James H. Brown, III,
Petitioner-Appellant/
Cross-Appellee, Nos. 97-6355/
v. 6425
Michael O'Dea, Warden, Eastern Kentucky
Correctional Complex,
Respondent-Appellee/
Cross-Appellant.
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 97-00030--William O. Bertelsman, District Judge.
Argued: January 26, 1999
Decided and Filed: August 5, 1999
Before: MERRITT and MOORE, Circuit Judges; DUGGAN,(*) District
Judge.
_________________
COUNSEL
ARGUED: Gail Robinson, McNALLY & ROBINSON, Frankfort, Kentucky,
for Appellant. Todd D. Ferguson, OFFICE OF THE ATTORNEY GENERAL,
CRIMINAL APPELLATE DIVISION, Frankfort, Kentucky, for Appellee.
ON BRIEF: Gail Robinson, Kevin M. McNally, McNALLY & ROBINSON,
Frankfort, Kentucky, for Appellant. Todd D. Ferguson, OFFICE OF
THE ATTORNEY GENERAL, CRIMINAL APPELLATE DIVISION, Frankfort,
Kentucky, for Appellee.
DUGGAN, D. J., delivered the opinion of the court. MERRITT
(pp. 16-21), and MOORE (pp. 22-28), JJ., delivered separate
concurring opinions.
_________________
OPINION
_________________
DUGGAN, District Judge. This matter is before the Court on
petitioner's appeal from the district court's dismissal of his 28
U.S.C. § 2254 petition for writ of habeas corpus. Petitioner is
currently incarcerated at the Eastern Kentucky Correctional
Complex.
Petitioner filed a § 2254 petition for writ of habeas corpus
in the United States District Court for the Eastern District of
Kentucky, challenging his conviction in Kentucky state court for
murder, for which he was sentenced to twenty years imprisonment.
The district court denied the petition; however, it granted a
certificate of appealability so that petitioner could appeal the
court's denial of the writ. This appeal ensued.
Petitioner and his brother, Mark Brown, were convicted in
1976 of the murder of Bryant Dudley. Petitioner was sentenced to
twenty years imprisonment on October 15, 1976 but released on a
state court bond pending appeal on October 30, 1976. On October
5, 1977, the Kentucky Supreme Court dismissed petitioner's direct
appeal as untimely. On October 31, 1977, petitioner filed a
petition for writ of habeas corpus contending that the dismissal
of his direct appeal was in error. On February 6, 1978, the
district court denied petitioner's application due to his failure
to exhaust his state court remedies, but retained the case on its
docket pending exhaustion of those remedies.
The Kentucky Supreme Court granted petitioner's motion for a
belated appeal on March 17, 1978, but dismissed it on August 22,
1978. On August 24, 1978, petitioner filed a motion to reconsider
his petition for writ of habeas corpus in the district court. The
state court resentenced petitioner to twenty years imprisonment
on September 5, 1978. On June 27, 1979, the district court
granted petitioner a conditional writ of habeas corpus, but
stayed the writ for a period of sixty days so that petitioner's
appeal to the Kentucky Supreme Court could be reinstated. The
district court order stated that if petitioner's appeal were not
reinstated, petitioner's conviction would be set aside. This
Court affirmed that judgment and the United States Supreme Court
denied Brown's petition for writ of certiorari. Brown v. Smith,
633 F.2d 213 (6th Cir. 1980), cert. denied, 451 U.S. 1002 (1981).
The Kentucky Supreme Court ultimately affirmed Brown's
conviction on August 31, 1982, but remanded the case to the state
trial court for resentencing following a presentence
investigation. Resentencing never took place, however, because
Brown, who was still free on appeal bond, became a fugitive from
justice in Australia for more than ten years. In January 1993,
the Commonwealth of Kentucky filed a motion for a bench warrant,
which was executed by Brown's arrest in May 1993 when he was
extradited. On June 23, 1993, petitioner filed a motion pursuant
to Kentucky Civil Rule 60.02(f) to vacate the seventeen-year old
judgment against him based upon the allegedly improper admission
of expert testimony at trial. In July 1993, a state trial court
denied the motion. The Kentucky Court of Appeals affirmed the
trial court's denial of Brown's Rule 60.02(f) motion in December
1994. The Supreme Court of Kentucky granted discretionary review
and also affirmed the trial court's decision.
On July 20, 1994, petitioner filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The Commonwealth
moved to dismiss the petition for failure to exhaust all
available state court proceedings on the issue of the admission
of certain controversial testimony at trial. The Commonwealth
noted that the appeal from the denial of petitioner's Rule
60.02(f) motion regarding this testimony was pending in the
Kentucky Court of Appeals and requested that the petition be
dismissed without prejudice.
On September 22, 1994, a federal magistrate judge advised
the district court in a Report and Recommendation that the
Commonwealth's request should be granted. The district court
entered a judgment adopting the magistrate judge's report on
October 18, 1994, and this Court affirmed the district court's
denial of a certificate of probable cause to appeal on January
23, 1995. On November 21, 1996, all available state court
proceedings were exhausted pertaining to the issue of the
controversial testimony when the Supreme Court of Kentucky denied
Brown's petition for rehearing and its earlier opinion became
final.
Petitioner's current petition for writ of habeas corpus was
filed on February 12, 1997. In response, the Commonwealth filed a
Motion for Summary Judgment.
The district court adopted, as its decision, the Report and
Recommendation of the magistrate judge in which he construed the
instant petition as a second or successive petition, concluded
that such a filing constituted an abuse of the writ, and
recommended dismissal of the petition. Petitioner asserts two
points of error with respect to the conclusions of the magistrate
judge. First, petitioner contends that the district court erred
in sua sponte dismissing the petition for abuse of the writ
because the instant petition does not constitute a second or
successive petition. Second, petitioner claims that the district
court erred in determining that the statute of limitations in the
Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-
132, 110 Stat. 1214 (Apr. 24, 1996) ("AEDPA") is applicable to
the petition. We find that the district court erred in dismissing
the petition on procedural grounds.
The district court construed the petition as a second or
successive petition because petitioner's initial application for
writ of habeas corpus filed on July 20, 1994, was dismissed
without prejudice for failure to exhaust the second issue on
which petitioner sought habeas relief. In Carlson v. Pitcher, 137
F.3d 416 (6th Cir. 1998) we addressed the proper characterization
accorded a second petition filed subsequent to a dismissal
without prejudice for failure to exhaust.
We join with every other court to consider the question, and
hold that a habeas petition filed after a previous petition
has been dismissed on exhaustion grounds is not a "second or
successive" petition implicating the pre-filing requirement
of obtaining an order of authority from the court of
appeals.
Carlson, 137 F.3d at 420.
Applying the holding of Carlson to the instant petition, we
conclude that it is not a second or successive petition. The 1994
petition was dismissed without prejudice for failure to exhaust
available state remedies. Petitioner subsequently exhausted his
available state remedies on November 21, 1996 when the Supreme
Court of Kentucky denied his petition for rehearing. Thus, the
petition is not barred as a second or successive petition.
We further find that petitioner's application is not barred
by the statute of limitations contained in the AEDPA. 28 U.S.C. §
2244 provides:
(d)(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation shall run from the latest of -
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme Court, if
the right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review;
or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered through
the exercise of due diligence.
(2) The time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under this
subsection.
28 U.S.C. § 2244(d)(1). The district court, applying 28 U.S.C. §
2244(d)(1)(A), concluded that petitioner's time for direct review
expired on March 21, 1983, the date on which the Supreme Court
denied review of the Kentucky Supreme Court's opinion affirming
petitioner's conviction. We disagree and hold that the applicable
statute of limitations under the AEDPA is one year from the
effective date of the AEDPA, to wit April 24, 1996.
Courts have employed several approaches in applying the
statute of limitations provisions of the AEDPA. Some courts have
accepted a literal reading of the statute and applied the one-
year period of limitations to all cases filed after the date of
enactment of the statute. See United States v. Smith, 966 F.
Supp. 408, 409 (E.D. Va. 1997) ("[T]he Court must measure one
year from the most recent date provided by subsections (1)
through (4) of Section 2255"); Clarke v. United States, 955 F.
Supp. 593, 595 (E.D. Va. 1997). The Second Circuit has held that
the Act requires petitions to be filed within a "reasonable" time
following the statute's enactment, which, in some cases, may be
less than one year. See Peterson v. Demskie, 107 F.3d 92, 93 (2d
Cir. 1997) (holding that petition filed approximately one year
after completion of state court direct review but within seventy-
two days after the effective date of the AEDPA was filed within
"reasonable time"). A third approach, embraced by the Third and
Fifth Circuits, has emerged wherein the courts determined that a
"one year" grace period from the effective date of the AEDPA is
applicable. See United States v. Flores, 135 F.3d 1000, 1006 (5th
Cir. 1998); Burns v. Morton, 134 F.3d 109, 111-12 (3d Cir. 1998);
Calderon v. United States Dist. Ct., 128 F.3d 1283, 1287 (9th
Cir. 1997), cert. denied 118 S. Ct. 899 (1998); Duarte v.
Hershberger, 947 F. Supp. 146, 148-49 (D. N.J. 1996); Martin v.
Jones, 969 F. Supp. 1058, 1061 (M.D. Tenn. 1997).
In Ellis v. United States, we determined in the context of a
§ 2255 motion, "the reasonable time within which [petitioner]
should be required to file his motion would be within one year of
the enactment of the AEDPA." Ellis v. United States, No. 97-2077,
1998 WL 777995, *1 (6th Cir. Oct. 21, 1998). In addition, we
recently determined that a habeas petition filed on July 30,
1997, after petitioner's conviction became final on March 2,
1993, was time-barred. See Trice v. Toombs, No. 98-1099, 1998 WL
808366, *2 (6th Cir. Nov. 9, 1998). Thus, we join with the Third
and Fifth Circuits, and hold that a one-year grace period from
the effective date of the AEDPA is applicable.
Applying the one-year rule, petitioner had one year from the
effective date of the AEDPA, April 24, 1996, to file his § 2254
petition. Petitioner filed the instant petition on February 12,
1997. Thus, we conclude that petitioner's application was timely
filed within the provisions of the AEDPA. We, therefore, reverse
the decision of the district court in so far as it dismissed the
petition on procedural grounds.
Having concluded that the petition is not a second or
successive petition, and that such petition was timely filed, we
will turn to a consideration of the merits of the petition. The
magistrate judge determined, if the petition were not barred on
procedural grounds, petitioner would be entitled to relief on two
of his habeas claims. In the Report and Recommendation, the
magistrate judge concluded that the admission of Dr. Shaler's
testimony resulted in the denial of fundamental fairness to
petitioner and the trial court's denial of a continuance deprived
him of a fair trial.
Under the provisions of the AEDPA, the district court must
apply the following standard to the merits of petitioner's claim:
(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Recently, we had occasion to settle on the
following interpretation of this standard. In Nevers v.
Killinger, 169 F.3d 352 (6th Cir. 1999), we noted:
[D]eference to the state courts' judgment required by the
AEDPA is achieved by adopting the rule that the
unreasonableness of a state court's application of clearly
established Supreme Court precedent will not be "debatable
among reasonable jurists," . . . , if it is "so offensive to
existing precedent, so devoid of record support, or so
arbitrary, as to indicate that it is outside the universe of
plausible, credible outcomes . . . ."
Id. at 362 (internal citations omitted). Therefore, in the Sixth
Circuit, "the writ will issue if the unreasonableness of the
state court's application of clearly established precedent is not
debatable among reasonable jurists." Tucker v. Prelesnik, No. 96-
73088, 1999 WL 374105, *4 (6th Cir. June 10, 1999). Under Nevers,
supra, the application will not be debatable "if it is so
offensive to existing precedent, so devoid of record support, or
so arbitrary, as to indicate that it is outside the universe of
plausible, credible outcomes." Nevers, 169 F.3d at 362 (citation
omitted).
Dr. Shaler's Testimony
The testimony at trial revealed that petitioner's brother,
Mark Brown, believed that the victim, Bryant Dudley, had broken
into Mark's home and stolen drugs from him. Mark Brown and
petitioner took the victim for a ride on May 17, 1976. The
following day petitioner and his brother were seen with the
victim. On May 19, 1976, the petitioner traded his boots to a
friend. Those boots were stained with Type A blood, the blood
type of petitioner and the victim. A short time later, the police
found the victim's body and determined that his death resulted
from shotgun wounds.
The Commonwealth introduced evidence during trial linking
petitioner to the death of the victim.(1) The evidence included
the expert testimony of Dr. Robert Shaler, which the Kentucky
Supreme Court summarized as follows:
[T]he blood found on Appellant's [petitioner's] boots was
found in only 4.6% of the population and could not have been
the blood of Appellant [petitioner]. Dr. Shaler did not
testify that the blood on the boots belonged to the victim
and he did not rule out the possibility that the blood stain
could have been the blood of a third person.
932 S.W. 2d at 361. Following petitioner's conviction, counsel
for petitioner obtained an affidavit from Dr. Shaler in which he
conceded:
[A]dditional posttrial scientific research concerning the
detection of genetic markers in dried blood indicates that
the dried blood found on [petitioner's] boots indeed could
have come from either [petitioner] or Dudley, and that he
was mistaken when he testified that the blood could not
possibly have come from [petitioner].
(Report and Recommendation at 25) (quoting Brown v. Commonwealth,
No. 93-CA-1861-MR, p. 5 (Ct. App. 1994)). The magistrate judge
further notes:
[C]ounsel's affidavit reflects that Shaler admitted that the
application of GM testing to dried blood was novel and not
commonly accepted in 1976, that his testimony that the test
was reliable was mistaken, and that he would not have
testified had he known about the problems with the anti-sera
and the technique at the time.
(Id. at 25-26). Petitioner contends that the trial court
improperly admitted the Shaler evidence where the GM testing of
dried blood did not enjoy general acceptance in the scientific
community at the time of trial. (Id. at 23).
Habeas petitioners are not entitled to relief unless an
error "had substantial and injurious effect or influence in
determining the jury's verdict." Brecht v. Abrahamson, 507 U.S.
619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)). A petitioner will prevail where "a federal
judge in a habeas proceeding is in grave doubt about whether a
trial error of federal law" substantially affected a jury's
verdict. O'Neal v. McAninch, 513 U.S. 432, 436 (1995). However,
we will grant federal habeas corpus relief only where a violation
of a state's evidentiary rule results in the denial of
fundamental fairness, and therefore, a violation of due process.
Cooper v. Sowders, 837 F.2d 284, 287 (6th Cir. 1988). "The
standard in determining whether the admission of prejudicial
evidence constitutes a denial of fundamental fairness is whether
the evidence is 'material in the sense of a crucial, critical
highly significant factor.'" Leverett v. Spears, 877 F.2d 921,
925 (11th Cir. 1989) (quoting Redman v. Dugger, 866 F.2d 387, 390
(11th Cir. 1989)). Even assuming the state court erred in
permitting Dr. Shaler's testimony, this court will grant federal
habeas relief only where the error rises to the level of a denial
of fundamental fairness. See Wright v. Dallman, 999 F.2d 174, 178
(6th Cir. 1993).
When reviewing the Kentucky Supreme Court's decision, the
magistrate judge acknowledged that the issue of whether the
admission of Dr. Shaler's testimony resulted in unfairness to
petitioner was "admittedly a close issue." (Report and
Recommendation at 30). At the time of the magistrate judge's
decision, he did not have the benefit of the Sixth Circuit's
interpretation of the AEDPA's standard governing review of habeas
claims. Applying this standard, we cannot conclude that the
Kentucky Supreme Court's decision that petitioner was not denied
a fundamentally fair trial was "so arbitrary" as to be outside
the range of "plausible outcomes."
The Supreme Court of Kentucky twice confronted the issue of
the admissibility of Dr. Shaler's testimony. On direct review in
1982, the Kentucky Supreme Court found, "the only valid argument
to be made against the Shaler evidence is addressable to its
credibility rather than its admissibility." 639 S.W. 2d at
760.(2) In discussing the evidence, the court noted that the
evidence, without Dr. Shaler's testimony, "was sufficient to
justify the conviction of Jim Brown . . . ." Id. In its 1996
decision affirming the Kentucky Court of Appeals' denial of
petitioner's 60.02(f) motion, the Kentucky Supreme Court rejected
appellant's contention that the admission of Dr. Shaler's
testimony warranted any relief.
A review of the evidence at Appellant's trial fails to
convince us that the outcome would have been different if
all of Dr. Shaler's testimony had been excluded or if it had
been admitted and Shaler's later misgivings had been
available to the jury at the time of trial.
As the summary of the evidence shows, there was ample
circumstantial evidence in the record upon which the jury
could have based its verdict. Indeed, as noted above, this
Court has earlier concluded that the evidence at trial,
absent the testimony of Shaler, was sufficient to convict
Appellant Brown.
Brown, 932 S.W.2d at 362.
In so concluding, the Kentucky Supreme Court noted: "Dr.
Shaler was subjected to intrepid and effective cross-examination
by defense counsel." Id. During cross-examination, counsel for
defense elicited from Dr. Shaler that "his particular blood
analysis was novel," "that it had been accepted as expert
evidence in only one other homicide case in the United States
(and that case involved Dr. Shaler himself as the expert
witness)," "that he did not know whether the blood found on
Appellant's boots belonged to the victim," "that the blood could
have belonged to a third party," and "he had conducted testing
with respect to only three blood antigens, when there are as many
as 23 separate blood antigens that can be analyzed." Id. In light
of these "admissions" on the part of Dr. Shaler, we cannot
conclude that the admission of Dr. Shaler's testimony was so
fundamentally unfair as to amount to a denial of due process.
While admittedly Dr. Shaler's testimony was damaging to
petitioner, we are not satisfied that it rises to the level of a
"crucial, critical" factor in the jury's decision to convict
petitioner. See Leverett, supra.
The jury, having heard Dr. Shaler's testimony and defense
counsel's subsequent cross-examination, was free to accord it the
proper weight. Further, we cannot ignore that the jury ultimately
viewed Dr. Shaler's testimony in the context of the totality of
the evidence adduced during the trial. Given these
considerations, we do not conclude that the Kentucky Supreme
Court's decision that petitioner was not denied a fair trial was
so "arbitrary" that it was outside the realm of "plausible
outcomes." Accordingly, we deny the petition on this issue.
Trial Court's Denial of a Continuance
Petitioner next argues that the trial court's denial of a
continuance deprived him a fair trial. The Commonwealth called
Dr. Shaler as its last witness on the second day of trial.
Petitioner moved for a continuance so as to afford him the
opportunity to examine Dr. Shaler's report and ascertain the
validity of Dr. Shaler's conclusions. The trial court denied
petitioner's motion concluding that the Commonwealth and defense
counsel were equally unfamiliar with Dr. Shaler's testimony. The
trial court's decision forced defense counsel to conduct his
cross-examination of Dr. Shaler only a few hours after receiving
Dr. Shaler's report.
With respect to the trial court's decision to deny a
continuance, we cannot say that petitioner is entitled to an
issuance of the writ. "'When a denial of a continuance forms a
basis of a petition for a writ of habeas corpus, not only must
there have been an abuse of discretion but it must have been so
arbitrary and fundamentally unfair that it violates
constitutional principles of due process.'" Bennett v. Scroggy,
793 F.2d 772, 774 (6th Cir. 1986) (quoting Hicks v. Wainwright,
633 F.2d 1146, 1148 (5th Cir. 1981)). Further, petitioner's claim
that the denial of a continuance violates his due process rights
must be dismissed unless the state court's determination of his
claim was, "so arbitrary, as to indicate that it is outside the
universe of plausible, credible outcomes." See Nevers, supra.
The state court's adjudication of such claim is found in its
analysis of petitioner's direct appeal in which it noted that it
was "somewhat disturbed by the trial court's refusal to grant a
continuance . . . ." Brown, 639 S.W.2d at 761. However, the
Kentucky Supreme Court noted that defense counsel spoke with Dr.
Shaler on Saturday before the trial commenced on Monday and at
that time Dr. Shaler "indicated a hesitancy to testify, stating
that his tests were inconclusive." Id. Although defense counsel
was aware that Dr. Shaler might testify, counsel made no motion
for a continuance until Dr. Shaler was called by the Commonwealth
as its last witness. The court further noted that "when presented
with the opportunity during cross-examination, defense counsel
failed to question Shaler about the doubts expressed in the
Saturday conversation." Id.
We conclude that the state court's decision on this claim
was not "so arbitrary" as to be implausible, and we further
conclude that the failure to grant the continuance was not so
prejudicial to petitioner's case as to warrant habeas relief.
Defense counsel consulted with Dr. Shaler during the weekend
preceding the trial and learned of Dr. Shaler's hesitancy over
the results of his tests. The fact that defense counsel failed to
bring this fact to the jury's attention does not merit the
conclusion that the trial court's decision to deny a continuance
was in error. Accordingly, we conclude that petitioner is not
entitled to habeas relief on the basis of the trial court's
decision to deny a continuance.
Conclusion
For all of the foregoing reasons, we REVERSE the decision of
the district court insofar as it concluded that the petition was
procedurally barred. However, for the reasons stated herein, we
AFFIRM the decision of the district court dismissing the petition
for writ of habeas corpus.
_____________________
CONCURRENCE
_____________________
MERRITT, Circuit Judge, concurring. In response to this
concurring opinion on the "fugitive disentitlement doctrine,"
Judge Moore makes the remarkable statement that Brown's fugitive
status for ten years does not have "a connection to the appellate
process in this court" (4th paragraph from end of concurring
opinion). Her entire argument is based on this view of the facts.
But my colleague seems deliberately indifferent to the overriding
fact that Brown would have been in jail for murder and unable to
escape but for our issuance of a writ of habeas corpus in 1980.
Brown's escape is the direct result of this Court's action in
1980. But for our decision, Brown would have been serving his
sentence for murder when he thereafter took flight. We are
directly responsible for his flight. How can it be said with a
straight face in this case that Brown's flight lacks a requisite
"connection with the appellate process?"
The fugitive disentitlement doctrine limits access to courts
in the United States by a fugitive who has fled a criminal
conviction in a court in this country. The doctrine is long-
established in both the federal and state courts, trial and
appellate. The power of an American court to disentitle a
fugitive from access to its power and authority is not
jurisdictional in nature, see Molinari v. New Jersey, 396 U.S.
365, 366 (1970) ("[S]uch [fugitive status] does not strip the
case of its character as an adjudicable case or
controversy...."), nor does it implicate constitutional
privileges, see Ortega-Rodriguez v. United States, 507 U.S. 234
(1993). Rather, the doctrine is an equitable one, see United
States v. Sharpe, 470 U.S. 675, 681 n.2 (1985), that rests upon
the supervisory power of the federal courts to administer the
federal court system, see Goeke v. Branch, 514 U.S. 115 (1995);
Thomas v. Arn, 474 U.S. 140, 146 (1985).
The fugitive disentitlement doctrine was first applied in
the federal courts in Smith v. United States, 94 U.S. 97 (1876).
Drawing upon earlier state cases, the Court in Smith removed from
its docket a criminal defendant's appeal from his conviction in
the Washington Territory because the defendant fled the Court's
jurisdiction prior to resolution and thus was not under the
control of the Court.
In Allen v. Georgia, 166 U.S. 138 (1897), the Supreme Court
of Georgia had dismissed an appeal to it by a fugitive from a
death penalty conviction. Over due process objections, the U.S.
Supreme Court upheld not only the state court's dismissal of the
fugitive's appeal, but also its refusal to reinstate the appeal
after the defendant's recapture, when enforceability was no
longer at issue. In preserving the dignity of the judicial
process, the Court stated:
We cannot say that the dismissal of a writ of error is not
justified by the abandonment of his case by the plaintiff in
the writ. By escaping from legal custody, he has, by the
laws of most, if not all, of the states, committed a
distinct criminal offense; and it seems but a light
punishment for such offense to hold that he has thereby
abandoned his right to prosecute a writ or error, sued out
to review his conviction; otherwise he is put in a position
of saying to the court: "Sustain my writ, and I will
surrender myself, and take my chances upon a second trial;
deny me a new trial, and I will leave the state, or forever
remain in hiding." We consider this as practically a
declaration of the terms upon which he is willing to
surrender, and a contempt of its authority, to which no
court is bound to submit. It is much more becoming to its
dignity that the court should prescribe the conditions upon
which an escaped convict should be permitted to appear and
prosecute his writ than that the latter should dictate the
terms upon which he will consent to surrender himself to its
custody.
Id. at 141. In Molinari v. New Jersey, 396 U.S. 365 (1970), the
Court refused to adjudicate the appeal of a convicted abortionist
who refused to surrender himself to authorities after he was
released on bail. The Court stated:
No persuasive reason exists why this Court should proceed to
adjudicate the merits of a criminal case after the convicted
defendant who has sought review escapes from the restraints
placed upon him pursuant to the conviction. While such an
escape does not strip the case of its character as
adjudicable case or controversy, we believe it disentitles
the defendant to call upon the resources of the Court for
determination of his claims.
Id. at 366. In so holding, the Supreme Court in Allen and
Molinari simultaneously affirmed the principles enumerated in
Smith and Bonahan and expanded the role of disentitlement as a
penalty for flouting the judicial system.
In 1975 the Court in Estelle v. Dorrough, 420 U.S. 534
(1975), confirmed the history and vitality of the doctrine and
voiced still additional justifications for the fugitive
disentitlement doctrine: promoting the dignified operation of the
appellate courts and deterring felony escape. In response to an
equal protection claim, the Court upheld a Texas statute
mandating dismissal of an appeal where the defendant has escaped
while the appeal is pending. In so doing, the Court stated that
the statute furthered its intended goals of discouraging escape
and encouraging voluntary surrender to authorities. See id. at
540. Furthermore, the statute promoted "the efficient, dignified
operation of the Texas Court of Criminal Appeals." Id. at 557.
Finally, there can be little doubt that the delay occasioned
by the period of a defendant's flight from justice can
significantly prejudice the prosecution should a new trial be
ordered after a successful appeal. In cases where such delay is
significant - or, as in the instant matter, so long that it would
appear to make reprosecution very difficult, if not impossible -
"[i]t would be unconscionable to allow such a defendant to
benefit from the delay by forcing the government to reprosecute
him long after memories have dimmed and evidence has been lost."
United States v. Persico, 853 F.2d 134, 137 (2d Cir. 1988). We
recently applied this same principle in United States v. Lanier,
123 F.3d 945 (6th Cir. 1997), even though the defendant remained
a fugitive for only a few months and the evidence from the
original trial had not grown stale.
As in the Lanier case, Petitioner Brown's conduct in the
instant matter exemplifies the utmost disrespect for the judicial
process. Brown first invoked the power and authority of the
federal courts in 1977, following his murder conviction, when he
filed a petition for writ of habeas corpus on the grounds that
his direct state appeal was improperly dismissed. This Court
affirmed the judgment of the U.S. District Court for the Eastern
District of Kentucky that if Brown's state appeal were not
reinstated, his conviction would be set aside. Brown's appeal was
therefore heard by the Kentucky Supreme Court, which affirmed his
conviction and remanded the case to the state trial court for
resentencing. When Petitioner realized that the wheels of justice
were no longer turning in his favor, he left for Australia where
he eluded capture for a decade. Brown thus obtained a second
chance to challenge his conviction and sentence by means of
filings in both the state and federal courts. In so doing, he
impermissibly delayed the appellate process for 10 years.
In Ortega-Rodriguez v. United States, 507 U.S. 234 (1993),
the Supreme Court held that where a defendant's flight and
recapture occur before appeal, the defendant's former fugitive
status does not necessarily have the required connection to the
appellate process to justify an appellate sanction of dismissal.
Precisely, the Court stated that it would not allow
an appellate court to sanction by dismissal any conduct that
exhibited disrespect for any aspect of the judicial system,
even where such conduct has no connection to the appellate
proceedings. Such a rule would sweep far too broadly,
permitting, for instance, this Court to dismiss a petition
solely because the petitioner absconded for a day during
district court proceedings, or even because the petitioner
once violated a condition of parole or probation.
Id. at 246.
In the instant matter, however, Petitioner's conduct was far
more egregious than the minor infraction contemplated by the
Court as not warranting dismissal. Indeed, it boggles the mind to
think that Brown would be allowed to flee the judicial process
for ten years and then return home upon extradition to challenge
that process' alleged shortcomings as though he had availed
himself fully of his avenues of legal recourse from the start. In
June 1993, following his ten-year absence as a fugitive,
Petitioner filed a motion in state court to vacate the seventeen-
year old judgment against him. The state trial court's decision
to deny that motion was affirmed by the Supreme Court of
Kentucky. In July 1994, Petitioner filed a second, though not
successive, petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. Again, he availed himself of the mechanisms of the
federal judiciary. That petition was dismissed without prejudice
pending the exhaustion of all state court proceedings with
respect to Brown's appeal from the denial of this motion to
vacate his sentence. When the Supreme Court of Kentucky denied
his petition for rehearing, thereby exhausting his state
remedies, Petitioner yet a third time turned to the federal
courts to petition for writ of habeas corpus, which petition was
denied, leading to this appeal.
Petitioner Brown's behavior in the instant matter must be
deterred. As in the Lanier case, he does not deserve a further
decision on the merits. Following his conviction for murder,
Brown invoked the mechanisms of the federal judiciary in order to
guarantee the procedural integrity of his state court
proceedings. His pleas by no means fell upon deaf ears. Fair
cooperation can be maintained only as long as citizens respect
their duty to conduct themselves according to the widely-accepted
norm of equity and reciprocity. The individual may only demand
reciprocity from the State - in this case the judiciary - when he
himself has respected his basic duty as a citizen not to become a
fugitive from justice.
_______________________
CONCURRENCE
_______________________
MOORE, Circuit Judge, concurring. I write separately to
discuss whether this court should apply sua sponte the fugitive
disentitlement doctrine.
Brown became a fugitive after a state court ordered that he
be resentenced but before the resentencing occurred. Upon his
recapture, Brown initiated state post-conviction proceedings
based in part on new information undermining the scientific
testimony that was significant evidence at his trial. The Mason
Circuit Court and the Kentucky Court of Appeals considered and
rejected the merits of the claims he now presses in federal
court. The Supreme Court of Kentucky accepted discretionary
review and affirmed on the merits. See Brown v. Commonwealth, 932
S.W.2d 359 (Ky. 1996). Although Brown's escape occurred during
the pendency of state proceedings, the Kentucky courts, for
whatever reason, did not invoke the fugitive disentitlement
doctrine. Cf. Harris v. Commonwealth, 224 S.W.2d 427 (Ky. Ct.
App. 1949) (dismissing an appeal of a fugitive who was still at
large). In light of the Supreme Court's recent warnings against
using our inherent power to control our docket as a tool for
inflicting ad hoc punishment for the crime of escape, I do not
believe it is appropriate for us, on the basis of his former
status as a fugitive, to deny Brown his appeal of the district
court's denial of habeas relief.
In the Supreme Court's early cases approving the fugitive
disentitlement doctrine, appellants had effectively abandoned
their appeals by fleeing the jurisdiction of the court. See
Molinaro v. New Jersey, 396 U.S. 365 (1970); Allen v. Georgia,
166 U.S. 138 (1897); Smith v. United States, 94 U.S. 97 (1876).
Dismissal pursuant to the court's inherent powers was warranted
by the fugitive's abandonment of the case and unwillingness to
submit to the authority of the court. See Allen, 166 U.S. at 141;
Smith, 94 U.S. at 98. Later, the Court considered a state statute
that provided for automatic dismissal of a fugitive's appeal. See
Estelle v. Dorrough, 420 U.S. 534, 535 (1975). The Court held
that the Constitution did not prohibit invoking this statute even
after the fugitive was recaptured. See id. at 537-42. It is
important to note, however, that permitting a state to follow
such a strict rule of fugitive disentitlement is not the same as
adopting the practice as a matter of policy for the federal
courts. It is also important that the dismissal in Dorrough was
based not on the inherent powers of the court but on a statute
enacted by the legislature. Cf. Degen v. United States, 517 U.S.
820, 823-24 (1996) (stating that "[p]rinciples of deference
counsel restraint in resorting to inherent power"); id. at 828
(distinguishing the Court's holding that inherent powers did not
support disentitlement in the circumstances of that case from the
possibility that "enforcement of a disentitlement rule under
proper authority" might be permissible).
The courts of appeals have on occasion applied the
disentitlement doctrine to appellants who were recaptured before
the commencement of their appeals and even to plaintiffs in civil
proceedings who were fugitives in related criminal cases. See,
e.g., Prevot v. Prevot, 59 F.3d 556 (6th Cir. 1995) (dismissing
suit under the International Child Abduction Remedies Act because
plaintiff was a fugitive); United States v. Persico, 853 F.2d 134
(2d Cir. 1988) (refusing to review trial errors after defendant
escaped for seven years between conviction and sentencing);
Broadway v. City of Montgomery, 530 F.2d 657 (5th Cir. 1976)
(dismissing suit under 42 U.S.C. § 1983 because plaintiff-
appellant was a fugitive in related criminal proceeding). In
these cases, the courts expanded on the basis for the fugitive
disentitlement doctrine, asserting that any fugitive from justice
was "not entitled to call on the resources of an appellate court
for a determination of his case." Broadway, 530 F.2d at 659.
In two recent cases, the Supreme Court rejected such
expansive applications of the disentitlement doctrine. The Court
first considered the case of a criminal defendant who had escaped
after being convicted but before being sentenced and was a
fugitive for almost a year. See Ortega-Rodriguez v. United
States, 507 U.S. 234, 237 (1993). Upon recapture, he was indicted
and convicted for contempt of court and failure to appear. In the
appeal of the original conviction, the court of appeals granted
the government's motion to dismiss on the grounds that the
appellant was disentitled to appeal because of his escape during
the pendency of the district court proceedings. See id. at 239.
The Supreme Court reviewed the justifications for the fugitive
disentitlement doctrine and noted that they "assume some
connection between a defendant's fugitive status and the
appellate process, sufficient to make an appellate sanction a
reasonable response." Id. at 244. The Court stated that "[t]hese
justifications are necessarily attenuated when applied to a case
in which both flight and recapture occur while the case is
pending before the district court, so that a defendant's fugitive
status at no time coincides with his appeal." Id. The Court noted
that the district courts are "quite capable" of protecting their
own jurisdiction with more finely tuned sanctions than are
available to the courts of appeals, see id. at 247, and it
rejected the argument that an appellate court may "sanction by
dismissal any conduct that exhibit[s] disrespect for any aspect
of the judicial system." Ortega-Rodriguez, 507 U.S. at 246. The
Court concluded:
[W]hile dismissal of an appeal pending while the defendant
is a fugitive may serve substantial interests, the same
interests do not support a rule of dismissal for all appeals
filed by former fugitives, returned to custody before
invocation of the appellate system. Absent some connection
between a defendant's fugitive status and his appeal, as
provided when a defendant is at large during "the ongoing
appellate process," Estelle [v. Dorrough], 420 U.S., at 542,
n.11, 95 S.Ct., at 1178, n.11, the justifications advanced
for dismissal of fugitives' pending appeals generally will
not apply.
Id. at 249.
In Degen v. United States, 517 U.S. 820 (1996), a unanimous
decision, the Supreme Court re-affirmed Ortega-Rodriguez's
limitations on the inherent power to refuse to consider claims
brought by a fugitive, this time in the context of a civil action
related to the criminal prosecution. Degen was living in
Switzerland and did not return to the United States to face
criminal prosecution for drug-related crimes. He did, however,
seek to defend his property against a related forfeiture
proceeding initiated by the government. The lower courts held
that he was not entitled to appear in the civil forfeiture
proceeding until he submitted to the criminal prosecution. See
Degen, 517 U.S. at 822. Reversing, the Supreme Court emphasized
the need for "restraint in resorting to inherent power" because
of the "danger of overreaching when one branch of the Government,
without benefit of cooperation or correction from the others,
undertakes to define its own authority." Id. at 823. Despite the
possible prejudice to the government's criminal case if the
forfeiture proceeding were to go forward while Degen remained a
fugitive, the Court believed that disentitlement was "too blunt
an instrument" and would be "an arbitrary response" to the
government's concerns. Id. at 828. Therefore, the Court held that
Degen should be permitted to defend his property from forfeiture,
noting that the district court could take steps to protect the
integrity of the criminal case while not affording Degen any
"advantage" due to his "unwillingness to appear in person." Id.
at 827. The lesson of Ortega-Rodriguez and Degen is that we
should refrain from using our inherent powers to deter conduct
already deterred by the statutes criminalizing flight or to
augment the punishments for that crime set by state and federal
legislatures. Inherent powers exist only to the extent that they
are necessary "to protect [our] proceedings and judgments in the
course of discharging [our] traditional responsibilities." Degen,
517 U.S. at 823.
In a case decided between Ortega-Rodriguez and Degen, this
court dismissed a civil case because the plaintiff was wanted in
Texas for violating the terms of his probation. See Prevot, 59
F.3d at 558. The plaintiff sued pursuant to an international
treaty, seeking to have his children, who were living with their
mother in the United States, join him in France. Acknowledging
the requirements of Ortega-Rodriguez, we concluded that there was
sufficient connection between the civil appeal and the
plaintiff's flight because the civil case was his attempt to have
his children join him in flight. See id. at 566-67. If he had not
been a fugitive, he would have had no cause of action at all
because his probation required him to remain in the United
States. In addition, the plaintiff's refusal to come to this
country hindered discovery in the civil case. See id. at 560. We
therefore concluded that he was not entitled to use the courts as
an aid to his flight. There is room for disagreement about
whether this was a correct application of Ortega-Rodriguez. See
Daccarett-Ghia v. Commissioner, 70 F.3d 621, 628 (D.C. Cir. 1995)
(declining to follow Prevot). There is also language in the
opinion that relies on arguments later rejected by the Supreme
Court in Degen, so it is not clear whether Prevot would be
decided the same way today. Compare Prevot, 59 F.3d at 567
(arguing that dismissing the custody case was the only means
available to punish Prevot for his other crimes and for
"flout[ing] the interests of the criminal courts") with Degen,
517 U.S. at 829 ("There would be a measure of rough justice in
saying Degen must take the bitter with the sweet, and participate
in the District Court either for all purposes or none. But the
justice would be too rough."); see also Ortega-Rodriguez, 507
U.S. at 246, 249 (rejecting "reasoning that would allow an
appellate court to sanction by dismissal any conduct that
exhibited disrespect for any aspect of the judicial system" and
stating that "punishment by appellate dismissal introduces an
element of arbitrariness and irrationality into sentencing for
escape"). There was in Prevot, however, at least some direct
connection between the fugitive's flight and the proceedings in
this court.
Like the forfeiture proceeding in Degen, habeas is a civil
action that is closely related to a criminal case. Under the
approach of Ortega-Rodriguez and Degen, disentitlement is
inappropriate unless Brown's flight had a connection to the
appellate process in this court. In Ortega-Rodriguez, the Court
indicated that a lengthy escape might justify dismissal of a
fugitive's appeal, even after recapture, because of the prejudice
to the government if a retrial were required. See Ortega-
Rodriguez, 507 U.S. at 249. I would hesitate, however, to invoke
the disentitlement doctrine sua sponte purely on the basis of
possible prejudice to the government. The government has never
argued that Brown's prior escape deprives him of his statutory
right to petition for habeas relief, and the Kentucky courts
whose proceedings Brown had directly disrupted allowed him to
present the merits of his claims. I do not believe it is the
province of the federal courts to punish a habeas petitioner for
crimes committed under the jurisdiction of the state courts.
Federal habeas courts have generally treated state-court
invocations of the fugitive disentitlement doctrine as we would
treat any other state-law grounds for affirming a criminal
conviction. In Irvin v. Dowd, 359 U.S. 394 (1959), the habeas
petitioner had escaped for three weeks during the state
proceedings. Under the state's disentitlement doctrine, this
escape was sufficient to dismiss his direct appeal. The federal
district court refused to entertain the habeas petition because
it believed the state courts had affirmed the conviction on that
basis. The Supreme Court, however, pointed out that the state
court's opinion had discussed both the disentitlement issue and
the merits of the appeal, and that the discussion of the merits
constituted an alternative basis for affirming the conviction.
See id. at 403. Because the petitioner had obtained a decision on
the merits from the highest state court, habeas review was
available. See id. at 406.
Other courts of appeals have followed Irvin's approach to
fugitive disentitlement in the habeas context, treating escapes
during the state proceedings like any other state-law issue.
Thus, when a state court dismisses a fugitive's appeal pursuant
to the state's disentitlement doctrine, the recaptured fugitive's
claims are cognizable on habeas only if the petitioner satisfies
the usual tests for "cause and prejudice" or "actual innocence."
See Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir. 1994).
Similarly, the fugitive disentitlement doctrine can provide
adequate and independent grounds for the state court's affirmance
of a conviction only where the doctrine is applied rationally and
consistently with state law. See Doctor v. Walters, 96 F.3d 675,
683-86 (3d Cir. 1996); Branch v. Turner, 37 F.3d 371, 375-76 (8th
Cir. 1994), rev'd on other grounds, Goeke v. Branch, 514 U.S. 115
(1995).
While the escapes in some of these cases lasted only a few
days, the petitioner in Doctor was a fugitive for more than five
years -- not as long as Brown but still a significant delay in
the state proceedings. Yet, the federal habeas court saw no
reason to invoke the fugitive disentitlement doctrine on its own
once it had concluded that the state court's decision did not
present a procedural bar to habeas review. I believe it is
appropriate that we act with the same restraint in this case.
Like federal district courts, state courts are quite capable of
defending their jurisdiction and protecting the government from
prejudicial delays. The Kentucky courts saw fit to consider the
merits of Brown's challenge to his conviction despite Brown's
escape pending resentencing in state court. I therefore see no
reason for us to invoke this procedural bar sua sponte, and I
concur in the majority opinion resolving the merits of this
appeal.
Footnotes
*The Honorable Patrick J. Duggan, United States District
Judge for the Eastern District of Michigan, sitting by
designation.
1A detailed description of the evidence in this case is set forth
in the two decisions from the Kentucky Supreme Court - Brown v.
Commonwealth, 632 S.W. 2d 758 (1982) and Brown v. Commonwealth,
932 S.W.2d 359 (1996).
2In considering the admissibility of Dr. Shaler's testimony, the
Kentucky Supreme Court in its 1982 decision stated:
It [Dr. Shaler's testimony] is not to be likened to the lie-
detector test, the result of which depend heavily on the skill of
the operator, and in which factors other than truthfulness are
known to affect the result. Dr. Shaler's testimony was admissible
on the same basis as any other expert opinion.
Brown, 639 S.W.2d at 760.
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