Calvin Gunn v. Lanson Newsome, Warden

naming an aunt notwithstand- beneficiary death of GUNN, Petitioner-Appellee, Upon the contract.

ing their Calvin plaintiff and insured, aunt decedent’s Despite the harsh- proceeds. claimed NEWSOME, Warden, Lanson result, Eleventh Circuit ness of Respondent-Appellant. regu- 8705(a)1 corresponding and found § (1986)2, precluded lation, 870.901 5 C.F.R. No. 87-8287. claiming proceeds. all of the Ms. O’Neal’s Ins. Co. Citing Metropolitan Appeals, Life United States Court (N.D.Cal.1983), McShan, F.Supp. Circuit. Eleventh Co., Metropolitan Ins. and Knowles Life Aug. 1989. (N.D.Ga.1981), Elev- F.Supp. 515 and language concluded Circuit enth “This lan- are clear. of FEGLIA

intent intended to Congress indicates that

guage con-

establish, administrative for reasons of designated and for the benefit

venience

beneficiaries, rule that an inflexible designated accordance

beneficiary policy pro- would receive

the statute or the

ceeds, documents regardless of other 839 F.2d particular case.”

equities in a

1440.3 distinguish circumstances

No facts or despite precedent cited case from the

this contrary. to the arguments Dean’s

Ms. order relations court domestic

The state federal insured’s

ostensibly restricts the beneficiary thus

right designate other No valid under FEGLIA.4

cannot be this can override payment

circumstances AFFIRM the or- therefore

principle. We summary granting of the district court

der parents decedent’s in favor of

judgment

and children. 8705(a) part: states

1. Section (e) beneficiary change be made A group insurance amount of life knowledge or con- any time and without the group in force accidental insurance death beneficiary. right previous This sent of the shall be employee at the of his death date or restricted. waived claim, cannot be of a valid paid, on the establishment surviving persons at the date of S.Rep. No. 89th cited court also death_ 3. The designa- purpose, a For his tion, this 2, reprinted in 1966 U.S.Code Cong., 2d Sess. beneficiary in change, or canсellation 2070, 2071. Cong. & Admin.News executed and not so a will or other document force or effect. filed has no however, could imply, Mr. Dean We do not part: contempt powers states in subjected 2. Section 870.901 not have been during That his lifetime. of the domestic beneficiary (a) designation of shall be only law is the witnessed, power alter court's writing, signed, and received case. question we decide employing in the office.... COX, Judges, Circuit

HENDERSON **, Senior Judge. Circuit KRAVITCH, Judge: Circuit While serving Georgia life sentence for murder, malice Calvin petitioned Gunn district court se for a writ of habeas corpus under 28 U.S.C. 2254. Gunn’s § sole basis for relief was that the trial jury instruction on the issue of in- tent had unconstitutionally shifted the proof burden state’s on that issue to Gunn. It was Gunn’s second federal habeas petition, and he had not raised this issue in his first which he had also filed argued se. The state that the district summarily dismiss the under Rule Governing Rules Section Cases as an abuse of the opposed and on the merits. Taking note of Gunn’s se status at the time he filed his first peti- federal habeas tion and of the abstruse nature involved, claim the district court concluded that Gunn’s second not was an abuse of the Upon writ. reaching the mer- its, favor, the court found in Gunn’s and granted the writ unless the state retried days. Gunn within 120 appealed. The state panel A agreed this court that the instruction had uncоnstitutionally shifted burden, state’s and that the error was harmless; the panel divided, was how- ever, on the issue, abuse of the writ with a majority voting to affirm the district court. 851 F.2d 1294 We determined to Hill, Jr., William B. Atty. Gen., Asst. banc, rehear the case in and vacated the Atlanta, Susan Boleyn, Ga., V. respon- panel opinion. Id. at 1301. We now AF- dent-appellant. FIRM. Hauser, F. Steven c/o The Coca-Cola Co., Atlanta, (court Ga. appointed), I. tioner-appellee.

A. FACTUAL BACKGROUND In the early evening 23, 1979, of March Eddie Williams bowling at the Frontier RONEY, Before Judge, Chief Lounge in Rabun County, Georgia, with his TJOFLAT, HILL, FAY, VANCE, cousin, Ivester, Russell and Michael Shir- KRAVITCH, JOHNSON, HATCHETT, ley. Some time begun, after match had ANDERSON, *, CLARK EDMONDSON Gunn arrived and asked if he join could * ** Clark, Judge argument, did not hear oral Judge Senior U.S. Circuit Henderson elected participate elected to in the participate decision of pursuant this case. in this decision to 28 46(c). U.S.C. § purportedly Shirley, told up then drove could that Gunn Everyone agreed game. match, got your buddy, Shirley, going “I I’m to kill Gunn bowling During the so. do argument. you Ivester went home that eve- next.” had Williams and Williams kill right. ning saying threatened would be all The that Gunn he testified however, threat- Williams, morning, made similar he following and Williams was found had The two to Gunn. ening hospital, remarks convulsing and was taken to out- they stepped past, fought in a short time later. where died dispute. their lounge to settle side physician Thе who treated Williams ex- were blows intervened before bartender hospital per- when he arrived at the also changed. autopsy, and testified that formed the lounge left the then and Williams Gunn of a Williams died as the result blow the Shirley accom- Mike vehicles. separate head which fractured the left side followed Williams’s Gunn panied Williams. resulting skull cerebral edema. doc- following noticed Gunn Williams vehicle. that a tor further blow with testified exclaimed, to let going him, “I’m cue stick would have been sawed-off com- everywhere. me follow the son-of-a-bitch injury. patible with Williams’s get this over with.” stop and going I’m to lot, parking into a vacant pulled He then B. HISTORY PROCEDURAL Gunn, According to followed. and Gunn County was tried before Rabun Gunn parking agreed to meet this had the two The court instructed jury in June of 1979. intervened at had the bartender lot after jury malice murder and volun- the on both parking that this appears It lounge. the jury part As of its tary manslaughter. fights. for customary venue lot was instructions, jury the court instructed got Williams, Shirley, and Gunn After presumes that the law intends ears, to a Shirley walked bush out consequences of probable natural “the and himself. away to relieve twenty-five yards acts, presumption may re- but words, exchanged then and Gunn Williams challenge lawyer did not Gunn’s butted.” butt pulled out the end and Gunn jury constitutionality of the instruction. on and struck Williams cuе stick sawed-off jury returned a ver- On June that Shirley testified Gunn the head. murder. guilty as to malice Gunn dict of to or three clean blows two struck Williams mandatory imprison- life to was sentenced to was ward Williams able the head before ment. his hands. Gunn blows with off further Supreme Georgia appealed to Gunn the cue hit Williams with that he testified Court, in- raising six issues. Two issues had Williams in self-defense because stick grand jury impanelling of volved the hand had at- large in his left and rock The other had Gunn. issues that indicted Shirley testified tempted to strike him. change the denial of a motion were rock, he was he did not see to venue, grant a continuance failure hand. Gunn left unable see Williams’s witness, into introduction evidence locate a fell to grappled together and and Williams to the one Gunn of a cue similar stick losing the stick ground, cue Gunn used, improper questioning allegedly Shirley retrieved point At this the scuffle. put impermissibly by prosecutor bludgeoned Gunn about the cue stick and Gunn’s law- into issue. Gunn’s character allowed Shirley’s intervention the back. jury instructions yer challenge did fight. advantage gain Williams Georgia Court of appeal. Supreme on The released, and Williams to be Gunn asked conviction. Gunn v. affirmed Gunn’s to the then drove back obliged. Williams State, 264 S.E.2d 862 245 Ga. Shirley lounge passenger. as federal habeas Gunn’s first Shirley arrived When Williams se, simply repeated five car, which he in the com- filed remained lounge, Williams lawyer that Gunn’s had feel well. Gunn of six issues that he did not plaining this, sitting saying the car. allegedly was alive and Williams that while Gunn was 1. We note appeal. raised on corpus April direct These were claims 1986. The sole grand jury that the had been unconstitu- ground relief that Gunn raised was the (Claim 1), tionally impanelled that he had constitutionality of the trial jury court’s been by denied a fair trial the trial court’s on the issue instruction intent. change denial of a motion for of venue responded The state petition Gunn’s (Claim 2), that he had been denied a fair by arguing petition that the should be sum- trial the trial denial of a motion marily dismissed as an abuse of the writ. (Claim 3), the for continuance admission of magistrate concluded that Gunn’s sec- evidence—the cue stick—that preju- ond writ, was not an of the abuse (Claim 4), dicial and not related to the crime and invited the respond state to the prosecutor impermissibly put merits of Gunn’s claim. After the state (Claim his character into issue the case responded, had magistrate concluded 5). did not challenge Gunn the constitu- jury that the instruction on the issue of tionality of the instructions. intent impermissibly had part shifted responded The state on the merits government’s proof. burden of The dis- magistrate each claim. The held an eviden- court, trict before whom the state had re- tiary hearing, court, after which the district newed its motion to dismiss adopting the recommendation magis- an abuse of the reviewed the record trate, April denied relief in of 1983. de novo and concluded Gunn’s second September four was not months after abuse the writ and Court’s decision in that he prevail Francis v. on the merits of his Franklin, S.Ct.1965, 471 U.S. 85 claim. The granted district court the writ (1985), L.Ed.2d 344 Gunn se filed a unless the state retried within Gunn petition state habeas in Superior days. Court appeals.2 The state County, Georgia. Tattnall Gunn’s sole The state raises three issues in ap- its ground for relief was that the trial court’s peal. First, the challenges state the dis- jury virtually instruction on identi- intent — trict court’s determination Gunn did cal to the one found unconstitutional Second, not abuse the writ. the state chal- created an Franklin —had unconstitutional lenges the district court’s decision on the presumption of intent to kill. jury merits that the instruction unconstitu- The state not any did raise law state tionally government’s shifted the burden to procedural defense; default bar as a in- Gunn. Finally, the state contests the dis- stead, the responded state to Gunn’s claim trict court’s conclusion that the constitu- on the merits. After an evidentiary hear- tionally infirm jury instruction was not ing, the state court petition, denied Gunn’s error. harmless concluding that the instruction created only permissive intent, inference of and II. ABUSE OF THE WRIT thus did not shift the state’s burden of proof. A. Georgia Supreme Court denied application Gunn’s for a prob- certificate of Because the writ habeas cor able cause in March of 1986. pus equitable origins, under certain Having remedies, exhausted his state may circumstances a court decline to enter Gunn now returned se to federal court tain a petition properly jurisdict within its and filed petition his second for a writ of ion.3 The focus of the inquiry 2. The stay state not seek therefore, did of the court's pending; has been the issue of wheth- pending appeal. Arguing order er the stay pending that the state must appeal writ seek a irretrievably conditionally days granting order issued after date habeas relief is us, order, properly before spec- district we decline court's Gunn has moved this subject. ulate on the appeal By dismiss state’s as moot. separate order we have denied motion to Gunn's By "entertain” we mean “a federal court’s con- Gunn, dismiss. currently who is parole, on has clusion, after application examination of the challenged power of the state to enforce accompanying papers such as the court parole the conditions of his appeal while this necessary, dеems hearing that a [or determina- usually permit petitioner equity is on will not threshold determination making this already against a claim resolved to reassert petitioner, be- the conduct petition hope him in the that his successive in relation to the conduct “a suitor’s cause perhaps a different and will be heard him the may disentitle at hand matter sympathetic judge. Sec. 2254 more See seeks.” Sanders United relief he (“a advisory note R. 9 committee’s Cases 1068, 1078, 1, 17, States, 83 S.Ct. application already decided on successive (1963) Noia, (quoting Fay may hope submitted in the the merits 822, 849, 391, 438, getting judge a different in multi- before (1963)). L.Ed.2d 837 addition, courts”). judge important In 2244 and Rule 9 of Title 28 U.S.C. § finality in criminal need for law counsels cases in the Governing Section 2254 Rules repeatedly strongly against courts review- identify con- District Courts United States ing Teague criminal convictions. See to forfeit cause duct — Lane, -, 1060, 103 U.S. prosecute a federal habeas right (1989) (“Without finality, the L.Ed.2d 334 example, where petition. For deprived of much of its criminal law is claim, asserting a unreasonably delays in effect”) (plurality opinion). deterrent delay, by the prejudiced the state is may dismiss the such a situation the court 9(a) equity’s rule of laches applies Rule petition can successive unless 9(b) petitioner.4 Rule the habeas entertaining would show that problem 2244 in turn address the U.S.C. § justice. serve the ends Kuhlmann filing successive ha- prisoners repeatedly 436, 448-53, Wilson, 477 by as- abusing the writ petitions or beas 2616, 2624-26, piecemeal.5 serting their claims 16-17, Sanders, 83 S.Ct. at 1077, 1077-78. peti In a successive claim that he raised tioner raises a had also addresses ‍​‌‌‌‌​​​‌​‌‌​‌‌‌‌‌​​‌​​​​​​‌​‌​‌​‌‌‌​​​‌​‌‌‌​‌‌‌‍the case of a Rule and that had been resolved raises a subsequent second Although judicata does raise in his petitioner merits.6 res the did not the claim or, corpus, present if he did the prior petition, in of habeas apply the context claim, 7-8, 1073, adjudicated on the merits.7 Sanders, at it was 373 U.S. at 83 S.Ct. A second or succes- proper.[ Petitions. or factual is Successive ]” on the merits tion] 443, 461, 397, judge Allen, may petition be dismissed if the sive U.S. 73 S.Ct. Brown v. 344 allege 409, or different (1953). finds that it fails to new 97 L.Ed. 469 grounds prior and the determination for relief or, new and different was on the merits if 9(a), determines that 4. Under Rule if the court alleged, judge grounds finds that the are knew, petitioner or with reasonable dil- petitioner to assert those failure of known, grounds igence have of the prior petition grounds constituted in a allegedly-delayed petition, and has raised in the writ. abuse of the asserting delay claim was unrea- that his law, may as a matter of then the court sonable clarify terminology. may helpful our It petition state can make a dismiss the if the already adjudi- petition thаt raises a claim resulting showing prejudice particularized through prior petition is a “successive cated delay. Dugger, petitioner’s Thomas v. from contrast, petition that raises petition.” Cir.1988); Jones, (11th Lawrence v. 846 F.2d 669 prior peti- grounds raised in the for relief not (11th Cir.1988); Dugger, v. F.2d Davis 837 1572 analyzed of the writ.” See as an “abuse tion is Cir.1987). (11th See also Hill v. 829 F.2d 1513 436, Wilson, 477 U.S. 106 S.Ct. v. Kuhlmann Cir.1983) Linahan, (11th (quoted 697 F.2d 1032 6, 2616, (1986) (plurality L.Ed.2d 2622 n. 91 364 Jones). advisory approval in The commit- also, e.g., opinion). Sanders v. United See observes, "[sjubdivision (a) is tee note to Rule 9 1068, 1074, 1, 10, States, 83 S.Ct. 10 373 U.S. Rather, limita- not a of limitations. statute (1963). 148 L.Ed.2d equitable doctrine of lach- tion is based on the es_ subdivision, 9(h) speaks portion language of Rule of the ... 7. That [T]he U.S.C. mandatory. clearly is coterminous with 28 permissive This abuse of the writ rather than 9(b) 2244(b); considering not treat Rule therefore we do § the court which is allows 2244(b) 2244(b) separately. assessing equities § 28 U.S.C. § tion to use discretion provides follows: particular as situation." hearing evidentiary on the When after an follows; issue, or after a provides merits of a material factual 5. Rule 956 situation, rass, “[njothing delay.’

In this in the tradi- or There was no abuse of the corpus requires tions of writ.”), denied, 885, 101 449 cert. U.S. S.Ct. piecemeal litiga- courts to tolerate needless 239, (1980). 66 L.Ed.2d 111 tion, proceedings to entertain collateral If a peti court determines that the vex, harass, only purpose whоse is to or writ, may tioner has abused the it summar delay.” Sanders, 18, 373 83 S.Ct. ily petition dismiss the unless to entertain Thus, may at 1078.8 a court dismiss such a petition justice. will serve the ends of not simply because it is a Sanders, 18-19, 373 U.S. at 83 subsequent petition, second or for “not all ” 1079; 1522, Kemp, Davis v. 829 F.2d 1526 ‘needless,’ piecemeal litigation is Booker — (11th Cir.1987), denied, U.S. -, cert. 1371, (11th Wainwright, 764 F.2d 1376 cert, (1988). If, 108 S.Ct. 99 L.Ed.2d 262 Cir.), denied, 474 U.S. hand, on the other the court finds that the (1985). L.Ed.2d Miller See petitioner (11th Cir.1988); has not abused the then the Dugger, 858 F.2d 1536 Ha- Estelle, ley (5th petition shall entertain the 632 F.2d on the Cir.1980).9 Hutchins, See also Woodard v. merits. 377, 383, 752, 755, 464 U.S. government The has the burden (1984)(White Stevens, JJ., pleading petitioner that the habeas has dissenting). Rather, the court dismiss Johnston, abused the writ. Price v. equity permit because will not 266, 291-92, 1049, 1063, petitioner powers invoke (1948). L.Ed. government Once the very sought court which he has to use as so, does burden shifts to the vexation, harassment, his instrument of to show that his conduct was not an abuse delay. The court’s focus is on the conduct 1063; of the writ. Id. at 68 S.Ct. at petitioner, and whether petition- Wainwright, Witt v. 755 F.2d er’s conduct is such that he has disentitled (11th Cir.), denied, cert. 470 U.S. seeking himself from the federal habeas 84 L.Ed.2d 801 Paprskar Estelle,

relief. E.g., 612 F.2d (5th can Cir.) (“When meet this burden showing we examine the conduct of his failure to raise the light claim a equi- ties, clearly cannot conclude that was the result of “excusable ne piecemeal glect.” Zant, constitutes ‘needless liti- Potts v. 638 F.2d 740-41 gation’ ‘purpose vex, or that its B),10 is to ha- Cir. Unit hearing law, on the merits of an issue of Lundy, hausted claims. 520-21, Rose v. Cf. th,e person custody pursuant 1198, 1204, judgment 102 S.Ct. 71 L.Ed.2d 379 by (1982) (plurality State court has opinion). been denied a court of The issue is not be- us, justice judge the United States or a or fore therefore we do not address it. custody United States release from or other Although 8. petition brought Sanders involved a remedy application on an for a writ of habeas 2255, under 28 U.S.C. § Court noted that corpus, subsequent application for a writ of apply same rules petitions to federal habeas corpus in behalf of such need brought by prisoner a state under 28 U.S.C. by not be entertained a court of the United Sanders, 14-15, § 2254. 373 U.S. at 83 S.Ct. justice judge States or a or of the United Thus, purposes 1076-77. for discussing our application alleges States unless the and is writ, may the abuse of the we look to case predicated law ground on a factual or other not. developed under both 2254 § 2255. adjudicated § hearing ap- on the of the earlier plication court, for the and unless the justice, Prichard, judge City 1206, or 9. In Bonner v. applicant is satisfied that the 661 F.2d (11th Cir.1981) (in banc), application has not 1209 deliberately on the earlier this court adopted newly ground binding precedent withheld the as ‍​‌‌‌‌​​​‌​‌‌​‌‌‌‌‌​​‌​​​​​​‌​‌​‌​‌‌‌​​​‌​‌‌‌​‌‌‌‍asserted or all other- decisions of wise abused the former Fifth writ. Circuit handed dоwn before 1, Although we October have noted 1981. their terms 2244(b) apply only Rule and § to a claim adjudicated prior on the merits on the Securities, Inc., Reynolds 10. In Stein v. 667 F.2d express princi- (11th no sentiment Cir.1982), as to how that 33 adopted binding this court ple requirement interrelates with the precedent that a all decisions of Unit B of the former prejudice court must dismiss without 30, "mixed” Fifth September Circuit handed down after petition containing both exhausted and unex-

957 Estelle, v. ”); 722 Jones (1981). judges’ trial F.2d 357, L.Ed.2d 187 877, 70 102 S.Ct. proper questions at 165. It is to leave such differently, Or, expressed some discretion of the district courts: that he had the court may prove to “[Tjheirs major responsibility for the omitting the claim is the for “justifiable reason” Kemp, v. just and sound administration of the feder- Fleming prior petition. in the denied, remedies, cert. Cir.1988), al collateral and theirs must be (11th F.2d 940 837 — 1764, judgment U.S. -, as to whether second 109 S.Ct. application F.2d shall be denied with- Wainwright, 743 successive Henry v. (1989); 200 Sanders, “re of the merits.” Cir.1984).11 These rules out consideration 761, (11th 762 be 83 S.Ct. at 1079. the tension 373 U.S. adjust effort flect the nonfrivolous all to consider the need tween is not un- Yet discretion such matters prevent manipu the need claims and The district court must exercise fettered. proceed judicial and obstruction lation guidelines, oth- its discretion within certain v. Es petitions.” Jones ings by successive run the risk that courts will erwise we Cir.1983), cert. (5th telle, 722 F.2d еngage in “the exercise not law but denied, 104 S.Ct. Allen, arbitrariness.” Brown 344 U.S. L.Ed.2d 397, 441, 443, 497, L.Ed. 469 Frankfurter, J.) (1953) (quoted (opinion of subsequent pe a second or Whether Wilson, in Kuhlmann v. at 2622 S.Ct. i.e., constitutes abuse tition writ — opinion)).12 (plurality conduct was the petitioner’s whether neglect, or whether inexcusable result of B. reason for justifiable some he has shown limits of the district left outer the claim earlier —is to raise his failure readily ascer court’s discretion district court. the sound discretion knowingly 1079; If Sanders, tained. 83 S.Ct. at 373 U.S. at (11th deliberately the claim from a Cir. withheld Dugger, 825 F.2d 287 Darden — An petition, then he has abused the writ. 1987) (successive petition), 200, 104 Dugger, tone v. 465 U.S. -, L.Ed.2d 285 curiam) (denial Newsome, (1984) (per F.2d 934 79 Allen v. (1988); application petition for certiorari Humphrey v. United Cir.1986); (11th Wong Doo v. United execution); Cir.1985); States, Potts stay of 766 F.2d 1522 States, 68 L.Ed. Zant, 741; 2254 Cases 638 F.2d at Sec. advisory R. 9 (“The 2254 Cases bar Sec. advisory committee’s note R. 9 (“Thus, example, if a (b) rigid committee’s note is not one of up by subdivision set one of two deliberately withholds discre is within the application, but rather relief at the basis.”). grounds for federal collateral case-by-ease courts on a tion of the application ... he filing his first time of Stephens Kemp, also See hearing have waived a 562, 563, may be deemed to 1029-30, 78 L.Ed.2d 370 presenting the with application a second (Powell, J., dissenting grant from (1983) Sanders, (quoting ground.” execution) (“considerаtion of abuse held stay of also 1078)). See the ‘discretion of normally is left to reason,” get qualities Certainly, if we will not these neglect," “justifiable we or 11. "Excusable impor- contrary. is generic consti- But it "conduct that does not rules to the the more fashion tant, simply different preclude of the writ" are en- tute an abuse ways individualized in order to thing. phrase saying Neither the same in different the Constitution forcement of courts; guide provides standard to a substantive Nation, specifically lay down as parts instead, developed through the is that standard problem permits the stan- nature of the as the principles equitable under the case law inspire govern that should directions dards or of the writ doctrine. the abuse applica- disposition of Judges in the District corpus by prisoners under tions for habeas Elsewhere, observed: Justice Frankfurter Courts. sentence of State judicial matters of ad- Here as elsewhere in 501-02, Allen, 73 Daniels v. to them the we must attribute ministration 437, 443, (1953). 97 L.Ed. appropriate for good and sturdiness sense judge. power a federal wield the men who Gabriel, McLaughlin (1st petitioner v. 726 F.2d 7 who does not know that certain Cir.1984). ground facts constitute for federal habe- seeking “vex, harass, as relief is not or Conversely, petitioner may delay” by failing to ground, raise that present a claim petition in a sucсessive nothing has done to disentitle himself from upon based a new rule of law is to be seeking federal habeas relief. applied retroactively. Fleming Kemp, In appeal, the instant the district court (11th Cir.1988), 837 F.2d 940 denied, cert. found that Gunn fell category — into U.S. -, neglect. Taking excusable into account McCorquodale Kemp, pro se status at Gunn’s the time he filed his (11th Cir.), denied, F.2d 1035 cert. first and the obscure and technical (1987). 97 L.Ed.2d 818 nature involved, of the claim petitioner may subsequent also raise in a court found that Gunn not had abused the petition a claim based on facts that were writ because he had not known that the prosecuted known when he prior his jury instruction ground constituted a petition. habeas Strickland, Ford federal habeas relief.13 We must now de- (11th Cir.1984); F.2d 538 Sec. 2254 Cases cide court, whether a district in exercising advisory R. 9 (“There committee’s note are discretion, its sound may properly consider instances in petitioner’s which failure to the status of the petitioner pro se or coun- — ground assert a prior petition in a is excus seled—and the subtlety of legal ques- able. A change retroactive in the law and involved, tion determining when if the newly discovered examples.”). evidence are tioner abused the writ.14 See also Harris v. Pulley, 852 F.2d 1546 Whether a court consider the status (9th Cir.1988); James, Nell v. 811 F.2d 100 petitioner оf the at the time he filed his (2d Cir.1987). prior habeas depends turn on the Similarly, petitioner may present knowledge standard of by judge which we a claim in a successive based on petitioner. If habeas we were apply facts that were known to him when he filed the same standard of knowledge to a prior petition, if he was not aware that petitioner as we do to a petition- counseled those facts grounds constituted for federal er, then petitioner’s status would be habeas relief. Booker v. Wainwright, 764 hand, irrelevant. On the other if judge (11th Cir.1985); F.2d 1371 Haley Estelle, by either subjective stan- 632 F.2d (5th Cir.1980); Mays v. Balk dard, focusing our inquiry on petition- com, (5th 631 F.2d Cir.1980). See also er’s actual knowledge at the time he filed James, Nell v. (2d Cir.1987); F.2d 100 petition, objective, rea- Blackburn, Passman v. 797 F.2d 1335 person, standard, sonable then a court Cir.1986), 480 107 should take into petitioner’s account the This Thus, status. we turn question simply another equitable illustration of the which standard of knowledge subjective, — nature of the abuse the writ A objective, doctrine. or counseled—we attribute to a portion 13. The relevant 1981). light district court’s petitioner's pro se status order is as follows: light and in of the fact that Francis was decid- ed To after Gunn’s find an first presenta- abuse of the writ for Court claims, tion of new finds that the the Court must find has abused the intentionally writ. withheld those grounds prior petition from the or that his 14. neglect We note that our presenting in not discussion here is them limited to was inexcusa- Zant, question 585, the petitioner ble. Moore of (11th v. whether a 734 F.2d has 590 abused Cir.1984). However, the writ. petitioner the Because we ”[i]f conclude that the district present justifiable able to court some was within its determining reason ex- discretion in actions, plaining his that reasons Gunn did which make it not abuse the we do not just fair and for the entirely trial court reach separate the to overlook question of whether allegedly conduct, abusive justice the trial court ends of would be served entertain- should petition." address the successive ing Potts had Gunn in fact abused the Zant, (5th 638 F.2d 741 Cir. Unit B writ.

959 time; in- an earlier always existed prosecuted he time petitioner at pro se rea- rather, petitioner is whether quiry, petition. pro se prior his it or about not know sonably either did it”) (emphasis presented not have could C. 847, 862 added); Kemp, 824 F.2d Moore v. of a use long We need dwell J., Cir.1987)(in banc) (Tjoflat, concur- (11th knowl- petitioner’s test of subjective part) dissenting part and ring prior prosecuted he the time edge at failure to assert (“Whether petitioner’s a clear law makes se, case our for writ proceeding habeas in an earlier his claim any step in first is the inquiry that such course, reasonable- of on the depend, will analysis. the writ abuse circumstanc- under the of his conduct ness deliber- above, who petitioner a As noted a may deem court es.... [T]he ground withholds knowingly and ately if ... a his claim to have waived petitioner haveWe the writ. has abused for relief shoes standing in his reasonable to know petitioner for a that recognized claim.”), vacated brought have could — both he must know relief ground -, 109 remanded, U.S. ground underlying that facts 922 those facts, that i.e. those significance implicitly, recognized long this haveWe for relief. legal ground facts constitute claims that some are ruled we have when Did the test: subjective simply a This is effec have that we and obvious so basic did he the facts know of petitioner must that tively presumed legal basis might provide they know that Gay v. United known them. See have If the relief. habeas for federal Cir.) (11th (ap States, 615 F.2d both, assert yet did not knew actually noted, that court order district proving then petition, prior for relief in ground peti that his shown [petitioner] “Nor has indeed heavy very burden must meet he ‍​‌‌‌‌​​​‌​‌‌​‌‌‌‌‌​​‌​​​​​​‌​‌​‌​‌‌‌​​​‌​‌‌‌​‌‌‌‍he could grounds which is based on tion his omission. may excuse the court before knowledge by the exercise had not have denied, 484 diligence.”), cert. reasonable D. Newsome, F.2d Allen subjective into the inquiry An Cir.1986) court (affirming district (11th unquestiona petitioner is knowledge of the require legal does not step. сonclusion only “[i]t is not the step, it first bly the that an inten- the fact appreciate advice affirm petitioner’s deliberate just as a For transcript, or the trial of a distortion tional him to the “may disentitle ative conduct evidence, if with the tampering deliberate Sanders, U.S. at seeks,” relief claims”). constitutional proven, amount his unreason 1078, so too will v. Stoneci Associates also reasonably See who able inaction. Winfield Cir.1970) (“In F.2d 1087 facts, pher, 429 or of certain known have action, it is fun [independent] type of this legal grounds for facts constitute certain if grant relief will not equity damental relief, in the same stands habeas ‘has, by exercis or complaining party who as one did position before had, an have would diligence proper ing present the unreasonably did not know but ap ...’”) (quoted with remedy adequate delayed unrea claim in F.2d Dugger, proval in Booker See Ste presenting it.15 sonably before (abuse Cir.1987) writ 284) (11th 1043, 105 Kemp, 469 phens — U.S. -, J., case), (Brennan, (1984) L.Ed.2d (1988)). is sim This certiorari) (“For L.Ed.2d dissenting from denial if the saying way ply another by definition evidence’ ‘newly discovered it no more find Court's will ground relief. anything Indeed, introducing new we are not 9(a) under Rule determination make Rule procedure. Under difficult to federal 9(a). See very inquiry Rule they into under now same than do must conduct courts reasonably or petitioner knew supra whether note availability have known should 960 tioner did not know of the claim his lack of In applying objective standard of knowledge was unreasonable, and will not knowledge pro to the petitioner, se how-

be an excuse. ever, courts must be careful not to fore- pro petitioners close se who have done We note that the Fourth and Fifth nothing to deserve forfeiture: “Under the Circuits have come opposite conclu guise sion, fashioning procedural rule, and ruled that a we inquiry court’s under justified are not Rule in wiping is limited—in out the pro practical the case of the petitioner efficacy se jurisdiction of a his knowledge actual at conferred Con- —to prosecuted time gress he prior petition. his on the District Courts.” Daniels v. Miller v. Bordenkircher, (4th Allen, 764 F.2d 443, 245 344 498-99, U.S. 73 S.Ct. Cir.1985); Blackburn, Passman v. 797 97 L.Ed. 469 (5th F.2d Cir.1986), U.S. 107 S.Ct. 94 L.Ed.2d 794 E. (1987). Nevertheless, we disagree, equitable conclude that the principles of the urges The state pro us hold to se abuse of the writ doctrine permit also tioners to a higher still standard. The inquire court to into the reasonableness of state would have us cut abuse of the writ the petitioner’s prior lack of knowledge. from equitable loose its origins, and instead objective An standard has the salutary adopt a rule that petitioners se effect of requiring petitioners diligent to be be held to the same standard of knowledge bring their claims in petition, their first lawyer. as a Mindful that “the importance important goal for the administration of of the writ that it not lose its necessitates] federal corpus. habeas Galtieri v. Cf. effectiveness in procedural morass,” Wainwright, (5th F.2d Cir.1978). Johnston, Price v. 334 U.S. at Without prisoners holding to a standard and mindful of the implicit fairness reasonable diligence, petitioners would in equitable doctrines, reject we the state’s have little incentive to present research and argument. their possible claims in petition, one thus If Gunn had been counseled opening when the door for piecemeal “needless filed his litigation.”16 then By applying an objective would attribute to Gunn standard of knowledge knowledge to petitioner his time counsel at of his prior pro time the application se first petition relief, federal habeas was filed. E.g., may courts Ritter properly Thigpen, minimize abusive Cir.1987). conduct F.2d 662 without unduly That is say, foreclosing the consideration of subsequent inquiry our toas whether the petitions that are not truly abusive. knew whether certain facts constitute a grounds relief would equitable change The principles of the abuse of whether his counsel knew or are writ should have both sword and a shield: the known.17 The abuse Court writ doctrine has ruled will not deny the that Francis Franklin, 307, 105 forum unless he has S.Ct.1965, done something L.Ed.2d himself, (1985) disentitle yet it mere requires ly an application conduct himself Sandstrom v. Mon diligence. tana, reasonable fo- cus remains on the petition- conduct (1979), and thus did repre er, and whether he has done something to sent a new rule of law. Aiken, Yates v. disentitle himself from the relief he seeks. 98 L.Ed.2d 546 recognize 16. We petitioners that for most provide will an added incentive to them to con- getting incentive of prison out of as soon as solidate all claims in petition. one possible enough will be try incentive to raise possible all petition. claims in their first Never- 17. We observe a symmetry certain in the law theless, to the petitioners extent that some after our objective decision here. An standard to use seek the federal habeas mechanism to applied will be and, petitioners both to "vex, harass, delay,” objective standard we have past, done in lawyers. relief”); Newsome, Therefore, ing to (1988).18 would attribute Golden v. we (11th Cir.1985); F.2d 1478 Booker v. hypothetical lawyer construc Wain Gunn’s (11th Cir.), F.2d wright, 764 cert. de knowledge tive of the Franklin/Sand- nied, 474 U.S. 106 S.Ct. Thus, coun claim. if had been strom Gunn Griswold, L.Ed.2d 324 Williams prior habeas prosecuted when he his seled (11th Cir.1984); 743 F.2d 1533 Roberts v. the Frank petition, his failure to raise (11th Cir.), 666 F.2d 517 Wainwright, cert. an claim would constitute lin/Sandstrom denied, he were able to unless abuse (1982). Nor will we do so now. reason” “justifiable for present some other Kemp, omitting E.g., the claim. Tucker pro Acknowledging peti- our rule that se (11th Cir.), 819 F.2d 978 tioners will not be treated same as 96 L.Ed.2d 364 petitioners, argues counseled state that (1987). limit to we should that rule how courts Janus-like, pleadings. construe state petitioner is rule a counseled recognize pro us se would have pro than a se higher held a standard lawyers—and tioners are not the same as supplant not the abuse of petitioner does thus should not be held to the same stan- Instead, places “the it the writ doctrine. lawyers dards when it comes to the adversary role of counsel our elemental pleadings—while rules of at the same time equitable system” in the context denying very respect truth with doctrine. v. Es- abuse of the writ Jones knowledge the substantive law. Such a Fifth Circuit telle, F.2d at 167. As the rule would be untenable. observed, is that our in- has it “inevitable do se pro petitioners We not hold omitting excuse for a claim from quiry into petitioners same standards as counseled be depending upon an writ will differ earlier pro applicant cause se will more than “[a] by represented whether likely possible be aware of all the sets prosecution.” counsel the earlier writ granting in a of facts which could result Id. by corpus.” Mays Balk relief habeas however, appeal, fact of this The salient added). com, (emphasis 631 F.2d at 51 when he is that Gunn did have counsel comes to wheth This no less true when it petition. filed first habeas pro held er a se should be legal certain facts constitute a petitioners not know that Pro se habeas do ground federal habeas relief. There position stand the same as counseled fore, pro petitions liberally se we construe petitioners. petitioners Because habeas for unlettered “to make effective [the writ] unlearned in the law and unfa “are often Burford, Darr prisoners.” complicated plead rules of miliar with 587, 590, 94 L.Ed. 761 “impose ing,” do not on them the same we high legal we standards art which Moreover, origins equitable might place on the members of the of the writ doctrine necessitate some abuse Johnston, 334 profession.” Price v. inquiry into the level of individualized Accordingly, we knowledge petitioner. and conduct of from rule that above, have never wavered discussed we believe it As have courts should construe is consistent this that liberally objectively se more than one drawn filed held to an reasonable standard. Balkcom, up attorney. Mays v. same entirely It is with those inconsistent however, (“A pro applicant suggest equitable principles, at 51 se will more F.2d knowledge likely possible impute than not be aware of all the that courts should petitioner. lawyer in a We will grant- sets facts which could result any bearing question repre- law not have 18. The of whether decision stitute new does very lay person question a new rule of law is different from sents that of whether a reasonable reasonable whether would Franklin-type jury that a instruc- would know present ground know certain facts tion violates constitution. Thus, did relief. the fact that Franklin not con- legal not so as to distort law articulate the thus could be a for federal basis relief, that petitioner knowingly forgoes clearly rule a is not erroneous. about, something Eminently jurists that he does not just know reasonable read such diligence charge nor with reasonable could have and found no viola- constitutional Franklin, take discovered. We some solace from the tion. See Francis 471 U.S. at that, now, (Rehnquist, J., joined observation until court no has 105 S.Ct. at O’Connor, by Burger, C.J., J., even considered the state’s view credible dissent- ing); State, alternative. 244 Ga. Skrine v. (1979) (Georgia Supreme S.E.2d 900 Court Therefore, in determining whether unanimously rejects constitutional chal- pro petitioner se has abused the we lenge charge). It Franklin would be not pro do attribute to the se if odd indeed were to that court we hold knowledge a lawyer. finding had erred in pro that a reaching was not reasоnable in the same F. by justices conclusion as that reached mind, this in turn With to the case at Georgia Supreme Court and of the recognized hand. The district court that United States Court.21 proceeded pro Gunn had se when he filed Having found that Gunn did not know of Thus, prior petition. his the court did not claim, the availability Sandstrom impute knowledge lawyer of a to Gunn. reasonably and that he should not held be Instead, the court looked at the nature of claim, to have known of the the district legal the substantive claim involved and equitable court exercised its discretion and complex found that it was so that Gunn’s peti- decided entertain Gunn’s successive prior petition failure to it in raise his say tion. We cannot that court’s deci- an abuse the writ.19 Viewed sion anwas abuse of its sound discretion. analytical framework we have outlined above, the district court concluded that Had the district court come to a conclu- neglect raising Gunn’s the Sand- did, sion other than the one it we cannot strom/Franklin claim was excusable be- say that that decision would have been know, cause he did not nor should he rea- abuse of discretion either. al- There will sonably known, have the jury instruc- ways cases as such this one: cases that ground tion intent a legal constituted range fall within the discre- for relief.20 tion, and about which minds reasonable may differ.22 It primary duty remains the We say cannot the district of the district courts to such determine court erred. The district court’s factual matters. finding person that a reasonable who read question instruction in posits would not The state that because Gunn could Constitution, realize that it violates recognize significance of Frank- supra 19. See note 13. suggest 21. We do not that a is excused omitting every point from a claim time he can judged solely 20. Had the district court Gunn opinion to one court or one dissent. Each case subjective knowledge, his then the court would facts, depends unique on its own set and we stopped have after it found as a fact Gunn bright-line cannot articulate rules. Such fact- did not know the existence of the Frank- specific province determinations are the hand, claim. On other lin/Sandstrom if the district courts. court had attributed to Gunn the same standard knowledge lawyer, as that of he then would Wilson, se, Kuhlmann 106 S.Ct. at 2639 have observed that Gunn was nor Cf. J., (Stevens, ("I dissenting) he had believe that Dis- would have cause to consider com- Thus, plexity of the Franklin claim. trict Court did not abuse its discretion in enter- applied objective case, taining test: once it although found that in this I prosecuted Gunn was se when he also would conclude that this is one of those proceeded question the сourt close cases in which the District Court could whether reasonable would have real- properly have decided [not to entertain the Franklin-type jury ized instruction was tion]"). unconstitutional. recog- unconstitutionally taken a whole lin, been able to shifted also have must proof significance Sandstrom, the state’s burden of on the issue of of legal the nize question intent to Gunn. We review this filed de well before he his was decided which Franklin, novo. See Francis U.S. petition, that pro se first Sandstrom 307, S.Ct.1965, 85 L.Ed.2d 344 simply to his This a apply case. is would Montana, Sandstrom v. U.S. challenge to the district court’s factual 61 L.Ed.2d 39 finding know of that Gunn did not fact charge legal significance jury the Sandstrom, In the Court argument based given his trial. This is unanimously jury ruled that the instruction merely conjecture, and is not on the state’s person presumes that a law intends “[t]he persuasive. the ordinary consequences voluntary his acts” unconstitutional. Because reasoning is the adopt If we were to the state’s “protects against the Constitution accused pro se we would create a Catch-22 for except proof upon beyond conviction a rea subsequent- any petitioner who petitioners: every necessary sonable fact doubt to legal grounds he a ly realizes that has the he constitute crime with which is from relief will be barred charged,” Winship, ‍​‌‌‌‌​​​‌​‌‌​‌‌‌‌‌​​‌​​​​​​‌​‌​‌​‌‌‌​​​‌​‌‌‌​‌‌‌‍In re because, he raising ground, if that all, enough recognize to it at he smart (1970), may state the not shift to ac recognized In originally. it should have intent, effectively requir cused the issue fashion, only those Alice-in-Wonderland intent, ing prove accused lack of they may who do realize that prisoners not intent is an crime with when element basis— legal present a basis can that have charged. Sandstrom, which he has been are, alas, they unaware—in feder- of which “ at at 2458. U.S. liberty’ great ‘The writ of al court. though as we were ought not to be treated Franklin, In the Court faced Francis game.” Burford, playing a Darr challenge to jury a constitutional a instruc- (Frankfurter, J., at 70 S.Ct. at 601 intent, presumed explicitly tion that dissenting). jury presumption informed “may At Franklin’s trial the be rebutted.” summary, In a abuses Georgia judge Superior gave fol- Court subsequent he in a the writ when raises lowing instruction: when petition claim based on facts known a person mind of a of sound acts if prior petition pro only he filed his prod- presumed to discretion are be known reasonably knew or should have will, presump- person’s uct but the ground that those facts constituted person may A of sound tion be rebutted. appeal, for federal habeas relief. presumed is to in- mind and discretion not err in hold court did district probable tend natural and conse- finding pеrson would not reasonable quences presumption but the acts giv jury have realized that the instruction A rebutted. will be of intent violated the Con en the issue criminal intention presumed to act with stitution, nor did district court abuse its facts, Jury, is the but the trier to enter determining discretion in sound upon may find criminal intention consid- it found that tain the once demeanor, words, conduct, eration of the of ex petitioner’s omission was result all circumstances con- motive and other neglect. cusable for which the accused act nected prosecuted. is III. ERROR SANDSTROM/FRANKLIN Franklin, at A. ruled majority of the Court 1969-70. instruction, if not cured else- that such an Having found that Gunn did abuse instructions, jury violates the where in the the district court turned may appear because it merits as we do now. The Constitution on the issue of jury juror shift the burden court that the instructions concluded it intent to the accused. The Court conclud- must be able declare a belief that was beyond ed: harmless doubt.” Id. reasonable 87 S.Ct. at 828. juror could have Because reasonable portions challenged understood the position We stand the same as the jury in this case creat- instruction whether, in determining upon district ing mandatory presumption that shift- whole, reviewing the record as a the consti- per- ed to the defendant the burden of tutionally infirm instruction harm- intent, element suasion the crucial of Thus, beyond a less reasonable doubt. our charge and because the read as a whole question this plenary. review of is See error, explain the does not or cure Clark, supra; v. Chapman Rose v. Cali- jury charge hold the does com- not supra. fornia, port requirements of with the Due A error Sandstrom/Franklin is Clause. Process “where harmless the erroneous instruction 325, 105 Id. applied to an element was of the crime that trial,” in was not at issue Bowen v. B. 546, Kemp, (11th Cir.1987), F.2d 832 548 appeal, instant another — denied, U.S. -, 1247, cert. 108 S.Ct. Georgia Superior gave Court an instruction (1988), 99 L.Ed.2d 445 or where the evi part in identical instruction found dence as element of sub crime offensive in Constitution Franklin. ject to burden-shifting instruction is The court jury part instructed the overwhelming. Kemp, Brooks v. 762 F.2d follows: 1383, 1390(11th Cir.1985)(in banc), vacated person A of sound and mind discretion remanded, 1016, and 478 U.S. 106 S.Ct. presumed is to intend the natural and 3325, (1986),reinstated, 92 L.Ed.2d 732 809 probable acts, consequences of his but (11th (in Cir.) banc), denied, F.2d 700 cert. presumption may be rebutted. 1010, 3240, 483 U.S. 107 S.Ct. 97 L.Ed.2d presumed will not be with act (1987). 744 you jury criminal intent but find upon such above, intention consideration As we noted an intent was words, conduct, demeanor, motive and all essential element of the crime for which other being circumstances connected prosecuted. Gunn was A defendant act prosecuted. may, self-defensе, by claiming which accused concede that he intended the natural probable conse Nowhere in the did instructions the court acts, quences of his Holloway see v. McEl explain burden-shifting or cure the error it (5th roy, Cir.1980), 632 F.2d 618 cert. Thus, had made. because intent is es- denied, 451 U.S. 101 S.Ct. 69 murder, element jury sential of malice (1981), L.Ed.2d but always 398 this is not impermissibly instruction shifted true. example, For defendant may con state’s burden on the issue intent to victim, cede that he intended to kill the Gunn violation the Due Process grievous bodily injury, cause him albeit in Clause. case, self-defense. In such a the defendant IV. HARMLESS ERROR will have conceded ultimate issue that subject is the impermissible burden- Although we have jury found that the shifting instruction, jury and the Sand- instruction on unconstitutionally intent strom error would E.g., be harmless. Ste burden, shifted the state’s we must deter- phens Kemp, (11th v. 846 F.2d 662-64 impermissible mine whether the in- Cir.) J., (Tjoflat, concurring), cert. struction was harmless error. Rose v. — -, Clark, 106 92 (1988). L.Ed.2d Chapman Under California, Here, Gunn testified that he intended (1967), L.Ed.2d 705 “before a constitutional death, to cause merely Williams’s harmless, error can be declared stop the court Williams long enough so that he Process Gunn, of the Due Thus, violation issue “get gone.” (Gunn) could Furthermore, because intent was of Clause. the death intended Gunn whether trial, and because the in the an issue still conse probable the natural Williams kill intended Gunn evidence nоt conceded was his acts quences overwhelming, the consti- was Williams remained defense, therefore way of jury instruction tutionally impermissible Montgomery, Baker the ease. See Accordingly, the error. not harmless Cir.1987); Patterson (11th F.2d granting the writ order district Cir.1984); (11th Ma Austin, F.2d retries unless state corpus 222, 227 Cir. Balkcom, F.2d son days is AFFIRMED. within Gunn denied, 460 1982), B Unit (1983).23 1260, 75 concurring: RONEY, Judge, Chief as to evidence say that the can we Nor by the result reached in the I concur overwhelming. intent was the element Kravitch, much Judge and opinion of intended to undoubtedly Here, while Gunn agree with I also is therein. said what the him strike with and to fight Williams Judge Hill’s and in is said of what much overwhelm- was not stick, the evidence cue opinions. dissenting Judge Edmondson’s intent the the with struck blow ing that habe- present the federal is no doubt There in- the court Because kill Williams. to in termi- presents difficulties corpus law as and on murder on malice jury the structed Following logic and the nating litigation. the is- manslaughter, charge of lesser the Supreme of the United States rationale the jury’s the to central intent was sue however, time, I am at this decisions Court the that deliberations, possible it is law now that as the conclude compelled to affect- of intent presumption impermissible this has stands, Judge decided Kravitch rea- jury could The jury’s verdict. ed the by this decided way it must be the case Gunn intended that sonably have concludеd litigants pro se my judgment, Court. just as rea- Williams, they could or to kill the deferential be accorded he did not sonably have concluded by decided given them the now treatment say Therefore, we cannot to kill. intend here distinction cases, deny the to rea- beyond a was harmless the error habe- and counselled pro se between made doubt. sonable would be inconsistent corpus petitioners already on books. what CONCLUSION V. finding the district affirm We dissenting, in HILL, Judge, Circuit in fail- the writ not abused Gunn had COX, VANCE, Circuit FAY, which challenge to constitutional ing to raise his HENDERSON, Senior Judges, and of intent the issue on jury instruction join: Judge, Circuit petition. federal habeas pro se his first new indul- that a today holds The court its discre- did not abuse The district court liti- se to tendered is to be gence not abuse concluding did that Gunn tion heretofore, have, construed his We gant. lay person a reasonable the writ because that the Today liberally. we hold pleadings chal- that the recognized not have would shall litigation consequences a basis jury instruction constituted lenged upon they do litigant as pro se upon the fall Turning relief. federal habeas litigant. counseled claim, jury instruc- of Gunn’s merits round of a second holding is made This whole, impermissibly tions, as a taken in the fed- corpus litigation to issue intent on the the burden shifted victim, told the causing death Indeed, just situa- this involved 23. Sandstrom only purpose knowledge were tion: controverting, and intro- questions he was purpose- committed crime was [W]hether points. solely necessary on those consti- knowingly duced evidence ly is a to fact 521-22, Sandstrom, 2457- In- homicide. 442 U.S. at of deliberate tute the crime deed, offense it was the lone element trial, to as he confessed issue in Sandstrom’s eral courts. It is not needed. It is not generally, see Lane, Teague v. — wise. respectfully I dissent. -, 1060, 1075, (1989)(“the judicial principle of finali- systems of the nation and of ty ... is essential to the operation the states have our long been frustrated by justice criminal unending system[;][w]ithout litigation finality, preventing finality in the criminal law is deprived of administration of much justice. criminal of its effect.”) state deterrent criminal judges defendant Federal appear is afforded many rights prevent seek laws by an unjust enacted legislative conviction. Representation by counsel, branch which permit us, trial jury, appropriate cases, confrontation and finality. reach However, cross-examination wit- when nesses, compulsory process such laws produc- given us, for the are to we to reject tend tion of testimony evidence, and other them out pre- of hand. Our yearning for finali- sumption of ty innocence upon burden does not often equal our delight in insin- prosecutor prove guilt beyond uating a rea- our right own ideas of and wrong sonable doubt among are into judgments defendant’s of state courts. tipWe protections. convicted, If a defendant may our hat to finality, but create ingen- most appeal; should appeal be unsuccessful, ious contrivances to it. I avoid have taken a defendant right has the note of tendency past some occa- United States Court for a writ of sions in which I have felt the need to certiorari directed highest court of remark that may be that “[i]t what we do the state. care Great is taken to see to it speaks loudly so that no one will hear what that a defendant protected and that con- say.” See v. Rhodes Interstate Bat- victions are proper. tery System America, 722 F.2d 1517 (11th Nevertheless, Cir.1984)(Hill J., collateral attack upon dissenting); such Wilson convictions v. follows First attack; collateral Houston Investment Corp., 566 judgment guilt 1235, in a F.2d (5th criminal may, case 1244-45 n. Cir.1978)(Hill 1 apparently, J., never be said dissenting), to be vacated, final as 959, 444 U.S. 100 long as the convicted 442, defendant lives. The 62 (1979). L.Ed.2d 371 House Report accompanying the 1966 revi- have, We here, an example. Congress sions of the procedures applicable to review recognizes that there can be no strict appli- by lower federal courts of corpus habeas cation of the doctrine of judicata res petitions by prisoners state recognized that corpus habeas cases. There must not be “[wjhile in only a small number of these any absolute rule of provides law that ab- applications petitioners have the been suc- finality solute in cases deprivation of life cessful, they nevertheless have only not or liberty through operation of the imposed an unnecessary burden on the criminal laws. That is simply because, work of the Federal courts but have also person innocent be in custody or greatly interfered with procedures in jeopardy of the execution of a death processes of the State courts delaying, sentence, there must be an opportunity for in many cases, proper enforcement of repair to a justice court of their judgments.” H.R.Rep. 1892, No. 89th for relief. Were that case, not the there Cong., (1966). 2d Sess. Courts, judges, would be no principled reason ap- for not and scholars likewise have referred to the plying judicata res to these collateral at- frustrations inherent this state of af- tack cases as is done in litigation. other See, fairs. e.g., Wilson, Kuhlmann 436, 450-54, 2616, 2625-27, Therefore, when Congress sought give 364, L.Ed.2d (1986) 378-81 us an (plurality opportunity to reach finality in the opinion); Estelle, administrаtion of justice, criminal Barefoot it did not 3391-92, 77 L.Ed.2d enact the doctrine judicata of res into habe- Thigpen Smith, corpus 792 as rules, but it provide did for the F.2d Cir.1986); Friendly, application of the considerations which in- Is Innocence Irrelevant? Collateral Attack form the judicata doctrine of res in collat- Judgments, Criminal 38 U.Chi.L.Rev. eral attack cases insofar as that can be Montana, “safety Sandstrom risking the loss without done (1979). Sand- innocent, above. described for valve” 18, 1979. Two on June was decided strom Governing Section the Rules Rule later, convicted in days petitioner was District States in the United 2254 Cases November, 1979, petitioner court. In state of a sec- dismissal for the provides Courts Georgia appeal Su- only took his direct raises if it petition successive ond or Court, claim that the he did not preme but brought and previously were claims had of intent on the issue jury instruction merits, claims or it raises on the decided govern- part of impermissibly shifted were previously time the first for proof. More than three ment’s burden the fail- finds that judge available decided, Mr. years after Sandstrom those to assert ure of corpus habeas brought a an Gunn constitutes in a grounds again He district court. 9(b), in the federal Rule Successive the writ.1 abuse of presented that had been raised the issues Petitions, Governing Section Rules Georgia Court Cases, 28 fol. U.S.C. § the con- challenge appeal did direct why these as to speculate One need stitutionality instructions. were The reasons added. were provisions denied relief on district court history of legislative clearly stated October, 1985,more than April, 1983. 2244 and to sections the amendments had been decid- years after Sandstrom six House and the Report Both the Senate ed, in his state habeas initial the new purpose of that the Report state challenged the burden corpus petition first applica- qualified “a provide was to text April shifting On instruction. judicata.” of res doctrine tion of petition for second federal tioner filed his Sess., re- Cong., 2d 89th S.Rep. No. ground, corpus, raising, his sole Cong. & Admin. in 1966 U.S.Code printed state immedi- issue. The the Sandstrom 3664; H.R.Rep. No. 89th News an constituted ately asserted that this Senate The Cong., 2d 5-6 Sess. second the It is this federal of writ. abuse “seeks to alleviate that bill Report adds the court, that by the petition, granted district increasing unnecessary an burden the [of appeal. in his consider we in petitions filed court] number sec that the readily concludes The court degree finality greater introducing a by raising the Sandstrom habeas proceed- ond corpus in judgments habeas an first time constitute for the would Cong., 2d issue 89th S.Rep. No. ings.” exception it writ absent of the Cong. & abusе U.S.Code reprinted in 1966 Sess. states, It petitioner. for has discovered Congress heard 3664. News Admin. he when if had been counseled “... Gunn expressed alarm responded our petition, his prior habeas prosecuted his litigation. collateral endless the Franklin/Sandstrom failure to raise tarry long to demon- need is no There an abuse constitute claim would exception that, discovered but for an strate present some unless he were able today, Gunn’s second by the Mr. court omitting reason” “justifiable other The of the an writ. be abuse tion would Kemp, 819 F.2d E.g., Tucker claim. orders upon which court only issue Cir.1987), jury instruc- that a the contention relief is (1987).” presumption of a intent had created tion on petition- that a has discovered The court rule of violated the intent kill and thus is crucial.2 counseled status pro se in er’s or Supreme Court by down law laid Georgia by justices of that reached provisions 28 U.S.C. restates 1. Rule Supreme Court." 2244(b). the United States Court and of § logically to reasoning for it leads is flawed This excusable, neglect holding petitioner's to be In lawyers, and thus counseled a conclusion indeed to would be odd "[i]t states the court recognize the constitu- petitioners, failed to who discre- of the court’s it was an abuse rule that in interim between at issue tional claim petitioner was not pro se find that tiоn to be excused Franklin also Sandstrom and reaching the same in conclusion reasonable doing, so the court comes edge, to the rather would consider, not a court in addi- astonishing litigant conclusion is tion pro se status, or counseled such responsible more agent what fails to intelligence, factors as litigation experi- do than for what he to do fails himself. If ence, and the quality existence and of as- lawyer has a who acts for him determining sistance in the culpability vel in litigation, responsible petitioner? non of a Would petition- not a negligence for the lawyer omitting in er who has become schooled in habeas cor- petition, a claim in his first thereby render- pus law be treated less gently than one ing his second However, abusive. who has no knowledge at all of collateral litigant if the acts for himself negli- litigation? attack Similarly, pro if a se gently omits a claim in the first litigant acting has been guidance with the many cases respon- would not held and assistance of a “writ writer” sible for that omission and freely liti- penal institution, might he not be held ac- gate matter in petition. a second countable as would one who rep- has been The opinion speaks equities by resented rate, counsel? anyAt would it inherent in corpus litigation and, habeas necessary not be fоr the court to determine facially, states appear reasons that suffi- the skill of the writ representing writer cient for giving special consideration to the counseling particular petitioner, com- pro litigant se in this context.3 If the first paring the writ writers’ skill in collateral habeas case ambigu- were litigation attack with the skills aver- ous as to whether or not it raising age attorney? If such skill up, measured particular issue, might construe it lib- would not be held erally, finding as account- that the issue was raised. However, petitioner represented able as a what the today court does is hold aver- consequences litigation age attorney? are not litigates same for one who pro se and permutations will be almost endless one litigates who through counsel. depart once we from treating litigant aas Facially, may it appear “fair” to allow litigant begin treating se and a litigants corpus, who are represented petitioner differently for the presumably ignorant of the law and the purpose ascertaining consequences procedures, to do what would other- litigation. are There so many facets of wise be an abuse of the represented writ if posture the litigant ought to be by However, counsel. a brief reflection inspected that the notion of abuse of the will demonstrates not do. The writ will probably disappear just when — adopts a purportedly “objective” the administration of justice criminal in this through standard which a district court country most desperately needs it.4 does not look to the actual knowledge a I respect right litigant a repre- the time to prior of his but sent “inquire[s] rather himself or into the herself. Pro pleadings se reasonable- petitioner’s ness of the should be liberally lack of knowl- construed to insure that edge.” In inquiring litigant into the reasonable- has access. litigant When the ness of petitioner’s a prior lack of knowl- has availed right, himself of this the conse- unless the court has lawyers concluded that pleading help pro to a se have the should justices know more Supreme than of the same access to the courts that he would have Georgia Court of the United States represented. if he had had been Golden v. New Nevertheless, above, Court. depicted some, 1478, (11th Cir.1985); 755 F.2d 1480 Phil court states that knowledge Mashburn, constructive lips 782, of a (11th v. 746 F.2d 784 Cir. 1984); Sandstrom/Franklin claim would be Griswald, 1533, attributed Williams v. 743 F.2d lawyer, to a represented and thus a petition- (11th to Cir.1984); 1542-43 Wainwright, Roberts v. er. I submit that 517, there is no real 1982), defensible 666 F.2d 519 Cir. differentiating basis for 878, 174, between counseled and 459 U.S. (1982). 74 L.Ed.2d 143 petitioners. se case, below, 3. This unlike the ones cited does enemy "We have met thе (apolo- it is us!” liberally a construing involve court gies Pogo). to

969 finality in substantially more lead to ed to him and for the same quences petitions corpus of habeas disposition represented. iswho for one Still, in federal courts. by prisoners state DISSENT.5 respectfully I that he by petitioner showing a colorable a court’s justify in innocent would was fact Judge, EDMONDSON, Circuit case of in the worst even refusal to dismiss dissenting: writ; factual apart from abuse of and— points, good makes opinion Hill’s Judge objective that some showing innocence—a case, our In this a little. to add I want but and his factor external Rules 9(b) of the Rule interpret to job is an present his effort agents blocked I under- As 2254 Cases. Governing Section justify a might claim earlier available provides simple and it, is Rule stand dismiss. That not to decision standard objective anwith federal courts unsound pro se is an petition was first filed for petitions second dealing with apply dismiss, declining however. for basis prisoners. corpus by state habeas re- nor statutes the Constitution Neither raising files prisoner If a state as- petitioners have habeas quire that not raised available that was a claim legal Because counsel. sistance has abused prisoner earlier his has not been legal expertise presence Wilson, 477 v. Kuhlmann the writ.1 See fed- fully in partiсipating made essential 6, n. 2622 436, 444 n. petitioner’s proceedings, eral habeas opinion). (1986)(plurality L.Ed.2d lawyer is ines- acting like a thinking and arguable an whenever available claim is being earlier bound sential to it. for in law exists fact and basis addition, avail- a claim’s Cf. In proceedings. 527, 537, 106 477 U.S. Murray, legal arguable Smith is, whether ability—that (1986); 91 L.Ed.2d hinge S.Ct. on for it—does exists basis — -, Williams, looking Neitzke qualities L.Ed.2d not. or it is is available The claim claim. arguable California, point Anders Whether 1396, 1400, of law. question inarguable is might ulti all courts or even That some Montana, of Sandstrom effect against argument mately resolve L.Ed.2d mean that does not contention petitioner’s intent about (1979), jury instructions is unavailable.2 the claim in the law issue live cases was a criminal his first petitioner filed when faces an abuse aWhen court left out Petitioner corpus. play; federal habeas into comes court’s discretion then claim petition a his first may decline dismiss the court omitting By of law. as a matter abusing available writ petitions general, tion. filing a second later claim and 9(b) intend- an available was Rule dismissed: be withholding claim or known Deliberately opinion that I do not overlook 5. 1. vex, only ha- petition filing second have been suggests Mr. Gunn that examples of abuse delay are rass and which was guilty of the crime—murder—for Congress nor the neither though, suggestion, сomes convicted. This ways are the exclusive said these Court has reaching opinion the conclusion part of Instead, these acts seem abusing the writ. in Sand- condemned instruction that the ways. only the most obvious guilt-inno- prejudicial in the strom/Franklin suggesting that court were If the cence trial. can show rejecting a claim decisions Judicial showing of presents the "colorable 2. Engle v. time. at the was alive issue Kuhlmann to in referred factual innocence” Isaac, n. Wilson, (1982). Incidentally, (1986) opinion), I 1574 n. (plurality L.Ed.2d of some good discussion Engle sets out a also No have said so. opinion would assume view, Writ; recognition my costs the Great ought to be heard abusive claim that an costs, especially related those other of these was claimed it such innocence because asserts federalism, therefore, U.S.C. section led to 28 briefs, argument; I pleadings, 9(b). and Rule not be evaluated. need take it it petition, he abused the writ. He asserted ground

no that warranted the district

court’s decision to decline to dismiss the

second for habeas relief. In the

light 9(b), of Rule I would reverse the

judgment of the district court. America,

UNITED STATES of

Plaintiff-Appellee, WISE,

Clifford Defendant-Appellant.

No. 88-3752.

United States Court of Appeals,

Eleventh Circuit.

Aug. Pizzo,

Mark A. Asst. Federal Public De- fender, Tampa, Fla., for defendant-appel- ‍​‌‌‌‌​​​‌​‌‌​‌‌‌‌‌​​‌​​​​​​‌​‌​‌​‌‌‌​​​‌​‌‌‌​‌‌‌‍lant. Meythaler, Ward A. Atty., E. Walter

Furr, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.

Before TJOFLAT VANCE, Judges, Circuit *, and PITTMAN Senior Judge. District TJOFLAT, Circuit Judge: February 25, On 1988, a grand jury returned a six-count indictment that charged appellant Clifford Wise with vari- ous violations of the narcotics and firearms * Pittman, Virgil Honorable Senior U.S. sitting by designation. District Judge for the Alabama, Southern District of

Case Details

Case Name: Calvin Gunn v. Lanson Newsome, Warden

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 7, 1989

Citation: 881 F.2d 949

Docket Number: 87-8287

Court Abbreviation: 11th Cir.