Hill v. Linahan, 82-8381

• Decision Date: 11 February 1983
• Docket Number: No. 82-8381,82-8381
• Citation: 697 F.2d 1032
• Parties: Larry HILL, Plaintiff-Appellant, v. Leland Q. LINAHAN, Jr., Superintendent, Jack T. Rutledge Correctional Institution, Columbus, Georgia, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1032

697 F.2d 1032

Larry HILL, Plaintiff-Appellant, v. Leland Q. LINAHAN, Jr., Superintendent, Jack T. Rutledge Correctional Institution, Columbus, Georgia Defendant-Appellee.

No. 82-8381

United States Court of Appeals Eleventh Circuit.

Feb. 11, 1983.

Larry Hill, pro se.

Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for defendant-appellee.

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

Before TJOFLAT, JOHNSON and HATCHETT, Circuit Judges.

PER CURIAM:

In 1968, Larry Hill pled guilty to murder and was sentenced to life imprisonment by the Superior Court of Fulton County. No appeal was filed. He is now incarcerated at the Jack T. Rutledge Correctional Institution in Columbus, Georgia.

In 1981, Hill filed a pro se habeas corpus petition in Georgia state court. After a hearing, the Muscogee County Superior Court denied Hill's petition finding that he had not offered sufficient evidence to overcome the presumption in favor of the validity of the sentence. The Supreme Court of Georgia denied Hill a certificate of probable cause to appeal. Having exhausted his state remedies as required by 28 U.S.C.A. Sec. 2254(b), Hill filed a federal habeas petition alleging that: (1) his retained attorney provided him ineffective assistance; (2) his plea of guilty was involuntary because his attorney told him that if he did not plead guilty he would be sentenced to the electric chair; (3) his attorney was not a member of the Georgia bar and (4) there is no written record of his guilty plea. The magistrate to whom the case was referred recommended that the petition be dismissed. Adopting a portion of the magistrate's report, the district court dismissed Hill's petition pursuant to Rule 9(a) of the Rules Governing Sec. 2254 Cases in the United States District Courts (28 U.S.C.A. foll. Sec. 2254). The court concluded that Hill's thirteen year delay in bringing the petition, after the "apparent death" of his former counsel, prejudiced the state respondent, and that the delay was not due to grounds about which he had only recently learned. Hill appeals the dismissal.

Rule 9(a) provides:

(a) 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.

The district court's dismissal of Hill's petition under Rule 9(a) raises two issues: the correct procedure that should be used in dismissing a petition under Rule 9(a), and the substantive requirements of the rule. Although the substantive requirements of a Rule 9(a) dismissal have been discussed in earlier decisions of this Court, the procedures for dismissing a case under Rule 9(a) have never been addressed. Both the substantive and procedural requirements of Rule 9(a) have recently been exhaustively interpreted by the Fifth Circuit in McDonnell v. Estelle, 666 F.2d 246 (5th Cir.1982). That decision is not binding on this Court; ¹ however, its persuasive reasoning, as well as the fact that its analysis is based on case law which is binding on this Court, convinces us to follow its lead in defining the procedures to be followed in a Rule 9(a) dismissal.

I. Procedural Requirements of Rule 9(a)

Rule 9(a) does not state the procedures to be followed in entering a dismissal order under its provisions. However, Rule 11 of the Rules Governing Sec. 2254 Cases directs that the Federal Rules of Civil Procedure should be applied to habeas petitions when the Rules Governing Sec. 2254 Cases are silent. Under the Federal Rules of Civil Procedure, a judgment on the pleadings may be made under Rule 12(c) if the court considers only the pleadings, or under Rule 56 if the court considers any evidence outside the pleadings. Respondent filed an Answer-Response to Hill's petition, requesting that the case be dismissed under Rule 9(a) and denying the merits of Hill's claim. Attached to the respondent's pleading was a brief as well as five documentary exhibits. In McDonnell the court held that the dismissal of McDonnell's petition pursuant to the respondent's motion to dismiss "was actually a summary judgment and not a dismissal on the pleadings," 666 F.2d at 250, when "extraneous evidence was considered along with the pleadings." Id. Here the magistrate's report, on which the district court's decision was based, relied on the state's exhibits in dismissing Hill's petition under Rule 9(a). ² Therefore, the state's request for a Rule 9(a) dismissal was converted into a motion for summary judgment, analogously to the provision in Fed.R.Civ.P. 12(b)(6) that a motion to dismiss for failure to state a claim upon which relief can be granted will be treated as a motion for summary judgment when matters outside the pleadings are presented to the court. See McDonnell, 666 F.2d at 250.

Under Rule 56(c), Hill was entitled to notice that the state's request for a Rule 9(a) dismissal would be treated as a motion for summary judgment and an opportunity to offer evidence in opposition to the motion. See Hickey v. Arkla Industries, Inc., 615 F.2d 239 (5th Cir.1980) (parties must be given 10 days notice that 12(b)(6) motion being treated as Rule 56 motion); McDonnell, 666 F.2d at 252. The district court erred in dismissing Hill's petition without giving the requisite notice. It is not enough that Hill filed a Traverse to respondent's Answer-Response, or that he filed Objections to the Magistrate's Recommendation. McDonnell, 666 F.2d at 255. In Hickey the court stressed the importance of notifying the opposing party that summary judgment is being considered: "The very intimation of mortality when summary judgment is at issue assures us that the motion will be rebutted with every factual and legal argument available." 615 F.2d at 240 (quoting Georgia Southern & Florida Railway Co. v. Atlantic Coast Line Railroad Co., 373 F.2d 493, 498 (5th Cir.), cert. denied, 389 U.S . 851, 88 S.Ct. 69, 19 L.Ed.2d 120 (1967)). Furthermore, the Advisory Committee Note to Rule 9 suggests that a notice requirement is appropriate in Rule 9 cases; before the court dismisses the petition it should give the petitioner an "opportunity to explain his apparent abuse of the writ." The Note suggests that courts use the model form appended to Rule 9. The form notifies the petitioner that the court is considering dismissal pursuant to Rule 9(a) or (b) and that failure to complete the form will result in automatic dismissal. It asks the petitioner to explain why his case should not be dismissed under Rule 9(a) and to use facts to support his reasons. Thus, the notice requirement of Rule 56 and the Advisory Committee Note to Rule 9 "create a procedural framework for the disposition of Rule 9(a) cases." McDonnell, 666 F.2d at 253. This case must be remanded in order that Hill may be given notice that his case may be dismissed under Rule 9(a) and an opportunity to present facts showing why the delay is not prejudicial or why it is excusable.

II. Substantive Requirements of Rule 9(a)

Rule 9(a) was enacted "to minimize abuse of the writ of habeas corpus by limiting the right to assert stale claims." ³ Advisory Committee Note to Rule 9. However, the Note also states that Rule 9(a) was not intended to be a statute of limitations but instead was based on the equitable doctrine of laches: "[T]he language of the subdivision, 'a petition may be dismissed' [emphasis added], is permissive rather than mandatory. This clearly allows the court which is considering the petition to use discretion in assessing the equity of the particular situation." Under Rule 9(a) as enacted, a petitioner is not barred simply because he has delayed in filing his claim. The respondent "must make a particularized showing of prejudice," Paprskar v. Estelle, 612 F.2d 1003, 1008 (5th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980), and show that the prejudice was caused by the delay. Rule 9(a); Mayola v. State of Alabama, 623 F.2d 992, 999 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981).

Respondent's evidence failed to meet the requirements of Rule 9(a) in proving that Hill's delay prejudiced his ability to respond to the habeas petition, especially when viewed in light of the burdens on a party making a motion for summary judgment. ⁴ Respondent claims that Hill's delay prejudiced him because the transcript of Hill's plea is unavailable and Hill's counsel is deceased. However, there is no indication in the record that a transcript would have been available if Hill had brought his petition earlier. Respondent simply asserts that "no guilty plea transcript is available from the Superior Court of Fulton County." This assertion does not fulfill respondent's burden of showing that the unavailability of the transcript is due to Hill's delay. ⁵

Respondent has also not met his burden of proof in demonstrating that he was prejudiced by the unavailability of Hill's former counsel. If Hill's counsel is deceased, respondent would be prejudiced in his ability to respond to Hill's allegations, since Hill's counsel is the only person who can testify about the actions he took in representing Hill. However, the district court based its dismissal on only the "apparent death" of Hill's counsel. First, there is a factual dispute about the identity of Hill's counsel. Hill stated in his petition and at the state habeas hearing that his attorney's name was Frances Firce. The state court noted, however, that the "signature under Petitioner's plea of guilty by his attorney appeared to be that of a 'Frances G. Fife.' " It also stated that the court had recessed at the state habeas hearing in order to look for either name in the State Bar directory but had...