Walker v. Lockhart

• Decision Date: 13 June 1984
• Docket Number: No. 81-1700,81-1700
• Citation: 726 F.2d 1238
• Parties: 16 Fed. R. Evid. Serv. 105 James Dean WALKER, Appellant, v. A.L. LOCKHART, Superintendent of the Arkansas Department of Corrections, Appellee. (habeas).
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1238

726 F.2d 1238

16 Fed. R. Evid. Serv. 105

James Dean WALKER, Appellant, v. A.L. LOCKHART, Superintendent of the Arkansas Department of Corrections, Appellee.

No. 81-1700 (habeas).

United States Court of Appeals Eighth Circuit.

Submitted Nov. 29, 1983.

Decided Jan. 18, 1984.

Mandate Recalled June 13, 1984.

Bill Bristow, Jonesboro, Ark., for appellant.

Theodore Holder, Little Rock, Ark., for appellee.

Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG and BOWMAN, Circuit Judges, en banc.

JOHN R. GIBSON, Circuit Judge.

James Dean Walker, convicted of murder arising out of an incident in 1963, again files a petition for habeas corpus. The district court ¹ denied the writ, hearing evidence on only a portion of Walker's claims and refusing to hear additional evidence on claims earlier asserted. Walker contends that, under the guidelines established in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), for successive habeas petitions, the district court erred in denying reconsideration of his claim of bias of the state trial judge. We affirm the orders of the district court denying the writ of habeas corpus.

On the night of April 15, 1963, defendant Walker and a companion, Russell Freeman Kumpe, were in the company of Mary Louise Roberts and Linda Ford at the South Main Business Men's Club. Following an altercation in which another patron was accidentally shot, Walker and Kumpe fled the scene as did the two women. Ford accompanied the two men in their Oldsmobile, while Roberts followed in a cab. Alderman, the cab driver, upon inquiry of Roberts, verified that the men were involved in the shooting at the club. He notified his dispatcher who instructed him to follow the Oldsmobile until the police arrived. Alderman, however, was unable to keep pace with the Oldsmobile as it proceeded into North Little Rock, Arkansas, but another cab driven by Thomas Short took up the pursuit with the Alderman cab continuing to follow.

North Little Rock, Arkansas Police Officers Barentine and Vaughan ² were ordered to give pursuit, which they did in separate cars. Officer Barentine overtook and stopped the Oldsmobile, and parked his car behind it. Officer Vaughan arrived immediately thereafter and parked his car more in the center of the road. The cabs driven by Short and Alderman arrived, parking on the opposite side of the highway. Officer Barentine stepped to the front of his police car and ordered Kumpe to get out of the car and come back to his police car, and then proceeded to search him. Officer Vaughan approached the Oldsmobile on the passenger side of the car. There was an exchange of gunfire, as a result of which Walker was shot five times and Officer Vaughan was shot one time. Linda Ford was seated in the middle of the front seat next to Walker, who was sitting by the right door. Ford later testified that Walker fired the first shot. She heard the gunshot Officer Vaughan was found lying near the front door of the Oldsmobile, and died within a short time before he could make a statement. Walker was also found lying outside the Oldsmobile, holding a fully loaded snub-nosed pistol in his hand. Underneath him or right beside him was a second gun, a .38 caliber Smith & Wesson, which was later identified by ballistics experts as being the gun from which the bullet was fired that caused Officer Vaughan's death.

and could see the Vaughan gun when it fired.

In the first trial, Walker was convicted of first degree murder and was sentenced to death. This conviction was reversed by the Supreme Court of Arkansas, and the case remanded for new trial. Walker v. State, 239 Ark. 172, 388 S.W.2d 13 (1965). Upon retrial, ³ Walker was again convicted of first degree murder but was sentenced to life imprisonment. This conviction was affirmed by the Supreme Court of Arkansas. Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966), cert. denied, 386 U.S. 682, 87 S.Ct. 1325, 18 L.Ed.2d 403 reh'g denied, 387 U.S. 926, 87 S.Ct. 2027, 18 L.Ed.2d 987 (1967).

Walker filed a petition for habeas corpus, and a three-day hearing before the United States District Court resulted in dismissal of his petition. Walker v. Bishop, 295 F.Supp. 767 (E.D.Ark.1967). ⁴ He then appealed to this court, and a unanimous panel affirmed the judgment of the district court. Walker v. Bishop, 408 F.2d 1378 (8th Cir.1969).

Walker escaped from the penitentiary in Arkansas in 1975. Litigation concerning his extradition was finally determined by the United States Supreme Court. ⁵

Walker then filed a second petition for writ of habeas corpus together with a civil rights claim based on 42 U.S.C. Sec. 1983. ⁶ On June 2, 1981, the district court entered a written order finding that four of the grounds in plaintiff's petition were identical to those asserted in the earlier petition for writ of habeas corpus determined in 1967, and should not be relitigated. Walker v. Lockhart, 514 F.Supp. 1347, 1352 (E.D.Ark.1981). These were: (1) that the presiding judge in the murder trial was biased against plaintiff, (2) that there was official misconduct in the state court trial by the North Little Rock Police Department in allegedly withholding exculpatory evidence and witnesses from plaintiff, (3) that prejudicial pretrial publicity made a fair trial impossible, and (4) that the sum total of the claimed defects in the state trial were so serious as to violate his constitutional right to a fair trial. The court ruled that other issues not earlier presented should be further considered. It conducted a hearing on these new issues and denied Walker's petition.

In the order denying Walker the right to relitigate those grounds previously determined This appeal then followed, with arguments heard before a panel of this court. By order dated June 2, 1982, the case was referred to the court en banc for rehearing, and the parties were requested to rebrief the following issues:

                the district court carefully considered the guidelines for successive applications set down in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).  The court found that the same grounds presented in the application before it were previously determined adversely to petitioner on the prior application.  The prior determination was on the merits, and there was no new evidence and no intervening change in the law which would "serve the ends of justice by reconsidering the merits of the plaintiff's subsequent habeas application."    Walker v. Lockhart, 514 F.Supp. at 1350-51
                

1) What factors disclosed by the records in this case indicate that this court should or should not consider a successive petition for habeas corpus by appellant Walker.

2) Have the constitutional violations alleged (including prejudice of the trial judge and suppression of evidence by police and prosecutors, or either of them, or other violations) grossly flawed or not flawed the guilt determination in this case.

3) If necessary, should this court remand the habeas corpus action to the district court for a determination on the merits, or can this court properly rule on the merits of the habeas corpus petition in the present appeal.

After argument, the first submission was vacated, and the case was heard for a second time by the court en banc.

Walker now argues, as he did before the district court, that there has been a change in the law, primarily from the Fifth Circuit's decision in United States v. Brown, 539 F.2d 467 (5th Cir.1976) (per curiam). He contends that the district court should have considered the claim of bias of the trial judge arising from the tone of voice and courtroom demeanor, which essentially is a factual issue recognized in Brown. He further argues that the appearance of justice consideration articulated in Brown brought about an objective, as opposed to a subjective, review of claims of trial court bias. He argues this is sufficient to authorize reconsidering the merits of his claim of bias. Walker also argues that the ends of justice would be served by reexamining the bias issue because he is innocent. He points to the weakness of the evidence giving rise to his conviction. He stresses various claims of suppressed evidence and conflicting evidence which admittedly were discussed in the decision of the Arkansas Supreme Court and the two decisions relating to the prior petition for habeas corpus.

I. The Trial Court's Asserted Bias

A. Criteria for Considering Successive Habeas Petitions

Res judicata does not apply to petitions for writ of habeas corpus. See Allen v. McCurry, 449 U.S. 90, 98 n. 12, 101 S.Ct. 411, 416 n. 12, 66 L.Ed.2d 308 (1980). The question of what consideration a federal court should give to a successive habeas petition was discussed by the United States Supreme Court in Sanders v. United States, 373 U.S. 1, 15-19, 83 S.Ct. 1068, 1077-79, 10 L.Ed.2d 148 (1963). ⁷ In Sanders the Supreme Court established several guidelines for regulating successive applications on grounds previously heard and determined. These guidelines were summarized by the Court as follows:

Controlling weight may be given to denial of a prior application for federal habeas corpus or Sec. 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.

Sanders v. United States, 373 U.S. at 15, 83 S.Ct. at 1077 (footnote omitted).

Following the Sanders decision, Congress enacted a new statute dealing

                with successive habeas petitions, 28 U.S.C. Sec. 2244 (1976).  Section 2244(b) applies to state prisoners. 8   Similar provisions are contained in rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts, which became effective February 1, 1977. 9   The general effect of

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