Farmer v. McDaniel

• Decision Date: 29 October 1996
• Docket Number: No. 95-99016,95-99016
• Citation: 98 F.3d 1548
• Parties: 96 Cal. Daily Op. Serv. 7885, 96 Daily Journal D.A.R. 13,088 Robert Jeffrey FARMER, Petitioner-Appellee, v. E.K. McDANIEL; * Attorney General of the State of Nevada, Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1548

98 F.3d 1548

96 Cal. Daily Op. Serv. 7885, 96 Daily Journal

D.A.R. 13,088

Robert Jeffrey FARMER, Petitioner-Appellee, v. E.K. McDANIEL; ^* Attorney General of the State of Nevada, Respondents-Appellants.

No. 95-99016.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 18, 1996.

Decided Oct. 29, 1996.

Robert E. Wieland, Deputy Attorney General, Carson City, NV, for respondents-appellants.

Michael Pescetta, Assistant Federal Public Defender, Las Vegas, NV, for petitioner-appellee.

Appeal from the United States District Court for the District of Nevada, Lloyd D. George, District Judge, Presiding. D.C. No. CV-S-93-0434-LDG.

Before: SCHROEDER, RYMER and KLEINFELD, Circuit Judges.

RYMER, Circuit Judge:

This appeal requires us to consider a novel, but narrow question: whether an amended third habeas corpus petition by a prisoner in state custody may be subject to dismissal for abuse of the writ even though prior petitions were dismissed for failure to exhaust and thus were not reviewed on the merits. ¹ The district court thought not, but the State of Nevada wants the opportunity to argue that Robert Jeffrey Farmer has filed a series of petitions with new, unexhausted claims to avoid (and delay for more than seven years) a review of his sentence and conviction in federal court. It has timely appealed a judgment dismissing Farmer's amended third petition pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

Although Farmer submits that dismissal of his amended third petition without prejudice is not a final, appealable order, and that the state lacks standing to appeal from an order in its favor, we think otherwise. As a practical matter, dismissal of Farmer's petition put an end to this action in the district court and, despite prevailing to the extent that Farmer is required to exhaust claims that the state contends were unexhausted, Nevada did not get all that it wanted--dismissal with prejudice of claims asserted for abuse of the writ--but instead faces the prospect of further litigation on these claims in a different forum. For this reason the State has standing to appeal from that part of the order that is unfavorable to it. Having jurisdiction, we conclude that when the state alleges that the grounds for relief alleged in a second or subsequent petition are "new and different" under Rule 9(b) of the Federal Habeas Corpus Rules, abuse of the writ analysis is not foreclosed as a matter of law solely because prior petitions have not been reviewed on the merits. Rather, this should simply be an important factor that informs the district court's discretion in applying the abuse of the writ doctrine. We therefore vacate the district court's judgment and remand for it to consider whether any of the grounds alleged in the amended petition are "new and different" from those grounds alleged in Farmer's second petition and, if so, whether Farmer's failure to assert those grounds in his prior (second) petition was an abuse of the writ.

I

Farmer murdered a man the night of January 18-19, 1982. On March 26, 1984, he pleaded guilty to murder in the first degree and was sentenced to death. The Nevada Supreme Court affirmed his conviction and sentence August 27, 1985, Farmer v. State of Nevada, 101 Nev. 419, 705 P.2d 149 (1985), and the United States Supreme Court denied his petition for certiorari, Farmer v. Nevada, 476 U.S. 1130, 106 S.Ct. 1999, 90 L.Ed.2d 679 (1986).

On September 16, 1986, Farmer filed a petition for a writ of habeas corpus in the state trial court and a week later, filed his first petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court. The federal petition, filed with the assistance of counsel, sought a stay of execution, which the district court entered. The petition also, however, alleged different grounds for relief from those being pursued in state court, which prompted the district court to warn Farmer that his failure to assert grounds known to him in his federal petition may bar the assertion of such grounds in a future federal petition as an abuse of the writ. ² As a result, Farmer moved to dismiss the petition without prejudice. The district court so ordered February 6, 1987, to permit Farmer to exhaust state remedies. Although the court also vacated the stay of execution, it appears that no new date was set while state habeas proceedings were pending.

The Nevada Supreme Court ultimately refused to address the merits of Farmer's claims because they "have been either procedurally barred, or [ ] Farmer has failed to sustain his burden of proof or show prejudice." Farmer v. Director, Nevada Dept. of Prisons, 104 Nev. 856, 809 P.2d 603 (1988) (unpublished disposition). The United States Supreme Court denied certiorari February 27, 1989. Farmer v. Sumner, 489 U.S. 1060, 109 S.Ct. 1331, 103 L.Ed.2d 599 (1989).

Farmer filed his second federal habeas petition April 7, 1989. The district court stayed Farmer's rescheduled execution date of May 2, 1989; appointed new counsel to represent him in the federal proceedings; and again cautioned Farmer that if he "fails to include all possible grounds for relief, he may later be precluded from raising the previously omitted grounds because the omission may be considered an abuse of the writ" under Rule 9(b). On July 13, 1989, Farmer moved to dismiss his second petition without prejudice because "he has claims to raise which have not heretofore been raised in state court, and therefore could not raise in this petition due to the exhaustion of state remedies requirement." Nevada opposed dismissal on the ground that the claims Farmer wanted to exhaust in the state court either were not legitimate constitutional claims or were procedurally barred. Meanwhile, Farmer asked the court to hold the federal proceeding in abeyance rather than dismiss it, in the event the state court refused to issue a stay. However, the court again dismissed Farmer's petition without prejudice under Rose v. Lundy, ³ and dissolved the stay of execution.

Farmer then started a new round of state proceedings, which ended when the Nevada Supreme Court dismissed his appeal from the dismissal of his petition for post-conviction relief. On May 11, 1993, Farmer filed his third federal habeas petition. Nevada moved to dismiss the petition with prejudice as an abuse of the writ under Rule 9(b), and also raised exhaustion and procedural default defenses. The district court denied Nevada's motion to dismiss as premature; rejected Nevada's abuse of the writ defense since Farmer's two prior federal habeas petitions "were dismissed by the court because they included unexhausted claims; they were not dismissed on the merits of those claims"; and, responding to McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), allowed Farmer six months to amend his third federal petition setting forth "all possible grounds for relief."

Pursuant to this order, Farmer filed his amended third petition for writ of habeas corpus August 15, 1994. He alleged that 10 of its 27 claims had "arguably" been exhausted, but that none had been deliberately withheld or waived. Contending that Rule 9(b) covers situations in which new claims are raised which were not raised in the first petition, and relying on the decision of the United States Supreme Court in McCleskey, Nevada moved to dismiss the petition with prejudice on the ground that the court was obliged to conduct an abuse of the writ inquiry in light of Farmer's writ history (which, in the state's view, would show that the amended third petition was filed only to vex, harass and delay, and that the new claims of error could and should have been exhausted in accordance with the court's prior orders) before it reached whatever Rose v. Lundy problems continued to lurk in the third amended petition. The state also argued that the unexhausted claims were procedurally barred, and conclusory. As before, Farmer requested dismissal without prejudice so that he could return to state court to exhaust his new and unexhausted claims. Noting that all of the state's other arguments were addressed when its first motion to dismiss was denied, the district court again dismissed pursuant to Rose v. Lundy, advising that "this will be the only opportunity to return to state court to exhaust any unexhausted grounds." ⁴

Nevada filed a timely notice of appeal from the district court's "Order Dismissing Mixed Petition and the Judgment in a Civil Case entered June 27, 1995 as to all issues of law." ⁵ Farmer moved to dismiss for lack of jurisdiction. We consider this motion first.

II

Farmer challenges our jurisdiction because the district court's disposition is not a final order, and because Nevada is not an aggrieved party inasmuch as dismissal on exhaustion grounds favors the state. He argues that the order and judgment dismissed only the amended petition, not the underlying action, and that even if the state prevailed on its abuse of the writ theory, the result would be the dismissal with prejudice of only some of the claims in the amended petition. As dismissal of some, but not all, claims in a habeas petition is not a final order, Farmer suggests, the order appealed from is not a final decision. Nevada counters that it does seek review of a final order since the district court entered a judgment dismissing the action, the state will lose its right to have this petition decided unless we consider its appeal, and the practical effect of the court's order is to grant Farmer a stay of indeterminate length. Farmer contends that regardless, Nevada lacks standing since the order it seeks to appeal granted its own motion to dismiss.

A

"In a habeas corpus proceeding before a circuit or district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit where the proceeding is had." 28 U.S.C. § 2253 (emphasis added); see also Blazak...