Burris v. Farley

• Decision Date: 28 March 1995
• Docket Number: No. 94-1328,94-1328
• Citation: 51 F.3d 655
• Parties: Gary BURRIS, Petitioner-Appellant, v. Robert A. FARLEY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 655

51 F.3d 655

Gary BURRIS, Petitioner-Appellant, v. Robert A. FARLEY, Warden, Respondent-Appellee.

No. 94-1328.

United States Court of Appeals,

Seventh Circuit.

Argued March 6, 1995.

Decided March 28, 1995.

David Vandercoy (argued), Valparaiso University Law Clinic, Valparaiso, IN, for petitioner-appellant.

Wayne E. Uhl, Dist. Atty. Gen. (argued), Indianapolis, IN, for respondent-appellee.

Before CUDAHY, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

One day in January 1980 Gary Burris decided that he needed money in the worst way--and that is how he set out to obtain it. Burris called for a taxi. When the cab arrived, Burris and two friends entered, robbed the driver, forced him to remove his clothes, and shot him in the temple as he begged for mercy. Police discovered the driver in an alley, his hands tied behind his back, unclothed except for socks, held fast to the ground by his own frozen blood. They found the murder weapon hidden in loudspeakers owned by Burris's girlfriend, whose sister saw him with wads of $1 and $5 bills the night of the murder. The taxi itself was nearby, and Burris had flushed the driver's run sheet down his toilet. Burris later said that he executed the driver--as he had planned to do before calling the cab--to eliminate any witness. He had done time, Burris related, and "wasn't going back to the joint." Well, he is again in "the joint," but the State of Indiana does not want him to remain. Burris has been sentenced to die for his crime. He seeks relief under 28 U.S.C. Sec. 2254.

A jury convicted Burris in December 1980. The jury later recommended capital punishment. The judge agreed and imposed a death sentence in February 1981. In June 1984 the Supreme Court of Indiana affirmed. Burris v. State, 465 N.E.2d 171 (Ind.1984). A petition for collateral review in state court followed. The Supreme Court of Indiana ultimately rejected all of Burris's challenges to the conviction but concluded that disparaging comments by his attorney entitled him to another penalty trial. Burris v. State, 558 N.E.2d 1067, 1073-77 (Ind.1990). After the new jury was unable to make a unanimous recommendation concerning the appropriate penalty, the judge made the decision himself, again sentencing Burris to death. (The jury's sentencing recommendation is not binding in Indiana. Schiro v. Farley, --- U.S. ----, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994); cf. Harris v. Alabama, --- U.S. ----, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995).) Burris took his third appeal to the Supreme Court of Indiana.

While that appeal was pending, Burris filed a petition under Sec. 2254 in federal court. Sentencing issues obviously had not been exhausted, so Burris confined his arguments to those potentially affecting the judgment of conviction. His lawyer was well aware that other issues would become salient if the Supreme Court of Indiana were to affirm the death sentence, but he elected to pursue the exhausted claims immediately. Burris lost in both forums. The district court denied the petition, 845 F.Supp. 636 (N.D.Ind.1994), and the Supreme Court of Indiana affirmed the sentence, 642 N.E.2d 961 (Ind.1994). Briefing of Burris's appeal in this court was completed before the Supreme Court of Indiana affirmed the death sentence; now, fearing that the state will characterize any collateral attack on the sentence as an abuse of the writ, see McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Gomez v. United States District Court, 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992), Burris wants to pretend that these federal proceedings never happened. He asks us to vacate the district court's judgment without considering his appeal on the merits and to remand so that he may file a new petition challenging both conviction and sentence.

What Burris wants is a summary decision that successive collateral attacks would not abuse the writ of habeas corpus. Yet McCleskey holds that abuse of the writ is an affirmative defense. 499 U.S. at 477, 111 S.Ct. at 1461. Burris has yet to file a collateral attack on his sentence, and the state therefore has yet to interpose a defense. We asked Burris's lawyer at oral argument when the petition would be filed and what issues it would raise; counsel said he had no idea. Although Burris may have a persuasive answer if the state interposes the abuse-of-writ defense in the future, nothing we have seen makes this defense so airtight that we should preempt the subject. Instead we follow the norm that federal courts resolve with dispatch the cases before them, rather than protracting matters while prisoners add additional claims. In re Blodgett, 502 U.S. 236, 112 S.Ct. 674, 116 L.Ed.2d 669 (1992); In re Blodgett, --- U.S. ----, 113 S.Ct. 1965, 124 L.Ed.2d 66 (1993) (O'Connor, J., in chambers).

When a state handles his case in glacial fashion, a prisoner need not wait for global warming to set in. Lane v. Richards, 957 F.2d 363 (7th Cir.1992). The extended proceedings needed to fix the penalty for murder need not imply that a person with a colorable claim of innocence must cool his heels in prison for a decade or more before being entitled to present to a federal court his challenge to the judgment of conviction; and we doubt that Indiana believes that a prisoner whose principal hope lies in setting aside his conviction must stake his life on prevailing (because, if he loses, he forfeits any entitlement to contest the penalty later). Yet Burris does not argue that Indiana has delayed unduly. He defends his petition not by saying that delay authorized a filing but by saying that the lapse of time compelled him to file--that he had to commence his challenge in 1992 to avoid the possibility that the state could assert untimeliness under Rule 9(a) of the Rules Governing Section 2254 Cases in the United States District Courts. That argument is ethereal to the point of invisibility.

When he filed his petition in the district court, Burris was pursuing a direct appeal of his sentence to the Supreme Court of Indiana. We have not found any case holding that a prisoner must file under Sec. 2254 while the state's appellate process is ongoing in order to avoid a defense of delay under Rule 9(a); the only court that has addressed the question has held the opposite. Fell v. Rafferty, 736 F.Supp. 623, 626-29 (D.N.J.1990). Cf. Oses v. Massachusetts, 961 F.2d 985, 987 (1st Cir.1992). Burris had ready solutions if he was unwilling to rely on Fell: he could have filed his petition and asked the district court to stay proceedings until the Supreme Court of Indiana acted on the sentencing appeal; or he could have asked the district court to require the state to elect between consolidating all claims in one petition, thus waiving its rights under Rule 9(a), and expeditious decision on all challenges to the conviction, thus waiving its rights under Rule 9(b). We have recommended the former course in civil litigation when one or more legal theories is unripe. For example, a fired employee may have claims under state contract law and federal antidiscrimination law. The contract claim is ripe immediately, and the statute of limitations is ticking; the federal claim will not be ripe until the processes of the EEOC have been exhausted. Would-be plaintiffs still must consolidate these claims in a single proceeding, and if they fail to do so the second will be dismissed under the doctrine of claim preclusion. Litigants may protect themselves by filing the state-law claim in time to satisfy the statute of limitations and asking the district court to suspend proceedings until the federal-law claim can be added. Brzostowski v. Laidlaw Waste Systems, Inc., 49 F.3d 337 (7th Cir.1995); Herrmann v. Cencom Cable Associates, Inc., 999 F.2d 223, 225 (7th Cir.1993); Shaver v. F.W. Woolworth Co., 840 F.2d 1361, 1365 (7th Cir.1988). This is equivalent to filing a petition raising all exhausted issues and asking the court for a stay until the remaining issues have been exhausted. Instead Burris pressed ahead, seeking (and receiving) an immediate decision even though other issues were percolating through state court. This strategy all but dares the state to argue that a later petition is an abuse of the writ. Rose v. Lundy, 455 U.S. 509, 520-21, 102 S.Ct. 1198, 1204-05, 71 L.Ed.2d 379 (1982) (O'Connor, J., concurring). Burris must meet that defense if and when the state interposes it. The motion to remand is denied, and we proceed to the merits.

Burris's principal argument is that the jury instructions misdescribed the elements of felony murder. Indiana defines a death in the course of a robbery as murder. Ind.Code Sec. 35-42-1-1(2). Robbery in Indiana has (or had at the time of the killing; we disregard later amendments) three degrees: taking property by threatening or using force, or putting the victim in fear, is a Class C felony; committing these acts while armed with a deadly weapon is a Class B felony; if the robbery "results in either bodily injury or serious bodily injury" it is a Class A felony. Ind.Code Sec. 35-42-5-1. Indiana also defines as "involuntary manslaughter" a killing in the course of committing any Class C felony. Ind.Code Sec. 35-42-1-4(1). Death during simple robbery thus is involuntary manslaughter; it can't also be murder, Burris insists, so the judge should have instructed the jury that the state had to prove a Class A robbery as the predicate offense under the felony murder rule. There are four problems with this argument, each dispositive against it.

First, it was not presented at trial or on direct appeal and therefore has been forfeited. Coleman v. Thompson, 501 U.S. 722, 744-51, 111 S.Ct. 2546, 2561-66, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See also Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). Burris first advanced the argument in its current form on collateral review; the...