Hudson v. Whitley, 91-3352

• Citation: 979 F.2d 1058
• Decision Date: 10 December 1992
• Docket Number: No. 91-3352,91-3352
• Parties: Larry HUDSON, Petitioner-Appellant, v. John P. WHITLEY, Warden, Louisiana State Penitentiary, et al., Respondents-Appellees. Fifth Circuit
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1058

979 F.2d 1058

Larry HUDSON, Petitioner-Appellant v. John P. WHITLEY, Warden, Louisiana State Penitentiary, et al., Respondents-Appellees.

No. 91-3352.

United States Court of Appeals,Fifth Circuit.

Dec. 10, 1992.

Larry Hudson, pro se.

Robyn G. Gulledge, Asst. Dist. Atty., Charmagne A. Padua, Dist. Atty., New Orleans, La., for respondents-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, WILLIAMS and DUHE, Circuit Judges.

PER CURIAM:

Larry Hudson is serving a life sentence in the Louisiana State Penitentiary as a result of his December 2, 1967 conviction for first degree murder. Pro se and in forma pauperis, he appeals the district court's dismissal for abuse of the writ of this successive federal habeas corpus petition. See Rule 9(b) of the Rules Governing § 2254 cases. Maintaining his innocence throughout, Hudson contends that his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were violated almost twenty-five years ago by the state's suppression of crucial evidence favorable to the defense--namely evidence that the state's only eyewitness, and linchpin of its case, originally identified someone else as a participant in the armed robbery and murder, and that person had been arrested.

Contrary to the district court, we conclude that Hudson had good cause for failure to make his claim earlier. We remand to the district court for its determination as to prejudice resulting from his being unable to raise the critical issue earlier. Moreover, we hold the district court should reconsider its alternative decision dismissing Hudson's petition on the merits because of later case developments. We remand for these purposes.

I. FACTS AND PRIOR PROCEEDINGS

In the early morning hours of May 15, 1967, Oscar Meeks, the manager of a New Orleans service station, was held at gunpoint in an attempted robbery. Frank Wilson, his assistant and the only eyewitness, testified that three men entered the small, but well-lighted office of the station where Meeks and Wilson were working. One of the three men inquired as to the cost of repairing a flat tire. When Meeks answered, one of the trio later identified by Wilson as Hudson drew a gun and demanded money. Meeks resisted, and in the melee that followed, Meeks was pushed through the office door and shot. Wilson testified that at this point he ran from the office through a side door. He went about a block and a half but then returned to the station. When he arrived, two of the robbers had fled, and Meeks, wounded, was holding the other robber, later identified as John Duplessis, at gunpoint. Meeks subsequently died from the gunshot wound. ¹

In Hudson's motions filed prior to his 1967 first degree murder trial, he sought disclosure of, among other things, the number and identities of any persons arrested in connection with the crime as well as the identity of any such persons released after the investigation. ² Further, Hudson filed a "Motion for Oyer" in which he sought "copies of police report of investigation made in this case." The state refused to furnish any information in response to Hudson's motions for bill of particulars as well as his "Motion for Oyer." ³

At trial, the state presented only Wilson's testimony to identify Hudson as the man who shot Meeks during the attempted armed robbery. Wilson's alleged identification of Hudson was contested at trial. During trial, Wilson testified that he had identified Hudson at pretrial lineup held five days after the crime. Yet, Officer Clement DeSala testified he was present at the lineup but that Wilson did not make an identification at that time. The state failed to disclose to Hudson prior to trial that Wilson had been unable to pick him out of a live lineup.

Perhaps in an effort to assuage the anticipated damage, the district attorney, a day before the trial, conducted a photographic spread before Wilson. The state displayed two photographs to Wilson, one was of Hudson and the other was of the co-defendant who was tried with Hudson. There were no photographs of anyone not implicated in the robbery. At trial, Wilson testified that when asked if he recognized the men in the photographs, he replied that he did. Further, Wilson made an in-court identification of Hudson.

Ultimately, Hudson was convicted of first degree murder by a Louisiana jury and sentenced to death. His death sentence was later commuted to life imprisonment. In 1969, the Louisiana Supreme Court affirmed Hudson's conviction. State v. Hudson, 253 La. 992, 221 So.2d 484, 492 (1969), cert. dismissed, 403 U.S. 949, 91 S.Ct. 2273, 29 L.Ed.2d 855 (1971). Consequently, Hudson began his attempts at vindication in the state courts. On at least three occasions, Louisiana courts denied Hudson habeas relief. See, e.g., State ex rel. Hudson v. Henderson, 262 La. 314, 263 So.2d 48 (1972); State ex rel. Hudson v. Henderson, 294 So.2d 545 (La.1974); State ex rel. Hudson v. Maggio, 337 So.2d 872 (La.1976).

After properly exhausting his state remedies, Hudson sought relief from the federal courts. ⁴ In his first federal habeas petition, Hudson claimed that he was serving an illegal sentence. The district court dismissed that action without prejudice on November 30, 1973. Hudson subsequently filed a notice of appeal and a request for a certificate of probable cause which was denied. On March 25, 1974, his appeal was dismissed. In his second habeas petition, dated November 26, 1974, Hudson raised grounds of illegal jury composition and denial of the right to confront witnesses. On April 16, 1975, a United States Magistrate recommended dismissal. Soon thereafter, the district court denied the relief sought; no appeal was taken.

On March 24, 1977, Hudson filed his third federal petition for habeas corpus. He contended the inappropriate use of a photographic lineup, the prosecutor's knowing use of perjured testimony, the improper denial by the trial court of a motion to sever, the improper admission of certain evidence, and the ineffective assistance of counsel. On December 29, 1977, the district court adopted the magistrate's recommendation that the petition be dismissed with prejudice. This Court affirmed the district court's dismissal. See Hudson v. Blackburn, 601 F.2d 785 (5th Cir.1979), cert. denied, 444 U.S. 1086, 100 S.Ct. 1046, 62 L.Ed.2d 772 (1980).

We agreed with Hudson's assertion that the photographic identification procedure employed was impermissibly suggestive (where a day before trial Wilson was presented with only two photographs in a photographic spread). We found, however, that under the "totality of circumstances" present in the case, "there was no substantial likelihood of misidentification." 601 F.2d at 788. Further, we also found that the conflict in testimony regarding the lineup (in which Wilson failed to identify Hudson and then testified otherwise) had a direct bearing on Wilson's credibility, and was therefore, material evidence. We concluded, however, that the error was harmless because the jury had been adequately presented with the conflicting information. Id. at 789.

In 1984, the Louisiana Legislature amended its Public Records Act, La.Rev.Stat.Ann. § 44:3 A(4), to provide that the initial report of the investigating police officer or officers is a public record and subject to disclosure regardless of its investigative content. Subsequently, the effect of the amendment was suspended by legislative resolution until August 31, 1986. See State v. McDaniel, 504 So.2d 160, 161 (La.Ct.App.1987). Pursuant to this amendment, Hudson obtained copies of the police reports which showed that Wilson, whose testimony constituted virtually the sole evidence used to convict Hudson, initially picked a man named Larry Jones from a photograph display as a participant in the attempted armed robbery. The report also disclosed that Wilson was unable to identify Larry Jones as one of the robbers after a physical lineup was held. ⁵ Subsequently, Hudson once again initiated state post-conviction proceedings. His state application for relief ended with the Louisiana Supreme Court's habeas petition denial on May 18, 1990. State ex rel. Hudson v. Butler, 561 So.2d 112 (La.1990).

On January 10, 1991, Hudson filed this, his fourth, federal habeas petition asserting that his due process rights under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), ⁶ were violated by the state's suppression of the evidence favorable to the defense contained in the police reports. The district court dismissed Hudson's petition as successive under Rule 9(b). Employing the abuse of the writ test applicable at the time of its decision, the district court found that Hudson failed to establish by a preponderance of the evidence that he had not abused the writ. See Brown v. Butler, 815 F.2d 1054, 1057 (5th Cir.1987) ("[o]nce the 9(b), abuse of the writ, claim has been raised either by the government or sua sponte, the burden then shifts to the petitioner to answer the allegation and prove by a preponderance of evidence that he has not abused the writ"); see also Jones v. Estelle, 722 F.2d 159, 164 (5th Cir.1983) (en banc), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984).

The court found that "Hudson [had] ample opportunity commencing with his first attempt at habeas corpus relief in 1973 to present to this Court the State's failure to provide allegedly exculpatory information pursuant to the holding in Brady." According to the court, even "[h]is subsequent obtainment of the police report pursuant to a legislative amendment [could not] serve as the basis for the granting of relief in light of the numerous opportunities provided to him, even without knowledge of this alleged exculpatory information, to present the underlying issue of nondisclosure." Alternatively, the court held that the claim lacked merit. Sp...