Bendingfield v. O'Dea
| Decision Date | 23 July 1993 |
| Docket Number | No. 92-5608,92-5608 |
| Citation | 999 F.2d 539 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Lorenzo BENDINGFIELD, Plaintiff-Appellant, v. Michael J. O'DEA, Warden, Eastern Kentucky Correctional Complex; and Chris Gorman, Attorney General of the Commonwealth of Kentucky, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before MILBURN and BOGGS, Circuit Judges, and KRUPANSKY, Senior Circuit Judge.
Lorenzo Bendingfield appeals the district court's denial of his second habeas petition, raising two claims, as an abuse of the writ. Bendingfield originally included these two claims in an earlier habeas petition. The district court granted the previous habeas petition on another ground and elected not to address these two claims. The Commonwealth successfully appealed to this court, and Bendingfield did not cross-appeal the two claims that the district court did not consider. The district court dismissed the second habeas petition on the ground that Bendingfield deliberately abandoned the claims when he neglected to raise them on cross-appeal in the earlier proceeding. We reverse.
In 1986, a state court jury found Bendingfield guilty of robbery in the first degree and of being a persistent felony offender in the first degree. Bendingfield was sentenced to twenty years in prison. The Commonwealth does not dispute that Bendingfield subsequently exhausted his remedies in state court.
In 1988, Bendingfield, proceeding pro se, filed his first application for habeas corpus relief in federal district court, raising five claims. On March 20, 1989, the district court granted the habeas petition and directed that Bendingfield be released from custody unless the Commonwealth instituted proceedings within sixty days to grant him a new trial. Bendingfield v. Parke, No. C 88-0714-L(A) (W.D.Ky. March 20, 1989).
The district court considered only three of Bendingfield's five claims. The court found that Bendingfield's rights under the confrontation clause had been violated because a key witness, his alleged accomplice in the robbery, was not available for full and effective cross-examination. The district court considered and expressly rejected Bendingfield's contentions 1) that the trial court improperly overruled objections to a statement in the prosecuting attorney's opening statement and 2) that there was a conflict of interest because the attorney appointed to represent his alleged accomplice in the robbery was from the same public defender's office as Bendingfield's attorney.
The district court mentioned the remaining two issues only in passing, stating simply:
In view of our determination concerning the effect of denial of confrontation, it is unnecessary to rule on petitioner's other complaints. These concern amendment of indictment without notice, and the admission, without trial court objection, of testimony by a probation officer.
Bendingfield v. Parke, slip op. at 16.
The Commonwealth appealed the grant of habeas corpus relief to this court. On April 12, 1990, this court reversed the district court's decision, holding that Bendingfield was not deprived of meaningful cross-examination of the witness. Bendingfield v. Parke, 899 F.2d 1221 (6th Cir.1990) (per curiam). Bendingfield did not cross-appeal, or raise in any manner, the two arguments rejected or the two arguments not considered by the district court. This court did not consider these issues nor remand the case for any further action. Bendingfield's petition for certiorari was denied by the Supreme Court on October 1, 1990. Bendingfield v. Parke, 498 U.S. 838 (1990).
On January 29, 1992, Bendingfield, proceeding pro se, filed his second habeas petition, raising the two claims that the district court and the appellate court neglected to consider in the earlier proceedings. First, Bendingfield contends that he was denied the right to a fair trial because, he alleges, the trial court allowed the prosecuting attorney to amend the indictment twice during the trial, without providing adequate notice to Bendingfield or his counsel. Second, Bendingfield contends that the prosecuting attorney introduced irrelevant and prejudicial testimony from his parole officer during the persistent felony offender phase of the trial. 1 The district court dismissed the petition as an abuse of the writ on April 6, 1992, concluding that Bendingfield deliberately abandoned these two claims when he failed to cross-appeal the district court's decision not to consider these issues when they were presented as part of his first habeas petition.
Rule 9(b) of the Rules Governing Section 2255 Proceedings in the United States Courts authorizes a district court to dismiss a successive habeas petition "if the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedures governed by these rules." However, Rule 9(b) provides no guidance on what constitutes "abuse."
In McCleskey v. Zant, 111 S.Ct. 1454 (1991), the Supreme Court explained the standard for abuse to be applied by the district courts. After a lengthy interpretation of the historical development of the writ of habeas corpus, id. at 1461-67, the Court concluded that a successive habeas petition constitutes an abuse of the writ if it includes claims raised but deliberately abandoned in an earlier petition, see, e.g., Sanders v. United States, 373 U.S. 1, 18 (1963), or if it includes claims not raised in an earlier petition due to inexcusable neglect. McCleskey, 111 S.Ct. at 1467.
The McCleskey Court focused on inexcusable neglect, concluding that the issue should be analyzed under the "cause and prejudice" standard used for determining whether to excuse a petitioner's state procedural defaults, as set forth in Wainwright v. Sykes, 433 U.S. 72 (1977). Under this standard, the government bears the initial burden of pleading an abuse of the writ. The government meets this burden "if, with clarity and particularity, it notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ." Id. at 1470. The burden then shifts to the petitioner to prove cause for his failure to raise the claims in the earlier petition and prejudice from the alleged errors. Ibid.
To prove cause, the petitioner must show " 'some external impediment preventing counsel from constructing or raising a claim.' " Id. at 1472 (emphasis in original) (quoting Murray v. Carrier, 477 U.S. 478, 492 (1986)). The Court stressed that the "[a]buse of the writ doctrine examines petitioner's conduct: the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process." McCleskey, 111 S.Ct. at 1472 (emphasis in original).
To prove prejudice, the petitioner "must show 'actual prejudice resulting from the errors of which he complains.' " McCleskey, 111 S.Ct. at 1470 (quoting United States v. Frady, 456 U.S. 152, 168 (1982)). An evidentiary hearing is not required if the district court determines as a matter of law that the petitioner cannot show cause and prejudice. McCleskey, 111 S.Ct. at 1470.
The Court recognized a narrow exception for petitioners who cannot show cause and prejudice, but whose cases must still be heard to avoid "a fundamental miscarriage of justice." Ibid. The court described these cases as "extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime." Ibid.
If Bendingfield had raised in this second habeas petition the two issues that were rejected by the district court in his first habeas petition, those claims would clearly constitute a successive petition. In such a case, Bendingfield would be raising claims that had previously been rejected on the merits in an earlier district court decision, and on which he had chosen not to cross-appeal. See Sanders, 373 U.S. at 15-16. If Bendingfield had raised new claims in his second petition, he would be required to prove that an external impediment caused him not to raise these claims in the first petition and to show prejudice from the alleged error.
Our situation is different, however. Bendingfield has raised two claims that were raised previously, but which have never been rejected or even considered. The question is whether Bendingfield's failure to raise, on cross-appeal or otherwise, these claims in response to the Commonwealth's appeal of the earlier decision constituted deliberate abandonment or inexcusable neglect.
First, it must be noted that Bendingfield could have raised these arguments before the appellate court without filing a cross-appeal...
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