Small v. Endicott

• Decision Date: 22 June 1993
• Docket Number: No. 92-2201,92-2201
• Citation: 998 F.2d 411
• Parties: James SMALL, Jr., Petitioner-Appellant, v. Superintendent Jeff ENDICOTT and Kenosha County Circuit Court, 1 Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 411

998 F.2d 411

James SMALL, Jr., Petitioner-Appellant, v. Superintendent Jeff ENDICOTT and Kenosha County Circuit

Court, ¹ Respondents-Appellees.

No. 92-2201.

United States Court of Appeals, Seventh Circuit.

Argued April 21, 1993.

Decided June 22, 1993.

Robert J. Palmer, Jeanine Sorrentino (argued), Judith Lenger (argued), May, Oberfell & Lorber, South Bend, IN, for petitioner-appellant.

William L. Gansner, Asst. Atty. Gen., Wisconsin Dept. of Justice, Madison, WI, Robert J. Jambois, Kenosha County Dist. Atty., Kenosha, WI, for respondents-appellees.

Before CUMMINGS and FLAUM, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

FLAUM, Circuit Judge.

James Lewis Small, Jr. appeals from the district court's summary dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.

I

Small currently is serving a sentence of 35 years at the Columbia Correctional Institute in Waupun, Wisconsin. In 1982 he was convicted of two counts of aiding and abetting in an armed robbery, as well as a count each for false imprisonment, kidnapping, and aggravated battery. Since then he has challenged his convictions on direct and collateral review at least five times in the Wisconsin state courts.

In this instance, Small attacks his confinement on six grounds. The district court summarily dismissed his petition with prejudice under the authority of Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. On appeal, Small argues that the district court judge erroneously dismissed three of the six claims, which allege that: (1) his constitutional rights under the Sixth and Fourteenth Amendments were violated because he was not present at a hearing on July 21, 1982; (2) he was denied the right under the Sixth Amendment to effective assistance of counsel; (3) the trial court's inadequate instructions to the jury regarding an eyewitness identification violated his due process rights under the Fourteenth Amendment. Bearing in mind that Small is not arguing that he is entitled to the writ, but instead that we remand the case for the district court to reconsider his petition in accordance with the appropriate legal standards, we consider each argument in turn.

II

In our review of a district court's decision to grant or to deny a petition for a writ of habeas corpus, we consider all questions of law de novo. Montgomery v. Greer, 956 F.2d 677, 680 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 460, 121 L.Ed.2d 368 (1992). Guided by that standard, we may affirm the ruling on any basis finding support in the record, even if the district court relied on the wrong grounds or reasoning in dismissing the petition. See Helvering v. Gowran, 302 U.S. 238, 245-46, 58 S.Ct. 154, 158, 82 L.Ed. 224 (1937); United States v. Thomas, 934 F.2d 840, 843 (7th Cir.1991).

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts authorizes a district court to conduct an initial screening of petitions and to dismiss unworthy requests for habeas corpus relief. Johnson v. Gramley, 929 F.2d 350 (7th Cir.1991). When the face of the petition plus any annexed exhibits plainly show that the petitioner is not entitled to relief, the district court can summarily dispose of the matter without either examining the transcripts and record of the state court proceedings or ordering the state to respond. See Rule 4; 28 U.S.C. § 2243; Davis v. Franzen, 671 F.2d 1056, 1057 (7th Cir.1982).

In determining whether to dismiss summarily under Rule 4, the district court need not examine the trial records if two conditions are satisfied: (1) the state court opinions summarize the trial testimony or relevant facts; and (2) the petitioner does not quarrel with that summary and instead contends only that the trier of fact should have reached a different conclusion. Davis, 671 F.2d at 1057; Montes v. Jenkins, 581 F.2d 609, 612 (7th Cir.1978). It makes little difference whether those conditions obtain, however, if the factual allegations, accepted as true, fail to show that the petitioner is being held in custody in violation of the Constitution or laws of the United States. Davis, 671 F.2d at 1057. And just as the district court can dismiss a petition that raises a legal theory that is indisputably without merit, so too can it summarily dismiss one containing factual allegations that are "palpably incredible" or "patently frivolous or false". Blackledge v. Allison, 431 U.S. 63, 76, 97 S.Ct. 1621, 1630, 52 L.Ed.2d 136 (1977) (citations omitted).

In short, Rule 4 enables the district court to dismiss a petition summarily, without reviewing the record at all, if it determines that the petition and any attached exhibits either fail to state a claim or are factually frivolous. Even if the petition clears those hurdles, the district court still need not independently review the record so long as the petitioner does not dispute that the facts reported in the state court opinions faithfully and accurately reflect the record. See generally Davis, 671 F.2d at 1057.

A. Right to be present at hearing of July 21, 1982

The district court summarily dismissed Small's first claim, finding that he had waived his constitutional right to be present at a state court hearing on July 21, 1982. This ground failed to state a claim, held the court, because "the record" reflects that Small's attorney waived his right to be present at what was primarily a scheduling hearing where the court made no adverse rulings. While we agree with the district court's conclusion that this ground of Small's petition failed to state a claim, we arrive at that result by a slightly different route.

"The record" to which the district court refers apparently is the collection of state court decisions resulting from Small's direct and collateral appeals. But the second prong of Davis precluded the district court's reliance on the state courts' rendition of the facts because Small may indeed be challenging the findings of the state courts. He disputes their factual findings that he intentionally and knowingly waived his right to appear at the hearing, which he refuses to characterize as a benign scheduling conference. Once Small challenged the facts as reported by the state courts, the district court could not base its denial of relief solely on the state courts' view of events. Cf. United States ex rel. Jones v. Franzen, 676 F.2d 261, 265 (7th Cir.1982). Generally, a petitioner's dispute with state court factual findings in opinions triggers the district court's duty to conduct an independent review of the state court record. But Small's quarrel may not be based solely upon a different view of the facts. It may well be that his differences with the state courts' view of events cross into the realm of legal questions and conclusions. If that is the case, then he is contending only that the state court should have reached a different conclusion from the one he urges--not enough under Davis to save his petition from summary dismissal.

We need not decide how to characterize Small's disagreement with the state court summary, however, if the facts alleged in the petition either fail to state a claim or are factually frivolous. From the slender record before this court we cannot conclude that it is "palpably incredible", Blackledge, 431 U.S. at 76, 97 S.Ct. at 1630, that Small did not knowingly and intelligently waive his right to be present at the hearing on July 21, 1982. But did he have an absolute right to be there at all? We think not. Small's factual allegations, even if taken as true, fail to state a cognizable claim that he is being held in violation of the Constitution or laws of the United States.

Recently we have had occasion to consider the well-established principles governing the right of someone accused of a criminal offense to be present at his trial. See United States v. Watkins, 983 F.2d 1413, 1417-18 (7th Cir.1993) (reconciling the right of accused to be present at proceeding and the need for court to adjudicate dispassionately and with reasonable degree of dispatch). That basic right derives from the Confrontation Clause of the Sixth Amendment. ² Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970). The right of presence also attaches to situations in which the defendant is not confronting witnesses against him. In that instance, the Due Process Clauses of both the Fifth and Fourteenth Amendments clearly require "a defendant be allowed to be present 'to the extent that a fair and just hearing would be thwarted by his absence.' " Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934)). See also United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (per curiam) (A defendant in criminal case has a "due process right to be present at a proceeding 'whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge....' ") (quoting Snyder, 291 U.S. at 105-06, 54 S.Ct. at 332). When evaluating whether a defendant's exclusion from a trial proceeding has eroded his constitutional rights, courts must view the absence in light of the entire record. Id. 470 U.S. at 526-27, 105 S.Ct. at 1484; United States v. Widgery, 778 F.2d 325, 330 (7th Cir.1985).

From Snyder, Gagnon, and Stincer emerges the rule that a defendant's right to a fair trial requires his presence at all important steps in the criminal proceeding. Although what qualifies as an important stage of the proceeding will vary from case to case, a defendant need not be present at a pretrial hearing where only preliminary matters of a procedural nature are at stake. Presence is not required if it "would be useless, or the benefit but a shadow." Snyder, 291 U.S. at 106-07, 54 S.Ct. at 332 (Cardozo, J.). See also United...