Gall v. Scroggy

• Decision Date: 29 April 2010
• Docket Number: No. 08-6553.,08-6553.
• Citation: 603 F.3d 346
• Parties: Eugene Williams GALL, Jr., Petitioner-Appellee, v. Gene SCROGGY, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

603 F.3d 346

Eugene Williams GALL, Jr., Petitioner-Appellee, v. Gene SCROGGY, Warden, Respondent-Appellant.

No. 08-6553.

United States Court of Appeals, Sixth Circuit.

Submitted: January 13, 2010.

Decided and Filed: April 29, 2010.

COPYRIGHT MATERIAL OMITTED

ON BRIEF: Matthew R. Krygiel, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellant. Timothy G. Arnold, Jeffrey E. Sherr, Department of Public Advocacy, Frankfort, Kentucky, for Appellee.

Before: MARTIN and WHITE, Circuit Judges; ZOUHARY, District Judge.^*

MARTIN, J., delivered the opinion of the court, in which WHITE, J., joined. ZOUHARY, D.J. (pp. 359-61), delivered a separate dissenting opinion.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

This is Eugene Gall's third appearance in our Court arising out of his 1978 murder conviction and sentence of death in Kentucky state court. Gall was the appellant in his two prior appearances, and his record in that role is one-and-one. In 2000, we reversed the district court's denial of Gall's petition for a writ of habeas corpus, found that Gall's 1978 murder conviction was unconstitutional, and therefore ordered the district court to grant Gall a conditional writ of habeas corpus. Gall v. Parker (Gall III), 231 F.3d 265 (6th Cir. 2000).¹ The condition placed on the writ allowed the Commonwealth either to release Gall or to initiate involuntary civil commitment proceedings due to Gall's extreme and pervasive psychological issues. Then, in 2003, we affirmed the district court's denial of Gall's request for an order compelling the Commonwealth to proceed with involuntary commitment instead of releasing him into the custody of the state of Ohio. Gall v. Scroggy (Gall IV), 69 Fed.Appx. 251 (6th Cir.2003).

Here, however, Gall finds himself in the unusual position of defending the district court's decision, as it is the Commonwealth that brings this appeal. After unsuccessfully seeking an order from the Kentucky state courts vacating the 1978 conviction and expunging it from his record, Gall again turned to the district court for relief. He sought an order mandating that the Commonwealth vacate the conviction. The district court agreed with Gall, declared that the 1978 conviction was nullified, and directed the Commonwealth to expunge the conviction from Gall's criminal record. Gall v. Scroggy, No. 2:87-cv-56, 2008 U.S. Dist. LEXIS 98254 (E.D.Ky. Dec. 4, 2008). The Commonwealth now appeals, and we AFFIRM.

I.

In 1978, Gall was convicted in Kentucky state court of raping and murdering a twelve-year-old girl and was sentenced to death. In 2000, though we acknowledged that there was "little doubt" that Gall had committed the horrible crimes with which he had been charged, we conditionally granted Gall's petition for a writ of habeas corpus due to the Commonwealth's failure to prove an essential element of first-degree murder as it existed at the time in Kentucky law. Gall III, 231 F.3d at 277. Recognizing that Gall nevertheless posed a danger to society as a result of his uncontrollable psychological impulses and should never be allowed to rejoin free society, we "conditioned the grant of Gall's habeas petition on the state's granting him an involuntary hospitalization proceeding, just as he would have been provided if he had been found insane under Ky.Rev.Stat. Ann. § 504.030 (requiring such a proceeding for defendants who are acquitted by reason of insanity)." Id. at 336.²

The Commonwealth sought en banc and Supreme Court review to no avail. The district court thus took the case back up on remand to order the conditional writ and to supervise the release or commitment process. It became apparent during a status conference that the Commonwealth did not intend to initiate involuntary commitment proceedings and, instead, intended to release Gall into the custody of Ohio, where Gall had been convicted of numerous crimes and sentenced to life in prison. State v. Gall, 65 Ohio App.2d 57, 415 N.E.2d 1008 (1980) (affirming conviction). Gall understandably preferred to spend the rest of his life in a Kentucky mental hospital instead of an Ohio prison. Thus, in 2001, under the same caption and case number as his original 1987 habeas petition, he moved the district court to enforce our judgment, arguing that our conditional writ essentially amounted to a directive ordering the Commonwealth to initiate involuntary commitment and that the Commonwealth was powerless to opt to extradite him to Ohio instead.

Gall's 2001 motion to enforce our judgment asked that the district court enter "the attached Final Judgment," a draft order that Gall tendered with his motion. The draft order purported to direct the Commonwealth to proceed with involuntary commitment proceedings and included, among other things, language declaring that his 1978 conviction and death sentence "are unconstitutional and are VACATED." The district court did not adopt Gall's proposed judgment. Instead, for reasons not apparent from the record, it entered its own judgment ordering Gall's release within ninety days, with an additional thirty days if the Commonwealth elected to proceed with civil commitment. Importantly for purposes of this appeal, the district court's judgment did not include language vacating Gall's 1978 conviction or otherwise addressing its continued presence on his record.

When the Commonwealth released Gall into Ohio's custody, Gall appealed the district court's judgment. His sole argument on appeal was that the district court should have ordered the Commonwealth to proceed with involuntary commitment; he did not raise on appeal the district court's failure to vacate the underlying conviction. Our Court affirmed the district court in 2003. Gall IV, 69 Fed.Appx. 251.

After losing his fight to stay in Kentucky, Gall soon moved the Kentucky state court to vacate the conviction. He filed an action in state court in 2004 seeking to have the conviction vacated under Kentucky state procedure. The trial court denied the motion and, in June 2007, the Kentucky Court of Appeals affirmed. Gall v. Commonwealth, No.2006-CA-112-MR, 2007 WL 1575303, 2007 Ky.App. Unpub. LEXIS 10 (Ky. Ct.App. June 1, 2007). The Kentucky Supreme Court denied review in March 2008.

Gall therefore returned to federal court seeking an order directing the Commonwealth to vacate his conviction. Again under the caption of his initial habeas claim, Gall moved to enforce our ruling in Gall III declaring the conviction unconstitutional. Gall essentially argued that an unconstitutional conviction is a legal nullity and therefore expungement of the conviction is required. He claims that vacation of his conviction is important because he is set to come before the parole board in Ohio in 2021 and that, in assessing his suitability for parole, a prior murder conviction on his record would be relevant. The Commonwealth opposed Gall's motion on the following theories: (1) that either the district court lacked jurisdiction to grant the motion or that the matter is moot because the Commonwealth has released Gall in accordance with the writ; (2) venue was improper in federal court in Kentucky because Gall is currently incarcerated in Ohio; (3) Gall failed to show harm flowing from the collateral consequences of the conviction remaining on his record, so his pleadings do not allege injury; (4) Gall either waived his right to or is procedurally barred from seeking to have the conviction vacated; and (5) that notions of federalism, comity, and justice cut against vacating Gall's conviction because neither the Commonwealth nor its courts want to vacate the conviction and because vacating the conviction could aid in Gall's parole in Ohio. Magistrate Judge J. Gregory Wehrman recommended that the court grant Gall's motion and, over the Commonwealth's objection, the district court adopted the magistrate's recommendation in a well-reasoned opinion. The court therefore declared that the conviction was nullified and directed the Commonwealth to expunge the conviction.³ The Commonwealth timely appealed.

II.

Though Gall styles his motion as a motion to enforce our judgment in Gall III, he brought the motion under the caption of his federal habeas case, and the motion raises substantive questions of the implication of a writ of habeas corpus and the power of a federal court sitting in habeas. We generally review a district court's disposition of a habeas petition de novo and its findings of fact for clear error. Satterlee v. Wolfenbarger, 453 F.3d 362, 365 (6th Cir.2006). Questions of law or mixed questions of law and fact are reviewed de novo. Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir.2005). As this appeal principally concerns legal conclusions regarding the federal court's power to order expungement of a state conviction and policy questions regarding whether the court should exercise that power, we review the district court's decision de novo.

III.

The Commonwealth's arguments on appeal are materially identical to those made before the district court. Prior to addressing these arguments in turn, however, it is useful to review our leading case on the ability of a federal court sitting in habeas to nullify an unconstitutional state conviction.

That case is Gentry v. Deuth, 456 F.3d 687 (6th Cir.2006). The issue in Gentry was whether a federal court retains jurisdiction over a habeas case for purposes of declaring a state conviction deemed unconstitutional to be null and void if the defendant is no longer in state custody.⁴ On the way to answering in the affirmative, we characterized the expungement of an unconstitutional conviction from one's record as the "essential relief" contemplated by a conditional writ of habeas corpus. Id. at 691 ("The court's May 2004 order granting a conditional writ of habeas corpus ordering either release or retrial within ninety days implicitly expected that the Commonwealth would vacate the prior judgment pursuant to seeking a new...