Heath v. Jones
| Decision Date | 17 January 1989 |
| Docket Number | No. 87-7756,87-7756 |
| Citation | 863 F.2d 815 |
| Parties | James Edward HEATH, Petitioner-Appellant, v. Charlie JONES, Warden; and Don Siegelman, the Attorney General of the State of Alabama, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
James Edward Heath, Bessemer, Ala., pro se.
James F. Hampton, McLain & Hampton, Montgomery, Ala., Don Siegelman, Atty. Gen., Montgomery, Ala., for respondents-appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before TJOFLAT, HILL and JOHNSON, Circuit Judges.
The judgment of the district court denying appellant's petition for the writ of habeas corpus is affirmed on the basis of the Report and Recommendation of the Honorable Edwin L. Nelson, United States Magistrate, dated November 5, 1987 and filed November 6, 1987, adopted and approved by United States District Judge Clarence W. Allgood on December 2, 1987, a copy of the said Report and Recommendation of the Magistrate being attached hereto as appendix.
AFFIRMED.
APPENDIX
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
JAMES EDWARD HEATH, Plaintiff,
vs.
CHARLIE JONES, Warden, and THE ATTORNEY FOR THE STATE OF
ALABAMA, Defendant.
CV-86-A-2179-M
This is a petition for a writ of habeas corpus filed by a person in custody under a judgment of a court of the State of Alabama. 28 U.S.C. Sec. 2254.
A grand jury sitting in Talladega County, Alabama, on May 13, 1983, returned an indictment 1 by which it charged the petitioner with armed robbery in violation of Ala. Code Sec. 13A-8-41 (1975). 2 Heath was On October 19, 1984, the petitioner filed a petition for the writ of error coram nobis in the Circuit Court of Talladega County, Alabama. After conducting an evidentiary hearing at which the petitioner testified, the trial court denied the petition. On appeal, the Alabama Court of Criminal Appeals again affirmed.
convicted after a one day trial to a jury at which he was represented by court-appointed counsel. The state gave notice that it would seek sentencing under Alabama's Habitual Felony Offender Act 3 and, on September 21, 1983, the petitioner was sentenced to life imprisonment without possibility of parole. On appeal, the Alabama Court of Criminal Appeals affirmed, apparently without writing an opinion. 4
On the present petition, which is almost illegible, Heath makes a number of claims. They are: (1) He was denied the effective assistance of counsel because (a) there was no opportunity to prepare a defense, (b) his attorney did not make appropriate objections, (c) he and his lawyer had "words" about the lawyer's lack of preparation, (d) the lawyer let the court "railroad" him, (e) he allowed the prosecutor to "have his way" with the jury, and (f) the lawyer did not reserve exceptions to adverse rulings of the trial judge; (2) he was denied equal protection because the indictment was void and did not charge him with intent to rob and because he was tried as an aider and abetter; (3) he was denied equal protection because an invalid prior conviction was used as an underlying offense for enhancement purposes; and (4) the trial court was without jurisdiction because the indictment was void for vagueness.
The respondents assert that, at least as to some of the claims, the petitioner has not exhausted state remedies by presenting his claims to the courts of the State of Alabama.
A state prison inmate who seeks release from custody on the ground that his conviction or sentence is in violation of the Constitution or laws of the United States must first exhaust remedies available to him in the courts of the convicting state. 28 U.S.C. Sec. 2254(b), (c); Walker v. Zant, 693 F.2d 1087 (11th Cir.1983); Bufalino v. Reno, 613 F.2d 568 (5th Cir.1980). The requirement is a "codification of the federal judicial policy designed 'to effect a proper balance between the roles of the state and federal judicial institutions in protecting federal rights.' " Ogle v. Estelle, 592 F.2d 1264, 1267 (5th Cir.1979). As a matter of comity, this policy requires the federal courts to allow the states the "initial opportunity to pass upon and correct alleged violations of its prisoners' rights." Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (1963); see also Bell v. Wainwright, 531 F.2d 1339 (5th Cir.1976). The exhaustion requirement is deemed to have been satisfied when the federal claims have been fairly presented to the state courts. Ogle v. Estelle, 592 F.2d at 1267. The exhaustion requirement dictates that the precise issues presented in the federal petition must have been presented to the state courts. See Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 512-14, 30 L.Ed.2d 438 (1971); Manning v. Alabama, 526 F.2d 355 (5th Cir.1976); Alonzo v. Estelle, 500 F.2d 672 (5th Cir.1974).
Furthermore, a state habeas petitioner must exhaust state remedies as to all his claims. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (); Galtieri v. Wainwright, 582 F.2d 348 (5th Cir.1978).
On direct appeal, Heath's attorney's raised but one issue: whether the evidence at trial was sufficient to sustain the conviction. Additionally, counsel requested that court to consider issues presented in Heath's handwritten pro se brief. In his "brief" Heath argued that he should have been warned of the consequences before he was allowed to admit his identity at the sentencing hearing.
On his petition for the writ of error coram nobis, as amended, Heath claimed: (1) he was denied the effective assistance of counsel because (a) his lawyer had no chance to prepare a defense, (b) the lawyer made no objections at trial, (c) he and the lawyer had "words", (d) his attorney allowed the court to "railroad" him and the prosecutor to "have his way" with the jury; (2) there was a variance between the indictment and the proof at trial because he was charged with robbery but was tried as an aider and abetter; (3) an invalid prior conviction was used to enhance his sentence; (4) the indictment was void because of vagueness; (5) he was discriminatorily selected for application of the habitual offender act; (6) the habitual offender act violates the ex post facto and the bill of attainder provisions of the United States Constitution; (7) he was denied the right to appellate review; and (8) the evidence at trial was insufficient to support his conviction.
On appeal from the denial of the petition for the writ of error coram nobis, Heath's counsel argued generally that the trial court had erred in its handling of the coram nobis proceeding.
The court's comparison of the state issues with those raised here clearly indicates that the petitioner has presented substantially the same issues here which were presented in the state courts. It is true that the claims may not have been stated in precisely the same terms in all cases, but they are essentially the same. In the opinion of the magistrate, state remedies have been exhausted and the claims should be treated on the merits.
Where the Rules Governing Section 2254 cases are silent the court should apply the Federal Rules of Civil Procedure. Hill v. Linahan, 697 F.2d 1032, 1035 (11th Cir.1983). The court has indicated that it would treat the respondents' return as a motion for summary judgment and has provided the petitioner with an explanation of Summary judgment may be granted by the court whenever the materials submitted in support of and in opposition to the motion "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. Summary judgment provides a means whereby a party may go behind the pleadings by bringing to the court's attention other matters which demonstrate that there are no fact matters which require a trial. Save Our Cemeteries, Inc. v. Archdiocese of New Orleans, Inc., 568 F.2d 1074 (5th Cir.), cert. denied 439 U.S. 836, 99 S.Ct. 120, 58 L.Ed.2d 133 (1978). However, as the United States Court of Appeals for the Fifth Circuit 5 has said:
Rule 56, Fed.R.Civ.P. In response thereto, Poole has filed a document in opposition to summary judgment in which he reiterates his claims, asserts that he was no more than an accomplice to the alleged acts, and cites numerous cases addressing issues of guilt of accomplices and sufficiency of circumstantial evidence, none of which are applicable to Poole's situation.
Summary judgment procedure is not a catch penny contrivance to take unwary litigants into its toils and deprive them of a trial, it is a liberal measure, liberally designed for arriving at the truth. Its purpose is not to cut litigants off from their right of trial by jury if they really have evidence which they will offer on a trial, it is to carefully test this out, in advance of trial by inquiring and determining whether such evidence exists.
Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir.1940).
The court is required to draw all permissible inference against the party moving for summary judgment. Crockett v. Uniroyal, 772 F.2d 1524, 1528-29 (11th Cir.1985). The court's function is to determine whether there is any evidence in favor of the nonmoving party such as would authorize a jury to return a verdict in that party's favor. If the evidence does not form a sufficient basis for a verdict in favor of the non-moving party, then summary judgment should be granted. The party against whom summary judgment is sought may not sit idly by but must carry the burden of producing concrete evidence which would support a verdict in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, the court should proceed to consider the respondents' return as a motion for summary judgment.
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