Alvin Leslie DAVIS, Jr., Petitioner-Appellant, v. David C. MILLER, Warden of the Lawton Correctional Facility, Respondent-Appellee.
No. 07-7062.
United States Court of Appeals, Tenth Circuit.
July 7, 2009.
571 F.3d 1058
SEYMOUR, Circuit Judge.
In this case, we are confident that any improper suppression of Mr. Burke‘s cross-examination of Mr. Wilson was harmless. Most importantly, in the scheme of the government‘s overall case against Mr. Burke, Mr. Wilson‘s testimony was of relatively minimal importance, and mostly cumulative. Mr. Wilson did not testify that Mr. Burke sold drugs to him—only that Mr. Burke was present at the shared residence while Mr. Johnston was selling drugs. Numerous witnesses testified to the same or similar facts. Kim Meiwes, for instance, testified that she saw Mr. Burke at the house when she purchased drugs from Mr. Johnston. Aple. Br. 14. Similarly, April Sprong testified that she separately purchased drugs from both Johnston and Burke at the shared residence. Finally, Mr. Johnston—Mr. Burke‘s alleged conspirator—also testified in accord with the state‘s general theory.
The extent of the cross-examination actually conducted also somewhat diminishes the risk of prejudice from any premature suppression of Mr. Burke‘s line of questioning. For instance, Mr. Burke was able to elicit explicit testimony that Mr. Wilson had never purchased drugs from him. R. V 444-45. Mr. Burke also impeached Mr. Wilson by presenting evidence of his extensive criminal history, including that he had previously been convicted of providing false information to a court. R. V 442; see Jones, 206 F.3d at 958 (finding relevant to the harmlessness inquiry whether the witness in question was impeached through other means).
Finally, the state‘s case was not so weak that further cross-examination of Mr. Wilson reasonably could have been expected to affect the jury‘s deliberations. Multiple witnesses had testified that drugs were sold at Mr. Burke‘s home and that Mr. Burke himself engaged in the sale of drugs. In addition, Mr. Johnston testified that he and Mr. Burke obtained drugs from each other on occasion to serve their customers. R. V 342. In the context of this evidence, even the total absence of Mr. Wilson‘s testimony would have done little to diminish the government‘s case. We therefore conclude that any alleged Confrontation Clause error was harmless beyond a reasonable doubt.
IV. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
Steven M. Presson of Presson Law Office, Norman, OK, for Petitioner-Appellant.
W.A. Drew Edmondson, Attorney General, and Keeley L. Harris, Assistant Attorney General, State of Oklahoma, Oklahoma City, OK, for Respondent-Appellee.
Before TACHA, HOLLOWAY, and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
Alvin Leslie Davis, Jr., appeals the district court‘s sua sponte dismissal of his
I.
Mr. Davis was tried and sentenced in the district court of McIntosh County, Oklahoma. His first trial ended in a hung jury; at the second trial, he was found guilty of first degree murder and sentenced to life without the possibility of parole. Mr. Davis‘s direct appeal to the Oklahoma Court of Criminal Appeals was denied, and his conviction became final on December 5, 2005. On December 4, 2006, Mr. Davis filed a timely
Upon receiving Mr. Davis‘s “preliminary” petition, the district court ordered him to file an amended petition by December 26, 2006. The court subsequently granted his motion for an enlargement of time and extended the deadline to February 22, 2007. Mr. Davis failed to file an amended petition by that date, and on March 1 the magistrate judge entered an order directing him to show cause by March 21 for this failure. Again, Mr. Davis did not respond to the court‘s orders. The district court entered a second show cause order on May 31, setting a new deadline of June 11 and warning that dismissal could result if Mr. Davis failed to comply with the show cause order.
On June 11, 2007, counsel for Mr. Davis responded to the second show cause order, explaining that he had failed to file an amended petition because he had experienced numerous computer problems and had undergone a family crisis.1 He requested a further extension of the filing deadline, or, alternately, that the court “instead consider each of the claims contained in the preliminary petition on the merits.” Aplt.App. at 20. The court granted the extension and ordered Mr. Davis to file an amended petition by July 10. Counsel for Mr. Davis again missed the deadline. On July 16, the district court dismissed Mr. Davis‘s petition sua sponte under
II.
A district court may dismiss an action sua sponte “[i]f the plaintiff fails to prosecute or to comply with these [procedural] rules or a court order.”
We have long held that dismissal of an action with prejudice is a drastic sanction that should be employed only as a last resort. In Meade v. Grubbs, 841 F.2d 1512, 1520 n. 6 (10th Cir.1988), we said, “Dismissal of an action with prejudice is a severe sanction, applicable only in extreme circumstances. Because dismissal with prejudice defeats altogether a litigant‘s right to access to the courts, it should be used as a weapon of last, rather than first, resort.” (internal quotations and citations omitted). With that general rule in mind, we subsequently set forth five factors the district court should consider before imposing the ultimate sanction of dismissal:
- the degree of actual prejudice to the defendant;
- the amount of interference with the judicial process;
- the culpability of the litigant;
- whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and
- the efficacy of lesser sanctions.
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.1992) (internal citations and quotation marks omitted). It is “[o]nly when the aggravating factors outweigh the judicial system‘s strong predisposition to resolve cases on their merits [that] dismissal [is] an appropriate sanction.” Id. Importantly, we have noted, “The intent is to impose the sanction where the fault lies.... If the fault lies with the attorneys, that is where the impact of sanction should be lodged. If the fault lies with the clients, that is where the impact of the sanction should be lodged.” In re Baker, 744 F.2d 1438, 1440, 1442 (10th Cir.1984) (en banc). Significantly, we made clear in Ocelot Oil Corporation v. Sparrow Industries, 847 F.2d 1458 (10th Cir.1988), that the purpose of the first three factors is to help the court determine whether the lawyer or the client is at fault and, accordingly, where “the impact of the sanction [should] be lodged.” Id. at 1465.
The district court concluded here that the Ehrenhaus factors weighed in favor of dismissal. First, the court found “significant” prejudice to the respondent because “[p]etitioner has failed to file an amended petition for habeas relief listing all claims,” and because “[t]he court found his original petition was lacking.” Aplt.App. at 5-6. Without the final version of the petition, the court concluded, it was difficult for the respondent to know what the claims were against him.
It is not clear to us why the district court found the preliminary petition “lacking.” Aplt.App. at 6. Apart from counsel‘s disclaimers and notice of intent to file an amended petition,3 the petition appears
Furthermore, although respondent was served with the original petition, he never entered an appearance in this case. Because the district court entered an order requiring Mr. Davis to file an amended petition the day after respondent was served with the original petition, there is no chance respondent was prejudiced by exerting effort to reply to the initial petition. This case does not present the usual problems of delay where responsive pleadings, motions for discovery, status conferences, or trial preparations were underway when the action was dismissed under
With respect to the next factor, the district court found that there had been “extreme” interference with the judicial process because the court was forestalled from taking any action on the case until Mr. Davis filed his amended petition. Aplt.App. at 6. The court was clearly correct, and we reject Mr. Davis‘s argument to the contrary. Although certainly other types of delays may cause an even greater interference with the judicial process than that which occurred here, the untimeliness and failure to respond to court orders cannot be ignored. This factor impacts the court‘s ability to manage its docket and move forward with the cases before it, and it cannot do this if a party fails to respond to court orders.
In assessing the culpability of the litigant, the district court observed that “it is difficult to determine what role the actual petitioner has played in the delays.” Id. To the contrary, however, the record does not support the conclusion that Mr. Davis had any role in the delays. In both the response to the show cause order and in the briefing before this court, Mr. Davis‘s counsel very clearly stated that the fault was solely his own and that his client played no role in the delays. While we do not excuse a party‘s failure to comply with court orders simply because responsibility lies with his counsel, see Gripe v. City of Enid, 312 F.3d 1184, 1189 (10th Cir.2002) (“Those who act through agents are customarily bound by their agents’ mistakes.“), we have repeatedly emphasized the importance of directing sanctions at counsel when the fault lies with him rather than than with his client. See In re Baker, 744 F.2d at 1442.4 In applying this standard, “[w]e have upheld dismissals and defaults where the parties themselves neglected their cases or refused to obey court orders, or where counsel engaged in deliberately dilatory tactics or other trial strategy intended to inure to the benefit of the client.” Ocelot Oil Corp., 847 F.2d at 1464 (internal citations omitted). On the other hand, “[w]e have reversed dismissals and defaults ... where inadvertence or simple neglect were the basis of the court‘s decision.” Id. at 1464-65.
There is no indication that Mr. Davis‘s case falls into the former category—Mr. Davis was not responsible for his counsel‘s missed deadlines, and certainly counsel‘s actions were not strategically planned to benefit Mr. Davis, who is incarcerated for life without parole. Cf. Ehrenhaus, 965 F.2d at 921 (party intentionally failed to appear for deposition). We recognize that counsel‘s actions probably constitute more than inadvertence or simple neglect. While we are not wholly unsympathetic to the events that contributed to counsel‘s repeated failures to comply with deadlines in this case,5 we note that many deadlines were missed due to garden-variety causes such as computer failures and internet connectivity problems. Moreover, all of these problems could have been explained to the district court in advance of the deadlines. On balance, however, because Mr. Davis himself was not at fault and because the record does not support a conclusion that counsel‘s actions rose to the level of “willful misconduct,” see id. at 920, this factor does not support dismissal.
The district court‘s second show cause order warned that “[f]ailure to properly show cause as to why petitioner failed to comply with this court‘s [first show cause] order could result in dismissal of this lawsuit.” Aplt.App. at 2. Mr. Davis timely responded to this order on June 11. In his filing, he requested an extension, but then subsequently failed to file the amended petition by the new deadline. It was after this failure that the district court dismissed the case. Thus, Mr. Davis and counsel were warned about the possibility of dismissal, albeit not in connection with counsel‘s most recent failure to meet a deadline.
We have held that “constructive notice—that is, notice ... objectively based upon the totality of the circumstances (most importantly, the trial court‘s actions or words)” is adequate to support dismissal. Rogers, 502 F.3d at 1152 (concluding litigant received constructive notice where district court had earlier entered show cause order warning that failure to file status report may result in dismissal); see also Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1150 (10th Cir.2007) (concluding litigant had constructive notice where defendants had earlier filed
Finally, we consider the efficacy of lesser sanctions. The district court concluded that “lesser sanctions would not correct the behavior of Petitioner.” Aplt.App. at 6. But here the court was presented with an obvious lesser sanction—withdrawing permission to file an amended petition and evaluating the original petition on the merits—which would have allowed the case to proceed immediately with no opportunity for further filing failures by Mr. Davis‘s counsel. Cf. Rogers, 502 F.3d at 1152 (“[N]o appropriate lesser sanction occurs to us, and [the plaintiff] has never suggested any.“); see also Ecclesiastes 9:10-11-12, Inc., 497 F.3d at 1150 (noting plaintiff was unable to identify a sanction short of dismissal). Given the availability of this alternate sanction and the fact that it was counsel who was at fault, the district court should have considered proceeding with Mr. Davis‘s original petition before dismissing the case entirely. See Nasious, 492 F.3d at 1163 (suggesting that a district court should generally consider “the practicability of alternatives to dismissing ... with prejudice“); Ehrenhaus, 965 F.2d at 918 (“It is within a court‘s discretion to dismiss a case if, after considering all the relevant factors, it concludes that dismissal alone would satisfy the interests of justice.“).
In addition, Mr. Davis‘s status as an incarcerated prisoner distinguishes this case from those involving typical civil litigants with resources at their disposal. While clients are bound by the actions of their attorneys in civil and criminal cases alike, under the totality of the circumstances approach this circuit applies, see In re Baker, 744 F.2d at 1440, the district court should consider the unique constraints on an incarcerated prisoner as well as the liberty interest at stake when weighing whether to pursue alternative sanctions. A malpractice suit against his attorney cannot bring Mr. Davis his freedom.
In sum, the only factors weighing in favor of dismissal are interference with the judicial process and notice to Mr. Davis that dismissal was possible. We recognize that district courts have broad discretion to dismiss cases in circumstances where there is extreme dilatory conduct, but we emphasize that “dismissal is usually appropriate only where a lesser sanction would not serve the interest of justice.” Meade, 841 F.2d at 1520 (internal quotation marks omitted) (emphasis added). We are convinced that this case falls within the category of those cases where “the deterrent effect of a default or dismissal is likely to be substantially achieved through lesser sanctions,” and that dismissal with prejudice was not warranted. Ocelot Oil Corp., 847 F.2d at 1465. As we explained in In re Baker, where we affirmed monetary sanctions against counsel for delaying trial by failing to depose a necessary witness, while the district court could have remedied the inconvenience to the court by denying the continuance, that approach “would turn the purpose of sanctions on their head.” Id. at 1441. Because “[i]t [was] clear from the record that the
For the foregoing reasons, we REVERSE the district court‘s dismissal of Mr. Davis‘s
TACHA, J., concurring.
I concur in the result. I agree that we must reverse the district court‘s order of dismissal. I write separately to emphasize that litigants are generally bound by the mistakes of their attorneys and that district courts maintain wide discretion to dismiss cases accordingly. I also cannot agree with the majority‘s view that the respondent suffered no prejudice and that the district court did not consider the propriety of proceeding with Mr. Davis‘s original petition. Nevertheless, this is a most unusual case in which counsel for Mr. Davis essentially admitted professional misconduct to the district court. Thus, while this case would normally be dismissible, I would hold that because the court was on notice that counsel failed his duty of competent and diligent representation to a pro bono client, the court should not have aimed the sanction toward the client but should have fashioned an alternative remedy.
Notes
Aplt.App. at 23. Similarly, petitioner began the “Propositions of Error” section by stating:Because of the very short time frame undersigned counsel has had to work with this case, and because of its two trials and extremely lengthy record, counsel does not yet possess a comfortable working knowledge of the facts of the case and trials. In order to meet the filing deadline, however, counsel has on information and belief formed an opinion that the claims pursued in state court were validly based on the available records and can be supported and better briefed in the near future after a better working knowledge of the record is obtained.
Id. at 30.The following propositions of error are taken from the state direct appeal brief filed on Davis‘s behalf and which claims are properly exhausted for federal review. Counsel anticipates that the claims will be supplemented with better briefing after the lengthy two-trial record in this case has been thoroughly reviewed and legal research has been completed. In situations such as this, where a preliminary filing is made on an emergency basis to preserve claims for federal review in light of the Section 2244(d) deadline, it is normally the case than an amended petition abandons some claims and concentrates on those that present the most viable claims for federal habeas relief.