Footman v. Singletary, 91-5213
| Citation | 978 F.2d 1207 |
| Decision Date | 07 December 1992 |
| Docket Number | No. 91-5213,91-5213 |
| Parties | William Earl FOOTMAN, Petitioner-Appellant, v. Harry K. SINGLETARY, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Alison Marie Igoe, Asst. Federal Public Defender, Miami, Fla., for petitioner-appellant.
Joan Fowler, Asst. Atty. Gen., Dept. of Legal Affairs, West Palm Beach, Fla., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before DUBINA and BLACK, Circuit Judges, and HENDERSON, Senior Circuit Judge.
After finding that the petitioner's federal habeas corpus petition alleged instances of ineffective assistance of counsel that were not alleged in his state court post-conviction motion, the United States District Court for the Southern District of Florida dismissed the petition as a mixed petition containing both exhausted and unexhausted state claims. While we agree with the district court's statement of the law, we disagree with the court's analysis and its finding that the petitioner alleged only one instance of ineffective assistance of counsel in state court. As a result, we vacate the district court's order and remand the case to the district court for further proceedings consistent with this opinion.
Petitioner William Footman ("Footman") was convicted of felony murder in Florida in 1981 and sentenced to life imprisonment. He appealed his conviction and sentence to the Florida District Court of Appeals, alleging as error that the trial court improperly communicated with the jury without notifying counsel for the parties. The state court of appeals affirmed Footman's conviction.
Footman then filed a pro se motion for post-trial relief in Florida state court pursuant to Florida Rule of Criminal Procedure 3.850 based upon a claim of ineffective assistance of counsel. The motion, however, is missing from the state court record. 1 The Florida trial court denied Footman's Rule 3.850 motion without a hearing in an order addressing one instance of ineffective assistance of counsel, 2 and the Florida District Court of Appeals affirmed.
Footman then filed a pro se habeas corpus petition in the United States District Court for the Southern District of Florida. The district court referred the petition to a magistrate judge for the purpose of issuing a report and recommendation. In his report, the magistrate judge listed the grounds for relief asserted by Footman in his petition as follows:
1. The trial court erred in communicating with the jury, in response to the jury's request for the written instruction, without prior notification or consultation with the counsel for the parties.
2. Ineffective assistance of counsel:
a. Counsel failed to object to the state's use of rebuttal witnesses whose names were not on the witness list.
b. Counsel failed to contemporaneously object to the erroneous instructions given to the jury on reinstruction.
c. Counsel failed to request that the jury instructions be written.
d. Counsel should have closed his case at the close of the state's case, which would have entitled the defendant/petitioner to a verdict of acquittal.
e. Counsel did not render any type of assistance, such as seeking a reduced charge or vigorously seeking a plea bargain that would have been in the best interest of the petitioner.
R1-1-5-6.
The magistrate judge found that since the state trial court's order addressed only one instance of ineffective assistance of counsel, allegation 2(d) of his federal petition, Footman had raised only the single instance in state court. The magistrate judge cited Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982), and Hutchins v. Wainwright, 715 F.2d 512, 519 (11th Cir.1983), cert. denied, 465 U.S. 1071, 104 S.Ct. 1427, 79 L.Ed.2d 751 (1984), for the proposition that issues raised in a federal habeas petition must have been fairly presented to the state courts and thereby exhausted before the district court may evaluate a habeas petition on the merits. The magistrate judge went on to determine that Footman had exhausted only his claim of improper communication with the jury and one of his factual allegations for his claim of ineffective assistance of counsel, allegation 2(d) of his federal petition. Since there was no indication that Footman had raised the remaining four factual allegations in his state court post-conviction proceedings, the magistrate judge determined that they were unexhausted claims. As Footman's federal habeas corpus petition contained both exhausted and unexhausted state claims, the magistrate judge recommended that it be dismissed pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
The district court adopted the magistrate judge's report and recommendation and dismissed Footman's petition for habeas relief. Footman then perfected this appeal.
In analyzing Footman's habeas petition we must evaluate whether he exhausted his state court remedies. Exhaustion is critical because a federal court can not grant a writ of habeas corpus to a state prisoner "unless it appears that the applicant has exhausted the remedies available in the courts of the State...." 28 U.S.C. § 2254(b). Since we agree with the district court that Footman exhausted his claim of improper communication with the jury, the only remaining issue is whether he exhausted his claim of ineffective assistance of counsel.
In analyzing exhaustion in this case, we must determine first whether a federal court can evaluate a habeas petition if the petitioner did not raise in his state court post-conviction motion all of the instances of ineffective assistance of counsel that he raises in his federal habeas corpus petition. The district court adopted the magistrate's finding that all factual allegations supporting a claim of ineffective assistance must be raised initially in state court before they can be raised in federal court. We make a plenary review of a district court's legal conclusions in a habeas proceeding. See Lusk v. Dugger, 890 F.2d 332, 336 (11th Cir.), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 805 (1990).
We have previously addressed the issue of whether a federal court can review a federal habeas corpus petition that contains more instances of ineffective assistance of counsel than the petitioner raised in his state court proceedings. In Brand v Lewis, 784 F.2d 1515 (11th Cir.1986) (per curiam), we held that the district court's dismissal of a petition for writ of habeas corpus could not rest on the fact that the petitioner raised two more instances of ineffective assistance of counsel in his federal petition than he had raised at the state level. Id. at 1517. In Brand we stated that "[f]ailure to enumerate all instances of attorney error [in state court proceedings] does not preclude appellate review." Id.
The holding of Brand is contrary to an earlier holding of the Fifth Circuit in Beavers v. Balkcom, 636 F.2d 114, 116 (5th Cir. Unit B 1981). 3 In that case the court held that exhaustion was required where a general claim of ineffective assistance of counsel had been presented to the state court but the specific claim of ineffectiveness raised in the federal petition had not been presented. While the court did not specify how Beavers' state petition and federal petition differed, on its face the case seems to be in direct conflict with Brand.
The apparent conflict between Brand and Beavers would have to be resolved if not for a recent Supreme Court decision. In Keeney v. Tamayo-Reyes, --- U.S. ----, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), the Court determined the standard a federal court should use when deciding if a habeas corpus petitioner should get an evidentiary hearing after he failed to develop a material fact in his state court proceedings. Several years earlier the Court established six circumstances when a federal court must grant a habeas corpus petitioner an evidentiary hearing, the fifth of which was when "the material facts were not developed at the state-court hearing." Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). The Townsend Court held that a habeas corpus petitioner would not be entitled to a hearing if his failure to develop the facts was attributable to his inexcusable neglect. Id. at 317, 83 S.Ct. at 759. The Court defined inexcusable neglect by pointing to the standard for procedural default in Fay v. Noia, 372 U.S. 391, 438-39, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (1963), overruled by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Townsend, 372 U.S. at 317, 83 S.Ct. at 759. Fay held that a court could find inexcusable neglect only where there was a deliberate bypass of the state court procedure. 372 U.S. at 438, 83 S.Ct. at 848. The Tamayo-Reyes Court held that since the Fay standard for procedural default has changed to a cause and prejudice standard, see, e.g., Wainwright v. Sykes, 433 U.S. 72, 87-88, and n. 12, 97 S.Ct. 2497, 2506-57, and n. 12, 53 L.Ed.2d 594 (1977), a federal court should apply a cause and prejudice standard to determine if a habeas petitioner should get an evidentiary hearing in federal court after he failed to develop a material fact in state court proceedings. Tamayo-Reyes, --- U.S. at ----, 112 S.Ct. at 1717.
While the Tamayo-Reyes decision concerns the issue of when a hearing is required in a federal habeas corpus proceeding, the language the Court used to justify its decision applies to the question of exhaustion when the state court has not had the opportunity to review all of the facts presented to the federal court. The Court stated that the adoption of a standard that encourages full factual development of a claim in state court "is fully consistent and gives meaning to the requirement of exhaustion." Id. at ----, 112 S.Ct. at 1720. Noting that Congress has incorporated "[t]he requirement that state...
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