Gully v. Ault, No. C97-3103-MWB (N.D. Iowa 3/19/2001)
| Decision Date | 19 March 2001 |
| Docket Number | No. C97-3103-MWB.,C97-3103-MWB. |
| Parties | BENNY RAY GULLY, Petitioner, v. JOHN AULT, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
Before the court is a petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Petitioner, Benny Ray Gully, is an inmate at the Anamosa State Penitentiary, Anamosa, Iowa. On December 22, 1993, following a jury trial, petitioner Gully was convicted on two counts of attempted murder. On February 11, 1994, Gully, was sentenced to twenty-five years imprisonment for each attempted murder conviction, with the sentences to be served consecutively.
Gully appealed his sentence. The Iowa Court of Appeals affirmed his sentence on January 23, 1995. Gully then filed an application for postconviction relief. Gully's application for postconviction relief was denied by an Iowa district court. His appeal to the Iowa Supreme Court was dismissed as frivolous on April 22, 1997. On December 22, 1997, Gully filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Gully's petition asserts twenty-four grounds for relief.1 See Report and Recommendation at pp. 9-12.
This case was referred to United States Magistrate Judge Paul A. Zoss pursuant to 28 U.S.C. § 636(b)(1)(B). On January 14, 2001, Judge Zoss filed an extremely thorough and comprehensive Report and Recommendation in which he recommends that Gully's petition be denied. Gully filed objections to Judge Zoss's Report and Recommendation on March 2, 2001. The court, therefore, undertakes the necessary review of Judge Zoss's recommended disposition of Gully's petition for a writ of habeas corpus.
Pursuant to statute, this court's standard of review for a magistrate judge's Report and Recommendation is as follows:
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].
28 U.S.C. § 636(b)(1). Similarly, Federal Rule of Civil Procedure 72(b) provides for review of a magistrate judge's Report and Recommendation on dispositive motions and prisoner petitions, where objections are made, as follows:
The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.
The Eighth Circuit Court of Appeals has repeatedly held that it is reversible error for the district court to fail to conduct a de novo review of a magistrate judge's report where such review is required. See, e.g., Hosna v. Groose, 80 F.3d 298, 306 (8th Cir.)(citing 28 U.S.C. § 636(b)(1)), cert. denied, 519 U.S. 860 (1996); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996)(citing Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994)); Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995)(also citing Belk). Because objections have been filed in this case, the court must conduct a de novo review. With these standards in mind, the court turns to consideration of petitioner Gully's objections to Judge Zoss's Report and Recommendation.
The exhaustion doctrine, currently codified at 28 U.S.C. § 2254(b), is grounded in principles of comity and reflects a desire to "protect the state courts' role in the enforcement of federal law." Castille v. Peoples, 489 U.S. 346, 349 (1989)(quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)). It is further justified by the pragmatic recognition that "federal claims that have been fully exhausted in state courts will more often be accompanied by a complete factual record to aid the federal courts in their review." Castille, 489 U.S. at 349 (quoting Rose, 455 U.S. at 519). Although not jurisdictional, it "creates a `strong presumption in favor of requiring the prisoner to pursue his available state remedies.'" Castille, 489 U.S. at 349 (quoting Rose, 455 U.S. at 515).
A claim is properly exhausted by presentment when the state courts are given a "`fair opportunity' to apply controlling legal principles to the facts bearing upon [the claim]." Anderson v. Harless, 459 U.S. 4, 6 (1982)(quoting Picard v. Connor, 404 U.S. 270, 275, 277-78 (1971)). "It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made." Anderson, 459 U.S. at 6 (citing Picard, 404 U.S. at 277). The "fair opportunity" standard is satisfied where the petitioner presents "the same facts and legal theories to the state court that he later presents to the federal courts." Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir. 1994). Specifically, "[t]he federal legal theory or theories must plainly appear on the face of the petitioner's state-court briefs." Id. A "federal legal theory" is one containing a reference to "a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue." Martin v. Solem, 801 F.2d 324, 330-31 (8th Cir. 1986)(citing Thomas v. Wyrick, 622 F.2d 411, 413 (8th Cir. 1980)); see Jones, 20 F.3d at 854 (); Luton v. Grandison, 44 F.3d 626 (8th Cir. 1994)(same); McDougald v. Lockhart, 942 F.2d 508, 510 (8th Cir. 1991)(same). It is not necessary that the petitioner obtain a precise ruling on the federal claim from the state court, so long as it has been properly presented. See Tyler v. Gunter, 819 F.2d 869, 870-71 (8th Cir. 1987).
Judge Zoss concluded that petitioner Gully had not procedurally defaulted on claims A(10), B(1), B(4), D, E, F(1), F(2), F(3), F(4), and F(5). Petitioner Gully included neither the facts nor the legal theories relevant to these claims in any of his briefs to the Iowa appellate courts. These claims were available to petitioner Gully and could have been raised during either the state direct appeal or postconviction proceedings. Consequently, these claims are subject to procedural default. Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir. 1994). Also, because petitioner has not demonstrated either cause or prejudice sufficient to excuse this default, Wainwright v. Sykes, 433 U.S. 72 (1977), or evidence of actual innocence, Coleman v. Thompson, 501 U.S. 722 (1991), these claims are barred and may not be considered by this court.
Section 2254(d)(1) of Title 28, as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, provides as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]
28 U.S.C. § 2254(d)(1). As the United States Supreme Court explained in Williams v. Taylor, 120 S.Ct. 1495 (2000), "[F]or [a petitioner] to obtain federal habeas relief, he must first demonstrate that his case satisfies the condition set by § 2254(d)(1)." Id. at 1518.2 In Williams, the Supreme Court addressed the question of precisely what the "condition set by § 2254(d)(1)" requires. See id. at 1503-1511 (); id. at 1518-23 ().3 In the portion of the majority decision on this point, the majority summarized its conclusions as follows:
[Section] 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Id. at 1523; see also Whitmore v. Kemna, 213 F.3d 431, 433-34 (8th Cir. 2000)("It seems to us that § 2254(d) as amended by the AEDPA is unambiguous as to the scope of federal court review, limiting such review (at least as compared with past practice) in order to effect the intent of Congress to expedite habeas proceedings with appropriate deference to state court determinations. See Williams, 120 S.Ct. at 1518 (). The Court also clarified two other important definitions. First, the Court concluded that "unreasonable...
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