Hamilton v. McCotter, 84-1319

• Decision Date: 03 October 1985
• Docket Number: No. 84-1319,84-1319
• Citation: 772 F.2d 171
• Parties: Steven D. HAMILTON, Petitioner-Appellant, v. O.L. McCOTTER, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 171

772 F.2d 171

Steven D. HAMILTON, Petitioner-Appellant, v. O.L. McCOTTER, Director, Texas Department of Corrections Respondent-Appellee.

No. 84-1319.

United States Court of Appeals Fifth Circuit.

Oct. 3, 1985.

Rehearing and Rehearing En Banc Denied Nov. 15, 1985.

Rolf G. Asphaug, Houston, Tex. (Court Appointed), for petitioner-appellant.

Jim Mattox, Atty. Gen., Laurie A. Booras, Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, GARWOOD and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

This appeal is from a dismissal for abuse of the writ of a Texas prisoner's successive petition for habeas relief under 28 U.S.C. Sec. 2254. The district court determined that all appellant's asserted grounds for relief in this his third federal petition had either been raised and disposed of in a previous section 2254 proceeding, or that they should have been previously raised, and consequently had been bypassed without legal excuse by the prior failure to assert them. The petition was dismissed pursuant to Rule 9(b) of the Rules Governing Sec. 2254 cases, 28 U.S.C. foll. Sec. 2254. We agree with the district court's dismissal as to all save one of the eleven grounds asserted in appellant's petition. Accordingly, we reverse the dismissal in part, and remand for further proceedings respecting the single viable issue raised in appellant's petition.

FACTS AND PROCEEDINGS BELOW

Appellant Steven D. Hamilton was indicted by a Dallas County, Texas grand jury in April 1975 on a charge of armed robbery. He was found guilty by a jury, and sentenced to life imprisonment following a trial in June of that year. The conviction was affirmed on appeal in an unpublished opinion. See Hamilton v. State, 542 S.W.2d 427 (Tex.Crim.App.1976) (Table).

On December 12, 1977, appellant filed his first habeas corpus petition in state court. Proceeding pro se, he requested a copy of his trial record. The convicting court recommended denial, because the application did not contain the required verification by oath. The Texas Court of Criminal Appeals denied relief without written reasons on January 18, 1978.

On April 17, 1978, appellant filed his second pro se state habeas petition, the first to actually collaterally attack his conviction. ¹ The convicting court recommended denial of this application on April 25; the Texas Court of Criminal Appeals did so without opinion on May 10, 1978.

On August 8, 1978, appellant, again proceeding pro se, filed his first federal habeas petition (C.A. 3-78-0974-G) in the Northern District of Texas, Dallas Division, attacking his state conviction, and alleging the following grounds for relief: (1) illegal search and seizure; (2) evidence obtained therefrom was improperly admitted at trial; (3) void indictment (insufficient allegations); (4) wrongfully admitted in-court identification; (5) ineffective assistance of counsel at trial; and (6) prosecutorial misconduct. By order dated August 24, 1979, the district court dismissed appellant's claims numbered (1) and (2), finding that appellant had had a "full and fair opportunity to litigate those issues [previously] in the state courts of Texas." See Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037 Following some postponements, the evidentiary hearing was finally held on January 25, 1980. Appellant, his common-law wife, mother-in-law, and sister-in-law testified to the effect that, had the women been contacted by appellant's trial attorney, they would have offered to testify to an alibi. Appellant's trial counsel also testified, and directly contradicted the assertions by appellant's witnesses both that they had not been contacted and that their proferred testimony would have been competent and valuable to appellant's cause at trial. The district court denied appellant's writ petition on February 5, 1980. The court's opinion indicated that it believed that trial counsel had exercised reasonable professional judgment regarding whether to utilize the alleged alibi testimony and whether to pursue a search and seizure question. Appellant noticed appeal, and requested a certificate of probable cause, which the district court denied on March 5, 1980. This Court affirmed the district court's denial of appellant's petition for habeas relief on June 24, 1981. Hamilton v. Estelle, 651 F.2d 775 (5th Cir.1981). ³

3046, 49 L.Ed.2d 1067 (1976); Caver v. State of Alabama, 577 F.2d 1188, 1191-92 (5th Cir.1978); O'Berry v. Wainwright, 546 F.2d 1204, 1213 (5th Cir.1977). Claims (3), (4), and (6) were dismissed, in accordance with the magistrate's recommendations, for want of merit based upon appellant's state trial record. The district court found, however, that claim (5), asserting ineffective assistance of counsel, could not be resolved on its merits from the state record. An evidentiary hearing was set, and the court in its August 24 order appointed an attorney to represent appellant in that hearing. In a subsequent order, the court indicated that the hearing would comprehend "all claims of ineffective assistance of counsel." ²

On April 16, 1981, appellant, again pro se, filed his third state habeas petition in the convicting court. ⁴ On May 22, 1981 On January 27, 1982, appellant, acting pro se, filed his second federal habeas petition (C.A.-3-82-0118-G), again in the Northern District of Texas. That court dismissed the petition without prejudice, for nonexhaustion of state remedies, on June 14, 1982. Concurrently, on March 10, 1982, appellant filed a pro se application in state court (his fourth state petition) in the form of a "Petitioner's Amendment to His Application for the Writ of Habeas Corpus." Reciting that, although no application was presently before that court, but that "an application that this Court has already had the opportunity to hear and determine; said application being denied by this Court," was "before the Northern District Court-Dallas Division," appellant sought habeas relief, alleging four grounds. ⁶ On September 22, 1982, the convicting court recommended denying the requested hearing and appellant's writ application. The Texas Court of Criminal Appeals denied relief and cited appellant for abuse of writ on November 10, 1982.

the state court recommended denying the writ application and appellant's request for a hearing. Following response to the court's findings, filed by appellant on June 15, 1981, ⁵ the Court of Criminal Appeals denied relief without opinion on June 17, 1981.

On October 13, 1983, having exhausted state remedies, appellant filed his third federal habeas petition. This petition, the subject of the present appeal, alleged the following eleven grounds for relief: (A) conviction obtained under an unconstitutionally vague statute; (B) unconstitutional pretrial photographic identification; (C) denial of access to trial records; (D) lack of effective consent in (illegal) search and subsequent seizure of evidence; (E) trial charge to the jury not based on the indictment, i.e., containing various theories for conviction not contained in the indictment; (F) indictment forged, and lack of real indictment; (G) indictment defective, i.e., fatal defects in allegations (and an indirect allegation that the indictment had not been returned by a grand jury); (H) illegal search, i.e., no search warrant; (I) prejudicial in-court identification improperly admitted into evidence; (J) ineffective assistance of counsel at trial (including pretrial); and (K) ineffective assistance of counsel on appeal of the state conviction. The State moved for dismissal on grounds of abuse of the writ pursuant to Rule 9(b) of the Rules Governing Sec. 2254, 28 U.S.C. foll. Sec. 2254. ⁷ In response to this Rule 9(b) motion, appellant alleged that he was asserting new grounds for relief, and also asserted a conclusory claim of excusable neglect as to grounds previously unurged. ⁸ On March 12, 1984,

following the recommendation of the magistrate to whom the matter had been referred, the district court dismissed appellant's petition for abuse of the writ pursuant to Rule 9(b). On that same day, appellant gave notice of appeal, and sought a certificate of probable cause, which the district court declined to give. On June 18, 1984, a panel of this Court granted a certificate of probable cause and leave to proceed in forma pauperis, and appointed counsel for the purposes of this appeal.

CLAIMS RAISED IN OR BEFORE FIRST FEDERAL HABEAS

Appellant concedes that five of the grounds (grounds (D), (G), (H), (I), and (J)) raised in this, his third federal habeas petition, were raised previously in his first federal petition and were decided on the merits. ⁹

"The purpose of [Rule 9(b) ] is to avoid piecemeal litigation, with petitioners advancing claims one at a time." Rudolph v. Blackburn, 750 F.2d 302, 305 (5th Cir.1984) (citations omitted). We have said that the appropriate standard against which to determine abuse of the writ is not whether a successive petitioner intended to bypass an issue at the time of the previous petition, but "whether he withheld it without legal excuse when he filed his earlier petition." Jones v. Estelle, 722 F.2d 159, 163 (5th Cir.1983) (en banc), cert. denied, --- U.S. ----, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984); see also Daniels v. Blackburn, 763 F.2d 705 (5th Cir.1985); Rudolph v. Blackburn, 750 F.2d at 305. Legal excuse may exist if, after the previous proceeding, there is a change in the law which makes the claim possible or the petitioner first becomes aware or chargeable with knowledge of the asserted facts on which the new claim is based. See Daniels, 763 F.2d at 707.

Appellant's alleged ground (C)--denial of access to state trial records--was the sole subject of the request presented in appellant's first state habeas application, in which he sought a free copy of his trial record. It is therefore obvious that appellant was aware...