558 F.2d 292 (5th Cir. 1977), 76-1065, Hardwick v. Doolittle

Docket Nº:76-1065.
Citation:558 F.2d 292
Party Name:Bobby HARDWICK, Petitioner-Appellant, v. Ollie DOOLITTLE, Jailer and William Anderson, Sheriff, Respondents-Appellees.
Case Date:August 29, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 292

558 F.2d 292 (5th Cir. 1977)

Bobby HARDWICK, Petitioner-Appellant,


Ollie DOOLITTLE, Jailer and William Anderson, Sheriff,


No. 76-1065.

United States Court of Appeals, Fifth Circuit

August 29, 1977

Rehearing and Rehearing En Banc Denied Oct. 25, 1977.

See 561 F.2d 630

Page 293

A. Russell Blank, Atlanta, Ga., for petitioner-appellant.

Richard L. Powell, Robert C. Daniel, Jr., Richmond County Atty., Augusta, Ga., for respondents-appellees.

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

Before TUTTLE, CLARK and RONEY, Circuit Judges.

TUTTLE, Circuit Judge:

Twenty two years before Congress in 1867 first authorized federal courts to entertain writs of habeas corpus on behalf of state prisoners, Ex parte Partington, 13 M. & W. 679, 683-84, 153 Eng.Rep. 284, 286 (Ex. 1845), described a particularly persistent habeas petitioner:

"This case had already been before the Court of Queen's Bench, on the return of a habeas corpus, and before my Lord Chief Baron at chambers, on a subsequent application for a similar writ. In both instances the discharge was refused. The defendant, however, has a right to the opinion of every court as to the propriety of his imprisonment, and therefore we have thought it proper to examine attentively the provisions of the statute, without considering ourselves as concluded by these decisions."

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Appellant Hardwick has been no less persistent: he has filed more than a score of actions contesting his conviction and protesting the conditions of his confinement. Cf. Cox v. Hakes, 15 A.C. 506, 527 (H.L.1890) ("A person detained in custody might thus proceed from court to court until he obtained his liberty."). Although Hardwick has been partially successful, see Hardwick v. Ault, 517 F.2d 295 (5th Cir. 1975); Hardwick v. Ault, 515 F.2d 1181 (5th Cir. 1975), he still stands convicted of two counts of armed robbery and two counts of aggravated assault, for which he is currently serving two life sentences and two ten-year sentences which are to run consecutively.

Following a December 19, 1969 daytime robbery of the C&S Bank in Augusta, Georgia, Hardwick and a codefendant were indicted on one count of armed robbery and one count of aggravated assault. Both men had been arrested within minutes of the robbery after a chase/shootout through downtown Augusta. When he was apprehended, Hardwick had the proceeds of the robbery (over $43,000) in his possession and was armed with a .38 caliber revolver. He pleaded not guilty to both counts of the indictment.

On January 8, 1970, Hardwick preempted his state trial scheduled for that day by filing a petition for removal in the United States District Court for the Southern District of Georgia, invoking that court's jurisdiction pursuant to the civil rights removal statute, 28 U.S.C. § 1443. Notwithstanding the command of 28 U.S.C. § 1446(e) that "the State court shall proceed no further unless and until the case is remanded," the Georgia tribunal permitted the prosecution to continue. A jury convicted Hardwick on both counts and sentenced him to life imprisonment on the armed robbery count and to ten years on the aggravated assault count, the sentences to be served consecutively.

The United States district court ultimately ordered a remand on January 16, 1970, but later held on habeas that the Georgia court had no jurisdiction to try Hardwick while his case was pending in federal court and that therefore the conviction so obtained was void. The district court ordered that Hardwick be retried or released.

On September 12, 1972, the Georgia trial court called Hardwick's case for retrial on the original indictment. Hardwick entered a special plea of insanity which was tried to a jury that returned a verdict against the special plea. The next day Hardwick filed a second petition for removal to the federal district court, but the case was remanded. Georgia v. Hardwick, Cr. No. 5521 (S.D.Ga. December 22, 1972), aff'd, 481 F.2d 1402 (5th Cir. 1973), cert. denied, 414 U.S. 1074, 94 S.Ct. 590, 38 L.Ed.2d 481 (1973). Following this second remand, Hardwick's case was scheduled for trial on January 8, 1973 but continued through February due to illness of defense counsel. On February 20, 1973, the prosecutor obtained a superseding indictment, charging Hardwick alone with two counts of armed robbery and two counts of aggravated assault. Following a renewed special plea of insanity which was denied, Hardwick was tried on the second indictment on March 13, 1973. He stood mute. The jury convicted him on all four counts, and sentenced him to serve consecutively two life sentences and two ten-year terms.

Hardwick now appeals from the district court's denial of his petition for habeas corpus and from that court's order enjoining him "from raising again in any court of the State of Georgia, or in the United States District Courts for the Northern, Middle, and Southern Districts of Georgia, the issues resolved adversely to petitioner in this habeas corpus proceeding." The state not only argues that the actions of the district court should be affirmed, but also asks this Court to extend the injunction to "further restrain and enjoin (Hardwick) from litigating any further issues concerning his conviction and confinement."


We consider the propriety of the injunction first, because regardless of whether we affirm or reverse the district court's disposition

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of the merits of this petition, the injunction operates as a continuing restraint upon appellant's ability to press the claims raised in the petition. We assume arguendo that Hardwick has made rather prodigal use of the privilege of the Great Writ. The question, then, is whether abuse of the opportunity to seek habeas corpus relief is adequate justification for an injunction forbidding relitigation of previously raised claims.

In issuing the injunction, the district court relied on its All Writs authority, see 28 U.S.C. § 1651, as interpreted by Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631 (5th Cir. 1971), cert. denied, 404 U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 255, and International Assoc. of Machinists & Aerospace Workers v. Nix, 512 F.2d 125 (5th Cir. 1975). In Kinnear-Weed, we held that the district court had properly employed All Writs authority to enjoin a private party from further prosecuting issues in a patent infringement suit that had been fully and fairly litigated in the district court and on appeal. We noted, however, that "the injunction does no more than embody the principles of res judicata and collateral estoppel." 441 F.2d at 637. In the Nix case, this Court upheld the use of All Writs authority to prevent private relitigation in state court of labor law claims fully and fairly decided in federal court. At the same time, we were careful to point out that the scope of an order prohibiting relitigation must be equal to, but not more than, the scope of the doctrines of res judicata and collateral estoppel. 512 F.2d at 130-132. The lesson of these two cases is that the boundaries of res judicata and collateral estoppel may be protected by an injunction and when necessary to prevent harassment of successful litigants. Accord, Southwest Airlines Co. v. Texas International Airlines, Inc., 546 F.2d 84 (5th Cir. 1977).

Neither case, however, is authority for an injunction prohibiting relitigation of claims on habeas corpus, because the doctrines of res judicata and collateral estoppel are not applicable in habeas proceedings. At common law, there was no limit on the number of times a prisoner might attempt to obtain relief via habeas corpus. Sanders v. United States, 373 U.S. 1, 7-14, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). And in the landmark case of Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989 (1924), the Supreme Court confirmed that no such limitation would be enforced in the federal courts. Salinger had previously litigated the merits of his claim in one habeas proceeding and had lost. When he raised the same issue in two separate and additional habeas actions, the Government contended that Salinger's defeat in the first suit barred reconsideration of the issue under the principles of res judicata. A unanimous Supreme Court held:

"At common law the doctrine of res judicata did not extend to a decision on habeas corpus refusing to discharge the prisoner. . . . (T)his Court has conformed to (that rule) and thereby sanctioned it, although announcing no express decision on the point. . . . we regard the rule as well established . . . . (E)ach application is to be disposed of in the exercise of a sound judicial discretion."

265 U.S. at 230-31, 44 S.Ct. at 521.

But the Salinger Court also held that habeas courts need give no more than summary consideration to repetitive petitions, see 265 U.S. at 231-32, 44 S.Ct. 519, and applied that rule the same day in the case of Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924). In Wong Doo the petitioner sought habeas corpus on a ground that he had alleged in a prior petition but failed to prove at a hearing. The Court held it was proper to deny relief where

"(t)he petitioner had full opportunity to offer proof of (the claim) at the hearing on the first petition; and, if he was intending to rely on that ground, good faith required that he produce the proof then. To reserve the proof for use in attempting to support a later petition, if the first failed, was to make an abusive use of the writ of habeas corpus."

265 U.S. at 241, 44 S.Ct. at 525.

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The Supreme Court's more recent decisions make it clear that a state prisoner is not limited as to the number of times he may seek habeas relief in the...

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