Thompson v. Bell

• Decision Date: 23 June 2004
• Docket Number: No. 00-5516.,00-5516.
• Citation: 373 F.3d 688
• Parties: Gregory THOMPSON, Petitioner-Appellant, v. Ricky BELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

373 F.3d 688

Gregory THOMPSON, Petitioner-Appellant, v. Ricky BELL, Warden, Respondent-Appellee.

No. 00-5516.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: June 23, 2004.

Stephen M. Kissinger, Dana C. Hansen Chavis, Federal Defender Services, Knoxville, TN, for Petitioner-Appellant.

Glenn R. Pruden, Asst. Atty. General, Jennifer L. Smith, Asst. Atty., Nashville, TN, for Respondent-Appellee.

Before SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which CLAY, J., joined. SUHRHEINRICH, J. (pp. 692-742), delivered a separate opinion concurring in part and dissenting in part.

OPINION

MOORE, Circuit Judge.

Eighteen months ago, this panel in a split decision producing three different opinions affirmed the decision of the district court granting summary judgment to respondent in this habeas corpus action. Judge Suhrheinrich later conducted sua sponte a second, thorough review of the record and came to the conclusion that the facts as adduced in deposition testimony not part of the district court record supported the granting of the writ. See infra (Suhrheinrich, J., concurring). Upon reviewing the deposition of Dr. Faye Sultan, and investigating the procedural complications of this case, it is clear that this extremely probative testimony requires that we vacate the district court's grant of summary judgment in favor of respondent.

Judge Suhrheinrich summarizes most effectively the Sultan deposition and its value in assessing Gregory Thompson's mental state at the time of the crime. Where his opinion goes too far is in its accusations of fraud on the court; while his explanation for the omission of the Sultan deposition from the official record before the court is possible in the narrowest sense, the power of this court should not be used to make such accusations without more definite proof than the factual record of this case reveals.

Dr. Sultan's deposition was taken by trial counsel for respondent, but was not included with the evidence submitted as part of Bell's motion for summary judgment. Slightly more than one year later, contemporaneous with the preparation of this appeal, appellate habeas counsel made a Rule 60(b) motion in the district court asking to include the Sultan deposition as part of the record. At the same time, Thompson's counsel submitted that deposition to this court as part of his motion to hold this appeal in abeyance during the pendency of the Rule 60(b) motion. Applying the principle of Occam's razor, we conclude that more than likely, a genuine mistake was made, one which was not realized until a different attorney looked at the case. To conclude otherwise is to disbelieve sworn testimony by an officer of the court, and to assume that habeas counsel conspired to conceal evidence beneficial to their client, for no discernible reason — evidence loses power, rather than gains it, by being revealed on the "eve of execution" in a second habeas petition. Reading Judge Suhrheinrich's opinion, one might conclude that this court had only recently unearthed the Sultan deposition, when in fact it was submitted to the panel prior to oral argument as part of the abeyance motion.

We did not consider it, however, in rendering our decision, believing ourselves to be bound by the record created in the district court. Upon reflection, and after reviewing Judge Suhrheinrich's forceful assessment of the probity of the Sultan deposition, we believe it is appropriate to use our inherent equitable powers to expand the record on appeal to consider the deposition. Ordinarily, a court of appeals should only consider evidence made part of the district court record. Where through error or accident material matters are omitted or misstated, Federal Rule of Appellate Procedure 10(e) allows correction of the appellate record to include the corrected material. See Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1012 (6th Cir.2003). While some circuit courts have held that Rule 10(e) allows the inclusion of material the district court did not consider, see In re Capital Cities/ABC, Inc.'s Appl. for Access to Sealed Trs., 913 F.2d 89, 97 (3d Cir.1990) (citing inconsistent circuit precedent); United States v. Aulet, 618 F.2d 182, 187 (2d Cir.1980), the rule in this circuit has consistently been that Rule 10(e) does not allow such inclusion. See, e.g., Inland Bulk, 332 F.3d at 1012; S & E Shipping Corp. v. Chesapeake & Ohio Ry. Co., 678 F.2d 636, 641 (6th Cir.1982). We adhere to our previous interpretation that Rule 10(e) does not allow inclusion in the appellate record of material that the district court did not consider.

Although Rule 10(e) is thus unavailable, we recognize that a number of our sister circuits have held that the courts of appeals have the inherent equitable power to supplement the record on appeal, where the interests of justice require. See United States v. Kennedy, 225 F.3d 1187, 1192 (10th Cir.2000) ("[U]nder some circumstances we have an inherent equitable power to supplement the record on appeal. However, we conclude the present case" does not present those circumstances.); Ross v. Kemp, 785 F.2d 1467, 1474 (11th Cir.1986) (relying on Dickerson, infra, and exploring circumstances under which exercise of that power is appropriate); Gibson v. Blackburn, 744 F.2d 403, 405 n. 3 (5th Cir.1984) ("Although a court of appeals will not ordinarily enlarge the record to include material not before the district court, it is clear that the authority to do so exists."); Dickerson v. Alabama, 667 F.2d 1364, 1368 (11th Cir.1982) (relying on court's inherent equitable powers to supplement the record in habeas case); Turk v. United States, 429 F.2d 1327, 1329 (8th Cir.1970) ("[I]n the interest of justice, this court may order the record enlarged."); Gatewood v. United States, 209 F.2d 789, 792-93 & n. 5 (D.C.Cir.1953) (sua sponte ordering preparation of transcript for record "in the interest of both parties, and of the due administration of justice"); see also 16A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3956.4, at 349-51 (3d ed. 1999 & Supp.2003) ("In special circumstances, however, a court of appeals may permit supplementation of the record to add material not presented to the district court."); 20 Moore's Federal Practice, § 310.10[5] [f], at 310-19 (3d ed. 2000) ("In extraordinary situations, the circuit court may consider material not presented to the district court when it believes the interests of justice are at stake."). Although recent Sixth Circuit cases indicate that we have not yet "embraced the notion that the record can be supplemented under an appellate court's equitable authority," see Inland Bulk, 332 F.3d at 1012, in at least one earlier state habeas case we have so supplemented the record, citing to Dickerson, 667 F.2d at 1367. See Prather v. Rees, 822 F.2d 1418, 1420 n. 1 (6th Cir.1987) ("Although the parties did not provide the court with copies of the state court briefs, this court may supplement the record when necessary."); see also Adams v. Holland, 330 F.3d 398, 405-06 (6th Cir.2003) (recognizing exception to Rule 10(e) in habeas cases: "where substantial portions of [the state trial transcript] were omitted before the District Court, a habeas case should be remanded to the District Court for consideration in light of the full record."). Because the evidence here was apparently negligently omitted, because the evidence is so probative of Thompson's mental state at the time of the crime, because there is no surprise to respondent as it was his counsel who took the deposition, and because this is a capital case, we believe that the circumstances of this case merit consideration of the Sultan deposition pursuant to our equitable power to supplement the record on appeal, despite the omission of the deposition from the District Court record. We therefore vacate the grant of summary judgment, and remand the case to the District Court for a full evidentiary hearing.

It remains to be explained the source of our power to so reconsider our earlier opinion, as we do not join in Judge Suhrheinrich's allegation of fraud on the court. Instead, we rely on our inherent power to reconsider our opinion prior to the issuance of the mandate, which has not yet issued in this case. Although a court of appeals should withdraw an already-issued mandate only to prevent a miscarriage of justice, see Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), at least two of our sister circuits have reconsidered opinions where the mandate has not yet issued. See Wilson v. Ozmint, 357 F.3d 461, 464 (4th Cir.2004) ("The mandate of the court has not yet issued in this case, and, therefore, we may, at our discretion, `amend what we previously decided ....'") (quoting Alphin v. Henson, 552 F.2d 1033, 1035 (4th Cir.1977)); First Gib. Bank v. Morales, 42 F.3d 895, 898 (5th Cir.1995) (relying on Alphin, 552 F.2d at 1035, to reconsider decision where mandate had not yet issued). We therefore rely on our inherent power over a case until our mandate issues in reconsidering our opinion in this case.

The judgment of the district court is therefore VACATED, and the case is REMANDED for further proceedings not inconsistent with this opinion. Thompson's execution is also STAYED for 180 days to permit the district court to proceed.

SUHRHEINRICH, Circuit Judge, concurring in part and dissenting in part.

I. Introduction

Petitioner-Appellant Gregory Thompson ("Thompson" or "Petitioner") was convicted of first degree murder and sentenced to death by the State of Tennessee. In a previous decision, this Court affirmed the district court's denial of his request for a writ of habeas corpus. See Thompson v. Bell, 315 F.3d 566 (6th Cir.2003), cert. denied, 540 U.S. 1051, 124 S.Ct. 804, 157 L.Ed.2d 701 (2003). The Supreme Court denied Thompson's petition for writ of certiorari. On...