McDonald v. Blackburn, 86-3344

• Citation: 806 F.2d 613
• Decision Date: 24 December 1986
• Docket Number: No. 86-3344,86-3344
• Parties: Wendell McDONALD, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent-Appellee. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 613

806 F.2d 613

Wendell McDONALD, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

No. 86-3344

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Dec. 24, 1986.

Edward J. Castaing, Jr. (Court-appointed), New Orleans, La., for petitioner-appellant.

Michael McMahon, Asst. Dist. Atty., New Orleans, La., for respondent-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, GARWOOD and HILL, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant Wendell McDonald (McDonald) appeals the dismissal of this his second petition for habeas corpus under 28 U.S.C. Sec. 2254 challenging his Louisiana first degree murder conviction and life sentence. We affirm.

CONTEXT FACTS AND PROCEEDINGS BELOW

McDonald was indicted for and convicted of the July 6, 1977 first degree murder of Robyn Seymour, contrary to LSA-R.S. 14:30. His conviction and life sentence, as well as the convicting trial court's denial of his motion for new trial, were affirmed by the Louisiana Supreme Court. State v. McDonald, 387 So.2d 1116 (La.), cert. denied, 449 U.S. 957, 101 S.Ct. 366, 66 L.Ed.2d 222 (1980). Sometime thereafter, McDonald, with the assistance of the Loyola University Law Clinic, filed a habeas corpus petition under section 2254 in the United States District Court for the Eastern District of Louisiana challenging his conviction. The United States magistrate recommended denial of relief, and the district court, Judge Veronica Wicker, approved the magistrate's report and dismissed the petition on August 26, 1981. McDonald did not appeal.

In May 1984, McDonald filed the instant habeas petition in the United States District Court for the Eastern District of Louisiana, again challenging his murder conviction and alleging only two grounds for relief, as follows:

"Ground one: Petitioner was denied his 5th Amendment right to remain silent and his 6th Amendment right to counsel when inculpatory statements were introduced against him.

"Ground two: Petitioner was denied due process when the trial court denied his motion for new trial based on the recanted testimony of the State's primary witness."

In a memorandum accompanying his petition (as well as in a subsequent supporting memorandum filed below by McDonald's counsel), McDonald explained that the first ground related to the trial testimony of a fellow prisoner, Gerard Edwards, as to incriminating statements McDonald made to Edwards while they were cell mates following McDonald's arrest, and after counsel had been appointed for McDonald at his initial appearance before the state magistrate, but before McDonald was indicted, or charged by information, and before any preliminary examination or arraignment. Edwards, McDonald asserted, had, unbeknown to McDonald, agreed with the police, in return for favorable treatment respecting charges against him, to elicit information from McDonald as to his involvement in the Seymour murder. With respect to the second ground in McDonald's current habeas petition, the mentioned memorandum reflects that it relates to Edwards' testimony at the state court hearing on McDonald's motion for new trial, at which Edwards recanted his trial testimony and asserted that McDonald made no such statements to him respecting the Seymour murder.

As the magistrate below found, McDonald's prior habeas petition alleged the following grounds for relief:

"Ground one: Conviction obtained by use of statement obtained in violation of petitioner's right to counsel.

"Ground two: conviction obtained by use of statement obtained in violation of Miranda v. Arizona.

"Ground three: The conviction was obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant."

In the instant proceeding, the magistrate, sua sponte, using the model form promulgated for such purpose, advised McDonald that his petition was subject to dismissal under Rule 9(b) of the Rules following 28 U.S.C. Sec. 2254, because "A. You fail to alleged [sic ] new or different grounds for relief in Ground One of your current petition of which there has been a prior determination on the merits in" the prior petition, and "B. The allegation in Ground Two of your petition is based on facts both known and available to you, at the time you filed your previous Federal Habeas Corpus Petition."

McDonald, within the twenty days allowed, endorsed the following response on the Rule 9 form:

"The issue raised in Ground One of my current petition was never fully previously determined on the merits and an intervening change in the law has occurred. The issue raised in Ground Two was not raised by the student practitioner despite the merits it present[s] and the 'ends of justice' warrant that under the circumstances it should be heard."

In an accompanying memorandum, McDonald stated, with respect to ground one of this current petition:

"[P]etitioner concedes that his current petition raises grounds for relief which are essentially the same as those raised in his prior application, but he avers that the prior determination was not made directly on the merits and that the 'ends of justice' would be served by readdressing the merits of the two contentions involved.

"....

"In turning to the facts of the instant matter, and in particular Ground One of petitioner's current petition, petitioner avers that although this ground is a consolidation of Ground One and Ground Two of his prior application, the prior determination was not made on all the merits of the claim since petitioner's contention that his conviction was obtained by use of a statement obtained in violation of his right to counsel was neither addressed nor discussed by United States Magistrate Eileen Gleason Shaver when she recommended that petitioner's petition for writ of habeas corpus be dismissed on August 24, 1981. She merely concluded that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was not controlling since it prohibits coercive custodial interrogation initiated by police officers or prosecutors.

"Petitioner avers that the merits of the issue in Ground One of his prior petition, which is also raised in his current petition, i.e., the inculpatory statements were inadmissible as being 'deliberately elicited' in violation of his 6th Amendment right to counsel, were never reached in the earlier proceeding by Magistrate Shaver. In the memorandum in support of his current petition, petitioner cites and relies on the United States Supreme Court authority of United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), which was decided a month after petitioner's conviction was affirmed by the Louisiana Supreme Court. Henry, supra, certainly can be categorized as an intervening change in the law because it definitely is controlling in the instant matter, and it broaden[s] the scope of the right to counsel in unique cases such as the case in the instant matter. ¹ Magistrate Shaver made no mention of Henry in her recommendation, and she failed to apply the legal standard it established to the facts presented by petitioner in his prior application in support of his claim that his conviction was obtained by use of a statement obtained in violation of his right to counsel.

"As previously cited, in determining whether the 'ends of justice' would be served by readdressing the merits of the same contention as raised in a prior petition, the reviewing court must look at objective factors, such as whether there was a full and fair hearing with respect to the first petition and whether there has been an intervening change of the law. Potts v. Zant [638 F.2d 727 (5th Cir.1981) ], supra, at 740. In the instant matter, there was an intervening change of the law because Henry involved the inadmissibility of inculpatory remarks made by a prisoner to a paid informer, an issue never decided upon by the United States Supreme Court....

"_______

Sometime following this response, the magistrate appointed counsel for McDonald, and ordered an evidentiary hearing "to determine at what point petitioner's Sixth Amendment right to counsel attached."

McDonald was represented by counsel at the evidentiary hearing, and the evidence there consisted of the testimony of one of the Orleans Parish magistrate judges, who had not participated in McDonald's case, the director and a senior staff attorney of the Orleans Indigent Defender Board (OIDB), neither of whom had been involved in McDonald's case, and OIDB attorney Cuccia, who had been appointed to represent McDonald at his initial appearance before the state magistrate on August 4, 1977, pursuant to La.Code Crim.Proc.Ann. art. 230.1 ¹ (following McDonald's August 16, 1977 first degree murder indictment, other counsel were appointed to represent him). Except for a portion of Cuccia's testimony concerning his appointment, the evidence at the hearing did not directly relate to McDonald's case, but rather concerned the general nature and scope of representation, in 1977, of OIDB attorneys appointed at the initial magistrate appearance pursuant to article 230.1.

The state record in McDonald's case was also available and considered. It reflected that Robyn Seymour was kidnapped, murdered, and robbed of her jewelry and about twenty dollars in cash on July 6, 1977 in New Orleans. McDonald, and a female companion, Bobbie Jean Johnson, were arrested together in New Orleans for a traffic violation on July 26, 1977, and a pistol, which later turned out to belong to McDonald and to be the Seymour murder weapon, was then found in Johnson's purse. McDonald, advised that he was a suspect in the Seymour killing, was questioned by the police on July 26. He denied all knowledge of the Seymour crime, but was nevertheless retained in custody. He was questioned again on August 3, and admitted that he owned the pistol found in...