Andrews v. Barnes

Decision Date03 August 1990
Docket NumberNo. 89-C-0649-S.,89-C-0649-S.
PartiesWilliam ANDREWS, Petitioner-Appellant, v. Eldon BARNES, Warden, Utah State Prison, Respondent-Appellee.
CourtU.S. District Court — District of Utah

Gordon G. Greiner, Mary V. Stolcis, Sandra R. Goldman, Patricia A. Rooney, Holland & Hart, Denver, Colo., Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, Wash., Robert M. Anderson, Hansen & Anderson, Salt Lake City, Utah, for petitioner-appellant.

Robert R. Wallace, T.J. Tsakalos, Daniel S. McConkie, Hanson, Epperson & Smith, Salt Lake City, Utah, for respondent-appellee.

SAM, District Judge.

This matter is before the court on Petitioner William Andrews' Objection to the magistrate's Report and Recommendation (R & R) dated May 10, 1990.1 In that comprehensive R & R the magistrate recommended that this court deny Mr. Andrews' supplemental petition. Mr. Andrews objected to the R & R2 and, as part of that objection, requested that this court conduct extensive evidentiary hearings in connection with a de novo review and hearing on the objection.

The applicable statute (28 U.S.C. § 636) requires this court to review the R & R under a de novo standard, but does not require this court to conduct additional evidentiary hearings.3 See Ruling and Order, dated August 18, 1989. After careful review of the lengthy record, including extensive written memoranda, and thorough analysis of the facts and applicable law outlined by the magistrate in his R & R, the court has determined that further oral argument is not necessary.

The transcripts of the evidence before the magistrate have been examined and assessed for credibility. Based on an independent, de novo review of the evidence, Gee v. Estes, 829 F.2d 1005 (10th Cir.1987), the court concludes that the magistrate's findings one through nine on pages 1505-06 and findings one through nine on pages 1521-22 of the May 10 R & R are correct and hereby adopts those findings as its own.

This Order will now address the relevant legal issues:

Respondents claim this court should deny any relief to Mr. Andrews due to an abuse of the writ of habeas corpus. The magistrate, in the May 10 R & R, concluded that petitioner's argument with regard to the peremptory challenge of the only black juror in his case should be rejected because of an abuse of the writ. May 10 R & R at 1511. The magistrate did not have the benefit of the Supreme Court's recent decision in Delo v. Stokes, ___ U.S. ___, 110 S.Ct. 1880, 109 L.Ed.2d 325 (1990). However, Delo supports the magistrate's conclusion that where, as in this case, the issue was apparent from the record before the filing of prior petitions for habeas corpus and was not raised, a new petition thereafter filed which attempts to raise the issue is barred by the abuse of the writ doctrine. The magistrate's recommendation concerning abuse of the writ on the juror excusal issue is consistent with Delo v. Stokes and is accordingly adopted as the conclusion of this court.4

The magistrate, in both the August 17 and May 10 reports, recommended that Mr. Andrews' claims which requests retroactive application of new constitutional doctrine should not be allowed because of the Supreme Court's decisions in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Penry v. Lynaugh, ___ U.S. ___, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Saffle v. Parks, ___ U.S. ___, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); and Butler v. McKeller, ___ U.S. ___, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990). The court agrees with the magistrate's conclusion.

Subsequent to the magistrate's May 10 R & R, the Supreme Court made another decision which bears on this issue. In Sawyer v. Smith, ___ U.S. ___, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990), the Court held that Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), had no retroactive application under the Teague ruling. The decision effectively overrules the retroactivity holding of Hopkinson v. Shillinger, 888 F.2d 1286 (10th Cir.1989).5 Therefore, Hopkinson is no longer governing law in this Circuit on retroactivity in habeas corpus proceedings.

The Sawyer Court acknowledges that Teague allows retroactivity in applying a new rule in a habeas corpus claim if the claim comes "within `one of two narrow exceptions.'" Sawyer, ___ U.S. at ___, 110 S.Ct. at 2831 (quoting Saffle, 110 S.Ct. at 1259). The Court noted "a rule that qualifies under this exception must not only improve accuracy, but also `alters our understanding of the bedrock procedural elements' essential to the fairness of a proceeding." Id. (quoting Teague, 489 U.S. at 311, 109 S.Ct. at ___) (emphasis in original). Any application of a new rule must be "an `absolute prerequisite to fundamental fairness.'" Id. ___ U.S. at ___, 110 S.Ct. at 2832 (quoting Teague, 489 U.S. at 314, 109 S.Ct. at ___). Further, the Court reiterated that it was "`unlikely that many such components of basic due process have yet to emerge.'" Id. at ___, 110 S.Ct. at 2832 (quoting Teague, 489 U.S. at 313, 109 S.Ct. at ___). The rationale for this application of Teague is explained by the Sawyer Court as follows:

The principle announced in Teague serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered. This is but a recognition that the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrines.

Sawyer, ___ U.S. at ___, 110 S.Ct. at 2829.

This court holds that Sawyer supports the magistrate's conclusions in this case, especially with reference to petitioner's extended argument on the application of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). The petitioner's contention goes well beyond Beck. It requires rejection of state procedural rules on instructions and requests a whole new rule of constitutional criminal procedure. Acceptance of such a result is hardly dictated by procedural needs of fairness. The traditional state and federal rules on lesser included offenses are adequate to address the fairness issue. Therefore, Teague, Sawyer, and other cases require rejection of petitioner's lesser included offense claims.

For the reasons set forth herein, the court adopts the magistrate's R & R and denies petitioner's supplemental writ of habeas corpus. IT IS SO ORDERED.

REPORT AND RECOMMENDATION

RONALD N. BOYCE, United States Magistrate.

The petitioner, William Andrews, an inmate confined at the Utah State Prison (U.S.P.) filed a petition for writ of habeas corpus in this court seeking relief under 28 U.S.C. § 2254. The original petition filed with this court was denied by the District Court on August 18, 1989. (File Entry # 36). However, on August 17, 1989 the petitioner filed a supplement to the original petition for habeas corpus. (File Entry # 35). The petition alleged that at the petitioner's original trial in Second District Court, State of Utah, where petitioner was convicted of capital murder and sentenced to death, the prosecution deliberately excluded the only black juror on the prospective jury panel and thereby violated the petitioner's constitutional rights. A second issue was also raised contending that during the sentencing proceedings in petitioner's case the prosecution presented false testimony from a prosecution witness, Dr. Allen Roe, a psychologist then employed by the Utah Department of Corrections who gave testimony that three persons in the State of Utah had committed murder after prior murder convictions. The petitioner contends such information was false in part. The petition alleges that on August 10, 1989 Dr. Kay Gillespie, an expert in crime and corrections in Utah, advised counsel for petitioner that such information appeared to be incorrect.

The petitioner alleged the facts as to the possible improper use of peremptory challenge were stated in petitioner's first post-conviction petition in state court as part of a claim of discrimination, but the exact same claim as that presented in this supplemental petition was not presented until an original petition for habeas corpus presented to the Utah Supreme Court before petitioner's scheduled execution. After denial by the Utah Supreme Court the petitioner's supplemental petition was presented to this court.

The petitioner indicates the false testimony issue was not raised in the original petition for habeas corpus before this court because the issue had not been exhausted before the Utah courts and it is also claimed the underlying facts were not known to counsel.

The supplemental petition was accepted and counsel given an opportunity to present supportive materials. (File Entry # 49). A supplemental allegation in support of the petition for habeas corpus amplifying the petitioner's claims was also filed. (File Entry # 52). As a result a response was ordered to be filed by the respondent. (File Entry # 54). Thereafter, a response to the petition was filed by the respondent. The respondent contended as to the peremptory excusal of the black juror that petitioner had failed to make a timely objection at the time of trial, that the Utah Supreme Court decided the issue on an independent and adequate state ground, the petitioner's claim was an abuse of the writ, that petitioner had procedurally defaulted on the issue, and that on the merits the excusal of the black juror issue was without legal merit. The respondent also contended the testimony of Dr. Roe was of no constitutional consequence. (File Entry # 57).

Both of the issues in the supplemental petition were first presented to the Utah Supreme Court immediately prior to the petitioner's scheduled execution. The Utah Supreme Court acted with admirable swiftness and on ...

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4 cases
  • Andrews v. Deland
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 23, 1991
    ...Report and Recommendation and dismissed Andrews' supplement to the present petition for a writ of habeas corpus. Andrews v. Barnes, 743 F.Supp. 1496 (D.Utah 1990). Andrews filed a Motion for Reconsideration and/or a New Trial as well as a Motion for Certificate of Probable Cause, which were......
  • Hicks v. Collins
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • September 15, 2004
    ...943 F.2d 1162 (10th Cir.1991), overruled in different part by Daniels v. United States, 254 F.3d 1180 (10th Cir.2001); Andrews v. Barnes, 743 F.Supp. 1496 (D.Utah 1990). 10. During the trial, the prosecution referred to "Little Brandy Green" as being five years old, her parrot named "Pierre......
  • State v. Andrews, s. 920308
    • United States
    • Utah Supreme Court
    • July 21, 1992
    ...appears to me that that was done for the first time in 1990, in collateral proceedings in the federal district court. Andrews v. Barnes, 743 F.Supp. 1496 (D.Utah 1990). That failure is unfortunate and probably lamentable, but I do not believe that Andrews may fairly be charged with its cons......
  • Andrews v. Carver, 92-C-663-S.
    • United States
    • U.S. District Court — District of Utah
    • July 29, 1992
    ...K. Winder. Andrews v. Shulsen, 600 F.Supp. 408 (D.Utah 1984). A second petition was filed and resolved in two stages. Andrews v. Barnes, 743 F.Supp. 1496 (D.Utah 1990). In the latter case, the initial petition was denied. Andrews v. Barnes, 1989 WL 230923 (D.Utah 1989) Lexis 17246. Thereaft......

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