Risdal v. Iowa

• Decision Date: 05 February 2003
• Docket Number: No. 4:01-CV-90273.,4:01-CV-90273.
• Citation: 243 F.Supp.2d 970
• Parties: Eddie C. RISDAL, Petitioner, v. State of IOWA, Respondent.
• Court: U.S. District Court — Southern District of Iowa

243 F.Supp.2d 970

Eddie C. RISDAL, Petitioner, v. State of IOWA, Respondent.

No. 4:01-CV-90273.

United States District Court, S.D. Iowa, Central Division.

February 5, 2003.

Rockne Cole, Mears Law Office, Iowa City, IA, for Petitioner.

William A. Hill, Attorney General of Iowa, Des Moines, IA, for Respondent.

ORDER

PRATT, District Judge.

This is a petition for writ of habeas corpus brought under 28 U.S.C. § 225 Before the court is respondent's motion to dismiss for failure to exhaust state court remedies.

Background

This habeas concerns two separate disciplinary reports Risdal received in 2000 at the Iowa State Penitentiary. For each report, Risdal lost good time and was sentenced to disciplinary detention. Although he exhausted his administrative remedies, his requests for relief were denied.

In October of 2000, Risdal filed a postconviction action in the Iowa District Court for Lee County contesting both disciplinary actions. After reviewing Risdal's state court filing history, District Court Judge Fahey invoked Iowa Rule of Civil Procedure 80(b). In the Matter of the Application of Rule of Civil Procedure 80(b) Against Eddie C. Risdal, Filed November 29, 2001, In the Iowa District Court for Lee County at Fort Madison, at 3. Under Rule 80(b),

"If a party commencing an action has in the preceding five-year period unsuccessfully prosecuted three or more actions, the court may, if it deems the actions to have been frivolous, stay the proceedings until that party furnishes an undertaking secured by cash or approved sureties to pay all costs resulting to opposing parties to the action including a reasonable attorney fee."

Ia. Rule Civ. P. 80(b)¹. Judge Fahey found that Rule 80(b) applied to Risdal and stayed the postconviction action until Risdal could pay. In a later order, Judge Fahey set the bond for the postconviction relief petition at $426.77. Risdal v. State of Iowa, PCLA 00 4440, Order Setting Bond, Filed January 19, 2001. Risdal did not pay the bond but was allowed to apply for certiorari before the Iowa Supreme Court. The Iowa Supreme Court denied his application on April 17, 2001, and procedendo issued on April 25, 2001. Risdal's motion to reconsider was denied on July 25, 2001.

Risdal brought this petition for federal habeas review on April 30, 2001. Defendants' moved to dismiss based on exhaustion. This court denied the motion but later reconsidered the order. The case was then stayed until such time as Risdal's state proceedings were complete. On January 15, 2003, respondent reported that Risdal's state postconviction relief action was dismissed on January 1, 2003, for want of prosecution under Iowa Rule of Civil Procedure 1.944.

Procedural Discussion

Even though Risdal's state postconviction action was dismissed for failure to prosecute, it was his failure to post the bond that prevented him from going forward with the state proceeding. Risdal raised the issue of the validity of the bond before the Iowa Supreme Court, but his petition for writ of certiorari was denied. See In the Matter of the Application of Rule of Civil Procedure 80(B) Against Eddie Risdal, No. 00-1998 (Iowa Supreme Court April 16, 2001).

The doctrine of procedural default prohibits a federal court from considering habeas claims if the state court rejected the claim based on a state law ground that is independent of the federal question and adequate to support the judgment, regardless of whether the state law ground is substantive or procedural. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 885, 151 L.Ed.2d 820 (2002)(citing James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984)) ("Ordinarily, violation of `firmly established and regularly followed' state rules ... will be adequate to foreclose review of a federal claim."). A state procedural rule only prevents federal review, however, when the rule is firmly established and regularly followed. Dixon v. Dormire, 263 F.3d 774, 781 (8th Cir.2001)(state did not consistently assert that the failure to seek a discretionary transfer is a bar to federal habeas relief); see also Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)(state procedural rule constitutes an adequate bar to federal court review if it was "firmly established and regularly followed' at the time it was applied by the state court."); Wood v. Hall, 130 F.3d 373, 376 (9th Cir.1997) (state rules that are too inconsistently or arbitrarily applied to bar federal review "generally fall into two categories: (1) rules that have been selectively applied to bar the claims of certain litigants ... and (2) rules that are so unsettled due to ambiguous or changing state authority that applying them to bar a litigant's claim is unfair.").

It is not clear who carries the burden of showing whether a state rule has been firmly established and regularly followed. The Court of Appeals for the Fifth Circuit requires the petitioner to make the showing. See Sones v. Hargett, 61 F.3d 410, 417 (5th Cir.1995) ("Sones has failed to demonstrate that Mississippi's three-year limitations rule is not regularly followed."); see also Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir.1997) (petitioner's burden to show state did not regularly follow procedural bar at time of direct appeal). In the Tenth Circuit, however, after the state initially assert a procedural bar and the petitioner makes special allegations as to the adequacy of the state procedure, the burden returns to the state to rebut the petitioner's allegation because the state is considered to be in better position to have such information, to establish the regularity, consistency and efficiency of rule. Hooks v. Ward, 184 F.3d 1206, 1216-17 (10th Cir.1999)("the state is undoubtedly in a better position to establish the regularity, consistency and efficiency with which it has applied [its procedural bar] than are habeas petitioners, who often appear pro se, to prove the converse."). The Ninth Circuit adopted the reasoning of Hooks in Bennett v. Mueller, 296 F.3d 752 (9th Cir.2002), noting that as an affirmative defense, it was the state's burden to plead and prove the default. Id. at 762.

Although it does not appear that the Eighth Circuit Court of Appeals has addressed this issue, it is reasonable to place the burden on the respondent because it knows better than any individual when and how often it has sought the enforcement of Iowa's Rule 80(b). For the reasons given by the Ninth and Tenth Circuits, this framework is adopted and applied here.

The state asserts that the use of Iowa Rule of Civil Procedure 80(b) is "well-established." Respondent's Brief (Pleading # 30) at 7. Neither in its brief or at oral argument, however, could the state produce any case where Rule 80(b) had ever served as a bar to federal review. The one case referenced was Sprous v. Iowa District Court for Lee County, 595 N.W.2d 777 (Iowa 1999). Sprous recognized the existence and potential use of Rule 80(b). Id. at 778 ("We emphasize our continued satisfaction with the rule, and note again the manifest need for it in order to address the cases that continue to stagger our courts."). Nonetheless, the rule was not applied. The recognition of a rule is not the same as regular application by the state. Under these circumstances, the state has failed to show that this rule has ever been applied in a postconviction relief action much less that it has been firmly established and regularly followed in such cases. As such, Iowa's Rule 80(b) cannot serve as an independent and adequate state grounds for procedural bar in this case.

Constitutionality of Iowa Rule 80(b)

Respondent argues that Rule 80(b) is constitutional in the same way that the filing fee requirement of 28 U.S.C. § 1915(g) (part of the Prisoner Litigation Reform Act or PLRA) has been held constitutional. See Higgins v. Carpenter, 258 F.3d 797, 801 (8th Cir.2001), cert, denied Early, v. Harmon, 535 U.S. 1040,122 S.Ct. 1803, 152 L.Ed.2d 659 (2002)(imposition of filing fee reviewed under rational basis and found not to violate equal protection rights of prisoners). Under § 1915(g), if an inmate has had three or more cases dismissed as frivolous, the inmate must pay the full filing fee before going forward unless there is imminent danger to the inmate. Iowa's Rule 80(b) provides that any party, not necessarily a prisoner or inmate, who "has in the preceding five-year period unsuccessfully prosecuted three or more actions" may be required to post a bond as set by the judge.

The filing fee required by federal courts is mandatory; the Iowa Rule is wholly discretionary. Further, the Eighth Circuit Court of Appeals and all other circuits have held that provisions of the PLRA do not apply to habeas actions or petitions which provide the same purpose and remedy as a habeas action. See Malave v. Hedrick, 271 F.3d 1139, 1140 (8th Cir. 2001) (per curiam)(unpublished), cert, denied — U.S. —, 123 S.Ct. 186, 154 L.Ed.2d 74 (2002) ("Focusing on the unique nature of habeas corpus and on Congress's intent when it enacted the PLRA, we now join our sister circuits in holding that the PLRA's filing-fee provisions are inapplicable to habeas corpus actions."); see also Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634 (2nd Cir.2001)(same); Walker v O'Brien, 216 F.3d 626, 633-34, (7th Cir.) cert. denied in Hanks v. Finfrock, 531 U.S. 1029, 121 S.Ct. 606, 148 L.Ed.2d 518 (2000) (cases brought under §§ 2241 or 2254 which are unrelated to the underlying criminal judgment (challenging a disciplinary conviction) are not subject to requirements of the PLRA); Blair-Bey v. Quick, 151 F.3d 1036, 1039-40 (D.C.Cir.1998) (habeas is "unique creature of the law"); Davis v. Fechtel, 150 F.3d 486, 488-90 (5th Cir.1998) ("habeas claims involve someone's liberty, rather than mere civil liability"); Sonnier v. Johnson, 161 F.3d 941, 943 (...