Coleman v. Saffle

Decision Date06 March 1989
Docket NumberNo. 87-2011,87-2011
Citation869 F.2d 1377
PartiesCharles Troy COLEMAN, Petitioner-Appellant, v. James SAFFLE, Warden, Oklahoma State Prison, Larry Meachum, Director, Department of Corrections, and Attorney General of the State of Oklahoma, Robert Henry, Respondents-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Mandy Welch of Payne & Welch, Hugo, Okl. (John Thomas Hall, Tulsa, Okl., with her on the briefs) for petitioner-appellant.

David W. Lee, Asst. Atty. Gen., Chief, Crim. & Federal Divisions (Robert H. Henry, Atty. Gen. of Oklahoma, Susan Stewart Dickerson, Asst. Atty. Gen., Deputy Chief, Crim. Div., M. Caroline Emerson, Sandra D. Howard, and Michael W. Elliott, Asst. Attys. Gen., with him on the briefs) State of Okl., Okl. City, Okl., for respondents-appellees.

Before HOLLOWAY, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

Petitioner, Charles Troy Coleman, is under a sentence of death as a result of an Oklahoma state court conviction for first-degree murder. In this, his second federal petition for habeas corpus relief, Coleman argues that this court must vacate his death sentence because of the following alleged constitutional errors: (1) the sentencing jury found one of five aggravating circumstances was present--that the murder was "especially heinous, atrocious, or cruel"--after it was instructed in an unconstitutional manner; (2) this court's invalidation of Oklahoma's application of the "heinous, atrocious, or cruel" circumstance renders some of the evidence introduced at Coleman's sentencing hearing constitutionally inadmissible; (3) the trial court's anti-sympathy instruction at the sentencing stage unconstitutionally diverted the jury from fully considering mitigating evidence; and (4) certain statements by the prosecutor and photographs allowed into evidence at the guilt stage constituted comments about the victim in violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). The district court denied relief.

The facts of this case are set out in our opinion affirming an earlier denial of habeas relief. See Coleman v. Brown, 802 F.2d 1227 (10th Cir.1986) (Coleman I ), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987). We will repeat here only such facts as are necessary to an understanding of the issues we must decide.

In 1979, an Oklahoma jury convicted Coleman of first degree murder and, after hearing evidence produced at a separate sentencing hearing, determined that all five of the statutory aggravating circumstances alleged by the state were present. The jury then sentenced Coleman to death. One of the aggravating circumstances found by the jury was that the murder was "especially heinous, atrocious, or cruel." See Okla.Stat.Ann. tit. 21, Sec. 701.12(4). 1

The Oklahoma Court of Criminal Appeals affirmed Coleman's conviction and sentence. Coleman v. State, 668 P.2d 1126 (Okla.Crim.App.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 986, 79 L.Ed.2d 222 (1984). Coleman then filed an application for post-conviction relief in an Oklahoma state district court. That court's denial of relief was affirmed on appeal. Coleman v. State, 693 P.2d 4 (Okla.Crim.App.1984). He next turned to the federal courts for habeas corpus relief, and this court affirmed the denial of his petition. Coleman I, 802 F.2d 1227.

Coleman thereafter filed a second habeas petition in state district court, whose denial of relief was affirmed in an unpublished order by the Court of Criminal Appeals. While his state petition was still pending, Coleman filed another habeas application in federal district court, raising numerous issues. When the district court denied relief, he appealed to this court. We granted a stay of execution pending the resolution of the appeal.

I Abuse of the Writ

Coleman's first allegation of constitutional error is that the jury imposed the death sentence after receiving an unconstitutional instruction regarding the aggravating circumstance that the murder was "especially heinous, atrocious, or cruel." See Cartwright v. Maynard, 822 F.2d 1477 (10th Cir.1987) (en banc), aff'd, --- U.S. ----, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (holding unconstitutional Oklahoma's construction and application of this circumstance).

Before we reach the merits of this contention, we must address whether procedural rules bar our consideration of the claim. The state argues that because Coleman should have raised this issue earlier, he has abused his right to apply for a writ of habeas corpus, and we should dismiss this part of the petition without reaching its merits. 2 Accepting this argument, the district court dismissed the current petition.

A federal court may dismiss a subsequent or successive petition for a writ of habeas corpus if "it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." 28 U.S.C. foll. Sec. 2254 Rule 9(b). This rule is repeated in slightly different words in 28 U.S.C. Sec. 2244(b), which states that a court need not consider a petition unless it "alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ."

These "abuse of the writ" rules were developed to give finality to judgments, while permitting petitioners the greatest possible opportunity to vindicate their constitutional rights. See Kuhlmann v. Wilson, 477 U.S. 436, 451-52, 106 S.Ct. 2616, 2625-26, 91 L.Ed.2d 364 (1986) (plurality opinion). In our analysis, we must distinguish between claims raised and reached on the merits in an earlier habeas petition, referred to as "successive petitions," and claims raised for the first time in a subsequent petition. Id., 477 U.S. at 444 n. 6, 106 S.Ct. at 2622 n. 6.

In arguing that we should not consider Coleman's claim, the state, relying on Kuhlmann, asserts that a court should consider a petitioner's second petition only when "the prisoner supplements his constitutional claim with a colorable showing of factual innocence." Kuhlmann, 477 U.S. at 454, 106 S.Ct. at 2627. But Kuhlmann was a successive petition case; the Supreme Court has never indicated its "factual innocence" test should apply to subsequent petitions raising new claims. Further, the factual innocence test only applies when the petitioner is relying on the "ends of justice" doctrine to mandate consideration of the claims. Id., 477 U.S. at 451, 454, 106 S.Ct. at 2625, 2627; see Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963) (prior denial of petition bars later claim if same ground was previously presented and determined adversely to petitioner, prior decision was on the merits, and ends of justice would not be served by deciding petition on merits). Because Coleman's allegation regarding the heinous, atrocious, or cruel circumstance was neither presented nor decided in his first federal habeas action, we need not apply the factual innocence criteria or the three-part Sanders test.

Even though Coleman has not previously raised the invalid aggravating circumstance argument, his claim still may be barred. Rule 9(b) and 28 U.S.C. Sec. 2244 mandate that the courts should dismiss subsequent petitions when the petitioner has offered no reasonable explanation why he did not raise his claim in the earlier application. See Kuhlmann, 477 U.S. at 444 n. 6, 106 S.Ct. at 2622 n. 6 (because habeas relief is of an "equitable nature," petitioner's subsequent application may be dismissed, though it raises new issues, if petitioner has acted to disqualify himself from relief); Sanders, 373 U.S. at 10, 83 S.Ct. at 1074. Specifically, Coleman must show that he or his counsel in the earlier petition did not intentionally abandon or inexcusably neglect the new claim, Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.), cert. denied, 470 U.S. 1039, 105 S.Ct. 1415, 84 L.Ed.2d 801 (1985), and that he did not deliberately withhold the claim or at least has a good reason for not previously raising it. Woodard v. Hutchins, 464 U.S. 377, 379 & n. 3, 104 S.Ct. 752, 753 n. 3, 78 L.Ed.2d 541 (1984) (Powell, J., concurring, joined by four other justices). Coleman can satisfy part of this burden by showing, by a preponderance of the evidence, that he did not know of the specific legal or factual grounds for the claim when he filed his earlier petition, Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir.), cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985), or that the law has changed since the earlier petition, Sanders, 373 U.S. at 17, 83 S.Ct. at 1078; Tucker v. Kemp, 818 F.2d 749, 752 (11th Cir.1987). But even if the law has changed since the earlier petition Coleman also must show that he or his attorney reasonably should not have been aware of the possibility or legal basis for such a claim. Bowden v. Kemp, 793 F.2d 273, 275 & n. 4 (11th Cir.), cert. denied, 477 U.S. 910, 106 S.Ct. 3289, 91 L.Ed.2d 576 (1986); Moore v. Blackburn, 774 F.2d 97, 98 (5th Cir.1985), cert. denied, 476 U.S. 1176, 106 S.Ct. 2904, 90 L.Ed.2d 990 (1986).

Once the state adequately raises the abuse of the writ issue with clarity and particularity, as the state did in this case, the burden shifts to the petitioner to show, by a preponderance of the evidence, that he has not abused the writ procedure. Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948); Jones v. Estelle, 722 F.2d 159, 164 (5th Cir.1983), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984); 28 U.S.C. foll. Sec. 2254 Rule 9 Advisory Committee Notes. Coleman ultimately bears...

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