Bumgarner v. Bloodworth, 84-2431
| Decision Date | 24 July 1985 |
| Docket Number | No. 84-2431,84-2431 |
| Citation | 768 F.2d 297 |
| Parties | Joseph L. BUMGARNER, Appellant, v. Harry BLOODWORTH, Individually and in his official capacity as Sheriff of Poinsett County, Arkansas; Gene Henderson, Individually and in his official capacity as Deputy Sheriff for Poinsett County, Arkansas, Appellees. Joseph L. BUMGARNER, Appellant, v. Lohnes T. TINER, Individually and in his official capacity as a practicing attorney in the State of Arkansas; David Burnett, Individually and in his official capacity as Prosecuting Attorney for the Second Judicial District of Arkansas; Noyl Houston, Individually and in his official capacity as Deputy Prosecuting Attorney for Poinsett County, Arkansas; Bill Caplinger, Individually and in his official capacity as a State informant; Patty Bumgarner, Individually and in her official capacity as a State informant, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Joseph L. Bumgarner, pro se.
Curtis L. Nebben, Deputy Atty. Gen. of Ark., for appellees.
Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.
Joseph L. Bumgarner appeals from the final judgment of the District Court 1 for the Eastern District of Arkansas dismissing four actions. They include one habeas corpus petition, 28 U.S.C. Sec. 2254, and three related 42 U.S.C. Sec. 1983 claims. For reversal Bumgarner argues that the district court erred in dismissing the actions for failure to exhaust, for failure to state a claim and as frivolous. We affirm.
A detainer was filed against Bumgarner while he was an inmate of the United States Prison in Terre Haute, Indiana. He was transferred to Poinsett County Jail in Harrisburg, Arkansas, to stand trial for burglary and aggravated robbery. While he was in the county jail, Bumgarner was in an "open" cell on the same floor with one of his codefendants, Billy Caplinger. Bumgarner's wife, a third codefendant, was in the same prison on another floor.
Caplinger and Mrs. Bumgarner were represented by Attorney Lohnes T. Tiner who is a defendant in one of the Sec. 1983 actions. Bumgarner opted to proceed pro se in his defense to the charges. During the trial preparation Tiner took a sworn statement from Mrs. Bumgarner on behalf of Caplinger. Apparently Mrs. Bumgarner cooperated with Tiner in his defense of Caplinger.
Bumgarner alleged that, not knowing who was representing whom, nor the trial strategies of his codefendants, he gave information to his codefendants concerning the facts of the case, as well as the nature of his plan to defend himself. Bumgarner contends that this information was drawn from him in a fraudulent manner in a conspiracy to deny him a fair trial pursuant to the sixth amendment.
Shortly before the trial, Bumgarner was accused of offering a bribe to a jail trusty in exchange for a key to his cell. As a result, Bumgarner was placed in "deadlock" status (an isolated cell) until the end of his trial. Bumgarner alleges that as a result of his status his mail was intercepted and read (in order for the state to learn his legal defense), his telephone calls were monitored and recorded, and his visitation rights were revoked. Bumgarner contends these acts violated the eighth and sixth amendments to the United States Constitution.
The district court dismissed Bumgarner's petition for a writ of habeas corpus because Bumgarner had not exhausted his state remedies. Bumgarner was sentenced in Arkansas to life in prison for his participation in a burglary and aggravated robbery. The conviction was affirmed on appeal. Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983).
Eight of Bumgarner's grounds for a writ of habeas corpus were not raised on direct appeal, but were included in a subsequent "Petition for Writ of Error Coram Nobis". The Arkansas Supreme Court treated the coram nobis petition as a petition for rehearing and denied it. In doing so, the court did not rule on the merits of the eight issues raised here, because issues first raised in a petition for rehearing will not be considered in connection with direct appeal. Therefore, the eight claims are unexhausted, and the State of Arkansas concedes that Bumgarner may file a post-conviction petition under Ark.R.Crim.P. 37 and raise these issues.
We agree with the district court's dismissal. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
Bumgarner filed a Sec. 1983 complaint against attorney Tiner, prosecuting attorneys Burnett and Houston, codefendant Caplinger and codefendant and ex-wife Patty Bumgarner alleging that the defendants conspired to deny him his right to counsel. He contends that Caplinger and Mrs. Bumgarner were placed in proximity to him (same jail house, same floor) in order to coax his defense from him. He alleges that these conversations, while made on the representation that they were all "in the same boat" amounted to a violation of his sixth amendment right to counsel.
We disagree. In these circumstances, to show that the state violated his sixth amendment right to counsel, the petitioner must show that the state placed an informant in his proximity in order to gain incriminating information from him, and that he in fact divulged incriminating information without the assistance of counsel. See United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) ().
Such is not the case here. Bumgarner has not alleged that he divulged privileged information that was used against him, see United States v. Zabel, 767 F.2d 928, 929 (8th Cir. 1985) (per curiam), and the material available to us discloses none.
Bumgarner filed a Sec. 1983 action seeking damages for his being placed in "deadlock" cell status without a hearing or written reasons. Deadlock status is akin to isolation in that it involves incarceration in a private cell. A few days before trial, Bumgarner was alleged to have offered a prison trusty a large sum of money in exchange for a key to his cell. After his behavior was reported, Bumgarner was placed in "deadlock" in order to prevent a possible escape. The bribery charge was discussed with Bumgarner at a pretrial hearing on his criminal charge shortly before trial and the "deadlock" status was reported further to the state trial judge at commencement of the criminal trial. Bumgarner, of course, attended and participated in his trial with access to appointed standby counsel. However, he was not removed from "deadlock" until he was convicted and sentenced on July 16, 1982. Bumgarner claims that the isolation violated his sixth, eighth, and fourteenth amendment rights. We disagree and find no merit in Bumgarner's contentions.
The United States Supreme Court has stated:
Hewitt v. Helms, 459 U.S. 460, 467, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983) (quoting Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974)).
Clearly, Bumgarner had appeared to have created a substantial security risk of flight justifying his exclusion from the general prison population. We view the nature of his segregation as " 'administrative segregation [,which] is not punitive and ... looks to the present and the future rather than to the past.' " Jones v. Mabry, 723 F.2d 590, 594 (8th Cir.1983) (quoting Kelly v. Brewer, 525 F.2d 394, 399 (8th Cir.1975)), cert. denied, --- U.S. ----, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984).
Nor, as the district court observed, was there any significant prejudice to trial preparation. Appellant had several months within which to prepare for trial. There is no indication that a partial loss of privileges for a few days, if it occurred, in any way hampered the defense.
Likewise we find no merit to his eighth amendment claim. Bumgarner has not alleged facts which, if proved, would establish that his isolation was cruel and/or unusual. See Hutto v. Finney, 437 U.S. 678, 681-84, 98 S.Ct. 2565, 2568-2570, 57 L.Ed.2d 522 (1978).
Bumgarner alleges that his constitutional rights were violated while he was in isolation because his letters were opened, his visitation was curtailed and his phone calls were monitored and recorded.
With respect to his allegation that he has had his mail opened, Bumgarner does not allege that the mail was privileged legal mail...
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