Reeves v. LittleReeves v. Little
- Reporters:
- ,
- Before:
- Anderson, Brorby, Ebel (per curiam)
Filed August 13, 1997
PER CURIAM.
This matter is before the court on the transfer by the district court of Terry Lynn Reeves’
After Mr. Reeves filed his
Mr. Reeves was convicted in Oklahoma state court in September 1989 of possession of cocaine after former conviction of a felony and sentenced to 30 years incarceration.
In his previous habeas proceeding, Mr. Reeves became one of the large number of petitioners in Harris v. Champion, 15 F.3d 1538 (10th Cir. 1994)(Harris II), a case in which this court addressed the problem of appellate delay in the Oklahoma criminal justice system. Mr. Reeves became a petitioner while his direct criminal appeal was pending. In the earlier Harris opinion, Harris v. Champion, 938 F.2d 1062 (10th Cir. 1991)(Harris I), this court had ruled that the federal district court should have excused an Oklahoma prisoner’s failure to exhaust his state remedies before seeking federal habeas relief in light of extensive delay by the state public defender in filing an opening brief in the prisoner’s direct criminal appeal. The court remanded with directions to the district court to investigate the possibility of systematic delay in the filing of briefs by the Oklahoma Appellate Public Defender
On appeal following the remand, Harris II held that appellate delay in processing direct criminal appeals may result in excusing the exhaustion requirement. The court discussed the ramifications if exhaustion were excused.
Once exhaustion is excused, a federal court has the power to review the merits of a petitioner’s habeas petition to the extent that it raises federal issues. In many (indeed, most) instances, however, proceeding directly to the merits of a petitioner’s claims after excusing exhaustion may not be the preferred course of action, or even an effective one.
If exhaustion is excused due to delay in adjudicating a petitioner’s direct criminal appeal, the federal habeas review will, in some regards, serve as a surrogate for a direct state appeal. This raises several concerns. First, because the petitioner would be entitled to appointed counsel on direct appeal, it may be appropriate to appoint counsel to represent the petitioner on habeas review. Likewise, the federal court may need to ensure that an indigent petitioner has a free copy of the trial transcript if it is necessary to evaluate his or her habeas petition.
Furthermore, to the extent the petitioner’s underlying claims of error are state claims, the federal court cannot review them even if exhaustion is excused, because federal habeas review is limited to alleged “violation[s] of the Constitution or laws or treaties of the United States.”
Finally, federal courts should not be required as a routine matter to fulfill the State’s obligation to provide an “adequate and effective” direct criminal appeal to its indigent criminal defendants. Requiring the federal courts to do so on a regular basis just because the State does not fulfill its own constitutional obligations would unnecessarily tax federal resources and inject the federal courts into the State’s process.
15 F.3d at 1557 (citations omitted).
The court also determined that delay in adjudicating a state prisoner’s direct criminal appeal may give rise to an independent due process claim. Id. The court further held that the most appropriate form of habeas relief would be to grant a conditional writ directing the state to release the petitioner if it did not decide his appeal within a specified period. Id. at 1566-67.
The court remanded for an individualized factual inquiry as to each named petitioner for application of the enumerated factors to determine whether a due process violation had occurred. Id. at 1547.
On Mr. Reeves’ individual review, done after his conviction was affirmed on direct appeal, the magistrate judge recommended that the habeas petition be dismissed because Mr. Reeves did not suffer any prejudice from the delay in the determination of his direct criminal appeal. The magistrate also recommended that the dismissal be “without prejudice to petitioner’s filing a separate pro se action to pursue any other constitutional claims.” It appears that the district court judge adopted the recommendation.
Abuse of the writ required dismissal of a petition which “(1) ‘successively’ repeats claims previously decided on the merits, or (2) ‘abusively’ asserts new ground unjustifiably omitted from a prior petition.” Watkins v. Champion, 39 F.3d 273, 275 (10th Cir. 1994).
The abuse of the writ doctrine is rooted in the need for finality and concerns of comity, McCleskey v. Zant, 499 U.S. 467, 491-92 (1991). In Felker v. Turpin, 116 S.Ct. 2333 (1996), the Supreme Court upheld the constitutionality of the “gatekeeping” function of the courts of appeals, concluding that this function is within the mainstream of the evolving jurisprudence to curb abuse of the writ.
The new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice “abuse of the writ.” In McCleskey v. Zant, we said that “the doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.” The added restrictions which the [AEDPA] places on second habeas petitions are well within the compass of this evolutionary process, and we hold that they do not amount to a ‘suspension’ of the writ contrary to Article I, § 9 [of the Constitution].
Id. at 2340 (citations omitted).
The unique situation presented in the Harris cases prevented Mr. Reeves from presenting claims other than the issue of whether the delay in his appellate review violated his due process rights. Once the district court determined that his direct criminal appeal had been adjudicated and his conviction affirmed there were no remaining issues. At this point there was no reason to excuse exhaustion and to address merits of other claims Mr. Reeves may have had at that time. See Taylor v. Hargett, 27 F.3d 483, 487 (10th Cir. 1994)(although the district court could have excused exhaustion because of the delay in processing the petitioner’s direct criminal appeal, the court’s decision to grant relief by sending the petitioner back to state court with newly appointed counsel was the better solution).
The situation therefore is analogous to that where prior petitions were dismissed for failure to exhaust. And as in those cases, if the instant petition is considered a second or successive one under AEDPA any other claims which existed
Accordingly, the district court order is VACATED and the matter is REMANDED to the district court for such other and further proceedings as may be just and proper.