Hillery v. Sumner

Decision Date07 August 1980
Docket NumberNo. CIVIL S-78-594 LKK.,CIVIL S-78-594 LKK.
Citation496 F. Supp. 632
PartiesBooker T. HILLERY, Jr., Petitioner, v. George SUMNER, Warden, California State Prison, San Quentin, California, Respondent.
CourtU.S. District Court — Eastern District of California

E. Richard Walker, Federal Defender, Arthur W. Ruthenbeck, Chief Asst. Federal Defender, Sacramento, Cal., for petitioner.

George Deukmejian, Atty. Gen., Wm. George Prahl, Deputy Atty. Gen., Sacramento, Cal., for respondent.


KARLTON, District Judge.

Respondent filed three motions: to dismiss, for reconsideration of my order of March 27, 1980, and for a stay of responses to interrogatories. A brief examination of the procedural history of the case aids in placing the current motions in perspective.

Petitioner, a state prison inmate, filed his application for a writ of habeas corpus in 1978, challenging the constitutionality of his 1962 Kings County, California, Superior Court conviction for murder. He alleges that he is Black and that he was denied equal protection of the laws because Blacks were systematically excluded from the grand jury which indicted him. On January 31, 1979, the Honorable Thomas J. MacBride determined that petitioner had established a prima facie case of discriminatory selection and directed the respondent to show cause why a writ of habeas corpus should not issue on that ground.

In his return to the Order to Show Cause, respondent argued that because the state had provided petitioner with an opportunity to fully and fairly litigate his claim of racial discrimination in a state court, federal habeas review was not available. Alternately he argued that if such review was appropriate, the record reflected that there was no racial discrimination in the selection of the grand jury. Petitioner's traverse took issue with respondent's arguments.

On March 27, 1980, I filed an order which altered the posture of the case. In relevant part that order directed the parties to expand the record of the case by filing certain documentary material which I requested, propounded interrogatories to the parties, and vacated that part of the Order to Show Cause which had found that petitioner had established a prima facie case. In all other respects, however, the Order to Show Cause of January 31, 1979, remained in effect.


Respondent's present motion to dismiss, citing Rule 9,1 is based on the delay between the California Supreme Court's affirmance of the guilt phase of petitioner's conviction (see People v. Hillery (1965) 62 Cal.2d 692, 44 Cal.Rptr. 30, 401 P.2d 382), and the filing of the application for habeas relief in 1978.

The Rule provides:

A motion for relief made pursuant to these rules may be dismissed if it appears that the government has been prejudiced in its ability to respond to the motion by delay in filing unless the movant 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 government occurred.

By its terms, Rule 9 does not provide a procedure for raising the issue of prejudicial delay. In his Points and Authorities in support of the motion, respondent likewise failed to suggest any procedural basis for his motion. Since the scope of material to be reviewed by the court in resolving the motion may turn on the procedural nature of the motion, this failure is significant.

Petitioner, on the other hand, using a procedural analysis, has argued that respondent has waived the Rule 9 defense. Looking to Rule 11 which allows a district court to proceed in any lawful manner and to apply the Federal Rules of Civil or Criminal Procedure, petitioner responded to the motion by contending that a Rule 9 motion is analogous to an affirmative defense which may be raised in a motion to dismiss under F.R.Civ.P. 12(b). Petitioner then argued that under F.R.Civ.P. 12, respondent's failure to raise the defense in the return to the Order to Show Cause or in a motion filed before the return constituted a waiver of the defense.

Not surprisingly, at the hearing respondent disputed petitioner's waiver analysis. Upon my inquiry at oral argument, respondent characterized his motion as sui generis to habeas corpus proceedings and thus not analogous to Rule 12(b) at all. Moreover, he maintained no waiver had occurred since the necessity for filing the Rule 9 motion did not become apparent until I issued my order of March 27, 1980, requiring expansion of the record. When the original return was filed, respondent reasons, the only evidence before the court on the jury discrimination claim was the record of the state court proceedings. He contends, however, that the court order augmenting the record resulted in prejudice to the state because a crucial witness is dead and thus cannot be the source of information to counter expected evidence produced pursuant to the order expanding the record. Under these circumstances, according to respondent, there is no waiver, since at the time of filing the return there was no prejudice and thus no Rule 9 objection to be raised. For the reasons set forth below, I now determine that respondent's motion to dismiss must be denied since it was brought in neither a timely nor an appropriate fashion.

Essentially, respondent's argument is one of "surprise," i. e., he could not reasonably anticipate that he would be required to meet evidence outside the state court record. Such an argument cannot prevail, for there could be no surprise. The power of inquiry on federal habeas corpus is plenary. Townsend v. Sain (1963) 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770. Although the state court records are generally all that is before the court at the time the return is filed (see Rule 6(b)), the court's consideration of the alleged constitutional violation is not confined to the state court record; the court's power to take evidence relevant to an allegedly unconstitutional detention has been repeatedly upheld. Id. at 311, 83 S.Ct. at 756; U. S. ex rel. Barksdale v. Blackburn (5th Cir. 1980) 610 F.2d 253, 259. If, as petitioner alleges, he did not receive a full and fair evidentiary hearing in the state court, a hearing in this court is mandated (Id. at 312; 28 U.S.C. § 2254(d)); moreover, in other cases it is within the court's discretion to take evidence bearing upon the applicant's claim. Townsend v. Sain, supra, 372 U.S. at 318, 83 S.Ct. at 759. Thus, the possibility of prejudice (as the respondent defines it) is inherent in the very nature of habeas corpus review. That is to say, the state could not reasonably believe that in assessing the effect of delay upon its ability to defend there was no possibility of going beyond the state court record. Accordingly, I cannot agree with respondent's contention that pleading a Rule 9 defense in the return was unnecessary.

Given the fact that respondent's rationalization of his failure to raise a Rule 9 defense in his return is of no avail, I must now assess the effect of that failure. Rule 9 is based on the equitable doctrine of laches (see Paprskar v. Estelle (5th Cir. 1980) 612 F.2d 1003, 1007; Baxter v. Estelle (5th Cir. 1980) 614 F.2d 1030, 1033-1034; D. Dobbs, Remedies, pp. 43-44 (1973)). As I have noted, the rules provide that when no procedure is specified, recourse may be had to the Federal Rules of Civil or Criminal Procedure. See Rule 11. Inasmuch as the criminal rules do not require a written pleading by a defendant, it would appear appropriate to look to the civil rules to determine what must be contained in a return to an Order to Show Cause in habeas.

F.R.Civ.P. 8(c) classifies laches as an affirmative defense, to be set forth "in a pleading to a preceding pleading. . . ." Several courts have held that a failure to plead laches in the answer constitutes a waiver of the defense. Topping v. Fry (7th Cir. 1945) 147 F.2d 715, 718; United States v. A-1 Meat Company, 146 F.Supp. 590, 591, aff'd, 255 F.2d 491 (2nd Cir. 1958); Overseas Motors, Inc. v. Import Motors Limited, Inc. (E.D.Mich.1974) 375 F.Supp. 499, 512, aff'd, (6th Cir. 1975) 519 F.2d 119, cert. denied, 423 U.S. 987, 96 S.Ct. 395, 46 L.Ed.2d 304 (1975). Accordingly, respondent should have pled laches or Rule 9 in his return to the Order to Show Cause. In addition, although the habeas cases focusing on laches and on Rule 9 do not discuss the matter, many implicitly support the idea that laches is properly a matter of defense, for they discuss the question in the course of rendering a decision following an evidentiary hearing, at which evidence on laches presumably was offered. See, e. g., Baxter v. Estelle (5th Cir. 1980) 614 F.2d 1030; United States ex rel. Barksdale v. Blackburn (5th Cir. 1980) 610 F.2d 253; Hudson v. State of Alabama (5th Cir. 1974) 493 F.2d 171; Dean v. State of North Carolina (M.D. N.C.1967) 269 F.Supp. 986. Thus, it would appear proper to treat the Rule 9 problem as a matter of affirmative defense, which should have been pled in the return. The failure to so plead precludes the motion now.2 See F.R.Civ.P. 8, 5 Wright & Miller, Federal Practice and Procedure § 1278.

Moreover, assuming that respondent has not waived a Rule 9 defense, his motion must nonetheless be denied since however it is characterized, it is insufficient.

One way of viewing the motion is, as petitioner suggests, as a motion to dismiss under F.R.Civ.P. 12(b). See State of Ohio v. Peterson, Lowry, Rall, Etc., (10th Cir. 1978) 585 F.2d 454; Miller v. Shell Oil Co. (10th Cir. 1965) 345 F.2d 891, 893; Overseas Motors, Inc. v. Import Motors Limited, Inc., supra; Russel v. Thomas (S.D.Cal.1955) 129 F.Supp. 605; Wright and Miller, Federal Practice and Procedure, Civil § 1277.

If the motion is treated as a 12(b) motion, however, it must be denied, since such a motion can only be brought before an answer is filed unless it raises specially enumerated defenses not applicable here. See F.R.Civ.P. 12(h) and...

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8 cases
  • Vasquez v. Hillery
    • United States
    • U.S. Supreme Court
    • January 14, 1986
    ...case, and it was denied because the District Court found that no prejudicial delay had been caused by respondent. Hillery v. Sumner, 496 F.Supp. 632, 637 (ED Cal.1980). Congress has not seen fit, however, to provide the State with an additional defense to habeas corpus petitions based on th......
  • Hillery v. Pulley
    • United States
    • U.S. District Court — Eastern District of California
    • March 9, 1982
    ...27, 1980. The state responded to the March, 1980 Order with a variety of motions disposed of in my Opinion and Order published at 496 F.Supp. 632 (E.D.Cal.1980). Responses to the interrogatories directed to the parties by the court in the order to expand the record were filed and status con......
  • Hillery v. Pulley
    • United States
    • U.S. District Court — Eastern District of California
    • May 31, 1983
    ...excluded from the grand jury that indicted him. This case has had a lengthy and often tangled history. See Hillery v. Sumner, 496 F.Supp. 632 (E.D.Cal.1980); Hillery v. Pulley, 533 F.Supp. 1189 (E.D.Cal.1982). Since my last Opinion and Order, an evidentiary hearing has been held and closing......
  • Bragan v. Morgan
    • United States
    • U.S. District Court — Middle District of Tennessee
    • April 17, 1992
    ...Governing Section 2254 Cases. Prejudicial delay is an affirmative defense that is waived if not properly pleaded. Hillery v. Sumner, 496 F.Supp. 632, 634-36 (E.D.Cal.1980). See also 1 James S. Liebman, Federal Habeas Corpus Practice and Procedure § 23.2, at 327 n. 13 (1988). Accordingly, si......
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