Howard v. Lewis
| Decision Date | 18 June 1990 |
| Docket Number | No. 89-15123,89-15123 |
| Citation | 905 F.2d 1318 |
| Parties | Larry HOWARD, Petitioner-Appellant, v. Samuel A. LEWIS, Director of Arizona State Prison; Robert Corbin, Arizona Attorney General, Respondents-Appellees. . Argued * and |
| Court | U.S. Court of Appeals — Ninth Circuit |
Larry Howard, Florence, Ariz., pro se.
Barbara A. Jarrett, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellees.
Appeal from the United States District Court for the District of Arizona.
Before FLETCHER, PREGERSON and NELSON, Circuit Judges.
In this case, we must decide whether the district court properly dismissed appellant Howard's successive habeas petition on the ground that a prior judgment denying relief on the identical claims was final. Howard argues that the dismissal of his prior habeas petition on the ground of state procedural default was not a determination "on the merits," and, thus, his present petition should not be barred.
We hold that, in general, a dismissal of a federal habeas petition on the ground of state procedural default is a determination "on the merits" for purposes of the successive petition analysis in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). However, for the reasons stated below, we remand this matter to the district court to determine whether the unique circumstances surrounding the dismissal of Howard's prior petition warrant a finding that the determination of his prior petition was not "on the merits" for purposes of the Sanders analysis.
In July 1980, Petitioner-Appellant Larry Howard was tried and convicted in an Arizona state court of five criminal counts: three counts of assault with a deadly weapon on a police officer; one count of unlawful flight; and one count of auto theft. To challenge this conviction, Howard has filed two petitions for writ of habeas corpus in United States courts, the first on November 12, 1985, 1 and the second, which is the subject of this appeal, on February 25, 1988.
On November 12, 1985, Howard filed a pro se petition for writ of habeas corpus in the United States District Court, District of Arizona pursuant to 28 U.S.C. Sec. 2254 (Cause No. 85-2498), while serving his sentence in the Arizona state prison system. 2 Howard's habeas petition raised three claims: (1) involuntariness of confession; (2) ineffective assistance of counsel; and (3) insufficiency of the evidence.
On or about October 22, 1986, the Arizona Attorney General filed a motion to dismiss. The Arizona Attorney General conceded that no further avenues of relief existed for Howard in the state court regarding the claims he made in his habeas petition. The Arizona Attorney General alleged, however, that Howard was barred from obtaining federal habeas relief on those claims because of state procedural defaults. Howard did not file a response to the motion to dismiss. In this appeal, Howard alleges that he was prevented from filing a response to the motion to dismiss by the Arizona prison authorities. 3
On June 10, 1987, United States Magistrate Michael Mignella, Jr. filed a recommendation and report to the district court. The report summarized the state court procedural history, which supported the Arizona Attorney General's allegation that Howard was barred from obtaining federal habeas relief on each of his claims because of state procedural default. The report stated that Howard failed to set forth any facts in his 1985 federal habeas petition that would establish cause for his state On September 11, 1987, United States District Court Judge Roger G. Strand issued an order denying Howard's petition for writ of habeas corpus. Judge Strand found that Howard failed to respond to the Arizona Attorney General's motion to dismiss, filed October 22, 1986, and consequently, per Arizona U.S. District Court Local Rule 11(h), 4 was deemed to have consented to the granting of the Attorney General's motion to dismiss. In addition, Judge Strand ruled on the merits that Howard was "barred from obtaining federal habeas relief" with respect to each of his claims "due to procedural default and his failure to establish cause for his [state] procedural defaults." Judge Strand also ruled that Howard did not establish "that his [was] 'an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent ...' so as to justify habeas relief in the absence of a showing of cause for his procedural defaults."
procedural defaults. The report stated further that Howard had in fact failed to respond to the Arizona Attorney General's motion to dismiss filed October 26, 1986, though the district court had advised Howard that failure to respond would constitute consent to granting the motion pursuant to Arizona U.S. District Court Local Rule 11(h), and though the district court had granted him three extensions of time, until March 17, 1987, to respond to the motion.
Howard did not appeal the denial of his 1985 petition for writ of habeas corpus. In this appeal, he alleges that he did not learn about the September 11, 1987 disposition of the 1985 petition until February 9, 1988. Howard alleges that he found out about the denial of his 1985 petition only after he submitted a motion requesting disposition of the habeas petition, and received a response dated February 9, 1988 stating that final judgment had been entered September 11, 1987.
On February 25, 1988, Howard filed a second pro se petition for writ of habeas corpus, the denial of which is the subject of this appeal. In this petition, Howard alleged three grounds for habeas relief: (1) denial of effective assistance of counsel; (2) insufficiency of the evidence; and (3) the introduction at trial of a coerced confession.
On April 21, 1988, the Arizona Attorney General filed a motion to dismiss Howard's second petition for writ of habeas corpus. The Arizona Attorney General alleged that Howard's 1988 petition should be dismissed pursuant to Rule 9(b), Rules Governing Section 2254 Cases, 28 U.S.C. foll. Sec. 2254, because the three claims he raised in the 1988 habeas petition are identical to the claims he raised in the 1985 habeas proceeding. The Arizona Attorney General also alleged that Howard failed to supplement his constitutional claims in the 1988 habeas proceeding with any colorable showing of factual innocence.
Howard timely filed a response to the Arizona Attorney General's motion to dismiss on May 13, 1988. Howard conceded that his 1988 habeas petition raised the identical three claims he had raised in his 1985 habeas petition. He argued, however On August 30, 1988, Magistrate Mignella issued a recommendation and report which stated that the district court's determination regarding the 1985 habeas petition was on the merits; that the "ends of justice" would not be served by reaching the merits of the 1988 petition because Howard did not supplement his claims with any showing of factual innocence; and, that the successive 1988 habeas petition should be dismissed on the ground that the "prior judgment denying relief on the identical claims was final." The magistrate recommended that the Arizona Attorney General's motion to dismiss be granted and that the petition for writ of habeas corpus be denied.
that the district court failed to make any determination "on the merits" of his 1985 petition and thus he should not be barred from obtaining habeas relief in the 1988 proceeding.
On September 12, 1988, Howard filed a response to Magistrate Mignella's recommendation. On December 12, 1988, Judge Strand denied Howard's petition for writ of habeas corpus adopting in full Magistrate Mignella's report and recommendation dated August 30, 1988.
Howard timely filed a Notice of Appeal on January 4, 1989. Judge Strand issued a Certificate of Probable Cause on January 12, 1989. We have jurisdiction over this appeal pursuant to 28 U.S.C. Sec. 2253.
Generally, a district court's decision whether to grant or deny a petition for habeas corpus is reviewed de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir.1989); Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). We review for an abuse of discretion a district court's decision to deny consideration on the merits of a petition for habeas relief on the basis that the petition is successive. Neuschafer v. Whitley, 860 F.2d 1470, 1474 (9th Cir.1988), cert. denied, --- U.S. ----, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989).
The successive petition doctrine governing habeas petitions filed pursuant to 28 U.S.C. Sec. 2254 was formulated by the Supreme Court in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) and is found in Rule 9(b), Rules Governing Sec. 2254 Cases, 28 U.S.C. foll. Sec. 2254, and 28 U.S.C. Sec. 2244(b).
The Supreme Court in Sanders stated:
Controlling weight may be given to denial of a prior application for federal habeas corpus ... relief only if (1) the same ground presented in the subsequent application was determined adversely to the appellant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.
Sanders, 373 U.S. at 15, 83 S.Ct. at 1077. 5
The focus of our attention in this case is on part two of the Sanders test, i.e., whether the district court's determination of the 1985 habeas petition was "on the merits." 6 Our analysis of this question is twofold. We first must determine whether the dismissal of a habeas petition on the ground of state procedural default is a determination "on the merits." We then must decide whether granting a motion to dismiss, where the petitioner was deemed to have consented to the granting of the motion pursuant to Arizona U.S. District Court...
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