William James Nims, Jr. v. Warden John Ault

оn the government’s separate breach of a vision of an employee who commits a tort legal duty. Id. purpose 2680(h), § frustrate the of which is to bar resulting suits from “delib- Billingsley’s complaint alleged that erate attacks employees.” Government Saquawn presence inwas the of other Job Tort Against Claims the United States: Corps Corps employee enrollees and Job Hearings on S. 2690 Before Subcomm. of Billingsley. when he battered Therе has Comm, the Judiciary, the Cong. 76th finding regarding been no govern (1940). ment’s negligence or whether Sa quawn off-duty, was but based in minimum, At very Billingsley is enti- supplied alone, formation complaint tled to discovery regarding the nature of appellant may have a cause of action government’s alleged negligence and against government under Sheridan. whether Saquawn was acting within the scope of employment at the time

Sheridan specifically rеserved the issue tort. Whether complaint this can survive as to when the government is liable for its summary judgment under Arkansas law is negligent oversight of employees its who not a question before us. We remand for are acting scope within the of their em- further proceedings ployment, consistent with appear the circuits to be opinion. split on this matter. See Brock v. United States, Cir.1995) 2680(h)

(holding § does bar suits

based negligent supervision of govern-

ment employees who battery); commit but States,

see Leleux v. United (5th Cir.1999) 2680(h) (holding that bars suit duty unless breached does not NIMS, Jr., William Aрpellant, James arise from the employment relationship).

We find the Fifth analysis Circuit’s persuasive. Saquawn If acting within AULT, Warden Appellee. John scope employment when he battered No. 99-4331. Billingsley, the government would be liable for the tort if Billingsley can show that United States Court of Appeals, “the negligence indepen ar[ose] out of an Eighth Circuit. dent, duty antecedent unrelated to the em Submitted: June 2000. ployment relationship between thе tortfea Leleux, sor and the United States.” Filed: June 2001. F.3d at 757. example, For govern Rehearing July Denied: ment would be if liable Corps Jobs employee responsible for the enrollees

knew Saquawn acted violently pub prior

lic to his commission of battery. government liable, would not be how

ever, for its negligent hiring supervi Saquawn,

sion of as such pertains a claim

to the government’s employment relation

ship with Saquawn. To find the govern

ment liable for negligent hiring super-

1. PROCEDURAL HISTORY kidnapping Nims was convicted ‍‌‌‌‌‌‌​​​​​​​​‌​​‌​​​​‌‌‌​‌​‌​​‌‌​‌​​​‌​‌​‌‌‌​‌​‍of sexually abusing eight-year-old girl trial, in May Iowa 1983. At Nims did not dispute kidnapped the fact that he and sexually girl, assaulted the but instead re- upon capacity lied a diminishеd defense. Supreme The Iowa Court affirmed the conviction, Nims, v. State 357 N.W.2d 608 (Iowa 1984), and the Ap- Iowa Court of peals applica- affirmed the denial of Nim’s relief, post-conviction tion for Nims v. (Iowa State, Ct.App.1986). 401 N.W.2d 231 In 1990 Nims filed a federal habeas corpus petition challenging the admission evidence, of hearsay raising Eighth an Amendment and ineffective assistance of counsel claims. The was denied in August merits 1991. While appeal of that denial pending before this Nims’ habeas counsel became potential misconduct,2 aware of asked court to this remand the case to the district court so that he could file an petition raising amended claim. this We dismissed the without February 1992 and remanded case to the district court. Judy L. Goldberg, argued, Rap- Cedar ids, IA, appellant. for remand, On Nims filed an amended Ewald, Moines, argued, Robert P. Des that included the IA, appellee. claim. not yet Nims had exhausted this court, however, claim state so the dis WOLLMAN, Judge, Before Chief trict court dismissed the amended BYE, BEAM Judges. Circuit prejudice, without leaving Nims free to BEAM, Judge. Circuit fully exhaust his state remedies and to refile the amended at a later date. William appeals Nims from the district § Although attempted court’s1 denial of his 28 Nims to exhaust U.S.C. We affirm. claim in post-convic state the state dire, (who 1. Melloy, During The Honorable prospective juror Michael J. United 2. voir Judge States District for the Northern District empaneled) you was later was asked "[w]ill Iowa, adopting Report and Recommen- transcript be fair?” The trial indicates the Magistrate dation of United States Chief answered, "[n]o.” Judge Jarvey. John A. exception to the un Nims did not meet the application as denied tion court the issue was three-year statute of limitation because three-year Iowa’s under timely The examina- following 822.3. habeas counsel’s See Iowa Code raised limitations. that the had transcript, court determined the trial been post-conviction tion of trial, State, misconduct occurred alleged juror since 1983. Nims existence in a have been raised 7-597/96-2114, could slip op. and therefore at 2. The Iowa No. in the appeal or manner on direct timely further found that a con- Appeals Court post- proceeding. post-conviction first developed during post-trial discov- tention Iowa affirmed court was conviction spoken had with his wife ery that the January Appeals Court ground trial was not a of fact or about the (Iowa State, Ct.App. No. 7-597/96-2114 not have been raised with- law which could 1998). 28, filed this Nims Jan. period. time This was three-year in the 27, 1998.3 May on law, as qualify under Iowa to such because likely must be ground, the evidence denied the The district court Id. at 4 change the result of the case. alleged juror miscon- that the and found State, 881, Dible v. 557 N.W.2d 884 (citing be- procedurally defaulted claim was duct (Iowa 1996)). had The court found Nims adjudicated by the cause it had never been produced any evidence that such dis- reasoned The district court state court. juror the and his wife cussions between oc- that because trial, the result of the changed would have dire, this claim was during voir curred excep- for the trial, qualify and hence could not no time of to Nims at the known of limita- three-year to the statute de- tion procedural cause existed to excuse Nims, slip op. at 4. a certifi- tions. court issued fault. The district this issue. appealability cate of

Thus, Iowa state courts have II. DISCUSSION to bar consider applied Iowa Code 822.3 federal post-conviction ation of Nims’ requires post-conviction law

Iowa Nims’ claim was dis misconduct claim. from years within three brought claims be independent courts on by missed the state final, or decision is the date the conviction law and this adequate grounds, state fact or law ground is a unless there procedural firmly rule is particular state raised within which could not have been regularly followed. See established and period. time Iowa Code applicable (8th 247, Hundley, 69 F.3d 252 Wyldes v. which reviewed § 822.3. The state courts Cir.1995).4 therefore Nims’ claims are conсluded juror misconduct claim Nims’ Harkins, legal landscape) ‍‌‌‌‌‌‌​​​​​​​​‌​​‌​​​​‌‌‌​‌​‌​​‌‌​‌​​​‌​‌​‌‌‌​‌​‍(citing v. 21 agree at Souch though parties seemed to 3. Even (D.Ariz.1998)). governed F.Supp.2d argument was not 1087-88 that this case oral act, corpus by to the habeas the amendments argue attempt to that the 4. Nims does not Penalty Death the Antiterrorism and Effective 822.3, which in section statute of limitations (AEDPA), our case law indicates Act at the review of his claim procedurally barred after AEDPA’seffec this case was filed since level, regu- firmly established or state is not date, governed AEDPA. tive the case is Edman, 444 v. larly State followed. Bowersox, (8th 241 F.3d 1024 See Weaver 1989) (rel- (Iowa Ct.App. 105-06 N.W.2d Cir.2001). Regardless, sub AEDPA did not in 1984 to add was amended evant section change procedural default stantively post- limit three-year of limitation to statute prejudice analysis which we em cause ju- litigation to conserve Johnson, "in order conviction ploy Villegas v. here. See Nix, also, resources”); McKeev. 995 see 1999) dicial (Congress enacted Cir. (8th Cir.1993) (recognizing and F.2d backdrop procedur "against a of ... AEDPA review). enforcing 822.3 bar Iowa’s section yet not to alter this ally claims” chose barred trial, we proeedurally right defaulted and cannot con- nied his to a fair but instead Nims can sider them unless demonstrate that the withheld information that he prejudice cause the default and actual for hаd discussed the case with his wife and violation of as result feder- already opinion had formed an that whoev- law, al that failure to consider or show er committed this crime should severely be claim will result in a fundamental However, miscar- punished. it is the “No” answer justice riage actually because he is inno- triggered inquiry habeas counsel’s Bowersox, cent of the crime. (that Weeks matter, into the and this information (8th Cir.1997). F.3d Nims does question possibly not be innocence, not assert actual but instead fair) was available to from Nims the time argues he the necessary can demonstrate of trial anomaly forward. This in the tran- cause for and from the default. script was available to following trial in 1983. No changed circumstances To show cause his failure to jui'or from the time when the answered post-conviction raise claim in state “No” at voir dire to the time habeas coun- proceedings, Nims must show that some sel discovered the deposed error and objective impeded external factor him from juror. Furthermore, juror’s based on the complying three-year with Iowa’s statute “No” question, you answer to the “Will be Endell, of limitations. O’Rourke v. 153 fair,” juror this arguably was being candid. (8th Cir.1998). 560, F.3d 567 An “exter petitioner Where the has access to the fairly nal” factor is one which is not attrib necessary information to make his claim in petitioner. Ivy utable to the v. Caspari, state develop failure to the claim (8th Cir.1999). 1136, 173 F.3d 1140 This will not constitute cause. El-Tabech necessarily external factor need not be (8th 386, Cir.1993). Hopkins, 997 F.2d 389 state, not, attributable to the but if it is it Thus, Nims cannot objec- establish that an explain must why the factual basis for the tive impeded external factor him from reasonably claim was unavailable. Id. at complying with Iowa’s three-year statute also, Hopkins, See Joubert v. 75 of limitations. (8th Cir.1996) (“Interfer 1232, F.3d 1242 state, ence ineffective assistance of Moreover, Nims cannot establish counsel, and conflicts of are interest exam prejudice. prejudice, To establish Nims ples of factors external to the defense must show alleged that the misconduct not prevent petitioner from developing only a possibility prejudice, created but claim.”) the factual basis of his Cf. that it worked to his actual and substantial Zаnt, McCleskey 467, 497, 499 U.S. 111 disadvantage, thereby infecting the trial 1454, (1991) (in S.Ct. 113 L.Ed.2d 517 suc with constitutional error. Luton v. Gran prejudice cessive writ cause analysis dison, (8th 626, Cir.1994). 44 F.3d 628 exist, impedi “[f]or cause to the external petitioner show, must very also at the ment, government whether it be interfer least, that absent the constitutional ence or the unavailability reasonable violation, there is a reasonable probability claim, factual pre basis for the must have the outсome of the case would have been claim”). petitioner vented raising from different. Washington, Strickland v. juror’s Nims 693-94, asserts the lack of 466 U.S. 104 S.Ct. candor at voir dire (1984); was the external factor L.Ed.2d 674 compare Mercer v. causing Armontrout, the default. argues (8th He that it is 864 F.2d Cir. 1988) not simply juror’s answering prejudice “No” to (noting needed to over the question you “Will be fair” which de- procedural come default is “not dissimilar instances of ineffective test for ineffеc and several assis- prejudice to Strickland's counsel”) adju- an with Zinzer v. tance of counsel. Nims received tive assistance (8th Iowa, all n. 7 Cir. dication on the merits of those claims claim, 1995) preju August that “actual 1991. His misconduct (opining in dicta procedural only bar claim now before this required to surmount dice” appealed not raised until after Nims higher standard than Strick is even denial of his first to this court. prejudice). land Nims moved to dismiss his so that juror in deposition, question In he could return to district court and file an agreed opinions with testified his wife petition raising amended miscon- during the trial. The he shared with her ap- duct claim. After we dismissed the jury members speak did not to other peal, Nims returned to the district court. anyone deliberation or to else dur- before peti- The court dismissed Nims’s amended juror’s trial. Because the wife did ing the tion without because he had not attempt during to influencе him their claim yet exhausted the speak anyone discussions and he did not sought state court. Nims then to ex- else, ample sup- and because evidence remedies, haust his state and he did not conviction, cannot demon- ported the with return to federal court this current with con- strate that the trial was infected 27,1998. May until likely stitutional error or the outcome the al- notes, would have been different absent majority governs AEDPA As the leged juror misconduct. case Nims filed because after AEDPA’s effective date. See Van III. CONCLUSION Norris, cleave v. Cir.1998). result, a that court did As we must examine

We conclude the district were AEDPA’s restrictions on our abil finding not err in that Nims’ claims whether ity petitions habeas Accordingly, defaulted. we to review successive procedurally petition. A judgment apply affirm the of the district court. to this discussion Supreme in Court’s decisions Stewart BYE, Judge, dissenting. Circuit Martinez-Villareal, 523 U.S. (1998), 1618, 140 L.Ed.2d 849 S.Ct. I Beсause Nims respectfully dissent. McDaniel, 473, 120 529 U.S. ‍‌‌‌‌‌‌​​​​​​​​‌​​‌​​​​‌‌‌​‌​‌​​‌‌​‌​​​‌​‌​‌‌‌​‌​‍S.Ct. Slack adjudication received an merits (2000), in helps 146 L.Ed.2d 542 that prior petition, all raised in a his issues pa those cases examined the regard, as petition considered “sec- current should be AEDPA’s restrictions. rameters of under 28 ond or successive” U.S.C. 2244(b). § authoriza- Nims did not seek in petitioner Martinez-Villareal prior filing his tion from this court pre-AEDPA pe- in a raised several claims petition in the district tition, a claim that he was incom- including petition not meet the standards his does executed, Ford v. Wain- petent to be 2244(b). Therefore, § I in set forth 399, 106 S.Ct. wright, 477 U.S. petition, judgment denying vacate the (1986). The district court L.Ed.2d 335 court remand the case to the district Martinez-Villareal relief denied for dismissal. claim, except all the Ford merits of claims premature the court as first federal habeas cor- which dismissed

Nims filed his yet issued because the state had pus petition June 1990. He ob- warrant. After the state hearsay execution involving claims the admission warrant, evidence, tained a Martinez-Villareal punishment, and unusual cruel reopen petition petition moved to to assert the entire without so that Martinez-Villareal, petitioner Ford claim.5 fully U.S. could exhaust his state at 118 S.Ct. 1618. The Court held remedies. After exhausting his state rem edies, reopen petition that the motion to was Slack returned to federal cоurt with petition: Slack, not a or “second successive” a second habeas See 479, 120 at U.S. S.Ct. 1595. may This have been the second time respondent had asked the federal The district court dismissed the second provide courts to relief on his Ford petition, concluding that it was “second or claim, but this does not mean that there Supreme successive.” The Court disa- separate applications, were two the sec- greed, holding thаt “a petition filed necessarily subject ond of which was in the district court after an initial habeas 2244(b). only applica- There was one unadjudicated on its merits relief, tion for habeas and the District and dismissed for failure to exhaust state (or ruled) Court ruled should have on remedies is not second or successive ripe. each claim at the time it became 485-86, petition.” at Id. 120 S.Ct. 1595. Respondent adjudica- was entitled to an Although subsequent Slack’s petition was tion of all presented of the claims in his prior filed to AEDPA’s effective earlier, renewable, undoubtedly applica- date, said, the Court suggest “we do not tion for federal habeas relief. the definition of second or successive 643,118 Id. at S.Ct. 1618. would be different under AEDPA.” Id. at 486,120 S.Ct. 1595. The Court contrasted Martinez-Villare- al’s hypothetical situation with of a petitions Unlike the issue Mar- prisoner who raises a new habeas claim Slack, tinеz-Villareal and Nims’s only after fully adju- the district court has should be considered “second or succes- dicated all peti- claims raised an initial sive” under AEDPA. presents This case tion: the situation to which the Court alluded in present

This case does not the situation Martinez-Villareal, where new claim is prisoner where a raises a Ford claim for raised ‍‌‌‌‌‌‌​​​​​​​​‌​​‌​​​​‌‌‌​‌​‌​​‌‌​‌​​​‌​‌​‌‌‌​‌​‍“for the first time in a filed the first time in a filed after the after the federal courts already have re- already rejected federal courts have the jected prisoner’s initial applica- habeas prisoner’s initial application. Martinez-Villareal, tion.” 523 U.S. at Therefore, we have no to occasion decide 645, 118 at n. S.Ct. 1622 *. Nims sought filing whether such a would be a “second to add a only misconduct claim after or corpus application” successive habeas appealing his petition merits-denied to this within the meaning of AEDPA. Thus, court. unlike the Ford claim in Martinez-Villareal, *, Nims’s miscon- Id. at 645 n. 118 (emphasis S.Ct. 1618 duct claim added). part was never of original petition. petition Unlike the mixed in Slack, In the Court addressed a mixed Slack, Nims an adjudication received petition, prior filed to AEDPA’s effective the merits of all origi- claims raised in his date, raising some that claims had been petition. nal exhausted state court and others that had not. Following Lundy, My Rose 455 petition view that Nims’s is “second U.S. 102 S.Ct. 71 L.Ed.2d 379 or hardly key successive” is novel. A fac- (1982),the district court had dismissed the tor in determining petition whether a brought reopen He the motion to after AED- PA’s effective date. (7th Cir.1995) (acknowledging that a “second or succes- be considered should petition following appeal may prior petition a has been remanded whether sive” is subject v. nevertheless be to an abuse-of-the- the merits. See Evans adjudicated оn defense). (4th Cir.2000); Smith, The fact that Nims chose writ 220 F.3d States, exempt the latter not the former over does v. United Johnson Cir.1999). petition from satisfying his current AED- or PA’s “second successive” restrictions. AEDPA’s “second or succes- Applying view, my petition In Nims’s current to this current sive” restrictions be saved from purpose granting could AEDPA’s restrictions likely frustrates our petitions only if appeal. first on “second or successive” motion to dismiss his Nims’s dismissing original appeal, able our order expected that Nims would be follyWe remanding to the district could court for review of to return to our vacating well as construed the district petition, in his first as be. as issues raised judgment denying pe claim Nims’s first court’s for review of Between tition. While remand order raised an amended entered however, Congress pursuant request enact- to a district court’s appeals, the two AEDPA, comparable landscape of our remand is tо vacatur of the altering ed Alan example, original judgment, AEDPA now see 6 Charles expectations. For Wright, Mary Kay Arthur R. reviewing any of the Miller & prevents us from Kane, petition, first since Federal Practice and Procedure issues raised Nims’s (2d ed.1990) (citing to meet AEDPA’s standards 697-98 Nims failed (2d Co., appealability Markert v. & obtaining certificate Swift Cir.1949)), Likewise, any I authority I believe AED- am unaware of on those issues. suggests party’s or successive” that a choice to PA’s restrictions on “second appeal and seek af prevent reviewing us abandon an remand petitions from finality judgment. of a When misconduct claim. fects merits following sought remand appellate re pursue Nims chose not to petition, first of the denial of his peti raised in his first view of the issues ex subject to an amended case when he asked us to remand his tion challenge and dismissal under haustion By point, court. how district Lundy. subsequent dismissal Rоse v. ever, already the first had been however, petition, his amended did in the merits-decided district finality the district court’s alter the purposes thus count for of deter should every the merits of issue judgment on is mining whether his original petition. in Nims’s raised AEDPA. “second or successive” under States, 802, In to consider Nims’s failing v. Johnson United (7th Cir.1999) of AEDPA’s “second or peti light that a (suggesting I ma- requirements, fear the count before it has been successive” tion will even precedent. mаjority prisoner gets jority if sets a bad decided on the merits “the a prisoner a to file way permits attack under and then a collateral defeat”). adjudica- complete receive a looming it in of district abandons the face merits, appeal, dismiss pursue orig his tion on the Nims’s other choice was to claim, and start all conclusion, appeal to add a new possi inal and risk a is penalty. sequence This challеnge to a over ivithout ble abuse-of-the-writ subse claim when the new juror certainly appropriate quent petition raising the misconduct (a) 655, a new rule of constitu- either relies on Farley, claim. Burris v. comply retroactive Because failed to with tional law made Su- requirements certification for “second or (b) Court, a factual preme or is based on petitions, successive” the district court predicate could not have been dis- power authority lacked the and to enter- through the exercise of due dili- covered Boykin tain his current See convincingly gence and which estab- States, 99-3369, United No. 2000 WL innocence, prisoner’s lish the actual see 28 2000) (col- Oct.30, *1 Cir. 2244(b)(2) (setting forth U.S.C. the re- cases). lecting I would therefore vacate a or quirements filing second succes- of judgment the district petition), sive but Nims’s misconduct remand this case to be dismissed for lack excеption. claim fits neither jurisdiction, reaching instead of merits of Nims’s misconduct claim. recently panel rejected I sat on reading strict literal of AEDPA’s reference or “second successive.” See Crouch v.

Norris, (8th Cir.2001). F.3d so, doing phrase

In we noted that application pre-AEDPA

involves Id.; principles.

abuse-of-the-writ see also (not- Norris, Vancleave v. 150 F.3d at 928 America, UNITED STATES that, Martinez-Villareal, ing the Su- Appellee, preme an “overly Court avoided literal phrase construction” of the when the sec- George LASHLEY, Lawrence also ond implicate did not abuse-of-the- Larry Lashley, known as principles). writ Our decision Crouch Appellant. prisoner’s turned on the fact that the sec- No. 00-2107. ond was not abusive because he (a bring was unable ‍‌‌‌‌‌‌​​​​​​​​‌​​‌​​​​‌‌‌​‌​‌​​‌‌​‌​​​‌​‌​‌‌‌​‌​‍to the claim at issue Appeals, United Court of States sentence, challenge to the execution of his Eighth Circuit. conviction) validity rather than the of his Submitted: Jan. 2001. petition, in his first and because his second May Filed: 2001. petition would not frustrate AEDPA’s con- Crouch, delay finality. cerns with Rehearing Denied: June F.3d at 724. Neither factor present is here. brought

Nims could have miscon-

duct claim in peti- his merits-denied first

tion; reviewing now, merits,

claim frustrates both delay

AEDPA’s concern with and with the

finality of Nims’s 1983 conviction. Fur-

thermore, procedure implicitly ap-

proved by panel prisoners allows writ, ought

abuse the therefore to be

subject to the strictures of AEDPA’s “sec-

ond or requirements. successive”

Case Details

Case Name: William James Nims, Jr. v. Warden John Ault

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 5, 2001

Citation: 251 F.3d 698

Docket Number: 99-4331

Court Abbreviation: 8th Cir.