Reeves v. Little, 97-741

• Decision Date: 13 August 1997
• Docket Number: No. 97-741,97-741
• Parties: 97 CJ C.A.R. 1641 Terry Lynn REEVES, Petitioner, v. Ray LITTLE, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1136

120 F.3d 1136

97 CJ C.A.R. 1641

Terry Lynn REEVES, Petitioner, v. Ray LITTLE, Respondent.

No. 97-741.

United States Court of Appeals Tenth Circuit.

Aug. 13, 1997.

Before ANDERSON, BRORBY and EBEL, Circuit Judges

ORDER

PER CURIAM.

This matter is before the court on the transfer by the district court of Terry Lynn Reeves' 28 U.S.C. § 2254 petition, the subsequent motion for permission to file a successive § 2254 petition in the district court, and the state's response. The issue presented is whether the petition Mr. Reeves seeks to file in the district court should be treated as a second or successive petition under the Antiterrorism and Effective Death Penalty Act (AEDPA). We determine that the petition is not a second or successive petition and remand the matter to the district court.

After Mr. Reeves filed his § 2254 petition in the district court, the court, concluding that the petition was a second or successive petition, transferred the matter to this court pursuant to Coleman v. United States, 106 F.3d 339, 341 (10th Cir.1997). Mr. Reeves was then given 30 days to file a proper motion seeking authorization to file the petition. Id. The petition was timely filed in this court.

Mr. Reeves was convicted in Oklahoma state court in September 1989 of possession of cocaine after former conviction of a felony and sentenced to 30 years incarceration.

In his previous habeas proceeding, Mr. Reeves became one of the large number of petitioners in Harris v. Champion, 15 F.3d 1538 (10th Cir.1994) (Harris II ), a case in which this court addressed the problem of appellate delay in the Oklahoma criminal justice system. Mr. Reeves became a petitioner while his direct criminal appeal was pending. In the earlier Harris opinion, Harris v. Champion, 938 F.2d 1062 (10th Cir.1991) (Harris I ), this court had ruled that the federal district court should have excused an Oklahoma prisoner's failure to exhaust his state remedies before seeking federal habeas relief in light of extensive delay by the state public defender in filing an opening brief in the prisoner's direct criminal appeal. The court remanded with directions to the district court to investigate the possibility of systematic delay in the filing of briefs by the Oklahoma Appellate Public Defender System. The scope of the inquiry was expanded in Hill v. Reynolds, 942 F.2d 1494 (10th Cir.1991), to include consideration of the entire criminal appellate process in Oklahoma insofar as it contributes to delay in deciding direct criminal appeals of indigent defendants.

On appeal following the remand, Harris II held that appellate delay in processing direct criminal appeals may result in excusing the exhaustion requirement. The court discussed the ramifications if exhaustion were excused.

Once exhaustion is excused, a federal court has the power to review the merits of a petitioner's habeas petition to the extent that it raises federal issues. In many (indeed, most) instances, however, proceeding directly to the merits of a petitioner's claims after excusing exhaustion may not be the preferred course of action, or even an effective one.

If exhaustion is excused due to delay in adjudicating a petitioner's direct criminal appeal, the federal habeas review will, in some regards, serve as a surrogate for a direct state appeal. This raises several concerns. First, because the petitioner would be entitled to appointed counsel on direct appeal, it may be appropriate to appoint counsel to represent the petitioner on habeas review. Likewise, the federal court may need to ensure that an indigent petitioner has a free copy of the trial transcript if it is necessary to evaluate his or her habeas petition.

Furthermore, to the extent the petitioner's underlying claims of error are state claims, the federal court cannot review them even if exhaustion is excused, because federal habeas review is limited to alleged "violation[s] of the Constitution or laws or treaties of the United States."

Finally, federal courts should not be required as a routine matter to fulfill the State's obligation to provide an "adequate and effective" direct criminal appeal to its indigent criminal defendants. Requiring the federal courts to do so on a regular basis just because the State does not fulfill its own constitutional obligations would unnecessarily tax federal resources and inject the federal courts into the State's process.

15 F.3d at 1557 (citations omitted).

The court also determined that delay in adjudicating a state prisoner's direct criminal appeal may give rise to an independent due process claim. Id. The court further held that the most appropriate form of habeas relief would be to grant a conditional writ directing the state to release the petitioner if it did not decide his appeal within a specified period. Id. at 1566-67.

The court remanded for an individualized factual inquiry as to each named petitioner for application of the enumerated factors to determine whether a due process violation had occurred. Id. at 1547.

On Mr. Reeves' individual review, done after his conviction was affirmed on direct appeal, the magistrate judge recommended that the habeas petition be dismissed because Mr. Reeves did not suffer any prejudice from the delay in the determination of his direct criminal appeal. The magistrate also recommended that the dismissal be "without prejudice to petitioner's filing a separate pro se action to pursue any other constitutional claims." It appears that the district court judge adopted the recommendation.

While AEDPA instituted a "gatekeeping" procedure for second or successive habeas petitions, it does not define what is meant by "second or successive." In determining what is a "second or successive" motion under the statute, the circuits which have reviewed this question use the "abuse of the writ" standard in effect before AEDPA was enacted. See In re Gasery, 116 F.3d 1051 (5th Cir.1997) (a habeas petition refiled after dismissal without prejudice for failure to exhaust state remedies is neither second nor successive); Christy v. Horn, 115 F.3d 201, 208 (3d Cir.1997)(stating that a § 2254 petition filed after a previously submitted petition was dismissed for failure to exhaust state remedies is not a second or successive petition under AEDPA); Benton v. Washington, 106 F.3d 162, 164-165 (7th Cir.1996)(although a decision on the merits is not necessary to conclude that a prior § 2254 petition is a first petition under AEDPA, where the first § 2254 petition was dismissed for failure to pay the fee, the next petition is not a second or successive one); ...