Loveday v. Davis
| Decision Date | 05 January 1983 |
| Docket Number | No. 81-5252,81-5252 |
| Citation | 697 F.2d 135 |
| Court | U.S. Court of Appeals — Sixth Circuit |
| Parties | Charles Glen LOVEDAY, Petitioner-Appellant, v. Herman DAVIS, Warden, Respondent-Appellee. |
Phillip C. Lawrence (argued), Chattanooga, Tenn., for petitioner-appellant.
William M. Leech, Jr., Atty. Gen. of Tennessee, Gordon W. Smith, Asst. Atty. Gen. (argued), Nashville, Tenn., for respondent-appellee.
Before KENNEDY and KRUPANSKY, Circuit Judges, and WILHOIT, District Judge. *
Charles Loveday (Loveday) was convicted of second-degree murder in the Criminal Court for Green County, Tennessee, and sentenced to 30 years incarceration. Having exhausted his state remedies, Loveday filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 assigning as error, inter alia, insufficiency of the evidence to support the conviction. The petition was summarily dismissed by the district court without examination of the trial transcript. On appeal, petitioner asserts that the allegations of the petition required the district court to predicate its judgment upon the trial transcript rather than upon the written opinions issued in the Tennessee forum. This Court disagrees.
Congress, in an attempt to "alleviate" friction between the state and federal forums, amended the Federal Habeas Act of 1867 by adding 28 U.S.C. Sec. 2254(d). 1 Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) (Sumner I). Said provision states:
(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit--
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
It is generally recognized that Sec. 2254(d) codified the circumstances when an evidentiary hearing is mandated in the federal forum as espoused in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). 2 See: Brewer v. Williams, 430 U.S. 387, 395-96, 97 S.Ct. 1232, 1237-38, 51 L.Ed.2d 424 (1977); Fowler v. Jago, 683 F.2d 983, (6th Cir.1982); Guice v. Fortenberry, 661 F.2d 496, 500 (5th Cir.1981) (en banc) (numerous citations). Of Sec. 2254(d) this Circuit has recently observed:
Although on its face the statute does not govern when a federal court must hold an independent evidentiary hearing, it does require that state court findings of fact made after a full and fair hearing are entitled to a presumption of correctness. If the findings of the state court meet the indicia outlined in Sec. 2254(d), the state court determination is presumed to be correct. Nevertheless, the presumption and special burden of proof do not operate at all if any one of the eight specified exceptions to the statute exists. These eight exceptions appear to subsume the six Townsend criteria. Thus, the determination that one of the six Townsend criteria exists necessarily resolves the Sec. 2254(d) burden of proof issue. If one of the Townsend criteria is present, the district court must hold an evidentiary hearing and the presumption of correctness does not apply. Conversely, if the presumption is operative, an evidentiary hearing cannot be mandated.
Under both Townsend and Sec. 2254(d), therefore, the district court must conduct an inquiry into whether the state court has adequately resolved the factual issues contained in the petitioner's constitutional claim.
Fowler, supra, at 988 (footnote omitted).
Accordingly, the presumption of correctness attaches, and, indeed, the federal forum is required to defer to the state court's finding of fact, "unless one of the factors listed in Sec. 2254(d) is found." Sumner v. Mata, --- U.S. ----, 102 S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982) (Sumner II). The eight exceptions to the presumption of correctness may be "found" to exist via three methods: the applicant may establish that such exists; it shall otherwise appear that such exists; or the respondent shall admit that such exists. 28 U.S.C. Sec. 2254(d).
Addressing the first of these three methods, it is axiomatic that if a petitioner intends to establish that the factual determinations issued in the state forum are violative of one of the eight exceptions, then the petition for a writ of habeas corpus must at a minimum allege or provide indicia of the same. Such an allegation will trigger an inquiry as to whether one of the eight exceptions are applicable. A proper resolution of such inquiry requires the district court to examine the trial record. Summary dismissal of the petition without examination of the record would be improper. See: United States ex rel. Jones v. Franzen, 676 F.2d 261 (7th Cir.1982). The mechanism for production of the trial record is provided in 28 U.S.C. Sec. 2254(e) 3 and admissibility is effectuated by Sec. 2254(f).
If the petition fails to allege that the factual determinations rendered in the state forum are within the purview of Sec. 2254(d)(1) through (8), and therefore fails to provide indicia that an attempt will be made to satisfy the same, the presumption attaches unless it "otherwise appears" or the respondent "admits" that the factual determinations are incorrect. If it does not so appear or is so admitted, the district court is at liberty to accept the underlying factual determinations as correct and apply the same to controlling legal principles.
In particular, the district court may accept as correct findings of fact made by a state appellate court, such being "determinations after a hearing on the merits of a factual issue" within the meaning of Sec. 2254(d). Sumner I, supra, 449 U.S. at 547, 101 S.Ct. at 769. 4
Analysis of whether the presumption of correctness of factual determinations has been challenged so as to require the district court to examine the trial record must commence with the allegations of the petition. In the action sub judice the assignment of error predicated upon insufficiency of the evidence to support a conviction is phrased as follows:
GROUND ONE: That there is no material evidence.
SUPPORTING FACTS (TELL YOUR STORY BRIEFLY WITHOUT CITING CASES OR LAW) The evidence is not sufficient to support a conviction for murder in the second degree nor does the testimony of witnesses support a conviction and sentence of 30 years. State witness testimony in this entire case of petitioner is moreover inconsistent and unmaterial to support the conviction of murder in the second degree and a sentence of 30 years. The reading of Court transcript will stand strong in support of these grounds for relief. (Exhibit One in support). 5
This pro se petition, when liberally construed in accordance with the principles enunciated in Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and reaffirmed in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), fails to challenge directly or indirectly those factual determinations rendered in the state forum and fails to invoke any of the eight exceptions to the assumption of correctness. Loveday does not seek to establish the existence of an exception to the presumption. Rather, the legal sufficiency of the facts to support the conviction is asserted as error. Further, when the respondent expanded the district court record by providing pertinent state filings, 6 it did not appear therein, nor did respondent admit, that any exception to the presumption of correctness was applicable.
The presumption of correctness therefor attached even though the underlying constitutional claim asserted insufficiency of the evidence to support a conviction. The district court was not required, given the allegations of the petition, to examine the trial transcript. This precise situation has twice been addressed in the Seventh Circuit. As Judge Posner has observed:
Now it might appear that such an allegation [insufficiency of the evidence to support a conviction] could never be rejected by the habeas corpus judge without his examining the trial record to see whether it contained sufficient evidence to persuade a rational trier of fact of guilt beyond a reasonable doubt. But this is not so where, as here, the testimony at the trial is summarized in the state appellate court's opinion and the petitioner does not quarrel with that summary but simply contends that a rational trier of fact could not have...
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