Higgason v. Clark

• Citation: 984 F.2d 203
• Decision Date: 09 December 1992
• Docket Number: Nos. 91-2010,91-2168,s. 91-2010
• Parties: James H. HIGGASON, Jr., Petitioner-Appellant, v. Richard CLARK, Superintendent, Indiana State Prison, and Attorney General of Indiana, Respondents-Appellees. , and 92-1473.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 203

984 F.2d 203

James H. HIGGASON, Jr., Petitioner-Appellant, v. Richard CLARK, Superintendent, Indiana State Prison, and Attorney General of Indiana, Respondents-Appellees.

Nos. 91-2010, 91-2168, and 92-1473.

United States Court of Appeals,

Seventh Circuit.

Argued Dec. 9, 1992. ^*

Decided Jan. 14, 1993.

Brandon Lawniczak (argued), Sidley & Austin, Chicago, IL, for petitioner-appellant.

Kermit R. Hilles, Wayne E. Uhl, Dist. Attys. Gen. (argued), Office of the Atty. Gen., Indianapolis, IN, for respondents-appellees.

Before POSNER and EASTERBROOK, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

Indiana is holding James Higgason prisoner following a burglary conviction in November 1985. The court sentenced Higgason to 25 years' imprisonment after concluding that he is an habitual offender. Two prior convictions for unrelated felonies require habitual-offender designation in Indiana, and Higgason had three: theft in 1970, theft in 1972, and murder in 1975. Paroled from the murder sentence in 1985, Higgason was back in prison quickly on the burglary charge. On April 14, 1986, Indiana discharged Higgason from the murder sentence. Since then, only the 25-year term for burglary has supported his incarceration.

Higgason has embarked on a program of collateral litigation that illustrates the doctrine of abuse of the writ. See McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The Supreme Court of Indiana affirmed his conviction but granted him leave to contest before the sentencing court the validity of the three felonies that had been used to enhance his term. Higgason v. State, 523 N.E.2d 399, 403 (Ind.1988). Instead of doing this, Higgason immediately commenced an action in federal court under 28 U.S.C. § 2254. Higgason's state remedies were completely exhausted at this point, as Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), requires, only if he had abandoned any challenge to the validity of the three earlier convictions. See id. at 520-21, 102 S.Ct. at 1204-05 (opinion of O'Connor, J.). The district court denied this petition. Higgason v. Duckworth, 792 F.Supp. 1117 (N.D.Ind.1990). We affirmed by unpublished order, No. 90-2704, 1992 WL 124469 (7th Cir. June 9, 1992), and the Supreme Court denied his petition for certiorari, --- U.S. ----, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992).

Neither our opinion nor the district court's mentions the exhaustion problem--concrete rather than potential, for Higgason had commenced separate challenges to the 1970 theft conviction and the 1975 murder conviction. Two petitions, one in state court and one in federal, sought relief from the 1985 sentence on the ground that the 1970 theft conviction is invalid. Two more petitions, both in federal court, challenged the 1975 murder conviction. When filing these latter petitions in 1991, Higgason did not mention that he was no longer in custody under the murder sentence and that the validity of this conviction was significant only to the extent it had been used to enhance the burglary sentence.

Early in 1991 Higgason had at least five collateral proceedings under way, all necessarily directed to the conviction and sentence for burglary in 1985. Preventing such overlapping litigation is among the objectives of the complete-exhaustion requirement, and channeling all arguments into a single collateral attack is the principal role of the doctrine treating successive petitions as abuses of the writ. Surprisingly, Indiana did not move to dismiss any of the collateral challenges under McCleskey or Rose. Indeed, not until oral argument did we learn that custody under the 1975 murder conviction ended five years before Higgason filed his two petitions contesting it. The parties' briefs on appeal read as if Higgason were still serving the sentence imposed in 1975. On discovering that this is not so, we directed the parties to file memoranda concerning the effect of Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989), which holds that a person serving sentence A that has been enhanced because of expired sentence B is "in custody" only on sentence A. See Fawcett v. Bablitch, 962 F.2d 617 (7th Cir.1992); Lowery v. McCaughtry, 954 F.2d 422 (7th Cir.1992); Clay v. Bronnenberg, 950 F.2d 486 (7th Cir.1991); Crank v. Duckworth, 905 F.2d 1090 (7th Cir.1990); Lowery v. Young, 887 F.2d 1309 (7th Cir.1989). Because § 2254 authorizes challenges only to "custody" that violates the Constitution or laws of the United States, there appeared to be a jurisdictional problem. The parties' memoranda after oral argument brought to our attention, for the first time, the prior collateral attack on Higgason's burglary sentence and the pending challenges to the enhancement based on the 1970 theft conviction. The panel then consolidated all of Higgason's open appeals.

We start with Higgason's contention that the 1985 sentence is infirm because the 1970 theft conviction is invalid. Higgason pleaded guilty in 1970 and contends that the record does not establish that the judge informed him of his rights to confront his accusers and avoid self-incrimination. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). He presented this argument to the courts of Indiana in collateral proceedings begun in 1986. The trial court dismissed the challenge as untimely, and in an unpublished order the Court of Appeals of Indiana affirmed. Higgason v. State, No. 45A04-9009-PC-410, 1991 WL 118797 (4th Dist. June 25, 1991). The court concluded that Higgason had no reason to wait 16 years to challenge the validity of this conviction, and that the state had been prejudiced by the delay: the police officers principally responsible for the investigation and arrest are deceased, and the owner of the stolen motorcycle could not be located. Having concluded that new proceedings would leave the state at a great disadvantage--and that Higgason, who filed collateral contests to other convictions earlier in the decade, had no excuse for leaving this one alone if indeed it is defective--the court held that any challenge is foreclosed.

Because Higgason's current petition under § 2254 is a successive collateral attack, he needs to establish actual innocence under the approach of Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), or at a minimum "cause and prejudice" for the default under the approach of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The district court dismissed the petition because Higgason had not shouldered either burden. Yet his brief on appeal scarcely mentions the procedural obstacle; he relies on Boykin as if this were a direct appeal from the 1970 conviction. Boykin does not authorize federal courts to disregard the difference between direct and collateral challenges, let alone to entertain successive collateral challenges to the same conviction. Parke v. Raley, --- U.S. ----, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). Whether we view Higgason's delay (and duplication) as a procedural default in state court, or instead apply the standards of Rule 9 of the Rules Governing Section 2254 Cases, the upshot is the same: Higgason has waited too long, without good reason, and to the state's detriment. The 1970 conviction is no longer open to challenge.

As for the 1975 conviction: Higgason named as respondent his custodian on the 1985 sentence, so the district court had jurisdiction notwithstanding Maleng. See Lowery v. Young, 887 F.2d at 1311. Because Higgason has never, to our knowledge, contended that the 1972 conviction is invalid--and because any new petition making such an argument would be a patent abuse of the writ--the validity of the 1975 conviction is not essential to sentencing as an habitual offender. Ind.Code § 35-50-2-8(d). Still, Higgason could gain something if a court were to knock out the 1975 conviction. When all prior felonies are more than 10 years old, a court in Indiana may reduce the otherwise-mandatory term facing a repeat offender. Ind.Code § 35-50-2-8(e). Do away with the 1975 conviction, and Higgason's most recent felony is 1972, more than a decade before the burglary of which he was convicted in 1985. (He spent that entire decade in prison. Lack of opportunity, rather than a decision to take the straight and narrow path, may explain the absence of intervening convictions, but under Indiana law this does not matter.) United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), holds that "misinformation of constitutional magnitude", id. at 447, 92 S.Ct. at 592--that is, reliance on an invalid prior conviction when selecting the length of a sentence--authorizes relief from the current sentence. Indiana does not point to any other doctrine that would insulate the 1975 conviction from review, cf. Lowery v. McCaughtry, 954 F.2d at 423-24; United States v. Jones, 977 F.2d 105, 109-11 (4th Cir.1992), and id. at 111-12 (Wilkinson, J., concurring), so we take up the merits of Higgason's contentions.

Indicted on a charge of first degree murder, Higgason pleaded guilty to second degree murder. The indictment charged that Higgason killed Al Lane with a shotgun. Indiana law then provided: "Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree". Ind.Code § 35-1-54-1 (1975). The judge explained these elements to Higgason, who asked for a definition of malice. The judge replied: "Malice can be defined [as] ill will; malice can be inferred from the firing of a gun, the deadly weapon in a manner calculated to produce death." Later in the proceedings Higgason denied that he intended to slay Lane: "I had no intentions [sic] of killing; there was just a shooting involved.... I didn't intend to kill him." These statements underlie Higgason's argument that the record does not establish "strong evidence of actual guilt" that...