Cochran v. Duckworth, 91-3102
| Decision Date | 28 August 1992 |
| Docket Number | No. 91-3102,91-3102 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Gerald COCHRAN, Petitioner-Appellant, v. Jack R. DUCKWORTH, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before EASTERBROOK and KANNE, Circuit Judges, and WOOD, JR., Senior Circuit Judge.
Gerald Cochran appeals the denial of his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Our review of the briefs and the record leads us to conclude that the district court carefully considered all challenges when granting judgment to the United States. We affirm for the reasons stated in the district court's thorough opinion, which is attached.
v.
JACK R. DUCKWORTH, Respondent.
On July 1, 1976, petitioner Gerald Cochran shot and killed Steven Goforth. On January 18, 1977, a Marion Superior Court jury returned a verdict of guilty on a charge of second degree murder, and sentenced Cochran to life imprisonment. The issue Cochran raises in this habeas corpus petition is whether his life sentence violates the Eighth Amendment 2 to the Constitution because the statute under which he was sentenced provided no guidelines to aid the jury in determining whether to impose a sentence of 15 to 25 years or life imprisonment. 3
Though Cochran's habeas petition raises only one issue, two preliminary issues must first be considered before this Court may review the merits of his petition. Specifically, the respondent charges that Cochran's petition must be dismissed: (1) because of the delay in filing the petition; and (2) because Cochran has not exhausted the issue raised in the petition.
Respondent argues that pursuant to Rule 9(a) of the Rules Governing Section 2254 Cases, the petition should be dismissed. Rule 9(a) provides in relevant part, "A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing...."
The advisory committee's notes make it clear that this rule "establishes a presumption that the passage of more than five years from the time of the judgment of conviction to the time of filing a habeas petition is prejudicial to the state." Rule 9(a) advisory committee's note. This presumption of prejudice is rebuttable, and puts the burden on the petitioner of going forward with evidence that the state has not been prejudiced by the passage of time. Id.
This presumption comes into play in the case at bar. Petitioner was convicted January 18, 1977, and he filed his habeas petition January 4, 1988. 4 Thus, nearly 11 years elapsed between his conviction and the filing of this action. Nevertheless, the Court finds this delay does not require dismissal of the petition. Several reasons support this result.
First, Rule 9(a) states that a petition "may" be dismissed based on delay. Thus, the rule is permissive, and vests this Court with "discretion in assessing the equities of the particular situation." Rule 9(a) advisory committee's note. Second, the facts at bar reveal that this Court's discretion is properly exercised in overlooking the petitioner's delay. This is so because, despite the presumption in Rule 9(a), the record discloses no prejudice to the state. The petitioner's argument is purely legal, not factual. The advisory committee's notes make it clear that the prejudice feared in Rule 9(a) involves such concerns as the death of or the inability to locate witnesses, fading witness memories, loss or destruction of court reporters' notes, and the like. None of these factors are involved in this case. Therefore, the delay cannot be said to prejudice the respondent.
Finally, the Court notes that some of the delay involved in bringing this action is understandable. Before bringing a habeas petition, the petitioner must fully exhaust the issues raised in the petition. Cochran's conviction was affirmed by a unanimous Indiana Supreme Court August 7, 1988. In addition, Cochran filed a petition for post-conviction relief ("PCR") with the trial court on January 18, 1980. The PCR petition was denied by the trial court, and the Indiana Supreme Court affirmed this decision March 7, 1983. Slightly less than five years elapsed between the Supreme Court's denial of Cochran's PCR petition and the filing of this action. While not conclusive, this fact bolsters today's holding that the delay involved in this case does not bar the petition.
Respondent next argues that this petition must be dismissed because Cochran has failed to exhaust his state court remedies. Ex parte Royall, 117 U.S. 241 (1886). See also Burgin v. Broglin, 900 F.2d 990, 996 (7th Cir.1990) (). As stated previously, the issue raised in this petition is whether Cochran's life sentence violates the Eighth Amendment to the Constitution because the statute under which he was sentenced provided no guidelines to aid the jury in determining whether to impose a sentence of 15 to 25 years or life imprisonment.
The respondent argues this issue was not presented in the petitioner's appeal. The respondent cites to the petitioner's appellate brief wherein his ground for appeal was stated as follows:
It was error to allow the jury to speculate as the alternative penalties for commission of the same act, to-wit, Murder in the Second Degree, without providing specific guidelines for the selection of the appropriate penalty. It was further error to sentence the Defendant to the penalty of life imprisonment.
(Petitioner's Appellate Brief at 37). Accordingly, the respondent argues that there is no mention that his sentence or the statute is unconstitutional. On the contrary, "Clearly these are issues that have never been fairly presented to the Indiana court and as such they cannot be the basis for federal habeas corpus relief." (Memo in Supp. of Order to Show Cause at 5).
A review of the Indiana Supreme Court's decision on Cochran's direct appeal from his conviction is inconclusive. 5 The Court addressed this issue briefly at the end of its opinion, stating:
Finally, appellant urges that the trial court, through its instructions, did not provide adequate guidelines for the jury to choose between the life sentence and a lesser sentence of fifteen to twenty-five years in prison for the crime of second-degree murder. We have previously dealt with this issue and have found it to be without merit.
Cochran v. State, 378 N.E.2d 868, 870 (Ind.1978). No mention is made that Cochran asserted a constitutional challenge to his sentence.
However, in finding Cochran's argument to be without merit, the Indiana Supreme Court cited Wilson v. State, 374 N.E.2d 45 (Ind.1978). In Wilson, the appellant argued unsuccessfully that the lack of adequate guidelines made the jury's choice of the greater sentence cruel and unusual punishment under Furman v. Georgia, 408 U.S. 238 (1972). Thus, by relying in part on Wilson in affirming Cochran's conviction, it appears for exhaustion purposes that the Indiana Supreme Court considered whether Cochran's sentence withstood Eighth Amendment scrutiny.
In further support of his position that his claim has been exhausted, Cochran notes that his trial counsel specifically objected the standardless jury sentencing, and even cited Furman in so doing. The record reflects that the trial judge agreed that the statute was troublesome, and invited Cochran's counsel to submit a jury instruction on this point. However, the trial court overruled the objection, and counsel never submitted a proposed instruction. (R. at 435-37).
In determining whether an issue has been properly exhausted for habeas purposes, the question is whether the substance of the habeas corpus claim is first presented to the state courts. Picard v. Connor, 404 U.S. 270, 278 (1971). More specifically, the petitioner must afford the state court "an opportunity to apply controlling legal principles to the facts bearing upon [his] constitutional claim." Id. at 277 (quoting Connor v. Picard, 434 F.2d 673, 674 (1st Cir.1970)).
Exhaustion does not require citation to "book and verse on the federal constitution." Picard, 404 U.S. at 278. On the contrary, as one author has noted, "The recent trend seems mercifully to be moving away from niggling interpretations of the exhaustion requirement with regard to claims that are similar but not identical to those presented to the state courts." 1 J. Liebman, Federal Habeas Corpus Practice and Procedure 53 (1988).
Based on the record in this case, the Court concludes that Cochran has properly exhausted the issue of whether his life sentence violates the Eighth Amendment to the Constitution because the statute under which he was sentenced provided no guidelines to aid the jury in determining whether to impose a sentence of 15 to 25 years or life imprisonment. This is particularly so given that petitioner's trial counsel specifically referenced Furman v. Georgia, 408 U.S. 238 (1972), in objecting to the jury instructions, and that in affirming the petitioner's conviction the Indiana Supreme Court cited Wilson v. State, 374 N.E.2d 45 (Ind.1978), which involved Eighth Amendment Furman issues.
Turning then to the merits of Cochran's claim, the issue is whether the Eighth Amendment's prohibition against cruel and unusual punishment is violated in allowing Cochran to be sentenced to life imprisonment for second degree...
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