Hall v. State of Ala., 80-7760

• Decision Date: 21 March 1983
• Docket Number: No. 80-7760,80-7760
• Citation: 700 F.2d 1333
• Parties: Carl HALL, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1333

700 F.2d 1333

Carl HALL, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.

No. 80-7760.

United States Court of Appeals, Eleventh Circuit.

March 21, 1983.

Edward C. Greene, Mobile, Ala. (court-appointed), for petitioner-appellant.

Susan Beth Farmer, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before HILL and ANDERSON, Circuit Judges, and LYNNE ^*, District Judge.

LYNNE, District Judge:

Appellant, Carl Hall, prosecutes this appeal from the judgment of the United States District Court for the Southern District of Alabama, dismissing without prejudice his petition for writ of habeas corpus. Concluding that, in doing so, the district judge did not abuse his discretion, we affirm.

Hall, a black man, was indicted by a grand jury for murder in the first degree. He filed a pro se motion to dismiss such indictment on the ground that the grand jury which returned the indictment was constitutionally infirm. His motion denied, he was convicted by a jury in the Circuit Court of Mobile County, Alabama, and sentenced to life imprisonment. His appeal to the Alabama Court of Criminal Appeals was dismissed on September 16, 1976, when he escaped from confinement in the Mobile County jail.

Appellant was captured and returned to the custody of the Alabama penal authorities on September 21, 1977, just over one year after his escape. Upon his return to state custody, he filed numerous motions in the state court seeking post conviction relief, all of which were denied without opinion.

On March 5, 1979, appellant filed a petition for habeas corpus relief in the United States District Court for the Southern District of Alabama, alleging inter alia that he was indicted by a constitutionally infirm grand jury. The district court assigned the case to a United States Magistrate. The State's motion to dismiss the petition was denied on September 19, 1979.

The State filed an amended motion to dismiss on November 13, 1979, claiming that appellant had deliberately by-passed orderly state procedures by escaping from state custody after conviction and sentencing. On December 14, 1979, however, the magistrate, with the consent of the attorney representing the State of Alabama, entered an "order and judgment" granting the petition, directing the issuance of the writ, and providing that Hall would be discharged from custody unless reindicted within fourteen days.

Shortly thereafter the State replaced the attorney assigned to Hall's case. On December 27, 1979, the new Assistant Attorney General filed a motion for rehearing on the ground of a mistake of fact that was unknown to the State at the time of the Court's order (appellant's escape), a motion for a temporary stay of the December 14, 1979, consent judgment and order, and an amended motion to dismiss (verbatim copy of the amended motion to dismiss filed by the State on November 13, 1979). The motion for a temporary stay was granted by the district court, and on February 21, 1980, the magistrate granted the State's motion for rehearing, and, relying upon Federal Rule of Civil Procedure 60(b)(6), rescinded the consent judgment and order of December 14, 1979. The magistrate also ordered that the State's December 27, 1979, amended motion to dismiss be treated as a summary judgment.

On May 30, 1980, the magistrate took under submission the State's motion for summary judgment and the deliberate by-pass issue. On that date the magistrate issued his recommendation that appellant's petition for habeas corpus relief be dismissed without prejudice for failure to exhaust state remedies as required by 28 U.S.C. Sec. 2254(b). The magistrate reasoned that appellant had waived his right to pursue his state court claims by escaping from the custody of the state. This recommendation was subsequently adopted by the district court, and appellant's habeas petition was dismissed without prejudice. Appellant's subsequent motion to alter or amend his judgment was also denied, and thereafter appellant prosecuted an appeal to this court.

Appellant raises two issues in this appeal. First, he contends that the magistrate erred in determining that his escape from custody constituted a waiver of his right to pursue state remedies, thus foreclosing his right to federal habeas review. Second, he argues that the magistrate improperly applied Federal Rule of Civil Procedure 60(b)(6) to rescind the December 14, 1979, consent judgment. For the reasons discussed below, we affirm the decision of the lower court on both issues.

I. WAIVER

Habeas corpus jurisdiction of persons in custody pursuant to a court judgment is conferred on federal courts by 28 U.S.C. Sec. 2254. Under subsection (b), a federal habeas petitioner who is in the custody of state officials must exhaust all available remedies in the state courts before his petition for a writ of habeas corpus will be heard by a federal court. ¹ In order to exhaust his remedies, a petitioner must assert them so that his claims may be adjudicated on their merits. Simply put, if he waives his right to pursue these remedies, then he loses his right to assert them and, as a consequence, his right later to seek federal habeas review.

In the instant case, appellant escaped from the state penitentiary while his appeal to the Alabama Court of Criminal Appeals was pending. In conformity with well established precedent in Alabama, the Court of Criminal Appeals dismissed his appeal. See Pace v. State, 357 So.2d 384 (Ala.Cr.App.1978); Jett v. State, 46 Ala.App. 290, 241 So.2d 131 (Ala.Cr.App.1970); Hammonds v. State, 44 Ala.App. 256, 206 So.2d 924 (Ct.App.1968). Upon his recapture, appellant filed numerous motions for post conviction relief, all of which were denied without opinion by the state court. He contends that although Alabama law clearly mandates that a post conviction escape results in the dismissal of any appeals that were pending at the time of an escape, the law does not preclude him from pursuing post conviction remedies once he is back in the custody of the state penal authorities. Therefore, he argues, since he unsuccessfully pursued in state court all available avenues of post conviction relief, federal habeas review is not foreclosed to him.

Initially, it must be noted that we do not view the Alabama court's denials of appellant's post conviction motions as decisions on the merits. We adhere to the teaching of Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944), that the denial of a habeas application by a state court does not serve to exhaust state remedies when the denial cannot fairly be taken as an adjudication of the merits of the claims presented. Similarly, we do not believe that the state court's denials of appellant's motions, without opinion, can fairly be taken as an adjudication by the state of the merits of the claims presented.

The Supreme Court has developed two tests for determining whether an individual has waived his right to habeas review of his confinement. In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Court found that "[i]f a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts" for any reasons that can be described as the deliberate by-passing of state procedures, then the federal court on habeas has discretion to deny that applicant all relief if the state courts refused to entertain his federal claims on the merits. Id. at 439, 83 S.Ct. at 849. In 1977, the Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), provided a narrower waiver test for habeas cases. The Wainwright court held that federal habeas review should be barred to a petitioner who chose to waive his right to procedural review unless the petitioner was able to show cause for the noncompliance and actual prejudice resulting from the alleged constitutional violation. See generally Davis v. U.S., 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973) (Federal court cannot reach merits of a challenge to the composition of a grand jury in the face of a state procedural default, absent a showing of cause and prejudice).

Although the Alabama Supreme Court has never addressed the questions whether an escape mandates dismissal of a pending appeal or whether an escape constitutes a waiver of the right to pursue state post conviction remedies, the appellate courts of Alabama, as discussed above, have long held that by escaping from the custody of the state an appellant waives his right to be heard on any appeals that were pending at the time of the escape. In the absence of a decision from the state's highest court, this court "must adhere to the decisions of the state's intermediate appellate courts unless there is some persuasive indication that the state's highest court would decide the issue otherwise." King v. Guardian Life Insurance Co. of America, 686 F.2d 894 (11th Cir.1982) (quoting Flintkote Co. v. Dravo Corp., 678 F.2d 942 (11th Cir.1982)). In this case we have no indication that the state's highest court would reject the long followed practice in the appellate courts that the court may dismiss all appeals pending at the time of an escape.

Relying upon Pace v. State, 357 So.2d 384 (Ala.Crim.App.1978), appellant argues that the Alabama Court of Criminal Appeals has recognized that post conviction remedies are available to an escapee who has been recaptured. In Pace, the petitioner's direct appeal had been dismissed when he escaped from the state penitentiary. After being returned to custody the petitioner filed a writ of error coram nobis, claiming that new evidence indicated that he had been in jail at the time of the robbery for which he was convicted. The lower court dismissed his petition, but the appellate court reversed, reasoning that appella...