Evans v. Thigpen

• Decision Date: 26 June 1987
• Docket Number: Civ. A. No. J87-0081(B).
• Parties: Connie Ray EVANS, Petitioner, v. Morris THIGPEN, Commissioner, Mississippi Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Mississippi

683 F. Supp. 1079

Connie Ray EVANS, Petitioner, v. Morris THIGPEN, Commissioner, Mississippi Department of Corrections, Respondent.

Civ. A. No. J87-0081(B).

United States District Court, S.D. Mississippi, Jackson Division.

June 26, 1987.

COPYRIGHT MATERIAL OMITTED

Shirley Payne, Jackson, Miss., Stephen M. Latimer, Bloomfield, N.J., for petitioner.

Marvin L. White, Jr., Atty. General's Office, Jackson, Miss., for respondent.

MEMORANDUM OPINION AND ORDER

BARBOUR, District Judge.

This matter is now before the Court upon the Petitioner's second petition for federal habeas corpus relief under 28 U.S.C. § 2254. Petitioner Evans pled guilty to the capital murder of a grocery store clerk in October of 1981, and the court proceeded to hold a trial on the sole issue of what sentence he should receive. Evans was sentenced to death by a jury verdict. The facts of the crime and previous court rulings are set out in prior opinions.¹ This Court will relate the facts only as they touch on the issues presented here.

Petitioner now asserts two claims in his second petition for habeas corpus relief:

(1) systematic exclusions of Blacks from the jury which sentenced him and from prior juries, and

(2) ineffective assistance of counsel at trial and on appeal.

Second or successive habeas corpus petitions are governed by 28 U.S.C. § 2254 and Rule 9(b) of the Rules Governing Section § 2254 cases. Rule 9(b) 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 primary responsibility for deciding whether a petitioner has abused the writ is with the district court. Jones v. Estelle, 722 F.2d 159, 165 (5th Cir.1983). Abuse of the writ may be pleaded by the state or raised by the district court sua sponte. Daniels v. Blackburn, 763 F.2d 705, 707 (5th Cir.1985). Once abuse of the writ is raised, the petitioner has the burden of proving by a preponderance of the evidence that he has not abused the writ. Id.; Jones, 722 F.2d at 164. The State raised this issue in a motion to dismiss the petition. Petitioner responded by asserting in two affidavits of his previous attorneys and in a portion of his brief in support of the petition that he had not abused the writ. Therefore, Petitioner Evans has received the proper notice to rebut evidence of abuse of the writ. See Urdy v. McCotter, 773 F.2d 652, 656-57 (5th Cir.1985) (adequate notice must inform petitioner that dismissal based on an abuse of the writ is being considered).

The two issues presented in this second federal habeas corpus petition were not wholly asserted in the first federal petition before this Court. During the pendency of the first petition for writ of habeas corpus the Petitioner gained more factual information by which to assert these two claims and presented them before the Mississippi Supreme Court in a Petition for Writ of Error Coram Nobis. The Petitioner states by affidavit of counsel that he intended to exhaust his state judicial remedies and, if the state court denied these remedies, then Petitioner intended to join these issues with the first federal petition by amendment. The state court denied these claims on February 19, 1986. See Evans v. State, 485 So.2d 276 (Miss.1986). The Petitioner then filed a petition for writ of certiorari to the Mississippi Supreme Court with the United States Supreme Court. The high court denied certiorari on June 9, 1986. Evans v. Mississippi, 476 U.S. 1178, 106 S.Ct. 2908, 90 L.Ed.2d 994 (1986). The Petitioner asserts he intended to join these two claims with the first federal petition, but this Court denied the first petition before he could assert these additional claims. This Court rendered its decision on March 21, 1986, one month after the state's decision on these claims. See Evans v. Thigpen, 631 F.Supp. 274 (S.D.Miss.1986). Petitioner proceeded to appeal the denial of the federal habeas relief to the Fifth Circuit but denial of this first petition was affirmed by the United States Court of Appeals for the Fifth Circuit on January 22, 1987. See Evans v. Thigpen, 809 F.2d 239 (5th Cir.1987). A rehearing petition was denied on March 12, 1987.

Petitioner has now chosen to raise the claims of systematic exclusion of black potential jurors from juries and ineffective assistance of counsel in this second habeas corpus petition. It is established 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. Daniels, 763 F.2d at 706. The proper inquiry in determining whether a habeas petitioner has abused the writ by failing to raise claims in a prior federal habeas petition is not whether the petitioner intended to waive the claims, but "whether he withheld them without legal excuse." Id. at 707. The Fifth Circuit has held, however, that a "petitioner may assert a new claim in a successive petition so long as it is based on facts or legal theories about which the petitioner had no knowledge when prosecuting the petitioner's prior habeas petition." Urdy, 773 F.2d at 655; Jones, 722 F.2d at 163. In this case the Petitioner had knowledge of these two claims at the time his prior federal petition was pending. Petitioner is presently represented by the same counsel that represented him on his first habeas corpus petition.

The Fifth Circuit has held that the sole fact that new claims were unexhausted when the earlier federal writ was prosecuted will not automatically excuse their omission. Rudolph v. Blackburn, 750 F.2d 302, 305 (5th Cir.1984); Jones, 722 F.2d at 162, 168. This Court recognizes, however, that Petitioner Evans intended to present the two claims in his first petition by amendment, but failed to act promptly enough to amend the first petition after he had exhausted them in the state court. The Petitioner was attempting to comport with the exhaustion requirement of Section 2254(b). Even though the Petitioner had some factual knowledge on which to base these claims in the prior proceeding, this Court finds that counsel's good-faith efforts to join them to the first petition presents a justifiable reason for failure to include them in the first petition. The affidavits of counsel establish that Petitioner did not act with intent to "vex, harass, or delay." See Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The Petitioner did not deliberately withhold the newly asserted grounds from the earlier application. The Court finds that this is not a proper situation in which to find "abuse of the writ." See Paprskar v. Estelle, 612 F.2d 1003, 1007 (5th Cir.1980).

The State argues in its response to the Petition that the two claims Evans asserts are procedurally barred. Petitioner filed his second state post-conviction petition on July 12, 1985, under the Uniform Post-Conviction Collateral Relief Act, Miss.Code Ann. §§ 99-39-1, et seq. (Supp.1984), with the Mississippi Supreme Court. The issues raised were the same ones as now presented here, systematic exclusion of Blacks and ineffective assistance of counsel. On February 19, 1986, the Mississippi Supreme Court denied relief by holding that the issues raised were procedurally barred. Evans, 485 So.2d at 281-82. As to the claim under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), for systematic exclusion of Blacks from juries, the Mississippi Supreme Court noted the length of the litigation and that three different sets of counsel had worked on the case. Evans, 485 So.2d at 282.

Throughout all this litigation, including an application for leave to file petition for writ of error coram nobis on July 1, 1983, the application attempts to raise the question for the first time.

We are of the opinion that under the Post-Conviction Relief Act and case law of this state, the claim is barred.

Id. In regard to the claim of ineffective assistance of counsel at trial and on appeal, the Mississippi court stated:

Petitioner had the opportunity to raise the issue of ineffective assistance of counsel in his application for leave to file a petition for writ of error coram nobis on July 1, 1983. Although petitioner was represented by counsel different from trial counsel, the claim of ineffective assistance was not raised. We now look to see whether petitioner has satisfied the requirements of "cause" and "prejudice" in Section 99-39-21(4) and (5), and whether petitioner is deemed to have waived address of the issue of ineffective of assistance, since he has failed to raise the question when the opportunity presented itself.

* * * * * *

We are of the opinion that the "cause" provision in sub-section (4) has not been met.

Id. at 280-81. The Mississippi court invoked its procedural ground that a claim which had not been raised at trial or on appeal could not be raised absent a showing of cause and prejudice. See Miss.Code Ann. § 99-39-21(1) (Supp.1985).

As previously held by this Court in the first habeas corpus petition, this Court will on federal habeas review honor the state court's invocation of its procedural default rules unless the requisite showing of cause and actual prejudice has been made to explain the default. Evans v. Thigpen, 631 F.Supp. at 279; see also Edwards v. Thigpen, 595 F.Supp. 1271, 1277-79 (S.D.Miss.1984). The Court will therefore inquire into the cause for the failure to raise these claims earlier and the prejudice to the petitioner for this failure. See Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Engle v. Isaac, 456 U.S. 107, 102 S.Ct....