Batten v. Scurr
| Decision Date | 19 May 1981 |
| Docket Number | No. 80-1919,80-1919 |
| Citation | 649 F.2d 564 |
| Court | U.S. Court of Appeals — Eighth Circuit |
| Parties | Jonathan W. BATTEN, Appellee, v. David SCURR, Warden, Iowa State Penitentiary, Appellant. |
Thomas J. Miller, Atty. Gen. of Iowa, Des Moines, Iowa, Thomas D. McGrane, Asst. Atty. Gen., Steven M. Foritano, (argued), Legal Intern, for appellant.
William L. Kutmus, P.C., Mark Pennington, Des Moines, Iowa, for appellee.
Before LAY, Chief Judge, and STEPHENSON and ARNOLD, Circuit Judges.
Appellant-respondent appeals from an order of the district court 1 sustaining Jonathan Batten's petition for writ of habeas corpus. The district court held that (1) a statement made by the principal witness for the prosecution in Batten's state drug conspiracy trial denied him a fair trial in violation of the due process clause; and (2) certain remarks by the trial judge impermissibly compromised Batten's right against self-incrimination. We reverse.
Batten was convicted by a jury in Iowa District Court of conspiracy to deliver a controlled substance, and was sentenced on June 26, 1975, to a term of not more than ten years imprisonment. His conviction was affirmed without opinion by an equally divided Iowa Supreme Court, State v. Batten, 249 N.W.2d 865 (Iowa), cert. denied, 434 U.S. 834, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977). See Iowa Code Ann. § 684.10. The federal district court determined an evidentiary hearing was unnecessary, and the case was submitted on the basis of the state record.
Our recitation of the undisputed facts giving rise to Batten's claims is based largely on the district court's factual summary. Prior to the commencement of Batten's trial in state court, he filed a motion in limine that requested the prosecution not to mention any of petitioner's prior felony convictions. The motion was sustained. After selecting a jury, Batten orally amended the motion in limine requesting that the prosecution instruct its witnesses not to offer any testimony regarding petitioner's prior use of or association with drugs. The motion was sustained and the prosecution agreed to so instruct its witnesses. 2
The first witness called by the prosecution was Christine Cox, a police informant and the state's principal witness. Near the end of direct examination, the following exchange occurred:
BY MR. SISSEL:
Q. At the time of this crime, that being June 6th, 1974, to June 8th, 1974, were you using any drugs at this time?
A. Sometimes I smoked grass, yes.
Q. Were you using any heroin at this time?
A. Prior to that I had a couple times with Jon Batten.
A recess was called at the close of direct examination, and the prosecutor assured the court that he had instructed the witness not to discuss Batten's prior drug use. The trial court ordered the cross-examination to take place the following morning, at which time the court would rule on the motion for a mistrial. The next morning, the district court denied the motion for mistrial and stated out of the presence of the jury:
At the time, defense counsel made a motion to strike the answer of the witness and to declare a mistrial. The Court at the time permitted the objection of defense counsel to precede the answer of the witness and struck the answer of the witness from the record and instructed the jury to disregard the answer entirely but reserved ruling on the motion for mistrial. Obviously, the answer violated a previous order of the Court that she should not testify as to defendant's use of drugs or his connection with the drug traffic and this raises the question whether her answer was so prejudicial to the defendant that a mistrial should be declared. The Court at this time, after due consideration, has determined that the statement was not too prejudicial to the defendant that a mistrial should be declared. Defense counsel has previously stated during voir dire examination of the jurors and during opening statement, I believe, that defendant, although not required to do so, was going to take the witness stand in his own behalf. Obviously, he will have the opportunity to deny the statement made by the witness. If this were a case where the defendant was not going to take the witness stand, there would be more likelihood of prejudice to defendant. The Court also takes into consideration the fact that this is a conspiracy trial and not a charge of delivery itself and that latitude must be considered in a charge of conspiracy. Therefore, the motion for a mistrial is denied, and the exceptions of defendant are noted.
Batten's counsel had stated to the jury during opening argument that Batten would take the stand and testify in his own behalf at trial. In fact, Batten did testify in his own defense, but did not testify by way of admission, denial, or otherwise to any prior heroin use.
At the conclusion of the state's evidence, a motion for mistrial was renewed and denied. After the return of the jury verdict, Batten made a motion for a new trial, arguing that Cox's statement was prejudicial and in violation of the limine order entered by the court. The trial court overruled the motion for a new trial. 3
Petitioner raised several grounds for relief in his 28 U.S.C. § 2254 petition. The federal district court found that Batten had failed to exhaust his state remedies with regard to all but his claims that (1) the remarks of Christine Cox denied him due process, and (2) the trial court's actions compelled him to take the stand in violation of his constitutional right against self-incrimination. The federal district court ruled in favor of Batten on both these issues and granted the writ.
Although respondent does not argue failure to exhaust state remedies, we defer to the statutory requirement of 28 U.S.C. § 2254(b) out of respect for state-federal comity, raising the issue of exhaustion sua sponte. Davis v. Campbell, 608 F.2d 317, 320 (8th Cir. 1979) (citing cases).
The only state proceeding after his conviction was Batten's direct appeal to the Iowa Supreme Court, which affirmed his conviction by an equally divided court without opinion. An examination of Batten's brief to the Iowa Supreme Court indicates essentially two issues were raised to challenge his conviction: (1) whether the state trial court erred in not granting defendant's motion for a mistrial or his motion for a new trial, on the basis that Cox's statement caused extreme prejudice in the minds of the jury which could not be cured by the court's instruction to disregard the statement; and (2) whether the state trial court violated "Defendant's Constitutional Rights against self-incrimination when ruling on Defendant's motion for a Mistrial." With regard to the second issue, Batten's Iowa Supreme Court brief specifically alleges a violation of his Fifth and Fourteenth Amendment rights against self-incrimination and there is no question his direct appeal has exhausted his state remedies on this issue.
The issue of whether Batten has exhausted his state remedies with respect to the alleged denial of his due process rights under the Fourteenth Amendment is more troublesome. He alleged on his direct appeal that the trial court erred in refusing to grant a mistrial because Cox's statements were prejudicial. All the facts relevant to the section 2254 claim of a denial of due process were presented with his claim to the state supreme court on direct appeal. Nevertheless, his brief to the Iowa Supreme Court did not cite any federal constitutional provisions, federal cases, or refer to the phrase "due process." On this precise issue we have recently held:
The reference in (petitioner's state appellate court brief) to denial of a fair trial, without citation to any provision of the Federal Constitution or to any federal case, was not a sufficient presentation of the federal constitutional issue. It is not enough that (petitioner) presented all of the facts on which his federal constitutional claim would later be based. The substance of this claim, as a legal matter, was simply never presented to the state courts, either at trial or on appeal, and in these circumstances we are unwilling to hold that the state courts have had a fair opportunity to consider (petitioner's) federal claim and to correct the violation of the Fourteenth Amendment, if there was a violation.
Thomas v. Wyrick, 622 F.2d 411, 413 (8th Cir. 1980).
Thus it appears that petitioner has not presented the substance of his federal constitutional due process claim in the Iowa courts. Our inquiry does not end here, however. "The question with respect to exhaustion is not merely whether (petitioner) has in the past presented his federal claim to the state courts, but also whether there is * * * any presently available state procedure for the determination of the merits of that claim." Thomas v. Wyrick, supra, 622 F.2d at 413.
Iowa's statute for post conviction relief appears at Iowa Code Ann. § 663A.1 et seq. Section 663A.2(1) provides for relief, inter alia, for anyone convicted of a public offense who claims that the conviction violated the Constitution of the United States. Section 663A.8 qualifies this, however, by providing:
Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction * * * may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.
There has been no clear showing that the courts of Iowa will not...
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