Moore v. Rose
| Decision Date | 25 March 1994 |
| Docket Number | No. 93-5508,93-5508 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Robert S. MOORE, Petitioner-Appellee, v. Jim ROSE, Warden, Turney Center Prison, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: GUY and SILER, Circuit Judges; and CHURCHILL, Senior District Judge. *
The respondent appeals the district court's granting of a writ of habeas corpus, contending that the petitioner abused the writ on two grounds: (1) he failed to demonstrate cause as to why the specific ground warranting relief in this writ was not presented in his previous writ; and (2) he failed to show actual prejudice resulting from the alleged constitutional violation. The respondent also asserts that the district court erred in granting a delayed appeal instead of a conditional writ. For the following reasons, we reverse and remand.
The petitioner, Robert S. Moore, was convicted on March 2, 1983, of first-degree murder, assault with the intent to commit murder, and the use of a firearm during the commission of a felony. He was sentenced to life in prison on the murder charge and to concurrent terms of imprisonment on the other charges.
On direct appeal, Moore contended that there was insufficient evidence of premeditation to support a first-degree murder conviction and that the trial court's jury instructions were erroneous. The appellate court noted that Moore's trial counsel had failed to file a complete copy of the trial transcript. The volume that Moore's counsel had failed to file contained Moore's proof in defense, as well as the state's rebuttal proof, and the trial court's jury charge. The Court of Criminal Appeals affirmed Moore's conviction on April 29, 1985, and the Tennessee Supreme Court denied his application for permission to appeal.
On March 7, 1986, Moore filed a post-conviction petition with the Court of Criminal Appeals. In affirming its prior judgment, the court observed that Moore contended that his appellate counsel on direct appeal "failed to provide this Court with the entire record so that this Court could adequately review" the trial court's jury charge.
Moore filed a petition to rehear in the Tennessee Court of Criminal Appeals. This petition concerned a review of a tape of the trial court's jury instruction on malice. This petition was denied.
Moore then filed an application for permission to appeal with the Tennessee Supreme Court. Moore's counsel argued that Moore's trial counsel On December 5, 1988, the Tennessee Supreme Court denied Moore's application.
Moore, on January 17, 1989, then filed his first habeas petition in federal court. Moore raised several claims of ineffective assistance of counsel, but no reference was made to his appellate counsel's failure to file a complete appellate record. The court concluded that some of Moore's claims were unexhausted, but permitted Moore to abandon his unexhausted claims and to present his exhausted ones. Moore then submitted an amended petition, 1 which the court dismissed on May 1, 1989.
Moore then filed a second petition for post-conviction relief in state court. He appealed the dismissal of that petition to the Court of Criminal Appeals, which affirmed the judgment. On July 30, 1990, the Tennessee Supreme Court denied the petitioner's application for permission to appeal.
On September 13, 1990, Moore filed the instant petition for writ of habeas corpus. In this second petition, Moore claimed: (1) that the state trial court's jury instructions about presumed malice for murder and the range of punishment violated his rights to due process under Sandstrom v. Montana, 442 U.S. 510 (1979); (2) that he received ineffective assistance of counsel in his state criminal proceeding; (3) that the state courts erroneously found that Moore waived any objections to the trial court's jury instructions; and (4) that admission of certain evidence violated his due process rights.
On March 23, 1992, Moore moved to amend his petition to add to his ineffective assistance of counsel claim the following as a specific ground of relief:
1. That Petitioner's original trial counsel was ineffective, as discussed in Entsminger v. Iowa, 386 U.S. 748 (1967), in that original trial counsel's failure to file a full and complete transcript deprived Petitioner of the right to ineffective [sic] appellate review of his 1983 murder conviction.
The respondent opposed this motion to amend on the grounds that it was an abuse of the writ.
The magistrate judge 2 recommended that Moore's motion be granted and that his application for a writ of habeas corpus be denied except as to the claim relating to his counsel's failure to file a complete record on his direct appeal. As appropriate relief, the magistrate judge recommended a delayed appeal of Moore's original conviction upon a complete record.
The respondent filed objections to the magistrate judge's report. The district court, however, agreed with the report and recommendation and adopted it. The court then granted Moore a delayed appeal.
This is Moore's second petition for writ of habeas corpus in which he claims ineffective assistance of counsel. In his first petition, however, he did not refer to his trial counsel's failure to file a complete record on his direct appeal. In McCleskey v. Zant, 499 U.S. 467 (1991), the Supreme Court held that the standard for determining whether there was abuse of the writ would be the same as that governing procedural default. 499 U.S. at 493. Thus, in order for us to excuse Moore's failure to raise this ground in his first petition, he must show cause and prejudice.
The district court found that Moore's counsel's failure to file a complete transcript on appeal established sufficient cause under McCleskey, 3 and that under Evitts v. Lucey, 469 U.S. 387 (1985), this was a violation of Moore's Sixth Amendment right to effective assistance of counsel and his right to due process of law under the Fourteenth Amendment. The violation of these rights, the court held, constituted prejudice. The court also found that "[t]he cause and prejudice established to preclude any abuse of the writ by the petitioner also entitled the petitioner to the writ of habeas corpus on his Sixth Amendment claim of ineffective assistance of counsel."
The respondent contends that the district court erred in finding that Moore had demonstrated cause and prejudice so as to excuse his failure to earlier raise this issue. 4 Specifically, the respondent argues that the court erred in going directly to the merits of Moore's claim rather than determining whether he had established some cause external to his defense sufficient to excuse his failure to raise this issue in his first habeas corpus petition. We review de novo a district court's decision in a habeas corpus case, but we review factual findings under a clearly erroneous standard. Levine v. Torvik, 986 F.2d 1506, 1512 (6th Cir.), cert. denied, 113 S.Ct. 3001 (1993).
In its opinion, the district court summarized the magistrate judge's report and recommendation. In doing so, the court restated the magistrate judge's findings of cause and prejudice as they relate to the state procedural default; however, the court then used these findings to rebut the respondent's contention that there had been an abuse of the writ. Thus, the respondent is correct in stating that the district court never considered any external causes that would have excused Moore's failure to raise this issue in his first habeas petition. Nevertheless, the district court did adopt the magistrate judge's report, and, because he addressed this issue, we will look to the magistrate judge's report for guidance.
As to why Moore did not raise this ground for habeas relief in his earlier petition, the magistrate judge stated:
Moore did not become aware of the absence of the complete trial record at least as to the jury charge until after his direct appeal. Moore's new counsel filed the missing transcript in Moore's first post-conviction proceeding that was prior to his filing the first federal petition for habeas relief. Moore, however, states that the transcript again was not filed and the reference to the missing transcript was in reference [to] the record [in the] Court of Appeals' decision to the trial court's jury charge. In his first federal petition, Moore was proceeding pro se. Moore, who has a tenth grade education, filed a mixed petition that was cured only by the aid of the Court identifying Moore's exhausted and unexhausted claims. On these facts and from the fundamental rights implicated by the second petition, the Magistrate Judge concludes that cause exists to preclude a finding of abuse of the writ here.
The respondent counters that once the matter went up on direct appeal, Moore knew the complete transcript was not there. When asked about the missing volume, Moore testified:
Well, when the trial was over and they made the transcript, it never did make it onto to the Appeals Court or the Supreme Court, and I questioned that--as to where it was at. They said, there's no record of this. And I said, well, wonder where the record is at. I'm ignorant to the facts, you know, of what goes on in the courtroom, and I wondered where it was at.
So we went back on the first...
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...83 S.Ct. 822, 9 L.Ed.2d 837 (1963) which was adopted by the Sixth Circuit in dicta in the unpublished decision of Moore v. Rose, 19 F.3d 1433, 1994 WL 102958 (6th Cir.1994), should be controlling. Specifically, Respondent relies upon the following language to suggest that a federal district......