Sawyer v. Whitley, 91-3658

Decision Date10 October 1991
Docket NumberNo. 91-3658,91-3658
Citation945 F.2d 812
PartiesRobert Wayne SAWYER, Petitioner-Appellant, v. John WHITLEY, Warden, Louisiana State Penitentiary, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Sarah L. Ottinger, Nicholas T. Trenticosta, R. Neal Walker, New Orleans, La., for Robert W. Sawyer.

Dorothy Ann Pendergast, Terry M. Boudreaux, Asst. Dist. Atty., Gretna, La., Annette Marie Viator, La. Dept. of Corr., Baton Rouge, La., for John P. Whitley.

Dana E. Parker, William C. Zapalac, Asst. Attys. Gen., Austin, Tex., for amicus State of Tex.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before KING, DAVIS and SMITH, Circuit Judges.

KING, Circuit Judge:

After granting Robert Sawyer a certificate of probable cause and a stay of execution, we review the merits of his second federal habeas petition. Sawyer presents one successive claim and two abusive claims in this second petition. 1 He repeats the claim that his counsel was ineffective in failing to present at the sentencing phase of his capital murder trial evidence of his mental impairment. We dismiss this successive claim because Sawyer fails to show that he is "actually innocent" of the death penalty. Sawyer contends for the first time in his second petition (1) that he was incompetent to stand trial and (2) that the State withheld vital exculpatory evidence against him. We also dismiss these abusive claims because we find that Sawyer neither establishes cause and prejudice nor shows that he is actually innocent of his conviction or sentence. We affirm the district court's judgment dismissing Sawyer's request for habeas corpus relief and vacate his stay of execution.


A Louisiana state jury condemned Robert Sawyer to death in 1980 for the murder of Frances Arwood, 2 who was staying with Sawyer and Cynthia Shano, Sawyer's fiancee, and was helping to care for Shano's children. After a night of drinking, Sawyer and Shano returned to their home with an acquaintance, Charles Lane. Sawyer argued with Arwood and accused her of giving pills to one of Shano's children. The argument escalated to violence. Sawyer and Lane beat Arwood, scalded her with boiling water, and finally burned her scalded and unconscious body with lighter fluid. 3 She died several weeks later as a result of this vicious attack.

A state trial court convicted Sawyer of capital murder, and the Louisiana Supreme Court affirmed Sawyer's conviction and sentence on direct appeal. See State v. Sawyer, 422 So.2d 95 (La.1982). The United States Supreme Court vacated and remanded to the Louisiana Supreme Court for consideration of the sentence under Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). See Sawyer v. Louisiana, 463 U.S. 1223, 103 S.Ct. 3567, 77 L.Ed.2d 1407 (1983). On remand, the Louisiana Supreme Court again affirmed the conviction and sentence. See State v. Sawyer, 442 So.2d 1136 (La.1983). Sawyer filed a petition for state post-conviction review, and after an evidentiary hearing, the state trial court denied relief. Sawyer then sought a writ of habeas corpus in the Louisiana Supreme Court, which denied his application without written opinion. See Sawyer v. Maggio, 479 So.2d 360 (La.1985).

In 1986, Sawyer filed his first petition for federal habeas corpus relief, raising eighteen claims, including ineffective assistance of counsel, all of which the court addressed on the merits and denied. A panel of this court affirmed that denial on appeal. See Sawyer v. Butler, 848 F.2d 582 (5th Cir.1988). 4 We then granted rehearing en banc and upheld the panel's opinion. See Sawyer v. Butler, 881 F.2d 1273 (5th Cir.1989) (en banc ), cert. granted, 493 U.S. 1042, 110 S.Ct. 835, 107 L.Ed.2d 830 (1990). The United States Supreme Court affirmed. 5 See Sawyer v. Smith, --- U.S. ----, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990).

Sawyer next filed a second state post-conviction petition. On October 5, 1990, the state trial court summarily denied Sawyer's application as repetitive and without merit. The Louisiana Supreme Court denied Sawyer's supervisory writ without opinion on October 7, 1990.

On October 8, 1990, Sawyer filed his second petition for federal habeas corpus relief. The district court granted a stay of execution, and, following an evidentiary hearing, rejected one of Sawyer's claims on the merits and the remaining claims as barred under Rule 9(b) of the Rules Governing Section 2254 Cases, 772 F.Supp. 297. The district court also vacated its stay of execution and denied a certificate of probable cause to appeal. Sawyer applied to this court for a certificate of probable cause. We granted the certificate on the ground that his case presented a question which is debatable among jurists of reason and has not yet been fully addressed in this circuit: what it means to be "actually innocent" of the death penalty in determining whether to entertain a successive claim or an abusive claim that fails to meet the cause and prejudice requirement.

A. Standard of Review

Because this is Sawyer's second federal habeas petition, we first must determine whether we can reach the merits of his claims. See 28 U.S.C. § 2244(b) (1988); Rule 9(b) of Rules Governing Section 2254 Cases (constraining the ability of federal courts to entertain the merits of subsequent or successive claims). When a condemned prisoner presents successive petitions for a writ of habeas corpus, the state has a legitimate interest in preventing the prisoner from abusing the writ and using successive petitions as a mere delaying tactic. If the petitioner raises a claim that a federal court has already considered in a previous habeas corpus petition, we may review the merits of the successive claim only when "the prisoner supplements his constitutional claim with a colorable showing of factual innocence." Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986) (plurality opinion); see also McCleskey v. Zant, --- U.S. ----, ----, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991); Williams v. Lynaugh 837 F.2d 1294, 1295 (5th Cir.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3260, 106 L.Ed.2d 605 (1989).

If the petitioner raises a new claim in a second or successive habeas petition, we may review that claim on the merits only if the petitioner's failure to raise the claim in the prior petition was not due to inexcusable neglect. See Moore v. Butler, 819 F.2d 517, 519 (5th Cir.), cert. denied, 482 U.S. 920, 107 S.Ct. 3201, 96 L.Ed.2d 688 (1987) (quoting Jones v. Estelle, 722 F.2d 159, 163 (5th Cir.1983) (en banc ), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984)). The state bears the burden of pleading abuse of the writ. See id. Once the state has met its burden of pleading, the petitioner must disprove that he has abused the writ by showing cause for failure to bring the claim in the first federal habeas petition, and actual prejudice that results from the errors that gave rise to the claim. McCleskey, 111 S.Ct. at 1470.

In order to demonstrate cause, the petitioner must show that the failure to raise the claim in his first petition was due to some objective external factor such as interference by officials. Id. (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)). The court must examine "whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process." Id. --- U.S. at ----, 111 S.Ct. at 1472. "Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim." Id. Prejudice requires a showing of actual prejudice amounting to a denial of fundamental fairness. Carrier, 477 U.S. at 494, 106 S.Ct. at 2648.

A court need not consider whether there is actual prejudice to the petitioner when he fails to show cause. McCleskey, --- U.S. at ----, 111 S.Ct. at 1474 (citing Carrier, 477 U.S. at 494, 106 S.Ct. at 2648). "If the petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim." Id. --- U.S. at ----, 111 S.Ct. at 1470. A "fundamental miscarriage" implies that the "constitutional violation has probably resulted in the conviction of one who is actually innocent." Carrier, 477 U.S. at 496, 106 S.Ct. at 2649. McCleskey harmonized the Kuhlmann "colorable showing of factual innocence" requirement with the "actual innocence" that a petitioner must show to avoid the cause and prejudice requirement for abusive claims. Thus, a showing of actual innocence triggers our authority to consider the merits of abusive claims that fail the cause and prejudice requirement as well as successive claims.

B. The Actual Innocence Exception

The Supreme Court first considered actual innocence as a limitation on hearing successive federal habeas petitions in Kuhlmann, which sought to clarify this "ends of justice" requirement implicit in 28 U.S.C. § 2244(b), 6 which restricts a federal court's authority to review the merits of a successive claim. In balancing a prisoner's interest in testing the constitutionality of his confinement against the state's interest in the administration of its criminal statutes, and particularly in the finality of its judicial decisions, a four-Justice plurality determined that the ends of justice required "federal courts to entertain such petitions only where the prisoner supplements his claim with a colorable showing of factual innocence." The Kuhlmann plurality drew from Judge Friendly's seminal article on federal habeas review 7 and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in...

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