Macklin v. Singletary

Decision Date30 June 1994
Docket NumberNo. 92-4173,92-4173
Citation24 F.3d 1307
PartiesEric V. MACKLIN, Petitioner-Appellant, v. Harry K. SINGLETARY, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Michael Doddo, Plantation, FL, for appellant.

Joni Bruanstein, Atty. Gen., Dept. of Legal Affairs, Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before COX and CARNES, Circuit Judges, and WOOD *, Senior Circuit Judge.

CARNES, Circuit Judge:

Eric Macklin, a prisoner of the state of Florida, appeals from the district court's order denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. We hold that a court of appeals has the discretionary authority to decide in the first instance an abuse of the writ issue that the district court failed to reach. Exercising that authority, we affirm the denial of habeas relief in this case on abuse of the writ grounds.

I. BACKGROUND

In 1977, the State of Florida filed a forty-six count information charging Eric Macklin with numerous violent crimes arising out of a number of armed robberies. The counts included robbery, armed burglary with assault, kidnapping, and attempted first degree murder. After a nolle prosequi was entered on nine counts, Macklin was tried on eight counts pertaining to two robberies. He was acquitted of one count and was convicted of seven, and received a number of sentences, including three sentences to life imprisonment.

After Macklin had been convicted on seven of the eight counts on which he was tried, the remaining 29 counts of the information were disposed of in a plea bargain: Macklin pleaded guilty to one count of armed robbery, in exchange for which the State dropped the remaining 28 counts. He was sentenced to another life term, to run concurrently to the three life sentences previously imposed.

Macklin appealed his convictions and sentences arising out of the jury trial--but not the plea bargain--arguing that the trial court erred in joining offenses relating to two separate robberies in one trial. Florida's Third District Court of Appeal agreed, reversed Macklin's convictions, and remanded the case for a new trial. Macklin v. State, 395 So.2d 1219 (Fla.App.1981). Macklin's conviction on his guilty plea and the resulting life sentence remained. On remand, the State entered a nolle prosequi as to all counts for which a new trial had been ordered, and as a result, Macklin stands convicted only of the one count of armed robbery to which he pleaded guilty.

Macklin has challenged that guilty plea conviction in a total of seven state and federal collateral proceedings before this one. Over a period of seven years, he has filed two state collateral proceedings, followed by his first federal habeas proceeding, two more state collateral proceedings, his second federal habeas proceeding, a fifth state collateral proceeding, and then this, his third, federal habeas proceeding. In his first petition for federal habeas relief, Macklin argued that his guilty plea was involuntary because his attorney had failed to explain to him the consequences of his plea, and that he had received ineffective assistance of counsel for that same reason. His first habeas petition was dismissed, because the district court determined that it was procedurally barred from considering the merits of the petition as a result of Macklin having failed to raise the issue in state court in a timely manner. In his second federal habeas petition, Macklin asserted five claims for relief, including that the trial court should not have accepted his guilty plea because it was supported by inadmissible evidence and lacked an adequate factual basis. As to four of the five claims, that second federal habeas petition was also dismissed on procedural bar grounds because the issues had not been timely raised in state court; as to the fifth, the court held that it failed to state a claim upon which relief could be granted.

In this, his third federal habeas petition, Macklin asserted two grounds for relief in the district court. First, he claimed that his plea of guilty to the armed robbery charge (count 24) was involuntary, because he had been misled into believing that he was pleading guilty to an armed burglary with assault charge (count 32), which arose out of a different incident and for which the maximum penalty is less than life imprisonment. Second, he claimed that his transfer from the juvenile system to the trial court denied him due process. The State's answer, in addition to arguing that both claims were meritless, asserted that Macklin's petition should be dismissed because he had not exhausted his state remedies as to the due process argument, and alternatively, because the petition constituted an abuse of the writ. 1 After the State withdrew by concession its exhaustion of state remedies defense, the district court denied relief on the merits of both claims without reaching the abuse of the writ issue.

On appeal, Macklin has abandoned the due process claim, and argues only that the district court erred in failing to hold that his guilty plea was involuntary. The State responds that we should affirm the district court on abuse of the writ grounds as well as on the merits. We ordered supplemental briefing in order to give both parties an opportunity to address the question of whether we should decide the abuse of the writ issue in the first instance and, if so, how we should decide it.

II. DISCUSSION
A. THE MERITS OF A HABEAS CLAIM MAY NOT BE REACHED UNTIL ANY ABUSE OF THE WRIT ISSUE HAS BEEN DECIDED

The district court failed to address the abuse of the writ argument and instead denied the petition on the merits. Although it will sometimes be easier to skip over an abuse of the writ issue and deny a claim on the merits, since this case left the district court it has become clear that federal courts must resist the temptation to do that. In Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992), the Supreme Court held that, "[u]nless a habeas petitioner shows cause and prejudice, a court may not reach the merits of ... new claims, not previously raised which constitute an abuse of the writ, McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991.)" (Citations omitted; emphasis changed.) After that holding in Sawyer, this Court was presented with an appeal in which the district court had done just what the district court in this case did: it had denied the habeas claim on the merits without reaching the abuse of the writ issue. Jones v. White, 992 F.2d 1548, 1558, 1565 (11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 448, 126 L.Ed.2d 381 (1993), and cert. denied, --- U.S. ----, 114 S.Ct. 727, 126 L.Ed.2d 691 (1994). We affirmed the denial of the petition, but we did so on abuse of the writ grounds instead of on the merits. Id. at 1564-66, 1575. Our Jones opinion contains the following admonition:

We want to be explicit so that an inappropriate signal is not sent to future habeas corpus petitioners or to district courts. We cannot approve and we discourage the review process and procedure that transpired in the district court in McLester's second habeas petition. His second habeas petition should have been denied as abuse of the writ, and the district court should not have proceeded to a consideration of the merits.

Id. at 1566. We reiterate: Where abuse of the writ has been pleaded as a defense to a claim, the district court must decide whether the abuse of the writ doctrine bars relief before it decides the claim on the merits.

B. WHEN PRESENTED WITH AN ABUSE OF THE WRIT ISSUE NOT REACHED BY THE DISTRICT COURT, A COURT OF APPEALS

HAS DISCRETIONARY AUTHORITY TO DECIDE

THAT ISSUE INSTEAD OF REMANDING IT

We cannot fault the district court in this case for failing to follow the holding in Sawyer and our admonition in Jones, because they did not exist at the time the district court ruled in this case. Nonetheless, in this appeal we are presented with an unresolved abuse of the writ defense which must be decided before we can give any attention to the merits of the claim in question. We could remand this case to the district court with directions that it decide the abuse of the writ issue. However, the Supreme Court's McCleskey decision and our decision in Jones establish that an appellate court may, in at least some circumstances, address such an issue in the first instance. McCleskey made the cause and prejudice rules of the procedural default doctrine fully applicable to abuse of the writ. McCleskey v. Zant, 499 U.S. 467, 494-95, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). Because that Supreme Court decision worked a major change in abuse of the writ law, the district court and court of appeals had not had an opportunity to apply the new rules to the facts of the McCleskey case itself. The Supreme Court could have remanded that case to give the lower courts the first crack at applying the new abuse of the writ law, but the Court chose not to do so. Instead, the Supreme Court itself applied the newly applicable cause and prejudice rules to the facts of that case and held that the claim in question constituted an abuse of the writ. Id. at 497-503, 113 S.Ct. at 1472-75.

Our own Jones decision provides even clearer support for the proposition that we may decide the abuse of the writ issue in the first instance instead of remanding it to the district court. The situation in Jones was exactly the same as the one we face now. The district court had skipped over the abuse of the writ issue to deny the claim on the merits. 992 F.2d at 1558, 1565. Instead of remanding the abuse of the writ issue for decision by the district court, this Court decided that issue itself. Id. We now hold explicitly that which McCleskey and Jones v. White established implicitly: a court of appeals has discretion to affirm on abuse of the writ grounds a district court's denial...

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