Resnover v. Pearson

• Citation: 965 F.2d 1453
• Decision Date: 29 September 1992
• Docket Number: No. 91-1367,91-1367
• Parties: Gregory RESNOVER, Plaintiff-Appellant, v. Linley E. PEARSON, Attorney General of Indiana, and Richard Clark, Superintendent, Indiana State Prison, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1453

965 F.2d 1453

Gregory RESNOVER, Plaintiff-Appellant, v. Linley E. PEARSON, Attorney General of Indiana, and Richard Clark, Superintendent, Indiana State Prison Defendants-Appellees.

No. 91-1367.

United States Court of Appeals Seventh Circuit.

Argued Dec. 18, 1991.

Decided June 25, 1992.

Rehearing and Rehearing En Banc

Denied Sept. 29, 1992.

Charles A. Asher, South Bend, Ind., Kevin P. McGoff (argued), Safrin, Kiefer & McGoff, Brent Westerfeld, Indianapolis, Ind., for plaintiff-appellant.

David A. Arthur, Deputy Atty. Gen., Office of Atty. Gen., Federal Litigation, Indianapolis, Ind., for defendants-appellees.

Before BAUER, Chief Judge, POSNER and FLAUM, Circuit Judges.

BAUER, Chief Judge.

At approximately 5:30 a.m. on December 11, 1980, Sergeant Jack Ohrberg of the Indianapolis Police was gunned down as he attempted to serve arrest warrants on certain individuals believed to reside at 3544 North Oxford Street in Indianapolis. Plaintiff-appellant Gregory Resnover and his co-defendant at trial, Tommie Smith, have been sentenced to die in the electric chair as a result of Ohrberg's murder. Resnover now stands before this court and requests relief from his conviction and sentence. We decline. Instead, we affirm the district court's denial of habeas corpus.

I.

In Resnover v. State, 460 N.E.2d 922, 926 (Ind.), cert. denied, 469 U.S. 873, 105 S.Ct. 231, 83 L.Ed.2d 160 (1984), the Supreme Court of Indiana determined the relevant facts: at approximately 3:00 a.m. on December 11, 1980, Indianapolis police Sergeant Jack Ohrberg met Sergeant Lewis J. Christ to serve papers on individuals currently residing in Indianapolis. Other officers subsequently joined Sergeants Ohrberg and Christ before they arrived at the duplex residence at 3544 North Oxford Street at approximately 5:30 a.m. With Officers Schneider and Harvey standing watch in the rear, Ohrberg, Christ, and Officers Ferguson and Foreman proceeded across the porch of the residence to the front door. Both Foreman and Ferguson were in uniform.

Ohrberg knocked loudly several times and identified himself as a police officer. He then went to 3546 North Oxford, the other half of the duplex residence, and checked with Sandra Richardson to see if she knew whether anyone currently occupied the 3544 address. Richardson told Ohrberg that she heard noise emanating from that residence. Ohrberg returned to 3544 and again pounded on the front door, announcing himself and the other men as police officers. Ohrberg than assumed a crouched position and started to use his right shoulder to batter the door which, after a few hits, began to open. Ohrberg continued to push the door open as he moved partially inside the doorway. Foreman shined a flashlight over Ohrberg's head and noticed a piece of furniture preventing the door from opening completely. As Foreman looked inside the residence, he saw a sudden burst of muzzle flashes and heard two, possibly three shots in quick succession. These simultaneous muzzle flashes came from two separate locations approximately eight to ten feet apart inside the residence. Immediately Ohrberg said, "Oh no, I've been shot" or "I've been hit." He stepped back two steps, sank to his knees, and collapsed on the porch.

Taking cover, Christ saw a person with an "Afro" type hairstyle emerge from the dark doorway onto the porch and fire at least two additional shots into Sergeant Ohrberg. At the same time, shots were being rapidly fired from within the residence. When Christ returned the gunfire, the man on the porch quickly retreated inside the building. After more shooting, a man identifying himself as "Gregory" called from inside the house and said, "Let's talk." Gregory stated that there was an injured man inside and offered to send out two women who were inside the residence. Christ refused to accept the women and ordered Gregory to leave the residence. Gregory stepped to the door, threw a weapon into the front yard, and walked onto the porch with his hands raised.

On June 29, 1981, a jury found Gregory Resnover guilty of murder and conspiracy to commit murder. The next day, the jury returned a recommendation that Resnover be executed. ¹ The trial court agreed and sentenced Resnover to die in the electric chair. Three years later, in March 1984, the Indiana Supreme Court affirmed the conviction and sentence. See Resnover v. State, 460 N.E.2d at 922. Resnover then filed two petitions for post-conviction relief, one in October 1984, the other in March 1988. Both were denied by the Indiana trial court. The Indiana Supreme Court affirmed both trial court rulings. See Resnover v. State, 507 N.E.2d 1382 (Ind.), cert. denied, 484 U.S. 1036, 108 S.Ct. 762, 98 L.Ed.2d 779 (1988); Resnover v. State, 547 N.E.2d 814 (Ind.1989), cert. denied, --- U.S. ----, 111 S.Ct. 216, 112 L.Ed.2d 175 (1990).

On May 2, 1988, Resnover filed a petition for writ of habeas corpus, seeking relief under 28 U.S.C. § 2254 ("s 2254"), in the United States District Court for the Northern District of Indiana. Approximately one month later, Resnover requested an evidentiary hearing, which the district court refused to provide. After hearing oral argument, the district court denied Resnover's habeas petition. Resnover v. Pearson, 754 F.Supp. 1374 (N.D.Ind.1991). Resnover appealed. The district court granted a stay of execution until further notice.

II.

On appeal, Resnover makes ten challenges to his conviction and sentence. We consider each in turn.

Resnover first claims that the district court committed reversible error by denying his motion for an evidentiary hearing. Citing the standard annunciated in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), ² Resnover argues that the district court neglected to review the state court record before rejecting his motion. Yet since oral argument, the Supreme Court has overruled Townsend. See Keeney v. Tamayo-Reyes, --- U.S. ----, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). In Keeney, the Supreme Court held that the cause-and-prejudice standard is the appropriate measure for excusing a habeas petitioner's failure to develop a material fact in state-court proceedings. See Keeney, 112 S.Ct. at 1718. As the Court declared, "application of the cause-and-prejudice standard ... will appropriately accommodate concerns of finality, comity, judicial economy, and channeling the resolution of claims into the most appropriate forum." Id. at 1719.

With Keeney's cause-and-prejudice standard, the habeas petitioner is entitled to an evidentiary hearing if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure. Id. at 1720. The Court permits one narrow exception to this rule: a habeas petitioner's failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing. Id.

In its order denying Resnover's request for an evidentiary hearing, the district court, citing the "present massive state record," declared, "This court has reviewed the long laundry list of possible subjects for an evidentiary hearing and concludes that none of same requires such an evidentiary hearing." District Court Order, July 12, 1990, Appellant's Appendix at 52. Finding that Resnover failed to sustain his burden to establish the need for an evidentiary hearing, the district court denied the motion.

We see no error in the district court's ruling. Under either the now obsolete Townsend formula or the more restrictive Keeney standard, Resnover is unable to demonstrate that a federal evidentiary hearing is warranted. He can only seize upon the fact that the district court did not explicitly determine the non-existence of the six scenarios described in Townsend. Resnover also argues that the district court's order does not evince an indication that the court reviewed the record before denying the request for a hearing. Neither of these claims convinces us.

If Resnover could satisfy Townsend, then we would be inclined to remand the case to afford him the opportunity to present evidence establishing cause-and-prejudice under Keeney. But Resnover cannot overcome the more lenient Townsend criteria. Townsend and its progeny taught that a hearing is required when the facts were not properly before the district court, or when the process by which those facts were determined somehow was defective. See U.S. ex rel. Simmons v. Gramley, 915 F.2d 1128, 1139 (7th Cir.1990) ("In cases where a constitutional right is not blatantly violated, Townsend leaves it to the discretion of trial court to determine whether an evidentiary hearing is necessary."); Matta-Ballesteros v. Henman, 896 F.2d 255, 258 (7th Cir.) ("[A]n evidentiary hearing is not necessary when the facts essential to consideration of the constitutional issue are already before the court."), cert. denied, --- U.S. ----, 111 S.Ct. 209, 112 L.Ed.2d 169 (1990); U.S. ex rel. Shore v. O'Leary, 833 F.2d 663, 669 (7th Cir.1987) ("Under the habeas corpus statute, ... the state court determination shall be presumed correct. Thus, we find, in the circumstances of this case, no federal evidentiary hearing is mandated under the principles of Townsend."); Cartee v. Nix, 803 F.2d 296, 299 (7th Cir.1986) ("[T]he district court did not abuse its discretion in not holding an evidentiary hearing. The state's fact-finding procedures ... provided petitioners a full and fair hearing. None of the circumstances outlined by the Townsend Court mandate an evidentiary hearing."), cert. denied, 480 U.S. 938, 107 S.Ct. 1584, 94 L.Ed.2d 774 (1987). Having failed in the first instance to demonstrate that the facts were not properly before the district court, Resnover is thus unable to show cause for his failure to develop a material fact and prejudice resulting from that failure.

Put simply, Resnover has had a...