determination was on 
the merits, or, if new and different 
grounds are alleged, the judge finds that 
the failure of the petitioner to assert 
those grounds in a prior petition consti- 
tuted an abuse of the writ. 

This rule codifies the holding of the United 
States Supreme Court in Sanders v. Unit- 
ed States, 373 U.S. 1, 8, 83 S.Ct. 1068, 1073, 
10 L.Ed.2d 148 (1963). 

> 

[2] In regard to the doctrine of “abuse 
of the" Writ,” the United States Court of 
Appeals Tor the Fifth Circuit has recently 
stated: 

If a petitioner has filed one or more 
previous petitions, the petitioner's subse- 
quent petition may be dismissed if it fails 
to allege any new grounds for relief. It 
may also be dismissed if the judge finds 
that the new grounds that were alleged 
should have been asserted in an earlier 
petition and that the present petition con- 
stitutes “an abuse of the writ.” Rule 
9(b) of Rules Governing Section 2254 
cases. Even so, a petitioner may assert 
a new claim in a successive petition so 
long as it is “based on facts or legal 
theories about which [the petitioner] had 
no knowledge when prosecuting [the pe- 
titioner’s] prior habeas petition.” 

Urdy v. McCotter, 773 F.2d 652, 655 (5th 
Cir.1985) (citations omitted). A claim of 

  

  

abuse of the writ may be pleaded by the 
state or raised by the federal district court 
sua sponte. Id.; Daniels v. Blackburn, 
763 F.2d 705, 707 (5th Cir.1985). 

This Court is faced with a second habeas 
corpus petition which the state challenges 
as “abuse of the writ.” The Court must 
now determine whether the issues Petition- 
er attempts to litigate are based on facts or 
legal theories about which Petitioner of his 
counsel had no knowledge when prosecut- 
ing his prior habeas petition. 

The Petitioner asserts that ineffective as- 
sistance of counsel at trial was in violation 
of his rights as secured under the Sixth, 
Eighth and Fourteenth Amendments. In 
support of this claim the Petitioner con- 
tends that trial counsel did not present 
evidence at trial of Johnson’s mental im- 
pairment or his family background as miti- 
gating circumstances in the sentencing 
phase. The Petitioner urges this Court to 
consider the recent opinion in Wilson wv. 
Butler, 813 F.2d 664 (5th Cir.1987), in 
which the Fifth Circuit held that the peti- 
tioner had made a sufficient showing to 
warrant an evidentiary hearing on the is- 
sue of whether trial counsel rendered inef- 
fective assistance for not investigating the 
defendant’s background and for not 
presenting evidence of deficient mental ca- 
pacity in the guilt and sentencing phases of 
trial. Petitioner Johnson contends that tri- 
al counsel erroneously assumed that such 
evidence would not be admissible if it did 
not fall within the mitigating circumstances 
as enumerated in the capital sentencing 
statute. Petitioner also contends he was 
given ineffective assistance of counsel 
when his trial counsel wrongfully informed 
the Petitioner that if he pled guilty in ex- 
change for an offered life sentence he 
would not be eligible for parole. This ad- 
vice was not supported by the law in Mis- 
sissippi at that time. The Petitioner also 
asserts that trial counsel did not include 
the proper mitigating arguments in his 
closing arguments at the sentencing phase. 
The Court finds that the claims of ineffec- 
tive assistance of trial counsel are based on 
facts and legal theories about which the 
Petitioner and his counsel would have 

cut 

Am 
. 

259 

lish 

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JOHNSON v. CABANA 359 
Cite as 661 F.Supp. 356 (S.D.Miss. 1987) 

knowledge when the prior habeas petition 

was filed. This claim would therefore be 

subject to an abuse of the writ doctrine 

challenge. Whether the Petitioner has ac- 

tually abused the writ will be discussed 

infra. 

[3] The Petitioner sats Datta is so 

mentally ly incompetent at this time that exe- 

cution would be in violation of the Eighth 

Amendment. The Petitioner relies on Ford 

v. Wainwright, ZT U.S. 399, 106 S.Ct. 

2595, 91 L.Ed.2d 335 (1986), which estab- 

lished that it is cruel and unusual punish- 

ment under the Eighth Amendment to exe- 

cute someone who is mentally incompetent. 

  

  

  

| Mississippi law also provides that one who 

is mentally incompetent should not be exe- 

cuted. Miss.Code Ann. § 99-19-57(2) 

(Supp.1986). The Petitioner urges that un- 

der Mississippi “law a person is entitled to a 

hé&aring on his competence to be executed. 

See Id. In support of this claim the Peti- 

tioner presents affidavits of psychologists 

who report that the Petitioner suiiers from 

organic brain damage and brain dysfunc- 

tion. There are also affidavits of family 

witnesses as to Johnson’s present incom- 

petence. The state has presented counter- 

affidavits by psychologists and persons ob- 

serving Johnson which state he is not pres- 

ently incompetent or insane for purposes of 

execution. The Petitioner contends that 

this claim could not have been asserted in 

the prior federal habeas petition because 

his mental condition has deteriorated since 

that earlier filing. Further, the recent Su- 

preme Court opinion in Ford v. Wain- 

wright, 477 U.S. 899, 106 S.Ct. 2595, 91 

L.Ed.2d 335 (1986) established new law re- 

garding incompetence at the time of execu- 

tion. The Court therefore finds that this 

claim is based on facts or legal theories 

about which the Petitioner had no knowl- 

edge when prosecuting his prior habeas 

petition, and therefore 1t 1s not subject t to 

  

  

  

  

  

  

  

  

  

~ an abuse of the writ rit challenge. 
  

The Petitioner next argues that a jury 

instruction at the penalty phase of the trial 

unconstitutionally shifted the burden of 

proof regarding propriety of the death pen- 

alty to the Petitioner. The trial court gave 

this jury instruction, S-7, for which Peti- 

tioner argues the burden of proof shifted: 

Proof beyond a reasonable doubt ... of 

the statutory elements of the capital of- 

fense of which the accused is charged 

shall constitute sufficient circumstances 

to authorize imposition of the death pen- 

alty unless mitigating circumstances 

shown by the evidence outweigh the ag- 

gravating circumstances. 

Mississippi law clearly provided that the 

jury must find at least one statutory, ag- 

gravating circumstance before it may im- 

pose the death penalty. The Petitioner was 

aware of the facts supporting this claim at 

the time of the prior federal habeas peti- 

tion, yet Petitioner argues that “new law” 

as found in Frances v. Franklin, 471 U.S. 

307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) 

established a legal theory for this claim for 

which Petitioner previously had no knowl- 

edge. Contrary to the Petitioner’s asser- 

tion, Frances v. Franklin is not “new law” 

in this area but rather is a reiteration and 

modification of Sandstrom v. Montana, 

442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 

(1979). Frances dealt with shifting the 

burden of proof on an element of the of- 

fense charged; the burden of proof shifted 

in that case was on the element of intent 

for malice murder. Likewise, Sandstrom 

dealt with shifting the burden of proving 

an element of the offense. Sandstrom had 

previously held that mandatory presump- 

tions violate the due process clause if they 

relieve the state of the burden of persua- 

sion on an element of an offense. Sand- 

strom, 442 U.S. at 520-24, 99 S.Ct. at 2457- 

59. In the present case the Petitioner ar- 

gues that the trial court impermissibly 

shifted the burden of proving an element of 

the penalty statute from the prosecution. 

This claim is not based on “new law” of 

Frances, but rather had its support in the 

earlier case of Sandstrom; therefore, this 

issue could have been raised in the prior 

habeas petition. The Petitioner claims inef- 

fective assistance of habeas counsel if the 

Court finds this issue should have been 

raised earlier. 

The Petitioner next contends that the 

prosecution failed to reveal that one juror 

had substantial reason to favor the prose-   

      

    

  
  

   



  
  

  

  

      
  

360 

cution. The Petitioner alleges that Ms. Ed- 
die Leflore, who was ultimately chosen to 

serve, did not answer truthfully when 

asked questions on voir dire and the prose- 

cution failed to correct these answers on 

voir dire. This claim arises from the fact 

that Ms. Leflore’s step-son had been found 

guilty of grand larceny in the same county 

three months prior to Johnson's trial in a 

case prosecuted by the same District Attor- 

ney who was prosecuting Johnson. Peti- 

tioner contends that this gave the juror a 

reason to favor the prosecution and denied 

the Petitioner a fair trial. Even though 

Petitioner’s counsel state that the evidence 

of the juror potentially currying the prose- 

cution’s favor was discovered on May 9, 

1987, after a witness volunteered it, it can- 

not be said that such evidence was solely 

within the domain of the prosecution. This 

particular juror was earlier challenged in a 

motion for a new trial, and reasonable in- 

quiry at that time concerning the juror’s 

truthful or untruthful answers on voir dire 

could have revealed the facts of this cir- 

cumstance. This claim concerning this ju- 

ror should have been raised in the prior 
habeas petition. 

The next contention in support of this 

habeas corpus petition is that the convic- 

tion and sentence were securedby use of a 

statement taken without counsel present. 

Petitioner asserts that this claim is based 

on the “new law” of Michigan v. Jackson, 
475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 
631 (1986). Michigan v. Jackson holds 

~ that police interrogation after a request for 

counsel at arraignment but prior to consul- 

tation with counsel renders confessions or 

statements inadmissible as violating the 

Sixth Amendment right to counsel. Jack- 

son, 475 U.S. at — -——, 106 S.Ct. at 

1409-1411, 89 L.Ed.2d at 640-42. Petition- 
er'’s trial counsel had knowledge of the 

facts and legal theory regarding violation 

of the Sixth Amendment for this claim of 

questioning without counsel present prior 

‘to the first habeas petition as evidenced by 
the fact that trial counsel moved to sup- 
press the statement from trial. See Affida- 

vit of Firnist Alexander at 2 16. Even 

though Michigan v. Jackson was not decid- 

ed until April 1, 1986, Petitioner's trial 

661 FEDERAL SUPPLEMENT 

counsel had knowledge of the facts and 
argued this legal theory at the time of trial. 
Thus, the argument that Michigan v. Jack- 
son created “new law” of which Petitioner 
did not have knowledge is not persuasive 
since trial counsel attempted to urge a 
Sixth Amendment violation at trial. This 
claim is thus subject to challenges under 
abuse of the writ. 

[4] Petitioner contends that it is a viola- 
tion of the Eighth Amendment to impose 
the death sentence on a person 18 years old 

at the time of a crime since at that age the 

person is too young to sit on a jury under 

Mississippi law. Petitioner urges this 

Court to hold this case in abeyance pending 
the resolution in the United States Su- 
preme Court of this issue as presented in 
Thompson v. Oklahoma, No. 86-6169, 
cert. granted, — U.S. —, 107 S.Ct. 1284, 
94 L.Ed.2d 143 (1987). The Court finds 
that it is not proper to hold this case in 
abeyance pending the resolution of Thomp- 
son since Thompson is not new law on 
point. Thompson involves a question of 

inflicting the death penalty on an individual 
who was a child of fifteen at the time of 
the crime. See 55 U.S.L.W. 8597 (Mar. 3, 

1987). Clearly Thompson is distinguish- 

able from Johnson in that Johnson was 

over eighteen years of age at the time of 
the crime and was in all respects tried as 
an adult. Johnson’s age was properly ar- 
gued in mitigation’ of the death penalty. 

Eddings v. Oklahoma, 455 U.S. 104, 116, 

102 S.Ct. 869, 877, 71 L.Ed.2d 1 (1982) held 
that a court considers many mitigating 

factors but mere youth at time of crime 

will not vacate the death penalty. The 
Court finds that Thompson does not estab- 
lish “new law” for purposes of Johnson's 

sentence and will not have a bearing on 

this sentence. This Court will not hold the 

execution in abeyance pending resolution 

of Thompson. 

~ Petitioner’s final claim is that the Missis- - 

sippi capital statute in force at the time of 

his trial was facially unconstitutional be- 

cause it limited consideration of mitigating 

circumstances to those enumerated in the 

statute. The Petitioner asserts that the 

recent decision of Hitchcock v. Duggar, —   

  

  

 



p facts and 

ime of trial. 

an v. Jack- 

Petitioner 

persuasive 

to urge a 

trial. This 

ges under 

t is a viola- 

to impose 

8 years old 

at age the 

jury under 

rges this 

ce pending 

States Su- 

esented in 

86-6169, 

S.Ct. 1284, 

ourt finds 

is case in 

of Thomp- 

law on 

estion of 

individual 

e time of 

7 (Mar. 3, 

istinguish- 

nson was 

le time of 

tried as 

operly ar- 

penalty. 

104, 116, 

1982) held 

itigating 

of crime 

Ity. The 

not estab- 

ohnson’s 

baring on 

hold the 

esolution 

e Missis- - 

e time of 

ional be- 

itigating 

ed in the 

that the 

gar, — 

  

  

  

JOHNSON v. CABANA 361 
Cite as 661 F.Supp. 356 (S.D.Miss. 1987) 

U.S. —, 107 S.Ct. 1821, 95 L.Ed.2d 347 

(1987) is persuasive authority that Missis- 

sippi unconstitutionally limited the consid- 

eration of mitigating circumstances to 

those enumerated in the statute at the time 

of Johnson's trial. See Miss.Code Ann. 

§ 99-19-101(6) (Supp.1980). The Court 

notes that the previous Supreme Court de- 

cision in Lockett v. Ohio, 438 U.S. 586, 98 

S.Ct. 2954, 57 L.Ed.2d 973 (1978) had held 

that a state could not limit the non-statu- 

tory mitigating circumstances which a jury 

could consider. Counsel should have had 

knowledge of Lockett at the time of the 

first habeas petition and therefore counsel 

could have asserted this legal theory at the 

time of the first federal habeas petition. 

Hitchcock does not constitute “new law” 

on this theory but rather is a refinement of 

the previous holding in Lockett concerning 

admissibility of all mitigating circumstanc- 

es whether or not enumerated in a statute. 

Failure to raise this claim in the previous 

habeas petition may therefore constitute 
abuse of the writ. 

The issues as presented in claims 1, 3, 4, 

5, 6, and 7 are ones for which Petitioner 

should have had knowledge of the facts or 

legal theories at the time he presented his 

first federal habeas petition and are not 

based upon “new evidence” or “new law.” 

Unless Petitioner can show that these 

claims were not deliberately and knowingly 

withheld or not withheld based on inexcusa- 

ble neglect, then the claims should be dis- 
missed as an abuse of the writ. 

In order to avoid abuse of the writ Peti- 

tioner asserts that failure to raise claims 1, 

3 and 7 constitutes ineffectiveness of the 

first habeas counsel. Counsel in this sec- 

ond habeas petition state that the Petition- 

er Johnson was not informed of the con- 

flicts of interest surrounding a claim for 

ineffective assistance of trial counsel. The 

facts giving rise to this conflict of interest 

claim is that R. Jess Brown represented the 

Petitioner during his trial, appeal and first 

federal habeas petition and never raised 

the issue of his own ineffectiveness. Co- 

counsel to the first habeas petition, Barry 

Powell, likewise did not urge the claim of 

ineffectiveness of counsel while Brown was 

still representing the Petitioner. Petitioner 

contends it was ineffective assistance of 

the counsel on the first habeas claim to 

omit the issue of trial counsel’s ineffective- 

ness. Further, Petitioner asserts that if 

the first habeas petition counsel should 
have known of the facts or law supporting 

claims 3 and 7, then the first habeas coun- 

sel were ineffective by failing to properly 

raise these claims. Regarding ineffective- 
ness of habeas counsel, the Fifth Circuit 
has stated: 

Counsel competence in habeas proceed- 

ings is not a constitutional inquiry, since 

a state has no constitutional duty to pro- 

vide counsel in collateral proceedings. 

Instead the question is whether such 

incompetence excuses the failure to in- 

clude the new claim in the old petition. 

Even a successive petition seeking to liti- 
gate a claim a second time can be con- 
sidered to prevent an injustice. Equally, 
incompetence of habeas counsel when it 

explains an omission or flawed submis- 

sion can excuse what otherwise would 

amount to an abuse of the writ. 

It does not follow that incompetence of 

counsel is necessarily established by 

omission of a claim. 

Jones v. Estelle, 722 F.2d 159, 167 (5th 

Cir.1983) (emphasis added). The court in 

Jones held that the test of competent habe- 

as counsel is the same as competent trial 
counsel under Strickland v. Washington, 
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984). Jomes, 722 F.2d at 167. The Fifth 
Circuit further held in Daniels v. Black- 
burn, 763 F.2d 705 (5th Cir.1985), 

In Jones, we recognize that there is no 

constitutional right to the assistance of 
counsel in a collateral attack on a convie- 

tion. We held, however, that, if a habeas 

petitioner is represented by competent 

counsel, his attorney’s decision to with- 

hold claims will preclude their assertion 

in a subsequent petition unless the peti- 

tioner establishes that counsel was in- 

competent. We noted further that, for 

purposes of this analysis, the effective- 

ness of counsel's performance should be 

evaluated by the same standards that 

govern the constitutional inquiry into the 

effectiveness of counsel at a criminal tri-   
 



  
  

        

362 

al. Finally, we stated that we will not 

presume that counsel was incompetent or 

ineffective simply because he failed to 

raise a claim in a prior habeas proceed- 

ing: “It does not follow that incom- 

petence of counsel is necessarily estab- 

lished by omission of a claim.” 

Daniels, 763 F.2d at 710. This Court must 

therefore decide whether or not the peti- 

tioner has established that his first habeas 

counsel was incompetent under the stan- 

dards of Strickland v. Washington for 

failing to raise claims 1, 3 and 7. 

[5] Petitioner requested an evidentiary 

hearing in order to show that his failure to 

raise these three claims earlier is not the 

result of intentional bypass or inexcuseable 

negligence and does not abuse the writ. A 

petitioner is not necessarily entitled to an 

evidentiary hearing on whether or not he 

has abused the writ. Urdy v. McCotter, 

773 F.2d at 653; Daniels v. Blackburn, 

763 F.2d at 707. The Petitioner anticipated 

the abuse of writ argument and included in 

his petition and brief the pertinent facts 

and law on which he relied to rebut abuse 

of the writ. However, The Petitioner was 

given a hearing before this Court and was 
afforded the opportunity to present evi- 

dence rebutting the abuse of writ challenge 

and the Court has duly considered this evi- 

dence. Summary dismissal by the district 
court is justified if the district court deter- 
mines as a matter of law that the petitioner 
has no chance of justifying the success of 

the petition. Daniels, 763 F.2d at 707. 

[6] This Court determines as a matter 
of law that counsel for the first habeas 

petition were not ineffective for failing to 

raise the claims of an improper jury in- 

struction [Claim 3] and of an unconstitu- 

tional capital sentencing statute [Claim 7]. 
The Court does not believe, based on the 

record of this case and the applicable law, 
that counsels representation on habeas fell 

below an objective standard of reasonable- 
ness. See Strickland, 466 U.S. at 687, 104 
S.Ct. at 2064. It was within the accepted 

range of professionally competent assist- 

ance to not raise these arguments. Fur- 

ther, the Petitioner has not shown that but 

for counsel's errors the result of the pro- 

661 FEDERAL SUPPLEMENT 

ceeding would have been different. See Id. 

at 694, 104 S.Ct. at 2068. The jury instruec- 

tions as a whole did not shift the burden 

during the penalty phase, and the jury in 

fact found the presence of two statutory 

aggravating = circumstances; therefore, 

counsel’s error in failing to raise the issue 

of Jury Instruction S-7 previously would 

not affect the outcome of the habeas pro- 

ceeding because this claim regarding the 

challenged jury instruction would fail. 

Likewise, the failure of the first habeas 

counsel to raise the claim that the sentenc- 

ing statute was unconstitutional would not 

have affected the outcome of the habeas 

proceeding, for no evidence has been 

presented that the jury was instructed by 

the trial court to only consider the enumer- 

ated mitigating circumstances. Therefore, 

the failure to raise this claim did not preju- 

dice the Petitioner as required by Strick- 

land. This Court has thus found that 

counsel on the first habeas petition was not 

ineffective as to these two claims as a 

matter of law. The Court further exam- 

ined these claims and finds that they are 

without merit. 

[71 The Court held a hearing at 4:30 

p.m. on May 18, 1987, and received evi- 

dence regarding ineffectiveness of habeas 

counsel as an excuse of the abuse of the 

writ. The Court heard from Barry Powell 

who was co-counsel with R. Jess Brown on 

~ the first habeas corpus petition. Although 

Powell has not participated in many death 
penalty cases, on the first federal habeas 
petition he conducted extensive research in 

the area, re-read the trial record, and con- 

ferred with James Robertson and counsel 

in the Southern Poverty Law Center who 

are experts in death penalty defense work. 

Powell admitted he was aware ineffective 

assistance of trial counsel often was raised 

in many habeas corpus petitions dealing 

with death sentences. Powell stated he did 

not raise the claim since Brown was one of 

Johnson's trial attorneys who was still rep- 

resenting Johnson on the habeas petition. 

James Robertson, who is now a justice on 

the Mississippi Supreme Court, and counsel 

for the Southern Poverty Law Center did 

not recommend ineffective assistance of tri-  



erent. See Id. 

he jury instruc- 

ift the burden 

nd the jury in 

two statutory 
5; therefore, 

aise the issue 

viously would 

e habeas pro- 

regarding the 

ph would fail. 

pb first habeas 

ht the sentenc- 

bnal would not 

of the habeas 

ce has been 

instructed by 

br the enumer- 

s. Therefore, 

did not preju- 

ed by Strick- 

s found that 

tition was not 

claims as a 

further exam- 

that they are 

aring at 4:30 

received evi- 

ess of habeas 

abuse of the 

Barry Powell 

ess Brown on 

bn. Although 

many death 

ederal habeas 

e research in 

ord, and con- 

and counsel 

Center who 

Hefense work. 

re ineffective 

en was raised 

tions dealing 

stated he did 

n was one of 

was still rep- 

beas petition. 

a justice on 

t, and counsel 

w Center did 

fistance of tri- 

JOHNSON v. CABANA 363 
Cite as 661 F.Supp. 356 (S.D.Miss. 1987) 

al counsel as an issue to raise. The Court 

finds the protestations of Powell that he 

did not include the issue of ineffective as- 

sistance of trial counsel in the first habeas 

petition because he did not want to offend 

Brown is not convincing. The Court is 

aware that Powell is a competent attorney 

and is known for representing his clients 

zealously within the bounds of the law, 

thus Powell would not allow the feelings of 

co-counsel to get in the way of presenting 

all possible claims for his client. The Court 

notes that Brown was not involved in the 

hearings conducted during the petitions for 

state post-conviction collateral relief or for 

federal habeas corpus. Also, Brown did 

not travel to Parchman Penitentiary for 

meetings with Johnson. The Court, there- 

fore, is not of the opinion this case properly 

presents a conflict of interest by Powell in 

his representation of Johnson in the first 

habeas petition. The Court must consider 

Powell's representation as to what was rea- 

sonable at the time of the first habeas 

petition, and not judge it by hindsight. 

Powell raised nine or ten issues in the first 

habeas petition which he believed had mer- 

it. The Court finds it was not unreason- 

able for him to omit the issue of ineffective 

assistance of trial counsel. Powell's per- 

formance on the first habeas petition did 

not fall below the standard of reasonable- 

ness by which the Court judges his repre- 

sentation for abuse of the writ. See 

Strickland, 466 U.S. at 687-88, 104 S.Ct. at 
2064. 

[8-10] Even if Powell had considered 

the claim of ineffective assistance of trial 

counsel and believed that he should have 

raised it on the first habeas petition, there 

is no substantive evidence to support a 

conclusion that the Court would have 

reached a different result and granted re- 
lief on the previous habeas petition. See 

Strickland, 466 U.S. at 694, 104 S.Ct. at 

2068 (but for counsel’s errors the result of 

the proceeding would have been different). 

No evidentiary hearing on the issue of trial 

counsel’s deficient performance is warrant- 

ed here because all relevant evidence is 

either preserved in the state court record 

or presented to the Court by affidavits. 

Cf. Wilson v. Butler, 813 F.2d 664, 671-73 

(6th Cir.1987) (petitioner entitled to eviden- 
tiary hearing where state court record was 
deficient on the issue of ineffective assist- 
ance of trial counsel). The assertion that 
trial counsel ran out of time and failed to 

include all mitigating circumstances in his 
closing arguments of the sentencing phase 
is a situation not all uncommon in the 

courts; Petitioner has failed to show how 

this would alter the result. Petitioner as- 
serts trial counsel erroneously stated Peti- 
tioner’s age was 20 and not 18 at the time 
of the crime, but the Court notes that John- 
son’s grandmother had testified to John- 
son’s proper age in the penalty phase. 
Thus, there is no prejudice in this error. 
Trial counsel's failure to appear at two 
hearings is likewise not prejudicial. The 
relief Petitioner was seeking in one hearing 
was granted by the Court’s order of a 
psychological examination, and the psychol- 
ogist’s affidavit shows that Petitioner's 
grandparents were interviewed at length 

as part of the psychological examination, 
thus his claim of mental impairment was 
investigated. There is no proof as to what 

the other hearing concerned, so this Court 
can make no finding that failure of counsel 
to appear was prejudicial. Petitioner sub- 
mits that trial counsel wrongfully advised 

Johnson concerning an offered life sen- 
tence if he pled guilty. The Court finds 
that affidavits submitted by the state re- 
veal that Petitioner was never formally of- 
fered a plea bargain, thus counsel’s advice 
was not prejudicial to Petitioner. Johnson 

also urges that trial counsel was ineffec- 

tive in presenting mitigating evidence of 

his background in the penalty phase. The 
record in this case reveals that counsel at 
trial presented such mitigating evidence 
through three witnesses who testified as to 
Johnson's reputation and character as a 
good person and hard worker. 

[11,12] Johnson also urges that trial 
:counsel was ineffective in that they failed 
to present mitigating evidence of mental 
impairment. Even though the failure of 

trial counsel to present proof or to argue 

on the issue of mental impairment at the 

sentencing phase is troubling to the Court, 
the evidence proffered here by Johnson is  



  

    

364 

consistent with the finding that the omis- 

sion was not error or incompetence by trial 

counsel but rather a considered conclusion 

that the evidence was insubstantial. The 

affidavits of trial counsel demonstrate that 

they were aware of the psychological proof 

of mental impairment, but chose not to 

present it. They believed it insufficient in 

that it did not prove insanity under the 

right/wrong test of insanity. While coun- 

sel may have been mistaken in their belief 

that mental impairment as a mitigating 

factor under the capital murder law was 

the equivalent of insanity under the crimi- 

nal law, they were nevertheless correct 

that the mitigating factor envisaged by the 

Mississippi statute requires a showing of 

“substantial” impairment or “extreme” dis- 

turbance. Trial counsel concluded on the 

facts that the psychological evidence was 

not worth presenting. The Court notes 

that while trial counsel did present proof of 

Petitioner's good character, diligence, 

youth, and of the absence of a criminal 
record, they did not emphasize these points 

in their argument to the jury. Instead, 

counsel spent their argument primarily on 

generalized objections to the death penalty. 

While their choice seems unreasonable in 

hindsight, the Court believes that granting 

relief under these circumstances would by 

implication make the presentation of possi- 

ble mitigating evidence a requirement un- 

der the Constitution in all death penalty 

cases, outside the discretion of trial coun- 

sel. Such a ruling would compel formula- 
tion by the federal courts of a checklist of 

required mitigating evidence and force the 

state to establish for the record why any 

such listed factors had not been proffered 

by the defense. Since the law does not 

require introduction of mitigating factors, 

Mitchell v. Kemp, 762 F.2d 886, 889 (11th 

Cir.1985) the Court cannot come to this 

conclusion. Accordingly, the Court con- 

cludes that the failure of habeas counsel to 

raise the ineffectiveness of trial counsel in 

the first petition was not unreasonable, and 

that a hearing on the merits of the question 

of ineffective assistance of counsel is not 

required in the interest of justice. 

The claim that Petitioner is presently in- 

competent or insane and that his mental 

661 FEDERAL SUPPLEMENT 

condition precludes execution is not 

presented as an abuse of the writ. It is 
based on new facts and new law not within 
the realm of knowledge on the prior habeas 

petition. Therefore, the Court will address 

the claim on the merits. 

[13] The Mississippi Supreme Court 

considered the affidavits submitted to it on 

this issue by Petitioner and concluded that 

Petitioner has failed to make a prima facie 

case that he is incompetent or insane. The 

Court agrees that the affidavits and evi- 

dence in the record do not create a question 

of fact about whether Johnson is incompe- 

tent or insane within the meaning of the 

Mississippi statute or of Ford v. Wain- 

wright. Evans v. McCotter, 805 F.2d 1210, 
1214 (5th Cir.1986). The Court reaches this 

conclusion having considered the factual 

bases set out in Johnson’s psychological 

evidence—facts corroborated by his other 

evidence. The Court is of the opinion that 

these facts do not support the conclusion 

that Johnson has become incompetent or 

insane; the facts are not even sufficient to 

justify a full hearing on the issue. In the 

alternative, the Court holds that Johnson 

had an adequate opportunity to present the 

question in state court; that the finding of 
the Mississippi Supreme Court is entitled to 

a “presumption of correctness” under 28 
U.S.C. § 2254(d), and that Johnson is not 

entitled to an evidentiary hearing on the 

issue in federal court. Id. The procedure 

followed satisfies the majority holding of 

Ford v. Wainwright: 

The State should provide an impartial 

officer or board that can receive evidence 

and argument from the prisoner’s coun- 

sel, including expert psychiatric evidence 

that may differ from the State’s own 

psychiatric examination. Beyond these 

basic requirements, the States should 
have substantial leeway to determine 

what process best balances the various 
interests at stake. 

106 S.Ct. at 2611. 

The Court concludes that a stay is unnec- 

essary to satisfactorily consider the Peti- 

tion, and having considered the claims and 

evidence presented concludes that the Peti- 

tion is without merit. It is therefore or-  



    
    

n is not 

writ. It is 

not within 

prior habeas 

ill address 

         

    

   
eme Court 

ted to it on 

cluded that 

prima facie 

sane. The 

ts and evi- 

a question 

is incompe- 

ing of the 

[ v. Wain- 

b F.2d 1210, 

eaches this 

he factual 

ychological 

y his other 

pinion that 

conclusion 

petent or 

fficient to 

e. In the 

at Johnson 

bresent the 

finding of 

entitled to 

’ under 28 

son is not 

ing on the 

procedure 

holding of 

    
    

    

     

    

   

  

     
   

   
         

   
   
   
    

   
   
   
     

     
   
   

          

   
   
   
    

   

impartial 

e evidence 

er's coun- 

ic evidence 

tate’s own 

yond these 

tes should 

determine 

he various 

y is unnec- 
* the Peti- 

claims and 

at the Peti- 

erefore or- 

  

   
  

  

Relief be denied. 

O ¢ KEY NUMBER SYSTEM 

-
“
n
m
s
 

ARIZONA LABORERS, TEAMSTERS, 

AND CEMENT MASONS, LOCAL 395 

PENSION TRUST FUND, et al., Plain- 
tiffs, 

Vv. 

Samuel NEVAREZ et al., Defendants. 

CIV 86-1973 to 86-1975 PHX RCB, CIV 

86-1990 PHX RCB. 

United States District Court, 

D. Arizona. 

May 19, 1987. 

Former spouses, who had obtained 

judgments in Superior Court of Arizona 

against participants in pension plans for 

failure to make required alimony and child 

support payments, and spouse of partici- 

pant who, with participant, had entered 

into a postnuptial agreement, instituted 

garnishment proceedings against trust 

funds. Pension plan participants filed ac- 

tion seeking declaratory relief that they 

were exempt from state garnishment pro- 

ceedings and seeking permanent injunction 

enjoining garnishment action against them. 

Parties filed cross motions for summary 

judgment. The District Court, Broomfield, 

J., held that: (1) judgments obtained by 

former spouses failed to meet require- 

ments of qualified domestic relations order, 

so that judgments did not fall within excep- 

tion to ERISA’s antialienation and preemp- 

tion provisions, and judgment creditor 

spouses could not garnish pension trust: 

funds; (2) antialienation provision did not 

cover welfare plan; (3) ERISA does not 

preempt state garnishment action against 

welfare plan; and (4) National Labor Rela- 

tions Act did not preempt any state gar- 

  

ALTCM, LOCAL 395 PENSION TRUST FUND v. NEVAREZ 365 
Cite as 661 F.Supp. 365 (D.Ariz. 1987) 

dered that the Petition for Habeas Corpus nishment action against pension funds or 

welfare plans. : 

Order accordingly. 

1. Exemptions ¢=49 

Judgments obtained by former spouses 

of participants in pension plans for failure 

to make required alimony and child support 

payments failed to meet requirements of 

qualified domestic relations order, so that 

judgments did not fall within exception to 

ERISA’s antialienation and preemption pro- 

visions, and judgment creditors’ spouses 

could not garnish pension trust funds. 

Employee Retirement Income Security Act 

of 1974, §§ 206(d)(1), (d)(3)(A, B), (A)B)(B)(, 
ii), (d)3)C, D), 4044(a), (b)(7), 29 U.S.C.A. 

§§ 1056(d)(1), (d)3)(A, B), (@)@B)B) @, ii), 
(d)B)C, D), 1144(a), (b)(7). 

2. Exemptions ¢=49 

ERISA’s antialienation provision ap- 
plies only to pension plans and does not 

cover welfare plans, including health and 
welfare trust fund and vacation and sav- 

ings trust fund. Employee Retirement In- 

come Security Act of 1974, § 206(d)(1), 29 

U.S.C.A. § 1056(d)(1). 

3. Exemptions ¢=49 

States ¢=18.35 

ERISA does not preempt state gar- 

nishment action against welfare plan, ei- 

ther health and welfare trust fund or vaca- 

tions and savings trust fund. Employee 

Retirement Income Security Act of 1974, 

§§ 3(1), 4044(a), (b)T7), 29 U.S.CA. 

§§ 1002(1), 1144(a), (b)(7). 

4. Labor Relations ¢=45 

States ¢=18.35 

National Labor Relations Act did not 
preempt state garnishment action against 

pension funds or welfare plans, as state 

garnishment action presented no problem 

of contract interpretation. National Labor 
Relations Act, § 1 et seq., as amended, 29 

U.S.C.A. § 151 et seq. 

5. Labor Relations ¢&=45 

States ¢=18.45 

National Labor Relations Act does not 

preempt every dispute tangentially involv-   



    

      
  

  

1446 832 FEDERAL REPORTER, 2d SERIES 

tion of federal law the proviso was inappli- 

cable. 

The court held that the proviso did apply, 

reasoning that such a construction would 

nullify the proviso. “In every case where 

the FSLIC acts as a receiver, it would have 

the duty to liquidate assets in an orderly 
manner, thereby raising a question of fed- 
eral law and taking the case out of the 

exclusionary provision.” Id. at 1328. Be- 

cause § 1729(b)(5) provided no duties inde- 

pendent of the existing duties of a receiver, 
the suit was one that involved only the 

“rights or obligations ... under state law.” 

In the present case, all the alleged viola- 

tions of federal law are subsidiary ques- 
tions to the ultimate question in the case: 
whether the directors, under state law, 

breached their fiduciary duties to Manning 
in declaring the two dividends. The resolu- 

tion of that issue would be the resolution of 

the case. Thus, this is a suit that “involves 

only the rights or obligations of investors, 

creditors, stockholders, and such institution 

under State law.” Accord, Braemoor, 686 

F.2d at 552 (proviso applies to a suit to 

apply constructive trust by reason of presi- 

dent's violation of his fiduciary obligations 
under state law). 

Finally, the FSLIC argues that proviso 
does not apply because in this case the 

FSLIC acts as a federally-appointed, not 
state-appointed, receiver. There is no basis 

in the statute or the legislative history for 

this distinction. The proviso by its terms 

applies broadly to suits “to which the Cor- 
poration is a party in its capacity as conser- 

vator, receiver, or other legal custodi- 

an....” Furthermore, Congress showed 
within the proviso that it could make this 

distinction when it so intended: it speaks of 

“an insured State-chartered institution.” 
(emphasis added). We decline to read the 

proffered distinction into the statute. 

Iv 

For the reasons stated, the order of the 

district court denying defendant's motion 

3. This opinion has been circulated among all 
judges of this court in regular active service 
pursuant to Circuit Rule 40(f). One judge fa- 
vored rehearing en banc and all other judges 

denied effective assistance of counsel in 

to dismiss for lack of subject matter juris- 

diction is reversed and the case is remand- 

ed, with instructions to grant the defend- 

ant’s motion to dismiss for lack of subject 

matter jurisdiction. 

REVERSED and REMANDED. 

O ¢ KEY NUMBER SYSTEM 

Se 

real 
Cornelius LEWIS, Petitioner-Appellee, 

Vv. 

Michael LANE and James Thieret, Illi- 

nois Department of Corrections, 

Respondents-Appellants. 

Cornelius LEWIS, Petitioner-Appellant, 

Vv. 

Michael LANE, Director of the Illinois 

Department of Corrections, and James 

Thieret, Warden of Menard Correction- 

al Center, Respondents-Appellees. 

Nos. 87-1103, 87-1171. 

United States Court of Appeals, 

Seventh Circuit. 

Argued May 28, 1987. 

Decided Nov. 4, 1987. 

Rehearing Denied Dec. 9, 1987. 

Subsequent to conviction of murder, 
armed robbery and aggravated kidnapping 
in connection with bank robbery, imposition 
of death sentence for murder, and affirm- 

ance of conviction and sentence on direct 
appeal, 88 I1l.2d 129, 58 Ill.Dec. 895, 430 
N.E.2d 1346, petitioner brought federal ha- 
beas corpus action. The United States Dis- 
trict Court for the Central District of Illi- 
nois, 656 F.Supp. 181, Harold Albert Baker, 
Chief Judge, held that petitioner was not 

guilt phase, but was denied effective assist- 

did not favor a rehearing en banc on the ques- 
tion of overruling Federal Savings and Loan 
Insurance Corporation v. Krueger, 435 F.2d 633 
(7th Cir.1970).   >: ST 

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ter juris- 

remand- 

e defend- 

f subject 

bpellee, 

et, Illi- 

bns, 

bellant, 

Illinois 

James 

ection- 

PS. 

urder, 

ppping 
bsition 

ffirm- 

direct 

b, 430 

al ha- 

s Dis- 

f Illi- 

baker, 

S not 

bel in 

ssist- 

ques- 
Loan 

d 633 

  

  

LEWIS v. LANE 1447 
Cite as 832 F.2d 1446 (7th Cir. 1987) 

ance during sentencing phase, and issued 
writ vacating death sentence. State ap- 
pealed and petitioner cross-appealed. The 
Court of Appeals, Cummings, Circuit 
Judge, held that: (1) petitioner’s procedural 
default with respect to contesting validity 
of prior felony convictions_was caused by 
State’s concealment of evidence of their 
mvaldity; (2) defense counsels stipulation 
to existence of the convictions, ultimately 
determined to be nonexistent, constituted 
ineffective assistance of counsel, preju- 
dicial to petitioner, and entitled him to new 
sentencing hearing; and (8) alleged errors 
made by counsel in guilt phase were insuf- 
ficient to undermine confidence in the out- 
come of petitioner's trial. 

Affirmed. 
mm —— 

  

  

1. Criminal Law &=641.13(1) 
In order to establish an “ineffective 

assistance” claim, a defendant must show 
that his counsel's performance fell below 
basic standards of competence and that the 
resulting errors so prejudiced his defense 
as to deprive him of a fair trial. U.S.C.A. 
Const.Amend. 6. 

2. Criminal Law €=641.13(1) 
A defendant, and not the State, bears 

the burden of proving both “incompetence” 
and “prejudice” prongs of an ineffective 
assistance of counsel claim. U.S.C. 
Const.Amend. 6. : 

3. Criminal Law ¢=641.13(1) 
‘For purposes of an “ineffective assist- 

ance” claim, there is a strong presumption 
that counsel's performance falls within 
“the wide range of reasonable professional 
assistance,” and to overcome this presump- 
tion, the defendant must demonstrate that 
his counsel's representation fell below an 
objective standard of reasonableness as 
measured by reference to prevailing pro- 
fessional norms. U.S.C.A. Const.Amend. 6. 

4. Criminal Law ¢=641.13(1) 
For purposes of an “ineffective assist- 

ance” claim, the reasonableness of coun- 
sel’s performance should be evaluated not 
with hindsight but from counsel's perspec- 
tive at the time of the alleged error and in 

light of all the circumstances. U.S.C.A. 
Const.Amend. 6. 

5. Criminal Law ¢=641.13(1) 
That counsel’s representation was pro- 

fessionally unreasonable is not enough to 
constitute “ineffective assistance” under 
the Sixth Amendment; a defendant must 
also show that any deficiencies in counsel's 
performance actually prejudiced his or her 
defense, the appropriate test for prejudice 
being whether there is a reasonable proba- 
bility that, but for counsel's unprofessional 
errors, the result of the proceeding would 
have been different, and a ‘reasonable 
probability” being a probability sufficient 
to undermine confidence in the result. 
U.S.C.A. Const.Amend. 6. 

See publication Words and Phrases 
for other judicial constructions and 
definitions. 

6. Criminal Law &=641.13(7) 
The Sixth Amendment's requirement 

of effective assistance of counsel applies to 
a capital sentencing proceeding in the same 
manner in which it applies to the conviction 
phase of a criminal proceeding. U.S.C.A. 
Const.Amend. 6. 

7. Habeas Corpus &=45.3(1.50) 
For purposes of federal habeas corpus 

proceeding, petitioner's procedural default 
with respect to contesting the validity of 
his alleged prior New York convictions and 
their effect on sentencing in capital murder 
prosecution was caused by fact that assist- 
ant State’s attorney and assistant attorney 
general concealed evidence about the con- 
victions from petitioner and from postcon- 
viction judge; notwithstanding State’s con- 
tention that information concerning the 
New York arrests and convictions were 
available in public records accessible to pe- 
titioner and that conduct of state officials 
did not prevent petitioner from discovering 
the truth concerning validity of convictions, 
difficulty which State encountered in at- 
tempting to secure the records belied that 
contention, since State approached defend- 
ant’s trial counsel about stipulating to ex- 
istence of the New York convictions, based 
upon its own inability to obtain copies of 
convictions through ordinary channels. 28 
U.S.C.A. § 2254,   

       



  
    

1448 
8. Habeas Corpus €=45.3(1.50) 

For purpose of proof of “cause and 
prejudice” with respect to petitioner's pro- 
cedural default on his claim of ineffective 

~ assistance of counsel at trial and sentenc- 
ing, petitioner was prejudiced by counsel's 
stipulation to existence of two prior New 
York felony convictions, for purposes of 
sentencing on capital murder conviction, 

without inquiring of State as to whether it 
had certified copies thereof, where alleged 
prior convictions were subsequently found 
to be nonexistent. 28 U.S.C.A. § 2254. 

9. Criminal Law ¢641.13(7) 
Trial counsel's agreement to stipulate 

to existence of four prior felony convictions 
without asking State’s attorney whether he 
had actual proof of those convictions in the 

form of certified copies of two alleged New 
York convictions, during crucial phase of 
sentencing hearing in capital murder prose- 

cution, deprived defendant of the effective 

assistance of counsel in sentencing phase 

and actually prejudiced his defense, enti- 
tling him to a new sentencing hearing, 

where, following the stipulation, defendant 

was sentenced to death, and it was ulti 

mately ascertained that the New York felo- 

ny convictions did not exist. 28 U.S.C.A. 
§ 2254; U.S.C.A. Const.Amend. 6. 

10. Attorney & Client ¢=42 

Conduct of two attorneys representing 

State in concealing petitioner's true New 
. York criminal record at post-conviction 

hearing and conduct of one in deliberately 
falsely stating to State Supreme Court that 
petitioner had four prior New York felony 
convictions merits reference to relevant Illi- 

nois disciplinary authorities. 

11. Criminal Law €¢=641.13(2) 

Alleged errors made by defense coun- 
sel in trial phase of murder prosecution 
were insufficient to undermine confidence 

in the outcome of petitioner's trial and 

therefore did not constitute ineffective as- 
sistance of counsel in guilt phase; there 
was no reasonable probability that, but for 

the alleged errors, verdict would have been 

any different, since, in light of the evi- 

dence, it was virtually impossible to say 
that anything counsel could or should have 
done would have left jury with reasonable 

832 FEDERAL REPORTER, 2d SERIES 

doubt as to petitioner's participation in 
some aspect of bank robbery and his result- 
ant conviction of murder in the course 

law. U.S.C. thereof, under Illinois 

Const.Amend. 6. 

12. Criminal Law ¢641.13(4) 

There was nothing in the record to 
indicate that defense counsel, by reason of 

his background or age, was not generally 

competent to handle defendant's case, 
where counsel had handled over 100 crimi- 

nal cases, one-half of which were felonies, 
although, at age 63, he had not done any 
criminal defense work in the four years 
prior to defendant's trial. U.S.C.A. Const. 
Amend. 6. : 

13. Criminal Law ¢=641.13(5) 
Defense counsel's advice to petitioner 

to plead guilty and avoid the death penalty 
did not establish that counsel believed de- 
fendant to be guilty or that counsel was 
constitutionally ineffective in guilt phase of 
murder prosecution, as alleged in petition- 

er’'s federal habeas corpus claim, since 
there was nothing to indicate that counsel 

publicly expressed any opinion that peti- 
tioner was guilty, and since, in light of 
substantial physical evidence against peti- 
tioner, counsel would have been derelict 

not to discuss the possibility of a guilty 
plea for a fixed term of imprisonment. 
U.S.C.A. Const.Amend. 6. 

14. Criminal Law ¢=641.13(6) : 
Defense counsel's failure to present 

potential alibi witnesses and offer alibi de- 

fense in state murder prosecution did not 
establish that counsel was constitutionally 

ineffective in guilt phase of the prosecu- 
tion, as claimed on federal habeas corpus 

petition, where decision not to put potential 

alibi witnesses on the stand was strictly 

one of trial strategy, based on counsel's 
opinion as to their lack of credibility and 

likelihood that their testimony actually 

would have damaged petitioner's defense 
case. U.S.C.A. Const.Amend. 6. 

15. Criminal Law ¢=641.13(2) 

Defense counsel’s decision not to insist 

on a mistrial after State’s witness testified 

to seeing petitioner in presence of his pro- 

bation officer was not professionally unrea- 
sonable, and did not establish counsel's con-  



ion in 

result- 

course 

S.C.A. 

brd to 

son of 

erally 
case, 

erimi- 

lonies, 

e any 

years 

onst. 

tioner 

bnalty 
pd de- 

| was 

hse of 

ition- 

since 

nsel 

peti- 

t of 

peti- 

elict 

ilty 

ent. 

LEWIS v. LANE 1449 
Cite as 832 F.2d 1446 (7th Cir. 1987) 

stitutional ineffectiveness in guilt phase of 

state murder prosecution, as claimed on 
federal habeas corpus petition, where trial 
court indicated that if mistrial were grant- 
ed, it would set petitioner's case for trial 
anew with an alleged accomplice with 
whom petitioner did not wish to be tried, 

and since, in any event, there was no rea- 

sonable possibility that, but for the refer- 

ence to the probation officer, petitioner 

would not have been convicted. U.S.C.A. 
Const. Amend. 6. 

16. Criminal Law ¢=641.13(6) 
Defense counsel's alleged failure to 

make more forceful use of FBI lab report 

concerning hair sample analysis and paraf- 

fin test did not constitute constitutionally 
ineffective assistance of counsel in guilt 

phase of state murder prosecution, for pur- 

poses of petitioner's federal habeas claim, 

since there was no reasonable probability 

that, but for the alleged error, the jury 

would have been left with a reasonable 

doubt concerning petitioner's guilt, in view 

of strength of physical evidence tying him 

to bank robbery and fact that under state 

accountability statute, petitioner would 
have been found guilty of murder even if 

he were not trigger person who shot victim 

in course of robbery. U.S,C.A. Const. 
Amend. 6. 

J. Steven Beckett, Reno O'Byrne & Kep- 
ley, Champaign, Ill, for petitioner-appellee. 

Jack Donatelli, Asst. Atty: Gen., Chicago, 

Il, for respondents-appellants. : 

Before CUMMINGS, CUDAHY, and 
COFFEY, Circuit Judges. 

CUMMINGS, Circuit Judge. 

Petitioner, Cornelius Lewis, his sister, 

Bernice Lewis, and Willie Sangster were 

indicted in Macon County, Illinois, on Feb- 

ruary 21, 1979, and charged with the of- 
fenses of murder, armed robbery, and ag- 

_ gravated kidnapping in connection with the 

robbery of the Citizens National Bank in 

Decatur, Illinois, on December 14, 1978, 

during which a bank security guard was 
shot and killed. Sangster’s case was con- 
tinued and petitioner and his sister Bernice 
were tried together. A jury found both 

guilty of all three charges. Petitioner was 

subsequently sentenced to death for mur- 
der. Bernice was sentenced to concurrent 

prison terms of forty years for murder, 

thirty years for armed robbery, and thirty 

years for aggravated kidnapping. 

The Illinois Supreme Court on direct ap- 
peal affirmed petitioner's conviction and 

death sentence. People v. Lewis, 88 I11.2d 
129, 58 Ill.Dec. 895, 430 N.E.2d 1346 (1981). 
The Supreme Court of the United States 
subsequently denied certiorari. Lewis wv. 

Illinots, 456 U.S. 1011, 102 S.Ct. 2307, 73 
L.Ed.2d 1308. Petitioner then sought post- 
conviction relief in the Illinois courts. See 
IlL.Rev.Stat. ch. 38, 1122-1 et seq. An 

Illinois circuit court denied post-conviction 

relief, and the Illinois Supreme Court again 
on direct appeal affirmed the lower court’s 

order. People v. Lewis, 105 I11.2d 226, 85 
Ill.Dec. 302, 473 N.E.2d 901 (1984). Certio- 
rari was again denied. Lewis v. Illinois, 
474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153. 

On November 13, 1985, the Illinois Su- 
preme Court granted petitioner a stay of 
execution pending his filing a petition for a 
writ of habeas corpus. The stay was sub- 
sequently extended to cover the outcome of 
the federal habeas corpus proceedings 
which were commenced pursuant to 28 U.S. 
C. § 2254 on March 31, 1986. The habeas 
petition challenged both the conviction and 
the death sentence. Petitioner claimed 
that his conviction had been obtained in 
‘violation of his right under the Sixth 
Amendment to effective assistance of coun- 
sel. He further claimed that his Sixth 
Amendment right to effective assistance of 
counsel had also been denied during the 
sentencing phase of his case. Finally, he 
claimed that the Illinois Death Penalty Act, 
Ill.Rev.Stat. ch. 88, 19-1, was unconstitu- 
tional under the Eighth and Fourteenth 
Amendments. : 

‘The district court held that petitioner had 
failed to demonstrate ineffective assistance 
of counsel under Strickland v. Washing- 
ton, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 
2d 674, during the guilt phase of his trial. 
See United States ex rel. Lewis v. Lane, 
656 F.Supp. 181 (C.D.IIL.1987). However, 
the court held that he had been denied his 
Sixth Amendment right to effective assist-   

  

   



  

    

1450 

ance of counsel during the sentencing 

phase of his prosecution and accordingly 

issued a writ of habeas corpus vacating the 
death sentence and ordering resentencing. 

In light of its holding with regard to peti- 

tioner’s sentencing, it did not reach the 

constitutionality of the Illinois Death Penal- 

ty Act. Respondent appeals the court's 
grant of the writ of habeas corpus ordering 

resentencing. Petitioner cross-appeals the 

district court's denial of relief as to his 

conviction. We affirm. 

I 

28 U.S.C. § 2254(d) provides that the fac- 

tual findings of a state court are presumed 

to be correct in a federal habeas corpus 

proceeding. See Sumner v. Mata, 449 U.S. 

539, 101 S.Ct. 764, 66 L.Ed.2d 722. Like 
the district court, we adopt the Illinois Su- 
preme Court’s following statement of facts 

in People v. Leuns, 88 Ill.2d 129, 136-41, 

58 Ill.Dec. 895, 898-90, 430 N.E.2d 1346, 
1349-51 (1981): 

“The testimony of the principal witnesses 

was as follows. Jodi Myers testified that, 

at 6:45 a.m. on the morning of the crime, 

she noticed two or possibly three persons in 

a maroon Monte Carlo automobile in the 

parking lot of the day-care ceriter where 

she worked. As she walked near the 

Monte Carlo, a black man seated in the 

driver's seat (whom she later identified 

from a line-up as Maurice Farris) lowered 
his sun visor. 

“Mary Comerford testified that, after de- 
livering her child to the same day-care cen- 

ter, she returned to her car, noticing two 

black persons in a maroon Monte Carlo 
parked next to her white Mercury automo- 

bile. When she entered her car, a black 

man wearing a ski mask appeared in her 

back seat and forced her to drive away, 

eventually taping her eyes and hands and 

placing her in the trunk of the Mercury. 

“Kaye Pinkley, a teller at the Citizens 
National Bank, testified that decedent Bi- 
vens normally drove a van with five tellers 

from the bank’s parking garage to an auto- 

banking facility. Shortly before 8 a.m. on 

December 14, as decedent was about to 

start the van in which the tellers were 

seated, a tall black man pulled the right 

832 FEDERAL REPORTER, 2d SERIES 

front door open, leaned his elbows on the 

witness’s legs, ordered the tellers to re- 

main silent, and shot decedent, as the latter 

apparently reached for his gun. Then the 

gunman and another robber took three of 

+ the tellers’ five briefcases containing mon- 

ey for the day and banking paraphernalia, 

ran to a light-colored Mercury and drove 

away. Teller Pinkley and two other tellers 
later identified items recovered from the 

Macon County landfill as items which had 
been in their briefcases that morning. 

“Mr. and Mrs. Joseph Dennis from rural 
Macon County stated that, while sitting in 
their car near the Citizens National Bank, 

they saw two blacks park Mrs. Comerford’s 

Mercury, enter the bank’s parking garage, 

later return to the Mercury, with three 
black briefcases, and drive off. Gail 

Thompson, a florist, saw a black man or 

person dressed as a man, carrying a black 

briefcase in the vicinity of the parking lot 

near the bus station, where Norman Go- 

enne, an office worker, saw the driver in a 

maroon Monte Carlo, waiting with the en- 

gine running at around 7:45 a.m. 

“Maurice Farris testified that he and Wil- 

lie Sangster (who according to the prosecu- 

tion’s theory was the mastermind of the 
robbery) surveyed the Citizens National 
Bank and the route to the home of Marga- 

ret Morgan, where defendant apparently 
was staying. On two mornings, Farris ob- 

served the tellers’ routine. Sangster intro- 
duced defendant and his sister (using the 

names ‘Denise’ and ‘Mingo’) to Farris, who 

at trial estimated the sister's height as 5 
feet 11 inches, defendant’s as over 6 feet 

and his own as 5 feet 8 inches. The Lewis- 
es and he discussed plans for the robbery 
of the bank. Farris was to drive the car, 

the Lewises were to do the actual robbing, 

and Sangster was to get $10,000 ‘off the 

top’ the day after the robbery, apparently 

for his role in planning. On the morning of 
December 13, when they had intended to 
carry out the plan, the Lewises and Farris 
were unable to steal a car for use in the 
robbery, but they did observe the tellers’ 
routine and drove along the route to Mrs. 

Morgan's. The next morning defendant 
and his sister, with Farris driving, went to 

the daycare center in the Monte Carlo look-  



LEWIS v. LANE 1451 
Cite as 832 F.2d 1446 (7th Cir. 1987) 

ing for a car to steal. Maurice lowered his 

sun visor to avoid being identified. De- 

fendant left the car and concealed himself 

in the back seat of Mrs. Comerford’s Mer- 
cury. When she entered the car he forced 
her to drive away and eventually took con- 
trol of her car, forcing her to get into the 

trunk. Defendant’s sister then left Fanis 
in the Monte Carlo, which had accompanied 

the Mercury, and sat on the passenger side 

of the front seat of the Mercury. Farris 

drove to a parking lot near the bus station, 

got some coffee at about 7:40, and waited 

with the motor running until defendant and 
his sister rejoined him, carrying one and 

two briefcases respectively. The Lewises 

concealed themselves on the floor of the 

maroon Monte Carlo. On the drive to Mrs. 
Morgan’s, a siren prompted comments by 

the sister, and defendant stated, ‘The 

guard went for his gun. I had to burn 
him.” Except for the possibility of a perju- 

ry prosecution, Farris received total immu- 

nity in return for his testimony. 

“Mrs. Morgan testified that the Lewises 

had stayed with her beginning on Decem- 

ber 12, 1978. On the morning of December 
14, at about 8:05 or 8:10 a.m., she observed 

the defendants with three black briefcases. 

She asked Bernice Lewis whether Bernice 
knew that the bank had been robbed, to 

which Bernice, with defendant present, re- 

plied, ‘Did he die?” Later that morning 
Mrs. Morgan saw both Lewises counting a 

large quantity of moriey on her coffee ta- 
ble, with black briefcases and ‘blank money 

.orders from the bank and money wrappers’ 

present. Defendant gave Mrs. Morgan a 

paper sack to take to Willie Sangster at 

Jelk’s Barbershop, where he worked. La- 

ter that day, Bernice Lewis and Mrs. Mor- 
gan went to a deteriorated section of Deca- 
tur to dispose of the black briefcases and a 
garbage bag containing two handguns, 
money wrappers, and other miscellaneous 

items. Subsequently Mrs. Morgan and two 

neighbors moved these things from the 

garbage cans, where Bernice Lewis and 

she had put them, to a ‘dumpster.’ Mrs. 
Morgan, Shirley Brummet (a neighbor), and 

the Lewises drove to the Davenport, Iowa, 

bus station, where defendant and his sister 

caught the bus to Des Moines. Mrs. Mor- 
gan eventually turned over to the FBI 

some money which she said included that 
given her by defendant. Mrs. Morgan tes- 

tified that she discovered a .357-Magnum 
handgun, which a ballistics expert indicated 

could have fired the bullet which killed 
decedent, under a mattress in the room in 
which the Lewises had been staying. She 
stated she observed the gun during a Janu- 

ary 25 FBI consent search of the room 

when the agents lifted the foot of the mat- 

tress on the bed. According to her testimo- 

ny the gun was located near the head of 

the bed and was not seen by the agents. 
She did not then mention the gun to them 
but later that day took it to a friend’s home 

from which the agents later recovered it at 

her direction. The agents both testified 
that only the lower corners of the mattress 

were lifted and they did not observe the 
gun. On January 31 Mrs. Morgan did give 
to FBI agents five live rounds of .357—cali- 

ber ammunition which she had earlier re- 

moved from the gun. 

“Barbara Rigney (one of Mrs. Morgan's 

children) and Florida Eubanks and Shirley 

Brummet (two neighbors) testified that 
Bernice and Cornelius Lewis had been stay- 

ing at Mrs. Morgan's in mid-December, 

1978. Wyonia Adams, another neighbor, 

testified that she and Shirley Brummet had 
moved garbage bags containing guns and 
miscellaneous items from a trash can to a 

‘dumpster.’ Shirley Brummet testified 
that, on December 14, she had traveled 

with the Lewises and Mrs. Morgan, to the 

Davenport, Iowa, bus station. Officer 

McQuaid, of the Decatur police, testified 

that he observed a black lady carrying a 
sack into Jelk’s Barbershop on the morning 
of December 14, 1978. 

“Defendant’s brother-in-law, Dwight 
David, testified that in late December 1978 

defendant had asked him to keep a box 
which contained money. After he heard 
that defendant had been arrested, David 

took the money from the box, put it in a 

bag, and asked a friend, Mrs. Bradford, to 

hold it for him. He later retrieved it, and 

gave it, still in the bag, to the FBI, togeth- 

er with the box from which he had taken it. 

FBI Agent Ryan testified that new $20 
bills with serial numbers G21536201A 

through G21536247TA were included in the   

       



  

1452 

money turned over by David. Daniel Kin- 

sella, an official of the Federal Reserve 

Bank, testified that numbers written on the 

back of a form (Exhibit 80) indicated that 

$20 notes with serial numbers G21536001A 

through G21540000A were in a shipment of 

currency which had been sent to the Citi- 

zens National Bank in Decatur. 

“Lee Jarombeck, an employee of a 

Minnesota car dealer, testified that defend- 

ant had rented from him the maroon Monte 

Carlo which had been observed in the day- 

care lot and eventually recovered from Far- 
ris’ garage. 

“Defendant offered no testimony, adopt- 
ing Bernice Lewis’ case, which primarily 

emphasized Mrs. Comerford’s lineup identi- 

fication of Farris as her kidnapper, and 
teller King’s positive statements to Deca- 

tur police officers that the robbers were 
both male.” 

II. 

The focus of both the principal appeal 

and “appeal 1S whether petitioner 
was denied effective assistance of counseh 

in~Violation of his rights under the Sixth 
and Fourteenth Amendments. On the prin- 

cipal appeal the State challenges the dis- 
trict court’s determination that, the per- 
formance of petitioner's attorney during 
the sentencing phase was constitutionally 
deficient. On the cross-appeal petitioner 

  

  

challenges the court's determination that 
he did not receive ineffective representa- 
tion within the meaning of Strickland v. 
Washington, 466 U.S. 668, 104 S.Ct. 2052, 

80 L.Ed.2d 674, during the guilt phase of 
the proceedings. 

“The essence of an ineffective assistance 
claim is that counsel’s unprofessional er- 
rors 80 upset the adversarial balance be- 
tween defense and prosecution that the tri- 
al was rendered unfair and the verdict ren- 
dered suspect.” Kimmelman v. Morrison, 
477 U.S. 365, 106 S.Ct. 2574, 2583, 91 
L.Ed.2d 305; see Strickland v. Washing- 
ton, 466 U.S. at 686, 104 S.Ct. at 2063; 
United States v. Cronic, 466 U.S. 648, 
655-57, 104 S.Ct. 2039, 2044-46, 80 L.Ed. 
2d 657. In discussing the content of the 
Sixth Amendment right to effective as- 

832 FEDERAL REPORTER, 2d SERIES 

sistance of counsel, the Supreme Court 
has emphasized the importance of the ad- 
versarial process and the critical role of 
counsel in ensuring its proper functioning. 
Strickland, 466 U.S. at 686, 104 S.Ct. at 
2063. In United States v. Cronic, 466 U.S. 
at 656-57, 104 S.Ct. at 2045-46, the Court 
declared: ; 

The right to effective assistance of coun- 
sel is thus the right of the accused to 
require the prosecution’s case to survive 
the crucible of meaningful adversarial 
testing. When a true adversarial erimi- 
nal trial has been conducted—even if de- 
fense counsel may have made demonstra- 
ble errors—the kind of testing envisioned 
by the Sixth Amendment has occurred. 
But if the process loses its character as a 
confrontation between adversaries, the 
constitutional guarantee is violated. 

[1-4] In order to establish an ineffec- 
tive assistance claim, a defendant must 
show that his counsel's performance fell 
below basic standards of competence and 
that the resulting errors so prejudiced his 
defense as to deprive him of a fair trial. 
Strickland, 466 U.S. at 687, 104 S.Ct. at 
2064. The defendant, not the State, bears 
the burden of proving both incompetence 
and prejudice. Id. There is a strong pre- 
sumption that counsel’s performance falls 
within “the wide range of reasonable pro- 
fessional assistance.” Id. at 689, 104 S.Ct. 
at 2065. To overcome this presumption, 
the defendant must demonstrate that his 
counsel’s representation fell below an ob- 
jective standard of reasonableness as mea- 
sured by reference to prevailing profession- 
al norms. Id. at 688, 104 S.Ct. at 2064. 
The reasonableness of counsel’s perform- 
ance should be evaluated not with hind- 
sight but from counsel's perspective at the 
time of the alleged error and in light of all 
the circumstances. Id. at 689, 104 S.Ct. at 
2065. 

[5] That counsel's representation was 

professionally unreasonable, however, is 
not enough to constitute ineffective assist- 
ance under the Sixth Amendment. The 
defendant must also show that any defi- 
ciencies in counsel's performance actually 
prejudiced his or her defense. The appro-  



me Court 

of the ad- 

al role of 

nctioning. 
4 S.Ct. at 

, 466 U.S. 

the Court 

e of coun- 

ccused to 

to survive 

dversarial 

rial crimi- 

ven if de- 

emonstra- 

pnvisioned 

occurred. 
acter as a 

hries, the 

lated. 

ineffec- 

ant must 

ance fell 

ence and 

diced his 

fair trial. 

S.Ct. at 

ite, bears 

mpetence 

rong pre- 

hnce falls 

hable pro- 

104 S.Ct. 

fumption, 

that his 

Ww an ob- 

5 as mea- 

ofession- 

at 2064. 

perform- 

ith hind- 

ve at the 

ht of all 

H S.Ct. at 

tion was 

ever, is 

e assist- 

nt. The 
any defi- 
actually 

e appro- 

LEWIS v. LANE 1453 
Cite as 832 F.2d 1446 (7th Cir. 1987) 

priate test for prejudice is whether there is 

a reasonable probability that, but for coun- 

sel’s unprofessional errors, the result of 

the proceeding would have been different. 

Id. at 694, 104 S.Ct. at 2068. A reasonable 

probability is a probability sufficient to un- 

dermine confidence in the result. Id. As 

the Supreme Court indicated in Strickland, 

the prejudice inquiry is substantively the 

same regardless of whether the defendant 

is challenging his conviction or his sen- 

tence: 

When a defendant challenges a convie- 

tion, the question is whether there is a 

reasonable probability that, absent the 
errors, the factfinder would have had a 

reasonable doubt respecting guilt. 

When a defendant challenges a death 

sentence ..., the question is whether 

there is a reasonable probability that, 
absent the errors, the sentencer—includ- 

ing an appellate court, to the extent it 

independently reweighs the evidence— 

would have concluded that the balance of 

aggravating and mitigating circumstanc- 

es did not warrant death. 

Id. at 695, 104 S.Ct. at 2068. In determin- 

ing the existence of prejudice, the court 

must consider “the totality of the evidence 

before the judge or jury.” Id. 

In Kimmelman v. Morrison, 477 U.S. 

365, 106 S.Ct. 2574, 2587, 91 L.Ed.2d 305, 
the Supreme Court described the Strick- 

land standard for ineffective representa- 
‘tion as “highly demanding,” and stressed 

that “[o]nly those habeas petitioners who 

can prove under Strickland that they have 
been denied a fair trial by the gross incom- 
petence of their attorneys will be granted 

the writ.” Fully recognizing the rigorous 
nature of the Strickland test, we also keep 

in mind the wise counsel of Judge Wyzan- 

1. P.A. 84-1450, effective July 1, 1987, created 
the offenses of first-degree murder and second- 
degree murder. Accordingly,  9-1(b) infra has 
been amended to. provide that to be eligible for 
the death penalty, a defendant must have been 
found guilty of first-degree murder. However, 
the definition of first-degree murder, Ill.Rev. 
Stat. ch. 38, 9-1(a) (Supp.1987), is substantive- 

ly identical to the definition of murder that was 
in effect in 1979, IlL.Rev.Stat. ch. 38, 9-1(a) 
(1981). For a definition of second-degree mur- 
der, see Ill.Rev.Stat. ch. 38, 9-2 (Supp.1987). 

ski: “While a criminal trial is not a game in 
which the participants are expected to en- 

ter the ring with a near match in skills, 

neither is it a sacrifice of unarmed prison- 

ers to gladiators.” United States ex rel. 

Williams v. Twomey, 510 F.2d 634, 640 

(7th Cir.1975), certiorari denied, 423 U.S. 

8176, 96 S.Ct. 148, 46 L.Ed.2d 109 (quoted in 
Cronic, 466 U.S. at 657, 104 S.Ct. at 2046). 

IIL. 

[6] The Sixth Amendment’s require- 
ment of effective assistance of counsel ap- 

plies to a capital sentencing proceeding in 

the same manner in which it applies to the 
conviction phase of a criminal proceeding. 

As the Supreme Court explained in Strick- 
land, 466 U.S. at 686-87, 104 S.Ct. at 
2063-64: 

A capital sentencing proceeding ... is 

sufficiently like a trial in its adversarial 

format and in the existence of standards 

for decision ... that counsels role in the 

proceeding is comparable to counsel's 

role at trial—to ensure that the adver- 
sarial testing process works to produce a 

just result under the standards govern- 
ing decision. 

Under Illinois law, a capital sentencing 
proceeding has two phases. Ill.Rev.Stat. 
ch. 38, 19-1. The first phase deals with 
whether the defendant may be sentenced to 

death at all. A defendant who has been 
found guilty of murder! and who at the 
time of the commission of the offense has 
attained the age of eighteen may receive 

the death penalty if the State establishes 
beyond a reasonable doubt the existence of 
one of the aggravating factors set out in 

9-1(b). In petitioner's case, the jury 
found in accordance with 1 9-1(b)(6) 2? that 

2. At the time petitioner was sentenced in 1979, 

19-1(b)(6) provided that a defendant could be 
sentenced to death if: 

6. the murdered individual was killed in the 
course of another felony if: 

(a) the murdered individual was actually 
killed by the defendant and not by another 
party to the crime or simply as a consequence 
of the crime; and 

(b) the defendant killed the murdered indi- 

vidual intentionally or with the knowledge 
that the acts which caused the death created a 
strong probability of death or great bodily   

       



  

1454 

petitioner, and not another party to the 

crime, had actually killed Donald Bivens 

intentionally during the course of an armed 
robbery. 

The second phase of the capital sentenc- 

ing proceeding concerns whether a death 
sentence should actually be imposed. Once 

there has been a finding that one or more 

of the factors set out in 1 9-1(b) exists, the 

jury, or the court if sitting as sentencer, 

then proceeds to consider additional aggra- 

vating and mitigating factors, such as but 

not limited to those set out in 1 9-1(c),® and 

determines whether the defendant should 

be sentenced to death. Paragraph 9-1(g) 

provides that “if the jury determines unani- 

mously that there are no mitigating factors 

sufficient to preclude the imposition of the 

death sentence, the court shall sentence the 

defendant to death.” See also 19-1(h) 

(same standard when court acts as sentenc- 

er). That same paragraph further empha- 

sizes that “unless the jury unanimously 

harm to the murdered individual or another; 
and 

(c) the other felony was one of the follow- 
ing: armed robbery, robbery, rape, deviate 
sexual assault, aggravated kidnapping, forc- 
ible detention, arson, burglary, or the taking 
of indecent liberties with a child. 

Ill.LRev.Stat. ch. 38, {9-1(b)(6) £1981). Para- 
graph 9-1(b)(6) has since been amended and 

presently provides that a defendant may be sen- 
tenced to death if: 

6. the murdered individual was killed in 
the course of another felony if: 

(a) the murdered individual: 

(i) was actually killed by the defendant, or 
(ii) received physical injuries personally in- 

flicted by the defendant substantially contem- 
poraneously with physical injuries caused by 
one or more persons for whose conduct the 
defendant is legally accountable under Sec- 
tion 5-2 of this Code, and the physical injuries 
inflicted by either the defendant or the other 
person or persons for whose conduct he is 
legally accountable caused the death of the 
murdered individual; and 

(b) in performing the acts which caused the 
death of the murdered individual or which 
resulted in physical injuries personally inflict- 
ed by the defendant on the murdered individ- 
ual under the circumstances of subdivision 
(ii) of subparagraph (a) of paragraph (6) of 
subsection (b) of this Section, the defendant 
acted with the intent to kill the murdered 
individual or with the knowledge that his acts 
created a strong probability of death or great 
bodily harm to the murdered individual or 
another; and 

832 FEDERAL REPORTER, 2d SERIES 

finds that there are no mitigating factors 
sufficient to preclude the imposition of the 
death sentence, the court shall sentence the 
defendant to a term of imprisonment.” 

9-1(g). Again in petitioner's case, the 

jury unanimously found that there were no 
mitigating factors sufficient to preclude im- 

position of the death sentence, and the 
court consequently sentenced petitioner to 
death. 

Petitioner's claims of ineffective assist- 

ance of counsel during the sentencing pro- 

ceeding are all directed toward his attor- 
ney’s performance during the second phase 

of that proceeding, the hearing on addition- 

al aggravating and mitigating factors. Pe- 

titioner’s principal claim of attorney inef- 

fectiveness during the sentencing hearing 

concerns the admission into evidence of the 

erroneous fact that petitioner had four pri- 

or felony convictions. The record reveals 

that at some time prior to the final phase 

of the sentencing proceeding, the Macon 

(c) the other felony was one of the follow- 
ing: armed robbery, robbery, aggravated 
criminal sexual assault, aggravated kidnap- 
ping, forcible detention, arson, aggravated ar- 
son, burglary, home invasion, or the attempt 
to commit any of the felonies listed in this 
subsection (c). 

IlLRev.Stat. ch. 38, 19-1(b)(6) (Supp.1987). 

3. Paragraph 9-1(c) provides, as it did in 1979: 

(c) Consideration of factors in Aggravation 
and Mitigation. The court shall consider, or 
shall instruct the jury to consider any aggra- 
vating and any mitigating factors which are 
relevant to the imposition of the death penal- 
ty. Aggravating factors may include but need 
not be limited to those factors set forth in 
subsection (b). Mitigating factors may in- 
clude but need not be limited to the following: 

1. the defendant has no significant history 
of prior criminal activity; : 

2. the murder was committed while the 
defendant was under the influence of extreme 
mental or emotional disturbance, although 
not such as to constitute a defense to prosecu- 
tion; 

3. the murdered individual was a partici- 
pant in the defendant's homicidal conduct or 
consented to the homicidal act; 

4. the defendant acted under the compul- 
sion of threat or menace of the imminent 
infliction of death or great bodily harm; 

5. the defendant was not personally 
present during commission of the act or acts 
causing death. 

IlLRev.Stat. ch. 38, 9-1(c) (Supp.1987).  



ing factors 
ition of the 
entence the 

isonment,.” 

b case, the 

bre were no 

reclude im- 

E, and the 

petitioner to 

ive assist- 

bneing pro- 

his attor- 

ond phase 

n addition- 

ctors. Pe- 

prney inef- 

ig hearing 

nce of the 

d four pri- 

rd reveals 

nal phase 

jhe Macon 

the follow- 
aggravated 
ed kidnap- 
pravated ar- 
he attempt 
ted in this 

p.1987). 

id in 1979: 

\ggravation 
onsider, or 

any aggra- 
which are 
eath penal- 
e but need 
et forth in 
s may in- 

following: 
ant history 

while the 
of extreme 

although 
0 prosecu- 

a partici- 
onduct or 

e compul- 
imminent 

harm; 
personally 

ict or acts 

37). 

LEWIS v. LANE 1455 
Cite as 832 F.2d 1446 (7th Cir. 1987) 

County State’s Attorney, Patrick Walsh, 
approached petitioner's appointed attorney, 
Kenneth Kinser, and asked him if he would 
stipulate to the existence of four prior felo- 
ny convictions on the basis of information 
contained in an “FBI rap sheet.” Those 
convictions allegedly included: (1) a 1965 
New York conviction for attempted feloni- 
ous assault with a knife, (2) a 1966 New 
York conviction for felonious assault with a 
tire iron, (3) a 1966 California conviction for 
second degree robbery, and (4) a 1969 
Minnesota conviction for bank robbery, for 
which he was on parole at the time of the 
Bivens murder. Mr. Walsh had secured 
certified copies of the California and Minne- 

~ sota convictions, but he had not been able 
to obtain certified copies of the two alleged 
New York convictions. 

Mr. Kinser showed the “rap sheet” to 
petitioner and asked him if it were aceu- 
rate. Petitioner told Mr. Kinser that he 
thought the information was correct, Mr. 
Kinser apparently did not explain to peti- 
tioner the difference between an arrest and 
a conviction for purposes of the sentencing 
hearing, or the difference between a felony 
and a misdemeanor. On the basis of peti- 
tioner’s response, Mr. Kinser agreed to 
stipulate to the existence-ef the four prior 
felony convictions despite the fact that the 
State did not have certified records of the 
New York convictions and could not have 

_ proved their existence had they been re- 
quested or required to do so. Mr. Kinser 
later explained that he thought it would be 
less damaging to petitioner to stipulate to 
the convictions rather than have the jury 
see the official copies embossed with gold 
seals. He also stated, however, that he 
never inquired whether Mr. Walsh actually 
had such copies in his possession. 

During the second phase of the sentene- 
ing hearing, the court allowed Mr. Walsh to 
inform the jury of the four prior convic- 
tions and the sentences imposed in regard 

~. to each (three months for both the New 
York convictions, one year to life for the 
California conviction, and twenty years for 
the Minnesota conviction). Mr. Walsh then 
argued to the jury: 

Here's a man who began a career of 
criminal activity in 1965 and 1966, with 

attempted assault with a knife, felonious 
assault with a tire iron, thirteen years 
ago. He then graduated, feeling that 
New York was no longer safe for his 
criminal pursuits, moved on to California. 
And in California committed second de- 
gree robbery, and received a sentence of 
one year to life, in the court in California 
in July, 1966. And after he was released 
from the penitentiary in California, he 
moved to Minnesota, figuring the east 
and west coasts were no longer safe for 
his activity, he'd try the midwest. And 
he moved to Minneapolis, worked on his 
talents there, and graduated to bank rob- 
bery, committed an armed robbery of a 
bank in Minneapolis, Minnesota in 1969. 
And received twenty years in prison. 

» LJ “" * » i 

And now Mr. Lewis comes from Minne- 
apolis to Decatur, Illinois, not only com- 
mits the offense of bank robbery, but 
aggravated kidnapping and murder. . . . 
And TI think that the evidence in this 
case, prior criminal convictions of this 
defendant simply show that he is a total- 
ly anti-social human being. And I think 
that your decision as to what ought to be 
done with him now ought to be made in 
that light. 

(Trial Tr. B-288 to B-289). 
When petitioner initiated post-conviction 

proceedings in the Illinois courts, the 
State’s Attorney’s Office again made ef- 
forts to obtain certified copies of the New 
York convictions. Usual efforts to obtain 
the records again proved unsuccessful, but 
by exploiting a connection with a New 
York City police detective, Assistant 
State’s Attorney Jeff Justice and Assistant 
Attorney General Neal Goodfriend, both of 
whom were representing the State in the 
post-conviction proceedings, managed at 
some time during the post-conviction evi- 
dentiary hearing in 1983 to obtain certified 
records showing the disposition of the New 
York charges. These records indicated 
that the 1966 felonious assault charge had 
been dismissed and that with regard to the 
1965 charge of attempted felonious assault, 
petitioner had pled guilty to a misdemeanor   

      

 



  

1456 832 FEDERAL REPORTER, 2d SERIES 

assault charge and received a three-month 

sentence. Despite the fact that these 

records conclusively established that the 

information which had been presented to 

the jury concerning petitioner’s prior crimi- 

nal record was inaccurate and false, 

Messrs. Justice and Goodfriend determined 
that they were under no obligation to dis- 

close the New York records and according- 

ly withheld them from Steven Beckett, peti- 
tioner’s counsel at that time, and from 

Judge Harold Jensen, who was presiding at 

the post-conviction hearing. Moreover, in 

the State’s brief submitted to and during 

oral argument before the Illinois Supreme 

Court on appeal of the denial of post-con- 

~ viction relief, Mr. Goodfriend represented 
that petitioner had four prior felony convic- 

tions, sometimes referring to the stipula- 

tion and sometimes not, even though he 

knew that that representation was false. 

After the Illinois Supreme Court had af- 

firmed the circuit court's denial of post-con- 

viction relief and while certiorari was pend- 
ing for the second time before the Supreme 

Court of the United States, petitioner’s 

counsel was finally able, with the assist- 

ance of the NAACP Legal Defense Fund in 

New York, to obtain certified records indi- 

cating the disposition of petitioner's two 

New York arrests, information which the 

State had possessed for approximately two 

years. For the first time, petitioner's coun- 

sel learned that petitioner’s prior criminal 

record introduced at the sentencing hearing 

was inaccurate and that the two alleged 
New York felony convictions were non- 

existent. On February 11, 1986, his coun- 

sel filed a “Motion for a Supervisory Order 
and for Post-Conviction Relief” with the 
Illinois Supreme Court in which he in- 
formed the court of the contents of the 
New York records. The Illinois Supreme 
Court summarily denied petitioner’s motion 
in March, although two justices dissented, 
finding that petitioner was entitled to a 
new sentencing hearing in light of the 
clearly inaccurate information which had 

been presented to the sentencing jury. 

4. At the time he filed his motion with the Illi- 
nois Supreme Court, petitioner had not yet dis- 
covered that the State had had in its possession 
since 1983 certified records evidencing the dis- 

People v. Lewis, 95 Il. Dec. 371, 489 N.E.2d 
1099 (1986) (Clark, C.J., and Simon, 4. dis- 

senting). 

[71 Respondents contend that the issue 
of _the accuracy of the New York convic- 
tions has been waived for purposes of fed- 

eral habeas review because it was never 

presented to the Illinois courts until after 

the post-conviction proceedings were final. 

See Wainwright v. Sykes, 433 U.S. 12, 81, 
97 S.Ct. 2497, 2506, 53 L.Ed.2d 594; 
Williams v. Lane, 826 F.2d 654, 659, 663 

(7th Cir, 1987). The district court found 
“cause” under Wainwright for the proce- 

  

  

  

  

  

  

dural default in “the fact that the Assistant 
  

State’s Attorney and Assistant Attorney 

General concealed the evidence about the 

New York convictions from the petitioner 

and the post-conviction judge.” Respon- 

dents argue that this finding runs counter 
to the Supreme Court’s holding in Murray 

v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 
2646, 91 L.Ed.2d 397, that “the existence of 

cause for a procedural default must ordi- 

narily turn on whether the prisoner can 

show that some objective factor external to 

the defense impeded counsel's efforts to 

comply with the State’s procedural rule.” 

They contend that the information concern- 
ing the New York arrests and convictions 
was available in public records accessible to 
petitioner, and accordingly that the conduct 

of state officials in no way prevented peti- 
tioner from discovering the truth regarding 
the alleged New York convictions and rais- 
ing his claim during the post-conviction pro- 
ceedings. 

The difficulty which the State encoun- 
tered in attempting to secure records.of 
fifteen-year-old convictions from another 

jurisdiction clearly belies this argument. 

Indeed the reason why Mr. Walsh _ap- 

proached Mr. Kinser in 1979 about stipulat- 
ing to the existence of four prior felony 

convictions, including the two from ‘New 

York, was that he had been unable to ob- 
tain iin_copies of the New York convictions 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

through ordinary channels. Moreover, in 

position of the New York charges. Thus, in 
ruling on the motion, the court did not have the 
benefit of that information. 

B
t
 

D
o
k
 

g
h
 

ch
 

pd
 

 



LEWIS v. LANE 
Cite as 832 F.2d 1446 (7th Cir. 1987) 

1983 when the State was again attempting 
to secure copies of the New York convie- 
tions prior to the post-conviction hearing in 
Illinois circuit court, an investigator with 
the State’s Attorney’s Office found it nec- 
essary to rely on a personal contact in the 
New York City Police Department for as- 
sistance in ultimately obtaining the rele- 
vant records. 

As an indigent death row inmate relying 
on the efforts of appointed counsel, peti- 
tioner did not have available to Tim all of 
the resources of the State in attempting to 
secure copies of the alleged New York con- 
victions. He s 8 
NAACP Legal Defense Fund in New York 
in locating the records, but that office was 
unable to produce certified copies of the 
New York records until the summer of 

85. Without the factual information con- 
aimed in those records, any ineffective as- 
sistance of counsel claim based on Mr. Kin- 
ser’s stipulation to the existence of the 
New York convictions would have been 
useless for petitioner would have been un- 

  
  

    

    

  

  

  

able to demonstrate prejudice as a result of 
Mr. Kinser’s error. 

In Murray v. Carrier, 106 S.Ct. at 2646, 
the Supreme Court suggested that “a 
showing that the factual or legal basis of a 
claim was not reasonably ow op to coun- 
sel” would constitute cause under Wain- 
wright v. Sykes. Petitioner has made a 
sufficient showing that the factual basis of 
his claim concerning the New York convic- 
tions was not reasonably. available to his 

counsel before mid-1985. Moreover, had 
Messrs. Justice and Goodfriend disclosed 
the contents of the New York records to 
Judge Jenson and petitioner's counsel upon 
their receipt in 1983, petitioner would have 
been able to raise his claim during the 
post-conviction proceedings. To that ex- 
tent we agree with the district court that 
the conscious decision of these two state 
officials deliberately to conceal crucial in- 
formation relating to petitioner’s sentenc-- 
ing was “an objective factor external to the 
defense [which] impeded counsel's efforts 
to comply with the State's procedural 
rules.” Murray, 106 S.Ct. at 2646. Final- 
ly, petitioner did raise the accuracy of the 
New York convictions before the Illinois 

1457 
Supreme Court at the first available oppor- 
tunity, in the form of the Motion for a 
Supervisory Order, but the Illinois Su- 
preme Court declined the opportunity to 
comment on the merits and summarily de- 
nied the motion. For all of these reasons, 
petitioner has certainly established cause 
under Wainwright v. Sykes for any proce- 
dural default concerning the New York 
convictions. 

[8] That petitioner was prejudiced by 
My. Kinser’s stipulation to the existences 
“y-prior felony convictions which in fact 
did not exist can hardly be disputed. A 
defendant may not be sentenced “on the 
basis of assumptions concerning his crimi- 

  

  

  

- nal record which [are] materially untrue.” 
Townsend v. Burke, 334 U.S. 736, 741, 68 
S.Ct. 1252, 1255, 92 L.Ed. 1690; see also 
United States v. Tucker, 404 U.S. 448, 447, 
92 S.Ct. 589, 591, 80 L.Ed.2d 592 (misinfor- 
mation of a constitutional magnitude, such 
as uncounseled guilty pleas, may not be 
relied upon in imposing sentence); United 
States v. Cameron, 814 F.2d 403, 407 (th 
Cir.1987). There is no dispute that the 
information concernin the New York con- 
victions that was pre was 
untrue. We agree with the district court 

    

that it was also material, The difference 
between two prior 1eldny convictions and 
four prior felony convictions in determining 
Whether to impose the death penalty is 
without doubt significant. As the district 

  

  

  “court explained, while two prior convictions 
would constitute an aggravating factor 
bearing strongly on deciding the appropri- 
ate disposition of a case, “four prior convic- 
tions would indicate an absence of mitigat- 
ing considerations and a life committed to 
criminal activity.” 656 F.Supp. at 193. 
Furthermore, the two New York convic-   

tions were described to the jury as invore- 
ing violent crimes of assault, namely, at- 
tempted felonious assault with a knife and 
felonious assault with a tire iron, which 
might have weighed particularly heavy in 
the balance of aggravating and mitigating 
factors. Particularly in light of the gravity 
and more importantly the irrevocability of 
the sentence ultimately imposed on peti- 
tioner, there is certainly a reasonable prob- 

  

    

   



  

  

1458 

ability that, but for Mr. Kinser’s unfortu- 

nate acquiescence in the admission of false 

evidence, the outcome of the proceeding 

would have been different, and petitioner 

would not have been sentenced to death.’ 
Under the Illinois statute, if only one juror 

believed that there were mitigating factors 

sufficient to preclude the imposition of the 

death sentence, then petitioner would have 
been sentenced to a term of imprisonment. 

Ill.Rev.Stat. ch. 38, 19-1(g). 

[91 The above discussion of the cause 

and prejudice requirements in connection 

with the procedural default clearly foresha- 

dows our holding with respect to the inef- 

fective assistance of counsel claim. With 

petitioner’s life at stake, Mr. Kinser during 

a crucial phase of the sentencing hearing 

agreed to stipulate to the existence of four 

prior felony convictions without asking the 
State’s Attorney whether he had actual 

proof of those convictions in the form of 

certified copies. Instead Mr. Kinser relied 

on petitioner's uninformed representation 

that he thought the information contained 

in the “FBI rap sheet” was accurate, with- 

out explaining to petitioner the importance 

of that information and the critical distinc- 

tions between arrest and conviction and 

between felony and misdemeanors The dis- 

trict court noted that “a guardian ad litem 

in a probate proceeding for an incompetent 

would have insisted on strict proof from an 

adversary.” 656 F.Supp. at 194. Certainly 

5. Respondents argue that petitioner was not 
prejudiced by the fact that the jury was told that 
he had four prior felony convictions because 
they have allegedly discovered a previously un- 
known California conviction for battery, for 
which petitioner was sentenced to one year pro- 
bation. If one of the erroneous New York con- 
victions were replaced with the alleged Califor- 
nia conviction, they claim, petitioner would still 
have three prior felony convictions and a New 
York misdemeanor conviction. Of course this 
newly discovered conviction does not alter the 
fact that the death sentence imposed on peti- 
tioner in May 1979 was based on false and 
inaccurate information as to his prior criminal 
record. As this Court recently had the opportu- 
nity to explain in United States ex rel. Cross v. 
DeRobertis, 811 F.2d 1008, 1016 (7th Cir.1987), 

“the task of [a federal habeas court] is to assess 
the fairness of the original trial—not to predict 
the outcome of a future state proceeding.” 

832 FEDERAL REPORTER, 2d SERIES 

no less should be expected from defense 

counsel in a capital sentencing proceeding 

where the defendant’s life rides on the 

outcome. Even if in part caused by the 

State’s Attorney’s behavior, Mr. Kinser’s 

performance was grossly deficient and 

“shockingly inferior to what may be ex- 
pected of the prosecution’s representation.” 

United States v. Weston, 708 F.2d 302, 306 

(7th Cir.1983) (quoting United States ex 

rel. Williams v. Twomey, 510 F.2d 634, 640 

(7th Cir.1975)), certiorari denied, 464 U.S. 
962, 104 S.Ct. 397, 78 L.Ed.2d 340. 

We have already set forth our belief that 

petitioner’s defense was actually prejudiced 

by Mr. Kinser’s regrettable representation 

with respect to the erroneous New York 

convictions. Indeed we believe that, 

whether or not prompted by the State's 

Attorney, counsel's error in this respect 

was so serious and the prejudice to peti- 

tioner so great that on this basis alone 

“counsel’s conduct so undermined the prop- 

er functioning of the adversarial process 

that the [capital sentencing proceeding] 

cannot be relied on as having produced a 
just result.” Strickland, 466 U.S. at 686, 

104 S.Ct. at 2064. Petitioner is therefore 
entitled to a new sentencing hearing,® and 
we consequently need not pass upon any of 

the other claims of ineffective assistance of 

counsel relating to the sentencing phase 
which were raised by petitioner and con- 
sidered by the district court.’ 

6. In light of our disposition with regard to peti- 
tioner’s death sentence, there is no reason for us 
to reach at this time the arguments presented by 
respondents on appeal concerning the constitu- 
tionality of the Illinois Death Penalty Act, IL 
Rev.Stat. ch. 38, 9-1. 

7. These claims included Mr. Kinser’s failure to 
marshall and present mitigating evidence of pe- 
titioner’s social background to focus the jury's 
attention on petitioner's individuality as a hu- 
man being, instead of relying almost exclusively 
on a religious and moral appeal; Mr. Kinser’s 
failure to object to an-inflammatory and preju- 
dicial remark in Mr. Walsh's final argument; 
and Mr. Kinser’s failure either to object to a 
statement by Mr. Walsh during his final argu- 
ment which mischaracterized a jury instruction 
by suggesting that a finding of mitigating 
factors sufficient to preclude imposition of the 
death penalty would have to be unanimous, or 
to correct that misstatement in his own final  



LEWIS v. LANE 1459 
Cite as 832 F.2d 1446 (7th Cir. 1987) 

[10] Although Mr. Kinser’s conduct is of 

course the subject of our immediate con- 

cern, we also find the conduct of Assistant 

State’s Attorney Justice and Assistant At- 
torney General Goodfriend to be equally 
shocking. These two representatives of 

the State deliberately withheld vital infor- 

mation from both the Illinois courts and 
petitioner and his counsel. See IllL.Rev. 

Stat. ch. 110A, Canon 7, Rule 7-103(b) (“A 

public prosecutor ... in criminal litigation 
shall make timely disclosure to counsel for 
the defendant ... of the existence of evi- 
dence, known to the prosecutor ..., that 
tends to negate the guilt of the accused or 

mitigate the degree of the offense.”). 
Moreover, Mr. Goodfriend deliberately mis- 
represented petitioner's prior criminal 
record before the Supreme Court of Illinois 
on the post-conviction appeal when he had 
in his possession information conclusively 

indicating that petitioner had no New York 
felony convictions. See Ill.Rev.Stat. ch. 
110A, Canon 7, Rule 7-102(a) (a lawyer 

shall not knowingly make a false statement 
of fact or use false evidence). What is 
most reprehensible about the conduct of 
these two individuals, however, is that if 

petitioner’s attorney during the post-convic- 
tion and federal habeas proceedings, Mr. 
Beckett, had not been so diligent in secur- 

ing official copies of the New York records 
and petitioner had eventually exhausted all 
of his opportunities for appellate review 
without obtaining any relief, petitioner 
could have been executed with two officials 
of the State of Illinois knowing that he had 
been sentenced “on the basis of assump- 
tions concerning his criminal record which 

were materially untrue.” Townsend wv. 
Burke, 334 U.S. at 741, 68 S.Ct. at 1255. 

We wholly agree with petitioner's obser- - 
vation that the Illinois court system and 
more importantly the people of Illinois have 
“an interest in ensuring that [Illinois’] 

death penalty statute is fairly applied to 

‘offenses committed within [the] jurisdic 

tion, and a further interest to assure that 

death sentences are a product of accurate 
evidence, and not false evidence” (Petition- 

er’s Br. 54). The conduct of Messrs. Jus- 

argument. See United States ex rel. Lewis v. 

tice and Goodfriend in no way promoted 
those interests; instead it seriously under- 
mined them. Because their conduct raises 
serious questions as to the role of attor- 
neys representing the State in capital 
cases, the relevant state disciplinary au- 
thorities should be informed of these 
events and therefore the clerk of this Court 
is directed to transmit a copy of this opin- 
ion to those authorities. 

IV. 

[11] On cross-appeal, petitioner chal- 
lenges the district court's determination 
that petitioner was not denied effective as- 
sistance of counsel during the guilt phase 
of the prosecution. Petitioner alleges over 
twenty instances in which he claims Mr. 
Kinser was ineffective at trial. Of course, 
even if Mr. Kinser was grossly incompetent 
in each of these respects, petitioner is not 
entitled to any relief under the Sixth and 
Fourteenth Amendments unless he can 
demonstrate that his counsel's deficient 
performance actually prejudiced his de- 
fense, t.e., that “there is a reasonable prob- 
ability that, absent the errors, the factfind- 
er would have had a reasonable doubt re- 
specting guilt.” Strickland, 466 U.S. at 
695, 104 S.Ct. at 2068. Unless a defendant 
shows both deficient performance and prej- 
udice, “it cannot be said that the conviction 

. resulted from a breakdown in the ad- 
‘'versary process that renders the result 
unreliable.” Id. at 687, 104 S.Ct. at 2064. 

It is often more difficult to determine 
whether counsel's performance was defi- 
cient than to determine that petitioner suf- 
fered no prejudice as a result of any al- 
leged deficiencies. We noted in United 
States ex rel. Cross v. DeRobertis, 811 
F.2d 1008, 1014 (7th Cir.1987), that the 
performance issue often requires “a partic- 
ularly subtle assessment” of what the trial 
counsel did and failed to do. If a defend- 
ant was not prejudiced by the alleged del- 
icts of his counsel, reaching the prejudice 
issue first will often obviate the need to 
rule definitively on the more difficult per- 
formance question. Id. The Supreme 

Lane, 656 F.Supp. at 193.   

     



  

1460 

Court in Strickland expressly sanctioned 
this approach: ih 

[A] court need not determine whether 

counsel's performance was deficient be- 

fore examining the prejudice suffered by 

the defendant as a result of the alleged 
deficiencies. The object of an ineffec- 

tiveness claim is not to grade counsel's 

performance. If it is easier to dispose of 
an ineffectiveness claim on the ground of 

lack of sufficient prejudice, which we 

expect will often be so, that course 

should be followed. 

466 U.S. at 697, 104 S.Ct. at 2069. This 

Court has on numerous occasions first ad- 

dressed the prejudice component of the 

Strickland inquiry. See, e.g., Shepard v. 
Lane, 818 F.2d 615, 620 (7th Cir.1987) (col- 

lecting cases); Cross, 811 F.2d at 1014. 

Every court that has reviewed petition- 

er’s conviction has commented that the evi- 

dence against him was overwhelming. See 

People v. Lewis, 88 111.2d at 153, 58 Ill.Dec. 

at 906, 430 N.E.2d at 1357 (“the proof of 

guilt is overwhelming”); People v. Lewss, 

No. 79-CF-81, mem. op. at 10 (Ill.Cir.Ct. 

July 14, 1983) (post-conviction hearing) 

(“This Court has read the trial record. The 

evidence against petitioner was o¥erwhelm- 

ing.”) (emphasis in original); People v. 

Lewis, 105 I11.2d at 241, 85 Ill.Dec. 308, 473 
N.E.2d at 907 (“We still believe” that evi- 

dence of petitioner's guilt, “if believed by 

the jury, was ample.”); United States ex 

rel. Lewis v. Lane, 656 F.Supp. at 190 (“the 

evidence convicting Lewis was overwhelm- 

ing”). It is important to understand pre- 

cisely what the State was required to prove 
in order for petitioner to be found guilty of 

murder, armed robbery, and aggravated 
kidnapping. Of course guilty verdicts 

would be supported by evidence that peti- 
tioner physically participated in the three 

crimes. However, under Illinois’ accounta- 

bility statute, Ill.Rev.Stat. ch. 38, 1 5-2(c), 
he could have been found guilty if “either 

before or during the commission of [the 

offenses], and with the intent to promote or 

facilitate such commission, he solicit[ed], 
aided], abet[ted], agree[d] or attempt[ed] 

to aid, [another] person in the planning or 

commission of the offense[s].” Specifically 

with regard to the murder conviction, in 

832 FEDERAL REPORTER, 2d SERIES 

view of the accountability statute the State 

did not need to prove that petitioner had 

shot Donald Bivens, only that he had given 

prior or contemporaneous aid to the other 

participants in the bank robbery scheme 

which resulted in the shooting. Cf. People 

v. Sangster, 91 I11.2d 260, 262, 62 Ill.Dec. 

937, 938, 437 N.E.2d 625, 626 (1982) (co-par- 
ticipant and alleged mastermind of Citizens 

National Bank robbery guilty of murder 

under accountability statute). 

Even without resort to the particularly 

damaging testimony of Maurice Farris and 

Margaret Morgan, whose credibility peti- 

tioner vigorously attacks, there was a sub- 

stantial amount of physical evidence tying 

petitioner to the bank robbery. A maroon 

Monte Carlo automobile rented by petition- 

er in St. Paul, Minnesota, shortly before 

the robbery was identified by three wit- 

nesses (Jodi Myers, Mary Comerford, and 

Norman Goenne) as having been used in 

the robbery and was later seized in Deca- 

tur in Maurice Farris’ garage. An Illinois 

road map with petitioner’s fingerprints on 

it was found inside the car when it was 

seized, along with a billfold containing iden- 
tification of a Denise Lewis, an alias used 

by his sister Bernice. A .38—caliber hand- 
gun, identified by the testimony of a 
Minnesota gun handler and other witnesses 

as having been pawned to petitioner, was 
found in the Macon County landfill in the 
same area with Donald Bivens’ gun and 
items identified by three of the bank tellers 
as having been in their briefcases on the 

morning of the robbery. Petitioner's 

brother-in-law testified that petitioner gave 
him a vodka box containing money and 

asked him to keep it safe for petitioner. 

The serial numbers on the money inside of 

the box matched those on the money which 

had been stolen from the Citizens National 
Bank. , In addition, the fingerprints of 
Bernice and one of the bank tellers were 

found on the money. Telephone bills 
showed calls between petitioner's resi- 

dences in Minneapolis and Des Moines and 

the Morgan and Sangster-Farris resi- 

dences in Decatur both before and after 

the robbery. Finally, the testimony of two 

of Margaret Morgan’s neighbors and one  



b State 

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given 

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LEWIS v. LANE 1461 
Cite as 832 F.2d 1446 (7th Cir. 1987) 

of her children placed petitioner and Bern- 
ice in the Morgan household from Decem- 
ber 12 through 14, 1978. 

On the basis of this evidence alone, it is 
virtually impossible to say that anything 
which Mr. Kinser could or should have 
done would have left the jury with a rea- 
sonable doubt as to petitioner's partic- 
ipation in some aspect of the bank robbery. 
When Farris’ testimony concerning the 
planning of the robbery, the events of the 
day of the robbery, and petitioner's state- 
ment that “The guard went for his gun. I 
had to burn him,” and Margaret Morgan's 
testimony that the petitioner and Bernice 
had stayed at her home between December 
12 and 14, 1978, that she had observed 
petitioner and his sister counting money 
immediately after the robbery, that Bern- 
ice, in petitioner's presence, had asked her 
whether the guard had died, and that she 
had helped Bernice dispose of the guns, 
briefcases, and money wrappers from the 
robbery is added to the physical evidence 
laid out in the above paragraph, the evi- 
dence of petitioner's guilt is simply insur- 
mountable. In light of this evidence, the 
alleged errors made by Mr. Kinser are in- 
sufficient to undermine confidence in the 
outcome of petitioner's trial. There is no 
reasonable probability that, but for those 
alleged errors, the verdict would have been 
any different. 

[12] Petitioner argues that it is incon- 
sistent to hold that Mr. Kinser was consti- 
tutionally ineffective during the sentencing 
phase of the case but rendered reasonably 
competent representation during the guilt 
phase. Petitioner, however, has largely 
overlooked the prejudice component of 
Strickland on his cross-appeal focusing on 
the trial. Even so, we are not at all con- 
vinced that many of the errors alleged by 
petitioner to have occurred at trial fell out- 
side of “the wide range of reasonable pro- 
fessional assistance.” Strickland, 466 
U.S. at 689, 104 S.Ct. at 2065. 

Petitioner mounts a broad challenge to 
Mr. Kinser’s general competence to handle 
petitioner’s case based on his age, 63 at the 
time of the 1979 trial, and background. 
The record reveals that Mr. Kinser had 

handled over 100 criminal cases, one-half of 
which were felonies, although he had not 
done any criminal defense work in the four 
years prior to petitioner's trial. We must 
agree with the district court’s conclusion 
that “there is nothing in this record to 
indicate that Mr. Kinser, by reason of his 
background, was not able to function as an 
adversary of the State’s Attorney, or that 
he did not have the proper preparation or 
ability to be a reasonably effective lawyer 
for the petitioner.” 656 F.Supp. at 190. 

[13] Petitioner also claims that Mr. Kin- 
ser believed that Lewis was guilty and 
continuously counseled him to plead guilty 
and avoid the death penalty. As the dis- 
trict court noted, nothing in the record 
indicates that Mr. Kinser publicly ex- 
pressed any opinion that petitioner was 
guilty. 656 F.Supp. at 190. Moreover, in 
light of the substantial physical evidence 
against him, Mr. Kinser would have been 
derelict not to discuss the possibility of a 
guilty plea for a fixed term of imprison- 
ment. See Tollett v. Henderson, 411 U.S. 
258, 268, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 
235. 

The large majority of the alleged errors 
involved strategic judgments by Mr. Kinser 
as to how best to defend petitioner. Peti- 
tioner claims that Mr. Kinser waived his 
opening statement, failed to cross-examine 
witnesses vigorously, failed to object to 
certain statements during the closing argu- 
ments, yielded the right of voir dire to the 
judge, failed to object when the prosecutor 
asked leading questions of certain witness- 
es, failed to move to exclude the petition- 
er's prior convictions during the trial 
phase, and lost the opportunity to impeach 
Maurice Farris by not having a third party 
present at Farris’ interview. A defense 
counsel in a criminal trial is often called 
upon to make difficult choices among a 
number of legitimate options. The Su- 
preme Court in Strickland recognized that 
“it is all too easy for a court, examining 
counsel's defense after it has proved unsue- 
cessful, to conclude that a particular act or 
omission of counsel was unreasonable.” 
466 U.S. at 689, 104 S.Ct. at 2065. Only if 
an act or omission is outside “the wide   

  

     



  

1462 

range of professionally competent assist- 
ance” will it be deemed unreasonable. Id. 
at 690, 104 S.Ct. at 2066. 

[14] We will briefly review some of pe- 
titioner’s more serious allegations. “One of 
petitioner’s principal charges is that Mr. 
Kinser failed to interview potential alibi 
witnesses and to offer an alibi defense at 
trial. Petitioner maintained throughout 
the trial and continues to maintain that he 
was not present in Decatur at the time of 
the robbery. He contends that he was 
visiting relatives in Des Moines, Iowa, dur- 
ing the week of December 11, 1978. Vari- 
ous family members allegedly saw him in 
Des Moines, and Mary Ann Byrd, a friend 
of the family, was apparently ready to tes- 
tify that petitioner had been cohabiting 
with her when the shooting occurred. 

We agree with the district court and the 
Illinois Supreme Court that the record sup- 
ports the conclusion that the decision not to 
put the alibi witnesses on the stand, al- 
though they were present at the trial, was 
strictly one of trial strategy. Mr. Kinser 
made several appointments to interview the 
Iowa witnesses in his office in Illinois, but 
they never appeared at the designated 
times. Mr. Kinser and defense counsel for 
Bernice together contacted an attorney in 
Des Moines who interviewed the witnesses 
there. That attorney told Mr. Kinser that 
it was her opinion that the witnesses were 
not credible and that they would lie on the 
stand to protect petitioner and Bernice. 
Bernice and her counsel decided not to 
have these alibi witnesses testify because 
the jury would quickly perceive that they 
were lying and that that would do far more 
damage to Bernice’s case than the absence 
of contrary evidence. Mr. Kinser was 
equally justified in reaching that same stra- 
tegic judgment on behalf of petitioner. Al- 
though petitioner maintained he was in 
Iowa, he was unable to offer any explana- 
tion to rebut the physical evidence tying 
him to Decatur, other than alleging that his 
car had been stolen in Des Moines. Unless 
Mr. Kinser was able satisfactorily to ex- 
plain away that evidence, a progression of 
witnesses claiming that petitioner was in 
Iowa at the time of the crime might have 

832 FEDERAL REPORTER, 2d SERIES 

done far more to convince the jury that he 
was guilty than Mr. Kinser’s chosen strate- 
gy of emphasizing the lack of direct identi- 
fication of petitioner and his sister by any 
of the victims of the robbery. Indeed, af- 
ter hearing the testimony of these alibi 
witnesses at the post-conviction hearing, 
Judge Jenson wrote: 

At times the testimony of a witness is 
inconsistent within itself. The testimony 
of some is inconsistent with their Grand 
Jury testimony. Collectively, the testi- 
mony is inconsistent, in a number of re- 
spects, from witness to witness. The 
Court cannot indulge in some speculation 
that had Kinser pursued all of this fur- 
ther before trial he somehow would have 
been able to clean it up to make it rea- 
sonably presentable.... There was no 
prejudice to petitioner in not presenting 
it. Moreover, it not only would not prob- 
ably have changed the outcome, it would 
have probably destroyed any slim chance 
the petitioner then had. 

People v. Lewis, No. 79-CF-81, mem. op. at 
20 (IIL.Cir.Ct. July 14, 1983). 

[15] Petitioner also claims that Mr. Kin- 
ser failed to insist on a mistrial after an 
FBI agent testified about seeing Lewis in 
the presence of his probation officer. The 
trial court indicated that it was prepared to 
grant petitioner a mistrial if he so desired, 
but that it would set petitioner's case for 
trial anew with accomplice Willie T. Sang- 
ster, who had originally been joined with 
petitioner but who subsequently managed 
to obtain a continuance. Although petition- 
er did not want to proceed to verdict with 
the jury that had heard the FBI agent's 
testimony, petitioner was also adamant 
about not wanting to be tried with Sang- 
ster. Hindsight suggests that Mr. Kinser 
perhaps should have insisted on a mistrial 
and attempted to have petitioner’s case sev- 
ered from Sangster’s. Instead, rather than 
risking the possibility that petitioner would 

"be later tried with Sangster, the master- 
mind of the crime according to the prosecu- 
tion’s theory, Mr. Kinser decided to with- 
draw his motion for a mistrial and the 
court thoroughly admonished the jury to 
disregard the improper and prejudicial tes- 
timony. Petitioner now claims that Mr.  



   
    

    
   

   

      

   

   

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LEWIS v. LANE 1463 Cite as 832 F.2d 1446 (7th Cir. 1987) 
Kinser acted against his wishes in with- 
drawing the motion, but what petitioner 
really wanted was to have the indictment 
dismissed, a wholly unrealistic option. 
Considering the alternatives available to 
Mr. Kinser at the time, his choice to go 
forward was not professionally unreason- 
able. Furthermore, as the Illinois Supreme 
Court concluded, the testimony and evi- 
dence of petitioner’s guilt, if believed, were 
overwhelming, and there was no reason- 
able possibility that, but for the FBI 
agent's reference to petitioner's probation 
officer, petitioner would not have been con- 
victed.® 88 Ill.2d at 158, 58 Ill. Dec. at 909, 
430 N.E.2d at 1360. 

[16] Finally, petitioner claims that Mr. 
Kinser failed to make use of an FBI lab 
report concerning hair sample analyses and 
the results of a paraffin test on Maurice 
Farris. During the initial investigation of 
the case, police found two negroid hairs 
suitable for analysis. One was found in 
one of the ski masks used in the robbery; 
the other was found in the back-seat area 
of the maroon Monte Carlo automobile 
used in the robbery. These hair samples 
were compared with hair standards ob- 
tained from petitioner, Bernice, and Mau- 
rice Farris. The FBI analysts excluded all 
three persons as the source of the hair 
found in the ski mask and the Lewises as 
the source of the hair found in the back 
seat of the Monte Carlo, but was inconclu- 
sive with regard to Farris as the source of 

8. In addition to his ineffective assistance claim, 
petitioner claims that his due process rights 
were violated when the court did not force him 
to accept a mistrial. As discussed in the text, 
petitioner wanted his indictment dismissed; he 
was unwilling to consider the realistic alterna. 
tives open to him, either to take the mistrial and 
risk a future trial with Sangster or after proper 
admonishment to proceed with the jury that had 
heard the remark. Petitioner's counsel was re- 
quired to choose between these options, and 
petitioner reluctantly agreed with counsel's deci- 
sion to proceed. Petitioner has presented no 
support for his claim that despite the strategic 
judgment by him and his counsel to proceed 
with the case, the court had an obligation to 
order a mistrial against their wishes and force 
petitioner to risk a new trial with Sangster. 
Indeed, if the court had actually pursued that 
course, petitioner might have had a bona fide 
due process claim, and perhaps even a claim 
that a new trial would have violated his rights 

the hair found in the car. At the post-con- 
viction hearing, the FBI agent who con- 
ducted the hair-sample analyses testified 
that there was no scientific value in his 
inability either to exclude or to identify 
Farris as the source of the hair in the car. 
Mr. Kinser never introduced the results of 
the hair-sample analyses into evidence at 
the trial. 

In cross-examining Maurice Farris, Bern- 
ice’s counsel brought out the fact that the 
results of a paraffin test administered on 
Farris shortly after he had been arrested 
on the evening of the robbery indicated the 
existence of burnt powder residue on Far- 
ris” left hand, suggesting that he had re- 
cently fired a gun. Both Mr. Kinser and 
Bernice’s counsel relied on this fact during 
their closing arguments to suggest that 
Farris was actually the person who shot 
Donald Bivens. In rebuttal, Mr. Walsh, 
the State’s Attorney, reminded the jury 
that several of the bank tellers had testi- 
fied that the person who shot Bivens had 
worn gloves. Mr. Walsh also told the jury 
that Farris had testified that when he 
dropped petitioner and Bernice off at Mrs. 
Morgan’s house after the robbery, he lifted 
one of the suitcases out of the back seat of 
the car and handed it to petitioner. If 
Petitioner had shot Bivens and then carried 
a suitcase back to the car, he could have 
left gunpowder residue on its handle, which 

under the Fifth Amendment's Double Jeopardy 
Clause. 

Petitioner also suggests that his due process 
rights were violated by the trial court's “condi- 
tioning” the grant of the mistrial motion on 
petitioner's being later tried with Sangster. 
Both the district court and the Illinois Supreme 
Court rejected this argument. The Illinois Su- 
preme Court in particular found that “[t]he 
judge, in discussions with defendant, made it 
clear that motions for severance would be con- 
sidered later if it appeared that a joint trial 
would prejudice defendant.” 88 I11.2d at 157, 58 
Ill.Dec. at 908, 430 N.E.2d at 1359. Absent such 
a showing, however, the joinder of petitioner 
and Sangster was perfectly permissible under 
Illinois law. See Ill.Rev.Stat. ch. 38, 114-7 
and 114-8 (1981). Indeed their cases had origi- 
nally been consolidated, and Sangster would 
have been tried with petitioner and Bernice had 
he not obtained a continuance.    

      
 



1464 

if then touched by Farris could certainly 
explain the residue on his left palm. 

Petitioner argues that Mr. Kinser did not 

make effective use of both the paraffin and 
hair-sample tests in impeaching the credi- 

bility of Farris’ testimony and suggesting 

that Farris, not petitioner, was the trigger 

person. Because Farris’ hair was not ruled 

out as the source of the hair in the back 

seat, petitioner theorizes that the hair-sam- 

ple analysis shows that Farris lied when he 

testified that he drove the Monte Carlo, 

and that Farris actually sat in the back 

seat of the car and was one of the robbers 

at the scene. Petitioner also emphasizes 

the fact that the State’s Attorney’s Office 

did not learn of the results of either the 

paraffin test or the hair-sample test involv- 

ing Farris until after they had granted 

Farris full immunity. Petitioner contends 

that had this information reached the 

State’s Attorney's Office earlier, Farris 

would never have been granted immunity. 

Faced with their mistake, the State’s Attor- 

neys were left with no choice but to pro- 
ceed on the theory that petitioner was the 

person who shot Bivens. 

Petitioner’s argument on the basis of the 

inconclusive results of Fawpris’ hair-sample 

analysis is strained at best. Even if Farris’ 

hair had been identified as compatible with 
the source of the hair taken from the back 

seat of the Monte Carlo, such a finding 
- would not necessarily be inconsistent with 

Farris’ being the driver of the car. Similar- 

ly, the State's Attorney’s argument as to 

how Farris managed to get gunpowder res- 

9. In addition to the ineffective assistance claim, 
petitioner also raises a substantive claim under 
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 
L.Ed.2d 215, that his due process rights were 
violated as a result of the prosecution's alleged 
failure to provide him or his counsel with cop- 
ies of the written FBI laboratory report relating 
the results of the hair-sample analyses. Al- 
though there is somre confusion as to whether 
Mr. Kinser actually received copies of those 
reports, the record does establish that he knew 
the results of the tests conducted on petitioner's 
and Bernice’s hair standards, that the report of 
the hair-sample analyses, including the one 
done on Farris’ hair standard, was hand-carried 
from the FBI laboratory in Washington, D.C. to 
Champaign County, Illinois where the trial was 
in session, and that three copies of the report, 
presumably one for the prosecution and two for 

832 FEDERAL REPORTER, 2d SERIES 

idue on his palm is certainly plausible, par- 

ticularly in light of the testimony that the 

person who shot Bivens wore gloves. 

However, even if we were to accord more 

weight to this evidence than it appears to 

warrant, the most that it might possibly do 
would be to create some doubt as to wheth- 

er petitioner actually fired the gun. It in 

no way raises a reasonable doubt that peti- 

tioner was not in some way involved with 

the robbery of Citizens National Bank. 

There is simply too much physical evidence 

tying him to Decatur and the robbery to 

conclude otherwise. Under the accounta- 

bility statute, petitioner would have been 

found guilty of murder, like his sister Bern- 

ice and accomplice Sangster, even if he 
were not the trigger person. Thus, even if 

we were to hold, which we do not, that Mr. 

Kinser erred in failing to pursue more 

forcefully the results of the paraffin and 

hair-sample tests, there is no reasonable 

probability that, but for that error, the jury 

would have been left with a reasonable 

doubt concerning petitioner’s guilt.? 

We do note, however, that some of this 

evidence may be of particular relevance at 

petitioner’s new sentencing hearing. If the 

State again chooses to seek the death pen- 

alty for petitioner, it will first have to 

establish beyond a reasonable doubt the 
existence of one of the aggravating factors 

set out in Ill.Rev.Stat. ch. 38, 19-1(b). The 

‘only aggravating factor in that subsection 
under which petitioner might qualify is 

(b)(6), which requires a showing that peti- 

tioner actually killed Donald Bivens during 

defense counsel, were delivered to Mr. Walsh at 
the courthouse on May 21, 1979. We agree with 
the district court that the evidence certainly 
does not support the conclusion that the prose- 
cution deliberately withheld information re- 
quested by petitioner. 656 F.Supp. at 189. We 
also agree with the district court that even as- 
suming arguendo that there was a Brady viola- 
tion, petitioner cannot satisfy the materiality 
test of United States v. Agurs, 427 U.S. 97, 96 
S.Ct. 2392, 49 L.Ed.2d 342. Considering the 
totality of the evidence against him, the hair- 
analysis evidence alone could not have raised a 
reasonable doubt concerning his guilt by virtue 
of his participation in the robbery scheme. At 
most it would have created a slight doubt as to 
whether it was petitioner who actually shot 
Donald Bivens, a fact relevant only for the sen- 
tencing phase of his prosecution.  



le, par- 

at the 

loves. 

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pars to 

ibly do 

heth- 

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ht peti- 

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Bank. 

idence 

ery to 

ounta- 

e been 

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onable 

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nce at 

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h pen- 

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actors 

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he sen- 

US. v. MARRINSON 1465 
Cite as 832 F.2d 1465 (7th Cir. 1987) 

the course of an armed robbery. Petition- 
er’s counsel at the resentencing hearing 
will be free to, and of course presumably 
should, introduce evidence of the results of 

the paraffin tests and the hair-sample 
analyses and then present petitioner's theo- 
ry of the shooting, based on these results, 
to the jury. Counsel will also have the 
opportunity to develop any other evidence 
which might create a reasonable doubt 
about whether it was petitioner who did the 
actual shooting.!® We again emphasize, 
though, that the fact that petitioner may 

not have been the shooter does not under- 
mine our confidence in the jury’s verdict 
that petitioner was guilty of murder or our 

belief that the outcome at the $i phase 
was just. 

V. 

For all of the reasons set forth above, 

the judgment of the district court is af- 

firmed. A writ of habeas corpus shall is- 

sue in this case vacating petitioner's sen- 

tence of death. Execution of the writ is 
stayed on condition that the State of Illi- 
nois grant petitioner a new sentencing 

hearing within a reasonable time not to 

exceed ninety days, and diligently and with- 

out delay proceed with that hearing to final 

conclusion. We also direct the clerk of this 

Court to send a copy of this opinion to the 

relevant state disciplinary authorities in ac- 

- cordance with Part III of this opinion. See 
-. supra p. 1459. Costs to be borne by the 

respective parties. 

Ww 
(5) £ KEY NUMBER SYSTEM 

T 

10. For example, petitioner argues that Mr. Kin- 
ser should have investigated a prior conspiracy 
to rob the Citizens National Bank in the spring 
of 1978 involving Willie Sangster and an indi- 

UNITED STATES of America, 

Plaintiff-Appellee, 

Vv. : 

Daniel F. MARRINSON, 

Defendant-Appellant. 

No. 86-2443. 

United States Court of Appeals, 
Seventh Circuit. 

Argued Feb. 13, 1987. 

Decided Nov. 6, 1987. 

Defendant was convicted in the United 
States District Court for the Northern Dis- 
trict. of Illinois, Eastern Division, 620 
F.Supp. 198, Marvin E. Aspen, J., of four 

counts of filing false tax returns, and he 
appealed. The Court of Appeals, Harling- 
ton Wood, Jr., Circuit Judge, held that: (1) 

evidence was sufficient to support convic- 

tion; (2) Government sufficiently negated 

possible nontaxable sources of income; (3) 

Government's late disclosure of exculpato- 

ry evidence did not hinder the defense; (4) 

venue was proper; (5) statute of limitations 

began to run on returns’ due date; and (6) 

indictment sufficiently apprised defendant 
of case against him. 

Affirmed. 

1. Internal Revenue €=5305 

Generally, “net worth approach,” used 

in cases where specific items of taxable 
income cannot be shown precisely, permits 

circumstantial conclusion that there is 
unreported taxable income if taxpayer’s net 

worth at end of period exceeds that at 
beginning of period and increase cannot be 
attributed to reported income. 

See publication Words and Phrases 
for other judicial constructions and 
definitions. 

2. Internal Revenue ¢=5293 

“Cash expenditures method” deter- 

mines amount of unreported income by es- 

vidual named Johnny Ricks. The record does 
not reveal whether any criminal charges were 
ever brought in connection with that alleged 
conspiracy.   

  
   



      
   

    

    

   

    

   

   
     
    

  

rt. de- 

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properly applied Rule 14(c) and was correct 
in treating this action as if Riverway had 
commenced it against Cairo and Trumbull 
as joint defendants. 

[8] The last issue we must address is the 
percentage allocation made by the district 
court. There is ample support in the record 
to support an equal allocation of liability. 
However, we also conclude that there is 
ample support for the district court’s alloca- 
tion. Greater culpability can be found in 
Trumbull in two regards. First, it had the 
opportunity to take preventive action on 
the afternoon of January 23 but failed to do 
so. The most obvious action would have 
been to sever the connecting cable between 
RW-381 and the submerged barge MWT- 
122. Second, it breached its duties as bailee 
by informing Riverway it would not assume 
any further responsibility for the barge. 
Our review of the district court’s allocation 
of liability is governed by the same “clearly 
erroneous” standard as was our review of 
the district court’s negligence findings. 
For the reasons above, we conclude the 
district court’s allocation, “under all of the 
circumstances of this case,” satisfies this 
standard. 

The decision of the district court is AF- 
FIRMED in all respects. 

HARLINGTON WOOD, Jr, Circuit 
Judge, concurring in part, dissenting in 
part. 

In all respects, I concur in Judge Grant's 
careful analysis of this barge incident up to 
the final paragraph concerning the alloca- 
tion of liability. At that point, I respectful- 
ly dissent, but only by one notch. 

As Judge Grant fairly points out, there is 
ample support in the record to justify an 
equal allocation of liability between Trum- 
bull and Cairo. As it now stands, however, 
Trumbull is assessed two-thirds of the lia- 
bility and Cairo the remaining one-third. 

- It was Cairo’s man Rukes who was. dis- 
patched to the scene “to take charge of the 
situation.” He arrived in time and had the 
means at his disposal to save the barge, but 
he had a more compelling interest that 
night waiting at his motel. When Rukes 

   PORTMANN v. UNITED STATES 1155 
Cite as 674 F.2d 1155 (1982) 

returned the following morning, it was too 
late. The trial judge found that Rukes 
admitted that he “had just sunk the barge.” 
That unavoidable candor should not save his 
company from its full share of liability. 

In reviewing the factual findings in a 
close case, you must remind yourself that 
you are not the district judge who presided 
at the trial, only a reviewing judge looking 
at the record, and bound by the clearly 
erroneous standard. I believe, however, in 
the circumstances of this case that justice 
would be a little more equal by an equal 
division of liability. 

o } TTT S 

Michele PORTMANN, doing business as 
Grafica, an individual, 
Plaintiff-Appellant, 

Vv. 

UNITED STATES of America, 
Defendant-Appellee. 

No. 81-1390. 

United States Court of Appeals, 

Seventh Circuit. 

Argued Nov. 4, 1981. 
Decided March 24, 1982. 

Rehearing and Rehearing En Bane 
Denied July 22, 1982. 

Plaintiff appealed from an order of the 
United States District Court for the North- 
ern District of Illinois, Eastern Division, 
Marvin E. Aspen, J, granting summary 
judgment in favor of Postal Service in 
plaintiff's action seeking damages for the 
alleged loss of an “Express Mail” package. 
The Court of Appeals, Cudahy, Circuit 
Judge, held that: (1) the color film separa- 
tions contained in the package did not qual- 
ify as “nonnegotiable documents” within 
meaning of the applicable Postal Service 
regulations which allowed nonnegotiable 
documents to be insured up to $50,000 per 
mailing unit, while “merchandise” was sub- 
ject to an indemnity limit of $500, and (2) 
the doctrine of equitable estoppel may be 

. re  ——— available against Post: C roof 
  

  

  

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1156 

by plaintiff of her allegations that at time 

of mailing of the package, she was assured 

by the postal clerk on duty that her pack- 

ages would be insured against loss up to 

$50,000 as “nonnegotiable documents.” 

Reversed and remanded. 

1. Post Office ¢=22 

Color film separations contained in 

package sent by “Express Mail” did not 

qualify as “nonnegotiable documents” with- 

in meaning of Postal Service regulations 

which provided that “nonnegotiable docu- 

ments” sent by express mail were insured 

for up to $50,000 per mailing unit, but that 

“merchandise” was subject to an indemnity 

limit of $500, where regulation stated that 

nonnegotiable documents “include commer- 

cial papers, documents, and such written 

instruments as are used in the conduct and 

operation of banks and banking institutions 

that have not been made negotiable or 

which cannot be negotiated or converted 

into cash by unauthorized persons without 

resort to forgery,” and that nonnegotiable 

documents also included “valuable records, 

audit media, and other business records,” in 

that plaintiff’s film separations were not 

valuable solely as a means by which com- 

mercial information was carried. 

See publication Words and Phrases 
for other judicial constructions and 
definitions. 

2. Estoppel ¢=52(1) 

Doctrine of equitable estoppel pre- 

cludes litigant from asserting otherwise 

available claim or defense against another 

party who has relied to her detriment on 

the fomer’s misrepresentation or failure to 

disclose some material fact. 

3. Post Office ¢=22 

Doctrine of equitable estoppel may be 

available against United States Postal Ser- 

vice to hold Postal Service liable for loss of 

“Express Mail” package upon proof by 

plaintiff of her allegations that at time of 

mailing of packages containing color film 

separations, she was assured by postal clerk 

on duty that her packages would be insured 

up to $50,000 as ‘“nonnegotiable docu- 

* The Honorable William J. Campbell, Senior Dis- 

trict Judge forthe Northern District of Illinois, 

674 FEDERAL REPORTER, 2d SERIES 

ments,” even though applicable Postal Ser- 

vice regulations limited coverage to $500. 

Andrew W. Brainerd, Brainerd & 

Bridges, Chicago, Ill, for plaintiff-appel- 

lant. 

Robert B. Breisblatt, Asst. U. S. Atty, 

Dan K. Webb, U. S. Atty., Chicago, Ill., for 

defendant-appellee. 

Before CUMMINGS, Chief Judge, CU- 

DAHY, Circuit Judge, and CAMPBELL, 

Senior District Judge.” 

CUDARY, Circuit Judge. 

Service on the basis of representations 
made by a postal employee to a potential 

“Express Mail” customer. The district 

ment, held that estoppel was unavailable 

against the federal government as a matter 
of law, and granted summary judgment in 
favor of the Postal Service on that basis. 

We reverse and remand for further pro- 

ceedings. 

L 

On January 15, 1980, plaintiff-appellant 

Michele Portmann, a free lance graphic arts 

designer, paid the United States Postal Ser- 

vice thirty-one dollars to transport three 

small packages containing color film separa- 

tions, taken from photographs of the works 

of Salvador Dali, from Highland Park, Illi- 

nois, to New York City. Portmann alleges 

that at the time of the mailing, she stated 

to the Postal Service that her packages 

contained color separation film of great val- 

ue, which could not easily be reproduced, 

and that safe insured carriage was there- 

fore imperative. Portmann further alleges 

that the postal clerk on duty assured her 

that by paying $31 for “Express Mail” and 

special “Document Reconstruction Insur- 

ance,” Portmann could guarantee that her 

packages would be “fully insured against 

loss up to $50,000.” Verified Complaint at 

is sitting by designation.    



ble Postal Ser- 

erage to $500. 

    

   

      

    

   

   

    

Brainerd & 

plaintiff-appel- 

U.S. Atty. 

icago, Ill., for 

of Judge, CU- 

CAMPBELL, 

bpeal is wheth- 

stoppel may be 

States Postal 

epresentations 

to a potential 

The district 

ummary judg- 

as unavailable 

bnt as a matter 

y judgment in 

on that basis. 

r further pro- 

ntiff-appellant 

e graphic arts 

tes Postal Ser- 

ansport three 

or film separa- 

s of the works 

and Park, Illi- 

tmann alleges 

ing, she stated 

her packages 

of great val- 

e reproduced, 

ge was there- 

further alleges 

v assured her 

ress Mail” and 

ruction Insur- 

intee that her 

sured against 

| Complaint at 

    

    
   
   

   
   

   
   

   
   

  

   

   

   

   

    

  
  

  

    PORTMANN v. UNITED STATES 1157 
Cite as 674 F.2d 1155 (1982) 

15.1 Relying on this representation, Port- 

mann paid the required “Express Mail” fee 

and designated the value of package # 1 as 

$1,000, package # 2 as $2,000 and package 
# 3 as $3,000. 

Package # 3 was never delichred Upon 

discovering the loss, Portmann promptly 
    

      

Postal Service. In her application, Port- 

mann claimed indemnity for the package in 

the amount of $3,874, a sum which she 

  

claimed represented the cost of reconstruct- 

ing the lost film. The Postal Service re- 

viewed Portmann’s application and deter- 
mined that the film was “merchandise” as 

distinguished from “nonnegotiable docu- 

ments” “under the applicable postal regula- 

tions, and that Postal Service liability was 

therefore limited to $500.2 After unsuc- 

cessfully pursuing an administrative appeal, 

Portmann filed the instant suit in federal 

district court seeking damages of $7,500.3 

On October 10, 1980, Portmann filed a 

Motion for Summary Judgment in the dis- 

trict court, then verifying the contents of 

her complaint under oath. In her motion, 

Portmann argued first, that the film sepa- 
rations constituted “documents” rather 
than “merchandise” under a proper inter- 

pretation of the applicable postal regula- 

tions, and second that Portmann’s reliance 

  

  

her packages would be insured up to $50, 000 

should preclude the government from now 

limiting coverage to $500, regardless of the 

actual provisions of the postal regulations. 

The Government responded with its own 

Motion for Summary Judgment on Novem- 

ber 3, 1980, arguing that Portmann’s film 

separations had been correctly characteriz- 

1. The Government in its Answer, stated that it 

was “without knowledge or information suffi- 

cient to form a belief as to the truth of [these] 

averments.” Defendant, however, has sub- 

mitted no affidavits or other evidence to refute 

plaintiff’s version of the facts. We therefore 

accept plaintiff's allegations as true for pur- 

poses of this-appeal. 

2. Section 294.1 of the Domestic Mail Manual 

~ states that “Express Mail is insured against 

loss, damage, or rifling at no additional cost.” 

Section 294.2 of that Manual, which is entitled 

“Document Reconstruction Insurance,” pro- 

ed by the Postal Service as “merchandise” 
rather than nonnegotiable documents and 
that coverage was therefore limited to $500. 
In addition, although not expressly admit- 
ting the factual allegations upon which 
Portmann’s estoppel claim was based, the 
(Government argued that such allegations, 
‘even if true, would not entitle Portmann to 

  

. relief since “ ‘estoppel cannot be set up 
against the Government on the basis of an 
unauthorized representation of an officer or 
employee .”” Defendant’s Motion for 
Summary Judgment at 2, quoting Abbott v. 

r
m
 
—
—
 

—
—
 

Harris, 610 F.2d 563, 564 (8th Cir. 1979). 
The district court found for the Govern- 

_ment on both issues. First, it confirmed the 
Postal Service's determination that Port- 
mann’s film separations were merchandise, 
subject to an indemnity limit of $500, rath- 
er than nonnegotiable documents, eligible 
for “Document Reconstruction Insurance” 
of up to $50,000. Second, the district court 
determined, as a matter of law, that the 
Postal Service could not be bound by the 
erroneous representation of a postal em- 
ployee. Noting that it was “not without 
appreciation of the fact that plaintiff may 
have relied, to her detriment, on the repre- 
sentations of a Postal Service employee,” 
the district court concluded that 

the facts that plaintiff reasonably 
believed her package to be covered by 
document reconstruction insurance and 
that recovery could presumably be had 
against a private company in these cir- 
cumstances, unfortunately are irrele- 
vant.... The Postal Service regulations 
define the parameters of package insur- 
ance and cannot be changed by a misun- 

vides that nonnegotiable documents are in- 
sured against loss, damage or delay while in 
transit for up to $50,000 per piece. Section 
294.3 of the Manual, entitled “Merchandise In- 
surance” provides: ‘Parcels are insured 
against loss or damage; coverage is limited to 
$500.” 

3. Portmann alleged jurisdiction under 28 U.S.C. 
§ 1339 (1976) (civil actions relating to postal 
matters), 28 U.S.C. § 1346 (1976) (United 
States as a defendant); and 39 U.S.C. § 409 
(1976) (suits by and against the Postal Service). 

  

  

  
                

          

   
   
   

  

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1158 

derstanding on plaintiff’s part, however 
induced. 

Dist.Ct.Op. at 4. This appeal followed. 

IL, 
[1] At the outset, we reject Portmann’s 

contention that the contents of package 
# 3 qualified as “nonnegotiable docu- 
ments” within the meaning of the applica- 
ble Postal Service regulations. Section 
294.21 of the Domestic Mail Manual pro- 
vides that “nonnegotiable documents” sent 
by Express Mail “are insured against loss, 
damage, or delay while in transit,” for up to 
$50,000 per mailing unit4 Section 294.22 of 
that Manual states that nonnegotiable doc- 
uments “include commercial papers, docu- 
ments, and such written instruments as are 
used in the conduct and operation of banks 
and banking institutions that have not been 
made negotiable or which cannot be negoti- 
ated or converted into cash by unauthorized 
persons without resort to forgery.” Nonne- 
gotiable documents also include “valuable 
records, audit media, and other business 
records.” Such records “may be in conven- 
tional hard copy form, data processing 
cards, tapes, film, microfilm, or other forms 
of data storage.” Domestic Mail Manual 
§ 294.22. 

Portmann argues that her color separa- 
tions should be treated as nonnegotiable 
documents because they are film and be- 
cause they have no intrinsic value apart 
from their message-carrying capacity. This 
argument, however, misconstrues the im- 
port of the word “film” in Section 294.22. 
Film, in the context of the Domestic Mail 
Manual, refers only to the medium upon 
which a business record or other commercial 
data is carried. It does not purport to 

4. Domestic Mail Manual, § 294.21. The Do- 
mestic Mail Manual is incorporated by refer- 
ence in thé Code of Federal Regulations, 39 
C.F.R. § 111.1 (1980), and is thus part of the 
regulations of the United States Postal Service. 

5. On November 6, 1980, the Postal Service 
made the following changes in Section 294.22 
of the Domestic Mail Manual: 

Section 294.22. Delete the word film from 
the last sentence. Add the following sen- 
tence at the end of 294.22: “Articles such as 
artwork, readers proofs, repro proofs, sepa- 

674 FEDERAL REPORTER, 2d SERIES 

classify as nonnegotiable documents al] pho- 
tographic reproductions or transparencies. 
Plaintiff’s film separations, although both 
“reproductive” and “information carrying,” 
are not valuable solely as a means by which 
commercial information is carried. We 
thus agree with the district court's concly- 
sion that “[p]laintiff’s goods, while in film 
form and certainly valuable, do not fit 
within the limited definition given to non- 
negotiable documents [in the Domestic Maj 
Manual].” Dist.Ct.Op. at 3. 

We believe, however, that this conclusion 
involves a fairly technical question of regu- 
latory interpretation, and that a layperson 
reading these regulations as they existed as 
of January, 1980, might reasonably con- 
clude that film separations such as Ms. 
Portmann’s were eligible for Document Re- 
construction Insurance.’ Although we re- 
Ject this interpretation as legally incorrect, 
we consider its plausibility relevant to our 
analysis of plaintiff’s estoppel claim. See 
Section IV infra. 

  

III. 

[2] The doctrine of equitable estoppel 
precludes a litigant from asserting a claim 
or defense which might otherwise be availa- 
ble to him against another party who has 
detrimentally altered her position in re- ——————————————— 

liance on the former's misrepresentation or 
failure to disclose some material fact. See 
3 J. Pomeroy, Equity Jurisprudence § 804 
at 189 (5th ed. 1941); Note, Equitable Es- 

equitable estoppel will not lie against the 

ration negatives, engineering drawings, blue 
prints, circulars, advertisements, film, nega- 
tives, photographs, etc. are considered mer- 
chandise, not documents, and claims for 
them are processed in accordance with the 
regulations for Express Mail Merchandise In- 
surance (see 294.3).” 

According to the Postal Bulletin, these changes 
were issued “to clarify insurance coverage and 
improve customer understanding and adminis- 
tration of insurance claims.” See Govern- 
ment’s Brief at 6 n.5.     

 



ments all pho- 

Lransparencies. 

although both 

tion carrying,” 

eans by which 

carried. We 

court’s conclu- 

while in film 

e, do not fit 

given to non- 

Domestic Mail 

Lhis conclusion 

pstion of regu- 

it a layperson 

hey existed as 

asonably con- 

such as Ms. 

Document Re- 

hough we re- 

ally incorrect, 

levant to our 

l claim. See 

able estoppel 

rting a claim 

ise be availa- 

arty who has 

psition in re- 

esentation or 

ial fact. See 

dence § 804 

quitable Es- 

47 Brooklyn 

the United 

as been that 

against the 

drawings, blue 

ts, film, nega- 

onsidered mer- 

nd claims for 

Hance with the 

lerchandise In- 

these changes 

i coverage and 

» and adminis- 

See Govern- 

  

PORTMANN v. UNITED STATES 1159 
Cite as 674 F.2d 1155 (1982) 

Government or any of its agencies.® Origi- 
nally, this view rested largely on considera- 

“tions of sovereign immunity. United States   
v. Georgia-Pacific Co., 421 F.2d 92, 99 (9th 

Cir. 1970). Once it was conceded that the 

government could not be held liable for the 

wrongful acts of its agents, it followed, as a 
logical corollary, that the government could 

not be estopped by the misrepresentations 

or material omissions of its employees.’ 

As the doctrine of sovereign immunity 
eroded, it became necessary to offer other 
justifications for the government's exemp- 
tion from equitable estoppel. 

tification invoked a separation n of | powers 
rationale; proponents argued that permit- 
ting equitable estoppel against the govern- 

ment would, in effect, allow government 
employees to “legislate” by misinterpreting 
or ignoring an applicable statute or regula- 
tion. Judicial validation of such unauthor- 

ized “legislation,” Tit was claimed, would in- 
fringe upon Congress’ exclusive constitu- 
tional authority to make law. Although 
this rationale has some logical appeal, ap- 

plied literally and generally, it would seem 

to preclude any application of estoppel 

against the government including its use in 

areas such as government procurement con- 

6. 2 K. Davis, Administrative Law Treatise 

§ 17.01 at 491-92 (1958). See, e.g., Federal 
Crop Insurance Corp. v. Merrill, 332 U.S. 380, 

68 S.Ct. 1, 92 L.Ed. 10 (1947); Utah Power & 
Light Co. v. United States, 243 U.S. 389, 37 

S.Ct. 387, 61 L.Ed. 79] (1917). 

7. As Professor Davis has noted: 

Sovereign immunity from contract and tort 

liability naturally carried with it sovereign 

immunity from equitable estoppel. A Su- 

preme Court which was freely asserting that 

“The government is not responsible for ... 

the wrongful acts of its officers,” could hard- 

ly assert that the government was estopped 

on account of representations by its officers. 

2 K. Davis, supra note 6, § 17.01 at 492 (quot- 

ing Hart v. United States, 95 U.S. 316, 318, 24 

L.Ed. 479 (1877)). 

8. Pursuant to this rationale, many courts have 
explained their refusal to allow estoppel 

against the government by underscoring ‘‘the 

duty of all courts to observe the conditions 

defined by Congress for charging the public 

treasury,” Federal Crop Insurance Corp. v. 

Merrill, 332 U.S. 380, 385, 683:SC!.], 3, 92 

L.Ed. 10 (1947), and by emphasizing the need 

to prevent the frustration of federal statutes. 

See, e.g., Schweiker v. Hansen, 450 U.S. 785, 

tracts and legal proceedings—areas in 

which the government has long been held 

subject to estoppel principles.’ Moreover, 

such a rigid separation of powers analysis 

contrasts sharply with the more realistic 

and flexible judicial approach to separation 

of powers problems in other areas such as 

legislative delegation. In any event, re- 

liance on a separation of powers rationale 

to preclude estoppel against the govern- 

ment is considerably less persuasive where 

only an _agency’s own regu ations are at 

stake than it would be where adherence to 

government misinformation threatens to 

contravene an explicit statutory require- 

ment. See Note, Equitable Estoppel of the 

Government, 79 Colum.L.Rev. 551, 565-66 

(1979). Cf. Gressley v. Califano, 609 F2d 
1265 (7th Cir. 1979). 

In addition to invoking a separation of 

powers rationale, some courts and commen- 

tators have relied d on public policy consider- 

ations to support the no-estoppel rule, : 
drawing in particular on several early Su- 

preme Court opinions in which the Court 
expressed concern that holding the govern- 

ment bound by the improper acts of its 

agents might promote fraud and collusion, 

101 S.Ct. 1468, 67 L.Ed.2d 685 (1981); Gold- 

berg v. Weinberger, 546 F.2d 477 (2d Cir. 1976), 

cert. denied, 431 U.S. 937, 97 S.Ct. 2648, 53 

L.Ed.2d 255 (1977). 

See, e.g., Russell Corp. v. United States, 537 

F.2d 474, 484 (Ct.CL1976), cert. denied, 429 

U.S. 1073, 97 S.Ct. 811, 50 L.Ed.2d 791 (1977) 

(doctrine of equitable estoppel will be applied, 

in appropriate case, to prevent United States 

from denying existence of a contractual agree- 

ment); Roberts v. United States, 357 F.2d 938, 

946-47 (Ct.C1.1966) (“When the Government is 

acting in its proprietary capacity, it may be 

estopped by an act of waiver in the same man- 

ner as a private contractor.”); United States v. 

Coast Wineries, 131 F.2d 643, 650 (9th Cir. 

1942) (inability of judicial participants to rely 

on statements and stipulations of government 

counsel would produce “delay and confusion 

which would be seriously detrimental to the 

orderly administration of justice”); K. Davis, 

Administrative Law Text § 17.03 at 348 (1972) 

(“The government is estopped every hour by 

agreements, stipulations, concessions, failures 

to object, and representations made by govern- 

ment attorneys.’). 

    
  

      
          

A
E
R
O
 

en 

 



    
  

    

1160 

or lead to the severe depletion of the public 

treasury at the hands of a few enterprising 

individuals.l® Critics of this “traditional” 
view, however, have pointed out that the 

incidence of “improper collusions” has his- 

torically been exceedingly small and that 

large sums of money are not often at stake 

in estoppel cases! Finally, some courts 
and commentators have argued that allow- 

ing estoppel against the government might 

interfere with agency flexibility in chang- 

ing rules and implementing new policies.!? 
More modern decisions, however, have dis- 

credited this rationale, and have noted that 

a concern for administrative efficiency 

should not permit the government to deal 

unfairly or capriciously with its citizens. 

See, e.g., United States v. Georgia-Pacific 

Co., 421 F.2d 92, 100 (9th Cir. 1970); Emeco 

Industries, Inc. v. United States, 485 F.2d 

652, 657 (Ct.C1.1973) (per curiam); Massag- 

10. See, e.g., Utah Power & Light Co. v. United 

States, 243 U.S. 389, 409, 37 S.Ct. 387, 391, 61 

L.Ed. 791 (1917); Lee v. Munroe, 11 U.S. (7 

Cranch) 366, 369, 3 L.Ed. 373 (1813). See gen- 

erally Note, Equitable Estoppel of the Govern- 

ment, 79 Colum.L.Rev. 551, 554 (1979). 

11. See Berger, Estoppel Against the Govern- 

ment, 21 U.Chi.L.Rev. 680, 684 (1954); Note, 

Santiago v. Immigration and Naturalization 

Service—The Ninth Circuit Retreats from its 

Modern Approach to Estoppel Against the 

Government, 1976 Utah L.Rev. 371, 373 n.10. 

Moreover, to the extent that a deterrent against 

public fraud is required, it is supplied by the 

severe criminal sanctions imposed for defraud- 

ing the government. See, e.g., 18 U.S.C. 

§ 1001 (1976). 

12. See e.g., Automobile Club v. Commissioner, 

353 “U.S. 180, 77 S.Ct. 707, 1 L.Ed2d 746 

(1957); Comment, Never Trust a Bureaucrat: 

Estoppel Against the Government, 42 S.Cal.L. 

Rev. 391, 398 (1969). In response to this argu- 

ment, it_has been noted that if the public is 

given sufficient notice of changes in agency 

rules and policies, no estoppel could be based 

on adherence to an old rule, since no justifiable 
reliance. could be shown. 

tic Weaving Co., 355 F.2d 854, 859 (2d Cir. 
1966). 

13. As Professor Davis has stated: 

The law has changed.... The doctrine of 

equitable estoppel does [now] apply to the 

government. Of course, the problem remains 

of determining when estoppel is “equitable” 

and when it is not, and the government for 

“interaction _ with private parties, 

See NLRB v. Majes- 

674 FEDERAL REPORTER, 2d SERIES 

lia v. Commissioner of Internal Revenue, 
286 F.2d 258, 260 (10th Cir. 1961). 

With the growth of the federal govern- 

ment and the broadening of government 

many 
courts have reconsidered their ested to 

‘against the government.’®* One widely ap- 
plied judicial technique for limiting the no- 

estoppel rule posits a distinction between 

the “sovereign” (or governmental) and the 

“proprietary” (or nongovernmental) funec- 

tions of federal agencies. Under this-ap- 
proach, activities by the government under- 

taken primarily for the commercial benefit 
of the government or an individual govern- 

ment agency are subject to estoppel while 
actions involving the exercise of exclusively 

governmental or sovereign powers are not.!s 

The sovereign/proprietary distinction has 

proven to be particularly useful in cases 
involving government contracts. With re- 

that purpose is sometimes affected by special 

considerations. 

K. Davis, Administrative Law of the Seventies, 

§ 1701 at 399 (1976). 

14. See, e.g., United States v. Georgia-Pacific 

Co., 421 F.2d 92, 100-01 & n.17 (9th Cir. 1970): 

Branch Banking & Trust Co. v. United States, 

98 F.Supp. 757 (Ct.CL.1951), cert. denied, 342 

U.S. 893, 72 S.Ct. 200, 96 L.Ed. 669 (1951). See 

generally, Note, Equitable Estoppel of the 

Government, 79 Colum.L.Rev. 551, 555 57 
© (1979). 

15. _ Characteristic _‘‘sovereign’ activities tradi- 

tionally not subject to estoppel include criminal 

prosecutions, see United States v. Mattucci, 

502 F.2d 883 (6th Cir. 1974); interpretation of 

tax statutes, see Automobile Club v. Commis- 

sioner, 353 U.S. 180, 183-84, 77 S.Ct. 707, 709-- 

10, 1 L.Ed.2d 746 (1957); and enforcement of 

health and safety regulations, see Pacific 

Shrimp Co. v. United States Dept. of Transpor- 

tation, 375 F.Supp. 1036, 1042 (W.D.Wash. 

1974). In addition, government actions with 

respect to federal property and Indian lands 

held in trust are normally regarded as ‘“‘sover- 

eign” and thus not subject to estoppel. See, 

e.g, New Mexico v. Aamodt, 537 F.2d 1102, 

1110 (10th Cir. 1976), cert. denied, 429 U.S. 

121,97 S.Ct. 1187, 51 L.Ed.2d 572 (1977); 

United States v. Florida, 482 F.2d 205 (5th Cir. 

1973). But see United States v. Georgia-Pacific 

Co., 421 F.2d 92 (9th Cir. 1970) (applying estop- 

pel against the government in suit involving 

title to land).   
  

 



venue, 

overn- 

nment 

many 

nce to 

itoppel 
ly ap- 

he no- 

tween 

d the 

func- 

his ap- 

nder- 

enefit 

vern- 

while 

sively 

not.1% 

has 

cases 

Lh re- 

ipecial 

bnties, 

Pacitic 

1970); 

btates, 

342 

See 

f the 

b5-57 

tradi- 

minal 

tucci, 

on of 

mis- 

709 

nt of 

acific 

spor- 

Vash. 

Ktop- 

ving 

  
  

PORTMANN v. UNITED STATES 1161 
Cite as 674 F.2d 1155 (1982) 

example, even routine operational contracts 
of federal agencies may be conditioned on a 
variety of special requirements imposed by 
Congress or the Executive for the promo- 
tion of national policy goals, thus adding a 

spect to “proprietary” contracts—that is, 
essentially commercial transactions involv- 
ing the purchase or sale of goods or serv- 
ices—courts have tended to find no signifi- 
cant obstacles to the use of estoppel based 
on the conduct of government agents acting 
within the scope of their actual or apparent 
authority.’ On the other hand, govern- 
ment transactions found to be exercises of 
“sovereign” responsibilities, including a di- 
verse range of loan agreements, subsidies 
and direct grants have continued to be eval- 
uated according to the traditional rule.!? 
Such a distinction between the sovereign 
and proprietary functions of government 
has served as a shorthand reminder that 
“protection of the public welfare and defer- 

~ence to Congressional desires are much 
more apt to outweigh hardships to private 
individuals in the equitable balance when 
estoppel is asserted against sovereign acts,” 
than when purely commercial federal inter- 
ests are at stake.!8 

“Despite its practical appeal, an analysis 
~ focusing solely on a sovereign vs. proprie- 

tary distinction has several significant 
shortcomings. First, the line between sov- 
ereign an proprietary functions is some- 
what artificial and difficult to apply.® For 

16. See, e.g, Emeco Industries, Inc. v. United 
States, 485 F.2d 652, 657 (Ct.C1.1973); Dana 
Corp. v. United States, 470 F.2d 1032, 1045 
(Ct.CL.1972); Manloading & Management As- 
soc., Inc. v. United States, 461 F.2d 1299, 1302- 
03 (Ct.Cl.1972); United States v. Mailet, 294 
F.Supp. 761, 768 (D.Mass.1968); Branch Bank- 
ing & Trust Co. v. United States, 98 F.Supp. 
757, 768-69 (Ct.CL.), cert. denied, 342 U.S. 893, 
72 S.Ct. 200, 96 L.Ed. 669 (1951). See general- 
ly, Note, Equitable Estoppel of the Govern- 
ment, 79 Colum.L.Rev. 551, 556-57 (1979). 

17. See, e.g., Somerville Technical Services v. 
United States, 640 F.2d 1276 (Ct.CL.1981) (fed- 
erally subsidized sewer project); Gressley v. 
Califano, 609 F.2d 1265 (7th Cir. 1979) (federal 
disability benefits); Hicks v. Harris, 606 F.2d 
65 (5th Cir. 1979) (student loans); United 
States v. Florida, 482 F.2d 205 (5th Cir. 1973) 
(title to public park lands). 

18. Santiago v. Immigration & Naturalization 
Serv., 526 F.2d 488, 496 (9th Cir. 1975) (Choy, 
J., dissenting), cert. denied, 425 U.S. 971, 96 
S.Ct. 2167, 48 L.Ed.2d 794 (1976). 

19. See United States v. Georgia-Pacific, 421 
F.2d 92, 101 (9th Cir. 1970) (“While it is said 

“sovereign” element to an otherwise purely 
commercial transaction.2?_ Seco h 
there is some early Supreme Court authori- 
ty to support the distinction,2! more recent 
Supreme Court decisions have either left 
the issue open, see Wilber National Bank v. 
United States, 294 U.S. 120, 55 S.Ct. 362, 79 
L.Ed. 798 (1935), or rejected the sovereign 

  

vs. proprietary dichotomy altogether. See 
Federal Crop Ins. Corp. v. Merrill, 332 US. 
380, 383, 68 S.Ct. 1, 2, 92 L.Ed. 10 (1947); 
Indian Towing Co. v. United States, 350 
U .S. 61, 65, 68, 76 S.Ct. 122, 124, 126, 100 
L.Ed. 48 (1955). Finally, exclusive reliance 
on such a single factor analysis may mask 
or contradict more basic constitutional, 
practical and equitable considerations that 
should be relevant to determining the avail- 
ability of estoppel in any particular case. 
Thus, while we believe that the “proprie- 
tary” or commercial character of the 
government activity at issue in the instant 
case militates in favor of allowing an estop- 

that the Government can be estopped in its 
proprietary role, but not in its sovereign role, 
the authorities are not clear about just what 
activities are encompassed by each.”); United 
States v. City & County of San Francisco, 112 
F.Supp. 451, 454 (N.D.Cal.1953), aff'd 223 F.2d 
737 (9th Cir.), cert. denied, 350 U.S. 903, 76 
S.Ct. 181, 100 L.Ed. 793 (1955) (characterizing 
distinction as ‘“‘somewhat nebulous and per- 
haps attenuated”). See also Note, Equitable 
Estoppel of the Government, 79 Colum.L.Rev. 
551, 557 (1979). 

20. See, e.g.,, M-R-S Mfg. Co. v. United States, 

21. 

492 F.2d 835 (Ct.C1.1974) (reporting procedures 
designed to prevent corrupt bidding practices); 
Exec. Order No. 11246, as amended, 3 C.F.R. 
339 (1964-65 Comp.) (affirmative action re- 
quirements for federal contractors). 

In Cooke v. United States, 91 U.S. 389, 398, 
23 L.Ed. 237 (1875), the Court stated that when 
the federal government “comes down from its 
position of sovereignty and enters the domain 
of commerce, it submits itself to the same laws 
that govern individuals there.” 

/ 
/ 

i 

  

    

  
                

  

            
 



    
    

  
  

  

1162 

pel claim,2 we do not view this factor as 
determinative in all situations. 

IV. 

(The Supreme Court decision most often 

cited as authority for refusing to apply 

estoppel against the government, and relied 

on heavily by the district court in the in- 
stant case, is Federal Crop Insurance Corp. 

| v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 

10 (1947). In Merrill, an agent of the Fed- 
eral Crop Insurance Corp., a government 

corporation established by the Department 

of Agriculture, advised a farmer that the 

spring wheat the farmer intended to plant 

on winter wheat acreage was fully insur- 

able against loss under the Federal Crop 

Insurance Act (FFCIA). The agent's advice 

was incorrect, since a federal regulation 

specifically excluded from coverage spring 

wheat planted on winter wheat acreage. 

Relying on the agent’s representation, how- 

ever, the farmer completed an application 

and the corporation issued him an insurance 

policy. Several months later, the farmer 

lost his crop and sought to recover on his 

policy. His claim was denied on the ground 

that the FCIA regulations excluded the in- 

surance of spring wheat replanted on win- 

ter wheat acreage. The farmer filed suit 

against the corporation, charging that he 

had relied to his detriment on the state- 

ments of the corporation’s agent, and alleg- 

ing that his insurance policy was therefore 

in effect. The Idaho Supreme Court ruled 

in favor of the farmer, finding that the 

corporation’s function was comparable to 

that of a private insurance company, which 

  

  

    

22. See Sections V and VI infra. 

23. The Merrill Court stated: 

It is too late in the day to urge that the 

Government is just another private litigant, 

for purposes of charging it with liability, 

whenever it takes over a business theretofore 

conducted by private enterprise or engages in 

competition with private ventures. Govern- 

ment is not partly public or partly private, 

depending upon the governmental pedigree 

of the type of a particular activity or the 

manner in which the Government conducts 

it. 

332 U.S. at 383, 68 S.Ct. at 3 (footnote omit- 

ted). 

674 FEDERAL REPORTER, 2d SERIES 

would be bound under similar circumstanc- 

es. On the theory that the Government 

was acting in a proprietary, not a sovereign, 

capacity, the state court estopped the corpo- 

ration to deny the validity of the policy or 

the liability of the Government for plain- 

tiff’s loss. 

The Supreme Court reversed in a 5-4 

decision, implicitly rejecting the sover- 

efgn/proprietary distinction relied on by the 

Idaho court, together with that court's at- 
tempt to allow an estoppel claim against 

the government.2 Resting its decision pri- 

marily upon a separation of powers ration- 

ale, the Merrill Court observed that only 
Congress had the authority fo charge the 

public treasury, and noted that persons who 

deal with the government are charged with 

knowledge of the United States statutes as 

well as the federal regulations promulgated 

under them. The Supreme Court conclud- 

ed that since Congress had authorized 

charges against the treasury only to cover 

insurance claims properly brought under 

the FCIA, the Court had no power to en- 

force Merrill's policy, which directly con- 

flicked with the applicable FCIA regula- 

tions. 

  

  

  

  

  

  

  

  

  

At least three significant differences dis- 

tinguish the situation in Merrill from the 

facts of the instant case. First, al the time 

Merrill purchased his insurance, the federal 

government was apparently the only entity 

providing the type of all risk crop insurance 

authorized by the FCIA. Sce 332 U.S. at 

383 n.1, 68 S.Ct. at 3 n.1. Thus, even if 

Merrill had been given accurate informa- 

  

  

  

24. 332 U.S. at 384-85, 68 S.Ct. at 3-4. Further 

on in the majority opinion, Justice Frankfurter 

quoted with approval Justice Holmes’ well 

known admonition, in Rock Island, Arkansas & 

Louisiana-Railroad Co. v. United States, 254 

1.8.14). 143, 41 S.Ct. 35 56, 65 L.Ed. 188 

(1920), that “[m]en must turn square corners 

when they deal with the Government.” In his 

dissenting opinion, Justice Jackson, joined by 

Justice Douglas observed: 

It is very well to say that those who deal with 

the Government should turn square corners. 

But there is no reason why the square cor- 

ners should constitute a one-way street. 

332 U.S. at 337 88 6% S.Ct at 5,   
  

 



    

    

     

  

   

   

   
     

     

      

   
   

    

  

   

   

   
   

circumstanc- 

Government 

t a sovereign, 

bed the corpo- 

the policy or 

int for plain- 

ed in a 5-4 

the sover- 

lied on by the 

at court’s at- 

tlaim against 

| decision pri- 

owers ration- 

ed that only 

0 charge the 

. persons who 

charged with 

s statutes as 

promulgated 

ourt conclud- 

| authorized 

only to cover 

ought under 

power to en- 

directly con- 

"CIA regula- 

ferences dis- 

rill from the 

k, at the time 

b, the federal 

e only entity 

op insurance 

0332 U.S, at 

hus, even if 

ate informa-     
t 3-4. Further 

ce Frankfurter 

Holmes’ well 

id, Arkansas & 

bd States, 254 

65 L.Ed. 188 

square corners 

ment.”’ In his 

son, joined by 

    
   
     

   
   

   
       

     

  

who deal with 

quare corners. 

1¢ square cor- 

tay stroevt, 

J 

     

   
   
     

  

  

  

   PORTMANN v. UNITED STATES 1163 
Cite as 674 F.2d 1155 (1982) 

tion, he would not have been able to pro- 
cure the Insurance he desired from an alter- 
nate private source. Merrill's claim of de- 

trimental reliance on the government’s mis- 
representation was, therefore, relatively 
weak. In the instant case, by contrast, 

Portmann alleges that if the government 
had responded accurately to her inquiries, 
she would not have contracted with the 

Postal Service, but would have elected in- 
stead to do business with a private carrier 

which would have insured her separation 

negatives for their full value. Second, the 

FCIA regulations at issue in Merril] clearly 

and explicitly excluded Irom coverage 

“spr Ch Nas been resee on 

winter wheat acreage in the 1945 crop 
year.” 332 U.S. at 386, 68 S.Ct. at 4, quot- 

ing Sec. 414.37(v) of Wheat Crop Insurance 

Regulations, 10 Fed.Reg. 1591. The postal 

regulation at issue here, by contrast, is any- 

thmg but explicit. Even tf-Portmann had 
eXammmred the regulation independently, 

therefore, it would not have been unreason- 

able for her to have assumed, consistent 

with the postal clerk’s representation, that 

her separation negatives were eligible for 

document reconstruction insurance. Thus, 

the Supreme Court’s admonition in Merrill 

that “[m]en [and women] must turn square 

corners when they deal with the Govern- 

ment,” 2 has little application to the instant 

  

  

  

  

  

  

  

  

25. See Section II supra. Indeed, the govern- 

ment admits in its brief that the Postal Service 

amended the applicable insurance regulations 

shortly after Portmann filed suit in order “to 

clarify insurance coverage and improve cus- 

tomer understanding and administration of in- 

surance claims.” Government’s Brief at 6 n.5. 
See note 5 supra. 

26. 332 U.S. at 385, 68 S.Ct. at 3, quoting Rock 

Island, Arkansas & Louisiana Railroad Co. v. 

United States, 254 U.S. 141, 143, 41 S.Ct. 55, 

56, 65 L.Ed. 188 (1920). = 

27. Petitioner in Montana had been born in Italy 

of a native born American who was temporari- 

ly residing in that country. Prior to the peti- 

tioner’s birth, his mother had requested a pass- 

port from the American Consul so that she 

might return to the United States. The Ameri- 

can Consul apparently declined to issue her a 

passport, explaining, incorrectly, that she could 

not return in her pregnant condition. Because 

of this erroneous information, petitioner's 

mother was still residing in Italy at the time of 

petitioner’s birth. In 1906, petitioner and his 

case. Finally, because the operations of the 

Postal Service are financed almost entirely 

from a self-sustaining fund generated out 

oI the business revenue received by the 

Service, the Merrill Court’s reasoning that 

only Congress has the power to charge the 

public treasury, is similarly inapplicable to 

the instant situation. See Part VI infra. 

  

  

In its more recent decisions, the Supreme 

Court has backed away from its suggestion 
in Merrill that equitable estoppel may never 

  

  

  

be asserted against the federal government. 

In Montana v. Kennedy, 366 U.S. 308, 81 

S.Ct. 1336, 6 L.Ed.2d 313 (1961), the Court 
rejected an alien's attempt to resist depor- 

tation on equitable estoppel grounds, but 

remarked in dicta that the misconduct of 

which the petitioner complained was insuf- 

ficient to estop the government.” This dic- 

tum raised the possibility that certain types 

of governmental misconduct might be suffi- 

cient to create an estoppel. Twelve years 
later, in United States Immigration & Nal- 
er Radu HT US 5% 
S.Ct. 19, 38 L.Ed.2d 7 (1973) (per curiam), 

the Supreme Court, referring to the Mon- 

tana dictum, observed that the Montana 

Court did not pass on the question “whether 

‘affirmative misconduct’ on the part of the 

Government might estop it from denying 

  

  
  

  

parents came to the United States, and resided 
there (although petitioner and his father were 

never naturalized) for the next fifty years until 

petitioner was ordered deported. Resisting the 

deportation order, petitioner argued before the 

Supreme Court that the Government should be 

estopped to deny him citizenship since his 

mother had been prevented from returning to 

the United States before his birth by the erro- 

neous information supplied by the American 
consular official. 

In rejecting petitioner's estoppel claim, the 

Supreme Court noted that as of 1906, the Unit- 

ed States did not require a passport for a citi- 
zen to return to this country, and that petition- 
er had presented no evidence that Italian au- 

thorities imposed such a requirement on Amer- 

-icans desiring to leave Italy at that time. In 
light of these circumstances, the Court held 
that the Consul’s erroneous advice ‘falls far 

short of misconduct such as might prevent the 
United States from relying on petitioner's for- 
eign birth.” 366 U.S. at 314-15, 81. S.Ct. ‘at 
1341. 

& 

  

    
   

  

  

      
      

    

     



    
  

    

  

1164 

citizenship ....” 414 U.S. at 8, 94 S.Ct. at 

21-22. The Court in Hibi, however, again 

rejected petitioner’s citizenship claim, hold- 

ing that the governmental action com- 

plained of could not be characterized as 

“affirmative misconduct,” and, thus, that 

estoppel would not lie against the govern- 

ment. See 414 U.S. at 8-9, 94 S.Ct. at 

21-222 In retrospect, Hibi was not a 
strong case for invoking estoppel against 
  

an appropriate case. 

  

thie government, since not all the requisite 

éléments of an equitable estoppel were 

present.?® In particular, there was no mis- 

representation by the government or its 

agents, but merely a failure to inform Hibi 

of his rights under the Nationality Act of 

1940. See 414 U.S. at 7-8, 94 S.Ct. at 

20-22. Moreover, even assuming that the 

failure to disclose relevant information 

might, under some circumstances, provide 

proper grounds for estopping the govern- 

ment, petitioner in Hibi made no showing 

that he had relied to his detriment on the 

government's silence. Note, Equitable Es- 

  

  

  

  

28. Petitioner in Hibi was a native of the Philip- 

pines who had served with the United States 

Army during World War II. The Nationality 

Act of 1940 provided that non-citizens who had 
served in the United States armed forces during 

World War II could be naturalized, and that 

non-citizens who had served outside the conti- 

nental limits of the United States were exempt 

from the usual citizenship requirements of 
United States residency and proficiency in the 

English language. Applicants for citizenship, 

pursuant to these provisions, were required to 

file naturalization petitions by December 31, 

1946. To assist such applicants, Congress au- 

thorized the appointment of naturalization offi- 

cers who, between 1943 and 1946, traveled to 

several countries and naturalized thousands of 

foreigners. Although such an immigration offi- 

cer was installed in the Philippines in 1945, he 

was removed by the U. S. Attorney General 

shortly thereafter. Accordingly, Hibi, who was 

eligible for citizenship at the time the officer 

was remaved, was never naturalized in the 

Philippines. Hibi came to the United States for 

the first time in 1964 and filed a petition for 

naturalization pursuant to the Nationality Act. 

In his petition, Hibi contended that the United 

States should be estopped to enforce the De- 

cember 31, 1946 deadline, since the govern- 

ment had failed during Hibi’s period of eligibili- 

ty to encourage him to make a timely petition 

for naturalization. 

29. For a classic and oft-cited statement of the 

requirements of an equitable estoppel, see J. 

674 FEDERAL REPORTER, 2d SERIES 

toppel of the Government, 47 Brooklyn 
L.Rev. 423, 439 (1981). 

Thus, although the Supreme Court has 
been extremely reluctant to estop the fed- 
eral government, it has not entirely fore- 
closed the possibility of applying estoppel in 

Indeed, in its most 
recent decision on the subject, the Supreme 
Court expressly stated that “[t]his Court 
has never decided what type of conduct by 
a government employee will estop the 
government from insisting on compliance 

with valid regulations governing the distri- 
bution of welfare benefits.” Schweiker v. 
Hansen, 450 U.S. 785, 788, 101 S.Ct. 1468, 

1470, 67 L.Ed.2d 685 (1981). Moreover, in 

refusing to apply estoppel against the So- 
cial Security Administration in Schweiker, 
the Supreme Court carefully distinguished 

the Social Security issue before it in that 

case from several other situations, not in- 
volving government entitlement programs, 

in which lower federal courts had applied 

estoppel against the government. The 

Court noted that in several of the cases it 

Pomeroy, Equity Jurisprudence § 805 at 191- 

92; 

1. There must be conduct—acts, language, 

or silence—amounting to a representation or 

a concealment of material facts. 2. These 

facts must be known to the party estopped at 

the time of his said conduct, or at least the 

circumstances must be such that knowledge 

of them is necessarily imputed to him. 3. 

The truth concerning these facts must be 

unknown to the other party claiming the ben- 

efit of the estoppel, at the time when such 

conduct was done, and at the time when it 

was acted upon by him. 4. The conduct 

must be done with the intention, or at least 

with the expectation, that it will be acted 

upon by the other party, and, thus relying, he 

must be led to act upon it. 5. He must in 

fact act upon it in such a manner as to 

change his position for the worse .... 

30. See 450 U.S. at 788-89 n.4, 101 S.Ct. at 1471 

n.4. Among the cases distinguished by the 
Schweiker Court were United States v. Lazy 

FC Ranch, 481 F.2d 985 (9th Cir. 1973); United 

States v. Fox Lake State Bank, 366 F.2d 962 

(7th Cir. 1966); Semaan v. Mumford, 335 F.2d 

704 (D.C.Cir.1964); and Walsonavich v. United 

States, 335 F.2d 96 (3rd Cir. 1964). . For a 

discussion of these cases, see Schweiker, 450 

U.S. at 792-93, 101 S.Ct. at 1473 (Marshall, J, 

dissenting).   

  

  

  

 



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PORTMANN v. UNITED STATES 1165 
Citeas 674 F.2d 1155 (1982) 

distinguished, “the government had entered 
into written agreements which supported 
the claims of estoppel,” and that in others, 
“estoppel did not threaten the public fise,” 
as the Court felt it would in Schweiker. 
The instant case arguably exhibits both of 
these distinguishing characteristics. 

In sum, we find nothing in any of the 
Supreme Court's esto fst which 
clearly forecloses the availability of estop- 
pel mn _the instant case—Nordo—we believe 
that this court’s decision in Gressley v. Cali- 
fano, 609 F.2d 1265 (7th Cir. 1979), disposes 
of Portmann’s estoppel argument. Gress- 
ley, like Schweiker, was a government ben- 
efits case, in which a claimant argued that 
erroneous information supplied by a Social 
Security representative should estop the 
government from denying disability bene- 
fits to someone not statutorily entitled to 
receive such benefits. In the instant case, 
unlike Gressley, we are not dealing primari- 
ly with a statutory benefit but more direct- 
ly with a written contract between the 
Postal Service and a private citizen. Under 
the terms of this contract, the Service 
agreed, for a valuable consideration, to 
promptly deliver Portmann’s separation 
negatives to a specified location, or to reim- 
burse Portmann if her articles were lost. 
In reliance on the postal clerk’s assurance 
that this contract included the purchase of 
Document Reconstruction Insurance, Port- 
mann agreed to do business with the Postal 
Service to the exclusion of other express 
carriers who would have insured her separa- 
tion negatives for their full value. As a 
direct result of the government's misrepre- 
sentation, therefore, Portmann was barred 
not from receiving a statutory benefit 
available only from the government (as in 
Gressley and Schweiker), but from collec- 
ting the actual damages she incurred as a 
result of the Postal Service's non-delivery, 
and from contracting with a private entity 
which would have reimbursed her for this 
loss. Cf. Federal Crop Insurance Corp. v. 
Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 

  

  

hat cquitable estoppel 
. . ue. —, available against the government in 
— 

the instant case is supported by numerous 
decisions of this and other courts of appeal. 
As early as 1966, this court, in United 
States v. Fox Lake State Bank, 366 F.2d 
962 (7th Cir. 1966), held the federal govern- 
ment estopped to bring an action under the 
Civil False Claims Act against a bank that 
had relied heavily on the advice of federal 
agents in preparing the disputed claims ap- 
plications. The Fox Lake court held that 
although “the doctrine of estoppel must be 
applied with great caution to the govern- 
ment and its officials . .. in proper circum- 
stances the doctrine does apply.” 366 F.2d 
at 965. Contemporaneous decisions in the 
Third and District of Columbia Circuits 
reached similar holdings. Thus, in Semaan 
v. Mumford, 335 F.2d 704 (D.C. Cir. 1964), 
the District of Columbia Circuit held that 
plaintiff's pleadings and affidavits were 
sufficient to raise a factual issue as to 
whether the Library of Congress, by engag- 
ing in a course of conduct which had led 
plaintiff to believe he had been elevated to 
permanent employee status, was estopped 
to deny plaintiff the procedural rights of a 
permanent employee upon discharge. Simi- 
larly, in Walsonavich v. United States, 335 
F.2d 96, 101 (3rd Cir. 1964), the Third Cir- 
cuit applied estoppel against the govern- 
ment in a federal tax case, ruling that 
although estoppel is rarely invoked against 
the federal government, “there are circum- 
stances where the Government should be 
required by our law to stand behind [its] 
written agreements . .. in order to prevent 
manifest injustice.” See also United States 
v. Gross, 451 F.2d 1355, 1358 (7th Cir. 1971) 
(suggesting that the government may be 
estopped where “the facts upon which the 
private party relied to his detriment were 
addressed or communicated directly to him 
by a government official”); Manloading & 
Management Assoc., Inc. v. United States, 
461 F.2d 1299 (Ct.CL1972) (where agency 
representative, at bidding conference, had 
advised prospective contractor that his con- 
tract would definitely be renewed for the 
next fiscal year, government was estopped 
from reprocuring the contract, in accord- 

  

  

  
  

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1166 

ance with normal agency procedure, at the 

start of the new year); Simmons v. United 

States, 308 F.2d 938, 945 (5th Cir. 1962) (in 

proper circumstances, equitable estoppel 

may be invoked against the United States 

in internal revenue cases). 

More recently, in Mendoza-Hernandez v. 

Immigration & Naturalization Service, 664 

F.2d 635 (7th Cir. 1981), this court declined, 

on the facts before it, to apply equitable 

estoppel against the Immigration and Natu- 

ralization Service (INS) but stated that “af- 

firmative misconduct” which actually preju- 

diced an alien would estop the government 

from denying the alien the relief he re- 

quested. 664 F.2d at 639. In addition, 

cases in the Second, Third and Ninth Cir- 

cuits have squarely held that affirmative 

misconduct on the part of the INS will 

estop the government from insisting on 

compliance with otherwise valid immigra- 

tion regulations. See Corniel Rodriquez v. 

Immigration & Naturalization Service, 532 

F.2d 301 (2d Cir. 1976) (failure of American 

consul to warn prospective alien that she 

would forfeit special immigration status if 

she married before being admitted to the 

United States estopped INS from later de- 

porting alien, who had married her child- 

hood sweetheart three days before leaving 

Dominican Republic); Villena v. INS, 622 

F.2d 1352 (9th Cir. 1980) (where INS did not 

respond to alien’s petition for preference 

classification for almost four years with no 

apparent justification for the delay, INS 

was estopped from claiming that the alien 

had failed to adequately pursue his prefer- 

ence claim); Yang v. Immigration & Natu- 

ralization Service, 574 F.2d 171 (3d Cir. 

1978) (proof of affirmative misconduct on 

part of INS would entitle petitioner to re- 

lief, on equitable estoppel grounds, from 

deportation proceedings). See also Santia- 

go v. Immigration & Naturalization Service, 

526 F.2d 488 (9th Cir. 1975) (estoppel availa- 

ble in the citizenship and immigration con- 

text where there has been affirmative mis- 

conduct on the part of the government). 

31. The Secretary also ruled that the land office 

had no authority to accept Brandt's amended 

offer, since another bid had been filed in the 

674 FEDERAL REPORTER, 2d SERIES 

A series of cases in the Ninth Circuit also 

illustrates the increased judicial willingness 

to entertain estoppel claims against the fed- 

eral government. In United States v. Geor- 

gia-Pacific, 421 F.2d 92 (9th Cir. 1970), the 

Ninth Circuit estopped the federal govern- 

ment from enforcing a contract involving 

the transfer of title to certain forest lands 

against a defendant who had invested a 

considerable sum of money in the property, 

in reliance upon a government land order 

later declared invalid by the Executive 

Branch. The court in Georgia-Pacific sug- 

gested that the federal government could 

be estopped where (1) the government is 

acting in a proprietary capacity; and (2) the 

government agent whose advice has been 

relied upon acted within the scope of his 

authority. 421 F.2d at 100-01. Shortly 

thereafter, in Brandt v. Hickel, 427 F.2d 53 

(9th Cir. 1970), the Ninth Circuit applied 

estoppel against the federal government 

even though the representation relied upon 

was conceded to be unauthorized. In 

Brandt, plaintiff-appellant had submitted a 

noncompetitive oil and gas lease bid to a 

regional Land Management office. The bid 

was rejected because of a technical error, 

but the regional Land Manager allowed 

Brandt 30 days to resubmit her offer, with- 

oul loss of priority. On the basis of this 

representation, Brandt opted to forego an 

appeal of the rejection and, instead, filed an 

amended offer within the 30 day period. 

Subsequently, the Secretary of the Interior 

ruled that the Land Manager's action was 

unauthorized and without effect, and that 

by failing to appeal the rejection of her bid, 

Brandt had forfeited the right to assert the 

validity of her original offer3! The Ninth 
Circuit reversed, holding that the Secretary 

was estopped to disavow the Land Mana- 

ger’s statement even though that statement 

“was unauthorized by statute, regulation, 

or decision.” 427 F.2d at 56. In explaining 

its decision, the Ninth Circuit stated: 

Not every form of official misinformation 

will be considered sufficient to estop the 

government. ... Yet some forms of er- 

interim, thus destroying Brandt's priority. See 

427 F.2d at 55.    



  
   

  

PORTMANN v. UNITED STATES 1167 
Citeas 674 F.2d 1155 (1982) 

roneous advice are so closely connected to 
the basic fairness of the administrative 
decision making process that the govern- 
ment may be estopped from disavowing 
the misstatement. 

427 F.2d at 56. 

Twelve years later, in United States v. 
Lazy FC Ranch, 481 F.2d 985 (9th Cir. 
1973), the Ninth Circuit again applied estop- 
pel against the federal government, this 
time to bar it from maintaining an action to 
recover excess payments made to several 
business partners under the Federal Soil 
Bank Program. The court in Lazy FC 
Ranch held that estoppel should be availa- 
ble even where the government is acting in 
a sovereign capacity “if the government's 
wrongful conduct threatens to work a seri- 
ous injustice and if the public's interest 
would not be unduly damaged by the impo- 
sition of estoppel.” 481 F.2d at 989. Simi- 
larly, in California Pacific Bank v. Small 
Business Administration, 557 F.2d 218 (9th 
Cir. 1977), the Ninth Circuit, citing both 
Lazy FC Ranch and § 320 of the Restate- 
ment (Second) of Contracts, held that 
where a private party seeks to estop the 
government from disavowing an arrange- 
ment it had previously condoned or entered 
into, estoppel should be available “where 
justice and fair play require it,” i.e. where 
the government's change in position threat- 
ens a serious injustice, and the interests of 
the public will not be unduly jeopardized by 
the estoppel claim. 557 F.2d at 224. See 
also Investors Research Corp. v. Securities 
and Exchange Com., 628 F.2d 168, 174 n.34 
(D.C. Cir.), cert. denied, 449 U.S. 919, 101 
S.Ct. 317, 66 L.Ed.2d 146 (1980), (“The fun- 
damental principle of equitable estoppel ap- 
plies to government agencies as well as 
private parties.”). Cf. United States v. Lu- 
cienne D’hotelle- de Benitez Rexach, 558 
F.2d 37, 43 (1st Cir. 1977) (“Although estop- 
pel is rarely a proper defense against the 
government, there are instances where it 
would be unconscionable to allow the 
government to reverse an earlier position.”) 

[3] Recently, in TRW, Inc. v. Federal 
Trade Com., 647 F.2d 942 (9th Cir. 1981), the 
Ninth Circuit reaffirmed its prior decisions 

holding that equitable estoppel could be ap- 
plied against the government “in proper 
circumstances,” United States v. Fox Lake 
State Bank, 366 F.2d 962, 965 (7th Cir. 
1966), and set forth five requirements for 
determining when such circumstances exist: 

First, the party to be estopped must 
know the facts. Second, this party must 
intend that his conduct shall be acted 
upon, or must so act that the party as- 
serting estoppel has a right to believe it is 
so intended. Third, the party asserting 
estoppel must have been ignorant of the 
facts. Finally, the party asserting estop- 
pel must reasonably rely on the other's 
conduct to his substantial injury. 

647 F.2d at 950-51 (citations omitted). In 
addition, the Ninth Circuit noted that “the 
government action upon which estoppel is 
to be based, must amount to affirmative 
misconduct,” which that court defined as 
“something more than mere negligence.” 
647 F.2d at 951. Accord United States v. 
Ruby Co., 588 F.2d 697, 703-04 (9th Cir. 
1978), cert. denied, 442 U.S. 917, 99 S.Ct. 
2838, 61 L.Ed.2d 284 (1979). We believe 
that these factors accurately reflect the 
central equitable considerations relevant to 
determining the availability of estoppel 
against the government in any particular 
case. They should thus form the basis of 
the district court’s inquiry on remand in the 
instant case. We further believe that other 
factors identified in this court’s prior estop- 
pel decisions, including the type of govern- 
ment activity being pursued, the reasona- 
bleness of plaintiff’s reliance, and the po- 
tential danger, posed by estoppel, of under- 
mining important federal interests or risk- 
ing a severe depletion of the public fisc, 
may appropriately be weighed in the equi- 
table balance. See e.g, Strauch v. United 
States, 637 F.2d 477, 482 (7th Cir. 1980); 
Champaign County v. United States Law 
Enforcement Assistance Administration, 
611 F.2d 1200, 1205 n.8 (7th Cir. 1979); 
Gressley v. Califano, 609 F.2d 1265, 1267-68 
(7th Cir. 1979). 

VI. 
Our decision that equitable estoppel may 

be available against the government in the    

  

  

  

    
   
   

  

   

    

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1168 

instant case is also supported by the some- 

what unique, quasi-private status of the 

United States Postal Service. In enacting 

the Postal Reorganization Act of 1970,32 
Congress intended to “[c]onvert the Post 

Office Department into an independent es- 

tablishment within the Executive Branch of 

the Government,” unencumbered by direct 

political pressure and capable of delivering 

the mail in an efficient and “business like” 

manner. H.R.Rep.No.1104, 91st Cong., 2d 

Sess. 1104, reprinted in [1970] U.S.Code 

Cong. & Ad.News 3649, 3650 (emphasis add- 

ed). To effectuate this goal, Congress 

clothed the Service with broad and exten- 

sive powers, including the ability “to sue 

and be sued in its official name,” 39 U.S.C. 

§ 401(1), the power “to enter into and per- 

form contracts, execute instruments, and 

determine the character of, and necessity 

for, its expenditures,” 39 U.S.C. § 401(1), 

and the authority to “settle and compromise 

claims by or against it.” 39 U.S.C. 

§ 401(3). Moreover, except as specifically 

provided for in the Reorganization Act it- 

self, Congress exempted the Postal Service 

from all “Federal law(s] dealing with public 

or federal contracts, property, works, offi- 

cers, employees, budgets or funds.” 39 

U.S.C. § 410 (1976). See H.R.Rep.No.1104, 

91st Cong., 2d Sess., reprinted in [1970] 

U.S.Code Cong. & Ad.News 3649, 3674. In 

addition, by establishing a special self-sus- 

taining Postal Service Fund within the 

Treasury Department, and by entrusting 

the Service with broad financing powers, 

Congress meant to put the Postal Service 

on an independent financial basis, requiring 

only transitional appropriations through the 

Congressional budgetary process. See 

Standard Oil Div., American Oil Co. v.: 

Starks, 528 F.2d 201, 203 (7th Cir. 1975); 39 
U.S.C. §§ 2003-2009 (1976). 

In light of these considerations, virtually 

all courts that have considered the question 

have concluded that the Postal Service is 

32. Act of Aug. 12, 1970, Pub.L.N0.91-375, 84 

Stat. 719, codified at 38 U.S.C. .§ 101 et seq. 

(1976). 

33. These holdings are particularly significant in 

light of the fact that the statutory predecessor 

674 FEDERAL REPORTER, 2d SERIES 

not immune, as is the federal government 

generally, from commercial or judicial gar- 

nishment proceedings. See, e.g., Standard 
Oil Div., American Oil Co. v. Starks, 528 

F.2d 201 (7th Cir. 1975); Beneficial Finance 

Co. v. Dallas, 571 F.2d 125 (2d Cir. 1978); 
May Dept. Stores Co. v. Williamson, 549 

F.2d 1147 (8th Cir. 1977).3 Moreover, in 
reaching this conclusion, this court, in Stan- 

dard Oil Div., American Oil Co. v. Starks, 
took issue, both factually and legally, with 
the Postal Service's contention that it was 

entitled to immunity either because “it 

ha[d] not been ‘launched into the commer- 

cial world’ ” 528 F.2d at 204, or because it 

was performing an exclusively governmen- 

tal function. Speaking for a unanimous 
panel, Judge Wood stated: 

Factually [the Postal Service's] opera- 

tions cannot be described as “exclusively” 

governmental. Indeed most of its work 

is not governmental in nature. The pow- 

ers that are set out in § 401 and outlined 

above in Part II of this opinion are pow- 

ers that are common to any business or- 

ganization. The delivery of mail itself is 

not inherently an operation that must be 

government-operated and in fact is not 

exclusively so operated today. The Unit- 

ed Parcel Service is but one example of a 

private mail delivery system; in addition, 

Consumer Services Corporation in Ohio, 

Private Postal System of America in 

Florida, and American Postal Corporation 

on the West Coast all are presently deliv- 

ering third and fourth class mail. 

528 F.2d at 204. See also Beneficial Fi- 

nance Co. v. Dallas, 571 F.2d 125, 128 (2nd 

Cir. 1978) (Postal Service possesses many 

powers equivalent to a private business en- 

terprise, and competes with private carriers 

in the delivery of non-letter mail). 

We believe that such considerations also 

argue in favor of permitting estoppel 

against the Postal Service in the instant 
situation. In transporting Ms. Portmann’s 

separation negatives, the Service was not 

of the Postal Service, the United States Post 

Office Department, “had been a sovereign fed- 

eral instrumentality, immune from state power 

or regulation." Beneficial Finance Co. v. Dal- 

las, 571 F.2d 125, 128 (2nd Cir. 1978).   
  

 



  

   
  

  

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   IN RE DeMONTE 1169 
Cite as 674 F.2d 1169 (1982) 

performing an inherently sovereign or pecu- 
liarly governmental function. Instead, it 
was competing directly for plaintiff’s busi- 
ness with a number of private express mail 
carriers. Under these circumstances, we 
see no reason why the Postal Service should 
not be held to the same commercial stan- 
dards in dealing with its customers as 
would an analogous private entity. Cf. 
Kennedy Electric Co. v. United States Post- 
al Service, 508 F.2d 954, 959 (10th Cir. 1974) 
(upholding subcontractor’s equitable lien 
against Postal Service despite Service's 
claim of immunity, on grounds that “Ser- 
vice is just as amenable to the judicial 
process as is a private enterprise.”) 

In addition, we think we would do the 
Postal Service no competitive favor by con- 
ferring on it an absolute immunity from 
estoppel in the circumstances of this case. 
As we have suggested, no threat to the 
public fisc is directly involved. But the 
dubious privilege of not being bound by the 
representations of its employees in routine 
commercial transactions would seem to fur- 
ther reflect on the Service's already tar- 
nished reputation as a provider of regular 
and express mail service. Certainly, to em- 
phasize the Postal Service’s position as 
merely one of several competitors for ex- 
press business is to put this case in its own 
realistic context, quite distinct, for example, 
from that of the Social Security Adminis- 
tration in Schweiker v. Hansen. 

Conclusion 

In sum, we hold that the district court 
erred in concluding, as a matter of law, that 
equitable estoppel could not lie against the 
United States Postal Service in the instant 
situation. We therefore reverse the district 
court’s grant of summary judgment in fa- 
vor of the government, and remand for a 
determination whether the factors set out 
in Part V of this opinion warrant the appli- 
cation of estoppel to the facts of this case. 

Reversed And Remanded. 

G 

In re Francis J. DeMONTE, a Witness 
Before the Special September 1981 

Grand Jury. 

Appeal of Francis J. DeMONTE. 

No. 82-1301. 

United States Court of Appeals, 
Seventh Circuit. 

Submitted March 22, 1982. 

Decided March 24, 1982. 

Defendant appealed from order of the 
United States District Court for the North- 
ern District of Illinois, Eastern Division, 
Frank J. McGarr, J., adjudging defendant 
in civil contempt for refusing to testify 
before the grand jury. The Court of Ap- 
peals, 667 F.2d 590, vacated and remanded. 
Thereafter, the United States District 
Court for the Northern District of Illinois, 
Frank J. McGarr, Chief Judge, again found 
grand jury witness in contempt, and appeal 
was taken. The Court of Appeals held that 
district court, using proper procedure, cor- 
rectly found that the government's elee- 
tronic surveillance of grand jury witness 
was lawful, and thus witness was properly 
found in civil contempt for failing to testi- 
fy. 

Affirmed. 

1. Grand Jury <=36.9(2) 

In proceeding in which grand jury wit- 
ness, who refused to testify, claiming that 
government's questions were derived from 
illegal electronic surveillance, was adjudged 
in civil contempt, district court did not 
abuse its discretion by failing to require the 
government to file an affidavit stating 
length of time the surveillance was con- 
ducted, in that court elicited a statement on 
the record from the government attorney 
who conducted investigation that surveil 
lance had been limited to the periods autho- 

  

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