Passman v. Blackburn
| Decision Date | 22 August 1986 |
| Docket Number | No. 85-3249,85-3249 |
| Parties | Glenn S. PASSMAN, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, et al., Respondents- Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Glenn S. Passman pro se.
Henry Hoppe, III, Slidell, La. (Court-appointed), for petitioner-appellant.
Tom W. Thornhill, Asst. Dist. Atty., Abbott Reeves, Slidell, La., for respondents-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before REAVLEY, RANDALL and DAVIS, Circuit Judges.
Glenn S. Passman, an incarcerated state prisoner, appeals from the dismissal of his petition for a writ of habeas corpus, 28 U.S.C. Secs. 2241, 2254. For the reasons that follow, we affirm the judgment of the district court.
Passman was convicted by a jury in Louisiana in 1976 of armed robbery, and was sentenced to serve ninety-nine years without benefit of parole, probation, or suspension of sentence. The Louisiana Supreme Court affirmed the conviction. State v. Passman, 345 So.2d 874 (La.1977). After seeking post-conviction relief in state court, Passman, proceeding pro se, filed in 1979 a petition for writ of habeas corpus under Sec. 2254 in the federal district court raising the same claims as in the state petition. The petition raised eleven grounds. The district court's dismissal of the petition was affirmed by this court in 1981. Passman v. Blackburn, 652 F.2d 559 (5th Cir.1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1722, 72 L.Ed.2d 141 (1982).
Passman, again proceeding pro se, filed the instant petition, his second in federal court, in 1984. He raised four claims that were not raised in the first federal petition: (1) improper prosecution comments at trial concerning Passman's post-arrest silence; (2) the sentence amounts to cruel and unusual punishment; (3) failure of the state to prove an essential element of the crime, namely, that Passman was armed with a dangerous weapon; and (4) failure of the state to prove that Passman had the specific intent to deprive permanently the victim of the property stolen. Passman explained in the petition his failure to include those four grounds in his first petition as follows:
None of the claims presented in this petition were presented in the previous post-conviction application. The reasons are that defendant did not have the aid of counsel in presenting his claims; did not know that the claims were cognizable; did not have access to prison library; due to recent law.
The district judge ordered the petition referred to a magistrate, who filed an order pursuant to Rule 4, Rules Governing Sec. 2254 Cases in the United States District Courts, requiring the state to file an answer complying with Rule 5. Before the state filed an answer (it had been given two extensions of time), the magistrate by sua sponte written order notified Passman that his petition was subject to dismissal under Rule 9(b), and requested that Passman explain why he "did not assert the grounds pleaded herein in his previous habeas corpus proceedings." 1
Passman responded on the 9(b) form as follows:
Firstly, the grounds set forth in the second petition are new and different grounds as alleged in the first petition. Secondly, defendant had no knowledge of the legal principles--law pertaining to the grounds set forth in the instant petition when he filed his first petition in 1977; did not have the assistance of counsel; did not have proper law library or legal aid assistance; and due to changes in the law.
In a memorandum of law accompanying the Rule 9(b) response, Passman asserted that Further, as to his claim concerning improper prosecution comments on his post-arrest silence, which relies on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), Passman asserted that he:
absolutely did not understand the rationale of Doyle [ ] as it applied to the facts of his case. As a matter of fact defendant was not even aware of Doyle until after the first petition had been denied certiorari by the United States Supreme Court [in 1982]. Thereafter, while reading a "Georgetown Law Journal" defendant identified the Doyle violation was applicable to the facts of his case. Had defendant known of the rationale of Doyle in 1977 he definitely would have included it as one of his claims as the magnitude of the constitutional error would have definitely entitled him to relief then.
As to the sentencing issue, Passman claimed that he "was not aware that he had a liberty interest in the proper exercise of the sentencing judge's discretion which was a constitutional question of whether due process was accorded" until 1982. 2
The state filed a short opposition to the petition a few days later. The state did not assert that Rule 9(b) barred consideration of the petition because the petition was an abuse of the writ. The state did not contend that Passman knew of the claims raised in the second petition at the time the first petition was filed. Rather, the state argued that "[i]t is apparent that the instant application is an effort to relitigate the issues considered by the entire State and Federal court system without change." The state further asserted that Passman was barred by "collateral estoppel" from pursuing the petition: Further, the state contended that Passman failed to exhaust state remedies. 3 Passman responded to the state's opposition that, in fact, "none of the issues presented [in the first petition] are raised in the instant petition."
Shortly thereafter, the district judge revoked the reference to the magistrate, and issued an order denying the petition. The district judge determined that the petition was barred under Rule 9(b), without holding an evidentiary hearing. The court did not adopt the state's argument advanced in the answer that the four claims in the second petition had actually been raised in the first petition. Rather, the district judge concluded that Passman should have raised the four new issues in the first petition; therefore, this petition was subject to dismissal as an abuse of the writ. The court did not address Passman's factual assertions that he had no actual knowledge of the Doyle or sentencing issues, no direct access to a law library, and limited indirect access to books. The court did not find that Passman deliberately withheld these claims for delay or to harass the state. The district court concluded, however, that Passman did not "carry his burden of proof" of showing that the second petition was not an abuse of the writ:
Passman's first habeas corpus application and the supporting memorandum he submitted to the state district court, the Louisiana Supreme Court, and the United States District Court exemplify well researched, comprehensive pleadings. The pleadings are not reflective of an individual who is unskilled or one who had insufficient knowledge of the law. Nor does the record reflect an individual incapable of utilizing tools of legal research to ascertain changes in the law.
The court is therefore of the opinion that petitioner's claim for habeas relief should be dismissed on procedural grounds.... The grounds raised in this second application cannot be said to have been initially established by legislation or jurisprudence in the interim period between the filing of Passman's first petition and the filing of this one. These four grounds are not novel arguments recently recognized as giving rise to a claim for post-conviction relief.
The district court added, however, that even if it were to consider the merits, it was of the opinion that Passman would not be entitled to relief.
Passman filed a timely notice of appeal, and, still proceeding pro se, filed a detailed and well-reasoned brief with this court. Counsel was appointed to represent Passman after oral argument was scheduled. The state filed a brief, virtually devoid of any reasoned analysis, that has been of no assistance in considering the difficult issues raised on appeal. Oral argument was held, for which the state declined to appear.
Before we consider Passman's argument that his successive petition did not constitute an abuse of the writ, we begin by setting forth the factual record as the state has chosen to permit Passman to develop it. The state did not allege and the district court did not find that Passman actually knew about the claims in the second petition when the first petition was filed. The state did not challenge any of Passman's factual allegations concerning why the Doyle or Helm claims [463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637] were not raised in the first petition. Therefore, the district judge properly did not hold an evidentiary hearing on Passman's factual assertions; none was required where there were no contested issues of fact. 4 The issue we face is whether the state was entitled to judgment as a matter of law on this factual record.
The following must be taken as true for the purposes of this proceeding. Passman was subjectively unaware of the Doyle and Helm claims at the time he filed his first state and first federal petitions. He first learned of the possibility of a Doyle claim while reading a law review article in 1982 after his first federal petition had been dismissed, and of the sentencing claim in 1982 while reading a Fifth Circuit opinion. The first and second federal petitions were...
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