Richards v. Solem

• Decision Date: 17 November 1982
• Docket Number: No. 82-1304,82-1304
• Citation: 693 F.2d 760
• Parties: Alexander D. RICHARDS, Vernon Moves Camp, Appellants, v. Herman SOLEM, Warden, South Dakota State Penitentiary and Mark V. Meierhenry, Attorney General, State of South Dakota, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 760

693 F.2d 760

Alexander D. RICHARDS, Vernon Moves Camp, Appellants, v. Herman SOLEM, Warden, South Dakota State Penitentiary and Mark V. Meierhenry, Attorney General, State of South Dakota, Appellees.

No. 82-1304.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 17, 1982.

Decided Nov. 17, 1982.

Mark V. Meierhenry, Atty. Gen., Douglas E. Kludt, Asst. Atty. Gen., Pierre, S.D., for appellees.

Sarah Richardson, Davenport, Evans, Hurwitz & Smith, Sioux Falls, S.D., for appellants.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BRIGHT, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Alexander D. Richards and Vernon Moves Camp appeal the denial of their petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1976). We affirm the judgment of the district court. ¹

I. Facts

Petitioners and a third person were convicted of robbery and aggravated assault in connection with the beating of Gary Vroman. Vroman, a service station operator, was called at home by an employee and told that two women reported that their car was in a ditch and needed a tow. Vroman drove his wrecker to the scene, which was northwest of Kadoka, South Dakota, and some 300-400 yards west of the station. After Vroman pulled the car out with the assistance of the male occupants of the car, the occupants said they did not have enough money to pay for the $20.00 tow. Vroman suggested they return to his station to work something out and he returned to his wrecker. Two of the men ran at Vroman and dragged him out of his truck. Vroman was thrown in the ditch and when he attempted to flee, he was stomped in the face and hit on the head with a "J" hook, a metal hook about one-inch in diameter. Vroman was robbed of his wristwatch, boots, billfold, and other items. After this severe beating, Vroman staggered to his service station and told his employee that a "couple of Indians beat me up." The employee reported the incident to the police and Vroman was hospitalized. In one doctor's opinion, Vroman was near death when he arrived at the hospital; one eye was completely shut, his nose was broken, and multiple lacerations, some deep, were inflicted on his scalp and neck.

Vroman told police the car was a 1966 blue Ford. A statewide alert was put out for the vehicle, and a few hours later the police stopped a 1967 blue Ford. There were six people in the car: petitioners, the third defendant, petitioner Camp's brother (Louis Moves Camp), and two women. One of the women, Juanita Bill, made incriminating statements against petitioners and the third defendant. At trial she said the three defendants were at the car when Vroman pulled it out of the ditch and that she heard the defendants arguing with Vroman, but she stayed down inside the car. She said she heard a scream. She also said the fourth man in the car at the time of the arrest (petitioner Camp's brother) was not in the car at the time of the incident. Her statements provided the basis for a search warrant for the car. The search produced several items stolen from Vroman.

Petitioners were tried in February 1978 in South Dakota state court along with the third defendant. At trial, none of the three defendants called any witnesses on their behalf. All three defendants were convicted and were sentenced to ten years for the assault and twenty-five years for the robbery with the sentences to be served concurrently.

The defendants appealed to the South Dakota Supreme Court, which affirmed their convictions. They sought post-conviction relief in both state and federal courts, with the federal district court staying its proceedings pending the outcome of the state post-conviction proceedings. A state court judge denied relief, which is an unappealable decision absent a certificate of probable cause. S.D. Codified Laws Ann. Sec. 23A-34-20 (1979). No such certificate was forthcoming, and proceedings in the district court resumed. The third defendant's petition was dismissed on his own motion. The district court determined that of the forty-four grounds for relief asserted by petitioners, thirteen of them had not been exhausted in state court. The nonexhausted issues were raised in the Assignments of Error in the state Supreme Court, but were not briefed. That court apparently limits considerations to matters briefed and argued and views assignments of error not briefed to be abandoned. State v. Hall, 272 N.W.2d 308, 313 (S.D.1978). The court addressed the remaining thirty-one issues and found them lacking in merit.

II. Total Exhaustion Rule

Before reaching the merits of the issues petitioners raise in their appeal, we must determine whether the "total exhaustion" rule of Rose v. Lundy, --- U.S. ----, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) requires us to remand the matter to the district court with directions to dismiss. In Lundy a majority of the Supreme Court held that a district court must dismiss a "mixed" petition, that is, one with both exhausted and unexhausted claims. Id. --- U.S. at ----, 102 S.Ct. at 1205, 71 L.Ed.2d at 390. ² The district court opinion preceded Lundy. The question before us is whether Lundy is retroactive.

We have addressed that issue in Dunn v. Wyrick, 679 F.2d 731 (8th Cir.1982) and concluded that applying Lundy retroactively would constitute a great waste of judicial resources. However, six weeks after the Dunn opinion was filed, a published order of this circuit came to an arguably contrary result. In Stewart v. Parratt, 682 F.2d 757 (8th Cir.1982), this court ordered a case remanded to the district court for consideration in light of Lundy. The court said the petitioner could either proceed in state court with the unexhausted claims or amend his petition to delete the unexhausted claims, in which case the appeal would proceed. Id. at 758.

We will follow Dunn for three reasons. First, Dunn is clearly directly on point with the instant case. As in Dunn, this case involves an appeal from a district court judgment which denied the writ and preceded Lundy. The order in Stewart does not make clear whether the district court opinion preceded Lundy. Second, Dunn is persuasive in arguing that retroactive application of Lundy would constitute a great waste of judicial resources. As Dunn points out, the end result of retroactive application of Lundy could be that another district court and this court would have to reconsider the same claims at another time. 679 F.2d at 733. Third, nonretroactive application of Lundy in a case like this is consistent with the principles underlying that decision. The opinion of the Court in Lundy is concerned with comity between state and federal courts and the importance of giving state courts the initial opportunity to pass upon and correct violations of federal rights. --- U.S. at ----, 102 S.Ct. at 1203-04, 71 L.Ed.2d at 387-88. The Court felt a total exhaustion rule was necessary to meet this concern because exhausted and unexhausted claims may be intertwined and as a result a district court may be tempted to decide unexhausted claims. Id. --- U.S. at ----, 102 S.Ct. at 1204, 71 L.Ed.2d at 388. Furthermore, the Court believed a total exhaustion rule would help develop a complete factual record for the district court. However, in the instant case, as in Dunn, there is no threat to the comity between state and federal courts. We do not have a single federal judge upsetting the judgment of the highest state court. Rather, we have a district court which refused to interfere with a conviction in a state court.

Post-Lundy orders of the Supreme Court do not require a different result. Two such orders clearly dealt with cases where the petition for the writ of habeas corpus was granted. Bergman v. Burton, --- U.S. ----, 102 S.Ct. 2026, 72 L.Ed.2d 478 (1982); Duckworth v. Cowell, --- U.S. ----, ----, 102 S.Ct. 1626, 71 L.Ed.2d 858 (1982). Furthermore, the more recent case, Bergman, was merely remanded for further consideration in light of Lundy. (Duckworth was remanded with instructions to dismiss the petition for the writ of habeas corpus.) In a third case, also with an order by the Court to dismiss the petition citing Rose v. Lundy, the Supreme Court's order does not make clear whether the writ had been granted in part. Rodriquez v. Harris, --- U.S. ----, 102 S.Ct. 1627, 71 L.Ed.2d 858 (1982). (The case was on the in forma pauperis docket, so the petition for certiorari would presumably have been filed by the habeas petitioner.)

Retroactive application of Lundy in this case would do nothing to further the comity concerns of the Supreme Court but would increase the federal judicial workload. Post-Lundy Supreme Court orders do not require a contrary result. Therefore, we will not apply Lundy retroactively. ³

III. Lack of Disclosure of Evidence

We now proceed to the merits of petitioners' claims. Their most substantial claim is that the prosecution temporarily or permanently withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). A review of the record shows that petitioners suffered no prejudice as the result of any late disclosures or withheld evidence.

First we must emphasize there is a constitutional duty for the prosecution to disclose evidence only "if the omission is of sufficient significance to result in a denial of the defendant's right to a fair trial." United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). There is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972). The question is not whether the information "might" have affected the jury's verdict; rather, the question is whether the omitted evidence, in the context of the entire record, creates a reasonable doubt as to a petitioner's guilt that did...