Haley v. Dretke

376 F.3d 316

Opinion

In the

United States Court of Appeals for the Fifth Circuit

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m 01-41389

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MICHAEL WAYNE HALEY,

Petitioner-Appellee,

VERSUS

JANIE COCKRELL,

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellant.

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Appeal from the United States District Court for the Eastern District of Texas

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March 19, 2003

ON PETITION FOR Treating the petition for rehearing en banc REHEARING EN BANC as a petition for panel rehearing, the petition for panel rehearing is DENIED. The court (Opinion September 27, 2002, having been polled at the request of one of the 306 F.3d 257) members of the court, and a majority of the judges who are in regular active service not Before DEMOSS, STEWART, and DENNIS, having voted in favor (FED. R. APP. P. 35 and Circuit Judges. 5TH CIR. R. 35), the petition for rehearing en banc is DENIED.

PER CURIAM:

JERRY E. SMITH, Circuit Judge, with whom extended the exception to non-capital JOLLY, JONES, BARKSDALE, EMILIO M. sentences.1 GARZA, and CLEMENT, Circuit Judges, join, dissenting from the denial of This case presents a perfect opportunity for rehearing en banc: the full court to consider whether to extend the exception to non-capital sentences where This exceptionally important case deserves the petitioner is not actually innocent of the the attention of the en banc court. For the first crime. This purely legal question is unsullied time, we extend the “actual innocence” excep- by factual disputes: Texas concedes that tion for procedurally defaulted habeas corpus Haley was not eligible under Texas law for the claims to non-capital sentences. The federal sentence he received, because the indictment courts of appeals are split three ways on this wrongly alleged that Haley’s prior drug question, and the panel opinion aligns this conviction was final before he committed his court with one of the two positions adopted by prior robbery, a chronological order necessary only one other circuit. Before this decision is to Haley’s sentence enhancement.2 set in stone as binding circuit precedent, the issue should receive review and thorough con- It bears repeating that Texas concedes this sideration by the entire court. error and argues only that the actual innocence exception should not extend to non-capital I. sentences. Thus, this case squarely presents a In general, a habeas petitioner may not raise legal question of exceptional importance in an a procedurally defaulted claim, i.e., a claim not unusually pristine form. presented to the state court, unless he demonstrates cause for the default and prejudice from II. the alleged constitutional violation. Wain- A. wright v. Sykes, 433 U.S. 72 (1977). A peti- In various procedural settings, three circuits tioner may, however, obtain a hearing on a have held that the actual innocence exception procedurally defaulted claim if he demonstrates his actual innocence of the underlying offense, even if he cannot satisfy the general

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cause-and-prejudice test. Murray v. Carrier, We have assumed twice, without deciding, 477 U.S. 478, 496 (1986). “Actual that the exception extends to non-capital sentences. innocence” in that context means the petitioner See Sones v. Hargett, 61 F.3d 410, 413 (5th Cir. did not commit the crime. 1995); Smith v. Collins, 977 F.2d 951, 959 (5th Cir. 1992).

The Supreme Court has extended the actual 2 The panel suggests a second error in the ininnocence exception for the cause-anddictment , namely, an erroneous allegation that Halprejudice test to the context of capital sen- ey’s prior robbery offense involved a deadly tencing, meaning a petitioner who has com- weapon. Haley v. Cockrell, 306 F.3d 257, 261 & mitted the crime may, nonetheless, be “actually n. 7, 262, 263 & n.10, 264, 267 (5th Cir. 2002). innocent” of the penalty of death. Sawyer v. In his response to the petition for rehearing en Whitley, 505 U.S. 333 (1992). Neither the banc, Haley concedes that any such error is Supreme Court nor this court, however, has irrelevant, because his enhancement rested solely on the chronological order of his convictions.

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does not extend to any non-capital sentences.3 permission to file a second § 2255 motion In a 28 U.S.C. § 2255 case, the Eighth Circuit based solely on an improper sentencing held that the actual innocence exception does enhancement. Id. at 120. The court reasoned not apply to non-capital sentences. Embrey v. that AEDPA allows second petitions only if no Hershberger, 131 F.3d 739 (8th Cir. 1997) (en reasonable factfinder would have convicted the banc). The court carefully reviewed Supreme prisoner of the “offense.” Id. Thus, the Court precedent, in particular Sawyer, and Seventh Circuit, concluding that AEDPA concluded that “Sawyer, in terms, applies only eliminated the exception, overruled its caselaw to the sentencing phase of death cases.” Em- extending the exception to non-capital brey, 131 F.3d at 740. sentences. Id. (citing Mills v. Jordan, 979 F.2d 1273, 1278 (7th Cir. 1992)).

The Eighth Circuit also relied on the Tenth Circuit’s decision in United States v. Richards, On the second side of the three-way split, 5 F.3d 1369, 1371 (10th Cir. 1993), which the Second Circuit alone has held that the acrefused to extend the exception. In Richards, tual innocence exception extends to all nonthe court upheld the government’s objection to capital sentences. Spence v. Superintendent, a second § 2255 motion, based on the abuse of Great Meadow Corr. Facility, 219 F.3d 162 writ doctrine. Id. at 1370. The petitioner had (2d Cir. 2000). In Spence, the prisoner’s proargued that he should be allowed to file a bation was rescinded and replaced with a sensecond motion based on a showing of actual tence of up to twenty-five years’ imprisonment innocence of his non-capital sentence. Id. at for which he was not legally eligible. Id. at 1371. The Tenth Circuit rejected this 165. The Second Circuit, however, did not argument out of hand: “A person cannot be equivocate or rest on the severity of the actually innocent of a noncapital sentence[.]” wrongly-imposed sentence. The court held Id. The Tenth Circuit has reaffirmed this that the actual innocence exception applies acholding , in a 28 U.S.C. § 2254 case, after the ross the board “to the sentencing phase of a enactment of the Antiterrorism and Effective noncapital trial.” Id. at 171. Death Penalty Act of 1996 (“AEDPA”). Reid v. Oklahoma, 101 F.3d 628, 630 (10th Cir. Alone on the third side of the splitSSalone, 1996). that is, until joined by the panel in the instant caseSSthe Fourth Circuit has held that the ac-

Similarly, if more dramatically, the Seventh tual innocence exception extends only to those Circuit has held that the exception does not non-capital sentences imposed under habitual survive AEDPA. Hope v. United States, 108 offender statutes. Like the Second Circuit, the F.3d 119 (7th Cir. 1997). The prisoner sought Fourth Circuit originally had held that the actual innocence exception extends to all non- capital sentences. United States v. Maybeck, 3 See Haley, 306 F.3d at 265 (collecting cases).

23 F.3d 888, 893 (4th Cir. 1994).

Neither the cause-and-prejudice test nor the actual innocence exception to that test varies based on the Five years later, the Fourth Circuit, perhaps posture of the case. Indeed, Sawyer, which first recognizing that this holding was untenable, applied the actual innocence exception to capital limited the scope of Maybeck. United States sentences, was a successive-writ case, not an or- v. Mikalajunas, 186 F.3d 490 (4th Cir. 1999). dinary procedural-default case.

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Citing the frightening practical results of May- person of the crime.” Id. This example beck and its tension with Supreme Court case- indicates why, “[i]n the context of a law, the court held that the actual innocence noncapital case, the concept of ‘actual exception “applies in noncapital sentencing innocence’ is easy to grasp.” Id. at 341 only in the context of eligibility for application (emphases added). Finally, the Court of a career offender or other habitual offender described its task in Sawyer as “striv[ing] to guideline provision.” Id. at 495. This holding construct an analog to the simpler situation provoked a vigorous dissent arguing that the represented by the case of a noncapital distinction was unprincipled and unsustainable. defendant.” Id. (emphasis added). Id. at 497-502 (Murnaghan, J., dissenting). This court’s panel has chosen to adopt the The Tenth and Eighth Circuits inferred reasoning used in Mikalajunas. from this reasoning that the Supreme Court never intended the lower courts to extend the B. actual innocence exception to non-capital sen-

Unfortunately, the Supreme Court has not tencing cases. Otherwise, why is the concept addressed this question. Indeed, the limited of actual innocence so “easy to grasp” in the implications of its caselaw can be read to point non-capital context? And why is a non-capital in opposite directions. Given the exceptional case a “simpler situation”? In the Tenth importance of the question and the lack of Circuit’s view, it is “because it simply means guidance from above, the full court should the person didn’t commit the crime.” have reheard this case. Richards, 5 F.3d at 1371. The Eighth Circuit concluded that “the most natural inference to The panel finds support in Sawyer and Her- draw from these observations on the Court’s rera v. Collins, 506 U.S. 390 (1993). The part is that” the actual innocence exception panel observes that “[t]he Court did not should not extend to non-capital sentencing. foreclose [in Sawyer] the application of the Embrey, 131 F.3d at 741. actual innocence exception to noncapital sentencing cases.” Haley, 306 F.3d at 265. At the same time, other language in Sawyer This is correct, but Sawyer did not present the suggests the Court’s openness to applying the question. Moreover, some language in Sawyer actual innocence exception to non-capital senindicates that the Court did not intend the tences. For example, the Court stated that lower courts to extend the act ual innocence “[i]n Smith, [it] found no miscarriage of justice exception to non-capital sentencing cases. in the failure to examine the merits of procedurally defaulted claims in the capital sen-

The Court “acknowledged that actual inno- tencing context.” Sawyer, 505 U.S. at 339 cence ‘does not translate easily into the (emphasis added) (citation omitted). The context of an alleged error at the sentencing Court also stated that “[t]he present case rephase of a trial on a capital offense.’” Sawyer, quires us to further amplify the meaning of ‘ac- 505 U.S. at 340 (quoting Smith v. Murray, tual innocence’ in the setting of capital pun- 477 U.S. 527, 537 (1986)). The Court then ishment.” Id. at 340 (emphasis added). observed that “[a] prototypical example of ‘actual innocence’ in a colloquial sense is the The meanings of these passages are case where the State has convicted the wrong debatable. One might argue, though, that the

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Court would not have added the qualifying phrases “in the capital sentencing context” or “in the setting of capital punishment” if it intended to extend the exception only to capital sentences.

But “[m]ore importantly,” according to the panel, “the Court has noted that the purpose of the [actual innocence] rule ‘is grounded in the equitable discretion of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.’” Haley, 306 F.3d at 265 (quoting Herrera, 506 U.S. at 404). Herrera, however, is not especially helpful to the question before this court.

In Herrera, the petitioner claimed to be innocent of the murder of which he was convicted. Haley, on the other hand, is not innocent, nor does he claim to be; he is a recidivist offender duly convicted after a full and fair trial and whose conviction the state courts repeatedly upheld on appeal and collateral review . Further, the Supreme Court denied relief in Herrera. Even if we were to conclude that the actual innocence exception extends to non-capital sentences, therefore, Herrera would not support the extension.

In light of the limited guidance from the Supreme Court, and ambiguity in what guidance there is, the en banc court should have reheard this case to determine whether and, if so, how the actual innocence exception applies to non-capital sentences. Accordingly, I respectfully dissent from the denial of rehearing en banc.