Thompson v. Greene

Decision Date25 October 2005
Docket NumberNo. 03-7401.,03-7401.
Citation427 F.3d 263
PartiesRoland A. THOMPSON, Petitioner-Appellant, v. Kathleen GREENE; Attorney General for the State of Maryland, Respondents-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Frederick Carl Crombie, Arnold & Porter, Washington, D.C., for Appellant. Ann Norman Bosse, Assistant Attorney General, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellees.

ON BRIEF:

J. Joseph Curran, Jr., Attorney General of Maryland, Baltimore, Maryland, for Appellees.

Before LUTTIG, KING, and SHEDD, Circuit Judges.

Vacated and remanded by published opinion. Judge KING wrote the opinion, in which Judge LUTTIG and Judge SHEDD joined.

KING, Circuit Judge:

Roland A. Thompson appeals the district court's July 2003 dismissal of his petition for habeas corpus relief. Thompson v. Conroy, No. 02-2002 (D.Md. July 31, 2003) (the "Opinion"). In that proceeding in the District of Maryland, the Attorney General of Maryland, as counsel for the respondents and as a named respondent (along with Kathleen Greene, the Acting Warden of Maryland's Eastern Correctional Institution), failed to serve Thompson with the exhibits supporting the Attorney General's answer to the petition (the "Exhibits"). The district court, by its Opinion dismissing the petition, declined to compel such service. Opinion at 7-8. We granted Thompson a certificate of appealability ("COA") on whether the lack of service contravened the Due Process and Equal Protection Clauses of the Fourteenth Amendment. As explained below, the Attorney General's failure to serve the Exhibits violated the procedural rules governing service of such exhibits in habeas corpus proceedings. As a result, we vacate and remand without reaching the constitutional issues.

I.

Thompson was convicted by a Maryland state court jury in August 1998 on two counts of second-degree murder and two counts of using a handgun in the commission of a felony.1 On October 23, 1998, he was sentenced to sixty years in prison. Thompson appealed his conviction to Maryland's Court of Special Appeals, which affirmed on June 16, 1999. Hackney v. Maryland, No. 1676 (Md.Ct.Spec.App.1999). On September 14, 1999, the Court of Appeals of Maryland denied certiorari. Thompson v. Maryland, 356 Md. 18, 736 A.2d 1066 (1999). Thompson filed a petition for state post-conviction relief in the Circuit Court for Baltimore City on June 19, 2000. On December 15, 2000, following an evidentiary hearing, that petition was denied. Thompson v. Maryland, No. 198022021-22 (Md.Cir.Ct.2000). On April 15, 2002, Thompson's application for leave to appeal the circuit court's ruling was denied by the Court of Special Appeals. Thompson v. Maryland, No. 2820 (Md.Ct.Spec.App.2002).

On June 13, 2002, proceeding pro se, Thompson filed a petition for habeas corpus relief, pursuant to 28 U.S.C. § 2254, in the District of Maryland. He alleged multiple constitutional errors: (1) that his trial counsel had been ineffective for (a) failing to object to the introduction of "other crimes" evidence and (b) failing to move for a separate trial from Thompson's co-defendant; (2) that he had been denied an impartial jury because a juror was asleep during the presentation of evidence; and (3) that the trial court erred by (a) not conducting separate trials of him and his co-defendant, (b) allowing the introduction of other crimes evidence, and (c) permitting the jury to review evidentiary videotapes during its deliberations in the presence of the court's law clerk. On July 31, 2002, in response to Thompson's petition, the district court issued an Order to Show Cause, directing the Attorney General to answer the petition and "to furnish with [the] answer copies of all relevant opinions, transcripts and materials."

On November 4, 2002, the Attorney General filed an answer to Thompson's petition containing twenty Exhibits (collectively, the "Answer").2 He served the text of his Answer on Thompson, but failed to serve the Exhibits, which included trial and post-conviction hearing transcripts, the parties' state court briefs, and various state court opinions. In the Answer's fifty-two page text, the Attorney General relied on the Exhibits for his contentions on why Thompson was not entitled to habeas corpus relief, devoting more than thirty pages to quotations from them. In serving the Answer's text on Thompson, the Attorney General included only an "index" of the various Exhibits.

On November 25, 2002, Thompson filed a pro se "Motion to Object to Respondent's Answers to Petition for Writ of Habeas Corpus/Order to Show Cause and Request for Production of Documents." He contended therein that he was entitled to be served with the Exhibits and that he could not adequately respond to the Answer without them. On December 4, 2002, the district court ordered Thompson to respond to the Attorney General's assertion that certain of his habeas corpus claims had been procedurally defaulted, but it did not authorize Thompson to address the Answer's contentions on the merits of his claims. The court also noted Thompson's objection to the Attorney General's failure to serve the Exhibits and held the issue in "abeyance." On February 5, 2003, Thompson filed a limited response on the procedural default issue and again asserted that his ability to respond to the Answer was materially hindered by the Attorney General's failure and refusal to serve the Exhibits.

In opposing Thompson's request for the Exhibits, the Attorney General informed the district court that, pursuant to his office policy, he does not serve habeas corpus petitioners with the exhibits to an answer if there are five or more such exhibits. In that event, the exhibits are filed with the court but not served on the petitioner. The Attorney General contended that neither the Rules Governing Section 2254 Cases in the United States District Courts (the "Habeas Rules"), nor any other applicable legal authority, requires service of such exhibits. See 28 U.S.C. foll. § 2254. He further asserted that serving habeas corpus petitioners with exhibits was a burdensome endeavor and that, in order to receive the Exhibits, Thompson was first obliged to demonstrate to the court a particularized need for them.

On July 31, 2003, the district court issued its Opinion dismissing Thompson's § 2254 petition. The court ruled that certain of Thompson's substantive claims were without merit while others had been procedurally defaulted.3 In so ruling, the court relied heavily on the Exhibits, including evidence reflected in transcripts that were neither signed nor certified. In a part of the Opinion entitled "Discovery Matters," the court denied Thompson's request for the Exhibits, reasoning that they were "not necessary in explaining why [procedural] default may have occurred." Opinion at 7. The court observed that Habeas Rule 5 did not contemplate a "reply" by Thompson to the Answer, and there was "no reason to believe that `exceptional circumstances' exist to require yet another round of briefing in this case." Id. at 7-8.

Still proceeding pro se, Thompson timely noted an appeal to this Court and applied to the district court for a COA on both the merits of his petition and the Attorney General's failure to serve the Exhibits. He asserted that the Attorney General's failure to serve the Exhibits and the court's denial of his request for them "unconstitutionally infringed upon his due process rights." Thompson also contended that, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), the court was required to notify him that the Exhibits would be used to decide the merits of his claims, and to provide him an opportunity to rebut them. On September 4, 2003, the district court denied his request for a COA. Thompson v. Conroy, No. 02-2002 (D.Md.2003).

II.

On May 3, 2004, we granted Thompson a COA on the issue of "whether the Maryland Attorney General has a constitutional procedural due process obligation to serve a habeas petitioner with the exhibits used to support its Answer." Thereafter, on May 26, 2004, we appointed counsel to represent Thompson on appeal. On September 2, 2004, we expanded the COA to include Thompson's claim that the Attorney General's policy on service of such exhibits contravenes the Equal Protection Clause of the Fourteenth Amendment.

We possess jurisdiction in this appeal pursuant to the COA. See 28 U.S.C. § 2253(c)(1)(A). Such a COA is issued only when a petition for habeas corpus relief has made a substantial showing of the denial of a constitutional right. Id. § 2253(c)(2). Once an appeal is properly before us, however, we are obliged to resolve any non-constitutional procedural matters first, because a reviewing court should "`not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.'" Slack v. McDaniel, 529 U.S. 473, 485, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)); see also Reid v. Angelone, 369 F.3d 363, 372 n. 5 (4th Cir.2004) (recognizing that court may grant COA "and then affirm the denial of habeas relief on procedural grounds").

In conducting our analysis, we review de novo the legal rulings of the district court. Rouse v. Lee, 339 F.3d 238, 244 (4th Cir.2003). Pursuant to the COA issued in this matter, we review only the district court's ruling on the Attorney General's failure to serve the Exhibits, and thus we do not assess the merits of Thompson's petition. Because we resolve this appeal on non-constitutional grounds, we need not reach Thompson's constitutional claims.

III.

At issue in this appeal is whether the Attorney General was obliged to serve Thompson with the Exhibits contained in the Answer. As we have pointed out, when serving an answer on a habeas corpus petitione...

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