Zellers v. Duckworth

• Decision Date: 17 May 1985
• Docket Number: No. 83-3004,83-3004
• Citation: 763 F.2d 250
• Parties: William E. ZELLERS, Petitioner-Appellant, v. Jack DUCKWORTH, Warden, Indiana State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 250

763 F.2d 250

William E. ZELLERS, Petitioner-Appellant, v. Jack DUCKWORTH, Warden, Indiana State Prison, Respondent-Appellee.

No. 83-3004.

United States Court of Appeals Seventh Circuit.

Argued Dec. 5, 1984.

Decided May 17, 1985.

Larry A. Landis, Indianapolis, Ind., for petitioner-appellant.

David A. Arthur, Deputy Atty. Gen., Indianapolis, Ind., for respondent-appellee.

Before ESCHBACH and COFFEY, Circuit Judges, and SWYGERT, Senior Circuit Judge.

ESCHBACH, Circuit Judge.

William Zellers appeals the dismissal of his petition for a writ of habeas corpus. The district court concluded that Zellers had failed to establish cause for his failure to appeal the denial of his state-court petition for post-conviction relief, and that the failure to appeal that denial was a procedural default barring review of Zellers's constitutional claims in federal court. We affirm.

I.

The facts, as stated by the Indiana Supreme Court, Zellers v. State, 271 Ind. 22, 389 N.E.2d 299 (1979), are these. Petitioner entered a plea of guilty to a charge of first degree murder in 1966 and received a sentence of life imprisonment. In 1969, he filed a motion to vacate the judgment and withdraw his guilty plea, contending that he was coerced by police officers into giving an incriminating statement and that he did not receive effective assistance of counsel. The trial court took the motion under advisement on January 17, 1971, and on August 15, 1972, the court denied the motion. No appeal was taken. Three years later, on October 17, 1975, petitioner filed in the trial court a petition for permission to file a belated motion to correct errors addressed to the August 15, 1972 order denying post-conviction relief. The petition was denied. On appeal, the Indiana Supreme Court ruled that the petitioner had alleged facts that, if true, would support the filing of a belated motion to correct errors, and remanded the case to the trial court for an evidentiary hearing. Zellers v. State, 266 Ind. 111, 361 N.E.2d 143 (1977).

On remand, a hearing was conducted, and the petition was again denied. The petitioner again appealed, and the Indiana Supreme Court affirmed, 271 Ind. 22, 389 N.E.2d 299 (1979). The Court evaluated petitioner's motion under Indiana Post-Conviction Remedy Rule 2, Sec. 1. Under that rule, the trial court will permit a defendant to file a belated motion to correct errors if

(a) no timely and adequate motion to correct error was filed for the defendant; and

(b) the failure to file a timely motion to correct error was not due to the fault of the defendant; and

(c) the defendant has been diligent in requesting permission to file a belated motion to correct error under [the] rule.

271 Ind. at 24, 389 N.E.2d at 301. The Supreme Court first found that the trial court's conclusion that Zellers had been at fault in failing to file a timely motion to correct errors was not supported. It was undisputed that Zellers had, on May 1, 1972, written his attorney advising her that he desired to appeal any adverse ruling on his motion and requesting that she take any steps necessary to do so. It was also undisputed that Zellers received no notice from the court or his counsel when, on August 15, 1972, the trial court rendered a decision adverse to him, and that his counsel did receive notice. The Indiana Supreme Court noted that Zellers had 60 days after the August 15 adverse ruling in which to appeal, and that "there is no finding or evidence to support a finding that [Zellers] was aware of a legal duty to file a motion within the sixty-day period following August 15, 1972, or that he obstructed or impeded a timely filing." 271 Ind. at 25, 389 N.E.2d at 301.

The Court did sustain the trial court's finding that Zellers had not been diligent in requesting permission to file a belated motion to correct errors as required by the rule. The Court stated that the "burden was upon [Zellers] to show that he maintained that degree of care and attentiveness towards his claim and the progress of it in the court which one might reasonably expect from a party represented by counsel and under the particular circumstances shown." 271 Ind. at 26, 389 N.E.2d at 302. The Court noted that Zellers did not contact his attorney concerning the progress of his case from May 1, 1972 until February 18, 1975. During that period, Zellers was either in prison in Indiana or living in Indiana after having escaped custody. (Zellers escaped from prison on July 20, 1973 and was returned to custody on February 11, 1975.) It developed at the hearing before the trial court that Zellers's failure to receive notice of the August 15, 1972 adverse ruling was due in part to Zellers's status as an escapee. Noting that Zellers had been an adult throughout the pendency of the case, that he was a person of ordinary skill and intelligence, and that he had represented himself during 1969 and 1970, the Court found that Zellers had not met his burden of showing that he had been diligent in filing his petition.

Zellers then filed a petition for a writ of habeas corpus in federal district court. The district court concluded that no evidentiary hearing was necessary. Petitioner claimed in his habeas petition that (1) his due process rights were violated when he entered his guilty plea and (2) he received ineffective assistance of counsel at the time of the plea. Because of the disposition of petitioner's claims by the Indiana Supreme Court, the district court first addressed the issue of whether petitioner's constitutional claims were barred from habeas review under the law of waiver as stated in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The court observed that petitioner had failed to address the required showing of cause and prejudice, other than to claim that he was unaware of the Indiana trial court's adverse ruling on his post-conviction relief petition until after his return to custody. Noting that the time for taking an appeal had expired before petitioner's escape, the district court found that the petitioner's two and one-half year delay in pursuing an appeal was inexcusable, and dismissed the petition.

II.

In Indiana, a person convicted of a crime who claims that the conviction was in violation of the United States Constitution may file a motion for post-conviction relief pursuant to Indiana Rules for Post-Conviction Relief, Rule PC 1. This Zellers did in August 1969. In his PC 1 petition, Zellers alleged that he was deprived of effective assistance of counsel at the time of his 1966 guilty plea, and that a confession that induced his plea was the product of police coercion. A hearing on these contentions was held and, after various (sometimes inexplicable) delays, Zellers's petition was denied on August 15, 1972. Zellers then had 60 days in which to appeal the denial, and no timely appeal was filed. Indiana also provides a remedy for those, like Zellers, who fail to take a timely appeal from the denial of their petition for post-conviction relief: they can petition the court for permission to file a belated motion to correct errors pursuant to Rule PC 2. In order to qualify for relief under Rule PC 2, the petitioner must show not only that he was not at fault for failing to take a timely appeal but also that he has been diligent in his request for permission to file a belated motion to correct errors under PC 2. The Indiana Supreme Court found that Zellers met the first of these requirements; that is, he was not at fault for failing to file a timely appeal. It was uncontested that Zellers had requested his attorney in May 1972 to prosecute an appeal in the event of an adverse judgment, and she had simply failed, through negligence, to do so. Moreover, Zellers had received no notice of the denial, and his attorney had. However, the Court found that Zellers could not qualify for relief under PC 2 because he had not been diligent in pursuing that relief. The State argues that Zellers's failure to take a timely appeal from the denial of his PC 1 motion or diligently to seek relief under PC 2 constitutes a procedural default that bars review of petitioner's constitutional claims under the principles announced in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).

The petitioner does not argue that the failure to take an appeal, or to request timely relief under Rule PC 2 from the consequences of that failure, does not constitute a procedural default for which he must account before presenting his claims to the federal courts for review on the merits. See, e.g., Jackson v. Cupp, 693 F.2d 867 (9th Cir.1982) (failure to appeal denial of post-conviction relief constitutes waiver); Hammer v. Meachum, 691 F.2d 958 (10th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1439, 75 L.Ed.2d 796 (1983); Rodgers v. Wyrick, 621 F.2d 921 (8th Cir.1980); United States ex rel. Savino v. Flood, 482 F.Supp. 228, 237 (E.D.N.Y.1979). Cf. United States v. Correa-De Jesus, 708 F.2d 1283 (7th Cir.) (suggesting that failure to appeal denial of motion to vacate sentence precluded later review of grounds of motion in Sec. 2255 proceeding), cert. denied, --- U.S. ----, 104 S.Ct. 530, 78 L.Ed.2d 712 (1983). Nor does petitioner contend that the "cause and actual prejudice" standard of Wainwright v. Sykes, supra, is inappropriate under the facts of this case. See Williams v. Duckworth, 724 F.2d 1439 (7th Cir.) (applying Wainwright standard to failure to raise issue in post-conviction proceeding), cert. denied, --- U.S. ----, 105 S.Ct. 143, 83 L.Ed.2d 82 (1984); United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983) (en banc) (applying Wainwright standard to failure to take direct appeal). Rather, he contends that he has shown the requisite cause for his failure to appeal.

It is uncontested,...