Haggins v. Warden, Fort Pillow State Farm

• Decision Date: 11 August 1983
• Docket Number: No. 82-5462,82-5462
• Citation: 715 F.2d 1050
• Parties: 13 Fed. R. Evid. Serv. 1527 Wilbert C. HAGGINS, Petitioner-Appellant, v. WARDEN, FORT PILLOW STATE FARM, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1050

715 F.2d 1050

13 Fed. R. Evid. Serv. 1527

Wilbert C. HAGGINS, Petitioner-Appellant, v. WARDEN, FORT PILLOW STATE FARM, Respondent-Appellee.

No. 82-5462.

United States Court of Appeals Sixth Circuit.

Argued March 24, 1983.

Decided Aug. 11, 1983.

Marvin J. Brode (argued), Memphis, Tenn., for petitioner-appellant.

Jennifer Helton Small, Asst. Atty. Gen. (argued), William M. Leech, Jr., Atty. Gen. of Tenn., Nashville, Tenn., for respondent-appellee.

Before KENNEDY and JONES, Circuit Judges, and GILMORE, District Judge. ^*

GILMORE, District Judge.

This appeal from the denial of a writ of habeas corpus raises significant issues concerning exhaustion of state remedies, the binding effect of state court findings under 28 U.S.C. § 2254 and Sumner v. Mata II, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982), and the accused's right to confront witnesses guaranteed in the Sixth Amendment of the Constitution of the United States. For the reasons set forth below, we affirm the district judge's denial of the writ.

I

Petitioner Wilbert Haggins was convicted by a state court jury of two counts of first degree criminal sexual conduct for the forcible rape of a four year old child. The conviction was affirmed by the Tennessee Court of Criminal Appeals, and the Tennessee Supreme Court denied leave to appeal.

The testimony showed that the child, Camilla, who was the niece of petitioner's common-law wife, had been left in petitioner's custody on the day in question. Petitioner stated that he left the girl at home alone while he went to the store, and when he returned, he discovered that she had inserted a pencil in her vagina and was bleeding. Petitioner took the child to the emergency room of a local hospital.

Two nurses, Janice Sanford and Wanda Rideout, testified that they saw the child when she first arrived in the emergency room. They described the girl's condition as "critical." Her garments were blood soaked.

Subsequent examinations by three physicians revealed multiple lacerations of the vagina and abrasions about the anal opening. Dr. Noel Frizzell testified that the rectal wounds were consistent with sexual penetration, but could not say that they were not caused by the insertion of a pencil. Dr. William Wheeler stated that it was unlikely that the wounds could have been caused by a pencil. Dr. Robert Sauter testified that it was unlikely that the lacerations were caused by a pencil, but later stated that a pencil could have caused the injuries.

Although petitioner Haggins maintained that the wounds were caused by the child's insertion of a pencil into her vagina, police officers were unable to find the pencil he described in the apartment where the child was hurt. There was testimony that the child had previously placed a clothes pin in her vagina.

The state trial judge held a separate hearing to determine whether the four year old child was competent to testify. At that hearing, the child continuously stated that she would not tell the truth and, after full consideration, the judge ruled that she was not competent to testify.

Over petitioner's objections, the state trial court admitted the testimony of two nurses and a police officer relating statements made by the child. Janice Sanford testified that she asked the child "Who hurt you?", and the child responded "Wilbert" (petitioner). Both Wanda Rideout and Sanford testified that the child told them that Wilbert had "put her in the bed and put his worm in her." Sergeant Pyle testified that when he asked the child who hurt her, she responded "Wilbert" and said he whipped her, put her on the bed and put her in the tub.

Haggins appealed his conviction to the Tennessee Court of Criminal Appeals, claiming that the admission of the testimony of the two nurses and the police officer as to what the child had told them violated his Sixth Amendment right of confrontation.

The Tennessee Court of Criminal Appeals agreed that the statements constituted inadmissible hearsay, and did, in fact, violate petitioner's right to confrontation, but affirmed the conviction on the ground that their admission was harmless error. ¹

The Tennessee Supreme Court denied leave to appeal and concurred only in the result of the appellate court.

Haggins then filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Tennessee. The petition raised two claims. First, he alleged that the admission of the hearsay statements of the child violated his Sixth Amendment right to confrontation and constituted serious and prejudicial error. Second, petitioner claimed that he was denied his right to equal protection under the Fourteenth Amendment because the state appellate court ruling was inconsistent with the holding in an earlier case. ² Petitioner contends that in a case which was almost identical to this one, the Court of Criminal Appeals held that the admission of similar hearsay declarations mandated reversal. ³

The district court initially referred this matter to a magistrate who recommended the issuance of the writ. The district judge rejected the magistrate's findings and dismissed the petition.

This appeal followed.

II

Before we can proceed to the merits of petitioner's claims, this court must first determine whether all state court remedies have been exhausted. Under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), habeas petitions containing both exhausted and unexhausted claims (often referred to as mixed petitions) must be dismissed by district courts. This court's recent decision in Bowen v. Tennessee, 698 F.2d 241 (6th Cir.1983) (en banc), applied this total exhaustion rule to cases pending on appeal at the time Rose was decided. We held that the exhaustion requirement may not be waived and that this Court must remand mixed petitions with directions to dismiss, even where the district court had reached the merits of the exhausted claims.

In determining whether claims contained in a petition for a writ of habeas corpus have been exhausted, the federal court must find that the habeas petitioner has "fairly presented" to the state court the "substance" of his federal claims. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). A claim is not "fairly presented" merely because all of the facts necessary to support the federal claim were before the state court or because the constitutional claim seems self evident. Anderson v. Harless, --- U.S. ----, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982).

In the district court and in his brief on appeal, appellee contended that the equal protection claim was not "fairly presented" to the state courts, and, thus the petition contained both exhausted and unexhausted claims. ⁴ Petitioner's equal protection claim was based on the argument that the state appellate court's ruling that the admission of the hearsay declarations of the child was harmless error was inconsistent with that court's earlier ruling in State v. Williams, supra. Petitioner's brief to the Tennessee Court of Criminal Appeals did argue that the instant case was identical to Williams, but did not explicitly label it as an equal protection argument.

This Court cannot conclude that every time a litigant cites analogous case law, the state court should perceive an equal protection claim. We therefore find that petitioner did not fairly present an equal protection argument to the state court.

Although a finding that a habeas petitioner has not exhausted all state remedies requires a remand for dismissal, Bowen v. Tennessee, supra, this total exhaustion rule does not mandate dismissal here. In the instant case, at oral argument, petitioner conceded that his equal protection claim was without legal merit, the position advanced by the state. We find the equal protection claim is patently frivolous. To suggest that a person is denied the equal protection of law because different panels of the Tennessee Court of Criminal Appeals differed on whether the admission of certain evidence was harmless error or not is ludicrous. In this circumstance, it is as if the purported issue had never existed. To remand this case to the district court for dismissal so that Haggins can file a new state petition on grounds which all concede to be non-existent would require exhaustion of a nullity and would do the state courts a disservice.

Indeed, an attorney is forbidden by the American Bar Association Code of Professional Responsibility to institute frivolous actions. Disciplinary Rule 7-102(A)(2) of the Code provides that a lawyer shall not: "Knowingly advance a claim ... that is unwarranted under existing law..." Therefore, if petitioner's counsel returned to state court and asserted his equal protection claim, he would be subject to professional discipline. By the same token, he could not suggest to petitioner that he file a frivolous claim.

We therefore find there has been exhaustion and that there is no procedural bar to our consideration of the merits of petitioner's claim that his right to confrontation was violated by the admission of the hearsay declarations of the child victim.

III

We must next determine the effect of the state appellate court's ruling that the statements were inadmissible hearsay and violated petitioner's right to confrontation. Under 28 U.S.C. § 2254(d), federal courts, in habeas proceedings, must accord a presumption of correctness to state court findings of fact. Lavallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973). This presumption of correctness is applicable whether the findings of fact are made by a state trial court or a state appellate court. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

The statutory presumption of correctness only applies to state court findings of "basic, primary, or historical fact," Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770, 783 n. 6 (1963); it does not apply to...