Bowen v. Murphy
| Decision Date | 31 January 1983 |
| Docket Number | No. 82-1005,82-1005 |
| Citation | 698 F.2d 381 |
| Parties | Lewis Aaron BOWEN, Petitioner-Appellant, v. A.L. MURPHY and the Attorney General of the State of Oklahoma, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Lewis Aaron Bowen, pro se.
Jan Eric Cartwright, Atty. Gen., and John E. Douglas, Asst. Atty. Gen., the State of Oklahoma, Oklahoma City, Okl., for respondents-appellees.
Before SETH, Chief Judge, PICKETT and SEYMOUR, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.
Lewis Bowen was convicted of armed robbery in 1965. In 1981, he filed a petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 (1976), contending that his convictions are invalid because they were based on involuntary guilty pleas. The district court dismissed the petition as delayed under Rule 9(a) of the Rules Governing Cases under Section 2254, 28 U.S.C. n. foll. Sec. 2254 (1976). Bowen appeals, and we affirm.
Rule 9 establishes grounds for dismissal of state habeas petitions. Rule 9(a) provides:
Delayed petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.
The Advisory Committee Note to the rule states:
This rule is intended to minimize abuse of the writ of habeas corpus by limiting the right to assert stale claims ....
Subdivision (a) provides that a petition attacking the judgment of a state court may be dismissed on the grounds of delay if the petitioner knew or should have known of the existence of the grounds he is presently asserting in the petition and the delay has resulted in the state being prejudiced in its ability to respond to the petition. If the delay is more than five years after the judgment of conviction, prejudice is presumed, although this presumption is rebuttable by the petitioner. 1 Otherwise, the state has the burden of showing such prejudice.
....
Subdivision (a) is not a statute of limitations. Rather, the limitation is based on the equitable doctrine of laches. "Laches is such delay in enforcing one's rights as works disadvantage to another." 30A C.J.S. Equity Sec. 112, p. 19. Also, the language of the subdivision, "a petition may be dismissed" (emphasis added), is permissive rather than mandatory. This clearly allows the court which is considering the petition to use discretion in assessing the equities of the particular situation.
....
The standard used for determining if the petitioner shall be barred from asserting his claim is consistent with that used in laches provisions generally. The petitioner is held to a standard of reasonable diligence. Any inference or presumption arising by reason of the failure to attack collaterally a conviction may be disregarded where (1) there has been a change of law or fact (new evidence) or (2) where the court, in the interest of justice, feels that the collateral attack should be entertained and the prisoner makes a proper showing as to why he has not asserted a particular ground for relief.
Under Rule 9(a), dismissal of a habeas petition is in the district court's discretion. To provide grounds for dismissal,
the state must [first] appear to have been prejudiced in its ability to respond to petitioner's claims. Second, the petitioner must be given the opportunity to meet or rebut the apparent prejudice to the state, or to show that whatever prejudice the state has suffered would not have been avoided had the petition been filed earlier.
Davis v. Adult Parole Authority, 610 F.2d 410, 414 (6th Cir.1979); see also Mayola v. Alabama, 623 F.2d 992 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981).
The state must make a particularized showing of prejudice in its ability to respond. McDonnell v. Estelle, 666 F.2d 246, 251 (5th Cir.1982); Paprskar v. Estelle, 612 F.2d 1003, 1008 (5th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980). Delay alone is not sufficient to dismiss a petition pursuant to Rule 9(a). Baxter v. Estelle, 614 F.2d 1030 (5th Cir.1980), cert. denied, 449 U.S. 1085, 101 S.Ct. 873, 66 L.Ed.2d 810 (1981) (); Sutton v. Lash, 576 F.2d 738 (7th Cir.1978) (twenty-one year delay); see also Jackson v. Estelle, 570 F.2d 546 (5th Cir.1978) (). The state must prove that the delay has prejudiced it in its ability to answer the petition.
Bowen alleges that his plea was involuntary because he was not informed of his constitutional rights by the presiding judge and...
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...counsel had no recollection of trial), cert. denied, 459 U.S. 1015, 103 S.Ct. 374, 74 L.Ed.2d 508 (1982); Bowen v. Murphy, 698 F.2d 381, 383 (10th Cir.1983) (per curiam) (prejudice found where recollections of judge and prosecutor were very limited). It may be assumed that Ryan would have h......
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Hannon v. Maschner, 86-2117
...petition was what it termed "unexcused delay." Rec., vol. 1, doc 9, at 2-3. Dismissal on this ground was error. See Bowen v. Murphy, 698 F.2d 381 (10th Cir.1983) (per curiam) (setting out standards under Rule 9(a) following section 2254); cf. United States v. Gutierrez, 839 F.2d 648 (10th C......
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U.S. v. Martin, 90-6191
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