Small v. Endicott, No. 92-2201

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUMMINGS and FLAUM, Circuit Judges, and WOOD, Jr.; FLAUM
Citation998 F.2d 411
PartiesJames SMALL, Jr., Petitioner-Appellant, v. Superintendent Jeff ENDICOTT and Kenosha County Circuit Court, 1 Respondents-Appellees.
Docket NumberNo. 92-2201
Decision Date22 June 1993

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.

Page 413

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

Page 414

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

Page 415

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.

...

To continue reading

Request your trial
1284 practice notes
  • Barker v. Keeley, Civil Action 3:20-00202
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • November 19, 2020
    ...Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). In other words, a court may not construct legal argument for a plaintiff. Small v. Endicott, 998 F.2d 411 (7th Cir. 1993). Finally, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings ......
  • Crum v. Young, Civil Action 5:20-00655
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • May 18, 2021
    ...Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). In other words, a court may not construct legal argument for a plaintiff. Small v. Endicott, 998 F.2d 411 (7th Cir.1993). Finally, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings t......
  • Wilson v. Braham, C/A No. 6:15-4835-MGL-TER
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • February 29, 2016
    ...never presented, Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999), construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411 (7th Cir. 1993), or conjure up questions never squarely presented to the to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4t......
  • Scott v. Ozmint, Civil Action No. 9:06-1353-HFF-GCK.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • December 14, 2006
    ...v. Hargett, 174 F.3d 1128 (10th Cir.1999). Likewise, a court may not construct the plaintiffs legal arguments for him (Small v. Endicott, 998 F.2d 411 (7th Cir.1993)) or "conjure up questions never squarely presented" to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 ......
  • Request a trial to view additional results
1335 cases
  • Thomas v. Colvin, C/A: 2:11-2066-DCN-BHH
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 6, 2011
    ...Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir......
  • Lucas v. Allen, Case No. 3:14-cv-29289
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • March 16, 2015
    ...presented, Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998), develop the plaintiff's legal theories for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4t......
  • Odom v. Colvin, Civil Action No. 8:13-cv-02878-TMC-JDA
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • January 30, 2015
    ...v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 ......
  • Lane v. Francis, Civil Action No. 5:19-00176
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • June 14, 2019
    ...Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). In other words, a court may not construct legal argument for a plaintiff. Small v. Endicott, 998 F.2d 411 (7th Cir.1993). Finally, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT