Robinson v. Fairman

• Decision Date: 04 April 1983
• Docket Number: No. 81-1952,81-1952
• Citation: 704 F.2d 368
• Parties: Earl ROBINSON, Jr., Petitioner-Appellant, v. J.W. FAIRMAN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 368

704 F.2d 368

Earl ROBINSON, Jr., Petitioner-Appellant, v. J.W. FAIRMAN, Warden, Respondent-Appellee.

No. 81-1952.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 19, 1982.

Decided April 4, 1983.

Jerry B. Kurz, Hall & Kurz and Kathryn Hall, Chicago, Ill., for petitioner-appellant.

Jack Donatelli, Ill. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before WOOD and ESCHBACH, Circuit Judges, and GORDON, District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Petitioner-Appellant Earl Robinson appeals from an order dismissing his second habeas corpus petition as an abuse of the writ under Rule 9(b), 28 U.S.C. fol. Sec. 2254. ¹

I.

Petitioner was convicted of first degree murder and is presently serving a term of fifty to one hundred years in the Illinois State Penitentiary. In July 1979, he filed a petition for a writ of habeas corpus in the United States District Court for the Central District of Illinois which was denied on its merits without an evidentiary hearing. United States ex rel. Robinson v. Harvey, No. 79-2052. Petitioner was represented by counsel and does not contend representation at that time was ineffective.

On October 20, 1980, petitioner filed a second petition pro se with the same court alleging grounds not raised in his first petition ² and requesting appointment of counsel. That petition was in the form provided by the Supreme Court, 28 U.S.C. fol. Sec. 2254 (appendix of Forms) (amended April 28, 1982, 50 U.S.L.W. 4447). Question thirteen on that form reads: "If any of the grounds listed in 12A, B, C, and D were not previously presented in any other court, state or federal, state briefly what grounds were not so presented, and give your reasons for not presenting them." (Original emphasis). In the space provided, petitioner responded, "The reason I did not bring this up before is because I did not think about it. And 2 [sic] this petition says not to use grounds that were already used in other petitions."

The district court appointed Susan H. Brandt of Bloomington, Illinois, as counsel for petitioner pursuant to 18 U.S.C. Sec. 3006A(g) and directed respondent to show cause why the writ should not issue.

Respondent subsequently filed a motion to dismiss on the ground that the petition was a successive petition and that the failure to assert new grounds in the first petition constituted an abuse of the writ under Rule 9(b). ³ The record shows that notice and a copy of that motion were served upon petitioner's appointed counsel, but not petitioner personally. Neither petitioner nor his counsel responded.

The district court granted respondent's motion stating that the petitioner had previously filed a petition for a writ of habeas corpus with the court and that although petitioner had been represented by other counsel in that petition who appeared for him, he had failed to allege as grounds for relief the claims contained in the second petition. Citing petitioner's answer to question thirteen in the form petition, the court found petitioner's explanation for this failure to be "paltry" and "obtuse." Consequently the court held that the petitioner, "having failed to allege that he could not with due diligence have discovered the claims now asserted and presented them in his first petition for a writ of habeas corpus, is now barred from bringing these new claims in a second petition for a writ of habeas corpus."

Respondent does not dispute that petitioner's appointed counsel was the only party to receive notice of respondent's motion to dismiss, and that petitioner personally had no knowledge of the motion or its contents until after his petition was dismissed. Petitioner represents that his appointed counsel never communicated with him regarding his petition. ⁴ The record shows that counsel never appeared on petitioner's behalf and that she filed nothing other than a motion to withdraw more than four months after the petition had been dismissed. The district court noted that no response had been filed to respondent's motion to dismiss, and therefore dismissed the petition. Petitioner's motion to reconsider was denied.

II.

The issue which has now crystalized is whether a court may dismiss a successive habeas corpus petition under Rule 9(b) on the basis of the petitioner's response to question thirteen of the model form petition, 28 U.S.C. fol. Sec. 2254, where because of appointed counsel's ineffectiveness, the petitioner fails to reply to the respondent's motion to dismiss.

Rule 9(b) allows a district court in its discretion to dismiss a successive petition "if new and different grounds are alleged [and] the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." 28 U.S.C. fol. Sec. 2254. That rule incorporates the principle of Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078-1079, 10 L.Ed.2d 148 (1963), where the Court stated:

if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground.... Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay.

Rose v. Lundy, 455 U.S. 509, 521, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982); see Advisory Committee Note to Rule 9, 28 U.S.C. fol. Sec. 2254. Rule 9(b), however, "is not designed to impose an automatic and inflexible forfeiture on every habeas petitioner who, whether out of ignorance, inadvertence, or any other reasons, failed to assert every ground for relief available to him in his first appearance in federal court." Johnson v. Copinger, 420 F.2d 395, 399 (4th Cir.1969). In some instances petitioner's failure may be excusable, such as where the new grounds are supported by newly discovered evidence or a retroactive change in the law. ⁵ See Advisory Committee Note, supra. Rule 9(b) must be applied narrowly as it was not intended to abrogate the historical role of the writ " 'as an effective and imperative remedy for detentions contrary to fundamental law.' " See Sanders, 373 U.S. at 17-18, 83 S.Ct. at 1078-1079; quoting Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963).

Abuse of the writ is an affirmative defense which must be pleaded by the respondent. Price v. Johnston, 334 U.S. 266, 291-92, 68 S.Ct. 1049, 1062-1063, 92 L.Ed. 1356 (1948). The government must make that charge with clarity and particularity in its return to the order to show cause. Id. at 292, 68 S.Ct. at 1063. "Once a particular abuse has been alleged, the prisoner has the burden of answering that allegation and of proving that he has not abused the writ." Id.; see Advisory Committee Note, supra. Implicit in this burden shifting is that the petitioner need not allege due diligence and must be given a reasonable opportunity to respond to the government's charge of abuse. Price, 334 U.S. at 292-93, 68 S.Ct. at 1063-1064; Vaughan v. Estelle, 671 F.2d 152, 153-54 (5th Cir.1982); Hilbrich v. United States, 406 F.2d 850, 852-53 (7th Cir.), cert. denied, 396 U.S. 936, 90 S.Ct. 271, 24 L.Ed.2d 236 (1969); cf. Bass v. Wainwright, 675 F.2d 1204 (11th Cir.1982) (successive petitions alleging same grounds). The Court's Advisory Committee on the Rules Governing Section 2254 Cases made this clear:

If it appears to the court after examining the petition and answer (where appropriate) that there is a high probability that the petition will be barred under either subdivision of rule 9, the court ought to afford petitioner an opportunity to explain his apparent abuse. One way of doing this is by the use of the form annexed hereto. The use of a form will ensure a full airing of the issue so that the court is in a better position to decide whether the petition should be barred. This conforms with Johnson v. Copinger, 420 F.2d 395 (4th Cir.1969), where the court stated:

[T]he petitioner is obligated to present facts demonstrating that his earlier failure to raise his claims is excusable and does not amount to an abuse of the writ. However, it is inherent in this obligation placed upon the petitioner that he must be given an opportunity to make his explanation, if he has one. If he is not afforded such an opportunity, the requirement that he satisfy the court that he has not abused the writ is meaningless. Nor do we think that a procedure which allows the imposition of a forfeiture for abuse of the writ, without allowing the petitioner an opportunity to be heard on the issue, comports with the minimum requirements of fairness.

420 F.2d at 399

Use of the recommended form will contribute to an orderly handling of habeas petitions and will contribute to the ability of the court to distinguish the excusable from the inexcusable delay or failure to assert a ground for relief in a prior petition.

Advisory Committee Note, supra.

Petitioner here was deprived of an opportunity to respond to the allegation of abuse because representation by appointed counsel was not merely ineffective, but entirely absent. Petitioner would have been better off under the circumstances had the court not appointed counsel for him. His counsel's inaction on the motion to dismiss and apparent failure even to communicate with petitioner, coupled with the lack of any notice to petitioner personally of the respondent's motion, prevented petitioner from proceeding pro se and meeting his burden under Rule 9(b). The total lack of advocacy on the part of petitioner's appointed counsel falls far short of minimum professional standards. Cf. United States ex rel. Williams v. Twomey, 510 F.2d 634, 640-41 (7th Cir.), cert. denied, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975). ⁶...