Adams v. Holland

• Decision Date: 20 May 2003
• Docket Number: No. 00-6575.,00-6575.
• Citation: 330 F.3d 398
• Parties: Frank E. ADAMS, Petitioner-Appellant, v. Flora J. HOLLAND, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

330 F.3d 398

Frank E. ADAMS, Petitioner-Appellant, v. Flora J. HOLLAND, Warden, Respondent-Appellee.

No. 00-6575.

United States Court of Appeals, Sixth Circuit.

Argued: September 11, 2002.

Decided and Filed: May 20, 2003.

Mariah A. Wooten (briefed), Paul R. Bottei (argued), Asst. Federal Public Defenders, Gretchen L. Swift (briefed), Research and Writing Attorney, Nashville, TN, for Petitioner-Appellant.

Kim R. Helper (argued and briefed), Criminal Justice Division, Office of the Attorney General, Nashville, TN, for Respondent-Appellee.

Before BOGGS and COLE, Circuit Judges; BATTANI, District Judge.^*

AMENDED OPINION

BATTANI, District Judge.

Before the court is Petitioner-Appellant Frank Adams's appeal from the denial of his habeas petition by the Middle District of Tennessee, Honorable District Court Judge Robert L. Echols. Appellant now preserves for appeal his claim for habeas relief based on the state trial court's admission of his co-defendant Timothy Crowell's hearsay testimony at trial, arguing that the admission of that statement violated Appellant's rights under the Confrontation Clause of the U.S. Constitution. Appellee argues that Appellant has procedurally defaulted his habeas challenge on this issue by failing to argue it in front of the Tennessee Supreme Court, and alternatively, that the admission of the co-defendant's statements did not violate Appellant's constitutional rights. Appellant now appeals the District Court's ruling that his habeas claim has been procedurally defaulted. We VACATE and REMAND for further proceedings consistent with this opinion.

I. Factual Background

In February 1991, a jury in Davidson County, Tennessee, found Appellant guilty of the felony-murder of Thomas Weser and two counts of aggravated robbery, for which Appellant was sentenced to life in prison plus twenty years. In October 1992, the Tennessee Court of Criminal Appeals affirmed those convictions. Appellant then applied for permission to appeal to the Tennessee Supreme Court, but did not specifically mention the Confrontation Clause issue before this court in that application, which was denied in June 1998.

In June 1999, Appellant filed his habeas petition before the District Court. The Magistrate Judge recommended that all of Appellant's habeas claims be dismissed except for his Confrontation Clause claim. The District Court agreed with the Magistrate Judge on all of the issues except for the Confrontation Clause issue; on the latter claim, the District Court found that Appellant had procedurally defaulted the claim by failing to bring it before the Tennessee Supreme Court in his application for permission to appeal. Appellant asked for a Certificate of Appealability from both the District Court and this court, and was denied both requests. He then filed a petition for Rehearing with this court on June 21, 2001. While this petition was pending, the Tennessee Supreme Court promulgated Tennessee Supreme Court Rule 39, which Appellant argues removes the procedural default assessed against his Confrontation Clause claim. Accordingly, on August 16, 2001, this court vacated the denial of Appellant's certificate of appealability, and granted a certificate on the following two issues: 1) whether, in light of Tennessee Supreme Court Rule 39, Appellant's Confrontation Clause claim is procedurally defaulted; and 2) if not, whether the admission of the co-defendant's statements violated Appellant's rights under the Confrontation Clause.

II. Discussion

This court reviews a district court's legal conclusions in a habeas proceeding de novo and its factual findings for clear error. E.g., Miller v. Francis, 269 F.3d 609, 613 (6th Cir.2001).

A. Procedural Default

Appellant acknowledges that, were it not for Rule 39, his claim would be procedurally defaulted because review by a state supreme court is normally an "available state remedy" that must be exhausted before a federal habeas petition can be filed, even if the state supreme court has only discretionary appeals. O'Sullivan v Boerckel, 526 U.S. 838, 847-48, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Appellant concedes that he did not bring his Confrontation Clause issue before the Tennessee Supreme Court. Appellant argues, however, that in passing Rule 39, the Tennessee Supreme Court changed the landscape of exhaustion law in Tennessee. The rule reads in relevant part:

In all appeals from criminal convictions or post-conviction relief matters from and after July 1, 1967, a litigant shall not be required to petition for rehearing or to file an application for permission to appeal to the Supreme Court of Tennessee following an adverse decision of the Court of Criminal Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. Rather, when the claim has been presented to the Court of Criminal Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies available for that claim.

Tenn. Sup.Ct. R. 39. Specifically, Appellant argues that Rule 39 removes review by the Tennessee Supreme Court as an "available state remedy" for any habeas claim after July 1, 1967, and that his Confrontation Clause issue has therefore not been procedurally defaulted by his failure to bring it before the Tennessee Supreme Court.

Appellee does not contest that Rule 39 purports to remove Tennessee Supreme Court review as an available state remedy for habeas purposes. Instead, Appellee argues that Rule 39 violates the Supremacy Clause of the U.S. Constitution because it conflicts with federal law as established in O'Sullivan. Appellee contends that, because discretionary review is still technically available in the Tennessee Supreme Court, O'Sullivan controls, and Rule 39 cannot displace federal law on the question of what counts as available state remedies. Appellee's alternative argument is that, even if Rule 39 did remove Tennessee Supreme Court review as an available state remedy, it did not do so "retroactively" and therefore Appellant's habeas claim is still procedurally defaulted. Specifically, Rule 39 was promulgated after Appellant's habeas petition had been submitted, and was promulgated even after Appellant had applied for a rehearing on the denial of his certificate of appealability. Appellee maintains that Rule 39, at most, removed Tennessee Supreme Court review for habeas petitions brought after its promulgation, and that Appellant's habeas claim therefore remains procedurally defaulted.

1. Rule 39 has made Tennessee Supreme Court review "unavailable"

The Supreme Court has recently held that even discretionary appeals by a state supreme court are available state remedies that must be exhausted for habeas relief. O'Sullivan, 526 U.S. at 847-48, 119 S.Ct. 1728. The O'Sullivan Court, however, explicitly excepted from its holding cases in which the state has explicitly disavowed state supreme court review as an "available state remedy." Id. at 847, 119 S.Ct. 1728. In this regard, the Supreme Court stated that "we note that nothing in our decision today requires the exhaustion of any specific state remedy when a State has provided that that remedy is unavailable." Id. The Supreme Court recognized that federal law does not prohibit a state from deciding for itself the availability of a particular state remedy. "The exhaustion doctrine, in other words, turns on an inquiry into what procedures are `available' under state law ... there is nothing in the exhaustion doctrine requiring federal courts to ignore a state law or rule providing that a given procedure is not available." Id. at 847-48, 119 S.Ct. 1728.

Rule 39 clearly removed Tennessee Supreme Court review as an antecedent for habeas purposes. By its terms, Rule 39 dictates that once the Court of Criminal Appeals has denied a claim of error, "the litigant shall be deemed to have exhausted all available state remedies available for that claim." Tenn. Sup.Ct. R. 39.

Appellee argues that Rule 39 has not technically made Tennessee Supreme Court review unavailable, however, since litigants have not been explicitly prohibited from appealing to the state supreme court. According to Appellee, Rule 39 would only have made Tennessee Supreme Court review "unavailable" if it had used explicit statements such as "a litigant shall hereby not be allowed to petition this Court for review," or "this Court will no longer, under any circumstances, review decisions of the Court of Criminal Appeals rejecting claims of error." Appellee's argument, however, fails to grasp the meaning of the word "available" as it is used in O'Sullivan, and instead dwells upon a hypertechnical interpretation of that term. Appellee's misinterpretation is revealed by the O'Sullivan Court's examples of what might constitute making state supreme court review unavailable: namely, rules passed by the Supreme Courts of South Carolina and Arizona. O'Sullivan, 526 U.S. at 847, 119 S.Ct. 1728. Although the O'Sullivan majority declined to rule definitively on whether those rules would change the law on exhaustion and procedural default, it did recognize that the rules were trying to make state supreme court review unavailable in those states for habeas purposes. Id. The South Carolina Supreme Court, for example, declared:

We recognize that criminal and post-conviction relief litigants have routinely petitioned this Court for writ of certiorari upon the Court of Appeals' denial of relief in order to exhaust all available state remedies. We therefore declare that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. Rather, when the claim has been presented to the Court of Appeals or the Supreme Court, and relief...