Miller v. Bordenkircher
| Decision Date | 17 June 1985 |
| Docket Number | No. 84-6077,84-6077 |
| Citation | 764 F.2d 245 |
| Parties | Ray Jackie MILLER, Appellant, v. Donald BORDENKIRCHER, Warden, West Virginia State Penitentiary and Attorney General of West Virginia, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Wendel B. Turner, Third Year Law Student, College of Law, West Virginia University, Daniel K. Poling, Third Year Law Student, College of Law, West Virginia University (James A. McLaughlin, Charleston, W.Va., on brief), for appellant.
Silas B. Taylor, Asst. Atty. Gen., Charleston, W.Va. (Chauncey H. Browning, Atty. Gen., John Ernest Shank, Asst. Atty. Gen., Charleston, W.Va., on brief), for appellees.
Before PHILLIPS and WILKINSON, Circuit Judges, and WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation.
Petitioner Ray Jackie Miller, a state prisoner serving a sentence of life imprisonment in the West Virginia Penitentiary at Moundsville, seeks a writ of habeas corpus from the federal courts for the third time, pursuant to 28 U.S.C. Sec. 2254 (1982). The district court denied the petition, finding that Miller's claims either had been previously raised or constituted an abuse of the writ. Petitioner appeals. We affirm, holding that Habeas Corpus Rule 9(b) was properly invoked to deny the petition.
Miller pled guilty to the first degree murder of a West Virginia state policeman, Hugh D. Swartz, on March 23, 1971. He was sentenced to life imprisonment with mercy. 1 Before entering his plea, Miller underwent a psychiatric evaluation at Spencer State Hospital. He was diagnosed as having an antisocial personality, but determined not to be mentally ill. No hearing took place on Miller's competency to enter a plea, but before accepting the plea, the state court questioned Miller personally to ensure that the plea was voluntary and that Miller understood his rights.
Since his imprisonment commenced, Miller has filed three federal habeas petitions. The first two were dismissed, and the third is presently before us on appeal from dismissal. Each petition has challenged, in some form, the voluntariness of Miller's plea, the effectiveness of his appointed counsel, or both. As the claims advanced in the prior petitions are crucial to a determination of whether Rule 9(b) bars the claims now asserted, we consider each petition in turn.
Miller filed his first pro se habeas petition in the Northern District of West Virginia on February 18, 1972 (the 1972 petition). In this petition, and an attached 1971 state habeas petition, Miller alleged several constitutional violations, including: denial of the right to counsel when he made incriminating statements during the psychiatric examination; violation of the privilege against self-incrimination because statements elicited by "use or influence of drugs" were used to coerce his guilty plea; and failure of counsel to consult with him, take any other steps on his behalf, or "even prepare a defense." 2 Following a plenary hearing, at which Miller was represented by appointed counsel, the district court dismissed the petition on January 8, 1973, ruling that Miller had "failed to carry the burden of proof or to establish any constitutional deprivation on the grounds presented." The Fourth Circuit, on May 9, 1973, affirmed the dismissal. In holding the appeal without merit, the court specifically noted that Miller had claimed both involuntariness of his plea and ineffective assistance of counsel.
Miller returned to the federal courts on July 8, 1975, when he filed his second pro se petition in the Northern District of West Virginia (the 1975 petition). In this petition, Miller once again challenged the voluntariness of his guilty plea, contending that there was no evidentiary basis for his first degree murder conviction and that the state court had failed to inform him of the nature of the offense and the prosecution's obligation to present evidence. The district court dismissed this petition on October 28, 1977, without a hearing. Examining each of Miller's claims in detail, the court found that the state judge, before accepting Miller's plea, had "ascertained that he understood the nature of the charge against him, the pleading alternatives, the maximum sentence he could receive and that no threats or promises had been made to induce his plea." Based upon the transcript of the state plea hearing, the district court concluded that the plea had been voluntary and intelligent.
Notwithstanding his two prior failures, Miller filed a third pro se habeas petition on June 3, 1981, this time in the Southern District of West Virginia. His latest claims, as analyzed by the district court, may be thus summarized:
1) Petitioner was denied effective assistance of counsel because his court-appointed attorneys:
a) failed to conduct any factual investigation;
b) failed to prepare any defense; and
c) knew that he was incompetent to plead guilty because he was under the influence of the drug "Thorazine" at the time.
2) Petitioner was denied his right against self-incrimination because he had not been warned by the court that he did not have to be a witness against himself.
3) Petitioner's guilty plea was involuntary because he was heavily drugged with "Thorazine" at the time he entered his plea.
The district court, in an October 27, 1981 order, dismissed grounds 1(a) and 1(b), relating to ineffective assistance of counsel, and ground 2, relating to voluntariness of the plea, as successive because they had been raised and decided on the merits in the prior 1972 and 1975 petitions. Petitioner was permitted to explain by affidavit why his failure to assert grounds 1(c) and 3 in prior petitions should not constitute an abuse of the writ. Miller asserted that he had not deliberately withheld or abandoned those grounds, was unaware of the claims, and was illiterate, retarded and dependent upon inmate writ-writers who were not lawyers to prepare his petitions. The district court then referred the remaining ineffective assistance claim, 1(c), and the drug related involuntariness claim, 3, to a magistrate. After consideration of petitioner's affidavit, the magistrate found the petition to be an abuse of the writ, ruling Miller's ignorance an insufficient reason not to dismiss. "The facts supporting the grounds he now alleges were known to him at the time of the trial and at the time of the filing of his prior petitions," the magistrate found, and the ends of justice would not be served by yet another determination on voluntariness of the plea or ineffective assistance of counsel. On August 25, 1983, the district court approved the magistrate's recommendation and ordered final denial of the petition.
This case is governed by Habeas Corpus Rule 9(b), 28 U.S.C. foll. Sec. 2254 (1982), which deals with successive habeas petitions. Rule 9(b) provides:
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.
Rule 9 is "intended to minimize abuse of the writ of habeas corpus by limiting the right to assert stale claims and to file multiple petitions." Advisory Committee Note, 28 U.S.C. foll. Sec. 2254, Rule 9 at 357. 3 The bar established by Rule 9(b) encourages petitioners to present their claims simultaneously for resolution, rather than fragmenting grounds for collateral relief or advancing endless permutations of the same themes. The Supreme Court has recognized that "[n]othing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). The Advisory Committee in turn has condemned successive petitions "submitted in the hope of getting before a different judge in multijudge courts" and claims withheld "in the hope that delay will result in witnesses and records being lost." Advisory Committee Note, supra, at 358.
Nor can Rule 9 be divorced from the context of the caseload in federal courts today. There may be some systems where judicial resources are limitless and where the remotest possibility of injustice receives the infinite care and patience that ideally it deserves. In our system, those in pre-trial detention await the chance to claim their innocence; civil litigants seek to ascertain their rights and obligations; those convicted await the resolution of their first petition for collateral review. In this crowded courtscape, federal judges cannot be all things to all people. Rule 9 commands that successive petitions must, of necessity, accommodate the needs of first-time litigants lest the search for justice for all become satisfactory justice for too few.
The district courts must ensure that the multitude of baseless and repetitive petitions do not drown out solitary claims of merit. In the performance of that difficult and often exasperating function, the discretion of the district judge warrants a full measure of appellate respect. Whether a Rule 9(b) dismissal rests on a ground's having been previously decided, or on abuse of the writ, our deference to the district court remains the same:
The principles governing both justifications for denial of a hearing on a successive application are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits.
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