McDonnell v. Estelle, 80-1728
| Decision Date | 25 January 1982 |
| Docket Number | No. 80-1728,80-1728 |
| Citation | 666 F.2d 246 |
| Parties | Robert O. McDONNELL, Plaintiff-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert G. Clark, Stair & Clark, Houston, Tex., for plaintiff-appellant.
Gilbert J. Pena, Douglas M. Becker, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, GOLDBERG and WILLIAMS, Circuit Judges.
On December 5, 1947, Robert O. McDonnell pleaded guilty to five counts of robbery by assault and was sentenced to fifty years in the Texas Department of Corrections. He was released on parole in 1964. His parole was revoked in 1971 after his conviction in an unrelated case. At present, McDonnell is incarcerated in the federal penitentiary in Leavenworth, Kansas. Texas has issued a detainer on McDonnell which requires him to return to the Department of Corrections to serve the remainder of his fifty year sentence after he is released from Leavenworth.
In 1973, McDonnell filed a writ of habeas corpus in federal district court alleging that his 1947 convictions were entered without benefit of counsel. This petition was dismissed without prejudice for failure to exhaust state remedies. McDonnell then petitioned the Texas courts for relief, but such relief was denied without written order in 1976. Two years later, McDonnell returned to federal court with the present petition. On January 28, 1980, the district court dismissed McDonnell's petition under Rule 9(a) 1 of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254 (1977), finding that McDonnell had delayed unreasonably in filing his petition and that the delay had prejudiced the state in its ability to respond. It is from this dismissal that McDonnell appeals.
Before we review the judgment below, it is essential to characterize the procedural stance of a Rule 9(a) dismissal so as to set the proper standard of review and, ultimately, the appropriate disposition of this appeal.
Rule 9(a) provides:
A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the existence of reasonable diligence before the circumstances prejudicial to the state occurred.
Many of the Rules Governing § 2254 Cases contain procedural directives. See, e.g., Rules 3, 7(a), 8(a), 28 U.S.C. foll. § 2254. Rule 9(a), however, contains no such directives. Although the rule speaks in terms of "dismissal," it does not prescribe the specific procedures through which such a result may obtain. Rule 4 of the Rules Governing § 2254 Cases permits the "summary dismissal" of habeas corpus petitions, and there is nothing in Rule 9(a) to indicate that the dismissal it authorizes may not be entered summarily. Indeed, one of the purposes of the rule is to alleviate the burden imposed upon courts through protracted hearings in cases where they are not justified. The Rule authorizes the speedy disposition of delayed petitions without resorting to a full consideration of the merits of the claims. The developing case law shows that summary dispositions without hearings are permissible and quite common under Rule 9(a). See, e.g., Henson v. Estelle, 641 F.2d 250 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 603, 70 L.Ed.2d --- (1981); Davis v. Adult Parole Authority, 610 F.2d 410 (6th Cir. 1979); Ellis v. Mabry, 601 F.2d 363 (8th Cir. 1979).
The procedures to be followed in the summary dismissal of Rule 9(a) cases, however, have not been explained by the Rules Governing § 2254 Cases or the case law. When these rules are otherwise silent, Rule 11 compels us to follow the Federal Rules of Civil Procedure in disposing of habeas corpus petitions. We turn, then, to the application of those rules.
The Rules of Civil Procedure reveal two mechanisms by which a habeas petition can be summarily disposed of on Rule 9(a) grounds. The first, Rule 12(c), permits judgment on the pleadings. This device is of little practical use, particularly in Rule 9(a) cases, because by its terms the court may consider only the pleadings in rendering judgment. If the party opposing the judgment pleads facts contradictory to those alleged by the moving party, the motion must be denied. 10 C. Wright and A. Miller, Federal Practice and Procedure § 2713 (1973). And if the court considers any evidence outside the pleadings, Rule 12(c) requires that the case then be disposed of pursuant to Fed.R.Civ.P. 56 which governs motions for summary judgment.
The second procedural device that can be used in Rule 9(a) cases, therefore, is the summary judgment under Rule 56. Pursuant to that rule, either party may move for judgment at any time and may submit to the court extraneous evidence in support of his or her motion. Opposing parties must be given an opportunity to respond in the same manner. The court then considers all the evidence before it to determine whether there exist any genuine issues of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
The manner in which the district court handled McDonnell's petition closely resembles the situation where a motion for judgment on the pleadings is converted into a Rule 56 motion for summary judgment. After McDonnell filed his petition, the court issued an Order to Show Cause why the petition should not be granted. The state responded to the Order with a Motion to Dismiss and Answer in which it raised the Rule 9(a) defense as well as challenges to the merits of McDonnell's claim. The state later filed a Supplement to Motion to Dismiss and Answer to which it attached documentary evidence in support of its 9(a) motion. Relying upon this extraneous evidence, the Magistrate found that the state had been prejudiced as a result of McDonnell's delay and recommended dismissal. The district court adopted the Magistrate's findings and entered judgment accordingly. In its Final Judgment, the district court stated that it dismissed the case on the pleadings ; however, it is clear from the Magistrate's report, upon which the court relied, that extraneous evidence was considered along with the pleadings. Thus, regardless of the terminology employed in the judgment, it was actually a summary judgment and not a dismissal on the pleadings. 2
As we review this case on appeal, then, we treat the judgment below as a Rule 56 summary judgment, but with the overtones required by Rule 9(a). 3
When a district court rules on a motion for summary judgment, all reasonable doubts must be resolved in favor of the party opposing the motion. If there are unresolved factual issues, the motion must be denied. If there are no factual issues to be resolved, the court must decide whether the movant is entitled to judgment as a matter of law. Casey Enterprises, Inc. v. American Hardware Mutual Insurance Co., 655 F.2d 598, 602 (5th Cir. 1981).
Rule 9(a) is a relatively new addition to our ever-increasing body of habeas corpus law. The rule was enacted by Congress in 1976 4 to discourage the filing of stale habeas claims. It was not meant to change pre-existing law; rather, its purpose was to codify the equitable doctrine of laches which had been applied in habeas cases in the past, although not under that name and not in a summary fashion. See, e.g., Rhodes v. Estelle, 582 F.2d 972 (5th Cir. 1978). See also Davis, supra at 415.
Because of our firm commitment to the "extraordinary writ" of habeas corpus as a cure for constitutionally defective convictions, prior to the enactment of Rule 9(a) courts did not dismiss petitions for laches. It was thought that to do so would eviscerate the very purpose of the "extraordinary writ." Instead, the elements of laches-unreasonable delay and prejudice-were incorporated into the court's consideration of the merits of the petitioner's claim, thereby increasing his burden of proof. If the petitioner had delayed unreasonably in filing his claim and the delay resulted in prejudice to the state his case was not automatically lost but was weakened. The proof he offered, as well as his good faith and credibility, would be given less weight than if the claim had been timely filed. Thus, petitions were denied because the petitioners failed to meet their burdens of proof, not because the petitions were delayed. Davis, supra at 415.
This Court's disposition of Rhodes v. Estelle, supra, a pre-Rule 9(a) case, is an example. In Rhodes, the petitioner challenged a twelve year old conviction alleging ineffective assistance of counsel. During the intervening years, the records of the proceeding had become unavailable and the judge and petitioner's attorney had died. The only evidence presented by the petitioner was his own uncorroborated statements as to the actions of his attorney. Because Rule 9(a) was not yet in effect, the petition could not be dismissed for laches. Nevertheless, we concluded that the evidence before us was insufficient to prove petitioner's claim.
Because Rule 9(a) authorizes the summary disposition of habeas corpus petitions on grounds unrelated to the constitutional claims, its application necessarily must be limited to avoid the abrogation of the very purpose of the writ. Congress chose to accomplish such limitation in part by imposing the burden of proving laches upon the state. Thus, while Rule 9(a) somewhat circumscribes the availability of the habeas writ to petitioners, it does so only when the state is able to prove laches.
As originally proposed by the Supreme Court, Rule 9(a) provided that a petition...
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