Barry W. Ritchie v. Don Eberhart

MERRITT, Chief Judge,

dissenting.

The two opinions of my colleagues do not take seriously the language of the congressional enactment on habeas corpus. Judge Nelson argues that two recent Supreme Court decisions combine to prohibit a federal court from ever finding that ineffective assistance of counsel in the preparation of a habe-as corpus petition can be sufficient “cause” for a petitioner’s failure to raise all available claims in that petition. This reading squarely conflicts with federal legislation and is not required by Supreme Court precedent. Nor can I agree with Judge Contie’s determination that “mere attorney error” is all that is at issue in this ease and that such error can never constitute cause. I respectfully dissent.

The first rule upon which Judge Nelson relies was fashioned for cases involving abuse of the writ questions. McCleskey v. Zant, 499 U.S. 467 , 111 S.Ct. 1454 , 113 L.Ed.2d 517 (1991). In McCleskey , the Court imported the cause and prejudice test from state procedural default law into abuse of the writ law. Under this test, claims raised for the first time, in a successive habeas petition are allowed only if the petitioner can establish both a legitimate cause for the failure. to include the claims in an earlier petition, and prejudice therefrom.

The second new rule was fashioned not in an abuse of the writ case, but in a “state procedural default” or “independent state ground” case. Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). The rule in Coleman is that ineffective assistance of counsel is not sufficient to establish cause in cases in which (1) counsel has allowed a state procedural default to occur which serves as an independent state ground barring review of the federal constitutional claim in state court, and (2) the default occurred in a state proceeding in which a defendant has no constitutional right to counsel.

In the instant case Judge Nelson imports the reasoning of Coleman into abuse of the writ cases. Noting that there is no right to counsel in a habeas proceeding, Judge Nelson combines these two rules to reach the conclusion that ineffective assistance of counsel may never serve as cause in an abuse of the writ or successive petition ease.

Such action is unnecessary and contrary to the lawful directive of Congress, which we are bound to respect. The reasoning of Coleman should not be extended from the area of procedural default into habeas proceedings, for at least two reasons. First, Congress has specifically delineated the parameters of “cause” in the habeas context, in 28 U.S.C. § 2244 (b), which mandates" that federal courts must hear successive petitions asserting new grounds for relief provided these grounds were not deliberately withheld in earlier petitions. An attorney’s inadvertent action surely falls within the scope of this mandate. Second, state procedural due process and habeas corpus differ sufficiently to require different applications of the cause and prejudice test.

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It is true that four circuits have followed Judge Nelson’s logic and combined the two rules, arriving at a new per se rule that neglect of counsel can never serve as a legití-mate “cause” for raising a new claim in a second or successive habeas petition. See Johnson v. Hargett, 978 F.2d 855, 859 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1652 , 123 L.Ed.2d 272 (1993); Blair v. Armontrout, 976 F.2d 1130, 1139 (8th Cir.1992), ce rt. denied, 113 S.Ct. 2357 (1993); United States v. MacDonald, 966 F.2d 854 , 859 n. 9 (4th Cir.), cert. denied, — U.S. -, 113 S.Ct. 606 , 121 L.Ed.2d 542 (1992); Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1275 , 117 L.Ed.2d 501 (1992).

None of these cases provide any real analysis of the question, however, and all ignore the clear language of a federal statute to the contrary. The federal statute codifying the abuse of the writ doctrine, 28 U.S.C. § 2244 (b), explicitly prevents the automatic combination of the rules in McCleskey and Coleman. ' This statute tells federal courts that they must hear a successive petition if *596 the judge “is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.” 28 U.S.C. § 2244 (b) (emphasis added). “Deliberately” does not mean its opposite, “unintentionally” or “inde-liberately.” Judge Nelson, and the circuits which have adopted the same logic, have overlooked this language. The statute allows a successive petition based on counsel’s inadvertent failure to present previously all possible claims, but does not allow the “deliberate withholding” of a claim in order to raise it for the first time in a successive petition. “Affirmative words,” as Chief Justice Marshall reminded us in Marbury v. Madison, 5 U.S. (1 Cranch) 87, 109 , 2 L.Ed. 60 (1803), are usually, “in their operation, negative of other objects than those affirmed.” “Expressio unius est exclusio alteráis” — the expression of one thing excludes the other. See Singer, 2A Sutherland Statutory Construction § 47.23 (5th ed. 1992).

Judge Nelson gives great weight to the fact that Mr. Ritchie “personally signed a verification of the first petition” and that his attorney’s failure to include all claims in that petition is “unexplained.” However, this Court is not concerned with the factual determination of whether or not Ritchie’s failure to submit all his claims in his first habeas petition was truly indeliberate. That is a matter for the district court. We must only determine whether the phrase “deliberately withheld the newly asserted ground or otherwise abused the writ” may be read to include inadvertent withholding of a claim by a lawyer. “Abuse of the writ” is not limited to withholding claims for use in successive petitions, as Judge Nelson seems to believe. A petitioner may “otherwise abuse the writ” by repeating claims raised in an earlier petition, by filing frivolous petitions, by waiting until the day before a scheduled execution to file a petition, etc. The phrase “otherwise abuse,” therefore, does not negate the requirement that newly asserted claims be reviewed by this court absent deliberate withholding. Judge Nelson appears satisfied that the petitioner in this case has had a sufficient number of bites at the apple. However, since Congress has already determined the proper number and scope of habeas petitions, this matter is not amenable to judicial, discretion. That Congress is presently considering further limits on successive habeas petitions only reinforces my view that legislative action is required to change the law in this case. See 1993 S. 1441, Habeas Corpus Reform Act of 1993; 1993 H.R. 3131, amending 28 U.S.C. § 2244 .

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When the Supreme Court imported the cause and prejudice test from state procedural default law into abuse of the writ law, it did not hold that every circumstance establishing cause for a procedural default must be cause for an abuse of the writ, nor that no circumstance could establish cause for what would otherwise be an abuse of the writ unless it would also be cause for a procedural default. McCleskey held that the “unity of structure and purpose in the jurisprudence of state procedural defaults and abuse of the writ” justified importing the cause and prejudice test from state procedural default law into abuse of the writ law. McCleskey, 499 U.S. at 493 , 111 S.Ct. at 1470 (emphasis added). The two areas of law are structurally similar in that each establishes an initial procedural barrier which can prevent a habe-as petitioner from having a petition heard on the merits. They are similar in purpose in that they seek to promote the government’s interest in finality, comity, federalism, and the orderly administration of justice. See id. 499 U.S.- at 491-93, 111 S.Ct. at 1468-70. But these two areas of the law are not identical. State procedural defaults and successive petitions arise in different contexts, and so application of the cause and prejudice test may produce different results.

The most important difference between the two areas of law is their source. State procedural default law is based upon the independent state ground rule that a federal court may not correct a state court’s error as to federal law if the state court’s decision is also based upon a sufficient independent state law ground. Coleman , — U.S. at -, 111 S.Ct. at 2554. Because a state procedural default is a sufficient independent ground for a state court’s denial of review of á federal constitutional claim, federal courts can only review such claims in carefully limit *597 ed circumstances. Although this rule is based in part upon strong concerns of comity and federalism (concerns which are much weaker in the abuse of the writ situation), it is justified primarily by the Article III limitation on the jurisdiction of federal courts to cases and controversies. See id. (stating that the rule “is grounded in concerns of comity and federalism” and “the limits of this Court’s jurisdiction”). If a federal court were to correct a state court mistake as to federal law when the state court decision is also supported by an independent state ground, it would be issuing an advisory opinion. Id. State procedural default law is, therefore, based upon strong constitutional considerations not present in abuse of the writ eases.

In contrast, abuse of the writ is a judicially developed doctrine which has been codified by Congress. Although there are constitutional limits on how liberally the courts or Congress may apply a cause and prejudice test in the context of state procedural default, there are no such limits in the context of abuse of the writ. Just as states may allow exceptions for procedural defaults based upon ineffective assistance of counsel in proceedings in which there is no constitutional right to counsel, e.g., Lozada v. Warden, 613 A.2d 818 (Conn.1992), Palmer v. Dermitt, 102 Idaho 591 , 635 P.2d 955 (1981), so may, and so has, Congress. Title 28 U.S.C. § 2244 is a federal statute, it has not been ruled unconstitutional, and we are bound to apply its plain meaning. The statute requires a federal court to hear a successive writ if the “judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.” “Deliberately” does not mean “indeliberately”; the statute, clearly contemplates that a claim not asserted in an earlier writ due to counsel’s inadvertence may be heard on a subsequent petition. Congress has therefore determined that ineffective assistance of counsel may be cause for a failure to assert all available claims in a habeas petition.

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For the reasons discussed above I do not agree with Judge Contie’s determination that “mere attorney error” cannot constitute cause when the withholding of a claim is indeliberate.. Judge Contie relies on Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986), which, like Coleman , discusses cause in the context of a state procedural default , case. The holding in Carrier is not dispositive with respect to the habeas petition at issue in the present case. Nor am I convinced that attorney error is all that is involved in this ease. In Carrier, the Supreme Court held that the omission of a claim was attorney error and not cause for a procedural default. Ritchie alleges that his lawyer omitted four claims. Since the district court judge dismissed Ritchie’s petition as a matter of law, these claims were not developed in the record below. Judge Contie may intuitively know the substance and character of Ritchie’s claims but I am not sufficiently clairvoyant to know'the facts of the matter in the absence of a record.

For these reasons, I would reverse the judgment of the district court and remand for determination whether Ritchie’s habeas counsel provided ineffective assistance after undertaking to represent him by presenting his best arguments.