Neuschafer v. Whitley

• Citation: 674 F. Supp. 1418
• Decision Date: 08 December 1987
• Docket Number: No. CV-N-87-419-ECR.,CV-N-87-419-ECR.
• Parties: Jimmy NEUSCHAFER, Petitioner, v. Harol WHITLEY, et al., Respondents.
• Court: U.S. District Court — District of Nevada

674 F. Supp. 1418

Jimmy NEUSCHAFER, Petitioner, v. Harol WHITLEY, et al., Respondents.

No. CV-N-87-419-ECR.

United States District Court, D. Nevada.

December 8, 1987.

N. Patrick Flanagan, Asst. Federal Public Defender, Reno, Nev., for petitioner.

Brian McKay, Atty. Gen. by David Sarnowski, Deputy Atty. Gen., Carson City, Nev., for respondents.

ORDER

EDWARD C. REED, Jr., District Judge.

The petitioner, Jimmy Neuschafer, has brought this second petition for a writ of federal habeas corpus under 28 U.S.C. § 2254.¹ Initially, the petitioner had decided not to bring the second petition, and the American Civil Liberties Union sought permission to file the petition on his behalf as relator. The Court denied the ACLU's motion to intervene as relator, and declined to issue any stay of execution for the petitioner. Shortly before the scheduled execution, however, the petitioner decided to present his second petition to the Court. In view of the substantial issues presented by that petition, and in view of the short amount of time in which the Court had to consider those issues, the Court stayed the petitioner's imminent execution. This order was upheld by both the Ninth Circuit and the United States Supreme Court.

The respondents have moved to dismiss the 1987 petition on various grounds, including the abuse of writ doctrine. In view of the fact that this is a successive petition, the Court ordered a hearing to determine whether this second petition indeed constituted an abusive writ. See Richmond v. Ricketts, 774 F.2d 957, 961 (9th Cir.1985). After consideration of the pleadings on file and the argument and evidence presented at the hearing, it appears to the Court that this second petition is abusive, and that it should be dismissed on that basis.

THE STATE PROCEEDINGS/1985 PETITION

The petitioner was convicted of the murder of fellow inmate Johnnie Johnson in April, 1983. The jury also imposed the sentence of death upon the petitioner. Several years lapsed before the state supreme court acted on the petitioner's direct appeal. On August 27, 1985, however, that court affirmed the petitioner's conviction and upheld the sentence of death. The petitioner then proceeded in pro se in the state courts, filing a petition for state post-conviction relief soon after the supreme court issued its mandate. The petition apparently argued that Neuschafer's fifth and sixth amendment rights had been violated as a result of his conviction. The state court judge who heard the petition dismissed it for lack of legal particularity, and also denied the petitioner's motions for appointment of counsel and for stay of execution.

By this time, the state public defender, Robert Bork, filed another petition before the same judge on October 28, 1985. The day after, the Attorney General's office moved to dismiss this petition. On the following day, the state court judge held a brief hearing, at which time he appointed the public defender to represent the petitioner, and dismissed the petition. That afternoon, Mr. Bork filed a notice of appeal to the state supreme court. The court dismissed the appeal and affirmed the judgment of the lower court, thereby clearing the way for the petitioner's execution, then scheduled for November 5, 1985.

THE FEDERAL PROCEEDINGS/1985 PETITION

In view of the petitioner's imminent execution, the federal public defender, N. Patrick Flanagan, filed a petition for writ of habeas corpus and a motion for stay of execution with this Court. A hearing was held in this matter on November 4, 1985. At that time, the Court appointed Mr. Flanagan to represent the petitioner during the proceedings in this Court. The Court also noted that the petitioner had not yet had the opportunity to pursue any of the federal remedies to which he was entitled. In view of this, the Court stayed the petitioner's impending execution, and directed counsel to file an amended petition. The Court also cautioned the petitioner's counsel at that time that all possible grounds should be included in that amended petition, in view of the serious problems raised by subsequent petitions.

The petitioner filed the amended petition. The Court, by its order of March 12, 1986, denied the petition in its entirety. Neuschafer v. Whitley, 630 F.Supp. 897, 902 (D.Nev.1986). The petitioner then appealed that decision to the Ninth Circuit. On January 6, 1987, the circuit remanded the Court's order on the basis that an evidentiary hearing should have been held regarding the petitioner's Miranda/Edwards claim. Neuschafer v. McKay, 807 F.2d 839, 841 (9th Cir.1987). Pursuant to the circuit's order, this Court held an evidentiary hearing on February 18, 1987. At that time, the Court took evidence and testimony regarding whether the petitioner voluntarily initiated his second interview with law enforcement officials which resulted in his confession. The Court determined that the petitioner had indeed initiated the second contact, and that there was therefore no basis for the Miranda/Edwards claim. Neuschafer v. Whitley, 656 F.Supp. 891, 893 (D.Nev.1987). The Ninth Circuit affirmed this ruling. Neuschafer v. Whitley, 816 F.2d 1390, 1392 (9th Cir.1987). The petitioner never sought review by the United States Supreme Court.

THE 1987 PETITION

The petitioner then returned to the state courts, and filed another post-conviction relief petition. The state district judge heard this matter, as well as a motion for stay of execution on August 17, 1987. At that time, the petition was dismissed, and the motion for stay was denied. The notice of appeal was filed, and the state supreme court heard the matter on August 19, 1987. The supreme court then dismissed the appeal, and denied the motion for stay. After initially vacillating as to whether he would himself file a second federal habeas corpus petition, the petitioner then returned to this court with his second habeas petition and motion for stay of execution.

The 1987 petition alleges a variety of claims, none of which was asserted in the 1985 federal habeas petition. It appears to the Court, however, that the petitioner is barred from asserting these claims at this date because of his abuse of the writ.

ABUSE OF THE WRIT

Rule 9(b) of the Rules Governing Cases under 28 U.S.C. § 2254 provides that

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(b), Rules Governing Cases under 28 U.S.C. § 2254. The purpose of this rule is to limit the ability of state prisoners to file successive habeas corpus petitions in the federal courts. See Adv.Comm.Note to Rule 9(b), Rules Governing Cases under 28 U.S.C. § 2254.

The Ninth Circuit has had an opportunity to consider the circumstances which constitute an abuse of the writ. In Richmond v. Ricketts, 774 F.2d 957 (9th Cir.1985), the petitioner had brought two petitions for a federal writ of habeas corpus. In the first petition, he successfully challenged the Arizona statute under which he was sentenced to death. The district court, in granting the petition, ordered that the petitioner be resentenced. At this second sentencing, the petitioner also received the death penalty under the revised statutory scheme. Id., at 959.

The petitioner then filed a second habeas corpus petition, which challenged the constitutionality of his second sentencing. The district court denied the petition and the stay of execution on several grounds. The circuit court affirmed the portion of the district court's order which dismissed the petition for failure to exhaust, but vacated the portion of the order which denied the petition on the merits. The circuit then remanded with instructions to allow the petitioner to return to state court to exhaust his state remedies. Once he had exhausted those remedies, the petitioner returned to federal court with an eighteen count petition. The district court denied the petition, finding that the claims in the second petition could have been brought in the first petition, and therefore constituted an abuse of the writ. Id.

The Ninth Circuit reversed. It found that the district court had erred in holding that the new grounds alleged in the second petition should have been brought in the first petition. Id., at 961. "Previously unadjudicated claims," the court noted, "must be decided on the merits unless the petitioner has made a conscious decision deliberately to withhold them, is pursuing `needless piecemeal litigation' or has raised the claims only to `vex, harass, or delay.'" Id., (citing Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963)).

In this case, the court found that nothing in the record indicated that the petitioner had withheld arguments purposefully in the hope of being granted two hearings instead of only one. Id. In addition, the court noted that the second petition had been filed in response to the resentencing gained as a result of the first petition. The court thus concluded that the petitioner could not be accused of having engaged in piecemeal litigation. Id. Finally, the court noted that the petitioner's purpose in filing the second petition was not to vex, harass or delay, inasmuch as he was challenging in good faith the statute under which he was resentenced to death. On this basis, the court concluded that the district court had wrongly dismissed these claims on abuse of the writ grounds.

In the present case, the petitioner may fairly be accused of abuse of the writ on the basis that he has deliberately withheld claims. As an initial matter, case law makes clear that the petitioner bears the burden of proof on this issue. In Price v. Johnson, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), the...