Lewis v. Duckworth, Civ. No. S 86-539.

• Decision Date: 16 November 1987
• Docket Number: Civ. No. S 86-539.
• Citation: 673 F. Supp. 310
• Parties: Arthur James LEWIS, Petitioner, v. Jack R. DUCKWORTH; and Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

673 F. Supp. 310

Arthur James LEWIS, Petitioner, v. Jack R. DUCKWORTH; and Indiana Attorney General, Respondents.

Civ. No. S 86-539.

United States District Court, N.D. Indiana, South Bend Division.

November 16, 1987.

Arthur J. Lewis, pro se.

Kermit Hilles, Deputy Atty. Gen., Indianapolis, Ind., for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

Petitioner, Arthur James Lewis, filed a petition pro se pursuant to 28 U.S.C. § 2254 on September 24, 1986. Petitioner also filed an extensive amended petition. The response, filed on June 4, 1987, by the respondents, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). Although the record in this case is somewhat convoluted, the issues are not that difficult.

This petitioner was convicted of murder in the second degree for killing the Sheriff of Pulaski County, Indiana, while the Sheriff was attempting to thwart his escape from jail. In Lewis v. State, 268 Ind. 398, 375 N.E.2d 1102 (1978), Justice Prentice, speaking for the Supreme Court of Indiana, 375 N.E.2d at p. 1103, described the evidence against petitioner as "overwhelming." Since his conviction, petitioner has created a lengthy judicial paper trail challenging the conviction in a wide variety of ways. Perhaps the single paragraph of Justice Prentice's opinion sets the stage as follows:

Defendant was convicted of murder in the second degree upon overwhelming evidence that he killed the Sheriff of Pulaski County who was attempting to thwart his escape from jail. Following the denial of the defendant's motion to correct errors, which had been filed by counsel, the defendant, on November 18, 1968, filed a pro se motion for the appointment of appellate counsel and for a transcript of the trial proceedings. On the same day, he proceeded with "self-help" by escaping from the Indiana State Prison where he had been incarcerated, not to be returned to custody until May 31, 1969. On November 27, 1968, the trial court dismissed the aforementioned motion upon the grounds of the defendant's escape.

As a not altogether irrelevant aside, the Supreme Court of Indiana very recently seems to have ruled in a parallel situation exactly the same as Justice Prentice ruled in Lewis. See Weatherford v. State, 512 N.E.2d 862 (Ind.1987). The opinion of Justice DeBruler is bottomed on the concept that post-conviction proceedings are not a substitute for direct appeal, but certainly he does not bottom that contention on any state or federal constitutional right.

In 1980, this same petitioner filed a petition for writ of habeas corpus in this court under this same statute entitled Arthur James Lewis v. Jack R. Duckworth, 673 F.Supp. 310 (N.D.Ind.1987), which proceeding this court takes full judicial notice of. The Seventh Circuit opinion, authored by Judge Posner who was joined by Judges Bauer and Cudahy, is compatible with the aforesaid opinion of Justice Prentice speaking for the Supreme Court of Indiana. See Lewis v. Duckworth, 680 F.2d 508 (7th Cir.1982). Certainly, the allegations of the amended petition here are more elaborate in their detail than the one in Cause Number S 80-20, but in the essentials, the same issues and arguments are presented. Rule 9(b) of the Rules Governing § 2254 actions in United States District Courts deals specifically with second or successive petitions as follows:

Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

Recently, a plurality of the Supreme Court of the United States speaking for Justice Powell in Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), dealt precisely with this subject and stated as follows:

In the light of the historic purpose of habeas corpus and the interests implicated by successive petitions for federal habeas relief from a state conviction, we conclude that the "ends of justice" require federal courts to entertain such petitions only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence. This standard was proposed by Judge Friendly more than a decade ago as a prerequisite for federal habeas review generally. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970). As Judge Friendly persuasively argued then, a requirement that the prisoner come forward with a colorable showing of innocence identifies those habeas petitioners who are justified in again seeking relief from their incarceration. We adopt this standard now to effectuate the clear intent of Congress that successive federal habeas review should be granted only in rare cases, but that it should be available when the ends of justice so require. The prisoner may make the requisite showing by establishing that under the probative evidence he has a colorable claim of factual innocence. The prisoner must make his evidentiary showing even though—as argued in this case—the evidence of guilt may have been unlawfully admitted.17 (Footnote omitted).

106 S.Ct. at 2627.

Another question here is whether petitioner has procedurally defaulted. Procedural default occurs where the petitioner has not complied with reasonable state procedures, and the state's highest court has not been given the opportunity to resolve the merits of the petitioner's constitutional claim. Jackson v. Cupp, 693 F.2d 867, 869 (9th Cir.1982). In other words, if the petitioner fails to appeal an issue from a trial or a post-conviction relief petition within the time period set forth by the state procedural guidelines, review of that issue may be forever barred in the federal courts.

The Supreme Court of the United States has approached the topic of procedural default from two different angles. First, in Fay v. Noia, supra, 372 U.S. 391, 398-399, 83 S.Ct. 822, 826-827, 9 L.Ed.2d 837 (1963), the Court held that federal courts have power under the federal habeas statute to grant relief despite the applicant's failure to have pursued a state remedy not available to him at the time he applies for federal relief. After Noia had been denied state post-conviction relief, he allowed the time for a direct appeal to lapse without seeking review by a state appellate court. Fay v. Noia, 372 U.S. at 394, 83 S.Ct. at 825. The issue on which Noia had defaulted was whether his confession had been coerced thus allowing his conviction to be procured in violation of the Fourteenth Amendment. According to the Court, Noia had the choice whether to sit content with life imprisonment or to formulate an appeal which, if successful, might have led to a retrial and possible death sentence. 372 U.S. at 440, 83 S.Ct. at 849. Thus, the Court held that Noia's failure to appeal here was not an intelligent and understanding waiver of his right to appeal such as to justify the withholding of federal habeas corpus relief. 372 U.S. at 399, 83 S.Ct. at 827. However, an exception was delineated where a prisoner deliberately bypasses the orderly procedure of the state courts. In this situation, the federal court may deny relief.

The deliberate bypass standard enunciated in Fay v. Noia was rejected nearly fourteen years later in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed. 2d 594 (1977). In the majority opinion, Justice Rehnquist implemented the cause and prejudice standard in which a petitioner must show cause for the bypass and actual prejudice arising from the default. 433 U.S. at 87, 97 S.Ct. at 2506. Sykes was arrested and police read him rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Sykes declined the opportunity to seek counsel, indicated a desire to talk, and proceeded to make a statement which was admitted into evidence at the trial. Counsel for Sykes did not challenge the admissibility of any of his statements on the ground that Sykes had not understood the Miranda warnings. Sykes then appealed his conviction, but apparently did not challenge the admissibility of the inculpatory statements. Subsequently, Sykes filed a petition for a writ of habeas corpus asserting the inadmissibility of his statements by reason of his lack of understanding of the Miranda warnings. The Court held that where a prisoner asserts for the first time in federal court a claim which was not properly raised in a state court, that prisoner must show cause for not complying with state procedural rules, and prove the actual prejudice which resulted from that noncompliance. The Court, however, did not explicitly overrule Fay v. Noia, supra, but did reject its sweeping language. 433 U.S. at 87-88, 97 S.Ct. at 2506-2507.

Two 1986 Supreme Court cases have helped to define the definition of the "cause and prejudice" standard set forth in Wainwright v. Sykes, supra. In Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Court held that a federal habeas petitioner cannot show cause for a procedural default by establishing that a competent defense counsel's failure to raise a substantive claim of error was inadvertent rather than deliberate. The Court further held that so long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), there is no inequity in requiring defendant to bear the risk of attorney error that results in a procedural default. 106 S.Ct. at 2645-2646. Existence of a cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule. Id. The Court did...