Williams v. Lockhart, 86-2332

• Decision Date: 17 November 1988
• Docket Number: No. 86-2332,86-2332
• Citation: 862 F.2d 155
• Parties: Rodney D. WILLIAMS, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 155

862 F.2d 155

Rodney D. WILLIAMS, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.

No. 86-2332.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 16, 1987.

Decided Nov. 17, 1988.

Bobby Ray McDaniel, Jonesboro, Ark., for appellant.

Jack Gillean, Little Rock, Ark., for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

Rodney D. Williams appeals the District Court's ¹ dismissal of his petition for a writ of habeas corpus. Williams contends, among other things, that his prior habeas petition was filed without his knowledge and authority, and therefore that the District Court erred in dismissing his present petition as an abuse of the writ.

I.

Williams was convicted by a jury of first degree murder and aggravated robbery in Arkansas state court in 1981 and sentenced to life imprisonment. His convictions were affirmed by the Arkansas Supreme Court. Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983), supplemental opinion issued on denial of rehearing, 281 Ark. 97, 663 S.W.2d 703, cert. denied, 469 U.S. 980, 105 S.Ct. 382, 83 L.Ed.2d 317 (1984).

In 1985, Williams's trial attorney, Larry P. Vaught, filed a petition for a writ of habeas corpus on Williams's behalf in the United States District Court for the Eastern District of Arkansas. This petition alleged that Williams's convictions were obtained by the use of a coerced confession and by the improper use of evidence of other crimes. After an extensive examination of Petitioner's claims, the District Court ² dismissed the petition without an evidentiary hearing. Williams v. Lockhart, No. PB-C-85-280 (E.D.Ark. Aug. 30, 1985).

Thereafter, Williams filed his first application for post-conviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure in the Arkansas Supreme Court. This petition was denied in an unpublished opinion, Williams v. State, No. CR 83-94 (Ark.Sup.Ct. Jan. 13, 1986) (per curiam), and Williams's subsequent attempt to file a second Rule 37 petition was also denied.

In 1986 Williams, acting pro se, filed the present habeas petition in the District Court. He asserts nine grounds for relief, ³ only one of which was asserted in the prior petition. The other eight grounds are "new," in the sense that they were not raised in the prior petition. The District Court dismissed the petition on the basis of Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Applying the guidelines for successive petitions set forth in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), the District Court found that Williams's first ground for relief had been decided on the merits in the previous habeas proceeding. Then, relying on the "ends of justice" analysis developed in Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (plurality), the District Court found that Williams had not asserted a colorable claim of factual innocence, and thus dismissed the repetitive claim.

As to the other eight grounds, the District Court found that seven of the "new" grounds constituted an abuse of the writ because they concerned matters known by Williams at the time his first petition was filed. ⁴ The District Court reasoned that because Williams received legal assistance in his first application, he is charged with the awareness his counsel possessed as to the new grounds, and therefore failure to include them in the first application constituted an abuse of the writ.

Williams appeals, raising two issues. First, he argues that the dismissal of the repetitive claim was improper because the District Court erred by applying the Kuhlmann "ends of justice" standard. Second, Williams argues that because his first petition was filed without his knowledge or participation, the District Court incorrectly dismissed the seven "new" claims as an abuse of the writ. For the reasons set forth below, we affirm the dismissal of the repetitive claim, and remand for further proceedings as to the seven "new" claims.

II.

We turn first to the District Court's dismissal of the repetitive claim. A federal district court is not required to entertain a repetitive petition for a writ of habeas corpus that presents no new grounds for relief. Under 28 U.S.C. Sec. 2244(b), "a subsequent application for a writ of habeas corpus ... need not be entertained by a [federal court] unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ...." Likewise, Rule 9(b) of the Federal Habeas Rules provides that "[a] second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits...."

Rule 9(b) and section 2244(b) effectively codify the criteria established by the Supreme Court in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d148 (1963), for the regulation of successive petitions. ⁵ These guidelines were summarized by the Court:

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.

Id. at 15, 83 S.Ct. at 1077 (footnote omitted). The Sanders analysis requires that all three of the enumerated factors be satisfied before relitigation of the previously rejected claim may be barred.

We conclude that the first two Sanders conditions are satisfied. A review of the record shows that the first ground in Williams's second petition, that his conviction was obtained by use of evidence of another offense, was previously determined adversely to Williams and this determination was on the merits. Remaining is the question whether the "ends of justice" would be served by relitigating this ground.

At the outset, we note that Sanders instructs us that "the burden is on the applicant to show that, although the ground of the new application was determined against him on the merits on a prior application, the ends of justice would be served by a redetermination of the ground." Sanders, 373 U.S. at 17, 83 S.Ct. at 1078. In Sanders, the Supreme Court delineated some of the considerations to be weighed in determining whether the "ends of justice" would be served by redetermining a prior ground:

If factual issues are involved, the applicant is entitled to a new hearing upon showing that the evidentiary hearing on the prior application was not full and fair.... If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application.

Sanders, 373 U.S. at 16-17, 83 S.Ct. at 1078. "Something more than mere disagreement [with the previous habeas court] must be shown to justify a successive habeas petition." Walker v. Lockhart, 726 F.2d 1238, 1250 (8th Cir.1984) (en banc) (Arnold, J., concurring), cert. dismissed, 468 U.S. 1222, 105 S.Ct. 17, 82 L.Ed.2d 912; mandate recalled June 13, 1984; see also Walker v. Lockhart, 763 F.2d 942, 947 (8th Cir.1985) (en banc) (same case), cert. denied, 478 U.S. 1020, 106 S.Ct. 3332, 92 L.Ed.2d 738 (1986).

In Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), the Supreme Court reexamined the standards governing habeas petitions raising grounds already decided on a prior petition. A four-justice plurality of the Court concluded that the "ends of justice" test mandates consideration of successive petitions only when the petitioner "supplements his constitutional claim with a colorable showing of factual innocence." Id. at 454, 106 S.Ct. at 2627. Three other justices expressed the view that a colorable claim of factual innocence is not essential to establish that the "ends of justice" warrant reconsideration of a petitioner's previously decided claim. Id. at 461, 106 S.Ct. at 2631 (Brennan, J., joined by Marshall, J., dissenting); id. at 476, 106 S.Ct. at 2639 (Stevens, J., dissenting). ⁶ The two remaining justices, Justices Blackmun and White, concurred in the Court's alternative holding, id. at 438, 106 S.Ct. at 2616, rejecting petitioner's successive claim on the merits, and expressed no view on the need for a colorable claim of factual innocence in a repetitive habeas petition.

In the present case, we need not decide whether a colorable claim of factual innocence is essential to justify consideration of a successive habeas petition raising claims already rejected on their merits in a prior application. Williams's repetitive claim should not be revisited because he does not present any new facts or legal developments warranting relitigation of the claim, and therefore he fails to meet the minimum burden of the Sanders "ends of justice" analysis.

There is no new evidence, unrevealed at the time of the first habeas proceeding. There is no change in the law. There is of course no claim of taint in the first post-conviction proceeding. There is simply the claim that the [first habeas court] misapplied the law to the facts. I know of no case that grants a successive habeas petition in that situation.

Walker, 726 F.2d at 1250 (Arnold, J., concurring). In Williams's petition to the District Court, and in his argument to this Court, he merely states his disagreement with the first habeas court's determination that evidence of another crime was properly admitted. Williams does not argue that the first habeas court's adjudication of this claim was tainted. He does not argue that new facts or legal developments warranting relitigation exist. He merely argues that...