Burris v. Parke, No. 95-3725

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before POSNER, Chief Judge, and CUMMINGS, CUDAHY, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD, and EVANS; POSNER; MANION, Circuit Judge, with whom KANNE
• Citation: 95 F.3d 465
• Parties: Gary BURRIS, Petitioner-Appellant, v. Al C. PARKE, Superintendent, Indiana State Prison, and Pamela Carter, Attorney General of the State of Indiana, Respondents-Appellees.
• Docket Number: No. 95-3725
• Decision Date: 19 December 1995

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95 F.3d 465 65 USLW 2197 Gary BURRIS, Petitioner-Appellant,
v.
Al C. PARKE, Superintendent, Indiana State Prison, and
Pamela Carter, Attorney General of the State of
Indiana, Respondents-Appellees. No. 95-3725. United States Court of Appeals,
Seventh Circuit. Submitted Nov. 21, 1995.
Decided Nov. 23, 1995.
Reargued En Banc Dec. 19, 1995.
Re-Reargued En Banc June 17, 1996.
Decided Sept. 12, 1996.

Page 466

Alan M. Freedman (argued), Bruce H. Bornstein, Freedman & Bornstein, Chicago, IL, John Blume, Habeas Assistance Project, Columbia, SC, Carol R. Heise, Patricia Mysza, Chicago, IL, Gary Prichard, Glen Ellyn, IL, for petitioner-appellant.

Geoff Davis, Geoffrey Slaughter (argued), Office of Atty. Gen., Indianapolis, IN, for respondent-appellee.

Before POSNER, Chief Judge, and CUMMINGS, CUDAHY, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD, and EVANS, Circuit Judges.

POSNER, Chief Judge.

This death-penalty case, twice reargued before the full court, has a tortured history. In 1981 Gary Burris, convicted in an Indiana state court of a murder committed in 1980, was sentenced to death. The judgment was affirmed by the state's highest court, Burris v. State, 465 N.E.2d 171 (Ind.1984), and Burris then sought postconviction relief in the Indiana courts. On appeal from the denial of relief by the trial court, the state's supreme court upheld the conviction but vacated the death sentence. Burris v. State, 558 N.E.2d 1067 (Ind.1990). A new sentencing hearing was held, and Burris was again sentenced to death. That was in November of 1991. In December of the following year, while Burris's appeal from his second death sentence was pending before the state supreme court, he filed a petition for habeas corpus in federal district court, challenging only his conviction. The district court denied relief. Burris v. Farley, 845 F.Supp. 636 (N.D.Ind.1994). Eight months later the state supreme court affirmed the new death sentence, Burris v. State, 642 N.E.2d 961 (Ind.1994), and some months after that a panel of this court

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affirmed the district court's denial of habeas corpus. Burris v. Farley, 51 F.3d 655 (7th Cir.1995). Burris's execution was scheduled for November 29, 1995.

Two weeks before his scheduled execution, Burris filed another petition for habeas corpus in the district court. In it he alleged a variety of constitutional deficiencies in the second death sentence. The district court dismissed the petition on the ground that it was an abuse of the writ. Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts provides that a second or subsequent petition for habeas corpus may be dismissed without reaching the merits, even if it raises "new and different grounds," if "the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." See also 28 U.S.C. § 2244(b) (as it existed until April 24 of this year). The panel of this court assigned to Burris's appeal (all appeals in the same capital case go to the panel that heard the first one) affirmed the dismissal of his petition, with one judge dissenting. Burris v. Parke, 72 F.3d 47 (7th Cir.1995) (per curiam) (Cudahy, J., dissenting). However, shortly before Burris was due to be executed, the court granted a stay of execution and decided to hear the case en banc. The case was heard on December 19, 1995, but before the decision was rendered the President, on April 24 of this year, signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, which contains provisions curtailing the scope and availability of federal habeas corpus for prisoners generally and condemned prisoners particularly. We ordered that the case be reheard again, to consider the bearing of the new Act on Burris's petition.

The Act amends the habeas corpus statute to provide that a second (or third, etc.) petition must be dismissed unless it presents a claim that either "relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," or that is based on facts that could not have been discovered earlier "through the exercise of due diligence" and if proved would "establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the [petitioner] guilty of the underlying offense." Pub.L. No. 104-132, § 106(b)(2), 110 Stat. at 1220-21 (to be codified at 28 U.S.C. § 2244(b)(2)). Burris does not claim that his second petition satisfies either criterion, but he argues that it is actually a first petition--the first petition attacking his second death sentence as distinct from his conviction, which he attacked separately. If this is right, the new statute permits a state criminal defendant to split his federal collateral attack in two, filing first a petition attacking his conviction (once the state's highest court has upheld it) and then, if the conviction is upheld but the sentence vacated and the case remanded for resentencing, a petition attacking the sentence imposed on remand. We are sure that this is wrong, and not only because guilt and sentencing are successive phases of the same case, rather than different cases. Guilt issues and sentencing issues often overlap, especially in capital cases because of the open-ended character of capital sentencing hearings; so the bifurcated procedure advocated by Burris would increase the burden on the federal courts, contrary to the thrust of the new statute. The procedure he advocates might actually disserve defendants, since the federal court would be deciding the challenge to the defendant's conviction without knowing how severe his sentence would be.

We reject the suggestion that the new one-year statute of limitations in capital habeas corpus cases (see section 101 of the new law, 110 Stat. at 1217, adding 28 U.S.C. § 2244(d)(1)) requires the bifurcated procedure. With immaterial qualifications the year runs from "the date on which the judgment became final by the conclusion of direct review," and we take "judgment" to refer to the sentence rather than to the conviction. That is the federal rule, Fed.R.Crim.P. 32(d)(1), and we think "judgment" in the new statute should bear its federal meaning even though the referent includes state as well as federal judgments. The application of the new statute will be made easier by giving the term a uniform meaning. The federal meaning of "judgment" is the standard one and

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has the advantage of ruling out a procedure--the bifurcated procedure for which Burris argues--that would disserve the statutory objectives.

There is no danger that someone in Burris's position would be prevented from obtaining federal habeas corpus by an unjustified delay in sentencing. If, as in Phillips v. Vasquez, 56 F.3d 1030 (9th Cir.1995), the state without fault on the part of the prisoner simply will not issue a final judgment (in that case ten years had elapsed since the prisoner's conviction had been affirmed but his sentence vacated, and he had not yet been resentenced), the prisoner can seek habeas corpus without fear of being unable to challenge the sentence should it ever be imposed. The panel in Burris's first appeal so implied, see 51 F.3d at 658 (cited with approval in Phillips, 56 F.3d at 1034 n. 3), and we now make the implication explicit. The state would be estopped in such a case to plead the prohibition against the filing of a second or successive petition that does not comply with the strict requirements of the new statute. And the petitioner could protect himself against the risk that the state courts' delay might be found to be justified by explaining in his first petition for federal habeas corpus why he had decided not to wait until he was resentenced and asking the district court to allow him to withdraw the petition if the court determined that the state was not delaying unduly.

That is not our case. Burris did not attempt to justify the filing of a premature petition on the basis of unjustified delay by the state. When he filed the petition, attacking only the conviction, he had already been resentenced and he had no reason to think that the state supreme court would delay unconscionably in deciding his appeal from the second sentence. Nor did it.

So Burris's second petition was indeed a second or successive petition within the meaning of the new (and, we add, the old) law, and as we said it does not satisfy the criteria of the new law for being allowed to file such a petition. But is the new law applicable to proceedings commenced before, or arising out of events occurring before, its enactment? The general answer to this question is found in Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996) (en banc), argued the same day as this case and decided today as well; the answer in the particular circumstances of this case is "no." Because the Antiterrorism and Effective Death Penalty Act does not indicate when the amendment concerning second and subsequent petitions for habeas corpus takes effect--except in states, which Indiana concedes it is not, that have satisfied certain conditions for the processing of capital cases within the state court system, Pub.L. No. 104-132, §§ 107(a), (c), 110 Stat. at 1221, 1226--it takes effect on the date of enactment unless the effect in a case...