Gary BURRIS, Petitioner-Appellant, v. AI C. PARKE, Superintendent, Indiana State Prison, and Pamela Carter, Attorney General of the State of Indiana, Respondents-Appellees.
No. 95-3725
United States Court of Appeals, Seventh Circuit
Submitted Nov. 21, 1995. Decided Nov. 23, 1995. Reargued En Banc Dec. 19, 1995. Re-Reargued En Banc June 17, 1996. Decided Sept. 12, 1996.
95 F.3d 465
Although we are respectful of the Board‘s interpretation, we are not compelled to follow it when it rests on erroneous legal foundations. See Lechmere, 502 U.S. at 539, 112 S.Ct. at 849. No relevant labor policies are advanced by requiring employers to prohibit charitable solicitations in order to preserve the right to exclude nonemployee distribution of union literature when access to the target audience is otherwise available. The purpose of
We hold that Lechmere‘s access analysis applies to informational consumer handbilling and that Babcock‘s “discrimination” principle does not nullify Lechmere‘s application, but only addresses situations where an employer discriminates against the union in favor of other union or employer-related distribution. Because the union in this case failed to meet its heavy burden of showing inaccessibility to the customer base of Marc‘s in order to establish the handbillers’ limited entitlement to engage in trespassory informational handbilling, we hold that CREP did not violate
III.
The petition for review is GRANTED, and the NLRB‘s request for enforcement of its order is DENIED.
Alan M. Freedman (argued), Bruce H. Bornstein, Freedman & Bornstein, Chicago, IL, John Blume, Habeas Assistance Project, Columbia, SC, for petitioner-appellant.
Geoff Davis, Geoffrey Slaughter (argued), Office of Atty. Gen., Indianapolis, IN, for respondent-appellee.
POSNER, Chief Judge.
This death-penalty case, twice reargued before the full court, has a tortured history. In 1981 Gary Burris, convicted in an Indiana state court of a murder committed in 1980, was sentenced to death. The judgment was affirmed by the state‘s highest court, Burris v. State, 465 N.E.2d 171 (Ind.1984), and Burris then sought postconviction relief in the Indiana courts. On appeal from the denial of relief by the trial court, the state‘s supreme court upheld the conviction but vacated the death sentence. Burris v. State, 558 N.E.2d 1067 (Ind.1990). A new sentencing hearing was held, and Burris was again sentenced to death. That was in November of 1991. In December of the following year, while Burris‘s appeal from his second death sentence was pending before the state supreme court, he filed a petition for habeas corpus in federal district court, challenging only his conviction. The district court denied relief. Burris v. Farley, 845 F.Supp. 636 (N.D.Ind.1994). Eight months later the state supreme court affirmed the new death sentence, Burris v. State, 642 N.E.2d 961 (Ind.1994), and some months after that a panel of this court affirmed the district court‘s denial of habeas corpus. Burris v. Farley, 51 F.3d 655 (7th Cir.1995). Burris‘s execution was scheduled for November 29, 1995.
Two weeks before his scheduled execution, Burris filed another petition for habeas corpus in the district court. In it he alleged a variety of constitutional deficiencies in the second death sentence. The district court dismissed the petition on the ground that it was an abuse of the writ.
We reject the suggestion that the new one-year statute of limitations in capital habeas corpus cases (see
That is not our case. Burris did not attempt to justify the filing of a premature petition on the basis of unjustified delay by the state. When he filed the petition, attacking only the conviction, he had already been resentenced and he had no reason to think that the state supreme court would delay unconscionably in deciding his appeal from the second sentence. Nor did it.
So Burris‘s second petition was indeed a second or successive petition within the meaning of the new (and, we add, the old) law, and as we said it does not satisfy the criteria of the new law for being allowed to file such a petition. But is the new law applicable to proceedings commenced before, or arising out of events occurring before, its enactment? The general answer to this question is found in Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996) (en banc), argued the same day as this case and decided today as well; the answer in the particular circumstances of this case is “no.” Because the
The fact that Burris filed the second petition before the new law went into effect is of no moment. Nor the fact that he filed the first petition before the new law went into effect. The only thing that is important is that, given the character of the first petition—a deliberate “jumping of the gun“—the new law would, if applied to Burris‘s second petition, attach a new, unforeseeable, and adverse legal consequence to the first petition. The case is unlike Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), where the first petition was filed before the new law but the new law was applied to the second petition. There was no “mousetrapping” there. That, rather than the fact that Felker, unlike Burris, filed his second petition after the law was passed, is why it was proper to apply the new law to Felker‘s second petition.
So the old law applies to Burris, and the question is whether the filing of the second petition was an abuse of the writ of habeas corpus within the meaning of
Remember that when he did so he had already been sentenced to death the second time and had appealed, but his appeal had not been decided. Thus, he had not exhausted in the state courts of Indiana his claims of constitutional error at the sentencing; those claims were pending in the state supreme court. Burris had filed the petition for habeas corpus, limited to the conviction, pro se. A lawyer was appointed to represent him. The lawyer filed an amended petition that like Burris‘s pro se petition was limited to the conviction. The lawyer then appeared before the district judge for a hearing on the petition, and stated at the outset that the petition was limited to the issues presented by the guilt phase of the criminal proceeding. No one responded to this statement. The
We are mindful that abuse of the writ is an affirmative defense and that, technically speaking, the pleading of the defense is premature until a second petition is filed; for it is a defense to the second petition, not to the first. But we must be realistic about the circumstances in which the state declined to mention the possibility of such a defense. For page after page of transcript the district judge and the lawyers discussed the ripeness (exhaustion of state remedies) and merits of the petition. The judge was an active participant, displaying his extensive knowledge of habeas corpus jurisprudence. The state urged him to decide the petition on the merits then and there. Everyone knew that Burris had been resentenced to death and that his appeal was pending. Yet no one saw fit to warn Burris of the possible consequences. No one suggested that maybe the district judge should stay action on the petition until, state remedies exhausted, Burris could add a challenge to his new sentence. Silence can mislead, and when it does it is treated as speech. We think that in the circumstances the state‘s silence concerning the implications of an immediate decision on the petition was tantamount to a statement that for the sake of a prompt decision on the merits of Burris‘s challenge to his conviction the state would forgo the defense of abuse of the writ should he file a subsequent petition limited to the sentence.
At the latest argument of the appeal, the state‘s lawyer told us that another lawyer in his office had told Burris‘s lawyer over the phone that the state would raise the defense of abuse of the writ if Burris filed a second petition. There is no reference to this phone conversation in the record of the habeas corpus proceeding. In earlier filings as well the state referred to Burris‘s having “knowingly” assumed the risk of not being allowed to file a petition challenging his sentence, as having taken a “calculated risk,” and so forth, but it has never offered any substantiation for these characterizations. So far as the record shows—and we are not willing to go outside it—no one at the hearing on the first petition for habeas corpus said anything to offset the lulling effect of the state‘s reference to exhaustion. The objection to the bifurcated procedure was waived.
To summarize, the new law does not apply to Burris‘s case. The old law applies, but the state forfeited any defense based on that law. Burris is entitled to have his second petition for habeas corpus considered by the district court on the merits. The judgment dismissing the petition is therefore vacated and the case remanded to that court for further proceedings consistent with this opinion.
VACATED AND REMANDED, WITH DIRECTIONS.
MANION, Circuit Judge, with whom KANNE, Circuit Judge, joins, concurring.
An experienced professor of criminal law, appointed by the district court to represent Burris on his habeas corpus petition (we can assume in great part because of his knowledge of habeas law) amended Burris’ first petition to limit it to the issues presented by the guilt phase of the criminal proceeding. He explicitly confirmed this limitation at a hearing on the petition as well. Important to
The court uses this silence to shift the burden to the state to raise the affirmative defense of abuse of the writ to claims that may be raised in a subsequent writ petition. A “realistic” view of the hearing‘s circumstances leads the court to criticize the failure to warn Burris of the consequences of proceeding on a “split” petition. Ante at p. 469. This silence affirmatively “misled” Burris: “silence = speech.” Burris and his learned counsel were “lulled” into believing the state would not charge abuse of the writ if he filed a second petition, so the abuse defense was waived.
I join this opinion with the understanding that the holding is confined to the very unusual circumstances of this case. The court‘s opinion must not be read to require the state to raise all possible affirmative defenses to a second habeas petition in its answer to a first habeas petition, or at least to indicate that such affirmative defenses will be raised should the prisoner petition again. Otherwise, failure to do so would mean that in a subsequent petition the state had waived each affirmative defense not anticipatorily pleaded and expressly flagged for the prisoner. The state‘s attorney should not be obliged to teach the petitioner in the answer of any omission and its potential consequences to a second writ petition, or else later forego an abuse of the writ defense. Pursuant to
Also this opinion does not propose that the state and the district court must warn the petitioner at a hearing on a first petition that a second habeas petition might abuse the writ. Neither the rules governing these petitions nor the caselaw contain any such mandate. Litigants are assumed to be familiar with the law before they seek relief. It is not the court‘s job—much less that of opposing counsel—to anticipate traps for litigants and make them aware of potential difficulties. Cf. Lorenzen v. Employees Retirement Plan of the Sperry and Hutchinson Co., Inc., 896 F.2d 228, 237 (7th Cir.1990) (Fairchild, J., concurring) (recognizing counsel held responsible for awareness of rules). Our system presumes the competence of attorneys unless there is a strong indication otherwise. See, e.g., Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984) (“a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance“).1
Finally, this opinion is not a serious departure from the current law on waiver. “Federal habeas corpus has its own procedural rules, but the practice in regard to waiver by the respondent (the custodian of the prisoner) is similar to that in ordinary civil cases.” Smith v. Richert, 35 F.3d 300, 305 (7th Cir.1994). Waiver is the voluntary intentional relinquishment of a known right. United States v. Ross, 77 F.3d 1525, 1541-42 (7th Cir.1996) (quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993)). “[W]aiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986). Under any other circumstance, the state‘s failure to warn a litigant with this caliber of legal representation cannot constitute a “waiver” by the state under these definitions.
But the court‘s opinion cannot be read to apply beyond these unique facts. A legal fiction such as “silence = speech” cannot prevail in most adversarial proceedings. The court must not shift the burden to the state to assert an affirmative defense to a claim not yet filed and to educate a prisoner and his counsel on the law at a hearing, notwithstanding that the prisoner deliberately “split” his habeas challenges and was represented by a criminal law professor (who, the court must presume, did not know the law and did not inform his client about the consequences). I view this case not as a new rule of law but as a prudential decision not to invoke abuse of the writ given these unique circumstances. See