Campbell v. Blodgett

• Decision Date: 08 June 1993
• Docket Number: No. 92-35360,92-35360
• Parties: Charles Rodman CAMPBELL, Petitioner-Appellant, v. James BLODGETT, Superintendent of Washington State Penitentiary, Walla Walla, Washington; Kenneth Eikenberry, Attorney General of the State of Washington, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 512

997 F.2d 512

Charles Rodman CAMPBELL, Petitioner-Appellant, v. James BLODGETT, Superintendent of Washington State Penitentiary, Walla Walla, Washington; Kenneth Eikenberry, Attorney General of the State of Washington Respondents-Appellees.

No. 92-35360.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 16, 1992.

Opinion Filed Dec. 24, 1992.

As Amended on Denial of Rehearing

and Rehearing En Banc

June 8, 1993.

David M. Otto, Betts, Patterson & Mines, Seattle, WA, for petitioner-appellant.

Paul D. Weisser, and John M. Jones, Asst. Attys. Gen., Olympia, WA, for respondents-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before HUG, POOLE, and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Charles Campbell appeals from the district court's dismissal of his third petition for federal habeas relief from his state conviction of three counts of aggravated first degree murder and sentence to death. The district court had jurisdiction to consider the petition under 28 U.S.C. §§ 2241(a) and 2254, and this Court has jurisdiction over Campbell's appeal under 28 U.S.C. §§ 1291 and 2253. We affirm.

I Procedural Background

The facts of this case are set out in State v. Campbell, 103 Wash.2d 1, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985), and Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.1987), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). Campbell's 1982 conviction on three counts of aggravated first degree murder and his sentence to death became final on April 29, 1985. Thereafter, Campbell sought state postconviction relief by motion for stay of execution. The state court, treating it as a habeas petition, denied the motion one week before Campbell's scheduled execution. In July 1985, he began his first round of federal habeas corpus proceedings. This first petition raised 61 claims, but since 40 had not been raised in state court as required by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), Campbell amended the petition to present only the 21 exhausted claims. After an evidentiary hearing, the petition was denied on the merits; this Court affirmed the denial in 1987, and the Supreme Court denied certiorari in 1988. Campbell v. Kincheloe (Campbell I), 829 F.2d at 1467; 488 U.S. at 948, 109 S.Ct. at 380.

Campbell sought further state relief in 1989, which was denied. State v. Campbell, 112 Wash.2d 186, 770 P.2d 620 (1989). He then petitioned the federal court a second time for habeas corpus relief. The second petition was also denied, and Campbell's appeal, initially denied in 1992, is pending rehearing en banc in this Court. Campbell v. Blodgett, 978 F.2d 1502 (9th Cir.1992) (Campbell II), vacated, Campbell v. Blodgett, 978 F.2d 1519 (9th Cir.1992) (Order Granting Rehearing en Banc). Pending the appeal from the denial of his second federal petition, Campbell filed a third petition for relief in state court. The Washington Supreme Court denied this petition on the merits. In re Campbell, No. 57406-5 (Wash. March 21, 1991). Campbell filed yet a third federal habeas petition in 1991, and Respondents moved to dismiss the petition as successive and abusive. The district court dismissed the third petition, concluding that all the claims raised therein were successive or an abuse of the writ. The court also ruled that at least two of the claims failed on the merits. Campbell v. Blodgett, No. C91-1420C (W.D.Wash. March 9, 1992). The district court granted Campbell a certificate of probable cause to appeal.

II Successive and Abusive Claims

Campbell raised nine claims in his third petition, eight of which relate to jury instructions and the prosecutor's remarks during Campbell's sentencing proceeding. The ninth alleges a denial of "meaningful appellate review." Campbell asserts that these claims constitute previously unexhausted issues, now disposed of on the merits by the Washington Supreme Court. Respondents argue that in one form or another, all of Campbell's claims either have been previously heard and rejected, or could and should have been raised in prior petitions.

The district court correctly identified the appropriate standard governing the resolution of the question whether the claims were successive and an abuse of the writ. A claim is successive if it was raised in an earlier petition, or if it fails to raise a ground for relief that is new or different than a claim raised in an earlier petition and previously determined on the merits. See 28 U.S.C. §§ 2244(b), 2254 foll. Rule 9 (1988). A "ground" is "sufficient legal basis for granting the relief sought;" a different factual basis or argument asserted to support the same legal theory advanced previously does not constitute a new ground for relief and is successive. Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1077-78, 10 L.Ed.2d 148 (1963). Claims that are not successive may nevertheless be an abuse of the writ. As explained in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), a subsequent habeas petition which raises new grounds need not be considered if the petitioner has, through deliberate abandonment or inexcusable neglect, abused the writ. See id. 499 U.S. ----, 111 S.Ct. at 1466-70.

When a district court denies consideration of the merits of a petition on the ground that it is abusive or successive, we review for abuse of discretion. Sanders v. United States, 373 U.S. 1, 18-19, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963); Neuschafer v. Whitley, 860 F.2d 1470, 1474 (9th Cir.1988), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989). A court abuses its discretion when it bases its decision on an erroneous legal conclusion or on a clearly erroneous finding of fact. Id.

Campbell agrees that the district court selected the appropriate legal standard, but argues that the court erred in rejecting these as successive claims and abuses of the writ. Campbell's argument that the district court erroneously determined his claims to be successive and abusive rests on two contentions: (a) after the state reached the merits of his claims, the district court was bound to consider their merits, and (b) the conditions permitting denial without consideration of the merits, set forth in 28 U.S.C. § 2244(b), ¹ were not met. We conclude that the district court did not abuse its discretion in either respect.

A

We reject Campbell's argument that the district court should have reached the merits of Campbell's claims simply because the Washington Supreme Court found "good cause" to do so. First, nothing in the state court's order intimates a view that the merits of the claims present good cause for review. Quite to the contrary, the Washington Supreme Court implied that Campbell's claims were in fact successive and abusive. It reached the merits nevertheless under its "good cause" exception for doing so. In re Campbell, No. 57406-5 at 2 (Wash. May 15, 1991) (Order Denying Reconsideration).

Second, the determination to reach the merits was made for reasons specific to the state proceedings that lack parallel significance in the federal courts. In stating that the "unique procedural history of this case" qualified as "good cause" to reach the merits of Campbell's claims, the court was referring to the novelty of the state's postconviction proceedings for defendants facing execution.

Mr. Campbell was the first capital defendant prosecuted under RCW 10.95 to file postconviction pleadings. When he initiated that process in 1985, procedures had not yet been developed to deal with the unique aspects of such cases.... [Campbell] has challenged the fairness of the 1985 proceeding.... [W]e considered the merits of all of his present claims in order to put to rest his complaints about that earlier proceeding.

Id. at 2.

By contrast, Campbell is not the first capital defendant to seek postconviction relief in the federal courts, and the procedures for dealing with such cases are well established. Campbell has fully utilized these procedures, and has received the most comprehensive review of his claims to which he is entitled. We need not reach the merits to assure Campbell, and ourselves, that his claims have been fully considered. Indeed, upon determining that claims raised in a habeas petition are successive or abusive, we may not do so; respect for the finality of convictions, and the significant costs of federal habeas review, forbid it.

[A] court may not reach the merits of: (a) successive claims which raise grounds identical to grounds heard and decided on the merits in a previous petition; (b) new claims, not previously raised which constitute an abuse of the writ; or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims.

Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992) (citations omitted). Campbell's claims are not rendered less successive in federal court, or less an abuse of the power of the federal writ of habeas corpus, by the state court's view of its own postconviction proceedings. In other words, what constitutes "good cause" to review successive and abusive claims--in the federal idiom, cause and prejudice--is a matter of federal law.

Which leads to the final point: The district court was not required by any principles of comity and federalism to defer to the judgment of the Washington Supreme Court that its treatment of Campbell's previous state filings for postconviction relief constituted "good cause" to review the claims on the merits. Counsel's arguments regarding procedural bars and deferential federal review of state determinations miss the mark. The state court's determination to reach the merits may, like the lifting of a procedural bar, permit a federal court to do the same, see Ylst v. Nunnemaker, --- U.S. ----,...