recognizing that abuse of the writ does not arise when there has not been a "determination on the merits” or where “there has been an intervening change in the law”
How later courts described this case
- recognizing that abuse of the writ does not arise when there has not been a "determination on the merits” or where “there has been an intervening change in the law”
- no determination on the merits because court neither conducted evidentiary hearing nor reviewed files and records in the case
- “we do not see how the existence of a false police report, sitting in a drawer in a police station, by itself deprives a person of a right secured by the Constitution or laws. . .The focus. . .ordinarily should be on the consequences, if any, not on the mere existence of the report”
- “The doctrine of abuse of the writ has developed as a result of the familiar rule of law that a denial of an application for habeas corpus is not res judicata with respect to subsequent applications.”
Written by the judges who cited it.
The opinion
THOMAS A. CLARK, Circuit Judge,
specially concurring:
I concur.
I agree with and concur in Judge Anderson’s scholarly and thoughtful opinion. I think that the remand provided for in his opinion is the least that is required under *753 the circumstances; I would go further and require a hearing on the merits because I believe the facts and the ends of justice overwhelmingly compel the granting of a habeas corpus hearing on the merits. I would therefore hold that it is unnecessary to conduct a hearing in order to determine whether a later hearing on the merits of Potts’ constitutional claims should be had.
We are balancing (1) the right of a prisoner to a habeas corpus hearing one month after he waived such a right, against (2) the possibility that the state might have suffered substantial prejudice if the hearing were granted, and (3) the district court’s being vexed or harassed in the performance of its functions or the prisoner’s obtaining a delay of his death sentence.
Judge Anderson has forcefully elucidated the preeminence of habeas corpus in our country’s criminal law procedure. Here the prisoner is sentenced to die; he has not had a federal habeas corpus hearing; the record clearly reflects a tortured and vacillating mental state that has bent to differing pressures from his brother, his mother, his attorneys, and the news media, not to consider the alleged maltreatment in prison about which no evidence has been taken in the instánt case. One cannot truly be surprised that the prisoner at one time wanted to hurry his own execution and at another time wanted to live and seek relief for claimed deprivation of constitutional rights.
I read the holding in Sanders to require an express finding that Potts had the specific intent to vex, harass, or delay in withdrawing the first petition before he could be denied a hearing on the second petition. I see no evidence of such intent in the record that has been made up to this time.
Alternatively, I can only conclude that the ends of justice demand a hearing on the second petition. Assuming no prejudice to the state, we have on the one hand the possibility of intent to vex, harass, and delay — on the other, death by electrocution without determining if the prisoner was deprived of his rights. The ends of justice require that the district court fully consider the prisoner’s constitutional claims under these extreme circumstances. To do otherwise would always leave unanswered the questions — Did Potts intend to vex, harass, and delay? Was Potts deprived of any of his federal constitutional rights? Was it appropriate to take his life by answering the first question yes and avoiding an answer to the latter question? The price of granting a full hearing is too small when balancing these considerations.