Jimmy Neuschafer v. Harol Whitley Attorney General for the State of Nevada, Respondents

860 F.2d 1470, 1988 U.S. App. LEXIS 14716, 1988 WL 115757

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 3, 1988
• Docket: 88-1688
• Status: Published

Opinions

CYNTHIA HOLCOMB HALL, Circuit Judge:

Jimmy Neuschafer appeals from the dismissal of his petition for writ of habeas corpus on abuse of the writ grounds. We reverse and remand.

I.

Jimmy Neuschafer was sentenced to death on April 12, 1983 for killing fellow inmate Johnnie Johnson. He appealed his conviction to the Nevada Supreme Court which affirmed it on August 27, 1985. Neuschafer v. State, 101 Nev. 331, 705 P.2d 609 (1985). On October 7, 1985 the state trial court held a hearing during which Neuschafer’s counsel was relieved. No new counsel was appointed and the court set an execution date of November 5, 1985.

On October 22, 1985, with some assistance from the state public defender’s office, Neuschafer filed a pro se state habeas petition, requested a stay of execution, and requested counsel. Neuschafer’s state petition raised two issues: (1) Neuschafer’s fifth and sixth amendment rights were violated because a confession was obtained after he requested counsel, and (2) there might be other grounds that would come to light once a lawyer was appointed.

On October 24, 1985 the state trial court held a hearing on this petition at which Neuschafer was present. The court denied relief and dismissed the petition without prejudice because it was conclusory and because the first ground had been decided by the Nevada Supreme Court on direct appeal. The court cautioned Neuschafer that if he filed another petition he should raise all issues that challenged the validity of his sentence and conviction in that single petition; otherwise he would not be able to assert them in a subsequent habeas petition. See Nev.Rev.Stat. § 177.380 (1987).

At a hearing in the state trial court on October 30, 1985 a state public defender was appointed to represent Neuschafer at his request. Counsel asked for a 120 day stay of execution in order to obtain the record, review it thoroughly, and determine what issues could be raised in a habeas petition. One issue that counsel believed existed was an ineffective assistance of counsel claim. At this hearing counsel acknowledged, in Neuschafer’s presence, that the state trial court previously had informed Neuschafer “that each and every possible allegation and error must be raised in this petition or it is forever barred in the State court. And, of course, that would mean to be forever barred in going anywhere, because the Federal Court is going to look whether or not Mr. Neuschafer exhausted his State remedies.” The state trial court denied the stay of execution.

A state public defender appealed from both the denial of the stay and the denial without prejudice of Neuschafer’s pro se state habeas petition. At oral argument before the Nevada Supreme Court, counsel argued the ineffective assistance of counsel claim without having amended Neuschafer’s petition to raise the claim. On November 1, 1985 the supreme court denied the stay and dismissed the appeal without prejudice to Neuschafer filing an amended state habeas petition, as permitted by the state trial court’s order.

Neuschafer did not return to the state trial court. Instead, on that same day and with some help from the federal public defender’s office, Neuschafer filed a pro se federal habeas petition, moved for appointment of counsel, and requested a stay of execution. This petition raised only one ground: it challenged the admissibility of a confession Neuschafer made after he requested counsel.

The district court appointed a federal public defender to represent Neuschafer and held a hearing on November 4, 1985 to consider the application for a stay. Neus-chafer was not present. At the hearing counsel expressed his belief that there were additional issues that might be raised in state court that had not been raised in the federal petition: “There are dozens of issues that could be raised pending a more complete review of the record by an attorney at law.” Counsel specifically mentioned the availability of an ineffective assistance of counsel claim and that that claim had not been exhausted.

Counsel also suggested to the district court the possibility of holding the federal petition in abeyance, granting a stay of execution, and allowing a state public defender to develop in state court any additional unexhausted claims that the federal public defender found after reviewing the record.¹ In this way, counsel thought he could avoid what he perceived as the problem of getting a stay from the state courts if Neuschafer returned there.

The district court was reluctant to issue a stay on the ground that a review of the record might disclose unexhausted issues. However, because Neuschafer’s petition raised a facially valid constitutional claim, the district court granted a stay to deal with that issue. This allowed counsel to review the record for both exhausted and unexhausted claims without the threat of Neuschafer’s imminent execution.

The district court also gave Neuschafer twenty-one days, until November 25, 1985, to file a supplemental federal petition to raise whatever other grounds for relief counsel could discern. The court cautioned counsel to raise all possible issues in the supplemental petition because Neuschafer might be precluded from raising them in a later federal petition.² Furthermore, the court indicated that if a review of the record indicated that there were unexhaust-ed issues, the court would determine at that point whether it could issue a stay while Neuschafer proceeded in state court.

On November 25, 1985 Neuschafer filed his supplemental federal petition which raised three grounds for relief, all of which had been presented to the Nevada Supreme Court on direct appeal: (1) his confession was obtained after he requested counsel, (2) insufficient evidence was presented to support the death sentence, and (3) the death sentence was a disproportionate penalty. The petition did not raise any of the unexhausted claims that counsel was sure existed on November 4, including the ineffective assistance of counsel claim. Notably, Neuschafer did not request that the district court issue a stay and hold the federal petition in abeyance so he could return to state court to exhaust state remedies. The district court denied the federal petition on March 1, 1986. Neuschafer v. Whitley, 630 F.Supp. 897 (D.Nev.1986).

Neuschafer appealed to this court and we remanded for an evidentiary hearing on the issue of his confession and whether he waived his right to counsel. Neuschafer v. McKay, 807 F.2d 839 (9th Cir.1987). The district court held a hearing and made findings. Neuschafer v. Whitley, 656 F.Supp. 891 (D.Nev.1987). We then rejected Neus-ehafer’s constitutional arguments and affirmed the denial of the petition by the district court. Neuschafer v. Whitley, 816 F.2d 1390 (9th Cir.1987). We also granted a stay of execution pending the filing of a petition for grant of certiorari by the Supreme Court. However, after a conscientious review of the record, the federal public defender moved to withdraw the stay because he thought a petition would not be granted and could be viewed as a dilatory tactic.

Neuschafer then returned to the state trial court. On July 21, 1987 all attorneys who had represented Neuschafer were notified of a hearing to be held on August 4, 1987 regarding the issuance of a warrant of execution. At that August 4 hearing Neuschafer asked the state trial court to release all his previous counsel from further responsibility because “they have done enough for me, your Honor. They were my trial lawyers and they can’t help me no further.” After canvassing counsel and Neuschafer, the court released all prior counsel including the state public defender’s office. Neuschafer’s execution date was set for August 20, 1987.

On August 5, 1987, the day after he requested to have counsel relieved, Neus-chafer filed a second pro se state habeas petition that raised a number of new grounds. He also requested that an attorney be appointed to represent him in the habeas proceedings. The state public defender was again appointed. On August 10 counsel requested a stay of execution because counsel was not familiar with the record and needed time to prepare a supplemental state petition after reviewing the record.

On August 17, 1987 the state trial court held a hearing. At Neuschafer’s request the court removed the state public defender’s office as counsel because of conflicts of interest. The court also dismissed Neus-chafer’s habeas petition without prejudice because it was conclusory. The court offered to appoint independent counsel, without any connection to the state public defender’s office, to assist Neuschafer with his appeal to the Nevada Supreme Court. Neuschafer replied, “I appreciate that, but it’s not necessary.”

On August 18, 1987, although expressly relieved from the case because of conflicts of interest, a state public defender filed a notice of appeal to the Nevada Supreme Court which included an affidavit stating the state public defender’s belief that Neuschafer was not competent to discharge counsel, to waive appointment of other counsel, or to waive his appeal. The Nevada Supreme Court considered the appeal because of the gravity of the sentence, but dismissed it on August 19, 1987.

After vacillating on whether to request relief from federal court, Neuschafer filed A second federal habeas petition late in the evening on August 19, 1987, only a few hours before his 2:00 a.m. execution time. The district court granted a stay of execution. This second federal petition raised seven grounds for relief: (1) ineffective assistance of counsel, (2) failure to disqualify the trial judge, (3) failure to object to jury instructions, (4) failure to request change of venue, (5) failure to dismiss a juror, (6) failure to present mitigating circumstances at the penalty phase, and (7) inability to call witnesses on his own behalf.

On November 20, 1987 the district court held an evidentiary hearing to determine whether Neuschafer had abused the writ by bringing the claims in his second federal petition. The State called Neuschafer to the stand to explain why he did not raise these claims in his first federal petition. Neuschafer’s attorney objected to him testifying on fifth amendment grounds. The court determined that the fifth amendment did not apply and ordered Neuschafer to answer the questions asked him. Nevertheless, Neuschafer refused to answer questions about his knowledge of unex-hausted claims when he filed his first federal petition. The district court dismissed this second petition on December 8,1987 on the grounds that Neuschafer had abused the writ of habeas corpus. Neuschafer v. Whitley, 674 F.Supp. 1418 (D.Nev.1987). The court denied a motion for reconsideration on January 12, 1988. Neuschafer appeals from the dismissal of this second federal habeas petition.

II.

We review for an abuse of discretion a district court’s decision to deny consideration on the merits of a petition for habeas corpus because the petition is abusive or successive.³ Sanders v. United States, 373 U.S. 1, 18-19, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963); see Arellanes v. United States, 408 F.2d 1392, 1392 (9th Cir.1969) (district court did not abuse its discretion in not considering successive petition on grounds that ends of justice would not be served by redetermination of the merits); Curry v. Wilson, 405 F.2d 110, 111 (9th Cir.1969). A court abuses its discretion when it bases its decision on an erroneous legal conclusion or on a clearly erroneous finding of fact. Andrew v. Bowen, 837 F.2d 875, 877 (9th Cir.1988).

Title 28 U.S.C. § 2244(b) and Rule 9 of the Rules Governing Section 2254 Cases, 28 U.S.C. foil. § 2254, codify the abuse of the writ doctrine. Richmond v. Ricketts, 774 F.2d 957, 959 (9th Cir.1985). We look to the Supreme Court decision in Sanders to determine what circumstances constitute an abuse of the writ. See Richmond, 774 F.2d at 961; Johnson v. Lumpkin, 769 F.2d 630, 636 & n. 18 (9th Cir.1985).

A federal court need not consider habeas claims previously unlitigated in federal court if it determines that the petitioner (1) made a conscious decision deliberately to withhold them from a prior petition, (2) is pursuing needless piecemeal litigation, or (3) has raised the claims only to vex, harass, or delay. See Sanders v. United States, 373 U.S. 1, 18-19, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963); Richmond v. Ricketts, 774 F.2d 957, 961 (9th Cir.1985).

The district court determined that Neus-chafer made a conscious decision deliberately to withhold unexhausted issues from his first federal habeas petition; therefore, the court decided not to hear Neuschafer’s second federal habeas petition in which he raised those issues. The court noted that the evidence presented⁴ tended to show that Neuschafer chose deliberately to withhold claims from his first federal habeas petition because he had not yet exhausted them in state court. Neuschafer feared those claims would have been barred and his federal petition would have been dismissed for failure to exhaust state remedies.⁵ 674 F.Supp. at 1422-25. Nevertheless, the court ruled that “the fact that these claims were unexhausted when the first writ was filed does not constitute an excuse for abuse as a matter of law.” Id. . Accord Rudolph v. Blackburn, 750 F.2d 302, 305 (5th Cir.1984); Jones v. Estelle, 722 F.2d 159 (5th Cir.1983) (en banc).

In Tannehill v. Fitzharris, 451 F.2d 1322 (9th Cir.1971), we specifically addressed this issue of whether withholding claims from an initial federal habeas petition because state remedies had not been exhausted could constitute a ground for finding a deliberate abuse of the writ when a second petition was brought that raised those claims once they had been exhausted. In Tannehill, a petitioner brought a second federal habeas petition alleging sixteen grounds for relief. One ground was the subject of a previous petition and fifteen were new. The district court denied the petition because one claim had previously been adjudicated and the other fifteen were an abuse of the writ.

We reversed on both grounds. We held that a petitioner does not “ ‘deliberately’ abuse the writ” within the meaning of Sanders if (1) he left claims out of a previous federal petition because he believed in good faith that his claims would be barred until he had exhausted state remedies, anti (2) he brings these claims in a later federal habeas petition after exhausting state remedies. Id. at 1323.

Tannehill thus changed the meaning of “deliberate” from a fact-specific definition to a legal one. By prohibiting a factual determination of a “deliberate abuse of the writ” when a petitioner proffers the excuse of “unexhaustion” for deliberately withholding claims from a prior federal petition, Tannehill allows individuals such as Neus-chafer to engage in piecemeal litigation and to delay the imposition of their death sentences.

Tannehill allows petitioners to exhaust their state remedies one by one and to bring a new federal habeas petition each time they exhaust a state claim. The decision does nothing to encourage a petitioner

to make only one trip through each court system. Cf. Nev.Rev.Stat. § 177.380 (1987). Part of the reason the Ninth Circuit adopted a total exhaustion rule was to avoid fragmented appeals in habeas cases. See Gonzales v. Stone, 546 F.2d 807, 809-10 (9th Cir.1976). Fragmented appeals cannot be avoided unless petitioners who leave behind unexhausted claims for future federal petitions run the risk of forfeiting those claims.

In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court held that federal habeas petitions that contain both exhausted and unex-hausted claims, “mixed” petitions, must be dismissed. Id. at 522, 102 S.Ct. at 1205. A petitioner who files a mixed petition may (1) amend the petition and proceed with only the exhausted claims, setting aside the unexhausted, or (2) have the petition dismissed without prejudice and return to state court to exhaust the unexhausted claims, and then return to federal court with all the claims for relief.

Justice O’Connor authored a plurality opinion in Rose, joined by Chief Justice Burger and Justices Powell and Rehnquist. Justice O’Connor wrote that a petitioner who proceeds in federal court only with his exhausted claims and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions that raise those issues because those petitions could be considered an abuse of the writ under Sanders. In such a case, Justice O’Connor opined that the petitioner would have made a conscious decision deliberately to withhold those claims from the initial federal petition.⁶ Id. at 520-21, 102 S.Ct. at 1204-05 (Section “C”). Justice O’Connor did not state that subsequent petitions must be dismissed; rather, in light of Sanders and Rule 9(b) a court would have discretion to dismiss them for abuse of the writ.

In this case, the district court noted that there was evidence⁷ that Neuschafer withheld from his first federal petition the claims in his second federal petition because he had not yet exhausted his state remedies and feared those claims would be barred by the total exhaustion rule of Rose v. Lundy. 674 F.Supp. at 1425.⁸ The district court found the Rose plurality opinion persuasive and held that “the fact that these claims were unexhausted when the first writ was filed does not constitute an excuse for abuse purposes as a matter of law. Neuschafer has failed to demonstrate that his withholding of these claims was anything but deliberate, and his petition is therefore abusive.” Id.

The district court apparently was unaware of Tannehill, and neither party has brought this case to our attention. Instead, the district court concluded, and the State of Nevada has argued on appeal, that the plurality opinion of Justice O’Connor is the better approach. Although our research reveals that all other circuits that have considered the issue have adopted the plurality opinion’s approach,⁹ we are not free to ignore Tannehill which is binding precedent.¹⁰ We therefore hold, as a matter of law, that Neuschafer’s claim that he did not bring the claims in his first federal petition because they were unexhausted and barred by Rose precludes a finding that he deliberately withheld those claims from his first federal petition and thereby abused the writ when he brought them in a second federal petition.¹¹ Tannehill, 451 F.2d at 1324.

We are aware of the problems that this result may create.

Neuschafer’s petition raises seven claims, each of which was presented to the Nevada Supreme Court. In dismissing Neuschafer’s appeal, the Nevada Supreme Court rejected some of these claims on the merits as “belied by the record,” and it rejected some as conclusory, unsupported by factual allegations, and without prejudice to renew them in a properly pleaded petition.¹² The district court will have to determine whether the supreme court’s disposition of these claims amounts to an exhaustion of state remedies. If not, the district court may have before it a mixed petition.

Under Rose v. Lundy, Neuschafer then may be allowed to amend his petition to delete the unexhausted claims. After he pursues all his federal remedies on the exhausted claims, he may decide to return to state court to exhaust his still unex-hausted claims. He may then be able to file a third federal habeas petition. This cycle may continue. Indeed, as each new execution date approaches, Neuschafer will have every incentive to think up new unex-hausted claims in order to avoid the penalty which the jury imposed.

Although we recognize these potential problems, we are compelled by Ninth Circuit precedent to reverse the district court.

REVERSED AND REMANDED.

1 . When a petitioner has not exhausted his state remedies before filing a federal habeas petition, a district court may hold the federal petition in abeyance, issue a stay of execution, and allow the petitioner an opportunity to exhaust his state remedies. E.g., Blair v. California, 340 F.2d 741, 745 (9th Cir.1965); Duffy v. Wells, 201 F.2d 503, 504 (9th Cir.1953); Tinder v. Paula, 725 F.2d 801, 805 (1st Cir.1984); Collins v. Lockhart, 707 F.2d 341, 342, 344 (8th Cir.1983); Modesto v. Nelson, 296 F.Supp. 1375, 1376 (N.D.Cal.1969).

2 . The court’s written order of November 4, 1985 echoed a similar warning.

3 . Although courts often use the terms "abusive" and "successive” interchangeably, there is an important difference between abusive and successive petitions. An abusive petition raises grounds that were available but not raised in an earlier petition. A successive petition raises grounds identical to those raised in a prior petition. See Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 2622 n. 6, 91 L.Ed.2d 364 (1986). Moreover, there are different standards that determine when a court may dismiss a petition as abusive and when it may dismiss one as successive. See Sanders, 373 U.S. at 15-19, 83 S.Ct. at 1077-79.

4 . Neuschafer presented no documentary evidence and called no witnesses at the evidentiary hearing on November 20, 1987. Instead, he relied on “the evidence and testimony presented in the voluminous records of [his] first habeas corpus petition.” 674 F.Supp. at 1421.

When called to the stand to explain his state of mind when he filed his first federal habeas petition, Neuschafer’s counsel objected on the basis of the fifth amendment. The court ruled that the fifth amendment did not apply and ordered Neuschafer to respond to the State's questions. Neuschafer refused to answer any questions.

5 .Although he initially suggested this option to the district court, Neuschafer never asked the court to issue a stay, hold the federal petition in abeyance, and allow him to return to state court to exhaust his state remedies.

6 . The Court split 4-4-1 on this issue.

In his partial concurrence and partial dissent, Justice Brennan argued that a petitioner who is not permitted to proceed with his unexhausted claims by the total exhaustion rule of Rose has not made a "deliberate” decision not to proceed with those claims. See 455 U.S. at 536-37, 102 S.Ct. at 1212-13 (Brennan, J., concurring in part and dissenting in part). This reasoning is similar to this court’s conclusion in Tannehill.

7 . See supra note 4.

8 . As we noted before, Neuschafer failed to ask the district court to issue a stay, hold the federal petition in abeyance, and allow him to return to state court to exhaust his state remedies.

9 . The Fifth, Eighth, Tenth, and Eleventh Circuits all have adopted Justice O’Connor's approach. See Rudolph v. Blackburn, 750 F.2d 302, 305 (5th Cir.1984); Jones v. Estelle, 722 F.2d 159 (5th Cir.1983) (en banc); Jeffers v. Sargent, 842 F.2d 1008, 1009 n. 2 (8th Cir.1988), Dukes v. Lockhart, 769 F.2d 504, 506 (8th Cir.1985); Purnell v. Missouri Department of Corrections, 753 F.2d 703, 710 (8th Cir.1985); Jones v. Hess, 681 F.2d 688, 695 (10th Cir.1982); Smith v. Atkins, 678 F.2d 883, 884 (10th Cir.1982); McCorquodale v. Kemp, 832 F.2d 543, 545-46 (11th Cir.1987); Arango v. Wainwright, 716 F.2d 1353, 1355 (11th Cir.1983). Cf. Robinson v. Fairman, 704 F.2d 368, 370 n. 5 (7th Cir.1983) (declining to address the question of what constitutes abuse of the writ); Guthrie v. Warden, 683 F.2d 820, 821 n. 1 (4th Cir.1982) (same).

The district courts, however, appear to be split on whether to adopt Justice O'Connor’s approach. See, e.g., cases collected in Jones v. Estelle, 722 F.2d 159, 169 n. 11 (5th Cir.1983) and in Neuschafer v. Whitley, 674 F.Supp. 1418, 1424 (D.Nev.1987).

10 . Two Ninth Circuit cases have discussed in dicta the plurality opinion in Rose v. Lundy. In Powell v. Spalding, 679 F.2d 163 (9th Cir.1982), we suggested that although the issue was not before us, if and when the petitioner filed a second petition he would not be barred by the abuse of the writ doctrine from raising previously unexhausted claims because of the unique circumstances of the case. Id. at 165 n. 2. In Szeto v. Rushen, 709 F.2d 1340 (9th Cir.1983), we remanded a mixed petition instead of allowing the petitioner to abandon an unex-hausted issue on appeal because abandonment is a serious choice, and under Rose the petitioner may risk forfeiting later consideration of unexhausted claims in federal court. Id. at 1341.

11 .Neuschafer also claimed that he was under "duress" when he filed his first federal petition on November 1, 1985: he could either file a petition with only unexhausted claims and get a stay of his November 5 execution from federal court, or he could return to state court to exhaust state remedies and run the risk of not getting a stay. Neuschafer claims that his situation was exceptional and that it should prevent a determination that he abused the writ when he omitted unexhausted claims from his first federal petition.

His argument fails to address the fact that the district court appointed counsel, granted a stay of execution, and allowed Neuschafer twenty-one days in which to file a supplemental petition raising all his claims for relief. Whatever urgency was present when Neuschafer filed his pro se petition on November 1 was not present in the time counsel had to file the supplemental petition.

Furthermore, after having twenty-one days to review the record, Neuschafer did not request that the district court hold the federal petition in abeyance and issue a stay to allow him to return to state court to exhaust state remedies.

Moreover, Neuschafer’s claim that a stay from the federal court was more likely than one from the state courts is supported only by the fact that the district court granted a stay although the state courts had denied one. Neuschafer fails to point out that he presented the federal court with a facially valid claim on which to grant a stay. In contrast, Neuschafer presented the state courts only with unsupported, conclu-sory claims. The district court declined to grant a stay merely because a review of the record might reveal other claims, just as the state courts had.

12 . The Nevada Supreme Court’s November 19, 1987 order is ambiguous. The Nevada Attorney General’s office requested that the court clarify whether the court dismissed Neuschafer’s second state petition with prejudice, or whether it reviewed the merits of Neuschafer’s claims. In a November 20 order the court declined to clarify its order because the court determined the order was sufficiently clear.