Hannon v. Maschner, 86-2117

• Decision Date: 10 May 1988
• Docket Number: No. 86-2117,86-2117
• Parties: LaVille HANNON, Petitioner-Appellant, v. Herb MASCHNER and Attorney General of the State of Kansas, Respondents- Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1553

845 F.2d 1553

LaVille HANNON, Petitioner-Appellant, v. Herb MASCHNER and Attorney General of the State of Kansas Respondents- Appellees.

No. 86-2117.

United States Court of Appeals Tenth Circuit.

May 10, 1988.

As Amended June 14, 1988.

David R. Gilman (James F. Vano, on the brief), Overland Park, Kan., for petitioner-appellant.

Gregory G. Hough, Asst. Atty. Gen. (Gerald R. Kuckelman, Asst. Atty. Gen., with him, on the brief), Kansas Judicial Center, Topeka, Kan., for respondents-appellees.

Before SEYMOUR, McWILLIAMS, and MOORE, Circuit Judges.

SEYMOUR, Circuit Judge.

Laville Hannon filed a habeas corpus petition alleging ineffective assistance of appellate counsel in his state court criminal proceedings. The district court dismissed the petition for unexcused delay under Rule 9(a), 28 U.S.C. foll. Sec. 2254 (1982), and on the merits. We reverse and remand.

I.

In 1959, Hannon was a seventeen-year-old black youth who had been hospitalized on at least one occasion because of a mental disorder. Although he was in the seventh grade, he alleges that his ability to read and write was limited.

In June 1959, the local police contacted Hannon's parents to ask if they would bring their son to the stationhouse for questioning in regard to some missing hubcaps. They dropped the boy off late that afternoon. Although the interrogating officers advised Hannon of his rights, they ignored his mental disability and his lack of access to the advice of his parents or an attorney, and sought to procure a confession for a recent homicide. Hannon confessed to the crime after he was allegedly promised leniency by the officers. Hannon testified at the suppression hearing that he would not have confessed had he not been told that the victim's wife would not press charges and that because of his age he would not be severely punished. Rec, vol. 4, at 86. The court permitted the state to present the confession to the jury.

With the aid of state appointed counsel, Hannon pled not guilty and proceeded to trial. Substantially all of the evidence against him was derived from the confession. The state also introduced the deposition of a doctor who treated the victim. ¹ The jury was read the deposition and was permitted to take the document into the jury room. No autopsy was performed. Defense counsel logged numerous objections throughout the proceedings with the stated purpose of preserving the record. Several of these objections involved the admission of the confession. However, the defense presented no witnesses.

Hannon was convicted and sentenced to life imprisonment at hard labor. Although a motion for a new trial was lodged and denied, no appeal was filed. While in prison, Hannon increased his reading and writing ability. Thereafter, he requested the appeal he never had. Correspondence between the petitioner and state authorities, as early as 1961 and certainly no later than 1965, confirms that Hannon wanted to appeal his conviction. He wrote that his attorney had abandoned his case and that he had not known that he had the right to appeal much less how to do it or what time limits might exist. This correspondence reveals that he attempted to raise the substance of his current claim within five years of his conviction. The state repeatedly adhered to its procedural rules, Kan.Stat.Ann. Secs. 22-3606, 60-2103 (1983), and denied Hannon an out-of-time appeal.

After repeated denials of his request for a direct appeal, Hannon attempted to use the state post-conviction process to attain review of the alleged constitutional errors at his trial. ² Although a state habeas court held an evidentiary hearing on his claims, no appellate court gave the merits more than cursory review. The constitutional rights at issue, the Kansas Supreme Court recognized, "may be knowingly, intelligently and effectively waived." Hannon v. State, 206 Kan. 518, 479 P.2d 852, 853 (1971). Without extending any consideration to the specifics of the case (i.e., Hannon's age and mental ability), the court asserted that Hannon had not established "exceptional circumstances" justifying his failure to appeal; thus, it presumed waiver of any constitutional right to which Hannon may have been entitled. The court supported its decision by asserting that the Kansas post-conviction statute was not a substitute for a foregone direct appeal. See id.

In the early 1970s, Hannon filed a pro se petition for habeas corpus in federal court alleging, inter alia, ineffective assistance of counsel. The district court dismissed that claim for failure to exhaust state remedies, and we affirmed. ³ Hannon filed a state petition on ineffectiveness grounds in the early 1980s. It was summarily denied.

In 1985, Hannon petitioned a federal court alleging that his counsel's failure to file a timely notice of appeal from his conviction constituted ineffective assistance of counsel. ⁴ He argues that had his counsel performed reasonably, he would have perfected an appeal under the circumstances of this case. ⁵ The state responded that the ineffectiveness claim lacked merit and that his delay in filing the petition prejudiced the state. The district court agreed and dismissed the petition.

II.

Relying on Rule 9(a) under 28 U.S.C. Sec. 2254, the district court asserted that the "most convincing" reason to dismiss Hannon's petition was what it termed "unexcused delay." Rec., vol. 1, doc 9, at 2-3. Dismissal on this ground was error. See Bowen v. Murphy, 698 F.2d 381 (10th Cir.1983) (per curiam) (setting out standards under Rule 9(a) following section 2254); cf. United States v. Gutierrez, 839 F.2d 648 (10th Cir.1988) (per curiam) (applying rationale from Rule 9(a) following section 2254 to a section 2255 case).

Rule 9(a) states:

"Delayed petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred."

28 U.S.C. foll. Sec. 2254. In Bowen, we held that Rule 9(a) is not a statute of limitations; rather it provides the state with an equitable defense to unjustifiably delayed petitions. 698 F.2d at 382-83. Because Congress specifically removed a provision that provided a presumption of prejudice for a delay of more than five years, we "rejected a diligence requirement per se," Gutierrez, 839 F.2d at 650, and held that in order to establish adequate grounds for dismissal "[t]he state must make a particularized showing of prejudice in its ability to respond," Bowen, 698 F.2d at 383. Delay is irrelevant unless it is inexcusable and the state can "prove that the delay has prejudiced it in its ability to answer the petition." Id.; see Gutierrez, 839 F.2d at 650-52.

Once the state has proven prejudice, the petitioner must be accorded an opportunity to respond either by disputing the existence of prejudice or by proving "that for some period of the time between his conviction and seeking the writ he could not have had knowledge of the grounds his petition asserts." Marks v. Estelle, 691 F.2d 730, 734 (5th Cir.1982), cert. denied, 462 U.S. 1121, 103 S.Ct. 3090, 77 L.Ed.2d 1351 (1983); see McGee v. Estelle, 732 F.2d 447, 451 (5th Cir.1984) (per curiam); Alexander v. Maryland, 719 F.2d 1241, 1246-47 & n. 10 (4th Cir.1983); McDonnell v. Estelle, 666 F.2d 246, 253-54 (5th Cir.1982) (quoting Rule 9(a), 28 U.S.C. foll. Sec. 2254); cf. Gutierrez, 839 F.2d at 652 (applying same procedure to section 2255 cases). If the petitioner successfully demonstrates the latter, the state bears the burden of proving that "it has suffered some prejudice after that period." Marks, 691 F.2d at 734; see Alexander, 719 F.2d at 1246 & n. 9, 1247; McDonnell, 666 F.2d at 253-54.

Hannon alleges that his appointed counsel was ineffective because he failed to perfect an appeal. The state has attempted to demonstrate prejudice by arguing that the trial judge and court reporter have died, and the prosecutor cannot remember the details of the case. These factors suggest that the state may well be prejudiced if it is required to retry Hannon. Such prejudice, however, is irrelevant to a Rule 9(a) defense. ⁶ Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 624, 88 L.Ed.2d 598 (1986); Strahan v. Blackburn, 750 F.2d 438, 441 (5th Cir.), cert. denied, 471 U.S. 1138, 105 S.Ct. 2683, 86 L.Ed.2d 700 (1985); Bowen, 698 F.2d at 383; Aiken v. Spalding, 684 F.2d 632, 634 (9th Cir.1982), cert. denied, 460 U.S. 1093, 103 S.Ct. 1795, 76 L.Ed.2d 361 (1983). The Supreme Court has held that Rule 9(a) specifically refers only to prejudice in responding to the petition, and "Congress has not seen fit ... to provide the State with an additional defense to habeas corpus petitions based on the difficulties that it will face if forced to retry the defendant." Vasquez, 106 S.Ct. at 624. Thus, "[t]he impact that delay may have had on a possible retrial is not to be considered" by the federal habeas court. Strahan, 750 F.2d at 441 (quoting 17 Wright, Miller & Cooper, Federal Practice and Procedure, Sec. 4268 at 701 (1978)); see Vasquez, 106 S.Ct. at 624.

Because only prejudice in responding to the petition is relevant, the grounds asserted by the state are insufficient to carry its initial burden. The question of whether Hannon's counsel was constitutionally ineffective in failing to file a timely notice of appeal depends upon his interaction with Hannon. See Holcomb v. Murphy, 701 F.2d 1307, 1311 (10th Cir.) ("[T]he principal actor in the decision whether to appeal is the criminal defendant."), cert. denied, 463 U.S. 1211, 103 S.Ct. 3546, 77 L.Ed.2d 1394 (1983). If defense counsel explained the pros and cons of an appeal to Hannon and Hannon made a knowing and intelligent choice not to appeal, counsel's failure to timely...