Burns v. Estelle

• Decision Date: 17 January 1983
• Docket Number: No. 82-1071,82-1071
• Citation: 695 F.2d 847
• Parties: Rodney K. BURNS, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 847

695 F.2d 847

Rodney K. BURNS, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

No. 82-1071.

United States Court of Appeals Fifth Circuit.

Jan. 17, 1983.

Seay, Gwinn, Crawford, Mebus & Blakeney, Steven R. McCown, Dallas, Tex., for petitioner-appellant.

Joe Foy, Jr., Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GARZA, TATE and WILLIAMS, Circuit Judges.

GARZA, Circuit Judge:

Petitioner Rodney K. Burns brings this Section 2254 action seeking habeas relief following his conviction in the State of Texas by a jury on two counts of aggravated robbery and his sentence to two concurrent 99-year prison sentences in 1974. The record reveals that petitioner, together with co-defendants, Richard Hamilton and Charles Gibson, allegedly entered and robbed at gun point a bank in Milford, Texas. Eyewitnesses identified petitioner and his cohorts as the perpetrators of the crime. After robbing the bank, the three men left in two cars, one of which was driven by another co-defendant, George Cobbs. A high speed chase followed in which police observed money being thrown from one car; a pistol and money from the bank were found in the car in which Cobbs and petitioner were eventually captured.

After his conviction in state court, Burns appealed to the Texas Court of Criminal Appeals claiming that his trial counsel was ineffective due to a conflict of interest, that improper prosecutorial argument had prejudiced his trial, that his trial should have been severed, and that fundamental erroneous jury instructions had been given at trial. The Texas court affirmed his conviction on direct appeal. Burns v. State, 573 S.W.2d 32 (Tex.Cr.App.1978). During the four years that his state court appeal was pending, Burns filed a habeas corpus petition in federal district court which was dismissed without prejudice because Burns had not exhausted his state remedies. This Court affirmed. Burns v. Estelle, 585 F.2d 518 (5th Cir.1978) (mem.), cert. denied, 440 U.S. 984, 99 S.Ct. 1797, 60 L.Ed.2d 246 (1979). Burns then sought habeas corpus relief under Texas law, raising basically five claims: (1) that the term of the trial court had expired when sentence was pronounced; (2) that the jury charge was fundamentally defective; (3) that the court was without jurisdiction due to untimely notice of appeal; (4) that he was denied access to appeal; and (5) that his appellate counsel was ineffective. The Texas Court of Criminal Appeals, however, denied relief based on the findings and conclusions of the trial court.

Burns filed the present federal habeas petition in November, 1979, claiming (1) that he was denied effective assistance of counsel because his attorney failed to call an alibi witness to the stand due to possible conflicts between that defense and the defense of Burns' co-defendants, (2) that he was deprived of due process because the trial court sentenced him after expiration of its term, and (3) that the state trial court failed to inquire into the alleged conflicts of interest at the time it denied Burns' motion to sever, violating Burns' sixth amendment rights.

With respect to petitioner's first claim, an evidentiary hearing was held below before a U.S. magistrate in which petitioner presented two witnesses, his brother and co-defendant Hamilton, who testified that petitioner was with a person named Ernest Raleigh on the day of the robbery, that Raleigh was now deceased, and that petitioner had informed counsel about the witness Raleigh. The magistrate found that the testimony regarding the existence of an alibi witness was totally unbelievable, that counsel had never been informed about the existence of Raleigh, "and that Ernest Raleigh did not in fact exist." Accordingly, the magistrate found that "the evidence establishes conclusively that there was no actual conflict of interest between petitioner and his co-defendants, and he is thus not entitled to relief on his first ground." The court found that Burns' claim that the sentencing court was without jurisdiction did not present a federal claim. The district court accepted the magistrate's findings and denied Burns his requested relief. Burns now appeals.

Exhaustion of State Remedies

The State argues on appeal that Burns has not exhausted his state remedies regarding his claim of ineffective assistance of counsel because the factual details forming the basis of his present claim (that is, the alibi witness story) were not presented to the state court when he raised the issue there. Both the magistrate and district court found that Burns had exhausted his state remedies regarding this claim. On appeal the State again asserts that although it is true that Burns alleged a "conflict of interest" resulting in ineffective counsel as an issue on state appeal, the allegation was unsupported by any of the facts now introduced, and therefore, was not fully developed or fairly presented for consideration by any state court. Accordingly, the State urges this court to dismiss the petition for non-exhaustion of state remedies.

To demonstrate compliance with the exhaustion requirement, a habeas applicant must show that the federal claim he asserts in federal court has been "fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). In Picard, the Supreme Court stated that "it is not sufficient merely that the federal habeas applicant has been through the state courts.... Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies. Accordingly, we have required a state prisoner to present the state courts with the same claim he urges upon the federal courts." Id. at 275-76, 92 S.Ct. 512, 30 L.Ed.2d at 443-44. The rationale for this requirement is that a federal court should not upset a state court conviction without the state courts first having an opportunity to pass on the matter and to correct the constitutional violation. Id. (citing Fay v. Noia, 372 U.S. 391, 419-20, 83 S.Ct. 822, 838, 9 L.Ed.2d 837 (1963)). Accord, Rose v. Lundy, --- U.S. ----, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). In Galtieri v. Wainwright, 582 F.2d 348 (5th Cir.1978) (en banc), this Court held that "[f]or a claim to be exhausted, the state court system must have been apprised of the facts and the legal theory upon which the petitioner bases his assertion." Id. at 353.

The record reveals that the basis of Burns' ineffective assistance claim in the state court system was quite different from the claim he now presents. When Burns raised this issue in his motion for severance at the state level, he contended that he would be defending himself "in a manner which would conflict with the defense and interests" of one of his co-defendants. Burns reasserted his conflict of interest claim as denying his effective assistance of counsel in his direct appeal to the Texas Court of Criminal Appeals. His brief stated: "Appellant does not desire to lengthen this writing by pointing out specific instances where appellant's trial counsel could have emphasized things that would be beneficial to appellant and detrimental to other co-defendants." Instead, he referred to the reasons in his motion for severance and to the fact that his counsel was representing three other co-defendants as showing an "obvious conflict of interest." In its opinion, the Texas Court of Criminal Appeals acknowledged that it had "examined and read the record," and that it had found none of the " 'specific instances' to which appellant makes reference." The court found that there was no showing of a conflict of interest. Burns did not raise the conflict of interest issue in his pro se state habeas petition.

The "substance" of Burns' claim is quite different in his federal petition. For the first time, he now sets forth the scenario involving the alibi witness. Although petitioner concedes that he did not present these allegations in the state proceeding, he argues that he was never given the opportunity to do so. The state record, however, is simply barren of any hint or reference to a purported alibi defense or the existence of any alibi witness. The vague nature of the allegations in his appeal to the Texas Court of Criminal Appeals belies the contention that he had no opportunity to apprise the court of the contentions underlying his claim. In Hart v. Estelle, 634 F.2d 987 (5th Cir.1981), this court held that state remedies may not be considered exhausted "where entirely new factual claims are made in support of the writ before the federal court." Id. at 989. We believe that the factual bases underlying petitioner's federal claim are significantly different from those underlying his state claim, and therefore, require a finding that Burns has not exhausted his state remedies.

The Exhausted Claims

There remains the question of whether this court should address the merits of petitioner's exhausted claims which the district court erroneously chose to rule upon in considering Burns' "mixed petition." Our analysis requires us to examine what effect the Supreme Court's decision in Rose v. Lundy, supra, has on our decision in Galtieri v. Wainwright, supra.

In Galtieri, this circuit adopted what was then a minority view among the circuits that a federal habeas petitioner was required to exhaust all of his federal claims in state proceedings prior to presenting them to a federal court. We held that a federal district court should dismiss without prejudice a habeas petition filed by a state prisoner containing both exhausted claims and unexhausted claims which did not fit within any exception to the exhaustion doctrine. In so holding, however, we acknowledged that "in the rare event" that a district court...