Parker v. Rose, 83-5246

• Decision Date: 02 March 1984
• Docket Number: No. 83-5246,83-5246
• Citation: 728 F.2d 392
• Parties: Samuel J. PARKER, Petitioner-Appellant, v. Jim ROSE, Warden, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 392

728 F.2d 392

Samuel J. PARKER, Petitioner-Appellant, v. Jim ROSE, Warden, et al., Respondents-Appellees.

No. 83-5246.

United States Court of Appeals,

Sixth Circuit.

Argued Nov. 16, 1983.

Decided March 2, 1984.

William Farmer, Federal Public Defender, Paula Godsey, Asst. Federal Public Defender (argued), Nashville, Tenn., for petitioner-appellant.

William M. Leech, Atty. Gen. of Tennessee, John F. Southworth, Jr., Asst. Atty. Gen. (argued), Nashville, Tenn., for respondents-appellees.

Before MERRITT and CONTIE, Circuit Judges, and POTTER, District Judge. ^*

MERRITT, Circuit Judge.

Petitioner appeals from the District Court's denial of his application for a writ of habeas corpus under 28 U.S.C. Sec. 2254. He alleges that he was denied his sixth amendment right to effective assistance of counsel at trial because his court-appointed public defender failed to investigate and prepare his case adequately. His claim is not frivolous. It deserves careful scrutiny.

Petitioner was convicted in June, 1977, for armed robbery and for being an habitual criminal. His punishment was set at ten years imprisonment on each robbery count and life imprisonment for the habitual criminal count.

In early 1978, petitioner filed a petition seeking relief under Tennessee's post-conviction procedures, set forth at Tenn.Code Ann. Secs. 40-30-101 to 40-30-124 (1982). After a hearing, the petition was denied because petitioner's direct appeal of his conviction was then pending before the Court of Criminal Appeals. Subsequently, his conviction was affirmed by the Court of Criminal Appeals, and certiorari was denied by the Tennessee Supreme Court in the fall of 1978.

Petitioner did not attempt to reinstitute his earlier post-conviction action in the Tennessee courts or to appeal the dismissal of that action. Rather, in February, 1979, he filed a pro se habeas corpus petition in the United States District Court for the Western District of Tennessee, alleging, inter alia, the same ineffectiveness of counsel claim that is the basis of this appeal. Then-District Judge Bailey Brown held that petitioner had not exhausted his state remedies "since he did not appeal the denial of his petition for post-conviction relief in which those issues were first raised." Order Granting Respondent's Motion for Summary Judgment at 2. Judge Brown noted that the dismissal was without prejudice--"petitioner may refile these claims if he fails to get satisfaction from the state courts"--but warned that if petitioner failed to file a timely appeal of the denial of his Tennessee post-conviction petition, "and petitioner again seeks federal habeas relief ..., [he] will have to convince the federal court that he did not deliberately bypass his state remedies," citing Fay v. Noia, 372 U.S. 391, 438-40, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (1963). Id.

It appears that petitioner then filed another petition for post-conviction relief in state court, although there is no record of this second petition before us or of the Tennessee court's disposition of it. Counsel for petitioner stated in oral argument before this Court that petitioner's second petition was summarily--and erroneously--denied by the clerk of the Tennessee court as simply "repetitious." Again, however, according to counsel, petitioner did not appeal.

In November, 1980, petitioner filed a second pro se habeas petition in the District Court for the Middle District of Tennessee. The Court ordered petitioner to show cause why his application should not be dismissed for failure to exhaust under Rule 9 of the Rules Governing Proceedings under 28 U.S.C. Sec. 2254; but the Court ultimately entered an order stating that he was satisfied that petitioner had exhausted available state remedies, although we are not told the basis for this conclusion. The Court appointed the Federal Public Defender to represent petitioner, and counsel has performed her task in the court below and here in a diligent and careful manner. After an evidentiary hearing in May, 1982, the judge dismissed the habeas corpus petition, holding that the conduct of petitioner's trial counsel met the required standard of reasonably effective counsel.

The statute governing federal court review of state prisoners' habeas corpus claims, 28 U.S.C. Sec. 2254 (1976), provides that a state prisoner's petition for a writ of habeas corpus will not be granted unless the petitioner has exhausted available state court remedies. ¹ The state initially opted not to argue on appeal that petitioner had failed to exhaust available state remedies. Nevertheless, the state's omission does not free us from our obligation to consider a jurisdictional defense raised and considered in the District Court and therefore properly before this Court. See Bowen v. Tennessee, 698 F.2d 241 (6th Cir.1983) (en banc) (total exhaustion rule, as interpreted by Supreme Court in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), could not be waived or conceded in district court by the state attorney general and could be noticed by the court of appeals sua sponte ). We therefore ordered that the question be briefed, and the state now argues that the petitioner has not exhausted. Both sides have now filed careful briefs on the issue.

It is obvious that petitioner was hampered in pursuing post-conviction remedies by his pro se status. The fact remains, however, that we do not have before us a claim which the state courts have had an opportunity to address on the merits. We recognize that it would be unrealistic to expect petitioner to have put forth this ineffectiveness of counsel claim on direct appeal. He was still being represented by the attorney who defended him at his trial. Even so, it remained open to petitioner to bring this claim to the attention of the state in a post-conviction appeal. It is unclear whether he in fact raised the issue in his first post-conviction action, which was dismissed on procedural grounds, and even more uncertain whether he raised it in the second post-conviction petition. There can be no doubt, however, that petitioner failed to appeal either of these state court procedural dispositions. Thus, the Tennessee state courts have not had an opportunity to examine the facts and pass on the validity of petitioner's federal constitutional claim.

Counsel for petitioner argues strongly that this Court should not require him to return to the state court post-conviction process because, as the District Court suggested, "no available state remedies whose pursuit would not be futile" exist to protect his rights. We do not agree with this position. There is no statute of limitations in the Post-Conviction Procedure Act, and therefore a prisoner may initiate a claim at any time. See Anderson, Post Conviction Relief in Tennessee, 48 TENN.L.REV. 605, 647 & n. 188 (1981) (noting that all prisoners "who can show a present need for post-conviction relief, even petitioners who are no longer in custody ... or who clearly did not raise their claims for relief at the first opportunity, are entitled to seek post-conviction relief"). Furthermore, it is by no means clear that petitioner will be deemed by the state court to have "presumptively waived" his right to proceed under the Post-Conviction Procedure Act. ²

Moreover, it may be that the Tennessee courts will interpret the state's procedural default rules in accordance with the "cause and prejudice" analysis articulated by the...