Clark v. Tansy, 91-2278

• Decision Date: 30 December 1993
• Docket Number: No. 91-2278,91-2278
• Citation: 13 F.3d 1407
• Parties: Terry CLARK, Petitioner-Appellant, v. Robert J. TANSY, Warden; Attorney General for the State of New Mexico, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1407

13 F.3d 1407

27 Fed.R.Serv.3d 887

Terry CLARK, Petitioner-Appellant, v. Robert J. TANSY, Warden; Attorney General for the State of New Mexico, Respondents-Appellees.

No. 91-2278.

United States Court of Appeals Tenth Circuit.

Dec. 30, 1993.

Peter Schoenburg, Albuquerque, NM, for petitioner-appellant.

William McEuen, Asst. Atty. Gen. for the State of N.M. (Tom Udall, Atty. Gen. of New Mexico, with him on the brief), Santa Fe, NM, for respondents-appellees.

Before McKAY, Chief Judge, WOOD, Jr. ^* and ANDERSON, Circuit Judges.

McKAY, Chief Judge.

Terry Clark, a New Mexico state prisoner, appeals both the denial of his motion to dismiss his petition for habeas corpus without prejudice and the district court's holdings on the merits. ¹ Because our judgment on the issue of the district court's denial of Mr. Clark's motion to dismiss without prejudice is dispositive, we do not reach the other aspects of Mr. Clark's appeal.

Mr. Clark was convicted of kidnapping and of first degree criminal sexual penetration under N.M.Stat.Ann. Secs. 30-9-11(A)(1) and 30-4-1(A)(3) (1984), respectively. Mr. Clark appealed these convictions in state court, arguing that the trial court improperly admitted hypnotically-induced evidence in violation of his constitutional rights and that the photo array that the New Mexico police used to identify him was impermissibly suggestive. The New Mexico Court of Appeals affirmed the conviction, and the New Mexico Supreme Court denied Mr. Clark's petition for a writ of certiorari. State v. Clark, 104 N.M. 434, 722 P.2d 685 (Ct.App.), cert. denied, 104 N.M. 378, 721 P.2d 1309 (1986).

Mr. Clark subsequently filed a petition for a federal writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1988), raising the above constitutional objections. Mr. Clark filed his habeas petition pro se, there being no right to counsel in habeas proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987). In its Response, the government argued that Mr. Clark had failed to exhaust his claims in state court, and that the habeas petition should therefore be dismissed. The district court, in an order dated April 27, 1988, rejected the government's argument, and ruled that Mr. Clark had exhausted his claims. The court then appointed the Federal Public Defender's Office to represent Mr. Clark in the habeas proceeding.

Soon after the appointment of the Federal Public Defender's Office to represent Mr. Clark, the government filed a motion to dismiss with prejudice the first ground upon which Mr. Clark's petition was based. The government served this motion upon "the Federal Public Defender's Office" as attorney for Mr. Clark. (R.Vol. I Doc. 9 at 2). Approximately one month later, on July 8, 1988, counsel for Mr. Clark filed his response to this motion to dismiss, marking counsel's first appearance of record.

Eighteen days later, before the district court had ruled on the government's motion to dismiss, before any briefs had been filed, and well before any hearings on the merits of Mr. Clark's habeas petition, Mr. Clark's counsel was able to identify other federal constitutional issues, including ineffective assistance of counsel, that he wished to pursue. Accordingly, Mr. Clark's counsel moved to dismiss the habeas petition without prejudice so that Mr. Clark could exhaust these claims in state court prior to proceeding on habeas corpus. Two weeks after Mr. Clark filed his motion to dismiss, the district court issued its order granting the government's motion to dismiss the first ground of the petition. In this order, despite the fact that Mr. Clark's motion to dismiss had been filed well in advance, the district court made no mention of that motion. Approximately three months later, after repeated prodding from Mr. Clark's counsel, and after granting numerous extensions of time for Mr. Clark to file his brief (these extensions being requested in order to avoid forcing the parties to expend the time necessary to prepare briefs which might be mooted by the granting of the motion to dismiss), the district court summarily disposed of Mr. Clark's motion to dismiss, denying the motion on the ground that both the government and the district court had already spent considerable time on the case.

The habeas proceeding then advanced to hearings on the merits of the claims raised in the petition, and the district court ultimately denied Mr. Clark's claim that the admission of the victim's identification of him prior to and at trial constituted a violation of his constitutional rights. This appeal followed.

The denial of a motion to dismiss a habeas petition without prejudice is reviewed for an abuse of discretion. Hurd v. Mondragon, 851 F.2d 324, 329 (10th Cir.1988). Certain aspects of habeas corpus law, however, mandate more than a superficial review of such a denial. Instead, we must carefully review the circumstances of the denial in order to ensure that the petitioner's ability to present claims of constitutional violations is not abridged merely because the petitioner has unwittingly fallen into a procedural trap created by the intricacies of habeas corpus law.

The habeas corpus statute explicitly requires the petitioner to exhaust his claims in state court prior to proceeding in federal court. 28 U.S.C. Sec. 2254(b). In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court addressed the issue of mixed habeas petitions containing both exhausted and unexhausted claims. The Court held that where a habeas petition contains both exhausted and unexhausted claims, the district court must dismiss the petition, giving the petitioner the choice of re-filing a petition containing solely the exhausted claims and risking loss of the chance to present the unexhausted claims later, or delaying his habeas petition altogether pending the exhaustion of all of his claims. Id. at 521, 102 S.Ct. at 1204; see also Coleman v. Thompson, --- U.S. ----, ---- - ----, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991). This approach was justified on the grounds that comity required that state courts have the opportunity to review all claims of constitutional error. Rose, 455 U.S. at 518-19, 102 S.Ct. at 1203-04. Justice O'Connor, addressing the concerns of Justice Blackmun that the total exhaustion rule would operate as a "trap for the uneducated and indigent pro se prisoner-applicant," id. at 522, 102 S.Ct. at 1205 (Blackmun, J., concurring), noted that the rule would operate to give the habeas petitioner a choice. The petitioner could choose to wait until he had exhausted all of his claims in state court before proceeding on habeas, or he could choose to proceed immediately on the exhausted claims. In the latter case, the petitioner would know in advance that such a deliberate setting aside of unexhausted claims would invoke the risk of dismissal of subsequent petitions on grounds of abuse of the writ. See id. at 520-21, 102 S.Ct. at 1204-05.

Justice O'Connor's response to Justice Blackmun had as one of its bases the desire to frame clearly the choice for the habeas petitioner, and was firmly grounded in the "deliberate bypass" standard for abuse of the writ, which the Court had established in Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963). The petitioner's "entitle[ment] to resubmit a petition with only exhausted claims or to exhaust the remainder of [his] claims," Rose, 455 U.S. at 520, 102 S.Ct. at 1204, thus operated in tandem with the "deliberate bypass" test to ensure that the habeas process flowed smoothly without creating an artificial need for piecemeal adjudication of claims, and without unfairly depriving habeas petitioners of their ability to present claims of constitutional violations. Justice O'Connor reiterated that habeas petitioners would not suffer unfair prejudice from the total exhaustion requirement, noting that it

provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court. Just as pro se petitioners have managed to use the federal habeas machinery, so too should they be able to master this straightforward exhaustion requirement. Those prisoners who misunderstand this requirement and submit mixed petitions nevertheless are entitled to resubmit a petition with only exhausted claims or to exhaust the remainder of their claims.

Id. at 520, 102 S.Ct. at 1204.

However, as this case demonstrates, subsequent changes in habeas law have undermined Justice O'Connor's assurances. The "deliberate bypass" test that provided some of the theoretical justification for the rule adopted in Rose was abandoned in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In McCleskey, the Supreme Court extended the "cause and prejudice" test used in cases of procedural default to cases of repetitive habeas petitions. McCleskey establishes that successive petitions for habeas relief are presumptively deemed abusive once the government shows that the petitioner has previously filed one or more habeas petitions not raising the claims set forth in the current petition. See id. at 493, 111 S.Ct. at 1470. The petitioner must then demonstrate cause for his failure to present the claims in his initial petition, as well as prejudice from that failure. After McCleskey, it is essential that a habeas petitioner exhaust every possible claim in state court prior to proceeding for the first time on habeas.

At the time Rose was decided, a subsequent petition would not have been considered abusive in the absence of a showing that the petitioner had deliberately withheld a claim from his initial petition. Thus, a pro se petitioner did not risk inadvertently foreclosing his right to pursue certain constitutional claims by ignorantly filing a petition that excluded those claims. After McCleskey, however, this is precisely...