Daniels v. Blackburn

• Decision Date: 20 June 1985
• Docket Number: No. 84-3705,84-3705
• Citation: 763 F.2d 705
• Parties: Ernest DANIELS, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary and William Guste, Jr., Attorney General, State of Louisiana, Respondents-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 705

763 F.2d 705

Ernest DANIELS, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary and William Guste, Jr., Attorney General, State of Louisiana, Respondents-Appellees.

No. 84-3705

Summary Calendar.

United States Court of Appeals Fifth Circuit.

June 20, 1985.

Ernest Daniels, pro se.

Harry Connick, William R. Campbell, Jr., New Orleans, La., for respondents-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, REAVLEY, and RANDALL, Circuit Judges.

PER CURIAM:

Ernest Daniels is serving a 99-year sentence for armed robbery in the Louisiana State Penitentiary at Angola. In this case, he seeks a writ of habeas corpus under 28 U.S.C. Sec. 2254. In 1982, we affirmed the dismissal of a prior petition for federal habeas relief. See Daniels v. Maggio, 669 F.2d 1075 (5th Cir.), cert. denied, 459 U.S. 968, 103 S.Ct. 295, 74 L.Ed.2d 278 (1982). The district court dismissed the instant petition for abuse of the writ because Daniels did not offer a valid explanation for having failed to raise his current claims in his prior habeas case. Again, we affirm.

I.

Res judicata principles do not apply in habeas corpus proceedings. See Sockwell v. Maggio, 709 F.2d 341, 343 (5th Cir.1983). It is established, however, as a general rule, that the piecemeal presentation of post-conviction attacks on confinement cannot be tolerated; consideration of the merits of successive petitions for habeas relief must be limited to those cases in which there is a good reason for the petitioner's failure to raise all of his claims at one time. See Rudolph v. Blackburn, 750 F.2d 302, 305 (5th Cir.1984). Rule 9(b) of the Rules Governing Section 2254 Cases provides:

A second or successive petition may be dismissed if the judge finds that 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.

The issue in this case is whether Daniels' presentation of claims in his current petition, because they were not raised in his prior petition, constitutes an abuse of the writ. Before addressing the specifics of Daniels' case, we shall briefly review the substantive and procedural principles that govern this issue. The proper inquiry in determining whether a habeas petitioner has abused the writ by failing to raise claims in a prior habeas petition is not whether the petitioner intended to waive the claims, but "whether he withheld them without legal excuse." Jones v. Estelle, 722 F.2d 159, 163 (5th Cir.1983) (en banc), cert. denied, --- U.S. ----, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984). Legal excuse exists if "new claim[s] [are] based on facts or legal theories about which [the petitioner] had no knowledge when prosecuting his prior habeas petition." Id.; see also Rudolph, 750 F.2d at 305. "A petitioner can prove that he has not abused the writ by showing, for example, [that] new facts have arisen since his prior petition, or that the law has changed in some substantive manner in the interim." Rudolph, 750 F.2d at 305. We have not decided the question whether, in evaluating an abuse of the writ claim, the district court should consider a pro se petitioner's actual knowledge when he filed his first petition or his constructive knowledge. Rudolph, 750 F.2d at 306 n. 7; Jones, 722 F.2d at 163 n. 3. We have decided, however, that, if the petitioner was represented by counsel during a prior habeas proceeding, the district court should, in evaluating an abuse of the writ claim, consider the "knowledge chargeable to ... competent habeas counsel." Jones, 722 F.2d at 167 ("When petitioner was represented by competent counsel in a fully prosecuted writ he cannot by testimony of personal ignorance justify the omission of claims when awareness of those claims is chargeable to competent counsel."). If the competence of counsel in the prior habeas proceeding is not challenged in the subsequent one, the "awareness that a competent lawyer would have possessed" is imputed to the petitioner for purposes of evaluating the reasons proffered for foregoing the presentation of newly asserted claims. Id. at 169.

II.

Abuse of the writ may be pleaded by the state or raised by the district court sua sponte. See Sockwell v. Maggio, 709 F.2d at 344. Once the issue has been raised, the petitioner " 'has the burden of answering that allegation and of proving ... by a preponderance of the evidence that he has not abused the writ.' " Jones, 722 F.2d at 164 (quoting Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948)) (emphasis supplied by Jones ). The petitioner is not necessarily entitled to an evidentiary hearing at which to prove that he has not abused the writ. At a minimum, however, the petitioner must (1) be "notified specifically of the fact that the court [is considering] ... final disposition of the case" and (2) afforded at least ten days in which "to explain [in writing] ... why he failed to raise new grounds in a prior petition." Jones v. Estelle, 692 F.2d 380, 384-85 (5th Cir.1982) (incorporating Rule 56, Fed.R.Civ.P., procedures for use in Rule 9(b) cases). The form appended to Rule 9(b) gives the petitioner adequate notice of the possibility of summary dismissal and of his obligation to respond and to justify the filing of the successive petition. Id. A case may be summarily dismissed if, based upon the petitioner's written response to notice that a Rule 9(b) dismissal is being considered, "the district court determines as a matter of law that petitioner has no chance of justifying the successive petition." Jones, 722 F.2d at 164. "If, [however,] the evidence provided by the parties is inconclusive or if the proof made discloses any genuine issue of material fact, the court must refuse a summary ruling and instead hold an evidentiary hearing to determine the actual facts." Jones, 692 F.2d at 385. We review the district court's determination of these issues for abuse of discretion. Jones, 722 F.2d at 169.

III.

The district court did not abuse its discretion in summarily dismissing Daniels' petition. We note first that the procedural rules for summarily dismissing a successive habeas petition were scrupulously observed in this case. Daniels' petition was filed on March 20, 1984. The state responded on May 30, 1984, and raised the abuse of the writ issue. A magistrate informed Daniels on the form appended to Rule 9(b) that his petition would be considered for Rule 9(b) dismissal. The notice sent to Daniels specifically informed him of the magistrate's view that Daniels "was clearly aware of the facts and law giving rise" to his current claims at the time he filed his first habeas petition. Daniels was afforded an opportunity to respond and, in fact, on July 16, 1984, presented a written justification for the successive petition. On August 9, 1984, the district court dismissed the petition without an evidentiary hearing after specifically finding that "there is no genuine issue of fact" and that, as a matter of law, Daniels' explanation established that he "either deliberately withheld these grounds from his previous petition or was inexcusably neglectful." Because the procedures followed by the magistrate and the district court were entirely proper, the only issue before us is whether the district court erred in determining that Daniels' response to the magistrate's Rule 9(b) notice was inadequate as a matter of law.

To evaluate this issue, a brief review of Daniels' attempts at post-conviction relief is necessary. On direct appeal in the state-court system, Daniels raised six assignments of error: (1) Daniels was denied a transcript of closing argument which prejudiced his ability to assert a claim that the prosecution made prejudicial and inflammatory remarks; (2) Daniels did not effectively consent to the participation of law students in his defense; (3) the jury panel was not selected by lot in open court; (4) the trial judge erred in permitting defense witness Tyrone Simpson to assert his fifth amendment privilege and to refuse to testify on Daniels' behalf; (5) the trial judge unduly restricted impeachment of two prosecution witnesses; and (6) trial counsel provided ineffective assistance. All of these assignments of error were rejected by the Louisiana Supreme Court. See State v. Daniels, 346 So.2d 672 (La.1977).

After his conviction was affirmed, Daniels sought habeas relief, on May 1, 1979, in the state trial court. He was represented by counsel during this proceeding in which his sole allegation was that he received ineffective assistance of counsel at trial. Daniels' defense had been conducted primarily by two law students who were supervised by a licensed attorney. The ineffective assistance of counsel claim was premised on (1) the decision by the law students and the supervising attorney to present evidence from a defense witness by affidavit rather than by live testimony and (2) the general claim that extensive participation by unskilled law students with the aid of a supervising attorney who was inexperienced in criminal matters provided Daniels with an inadequate defense. An evidentiary hearing was held on these claims on June 15, 1979, and relief was denied by the trial court on June 29, 1979. The Louisiana Supreme Court denied review.

On April 3, 1980, Daniels, who was represented by the same attorney who handled the state habeas proceeding, filed a petition for habeas relief in federal district court. The petition alleged ineffective assistance of counsel based again upon the general claim that the law students lacked the skill and experience to present adequately the defense and upon four specific errors allegedly committed at trial: (1) the presentation of the defense witness' testimony by affidavit; (2) the...