Jones v. Estelle, 81-1522

• Decision Date: 29 November 1982
• Docket Number: No. 81-1522,81-1522
• Citation: 692 F.2d 380
• Parties: Ollie James JONES, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director Texas Department of Corrections, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 380

692 F.2d 380

Ollie James JONES, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director Texas Department of Corrections Respondent-Appellee.

No. 81-1522

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Nov. 29, 1982.

Ollie James Jones, pro se.

Kenneth L. Petersen, Jr., Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before CLARK, Chief Judge, POLITZ and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We turn again to the difficult task of reconstructing a state prisoner's writ history in order to review a decision that he has abused the Great Writ under Rule 9(b), Rules Governing Sec. 2254 Cases. ¹

Jones' conviction in the Texas courts for robbery by assault was affirmed on direct appeal. See Jones v. State, 501 S.W.2d 677 (Tex.Cr.App.1973). Jones then filed three habeas petitions, one civil rights suit, and a fourth habeas petition from which he now appeals. All have been dismissed without an evidentiary hearing.

This trip, Jones levels four charges against his conviction: (1) denial of compulsory process (to obtain the testimony of a co-defendant); (2) suppressing statements of eyewitnesses; (3) suppressing evidence in not calling listed witnesses; and (4) ineffective assistance of counsel. Jones' writ history is as follows:

1972--CA-3-6210-D (Judge Hill) The petition complained of a lack of a free trial transcript and, in this context, complained of a "lack of effective assistance of appointed counselor." The record does not contain an explanation of the case's disposition. Presumably, the case was dismissed without prejudice for failure to exhaust state remedies.

1972--CA-3-5587-C (Judge Taylor) Petition was dismissed on April 5, 1972 for failure to exhaust with the observation that: "Applicant should consult with his attorney and should present all complaints relating to the conviction on the sentence imposed therein to the Court of Criminal Appeals in the appeal proceeding now pending in that court. Thereafter, if any constitutional issues remain which have not been fully presented to and adjudicated by the state court, application shall be made for the writ of habeas corpus to the court in which applicant was convicted before application to this court is made."

1976--CA-3-75-0967-D (Judge Hill) Petitioner's claim of denial of compulsory process and denial of a free trial transcript were denied on the merits on August 18, 1976.

1976--CA-3-76-1075-F (Judge Porter) This civil rights suit under 42 U.S.C. Sec. 1983 was filed on August 13, 1976 seeking money damages from assorted persons including the District Attorney and prosecutor, among others.

The suit complained, in part, of supposed statements of witnesses (ground number two) and not calling the listed witnesses (ground number three).

The district judge in this case adopted the findings of the magistrate that the claimed denial of compulsory process, ground one, had been decided on its merits against petitioner in 1976 in CA-3-75-0967-D; and grounds two, three and four ought to be dismissed for abuse of the writ pursuant to Rule 9(b). The magistrate had raised the 9(b) issue sua sponte, issuing an order on August 5, 1981 for petitioner to show cause why the petition ought not be dismissed under Rule 9(b). Petitioner's rambling pro se response to the magistrate's show cause order argued that the Rule 9(b) relitigation bar should not be imposed because no court had "made an independent evaluation of the facts" ... "nor was an evidentiary hearing held...." The three additional grounds were, petitioner replied, not argued before Judge Hill in CA-3-75-0967-D in 1976 because he was "unaware of the fact that [they] had to be raised in Cause No. CA-3-75-0967-D" and he was "without copies of the trial records and other documents to adequately present those allegations ..." and his failure to raise them was not intentional.

The McDonnell Procedure for Summary Disposition Under Rule 9(a)

In McDonnell v. Estelle, 666 F.2d 246 (5th Cir.1982), this circuit recently addressed the question of the proper procedures for summary disposition of habeas petitions in the context of Rule 9(a), which permits the dismissal of delayed petitions that are prejudicial to the state. There the district court issued an order to show cause why the petitioner should not be granted relief. The state responded with a motion to dismiss and answer in which it raised the Rule 9(a) defense of laches and supported the assertion with evidentiary material. The district court granted the dismissal. The McDonnell panel found that the tolerance of summary disposition in habeas proceedings did not avoid the usual requirements of Fed.R.Civ.P. 56 and proceeded to inquire if there was an absence of a genuine issue of material fact. Before doing so, however, the court explained that a petitioner must be given an opportunity to respond to a Rule 56 motion and be made aware "specifically of the fact that the court will be making a final disposition of the case in the form of a summary judgment." Id. at 255. The court read the show cause order procedure contemplated by Rule 9(a) and suggested by its official forms as a procedural complement to the notice requirements of Rule 56, noting that the two mechanisms "create a procedural framework for the disposition of Rule 9(a) cases." ² Id. at 253.

At the outset, we must decide whether McDonnell's approach to Rule 9(a) controls Rule 9(b) dismissals, and if so, whether its procedural commands were followed here. Finally, we will review the substantive decisions laid in a "correct" procedural mold.

Procedure for Summary Disposition Under Rule 9(b)

Like Rule 9(a), Rule 9(b) was enacted to relieve courts from burdensome and protracted litigation of habeas corpus claims in cases where it is not justified. The Rule contemplates a speedy dismissal of repetitious or abusive habeas corpus petitions without requiring a full consideration of the merits of the constitutional claims. See Sanders v. United States, 373 U.S. 1, 17-18, 83 S.Ct. 1068, 1078-1079, 10 L.Ed.2d 148 (1963) (establishing standards later codified in Rule 9(b)). Although the Rule itself does not delineate the proper procedures for dismissing a petition, cases indicate that summary dispositions without hearings are permissible. See, e.g., Mays v. Balkom, 631 F.2d 48, 51 (5th Cir.1980). ³

Nevertheless, because these summary dispositions under Rule 9(b) preclude review of constitutional claims, procedural safeguards are required to avoid undermining the very purpose behind the writ of habeas corpus. Accordingly, courts have long held that petitioners must be afforded an opportunity to rebut or explain allegations of repetition or abuse. See Price v. Johnston, 334 U.S. 266, 292-93, 68 S.Ct. 1049, 1063-1064, 92 L.Ed. 1356 (1948); Johnson v. Copinger, 420 F.2d 395, 399-400 (4th Cir.1969). ⁴ Indeed, this circuit recently vacated a district court's Rule 9(b) summary dismissal and remanded the case to afford the petitioner "a reasonable opportunity to traverse the suggestion of abuse." Vaughan v. Estelle, 671 F.2d 152, 153 (5th Cir.1982). See also Potts v. Zant, 638 F.2d 727, 747-49 (5th Cir.), cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981).

Despite the recognition of this procedural safeguard, neither case law nor the Rules Governing Sec. 2254 Cases has clarified the step-by-step procedural requirements for summary dismissals under Rule 9(b). When the law or the rules provide no guidance, Rule 11 compels us to apply the Federal Rules of Civil Procedure to habeas cases. Like the McDonnell panel, we conclude that Fed.R.Civ.P. 56 and the form appended to Rule 9(b) provide the best mechanism for reconciling the tension between the need for speedy disposition of repetitive or abusive petitions and the harshness of a final resolution of a petition without addressing its merits. ⁵

Under Rule 56 and the form appended to Rule 9(b), either the court may raise the 9(b) bar after considering extraneous evidence of repetition and abuse or the state may move for summary judgment under Rule 9(b) and submit to the court extraneous evidence in support of the motion. ⁶ In either case, Rule 56(c) requires that the petitioner be served with the motion at least ten days before the court considers it. This timing requirement is essential in the Rule 56 context to provide the petitioner a reasonable opportunity to respond to the allegations of repetition or abuse. See generally 10 C. Wright & A. Miller, Federal Practice and Procedure: Civil Sec. 2719 (1973). Accordingly, non-compliance with the ten day notice requirement prevents entry of summary judgment. Hickey v. Arkla Industries, Inc., 615 F.2d 239 (5th Cir.1980).

Nevertheless, compliance with the Rule 56 timing requirement will not assure procedural fairness unless the petitioner is "notified specifically of the fact that the court will be making a final disposition of the case in the form of a summary judgment." McDonnell, 666 F.2d at 255. This requirement serves to warn petitioner that he cannot merely defend the sufficiency of his pleadings but must "present additional material and arguments going to the issue of summary judgment." Underwood v. Hunter, 604 F.2d 367, 369 (5th Cir.1979). The form appended to Rule 9(b) ensures that a petitioner is afforded the requisite notice. This form notifies the petitioner that the court is considering a dismissal under Rule 9(b) and that his failure to complete the form will result in automatic dismissal of his petition. It requires the petitioner to explain why a repetitive petition deserves reconsideration or why he failed to raise new grounds in a prior petition. Finally, the form admonishes the petitioner to present facts rather than opinions or conclusions. Together with Rule 56, this form ensures that a petitioner will receive timely and specific...