Noble v. Barnett

• Decision Date: 12 May 1994
• Docket Number: No. 93-6274,93-6274
• Citation: 24 F.3d 582
• Parties: Frederick Allen NOBLE, Petitioner-Appellant, v. Talmadge L. BARNETT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 582

24 F.3d 582

Frederick Allen NOBLE, Petitioner-Appellant, v. Talmadge L. BARNETT, Respondent-Appellee.

No. 93-6274.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 10, 1994.

Decided May 12, 1994.

ARGUED: James Phillip Griffin, Jr., North Carolina Prisoner Legal Services, Inc., Raleigh, NC, for appellant. Clarence Joe DelForge, III, Asst. Atty. Gen., North Carolina Dept. of Justice, Raleigh, NC, for appellee. ON BRIEF: Michael F. Easley, Atty. Gen. of South Carolina, North Carolina Dept. of Justice, Raleigh, NC, for appellee.

Before PHILLIPS, Circuit Judge, BUTZNER, Senior Circuit Judge, and ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. District Judge ELLIS wrote the opinion, in which Judge PHILLIPS and Senior Judge BUTZNER joined.

OPINION

ELLIS, District Judge:

This is an appeal from the district court's dismissal of a petition for a writ of habeas corpus on grounds of abuse of the writ. The writ at issue, appellant's third, raises claims of (1) incompetency to stand trial and (2) ineffective assistance of counsel due to counsel's failure to raise the incompetency issue at trial. Because we find that appellant's third writ constitutes an abuse of the writ, we affirm the district court's dismissal of the petition.

I.

Appellant, Frederick Noble, is a North Carolina state prisoner serving a sentence of life imprisonment following his conviction in 1982 on one count of first-degree sexual offense and one count of second-degree sexual offense. In 1979, Noble was diagnosed as suffering from chronic paranoid schizophrenia. He was treated in a Veterans Administration hospital from January 28, 1982 to February 17, 1982. At the time of his discharge, he was on a daily regimen of medication, including Haldol, Thorazine, and Cogentin. Four weeks after leaving the hospital, Noble was tried on two sexual offense charges arising from acts committed prior to his hospitalization. Although Noble informed his counsel of his mental illness, counsel did not raise incompetence to stand trial or insanity as defenses. A jury convicted Noble of both sexual offense counts, following which Noble's trial counsel noted a timely appeal. Noble then retained a second attorney for the purpose of mounting a collateral attack on his conviction. For reasons not disclosed in the record, neither of Noble's attorneys pursued Noble's direct appeal, which was ultimately dismissed for failure to prosecute. After the dismissal, Noble's second attorney filed a petition for writ of certiorari in the Supreme Court of North Carolina, asserting that Noble's direct appeal should be heard. This petition was denied. Noble then filed, pro se, a second motion for relief in the Cumberland County Superior Court alleging that the evidence adduced at trial was insufficient to support the verdict and that the trial court did not properly take Noble's mental state into consideration. This motion was also denied.

Thereafter, Noble filed his first petition for federal habeas relief alleging that the North Carolina Supreme Court should have granted a petition for a writ of certiorari to review the trial court's dismissal of Noble's appeal. Before the district court ruled on this initial habeas petition, Noble filed a motion to dismiss the petition without prejudice so he could exhaust his state remedies with respect to a claim that his attorney was ineffective. The district court denied the motion and dismissed the petition for failure to state a claim for habeas relief. On direct review, a circuit panel upheld the district court's dismissal. In addition, the panel noted that because "Noble was sincerely unaware of a potential ineffective assistance of counsel claim, a successive petition for habeas corpus relief raised on this ground should not be dismissed under Rule 9(b), Rules Following 28 U.S.C. Sec. 2254." Noble v. Rice, No. 84-6380 [751 F.3d 379 (Table) ] (4th Cir. Dec. 19, 1984) (unpublished).

On June 15, 1988, Noble filed his second petition for federal habeas relief. This petition asserted eight claims: (1) unconstitutionally insufficient evidence; (2) ineffective assistance of counsel; (3) procedurally incorrect and excessive sentence; (4) knowing use of perjured testimony; (5) denial of right to appeal; (6) imprisonment based upon a dismissed charge; (7) denial of fair trial by an impartial judge and unprejudiced jury; and (8) denial of due process and equal protection. Significant for the purposes of this appeal is Noble's failure in this second petition to assert ineffective assistance of counsel on the basis of his counsel's failure to raise the incompetency issue. ¹

On April 13, 1988, before the filing of any responsive pleading, Noble submitted a motion to amend the petition. In this motion, he sought to add four affidavits to the record, one of which was his own. His affidavit included a description of the medication he was taking at the time of trial, as well as a statement that his trial attorney had failed to review his Veterans Administration Hospital records. On September 14, 1988, a magistrate judge ordered an evidentiary hearing on the issue of ineffective assistance of counsel and appointed an attorney to represent Noble. Following this hearing, Noble's second petition for writ of habeas corpus was dismissed.

The instant petition, Noble's third, was filed on January 15, 1992, following Noble's exhaustion of state remedies. In this petition, Noble claims that he was incompetent to stand trial and that he received ineffective assistance of counsel owing to his counsel's failure to raise the incompetency issue at trial. The district court dismissed Noble's third petition on grounds of abuse of the writ, and Noble appeals.

II.

The question presented is whether Noble has run afoul of the abuse of the writ doctrine by filing three successive writs. This doctrine, which now finds expression in statute ² and rule ³, developed in the common law to address the problem of successive writ petitions. See McClesky v. Zant, 499 U.S. 467, 478-481, 111 S.Ct. 1454, 1461-63, 113 L.Ed.2d 517 (1991) (detailing the evolution of the common law abuse of the writ doctrine and listing appropriate cases). In essence, the doctrine mandates dismissal of claims presented in habeas petitions if the claims were raised, or could have been raised, in an earlier petition. Thus, the doctrine "encourages petitioners to present their claims simultaneously for resolution, rather than fragmenting grounds for collateral relief or advancing endless permutations of the same themes." Miller v. Bordenkircher, 764 F.2d 245, 248 (4th Cir.1985). The doctrine's rationale is rooted in the limited resources available in the federal judicial system. As we observed in Miller: "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 ... [and lest] the multitude of baseless and repetitive petitions ... drown out solitary claims of merit." Id.

McClesky prescribes the principles that govern abuse of the writ claims. First, McClesky makes clear that abuse of the writ is not confined to instances where litigants deliberately abandon claims; it also applies to instances where litigants, through inexcusable neglect, fail to raise available claims. McClesky, 499 U.S. at 489-90, 111 S.Ct. at 1467-68. Equally clear from McClesky is that the standard for excusing a failure to raise an available claim in the abuse of writ context is substantially the same as that required in procedural default cases, namely a showing of cause and prejudice. Id. at 493, 111 S.Ct. at 1469-70. To show cause in a procedural default case, the petitioner must prove that " 'some objective factor external to the defense impeded counsel's efforts' to raise the claim...." Id. at 493-494, 111 S.Ct. at 1469-70 (citing Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645). In the abuse of the writ context, "[f]or cause to exist, the external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim." McClesky, 499 U.S. at 497, 111 S.Ct. at 1472. McClesky further notes that the "[a]buse of the writ doctrine examines petitioner's conduct: the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process." Id. at 498, 111 S.Ct. at 1472 (citations omitted). ⁴ Once petitioner has established cause, he must next establish " 'actual prejudice' resulting from the errors of which he complains." Id. at 494, 106 S.Ct. at 2648 (citing United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982)). ⁵ To demonstrate prejudice, a petitioner must show "actual prejudice" amounting to a denial of fundamental fairness. McClesky, 499 U.S. at 494, 111 S.Ct. at 1470; Sawyer v. Whitley, 945 F.2d 812, 816 (5th Cir.1991).

III.

Application of these principles to the case at bar compels the conclusion that petitioner does not meet the "cause and prejudice" standard. McClesky's third petition, the writ at issue, raises two claims: (1) that Noble was incompetent to stand trial and (2) that Noble received ineffective assistance of counsel owing to his counsel's failure to raise the incompetency issue. Noble had full knowledge of the facts central to each of these claims at the time that he filed his second petition for a writ of habeas corpus. Significantly, he has produced no evidence that any objective factors prevented him from raising in his second petition either of the claims presented in his third petition. It follows, therefore, that Noble cannot demonstrate the...