Smith v. Duckworth

• Decision Date: 23 August 1990
• Docket Number: No. 89-3205,89-3205
• Citation: 910 F.2d 1492
• Parties: James Arnold SMITH, Petitioner-Appellee, v. Jack R. DUCKWORTH, and the Indiana Attorney General, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1492

910 F.2d 1492

James Arnold SMITH, Petitioner-Appellee, v. Jack R. DUCKWORTH, and the Indiana Attorney General Respondents-Appellants.

No. 89-3205.

United States Court of Appeals Seventh Circuit.

Argued April 11, 1990.

Decided Aug. 23, 1990.

Kathryn Butler O'Neall, O'Neall & O'Neall, Remington, Ind., for petitioner-appellee.

Michael A. Schoening, Deputy Atty. Gen., Linley E. Pearson, Atty. Gen., Indianapolis, Ind., for respondents-appellants.

Before WOOD, Jr., EASTERBROOK, and KANNE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

The government appeals from the district court's grant of James Arnold Smith's petition for a writ of habeas corpus. This is a most unfortunate situation because the intervention of time now prevents a factual exploration of a critical pretrial issue, and a deserved state retrial may not be feasible.

I. BACKGROUND

On July 28, 1973, Steve Gabor was fatally shot during a robbery of his Hammond, Indiana, liquor store. For his role in the incident, Smith was convicted of one count of murder and one count of murder during the commission of a robbery. He was sentenced to life imprisonment. ¹ The facts surrounding Smith's arrest and subsequent trial are detailed in Smith v. Duckworth, 856 F.2d 909 (7th Cir.1988) ("Smith I" ). We will refer to the facts where necessary to our discussion rather than again recount them fully here.

After exhausting his state court remedies, Smith filed a pro se petition for a writ of habeas corpus. The district court denied his petition and Smith appealed. ² In his appeal, Smith contended both that his waiver of his Miranda rights was involuntary and that his confession, because it was involuntary, should not have been admitted in evidence. This court found that Smith had voluntarily waived his Miranda rights but remanded to the district court for an evidentiary hearing "on the question of the legality and duration of Smith's custody and its effect on the voluntariness of his confession." This was necessary because of an inadequate factual record and a "paucity of evidence" concerning "Smith's apparently unlawful incarceration." Smith I, 856 F.2d at 913. This court was not advised at the time of Smith I that both detectives who had questioned Smith were deceased. On remand, the district court held an evidentiary hearing on June 12, 1989. Smith testified at the hearing; his testimony was consistent with his earlier testimony at the suppression hearing in its essential respects. ³ The state presented no new evidence but instead moved for dismissal of Smith's petition under Rule 9(a) because its key witnesses--the detectives who had interrogated Smith during his thirty-day confinement--were no longer alive. Following the evidentiary hearing, the district court granted Smith's petition for a writ of habeas corpus, and the state appealed. We have jurisdiction under 28 U.S.C. Sec. 1291 and now affirm.

II. ANALYSIS

The state raises two issues in its appeal. First, the state argues that it was unduly prejudiced in its ability to respond to the allegations in Smith's petition because of Smith's delay in filing his habeas petition. Second, the state contends that there was not sufficient evidence before the district court for that court to find that Smith's confession was involuntary. We consider each of these arguments in turn.

A. Undue Prejudice

The Indiana Supreme Court affirmed Smith's conviction in 1982. 437 N.E.2d 975. Smith filed his habeas corpus petition in October 1986. The state insists that this four-year delay warrants the dismissal of Smith's petition. ⁴

Rule 9(a) of the Rules Governing Section 2254 Cases, provides:

Delayed Petitions

A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.

The Advisory Committee Note to Rule 9(a) explains that the rule "is intended to minimize abuse of the writ of habeas corpus by limiting the right to assert stale claims...." Rule 9(a) thus protects the state's legitimate interest that it will not be required, without due cause, to defend convictions that occurred years earlier. Jessup v. United States Parole Comm'n, 889 F.2d 831, 834 (9th Cir.1989). The Advisory Committee Note states that the limitation in Rule 9(a) is not a statute of limitations but rather is based on the equitable doctrine of laches. The Note states further that the permissive language contained in Rule 9(a) ("A petition may be dismissed ...") allows the court considering the petition to exercise discretion when evaluating the equities of the particular case.

It is well settled that the mere lapse of time is not a sufficient ground upon which to base a dismissal under Rule 9(a). See, e.g., Jessup, 889 F.2d at 834; Strahan v. Blackburn, 750 F.2d 438, 441 (5th Cir.), cert. denied, 471 U.S. 1138, 105 S.Ct. 2683, 86 L.Ed.2d 700 (1985); Sutton v. Lash, 576 F.2d 738 (7th Cir.1978). "The doctrine of laches requires not only unreasonable delay but also that the delay work to the detriment of the other party." Jessup, 889 F.2d at 834 (citation omitted). To establish prejudice under Rule 9(a), the state must show that the petitioner's delay in filing the habeas petition has prejudiced the state in its ability to respond. Strahan, 750 F.2d at 441. Rule 9(a) requires the state to make a particularized showing of prejudice before a habeas petition may be dismissed because of delay. Hannon v. Maschner, 845 F.2d 1553, 1555 (10th Cir.1988); Strahan, 750 F.2d at 441. If the state succeeds in proving prejudice, the burden shifts to the petitioner to disprove prejudice or to demonstrate that the delay was based on grounds that would not have been known through the petitioner's exercise of due diligence. Hannon, 845 F.2d at 1555; Strahan, 750 F.2d at 441; Rule 9(a).

The state contends that it is prejudiced because its key witnesses are unavailable to testify. Specifically, the state argues that because detectives Robert Townsell and James Mullens, who investigated and interrogated Smith in 1974, are no longer alive, ⁵ the state is unable to contest any of Smith's allegations concerning the events surrounding his interrogation during his month-long confinement. These two detectives, the state insists, are the only persons who can testify as to the custody's effect on the voluntariness of Smith's confession. ⁶

The unavailability of witnesses is clearly one of the circumstances that Rule 9(a) is intended to address. Nevertheless, the circumstances of this case weigh against dismissing Smith's petition.

It is undisputed that Smith initially visited the Hammond police station on September 17, 1974, to admit having participated in several burglaries. After he began to discuss the liquor store robbery in which Steve Gabor was killed, the police incarcerated him as a material witness. Smith was held for thirty days, finally confessing to the Gabor murder on October 17, 1974. During this time, Smith was not charged with any crime. He was not brought before a magistrate or given any opportunity to post bond or to consult with counsel. ⁷

Smith subsequently challenged the voluntariness of his confession in state court, and three suppression hearings were held between May and December of 1980. Although the suppression hearings focused on Smith's mental state at the time he confessed, the issue in those hearings was whether his confession was voluntary. The state had the opportunity during those hearings to present the evidence that it deemed relevant to the determination of the admissibility of Smith's confession. The record shows that both Townsell and Mullens testified at the suppression hearings. ⁸ While courts have found prejudice to the state where records or transcripts have been lost or destroyed during the delay, see e.g., Strahan, 750 F.2d 438, 443 (state prejudiced in responding to petitioner's allegations that material missing from trial transcript because court reporter died and notes lost); see also id. at 441 n. 4 (collecting cases), the testimony of Townsell and Mullens has been preserved in its entirety. ⁹

We therefore have difficulty in seeing how the state has been prejudiced in this instance. Detectives Townsell and Mullens were available to testify and did testify at the suppression hearings; their testimony has been preserved in the record. There is nothing to suggest that had the detectives been available to testify at the evidentiary hearing on remand, they would have supplemented the testimony they gave at the suppression hearings in a way favorable to the state.

The state at oral argument, while acknowledging that there was no statute authorizing the incarceration of a material witness, argued that Smith's confinement could have been the result of his request for some sort of protective custody--a supposition that could not be pursued, the state suggested, because Townsell and Mullens were no longer available to testify. This argument is unpersuasive. We can find no suggestion in the record, and the state initially had the opportunity to explore this possibility while the detectives were still alive, that Smith was held for reasons of his own choosing. Mere speculation of this sort does not satisfy Rule 9(a)'s requirement that the state show particularized prejudice.

We therefore conclude that the state is not entitled to a dismissal of Smith's habeas petition under Rule 9(a). Because we hold that the state has failed to make a sufficient showing of prejudice, it is unnecessary for us to determine whether Smith's delay in filing his petition was reasonable, although we note that for a significant portion of this time, he was considered to be mentally incompetent.

B. Sufficiency of the Evidence

The...