Bonebrake v. Norris

• Decision Date: 09 August 2005
• Docket Number: No. 03-4012.,03-4012.
• Citation: 417 F.3d 938
• Parties: Linda BONEBRAKE, Appellee, v. Larry NORRIS, (originally sued McPherson Unit, Newport, Arkansas), Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

417 F.3d 938

Linda BONEBRAKE, Appellee, v. Larry NORRIS, (originally sued McPherson Unit, Newport, Arkansas), Appellant.

No. 03-4012.

United States Court of Appeals, Eighth Circuit.

Submitted: October 18, 2004.

Filed: August 9, 2005.

Joseph V. Svoboda, argued, Assistant Attorney General, Little Rock, AR, for appellant.

Jeremy B. Lowrey, argued, Sheridan, AR, for appellee.

Before COLLOTON, LAY, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

Linda Bonebrake was convicted in the Yell County, Arkansas, Circuit Court of possession of a controlled substance with intent to deliver. She appealed her conviction without success, but was not incarcerated until over four years after the Arkansas Court of Appeals issued its mandate. Bonebrake filed an application for a writ of habeas corpus in federal court, and the district court granted the motion on the ground that the State's delay in seeking to execute the sentence amounted to a "waiver of jurisdiction" over Bonebrake. Bonebrake v. Norris, 319 F.Supp.2d 928, 932 (E.D.Ark.2003). The State appeals, and we reverse.

I.

On June 11, 1994, following a jury trial in Yell County Circuit Court, Bonebrake was found guilty of possession of a controlled substance with intent to deliver. She was sentenced to twenty years in the Arkansas Department of Corrections and assessed a fine of $2,000. On June 22, 1994, Bonebrake executed a bail bond and was released pending appeal. While awaiting the outcome of her appeal, Bonebrake consulted her counsel on several occasions regarding the status of her case. Her attorney advised her that when the appeal was resolved, the State would let him know and he would inform her, or the State would let her know directly.

The Arkansas Court of Appeals affirmed Bonebrake's conviction on December 6, 1995. Bonebrake v. State, 51 Ark.App. 81, 911 S.W.2d 261, 262 (1995). The Yell County Circuit Court Clerk's Office received and filed the mandate affirming Bonebrake's conviction on December 29, 1995. The mandate included a provision explaining that unless Bonebrake surrendered herself forthwith, her bond would be forfeited.

At some point in December 1995 or early January 1996, the Yell County District Attorney, Bill Strait, received a copy of the opinion affirming Bonebrake's conviction. Strait was aware at the time that Bonebrake was free on bond pending appeal, but does not recall communicating with the clerk's office or taking any other action after receiving the opinion. Strait left office at the end of 1996 and does not recall giving his successor any information about the case or discussing the case with him. The prosecutor's office, moreover, did not have any procedure to track the case or alert anyone after the appeal was decided, or a procedure for apprehending a defendant after a mandate issued. Strait assumed it was a duty of other law enforcement to take the defendant into custody. The Yell County Circuit Court Clerk's Office also failed to notify the sheriff after receiving the mandate.¹ Neither Bonebrake's counsel nor any county official ever contacted Bonebrake regarding the resolution of her appeal.

In or about February 1999, Bonebrake's former brother-in-law, Tommy Smith, became angry at Bonebrake and inquired why Bonebrake was not incarcerated. Smith spoke to Melinda Piatt of the clerk's office, who sent him to the prosecutor's office. Smith was not able to speak with a prosecutor, but he spoke with a secretary who told him that if Bonebrake's appeal had been decided, then any resulting order would have been served.

At the time Bonebrake executed the bail bond, she lived in Russellville, about six miles from the location of the Yell County Circuit Court in Dardanelle. Following that, Bonebrake lived in the Russellville area in Pope County and in neighboring Newton County, and worked in Russellville from 1996 through 2000. The parties stipulated that during the period between her appeal and her eventual arrest, Bonebrake was not in hiding. Bonebrake regularly encountered officers from the Pope County Sheriff's Office in the years between her appeal and her arrest, and she continued to visit a family doctor in Yell County.

Bonebrake was arrested in July 2000 by the Pope County Drug Task Force, but was released on the same day. The record seems to indicate that this arrest was based on the 1994 conviction and sentence in Yell County, as opposed to alleged new criminal activity, but it does not explain what prompted Pope County authorities to act in July 2000, or why Bonebrake was released shortly after the arrest. Less than a week later, Bonebrake read a front-page newspaper article that said she had been in hiding. Bonebrake then contacted the Yell County Sheriff's Office and turned herself in.

Bonebrake immediately began to serve her sentence in July 2000. On November 28, 2000, she filed her habeas corpus petition. Following two evidentiary hearings, the district court granted the petition on December 4, 2003.

II.

The district court granted Bonebrake's habeas petition based on what has come to be known as the "waiver theory" of jurisdiction. Under this interpretation of the Due Process Clause of the Fourteenth Amendment, introduced by the Fifth Circuit in Shields v. Beto, 370 F.2d 1003 (5th Cir.1967), the State's "lack of interest" in effecting incarceration of a defendant is "equivalent to a pardon or commutation," and amounts to "a waiver of jurisdiction" that precludes the State from incarcerating the defendant. Id. at 1006. Shields involved what the court described as "28 years of inaction on the part of the State of Texas" between a conviction in 1933 and an effort in 1962 to require that Shields serve the balance of prison sentences imposed for the 1933 conviction.

Our court adopted the waiver theory in 1978, and remanded a habeas corpus action for an evidentiary hearing, where a criminal defendant's judgment and commitment forms "lay unexecuted in the hands of the Marshals for over seven years." Shelton v. Ciccone, 578 F.2d 1241, 1244 (8th Cir.1978). We said that the defendant Shelton's allegations permitted "an inference that although aware of Shelton's whereabouts, the Marshals purposely or out of extreme neglect did not attempt to execute the judgment and commitment papers for seven years." Id. at 1245. Shelton's claims also suggested that the Marshals may have chosen finally to make an arrest in response to a civil action filed in the State of Tennessee, in which Shelton's presence apparently was desired. Under these circumstances, our court held that "[s]uch inferences, if proven to be true, constitute gross negligence or an arbitrary and unwarranted exercise of their powers by the U.S. Marshals." Id. Applying the Shields rationale, we held that the record was sufficient to permit an inference that Shelton had been denied due process.

We later explained that the waiver theory is "premised on the fourteenth amendment's protection against arbitrary and capricious state action." Camper v. Norris, 36 F.3d 782, 784 (8th Cir.1994). We emphasized that a habeas petitioner invoking the waiver theory bears a heavy burden to show that the "`state's action [was] so affirmatively wrong or its inaction so grossly negligent that it would be inconsistent with "fundamental principles of liberty and justice" to require a legal sentence to be served in the aftermath of such action or in action.'" Shelton, 578 F.2d at 1244 (quoting Piper v. Estelle, 485 F.2d 245, 246 (5th Cir.1973)). We rejected claims of a habeas petitioner in Camper who complained of a four-year delay in execution of his sentence, and of a petitioner in Mathes v. Pierpont, 725 F.2d 77 (8th Cir.1984), who cited a seven-year lapse, because they did not meet the standard articulated in Shelton.

The district court granted habeas corpus relief in this case based on its conclusion that "the State's inaction was so grossly negligent that requiring [Bonebrake] to serve her sentence would be unequivocally inconsistent with fundamental principles of liberty and justice." 319 F.Supp.2d at 932. In reaching this decision, the district court took into account the circuit clerk's office's failure to notify the sheriff after receiving the mandate, the lack of an effective record-keeping procedure in the prosecutor's office, the failure of the prosecutor to inform his successor about the case, the failure of the prosecutor's office to take action in light of Tommy Smith's inquiries, and the fact that Bonebrake was present in Yell County on several occasions after the mandate issued in Bonebrake's appeal. Id. The district court found that Bonebrake was not responsible for the delay in her incarceration and was not aware that her appeal had been denied. Id.

In reviewing this conclusion, we must consider not only our precedent in Shelton, but also the Supreme Court's more recent decisions concerning the substantive protections of the Due Process Clause of the Fourteenth Amendment. The waiver theory developed in the 1960s under the rubric of substantive due process, and it was founded on the Fifth Circuit's application of Supreme Court decisions of the 1940s. See Shields, 370 F.2d at 1004 (citing Buchalter v. New York, 319 U.S. 427, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943) and Foster v. Illinois, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955 (1947)). Since then, the Supreme Court has defined more precisely the analysis required in cases alleging a violation of substantive rights based on the Due Process Clause.

In County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the Court explained that in cases challenging executive action on substantive due process grounds, the "threshold question" is whether the behavior of the governmental officer is so egregious as to "shock the contemporary conscience." 523 U.S. at 847 n. 8, 118 S.Ct. 1708. The Court emphasized that "only the most egregious official conduct can be said to be arbitrary in the...