Burgin v. Broglin
| Decision Date | 10 April 1990 |
| Docket Number | No. 88-2916,88-2916 |
| Citation | 900 F.2d 990 |
| Parties | James A. BURGIN, Petitioner-Appellee, v. G. Michael BROGLIN, et al., Respondents-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Kathryn Butler O'Neall, O'Neall & O'Neall, Remington, Ind., for petitioner-appellee.
Michael A. Schoening, Deputy Atty. Gen., Indianapolis, Ind., for respondents-appellants.
Before WOOD, Jr., COFFEY and MANION, Circuit Judges.
Respondent-appellant, G. Michael Broglin, Superintendent of the Westville (Indiana) Correctional Center appeals from the district court's grant of a writ of habeas corpus to petitioner-appellee, James A. Burgin, under 28 U.S.C. Sec. 2254. Burgin's failure to bring evidence relevant to the existence of an alleged plea agreement between the State and his accomplice, Marlene Beitler, to the attention of the state court during his direct appeal effectively waived his right to challenge the state court's rulings in a federal habeas proceeding based on this evidence. We reverse.
James Burgin was convicted of a felony in the Indiana state court system, dealing in a controlled substance, and was sentenced to a period of 14 years of confinement following a jury trial. The conviction resulted from a November 5, 1987, drug transaction in which Burgin and his girlfriend, Marlene Beitler, sold LSD to an undercover police detective at the residence Burgin and Beitler shared. During the meeting between Burgin, Beitler and Allen County, Indiana, Police Detective Steven J. Hamilton, Beitler asked if Hamilton wished to purchase acid (LSD). When Hamilton responded in the affirmative, Beitler left the room to obtain the LSD from the refrigerator. During the ensuing conversation between Hamilton and Burgin, a price of $80 was agreed upon. Burgin refused to handle drugs in Hamilton's presence and stated during their discussion that he had been "busted" previously on drug charges and thus was more cautious with the persons with whom he dealt. Upon Beitler's return, she handed the drugs to Hamilton, who, in turn, passed the $80 to Burgin who counted and pocketed the money.
At Burgin's trial Hamilton and Beitler were the principal prosecution witnesses and their respective testimony corroborated each other concerning the drug conspiracy. Beitler further testified that while she helped Burgin store the drugs, Burgin retained all the proceeds from the drug sales.
During the state court trial there was some testimony during Beitler's direct and cross-examination on the question of whether the state had failed to disclose the alleged fact that Beitler had been offered favorable treatment from the state in exchange for her testimony against Burgin. During her direct examination, Beitler denied that she had any deal or had reached an agreement with the prosecution:
MR. GRIMM (Defense Attorney): We will object to this your Honor. Seems like it should be improper for him to try and create in the minds of the jury the fact that there is no arrangement or no anything and that the woman is going to just sit here and tell the truth. They can draw that conclusion, we think, on her testimony.
Under defense attorney Howard Grimm's vigorous cross-examination, Beitler admitted that her case had been continued because she agreed to testify against Burgin but reaffirmed her prior statement that no negotiations had taken place:
Following Burgin's conviction for dealing in a controlled substance, and pursuant to a plea agreement, Beitler's charge was reduced from a Class B felony to a Class D felony. 1 Beitler was then given a prison sentence of two years that the sentencing judge suspended on the condition she serve six weekends in the County Jail.
Burgin filed a direct appeal of his conviction to the Indiana Supreme Court raising as one issue the question of whether the state impermissibly failed to disclose an agreement made with Beitler for her testimony. 2 The Indiana Supreme Court affirmed Burgin's conviction in Burgin v. State, 475 N.E.2d 1155 (Ind.1985). In disposing of the question of whether the non-disclosure of Beitler's alleged plea agreement prejudiced Burgin, the court stated:
Burgin v. State, 475 N.E.2d at 1156-57.
After the Indiana Supreme Court had denied Burgin's contentions regarding the plea agreement, Burgin, incarcerated at the Westville Corrections Center, Westville, Indiana, filed a 28 U.S.C. Sec. 2254 petition for habeas corpus in federal court on December 4, 1985. The petition was based upon evidence that Burgin's son, Jeffrey Burgin, 14 years of age, allegedly overheard a conversation between Beitler, her attorney and the prosecutor that took place prior to Beitler's testimony against Burgin during the trial on Burgin's state drug charge. During this alleged conversation the parties supposedly discussed an agreement in which Beitler would plead guilty to a lesser charge and receive a reduced sentence in exchange for her testimony against Burgin. The record states that this evidence was discovered "shortly after" Burgin commenced his confinement. However, Burgin's post-conviction petition and the testimony of his son Jeffrey fails to reflect when, in relation to the date of Burgin's confinement, he (Burgin) actually became aware of the details of the evidence. Interestingly, at oral argument, in order to defeat the state's argument on the exhaustion issue, Burgin's attorney stated that "Burgin became aware of what his son had overheard prior to the filing of his appellate brief" before the Indiana Supreme Court, and we accept as true and accurate, her characterization of the time of Burgin's knowledge. 3 In spite of his knowledge of this alleged conversation during the pendency of his state court appeal, Burgin failed to bring the evidence of the conversation Jeffrey Burgin supposedly overheard to the attention of the Indiana state courts. We see no reason why this evidence was not brought to the attention of the Indiana Supreme Court, and Burgin's failure to present this evidence leaves us with a grave doubt as to whether this alleged conversation took place, much less was overheard for this information, if true, would certainly add to his argument. We note that this alleged "new" evidence is the only difference between the record presented in Burgin's unsuccessful attempt to reverse his conviction on the basis of the state's alleged non-disclosure of Beitler's plea agreement in his state court appeal and his attempt to upset his conviction on this same basis in federal habeas corpus proceedings.
The district court granted Burgin's habeas corpus petition on the basis of the alleged newly discovered evidence. 4 The district court concluded that while it had "some lurking doubt" about whether Burgin had exhausted his state remedies, it ruled that Burgin had exhausted these remedies because he would likely be unable to obtain Indiana state post-conviction relief in light of the Indiana Supreme Court's adverse ruling in his direct appeal concerning the nondisclosure of Beitler's alleged plea agreement. The district court ruled, despite its "lurking doubt" on the exhaustion question, that Burgin had been deprived of due process of law in that the state failed to disclose Beitler's alleged plea agreement to Burgin or to correct Beitler's erroneous testimony concerning the absence of a plea agreement, in effect, denied Burgin his right to due process of law. Neither party raised the question of whether Burgin's failure to bring the evidence of the alleged overheard conversation between Beitler and the prosecuting attorneys to the state courts' attention before instituting a federal proceeding constituted a procedural default. Thus, neither the attorneys nor the district court addressed the procedural default issue. 5
The Indiana Supreme Court's decision on the question of the non-disclosure of Beitler's alleged plea agreement in Burgin's direct appeal turned upon the fact that "[t]here is no evidence ... that there was a failure on the part of the state to disclose an arrangement between the state and Beitler." 6 In determining the initial question...
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