Appendix — Morgan v. Jefferson

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1992

NO. 92-193

JACK MORGAN, WARDEN,

Petitioner,

v.

JAMES THOMAS JEFFERSON

Respondent.

APPENDIX TO BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

CHARLES R. RAY

DONALD E. DAWSON

211 Third Avenue North

Nashville, TN 37201

(615) 256-2111

Counsel For Respondent

TABLE OF CONTENTS

Report and Recommendation of Magistrate ...........1

IN THE UNITED STATES DISTRICT COURT F | L E D

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JAN 18 1991

JAMES THOMAS JEFFERSON 5%

Petitioner

v. No. 3:89-0382

Judge Nixon

JACK MORGAN, Warden

Respondent

REPORT AND RECOMMENDATION

Il. INTRODUCTION

This petition for writ of habeas corpus was referred to the Magistrate by

the Honorable John T. Nixon, District Judge, by Order entered July 18, 1989

(Docket Entry No. 2). Pursuant to 28 U.S.C. § 636(b)(1)(B), the Magistrate was

directed to consider whether the claims in this action are frivolous or malicious

within the meaning of 28 U.S.C. § 1915(d) and to conduct any necessary

proceedings under Rule 72(b) of the Federal Rules of Civil Procedure. In essence,

"[a] complaint... is frivolous where it lacks an arguable basis in law or in fact.

Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989).

See also Rule 10, Rules Governing Section 2254 Cases.

The Magistrate found that the petition was not frivolous and directed the

respondent to file a response (Docket Entry No. 3). Pending before the Court

are the following motions: (1) petitioner’s motion to reinstate the Court's earlier

Findings of Fact and Conclusions of Law (Docket Entry No. 9); (2) respondent's

motion to amend his answer (Docket Entry No. 13); and (3) petitioner's motion

to strike the respondeai’s motion to amend (Docket Entry No. 14).

1 This document was entered on the docket in

A- | compliance with Rule 58 and/or Ruje 79 (9),

FRCP, on [aI A bck bey 2

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Petitioner, James Thomas Jefferson (Jefferson) seeks a writ of habeas corpus

alleging violations of the Equal Protection Clause of the Fourteenth Amendment

by the systematic exclusion of blacks from the state grand jury and petit jury that

initiated and heard the state charges that led to his conviction of first degree

murder (Docket Entry No. 1). In his motion, Jefferson moves to reinstate an

earlier opinion of this Court that there was systematic exclusion of blacks from

his grand juries in violation of the Equal Protection Clause. The Court’s opinion

was reversed by the Court of Appeals, but only because of Jefferson's failure to

exhaust his state remedies (Docket Entry No. 9). Respondent Jack Morgan,

Warden of the Tennessee State Penitentiary, does not object to consideration of

the prior opinion, but contends that the Court should reconsider subsequent facts

Since that opinion (Docket Entry No. 10).

Respondent moves to amend his answer to assert that Rose v. Mitchell, 443

U.S. $45, 61 L.Ed.2d 739, 99 S.Ct. 2993 (1979) does not have retroactive effect

— an

On this case based upon the rule announced in Teague v. Lane, 489 U.S. , 103

L.Ed.2d 334, 109 S.Ct. 1060 (1989) (Docket Entry No. 13). In response, petitioner

moves to strike respondent's motion to amend his answer as untimely under Local

Rule 8 (Docket Entry No. 14). Respondent contends that Local Rule 8 is

inapplicable or, in the alternative, that the Court should grant leave to amend

(Docket Entry No. 16).

For the reasons set forth below, the Magistrate recommends that this Court's

prior findings and conclusions in Jefferson v. Dutton, 607 F. Supp. 355 (M.D.

Tenn. 1985) be reinstated in this case under the “Law of the Case” doctrine that

courts will not redetermine issues resolved in earlier litigation absent a manifest

injustice. The Court of Appeals in reversing the Court’s prior judgment, did so

only because petitioner had an unexhausted state claim and did not otherwise

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disturb the Court’s holding on the facts. Moreover, respondent has failed to

demonstrate clear error in the Court's prior judgment. The Magistrate also

recommends that respondent's motion to amend his answer be granted, because the

arguments contained in the amendments may affect the disposition of this case and

because leave to amend will not prejudice the petitioner. The Magistrate also

recommends that petitioner's motion to strike be denied because respondent's

motion is not bound by the time constraints of Local Rule 8(b)(3) in this habeas

corpus proceeding.

Il. REVIEW OF THE RECORD

Jefferson is a black citizen who was indicted by the Davidson County Grand

Jury on July 23, 1968 for first degree murder. Jefferson v. Dutton, 607 F. Supp.

355, 357 (M.D. Tenn. 1985). The grand jury that indicted Jefferson had two black

jurors with the other jurors and the foreperson being white. Jd. at 358. The jury

for Jefferson’s first trial was made up of seven whites and five blacks. ]d. at 357

n. 1. That trial ended in a hung jury. Id. at 357. Petitioner's second trial had

a jury made up of ten whites and two blacks. Id. at 357 n. 2. This trial ended

in petitioner’s conviction- and sentence of ninety-nine (99) years. ld. at 357.

Jefferson appealed to the Tennessee Court of Criminal Appeals, which remanded

the case for an evidentiary hearing on the systematic exclusion of blacks from petit

and grand juries. Id. The Tennessee Supreme Court affirmed this decision to

remand. ld.

Upon remand, the state trial court limited petitioner's proof to the

composition of the grand jury that indicted him and the petit jury that convicted

him. Id. The trial court concluded that there had been no systematic exclusion

of blacks with respect to either jury. Id. In 1977, the Court of Criminal Appeals

Clere me I

affirmed this decision and the Tennessee Supreme Court denied permission to

appeal. ld.

Jefferson then filed his petition in this Court. The Magistrate incorporates

this Court’s prior factual findings on Jefferson's first federal habeas corpus

petition about racially discriminatory practices in the selection of grand jurors in

Davidson County.

The parties agree that petitioner has made out a prima facie

case of racial discrimination in the selection of grand juries. As to

the first element in the three-prong test in Castaneda, blacks are

clearly a suspect category for purposes of equal protection analysis.

Second, petitioner has satisfied the rule of exclusion. Evidence was

presented that in the decade ior to petitioner’s indictment 958-

1968), there were thirty-three (33) grand juries. Each grand jury was

mpo of thirteen embers who w ected b imi t

judges in Davidson County. Of those thirty-three, seventeen grand

juries had only one black member. Seven grand juries had no <—

and e€ numbe blacks on eight saan. juries was ane w

were two blacks on petitioner's grand . The black u alio “

avidso unty was a oximatel i ae en perce duri eriod

vailable ad a entage blacks that was significant] than

the percentage of the population of blacks ji avidso unty. us

he Court concludes that petitione as satisfied the rule of e

Petitioner has also satisfied the third element of the Castaneda

test by showing that the appointing judges under the keyman system

were aware of the race of the grand jurors that they appointed. Such

a procedure is clearly susceptible to abuse. [citing Rose]

> 2 s

the case bar ¢e an juries were ected b he

inal court judges for Davidson County each year duri the period

1958 to 1968 using the keyman system. In 1971, three years

after petitioner’s indictment, the County changed to a system whereby

both grand jurors and petit jurors were selected from computer-

generated lists. During the decade in question, most of the jurors

were appointed by the Honorable Raymond H. Leathers, who began

serving in Division I of the Davidson County Criminal Court in 1958,

and the Honorable John L. Draper, who began serving in Division II

in October, 1960. These two judges appointed twelve jurors plus one

foreman to each grand jury. ocumented evi c ia

composit fe) and ries is available l v e

3 uri twenty-six foremen. twenty-six

were white, and only fourteen of the 2. jurors were ack.

Petitioner introduced testimonial evidence as to five additional grand

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juries and seven additional foremen. Of the total of thirty-three

grand jury foremen, all were white. Of the twenty-six grand juries

with a total of 312 non-foreman positions, nO more than twenty

(6.45%) were black.

The testimonies of Judge Draper and Judge Leathers deny any

racial bias in the selection process. The evidence indicates that they

depended on first-hand knowledge and referrals from friends and civic

groups as the basis for recruiting grand jurors. Both judges used

objective guidelines to select jurors; the juror characteristics sought

included citizenship activities, maturity, work experience, standing in

the community, and general qualities of good citizenship. Of primary

concern to the Court, however, is not the criteria used to _ select

actual grand jurors, but the po which t e w

It is the judgment of the Court at the c

which the pool of potential jurors was formed was excessively weighted

toward the white community and served to exclude potential black

grand jurors. This conclusion is buttressed by the fact that all but

one of the twenty-six juries had zero or

that not one of the _ thi -three fore n ele

"Statistics are not, of course, the whole answer, but nothing is as

emphatic as zero....”

Jeffersoa v. Dutton, 607 F. Supp. at 358, 359, 360. (emphasis added).

This Court arrived at its conclusions on petitioner’s claim under the test set

forth by Castaneda v. Partida, 430 U.S. 482, 51 L.Ed.2d 498, 97 S.Ct. 1272 (1977).

..-[IJn order to show that an ual protecti Vv ti s

in the context of grand jury selection, the def Ww t

the procedure employed resulted in substantial underrepresentation of

his race or of the identifiable group to which he belongs. The first

step is to establish that the group is one that is a recognizable,

distinct class, singled out for different treatment under the laws, as

written or as applied. ... Next, the degr und tat s

be proved c ari t orti of the group in the total

opulation to the oporti called to serve as d v

significant period i

ses

This method of proof, sometimes called the ‘rule of exclusion,” has

been held to be available as a method of proving discrimination in

jury selection against a delineated class. ... Fimally, as noted above,

a_ selection procedure that is_ susceptible of abuse or is not racially

neutral ts the e i {_ discri a i

statistical showing.

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Once the defendant has shown substantial underrepresentation of his

group, he has made out a prima facie case of discriminatory purpose,

and the burden then shifis to the State to rebut that case.

Castaneda, 430 U.S. at 494-95. (emphasis added)

In a word, re holds that the systematic exclusion of a petitioner's

group from a petitioner's grand jury may be shown by a_= substantial

underrepresentation of that group over a significant period of time when the

procedure for grand jury selection is Open to such abuse.

For its conclusions of law, the Court found as to the first element of

Castaneda, that Jefferson's group was clearly a suspect category “for purposes of

equal protection amalysis. Jefferson, 607 F. Supp. at 358. As to the second

element of Castaneda, the Court's review involved evidence as to the composition

of Davidson County grand juries from 1958 to 1968. Id. at 358. The state courts

had only considered petitioner's grand jury and the percentage of the black

population in Davidson County which was eligible for jury duty. ee Jefferson v.

State of Tennessee, 559 S.W.2d 649, 651 (Teno. Cr. App.) cert. denied (Tenn.

1977). This Court, however, held that petitioner was entitled to submit proof as

to the composition of grand juries for the ten years before his indictment.

Jefferson, 607 F. Supp. at 358.

This Court held that the state courts’ refusal to allow petitioner to present

evidence on the composition of prior grand juries was a denial of the full, ‘fair

and adequate hearing required by 28 U.S.C. § 2254(d)(6) and the due process

required by 28 U.S.C. § 2254(d)(7). Jefferson, 607 F.Supp. at 358. This holding

relied upon Castaneda, which held that a petitioner could prove

underrepresentation “by comparing the proportion ‘of the group in the total

population to the proportion called to serve ... ov ific ime."

Castaneda, 430 U.S. at 494. (emphasis added). The Court noted that “without

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evidence of other grand juries, it would be virtually impossible to prove systematic

exclusion. ‘Jefferson, 607 F. Supp. at 358 n. 5.

In an unpublished opinion, the Court of Appeals for the Sixth Circuit

remanded the case with instructions to dismiss the petition without prejudice.

Jefferson v. Dutton, No. 85-5335 (6th Cir. June 10, 1986) at 6, attached to Docket

Entry No. 8 as Addendum 15. The Court of Appeals held that the systematic

exclusion of biacks as forepersons to these grand juries was a separate issue that

had not been exhausted in the st.slte courts. Id. at 4. Thus, the petition

contained both exhausted and unex susted claims which required its dismissal.

Id.

After a remand, Jefferson's petition on this issue in the state court was

denied by the Criminal Court for Davidson County, Tennessee, on September 11,

1987. (Docket Entry No. 1 at 4). The Tennessee Court of Criminal Appeals then

affirmed the trial court. State v. Jefferson, 769 S.W.2d 875, 877 (Tenn. Cr. App.

1988) perm. to appeal denied (Tenn. 1989). It is significant to note here that in

its affirmance, the Tennessee Court of Criminal Appeals tock issue with the

Supreme Court's findings as to the powers of a Tennessee grand jury foreperson

in Rose v. Mitchell, 443 U.S. 545, 61 L.Ed.2d 739, 99 S.Ct. 2993 (1979). Im Rose,

the Supreme Court found that a foreperson on a Tennessee grand jury must

endorse a grand jury indictment, or else the indictment would be “fatally

defective." Rose, 443 U.S. at 548 n. 2. Later, citing Rose, the Supreme Court

held in Hobby v. United States, 468 U.S. 339, 82 L.Ed.2d 260, 104 S.Ct. 3093

(1984), that a Tennessee grand.jury foreperson had ‘virtual veto power over the

indictment process." Hobby, 468 U.S. at 348.

The state courts objected to this conclusion that a grand jury foreperson in

Tennessee has “‘virtual veto power’ over the grand jury as a whole.” State v.

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Jefferson, 769 S.W.2d 875, 877 (Tenn. Cr. App. 1988) perm. tO appeal denied

(Tenn. 1989). The state courts and the respondent insist that the foreperson’s

duties were “substantially ministerial and clerical in nature.” Id. Since the grand

jury foreperson has no greater power than any Other juror, the state courts held,

and the respondent argues that the systematic exclusion of black citizens from the

position of foreperson does not state a separate equal protection claim. ld. at

878.

As to exclusion of blacks from the grand jury, the state courts found no

equal protection claim because there was no statistical disparity between the

number of black citizens eligible for jury duty and the number of black jurors on

petitioner's grand jury.

On the contrary, two permanent members of that jury were black, and

a black alternate was available. The percentage of blacks to the total

population eligible for jury duty was 15.4, not far from the average

for the county. There was no substantial underrepresentation of his

group op this grand jury. With the alternate considered, at times

during that term 23 percent blacks were available for the grand jury.

There is no substantial disparity here which would suggest any

discriminatory purpose or that blacks had been systematically excluded

from Davidson County grand juries.

Id. at 878 (quoting Jefferson v. State, 559 S.W.2d 649, 651-52 (Tenn. Cr. App.)

cert. denied (Tenn. 1977). The Tennessee Supreme Court denied permission to

appeal. State v. Jefferson, 769 S.W.2d at 875. Petitioner then filed his second

petition with this Court on May 10, 1989 (Docket Entry No. 1).

Ill. CONCLUSIONS OF LAW

The pending motions present two issues before the Court; (1) whether the

Court should reinstate its findings of fact on the first petition in its consideration

of the second petition and (2) whether the Court should allow respondent to

amend his answer as to argue that Rose v. Mitchell has no retroactive effect on

the present petition. The Magistrate begins with the first issue.

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In essence, petitioner asks this Court to treat its prior findings of fact and

conclusions of law on his petition as the “law of the case.* The doctrine of the

‘law of the case" holds that ‘when a court decides upon a rule of law, that

decision should continue to govern the same issues in subsequent stages in the

same case." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d

318 (1983). The court may reconsider a prior holding, however, "if convinced that

it is clearly erroneous and would work a manifest injustice." Id. at 618 n. 8.

Although the doctrine does not impose an absolute rule, its use comes from the

understanding that “efficient disposition of the case demands that each stage of the

litigation build on the last, and not afford an opportunity to reargue every

previous ruling." 1B J. Moore, J. Lucas & T. Currier, Moore's Federal Practice 4

0.404[1] (2d ed. 1988) at 118.

Whether a trial court’s prior judgment is the “law of the case” after an

appeal and remand depends upon the extent of the appeal and the issues actually

decided by the appellate court.

If an appeal is taken from only a part of the judgment, the

remaining part is res judicata, and the vacation of the portion

appealed from and remand of the case for further proceedings does

not revive the trial court jurisdiction of the unappealed portion of

the judgment. Thus the more flexible doctrine of the law of the case

has no application. If the notice of appeal embraces the entire

judgment and the judgment is reversed or vacated and the case

remanded generally for further proceedings, such law as is established

by the appellate court, explicitly or by necessary inference, must be

applied by the district court. In the case in which the mandate of

the urt t_ad $_a particu i

judgment, on this issue, does not establish the law of the case, and

on appeal from the judgment rendered after remand, it may be

evicw t ate cour wev

boo oy

a,

ld. at 131 (footnotes omitted). In essence, the trial court may apply the

undisturbed portions of a prior judgment that has been appealed unless there is

clear and convincing proof of error.

Here, the Court of Appeals reversed this Court's earlier judgment because

petitioner had not exhausted his state remedies. Jefferson, No. 85-5335 at 6. In

doing so, the Court of Appeals noted that “we do not feel it is mecessary at this

time to discuss the merits of his claim.” Id. at 3 o. 7. Thus, the Court of

Appeals left this Court's findings of fact undisturbed. Instead of conducting a

renewed inquiry into these matters, this Court is free to reinstate its prior

findings of fact.

In light of the length and complexity of this litigation, the interests of

efficiency dictate that this Court reinstate its prior factual findings absent a

manifest injustice. After petitioner's indictment in 1968, he immediately filed a

plea of abatement alleging the systematic exclusion of blacks from Davidson County

juries. Jefferson, 607 F.Supp. at 357. His claims in that first petition before the ~

State courts were not finally denied until 1977. Id. Petitioner then filed his

petition in the federal courts in 1982. Id. The claims ip this petition have been

before the courts in ome form or another since that 1982 filing. There are no

new facts on the selection of grand juries presented. Rather, it is an argument

of law that respondent advances.

Given the length of time which has already passed, there should be no

unnecessary delay from repetitive fact finding. Absent a showing of clear error

in this Court’s previous factual inquiry, the results of that evidentiary: review

should be reinstated. Thus, the Magistrate recommends that the Court reinstate

its findings of fact on the composition of Davidson County grand juries.

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As to the legal conclusions from these factual findings, respondent objects

to the Court’s prior legal conclusions. (Docket Entry No. 10 at 2). Respondent

argues, in essence, that the Court should adopt the state courts’ conclusions that

the Supreme Court erred in Rose and Hobby. The Magistrate notes that the prior

judgment of this Court was not decided upon Rose or Hobby. In fact, the Court's

view of the grand jury foreperson claim was similar to the view of the state

courts. See Jefferson, 607 F. Supp. at 357 n. 4. Im any event, the powers of a

Tennessee grand jury foreperson were not essential to this Court's prior holding.

The Court's prior holding was an analysis under Castaneda of the process by which

Tennessee selected all grand jurors. The Court found that a system in which

judges appointing grand jurors were aware of the jurors’ race was “clearly

susceptible to abuse." Jefferson, 607 F.Supp. at 358. Although Rose _v. Mitchell

was cited in support of this proposition, the Supreme Court's conclusions in Rose

and Hobby buttress this Court's earlier independent finding.'

The Court’s determination that racial discrimination had impermissibly

tainted petitiqner’s grand jury was based upon the statistical disparity between the

number of black grand jurors in the ten years preceding petitioner's indictment

and the black population in Davidson County. Id. at 360. As previously noted,

Castaneda requires the consideration of grand jury composition “over a Significant

period of time," not just the racial composition of the grand jury that indicted

Jefferson. 430 U.S. at 494. The adsence-.of black forepersons on the grand juries

during that period was only one fact supporting the Court's determination. 607

F. Supp. at 360. More important to that determination, however, was the fact

‘Of course, this Court has no power to overrule the Supreme Court’s conclusion in Rose v. Mitchell,

even if it believed that the state courts’ view was Correct.

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that all except one of the grand juries considered had only one or no black

members. Id.

The virtual absence of black grand jurors, compared to the black population

of Davidson County, presented a statistical disparity which itself was part of the

proof of systematic exclusion.

The idea behind the rule of exclusion is not at all complex. If a

disparity is sufficiently large, then it is unlikely that it is due solely

to chance or accident, and, in the absence of evidence to the contrary,

one must conclude that racial or other class-related factors entered

into the selection process.

Castaneda, 430 U.S. at 494 n. 13. Castaneda remains the relevant analysis for a

Claim that a suspect class has been systematically excluded from a grand jury. See

Ford v. Seabold, 841 F.2d 677 (6th Cir.) reh’g denied en banc (6th Cir.) cert.

denied 488 U.S. 928, 102 L.Ed.2d 334, 109 S.Ct. 315 (1988). Respondent has not

articulated any other applicable analysis. Therefore, the Magistrate finds no clear

error in the Court’s prior judgment.’

Finally, the Tennessee courts found and the respondent argues that because

two blacks were on the grand jury, that there is no violation of the Equal

Protection clause. The long-standing federal rule, however, is to the contrary.

?The Court of Appeals for the Sixth Circuit has held that the absence of a suspect class did not

establish a prima facie case of discrimination. Ford, 841 F.2d at 681. In so holding, the Court of Appeals

relied on Carter v. Greene County, 396 U.S. 320, 24 L.Ed.2d 549, 90 S.Ct. 518 (1970). Ford, 841 F.2d at

686. The Magistrate, howéver,believes-that Ford is distinguishable. The Court in Ford repeatedly

emphasized that at issue there -was a Sixth Amendment claim to a jury from a fair cross section of the 4

community, whereas, Castaneda involved an equal protection claim of intentional discrimination. Id. at 683

n. 4 and 684 n. S. Finally, to the extent that Castaneda was cited on three elements that involve the

question of intent, the statistical disparity here is far greater than the statistical disparity in Ford. More

, unlike the case here, the petitioner in Ford “points to nothing in the selection process which

makes it obvious that the underrepresentation was due to the system itself and women and men were

selected for jury panels using a key wheel. Id. at 685. This Court, however, found that an appointing

judge's awareness of a juror’s race made the system “susceptible to abuse,” in accordance with the Castaneda

requirement. Jefferson, 607 F. Supp. at 358.

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As Judge Learned Hand stated in United States v. Dennis, 183 F.2d 201 (24 Cir.

1950), aff'd, 341 U.S. 494, 71 S.Ct. 857, 9S L.Ed. 1137 (1951):

"* © © [We will assume that any party to a suit, civil or criminal,

is entitled to“have the particular panel which tries his case, drawn

at random from a list which is not unlawfully weighted, and that he

may complain even though he bas not shown that the imbalance has

prejudiced him. The question therefore becomes whether the grand

panel and the petit panel which respectively found the indictment and

tried the case were drawn from an unlawful list."

Dennis, 183 F.2d at 216.

The Dennis rule was affirmed by the Supreme Court. As one District Court

succinctly stated: "It is mot necessary for defendants to show that they are

members of an excluded group or that the alleged imbalance actually prejudiced

them." United States v. Bryant, 291 F.Supp. 542, 547 (D. Maine 1968) (emphasis

added). The Dennis rule continues to be applied by federal courts. United States

v. Donohue, 574 F. Supp. 1269, 1278 (D. Md. 1983); United States v.

337 F. Supp. 140, 142 (S.D. N.Y. 1972), aff'd. 468 F.2d 1245 (2d Cir. 1972), cert.

denied, 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973); United States v.

Cohen, 275 F. Supp. 724, 739 (D. Md. 1967), ‘d oi

United States v. DiTommaso, 405 F.2d 385 (4th Cir. 1978), cert. denied 394 U.S.

934, 89 S.Ct. 1209, 22 L.Ed.2d 465 (1969). The respondent has cited a0

authorities to the contrary. Absent such authority, there appears po reason to

alter the Court's prior conclusions of law on this issue.

The Magistrate mext considers whether respondent should be allowed to

amend his answer so as to assert that Rose v. Mitchell has no retroactive effect

upon this case. If the Court adopts the Magistrate’s conclusions that the Court's

prior findings considered as a whole focused on the discriminatory racial selection :

of grand jurors, with the selection of the foreman as only one aspect of that

unlawful selection process, then respondent's arguments based on Rose v. Mitchell

are unnecessary. Nevertheless, the Court may permit a party to amend its

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pleadings “when justice so requires." Fed. R. Civ. P. 15(a). If the Court finds

that Rose _v. Mitchell was essential to its prior holding and was erroneously

decided by the Supreme Court, then petitioner failed to make a prima facie case.

If so, then the burden of proof would not have been shifted to respondent to

rebut petitioner's claim. In that event, the Court might never have granted the

writ. If respondent's arguments might have affected the prior disposition, then

they might affect the Court's current consideration. Justice may so require the

Court to allow respondent to assert a meritorious defense, so long as there is no

prejudice to petitioner.

Although respondent's motion to amend his pleadings comes long after

petitioner's initial filing, the Magistrate notes that there is no trial date set or

pending motion for summary judgment. Thus, petitioner has time in which to

respond to these amendments. Moreover, Rule 15(a), Fed. R. Civ. P., appears to

allow the Court to grant respondent's motion to amend at any time. Local Rule

8, cited by petitioner in opposition, only limits the time in which a party may

respond to a motion but does not bar a motion to amend an answer. Local Rule

8(b)(3).° Therefore, the Magistrate finds that leave to amend should be granted.

Finally, the Magistrate recommends that the Court adopt all prior findings of fact

and conclusions of law that the respondent does noi contest.

IV. RECOMMENDATIONS

The Magistrate recommends that petitioner’s motion to reinstate this Court's

earlier findings be granted. The Magistrate also recommends that respondent's

motion to amend his answer be granted and petitioner's motion to strike be

denied. Under Rule 8(b)(3) of the Rules Governing Section 2254 Cases, any party

*The Magistrate notes that petitioner cites no specific language which bars respondent’s motion to

amend his answer. See Docket Entry No. 15.

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has ten (10) days from receipt of this Report and Recommendation in which to

file any written objections to this Recommendation, with the District Court. Any

party opposing said objections shall have ten (10) days from receipt of any

objections filed to this Report in which to file any responses to said objections.

Failure to file specific objections within ten (10) days of receipt of this Report

and Recommendation can constitute a waiver of further appeal of this

Recommendation. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435

(1985), reh’g denied, 474 U,S. 1111 (1986).

ay!

Entered this the _/\ day of January, 1991.

/\ / / \ / ~

Wire | me a ~\

WILLIAM J. HAYNES, JR.

United States Magistrate

GoGoe