Larry Williams v. John P. Whitley, Warden, Louisiana State Penitentiary, John Fulford v. John P. Whitley, Warden, Louisiana State Penitentiary

Larry WILLIAMS, Petitioner-Appellee, WHITLEY, Warden, P. Louisiana

John Penitentiary, Respondent-

State

Appellant. FULFORD, Petitioner-Appellant,

John WHITLEY, Warden, P. Louisiana

John Penitentiary, Respondent-

State

Appellee.

Nos. 92-4008. Appeals,

United States Court of

Fifth Circuit.

June 1993. Granting Rehearing

Order En Banc July

in No. 92-4008 Boudreaux, Dorothy A. Pender- M. Terry LA, Gretna, John Attys., Dist.

gast, Asst. Whitley in No. 92-3361. P. Gruning, Loyola Teague, Professor David Law together which direct

School, Orleans, (Court-appointed), LA apply New courts to exception new rules without Larry pending Williams. to all cases appeal on direct at the time of the decision. Because Gruning, Loyola Professor David Law appeals handed down while them were before School, Orleans, (Court-appointed), New LA Court, Supreme the Louisiana Fulford and Fulford. John they Williams maintain that given should be Peebles, Atty., Jack Asst. Dist. New Or- the benefit of holding. way, its Put another leans, LA, Whitley P. John No. 92- they contend that retroactivity Griffith’s and, properly rule is itself retroactive inter-

preted, overrules the results obtained under rationale; Daniel as well as its that Griffith not retroactivity establishes a new test upsets every but also conviction affirmed on the basis of the approach. discarded Daniel WISDOM,* GARWOOD, Before rely Williams and Fulford almost exclu- HIGGINBOTHAM, Judges. Circuit sively on Secretary, Leichman v. (5th Cir.1991), prior panel where a of this HIGGINBOTHAM, E. PATRICK Circuit accepted very argument this grant- Judge: ed relief similarly to a situated Louisiana appeal This consolidated an impor- raises petitioner. explain, As will we do not find question tant concerning scope of federal analysis urged by Williams and Fulford corpus, of adopted by the Leichman court to be Kentucky, 107 S.Ct. difficulty. free of We are of course this (1987), Lane, stage bound decision of the 109 S.Ct. and, panel provided requirements the other (1989). Larry Petitioners Williams and John met, grant are bound petition- relief to Fulford were convicted in Louisiana state presenting ers this issue. early court in the presently 1970’s and are Only us, properly Fulford’s claim is before serving life penitentia- sentences in the state however. Both Williams and Fulford ry. have They have each filed federal habeas multiple filed petitions federal habeas during petitions attacking twenty year-old their con- twenty years their incarceration. grounds victions on that the automatic ex- particular Williams’ arguably emption jury granted from service women both successive and an abuse of the writ. under state law at the time of their trials Because the Williams’ failure to assert new deprived them of their Sixth Amendment different for relief was right by jury to a trial venire drawn from a below, raised we REVERSE the district fair cross-section community. grant court’s of relief and REMAND with Williams’ appeals and Fulford’s pending were instructions to petition. dismiss his With Supreme before the Louisiana Court when Fulford, regard to we REVERSE the district exclusionary practice Louisiana’s was invali- court’s denial of relief peti- and GRANT the Louisiana, dated in Taylor tion for corpus. writ of habeas (1975). They did not receive the Taylors benefit of hold- however, ing, Supreme as the Court one I.

week later give declined to this new rule Williams’ petitions and Fulford’s have simi- Louisiana, retroactive effect. Daniel v. larly lengthy procedural histories. At the time of their criminal trials in Louisiana state Supreme

The Court abandoned the provided court the state constitution that “no retroactivity approach employed in Daniel woman shall be drawn for service unless * illness, however, Judge Because of having John Minor Wisdom tape had available the of oral present case; at the argument, oral participated this he in this decision. Fulford also failed to assert a with the clerk previously filed shall she a written declaration claim a second federal habeas filed of the District subject to such service.” to be her desire in 1985. The district court’s denial of relief VII, Const., § 41.1 a conse- Art. As La. court. was affirmed 1973 con- provision, Williams’ quence of once more denied certiorari. rape charges aggravated viction on Blackburn, conviction were each Fulford’s 1972 murder juries after trials before selected obtained Fulford, In with contrast Williams chal an all-male venire. from lenged the exclusion of women from veni- appealed Fulford both their Williams and re his first federal habeas pending their cases were convictions. While U.S. District Court for the Eastern District Court, Supreme Louisiana before the The district court Louisiana. dismissed Louisiana’s Supreme Court struck down U.S. court, Daniel, petition citing and this jurors exemption for women automatic unpublished opinion. in affirmed an Amendment of defendants’ Sixth violative Louisiana, 611 Williams v. F.2d 881 by jury a trial venire drawn from rights to denied, Cir.), cert. 447 U.S. community. Taylor S.Ct. of the v. a cross-section (1980). Louisiana, 692, 42 Williams’ sec 95 S.Ct. L.Ed.2d U.S. (1975). however, Court, petition, in ond federal habeas filed did Taylor applied would not be retro Taylor held not include a claim. After the state juries actively to “convictions obtained requirement, waived the exhaustion the dis empaneled prior [Taylor].” to the date of petition trict court denied this as well. Louisiana, 95 S.Ct. Daniel v. (E.D.La. Maggio, Williams v. No. 84-0833 (1975). 704, 705, 42 L.Ed.2d 790 Since 1984). before and Fulford had been tried Williams Supreme In 1987 the Court overruled decided, Supreme the Louisiana Taylor was twenty years retroactivity jurispru- some v. affirmed their convictions. State Kentucky, dence in v. 479 U.S. Nix, (La.1975), denied 327 So.2d 301 cert. Griffith 107 S.Ct. 93 L.Ed.2d 649 In Louisiana, v. 425 U.S. sub nom. Fulford Denno, applying the set out in test Stovall State (La.1975). 388 U.S. Williams, 310 So.2d 528 Walker, (1967), and Linkletter v. 381 U.S. application post-convic Fulford’s first (1965), in Louisiana state court did not tion relief give Taylor in ret- Court Daniel declined challenge composition of his include a to the grounds that the exclusion roactive effect on Supreme After the Louisiana venire. necessarily did not of women from venire affirmed the district court’s dismissal of this prior unfair render the trials state application, Fulford filed a federal habeas prior permit- officials had relied on decision for the petition in the U.S. District Court structuring criminal ting practice their petition District of Louisiana. This Western justice systems. relief, again eight grounds for but advanced rejected this at 705. The Court in claim. The Griffith omitted district purpose on the of the particularistic focus 27,1980. petition on denied Fulford’s October interests, reliance new rule and the state’s This court vacated and remanded Fulford holding that “a new rule for the instead (5th Cir.1982). Maggio, Af 692 F.2d 354 prosecutions criminal is to be conduct of our remand ter the Court reversed cases, retroactively applied to all state order, Maggio Fulford, federal, yet review or not (1983), pending on direct we af L.Ed.2d 794 at 716 final.” 479 U.S. of relief. firmed the district court’s denial added). Maggio, (emphasis declaration parish which resides a written Criminal Procedure she 1. The Louisiana Code of jury service.” La. provision: of her desire to be contained a similar "A woman shall Code.Crim.P., provisions of these jury Art. 402. Both service unless she has not be selected January repealed, previously were effective filed with the clerk of court of man, granted Fulford and Williams then their the writ. ap- renewed The state then relief on efforts to obtain collateral review. pealed to this court. After we reversed the Recognizing they would have been enti district court’s denial of Fulford’s motion for Griffith, governed tled ques to new trials had probable certificate of cause on the basis of tions of at the time was July Leichman the two cases were decided, they they asserted should now be purposes consolidated for appeal of this given the of that decision benefit because appointed. counsel was had “overruled” Daniel. Fulford application filed his second state habeas II. 1987, challenging for the first time the exclu sion of women from the venire. His multiple Williams’ Fulford’s again denied. State ex rel. Ful petitions plainly federal habeas implicate the Butler, (La.1988), 526 So.2d 790 ford imposed 9(b), strictures the writ Rule provides: which Fulford advanced his A petition may second or successive claim in a second federal if judge dismissed finds that it fails to District Court for the Western Dis allege new or different for relief trict of Louisiana. The district court dis and the determination was on the missed the and this court denied a or, merits if grounds new and different probable certificate of cause. The alleged, judge the finds that the failure of again denied certiorari. Fulford petitioner the to grounds assert those in a Whitley, 111 112 prior petition constituted an abuse of the writ. In Secretary, Leichman v. Governing § Rules Proceedings, 2254 28 (5th Cir.1991), panel of this accepted court § U.S.C. 2254 foil. See also 28 U.S.C. Taylor/Griffith the argument same that Ful- 2244(b). § foregoing As the summary dis- ford unsuccessfully pressed. had In Decem- closes, it undisputed is that Williams chal- ber years over one and a half after the lenged the exclusion of women from the veni- district court had first petition, denied his re in petition his first federal and that Ful- attempted gain the benefit of ford, conversely, failed to Taylor include a by filing Leichman what he described as a claim in petition. his first Their current “Motion for Reconsideration of Denial of petitions are susceptible therefore Writ Corpus.” of Habeas dismiss- The district court as, (Williams) al respectively, successive denied this and opinion. motion without (Fulford). Williams, an abuse of hand, the writ on the other The filed a state third candidly concedes, however, petition, habeas reasserting that the claim it failed to that plead had petition been raised his abuse of the first but writ Fulford’s case reason, omitted in the second. The below. For district court this peti- Williams’ declined to dismiss may Williams’ claim tion as succes- compliance examined for its with and, noting 9(b)’s sive that it was bound Leich- Rule requirements.2 threshold 2. The state maintains that applicable Fulford's "motion for cedural rules corpus to habeas re urging lief"). reconsideration" the district court to re- The state's support also finds prior rejection examine its of his among a discernable trend the circuits to treat separate petition be treated as a 60(b) habeas purporting rely motions on Rule "as the subject 9(b) to dismissal under Rule equivalent as succes- petition functional of a second petitioners filing sive. While Armontrout, habeas corpus." such mo- habeas Blair v. 976 F.2d 60(b), frequently (8th Cir.1992), denied, tions invoice Fcd.R.Civ.P. 1134 cert. - U.S. previously -, indicated that the (1993); formal label petitions affixed to judgment for relief from Lindsey Thigpen, final 875 F.2d necessarily (11th dispositive. Cir.1989) is not e.g., (same); United 1515 Landano v. Raffer (5th Reyes, Cir.1991) States v. (3d Cir.) 945 F.2d ty, 60(b) 897 F.2d (evaluating Rule (“because Reyes’ querela] motions [for audita petition dismissing motion as habeas and pray for the vacation criminal grounds), conviction on nonexhaustion judgment rather than a civil ordinary (1990); and arc not see 60(b) motions, Lewis, Rule (9th ... we will consider [the] also Clark 1993 WL 232354 Cir. purposes 1993) motion pro- as for these to the (apparently at *12 endorsing ap- response, or of successive abusive Williams asserted that his issue that addressed before not be grounds wiits is one is claim should dismissed on brought reaching substantially the merits the claims the changed that law had since —Zant, McCleskey petitioners. petition. first his The district court found -, -, explanation sufficient reached the Whitley, 945 Sawyer v. F.2d merits. (5th -, Cir.1991), aff'd, - U.S. appeal, On Williams that contends the the As correctly changes held district indicated, McCleskey the state carries and, law inappropriate the made dismissal “if, of the pleading its abuse writ burden alternative, that question whether his clarity particularity, peti it notes with petition is successive is not before this court history, prior writ identifies tioner’s sponte by because this issue was raised sua time, for the first appear claims that magistrate pled by rather than the state. petitioner the writ.” alleges has abused — First, disagree. We this court -, has consis McCleskey, tently entirely Here, proper “[i]t held that for the magistrate raised this issue district court to raise on its own motion had its sponte before state filed sua answer, repetitive of a Rule issue abuse of 9 form sent Williams Whitley, history directing him to writ.” Schouest 927 F.2d detailing his writ (5th Cir.1991). See, Guste, explain why instant should not Andre v. 9(b). (5th Cir.1988); Rule In F.2d be barred as successive under 261-62 Mc- Butler, proach); Murray, Jones v. 60(b) 1988) (noting (affirming sponte Rule motion “Jones's district court's sua dis exactly apparently raises [in it] rather unusual missal without notice on basis [and same district court's statement "the record before ordinarily type sought relief] the in jurisprudence seeks the court and that indicates dis certain”); petitions"). While law of circuit the the nearly missal be would Matthews v. unsettled, Butler, e.g., Reyes, compare, (5th Cir.1987) is somewhat 945 833 F.2d 1170 n. 8 Collins, with, e.g., May (where F.2d F.2d v. 961 sponte, writ abuse “[Qailure raised sua to (5th Cir.1992); Lynaugh, v. 75-76 Streetman notify may petitioner the be harmless error in (5th Cir.1988), F.2d 1527 we are in- 835 petitioner cases where there no facts that the agree clined to with the state that Fulford’s mo- prevent allege being could to his claim from yet as tion for reconsideration is best viewed 9(b)”). Similarly, Rule dismissed under some of petition and thus to Rule another habeas may our cases have held that we dismiss a habe- 9(b)’s constraints. 9(b) petition grounds long as on Rule so as this was in issue raised the district court below. cannot, however, We dismiss Fulford's motion (court appeals may id. & at 1169 n. 7 petition, a for the record as successive habeas grounds the affirm on abuse writ where issue the that this issue was not raised in discloses adequately raised is in "the record be consistently court This has district below. court Butler, court]”); fore v. [the district Williams 819 9(b) appropri under is held that dismissal Rule (5th Cir.1987) (affirming & n. 1 F.2d 108 on “petitioner given specific [is] ate where the "we basis successiveness because can considering that the court is dismissal and notice on [district court's] affirm correct decision given days explain at least in which to 10 the it”). ground urged we to But have never dis grounds prior peti a failure to raise the new where, here, petition missed a as as successive McCotter, (5th Urdy tion.” v. 773 656 judg evidence district court’s there no that Estelle, 1985); Jones v. 692 F.2d 384-86 Cir. (5th raised ment rested on this basis and state strictly "This has con court during argument issue for the first time oral requirement,” strued the notice Johnson before court. We do not think it unfair to this McCotter, (5th Cir.1986), 803 F.2d 832 such require to the state assert a Rule 9 bar we have form of notice is held some it district when is the state itself that seeks court required where the even successive to characterize a "motion for reconsideration” as See filed on eve of execution. Hawkins appeal. Nor a successive habeas do (5th ("In Cir.1988) Lynaugh, 862 F.2d 486 relieving precedents supply grounds our situation, immediately petitioner [this] burden on the facts of this case. state respond given opportunity an to to the state's be abuse, the case to While we have discretion remand writing of writ either in or in oral opportuni an the district court afford state permits”). argument, as We have time indicated bar, ty 9 that in to raise the Rule conclude petitioner afford that a district court’s failure to case, 9(b) step may particular a circumstances of this such in certain notice before dismissal under error, see, e.g., Byrne appropriate. is not circumstances be harmless 232 —(5th Blackburn, —,

Donald v. 806 F.2d 622 U.S. a (emphasis t omitted). Cir.1986), original; citations Some of our (1987); adopted recent decisions have language. Jones v. Collins, (5th (5th Estelle, Cir.1983) (en Montoya See 722 F.2d (“Unless Cir.1993) petitioner banc), shows cause cert. denied sub nom. Jones v. McKas prejudice, may federal court not reach kle, claims, the merits of successive which raise Court’s clarifica grounds identical to heard and de responsibilities pleading tion of the state’s previous cided on the merits in petition”); McCleskey abuse of the writ does not Collins, Selvage 972 F.2d validity affect the of this well-established Cir.1992) (similar); Blair, See also 976 F.2d Whitley, rule. Woods v. 933 F.2d 323 n. at 1135. (“There is no reason to infer McCleskey changed previous our rule purposes We shall assume for may pleaded by that abuse of the writ might that Williams somehow es (putting state or raised the district court tablish cause sua aside the barri law). McQueen er sponte”). Whitley, change also to reliance on a See He (5th Cir.1993); not, however, has F.2d 184 United States v. demonstrated the “actual Flores, (5th Cir.1993). prejudice” permit 236 n. 9 would us to reach the Where, here, merits of petitioner his successive as is afforded an claim. Such prejudice adequate presumed is of course opportunity explain why peti where the preserved; issue has been tion should not be defendants need barred as successive or only prove abusive, community members of the district court’s decision to raise have been unconstitutionally excluded from sponte preclude this issue will sua dis 9(b) service to obtain a reversal of their missal under Rule if these reasons are convictions. Kentucky, See Batson v. wanting. found 79, 99-101, Vasquez Hillery, contends, Williams and the district 254, 261-62, 617, 622-23, agreed, that his should be en hand, On the other tertained the law of because has where, here, the constitutional claim is not substantially changed since his first unsuc properly before the court as a result of writ cessful assertion of his claim. This default, procedural abuse or petitioners must justification, by itself, plainly is insufficient. identify alleged how the violation harmed In keeping with its evident desire to “ad n See, e.g., their cause. v. Wain Huffman uniformity vance[ ] in the law of habeas cor (5th might, 347, 651 F.2d 349-50 — pus,” Keeney Tamayo-Reyes, v. U.S. venire); (jury Maggio, Evans v. 557 F.2d -, -, 1715, 1720, 118 112 S.Ct. L.Ed.2d (5th 430, Cir.1977) (grand jury); 433-34 God (1992), Supreme 318 Court extended the (11th frey 1557, Kemp, 836 F.2d 1569-70 prejudice” “cause and test to successive Cir.) venire), (jury cert. dismissed sub nom. — in Sawyer Whitley, U.S. -, claims 1264, Godfrey, Zant v. 487 U.S. 109 S.Ct. 120 L.Ed.2d 269 Af (1988); 101 L.Ed.2d Kemp, 977 Smith v. 715 Sawyer, ter (11th Cir.) venire), (jury 1470-72 petitioner Unless a habeas shows cause denied, 464 U.S. 78 prejudice, may and a court not reach the These two lines of cases (a) merits of: successive claims which are not in presumption tension: “The prej of grounds grounds raise identical to heard supports udice which the existence of the previous decided on the in a merits right is not inconsistent holding with a that (b) claims, petition; previously new not prejudice actual must be shown in order to raised which constitute an abuse obtain statutorily provided relief from a of (c) unit; procedurally or claims waiver for failure to timely assert it in a defaulted petitioner in which ap- failed to States, follow manner.” Davis v. United 411 U.S. plicable procedural 233, 245, state raising 1577, 1584, rules in (1973); the claims. Godfrey, 836 F.2d at 1570 n. 12.

233 justice miscarriage fair section of would result from a “the cross Because premise claim,” on not rest requirement McCleskey, ‘[does] to entertain the failure — trial, any particular or every criminal at -, is, 111 S.Ct. at if U.S. “ trial, it necessarily [is] unfair because not [is] showing a Williams advances ‘colorable of ” [Taylor],’” with in accordance conducted at -, 111 factual innocence.’ Id. at S.Ct. 314-15, Lane, 109 489 U.S. Wilson, (quoting 1471 Kuhlmann v. (1989) 334 103 L.Ed.2d S.Ct. 436, 454, 106 2616, 2627, S.Ct. Louisiana, (quoting Daniel (1986)). not Williams does contend that he is (1975) 704, 705, 42 790 95 L.Ed.2d appears innocent and fact to have con (all last)), original except brackets guilt filings. prior ceded his We how the exclu Williams must demonstrate therefore must reverse the district court’s of from the venire affected sion women grant of relief and dismiss his claim attempted has to show that his trial. He as successive.3 unfair, proceedings this error rendered believe, very strong given the nor do we III. charges supporting his conviction on evidence explained, As we the state failed to finding aggravated rape, that such a carry pleading its burden abuse the writ failed has warranted. Since Williams in Fulford’s in the district court below. case standard, we prejudice meet the cause and His claim that him the accords bene may of his reach the merits successive fundamental fit of is therefore if he “can show before this Sanders, bell, ques (citing have 982 F.2d at 1326 at 3. Some courts and commentators U.S. 1077). "ground” may S.Ct. at “meant" to same tioned whether theories, legal subsume several distinctive prejudice extend cause and test to successive ground the rule that new will not be barred Sawyer. e.g., Campbell Blodgett, claims (9th Liebman, allow Cir.1992); successive "does not claims for the reassertion of 982 F.2d petitioner sole reason that has now Corpus Practice and Procedure Federal Habeas support thought of another of the (1992 Supp.). While have no doubts McCotter, claim.” same Johnson Saveyer, opinion in we will about the Court’s (5th reason, we For this Williams' claims under the nonetheless address' older “ends of petitions examine successive with care in order justice” test set out in Sanders raising petitioners purport to determine whether edly approach, Under this a second or Kuhlmann. merely ground claims new have recast subsequent federal habeas that fails application. for See, relief submitted their first raise dis new different Collins, e.g., Montoya v. (1) ground missal as successive if: the same 1993) (dismissing petitioner's "newly-fash Cir. ioned presented subsequent application was de in the of his Sixth Amendment claim” as version adversely applicant prior ap to the termined "variant of the issue the state federal (2) plication; was on the determination rejected”); May previously v. Col courts (3) merits; justice would not be ends Cir.1991) ("Our lins, 948 F.2d reaching subsequent served the merits of the May’s analysis present us convinces - -, application. McCleskey, attempt to advance a Sixth Amendment [his] (1991); Kuhl S.Ct. at reargument claim ... amounts to no more than mann, 2624-25, U.S. at Eighth that was of the Amendment claim consid States, Sanders v. United rejected in his round of federal ered and first - -, habeas”), cert. L.Ed.2d 808 Puckett, 562, (1963); Young 148 v. 938 F.2d 564 McDonald, 907, (1992); 806 116 (5th Blackburn, 1991); 2 v. n. Cir. Moore 806 (similar). clearly petition F.2d at 621 Williams' Cir.1986), (5th denied, 560, 564 rt. 481 ce 1988, ground a new for relief under does not advance 1042, 107 S.Ct. 95 L.Ed.2d 827 standard. this (1987). We find that each of these elements is Taylor rejection claim court's of Williams’ This met here. precluded that us in 1980 on Daniel opposition to the state’s Williams offers little giving any effect that decision retroactive from application urges present the contention that his "prior on the merits.” also a determination was Williams' ground for in first federal same relief asserted his properly in claim was raised his first rejection petition this claim and that our of consideration, plenary and was petition, received then, now, merits. Williams as main- was on the prevail to was not entitled denied because he a tains he is to new trial because that entitled precedent. Supreme applicable Court under jury venire in women were excluded from the a court’s denial we were to assume that Even if Taylor’s no moment violation of dictates. It is of of claim on the basis nonre- of a constitutional phrases that claim terms of troactivity "proce- he now his in as characterized Griffith Leichman, “substantive,” may petitioner not create are "[a] such labels dural” rather than not by rejec- ground merely alleging ascertaining dispositive a different whether this different in Circuit, facts, theories, asserting legal As or couch- on the the Ninth different tion was holding merits. prior petition on ing argument language." Camp- that the dismissal of a his in different 234 and, light Secretary, of Leichman v. ín Kentucky, Daniel v. 479 U.S. Griffith (5th 314, 107 Cir.1991), 708, (1987), him S.Ct. 93 entitles L.Ed.2d 649 Lane, Teague 1060, v. 489 U.S. S.Ct. indistinguishable relief. We view this case as This new standard respects from in all grant Leichman provides defendants, whether on direct accordingly. writ suggested For the reasons appeal review, or collateral given should be below, however, analysis we do not find the the benefit of rules announced while adopted by panel wholly in Leichman their cases were “on direct yet review or not persuasive urge court to consider Griffith, 328, final.” 479 U.S. at 107 S.Ct. at en issue bane. 716; 310, Teague, 489 U.S. at 109 S.Ct. at deceptively simple. Fulford’s 1075. Because was decided while his trial, At the time of his grant- Louisiana law appeal pending was before Louisiana Su exemption ed women an automatic jury from Court, preme concludes, service; result, comprised as a his Teague entitle him to receive the benefit of only of men. pending While his case was and, this rule since the merits of his claim appeal, direct undisputed, a corpus. writ habeas Louisiana, 419 U.S. 95 42 essentially This is reasoning adopted by (1975), L.Ed.2d 690 struck down Louisiana’s panel in Leichman.4 exclusionary practice as a violation of defen- disagree We cannot courts babeas “ dants’ Sixth rights. Amendment While the ‘apply prevailing law at the time immediately held Teague, conviction became final.’” 489 applied retroactively

would in Daniel 305-06, U.S. at 109 1072 (quoting Louisiana, 420 U.S. States, Mackey 667, 682, v. United 401 U.S. (1975), L.Ed.2d 790 the Court has since over- 1160, 1175, 404) (Harlan, 28 L.Ed.2d J.)). approach ruled the retroactivity employed Fulford’s relies on a selective analogous ground procedural showing default was able concluding of innocence before merits," "on justice stated: that the ends of adjudi would warrant an court, dismissing While a cation of successive because constitutional claims: “If the (and procedural petitioner of state default raises a failure to claim a federal court has already prejudice), previous determining corpus show cause and considered in a is not claims, petition, may underlying the merits of the ing review the merits of the it is mak- succes only prisoner sive claim supplements when 'the a determination on the merits that the his underlying constitutional with a showing colorable claims will not be considered ” Sawyer, of factual innocence.' 945 F.2d at comity. federal court reasons Such a Wilson, (quoting 436, 454, Kuhlmann v. 477 U.S. determination should be considered "on the (1986)); 106 S.Ct. purposes merits" for successive Guste, (5th Andre v. 850 F.2d 262 n. 3 doctrine. Howard, (noting "the Lewis, claim raised An (9th 905 F.2d Cir. dre, dimensions, even if it were of 1990) constitutional (emphasis omitted). original; citations any question 'does not itself guilt create Lucas, as to his (5th Gray v. Cir.), See 710 F.2d " Kuhlmann, (quoting or innocence' 455, 477 U.S. at denied, cert. 463 U.S. 104 S.Ct. 2628)); 106 S.Ct. at Lynaugh, Williams v. (1983); Delo, Shaw 971 F.2d (5th Cir.1988), 837 F.2d 1992). Thus, Cir. while the issue of spoken is often of as a "threshold (1989); McDonald, F.2d at 621-22 & n. 9. question” apart that must be decided from "the ("The Campbell, See also 982 F.2d at 1331 ‘ends merits,” see, Parks, Saffle justice' permit us entertain successive 486-88, 108 L.Ed.2d petitioner supplements claims where a Lane, 299- constitutional of showing claims with a 'colorable 1060, 1069-1070, innocence'”) Kuhlmann)’, (quoting factual (1989), rejection a habeas court's of a consti Armontrout, Blair v. tutional regarded claim on this basis must be 1992) (the Supreme Court's decision in Saw "prior a ing determination on the merits" in examin yer questions “ended all about the status of the subsequent petition whether a is successive. ")). plurality opinion in Kuhlmann As we indi Taylor plainly Williams' claim is one that has above, cated attempted Williams has not even to already been decided on merits. requisite showing make the of actual innocence. Finally, justice the ends of would not be served reason, For this would be dismissed by entertaining petition. Williams’ successive as successive under Kuhlmann as well. argues Williams that the district court Taylor addressed the substance of his claim be- 4. The Leichman court held: retroactivity changed cause the law of has since regarding retroactivity The law cally changed drasti- petition. his first federal analysis habeas This is when the court decided v. Ken- Griffith precedents, requiring not in accord with a color- however, obvious, far principle, for Daniel is from however. application of While Taylor his conviction be- governing law at the time was handed down before Fulford’s final, only Taylor, a deci- final included not conviction became most came as Griffith Daniel, invoke, a suredly then, to but also question, sion he wishes was not. The is claim escape. Griffith, to Fulford’s undoubtedly decision he seeks whether which estab Taylor rule, he is entitled to benefit a new lished should be available to largely premise unstated rests on the petitioners thus whose cases were not on direct Daniel, Teague “overruled” appeal at the time of the decision. Put an Griffith questions Taylor's applicability such that way, why other should Fulford receive the by general principles are now controlled undisputed benefit of it is when Griffith in those cases rather than Dan- enunciated Teague him relying bars from on other holding. specific iel’s governing proceedings rules criminal an nounced after his conviction became final? not believe that this treat We do The answer must be that did not Griffith First, justified. absent ment of Daniel rule, a path announce new but the to this indications from the Court clear readily conclusion is not discernible. Like itself, lightly not assume lower courts should bar, Teague other rules to the has been overruled sub decision retroactivity adopted appears test Griffith reasoning merely because its silentio enjoy Griffith, to constitutional status. appear result inconsistent with later cases. 322, 107 (“failure at apply U.S. S.Ct. at 713 to below, pointed Judge As Mentz out the Court newly declared constitutional rule to crimi a reminder to this effect issued few pending nal cases on direct review violates Rodriguez Quijas years ago in de v. Shear adjudication”). basic norms of constitutional Inc., Express, 490 U.S. son/American Moreover, distinguished cannot be (1989): Griffith “If S.Ct. questions do precedent application direct of this Court has trials, formally govern the conduct of case, yet appears in a to rest on reasons Teague necessarily is not limited to new rules decisions, rejected in some other line of procedure. of criminal Appeals should follow the case Saffle Parks, 484, 488-89, controls, directly leaving which to this Court (1990) (rule 1260, 108 L.Ed.2d 415 is new overruling prerogative its own deci compelled unless a court “would have felt 1921-22; sions.” Id. at 109 S.Ct. at existing precedent that the to conclude rule (Bren at at see also id. [petitioner] required by seeks Con nan, J., dissenting) (describing anticipatory stitution”); Teague, 489 at U.S. judi overruling as “an indefensible brand of (“ sounder, adjudicating at 1073 ‘it is activism”). Here, application cial of Grif petitions, generally apply to the law unwarranted, Taylor especially to seems fith prevailing at the time a conviction became given has no indication that dispose final than it of [habeas] seek longer good Daniel is no law. To the con intervening changes in cases on the basis of trary, appeared it endorse decision ”) interpretation’ (quoting constitutional Teague by citing quoting itself Daniel States, 667, 689, Mackey v. United approval. Teague, with evident See (Harlan, Daniel, (quoting at J.)). In U.S. at 95 S.Ct. at these circum ' stances, our role an inferior court counsels Finally, might argue one that Griffith restraint, ap it even the result otherwise application be- receive retroactive pears inescapable. given this effect to the cause courts Teague, point- comparable rule established The conclusion that Fulford’s surprise ing that the assertions of governed should be rather than out same tucky, L,Ed.2d Id. at 109 S.Ct announced." Lane, (1987) conviction did not be- Because Leichman’s Un- days was de- final until six after come cided, controlling authority Teague, der in the habeas he to the benefit of the is entitled context, "new constitutional rules of criminal decision. procedure applicable will not be to those cases (footnote omitted). F.2d at 317 the new rules which have become final before try either to the state order by instructions voiced the state reliance good-faith and offered on unrecognized days when or release him. within 180 again case went Fulford Teague. after petitioners habeas behalf of REMANDED. REVERSED and Butler, Sawyer v. (“If J, dissenting) (King, REHEARING FOR ON SUGGESTION having should be considered case EN BANC retroactively ap rule not a new established July 1993. convic whose petitioners habeas plicable to itself’), final, Teague it is tions have become KING, POLITZ, Judge, Chief Before: 2822, 111 aff'd, 497 U.S. JOLLY, GARWOOD, PATRICK E. GRADY sym argument for The HIGGINBOTHAM, EUGENE W. E. Teague of metrical treatment Griffith JONES, DAVIS, E. JERRY EDITH H. by it is foreclosed superficial appeal, but has WIENER, BARKSDALE, SMITH, DUHÉ, — Fretwell, U.S. -, Lockhart DeMOSS, GARZA, and Circuit EMILIO M. Judges. retroactivity cannot be exam Questions of addressed with but must be ined in a vacuum BY THE COURT: “ function, ‘nature, scope reference to of active service A member process in which such adjudicatory of suggestion for poll on the having requested ” at Teague, 489 U.S. cases arise.’ majority rehearing and a of en banc Mackey, at (quoting at 1072 having voted in favor in active judges service J.)). (Harlan, at 1175 banc, rehearing en granting a of Teague confirmed in Fretwell for the by respect States’ motivated “was that this cause shall IT IS ORDERED finality of criminal strong interest argu- en banc with oral reheard the Court convictions, that a recognition State to be fixed. The on a date ment hereafter relying ‘the penalized for not be briefing schedule for the specify will Clerk at the prevailed standards constitutional filing supplemental briefs. proceedings took original time — at -, at 844 place.” U.S. at Teague, 489 (quoting Teague application of The retroactive pur with these is consistent but reliance petitioner’s poses, since THOMAS, Individually, C. James approach typically those do not interests 1,# of the SLT Trust interest in as Trustee simply “has no the state and he finality judgment under Plaintiff-Appellant, of the state court — Fretwell, he is incarcerated.” which added). at -, (emphasis BANK, N.A. CHASE MANHATTAN treat differential differences warrant These Defendant-Appellee. retroactivity, “that the State such ment in some from our decision will benefit No. 92-2613. cases, peti the habeas federal habeas while Appeals, States Court United Id. will not.” tioner Circuit. Fifth concerning strong reservations We decision, June panel’s but are bound the Leichman grant relief to urge that by it. We do holding of Leichman be and the en banc. the court reconsidered

IV. grant of relief to Williams reverse the

We court with instruc- remand to the district We petition be dismissed.

tions to Fulford and the denial of

reverse relief court with district

remand the case

Case Details

Case Name: Larry Williams v. John P. Whitley, Warden, Louisiana State Penitentiary, John Fulford v. John P. Whitley, Warden, Louisiana State Penitentiary

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 20, 1993

Citation: 994 F.2d 226

Docket Number: 92-3361, 92-4008

Court Abbreviation: 5th Cir.