Gary Burris v. Al C. Parke, Warden
72 F.3d 47
7th Cir.
1995
Check Treatment

*1 cordingly, agree we with the District Court Gary BURRIS, Petitioner-Appellant, plaintiffs’ fight- cross does not constitute ing words. PARKE, Warden, Respondent-

Al C. only briefly We need address ar Appellee. guments intervening Homeless Hotline of Cincinnati. Greater United States First, reject summary inappropriate because of the genuine existence of issues of material fact. Submitted Nov. intervenor, parties, including submit Decided Nov. ted the case to the District Court Rehearing Denied Nov. 1995.*

joint stipulation agreed of facts and Granting Rehearing Order En Bane and dispute material facts were not and that Vacating Opinion Nov. the ease dispo for sition in accordance with Federal Rule of Knight Civil Procedure 52. Riders the Ku Klan, F.Supp.

Klux at 588. The Home collaterally

less Hotline cannot now attack stipulation. this (submitted) Alan M. Freedman and Bruce Bornstein, Bornstein, H. Freedman & Chica- Finally, since there is no violation of the IL, go, for Petitioner-Appellant. ordinance, we do not its constitution- ality, intervening and we do not consider the Geoff Geoffrey Slaughter, Davis and Office defendant’s invitation to new First General, Attorney IN, Indianapolis, by upholding Amendment law the ordinance Respondents-Appellees. explicit as a prohibition valid content-based CUDAHY, EASTERBROOK, Before oppressive subordinating speech. MANION, Judges. PER CURIAM.

IV. Gary Bums has date with death: No foregoing For the the decision of vember 29 at 12:01 a.m. He seeks a writ of holding District Court that the cross does corpus, arguing lawyer that his fighting hereby constitute words is AF- sentencing proceedings was ineffective. The § FIRMED. Because 713 of the Cincinnati Supreme Court of Indiana considered and amended, Municipal Code was claim, rejected rejected as it earlier had holding District Court it to be an uncon- Burris’s substantive to his sen prior stitutional restraint is moot and that (Ind.1994), State, tence. Burris v. 642 N.E.2d 961 portion of the District Court’s denied, rt. ce VACATED. The district

court denied Burris’s under 28 § deeming U.S.C. it an abuse of the light writ in of his earlier collateral adversely which was resolved to him. Burris (7th Cir.1995). district court also declined to issue a certifi appeal, cate of cause for 28 U.S.C. § and Burris now asks us to a certificate of execution. The assigned original panel case was under * Judge Cudahy rehearing. votes to

48 (1995). he seeks to Instead 22(h), 130 also authorizes Rule sequential petitions. filing “cause” for petitions. show summary disposition of successive argued that the Burris prior appeal, On his petition was filed initial federal Burris’s delay coming to a conclusion about in state’s sentence was validity of his death while a him to initiate col- compelled Indiana. Supreme Court of appeal to the on he be deemed lest lateral and his Burris judge warned district procras- his own forfeited his entitlement maneuver; risky as a lawyer that this was rejected this considered and tination. We Lundy, v. observed Justice O’Connor merits; Burris does argument on the 1204, 521, 1198, 509, 71 102 S.Ct. U.S. 455 prisoner argue, as the it. Nor does he renew (1982) “a (plurality opinion), 379 L.Ed.2d F.3d 1030 Phillips v. 56 did only with his proceed prisoner who decides delay by the state that undue deliberately aside sets claims and addressing the conviction vited a risks dismissal unexhausted claims his ex- sentencing had not been issues while none petitions.” Burris subsequent federal a opinion observed that Our hausted. initial changed He decided to ahead. theless string out the not be entitled to should state to reheve appeal, but declined mind on his holding cap- way sentencing process as a choice consequences of his of the strong a claim of inno- someone with tive 51 court’s decision. vacating district charge of crime. Burris to the does cence however, observed, opinion at 658. Our F.3d factually he argue that not now either plead were to abuse if the state that delayed murder or that the state innocent of petition, Burris response to a later writ Unjusti- process. unduly any step of the significance litigate the free to would be supply delay cannot therefore fied Be time has come. petition. initial That his for a “cause” definitively re cause (There is a phase proceedings. appro think it appeal, we on the first solved why Phillips does not assist Burris: reason probable cause. priate to exhaustion, and thus the it dealt with Estelle, 880, 103 v. 463 U.S. See Barefoot petition. It did not first propriety of the (1983); 3383, Maggio 77 L.Ed.2d 1090 S.Ct. un- under which the circumstances 311, Williams, 46, 104 78 464 U.S. S.Ct. v. a to file delay might due entitle Deeds, (1983); Lozada v. L.Ed.2d petitions.) 430, 111 S.Ct. (1991). recently As that he raised What Burris held, however, step does not entitle he challenges to sentence as soon as his his stayA a petitioner to execution. sentence was “Petitioner’s new death could: significant petitioner has a if the not affirmed Nether prevailing on the merits. chance 1994, 4, nearly eight months November — 4, U.S. -, 116 S.Ct. v. land Corpus guilt/innocence his Habeas Peti- after tion had been substantially For 132 L.Ed.2d 879 27,1994. January dismissed on judge, we given district reasons Consequently, claims from direct Petitioner’s not demonstrated conclude brought his been appeal could have possibility. Corpus Petition be- guilt/innocence Habeas (Em- they exhausted.” cause been justify To successive original.). This is true but beside phasis relief, must establish collateral sequential petitions, point. Given the prejudice a colorable claim —or been; they 467, have had to be McCleskey issues allocated v. innocence. (1991); sentencing issues not exhausted Go were 113 L.Ed.2d 517 Court, original collateral attack. time of the 503 U.S. v. United States District mez filing se- writ lies But the abuse of the 118 L.Ed.2d 293 quential petitions; Burris therefore must either contend that he is Burris does not demanding review of his “cause” for factually of the death show legally “innocent” were used that conviction penalty, as system. did not 333, 112 appeal in the He Whitley, Sawyer term prior appeal, and (1992); make that on the see also 120 L.Ed.2d 269 try not even to do so. Delo, papers current do his Schlup may have well reasons. He among jurists be “debatable of rea- thought, example, that the Su- Deeds, son.” Lozada preme give Court of Indiana would him full (1990) and fair consideration on the curiam). (per By (cor- issuing the certificate question, by giv- so that he would lose little *3 believe), rectly, I we have determined that ing up right the review feder- such a exists this ease. That court,, accelerating al review of the situation, being the we should ap- hear this principal challenges merits. His to his sen- peal affording parties after the an opportuni- tence were based on state rather than federal ty and with normal delibera- law, Supreme and the tion —not rush to day the before provided thoughtful deed consideration. Thanksgiving. A stay of execution should be Constitutional Indiana’s granted for that sentencing procedures purpose. are hard to come Whatever Clark, in the wake of just Schiro 963 F.2d 962 the merits and deserts of the (7th Cir.1992), affirmed under the name he proper should receive a hearing.1 ——, Schiro v. question presented The the sub- —whether Burris has not mission petition of a habeas regarding guilt any asked us to revisit of the conclusions that innocence followed second Supreme the Court of Indiana reached when directed to a death is necessarily sentence an affirming his death sentence. His current abuse of only the writ —is petition, complaints one of per- limited to about the impression. formance of counsel at the second The Ninth in Phillips proceeding, persuade any does not us that decided injustice Although has been done. proceeding this mode of not such an now rue his decision to the convic- abuse. Whether the facts in that case are tion in court expense leaving of sufficiently distinguishable to dictate a differ- (with sentencing questions to the state courts and, believe, ent result here obvious I potential Supreme review the Court of the calls for much more careful consideration. States), regret is not “cause” that is, all, merely This after the threshold deter- permits things ways. both mination; we petition- reached the consequences Choices have choice to —the specific er’s constitutional claims. slay Kenneth W. Chambers cold blood has penalty, earned Burris the considerations which ultimate and the underlie the press choice to a collateral attack limited to abuse of the writ impli doctrine are not even of conviction has allocated final procedure cated followed this case. resolution of to state Supreme As the explained in McCles court. Burris’s two choices mean that key 467, 489-97, judgment of the district court must be af- 1454, 1467-72, (1991), firmed. stay His motion for of execution is abuse of the respect writ doctrine is based on denied. finality judgments, for the of the costs of review, corpus habeas the burden on CUDAHY, Judge, concurring in ' scarce federal po resources and the part dissenting part: tential incentives to withhold claims for ma The standard that must be met for issu- nipulative purposes. None these consider ance of a certificate of cause is that implicated by allowing ations is bringing showing make a “substantial separate corpus petitions challeng right.” denial of a federal v. Es- Barefoot ing penalty phases of a death telle, 880, 893, penalty anything, case. If this bifurcated order to make such a it suffices that the procedure expeditious issue for has been more can, (1995), corpus petitions 1. While successive habeas majority, cited con- instances, summarily, in some be dealt with granting stay cern the standard for stay Court has instructed us that a probable corpus execution when a certificate of grounds when there are "substantial has been issued in a habeas might granted.” Barefoot, which relief be Netherland deals with the issuance of a pending Supreme 103 S.Ct. at 3395. Netherland v. of execution Court decision on - U.S. -, for certiorari. dilemma— argues procedural that a than judicial resources consumptive of less him to make a diligence if Burris had wait- the case lack of have been would —led challenging his present filing. ed to How bifurcated pro- completed conviction until State unprecedented view the would all, the State After ceedings on his sentence. enough present case is events vacated his conviction and finally upheld more than question to merit years before the resentenc- four disposition. finally upheld. ing was prepared I am not For all has, course, never summary fash- petition in a dispose of this doctrine in of the writ the abuse considered a brief submission in ion—based plurality O’Connor’s context. Justice *4 prob- request support Lundy opinion in Rose v. stay. I would cause and for a able remotely comparable to the address facts stay and hear the 509, 102 us. 455 ones before Rose, petition respectfully dissent re- I therefore arising from presented four claims er spects indicated. Of was convicted. single trial where he as to these, were exhausted state remedies ORDER other two. This is a not as to two but very habeas submissions. typical of this case en to rehear The court voted that “a plurality comment vacated, And the panel banc. The decision proceed only with his ex who decides argument on Decem- set for oral the case is ... dismissal of subse claims risks hausted 19,1995, a.m., and the sentence at 9:30 ber hardly dispositive petitions” is quent federal stayed further order of the death is Rose, 455 wholly facts here. different court. (plurality opin at 1204 at Appellant’s be received brief must ion). Rose, Thus, in the “two unexhausted Appellee’s of business on December close were intertwined with claims for relief p.m. on 2:00 De- brief must be received at at ones.” Id. reply 14. A brief be filed Burris, member (majority in his two opinion). December 18. are not of business on the close petitions, raises claims intertwined, they proceedings from two arise and in content. As

entirely separate time noted, “the exhaustion

the Court designed protect the principally

doctrine is enforcement of feder courts’ role disruption prevent of state al law and MATTHEWS, S. James at 1203 Id. at proceedings.” Plaintiff-Appellee, When, here, (majority opinion). two sets distinct of claims arise from the ease, comity penalty phases of a COMPANY, Aon HUDIG HALL ROLLINS totally considerations are absent. George Corde, Sr., Corporation, E. prejudice, the respect to With Defendants-Appellants. incorrectly that Burris has majority asserts cause. Burris not even tried demonstrate extraordinary gap argued in fact States Court resentencing conviction and his between his He contends that presented a dilemma. awaited final grew

trial claims stale as he Argued Sept. resentencing. The cause disposition of the of the writ context requirement in the abuse Decided Dec. principle that was based “on the diligent inves- a reasonable and must conduct McCleskey, possible claims.

tigation” of his Here S.Ct. at 1472.