Randy GREENAWALT, Petitioner-Appellant, v. Terry L. STEWART, Et Al., Respondents-Appellees
Docket: 88-1828, 88-1910, and 97-99000
Court: Court of Appeals for the Ninth Circuit; January 17, 1997; Federal Appellate Court
Randy Greenawalt, a death row inmate, petitioned the Ninth Circuit for a certificate of probable cause (CPC) to appeal the district court's denial of his motions under Federal Rules of Civil Procedure 60(b)(6) and Appellate Procedure 4(a)(6), which sought reconsideration of the dismissal of his habeas corpus petition. Additionally, Greenawalt requested authorization to file successive habeas petitions, a motion to recall a previous mandate, and a stay of execution. The district court had jurisdiction under 28 U.S.C. 2254, while the Ninth Circuit had jurisdiction under 28 U.S.C. 2253. The court denied all requested relief.
Greenawalt was sentenced to death after being convicted of four counts of first-degree murder. His conviction was affirmed by the Arizona Supreme Court in 1981, and subsequent certiorari was denied by the U.S. Supreme Court. His first federal habeas corpus petition, filed in 1981, was dismissed for failure to exhaust state remedies. After pursuing state court avenues, he filed an amended petition in 1984, which was denied on its merits. Following a reversal and remand by the Ninth Circuit in 1986, the district court initially granted the petition, but this decision was later reversed by the Ninth Circuit in 1991.
Greenawalt filed a second petition for post-conviction relief in the Arizona Superior Court on January 18, 1993, asserting ineffective assistance of counsel during trial and sentencing, as well as newly discovered evidence that could alter his sentence. The superior court denied the petition on March 31, 1995, ruling that the ineffective assistance claim was procedurally barred since he had previously raised it in his first state petition, evidenced by his checking the relevant box on the original form. The court also determined that his evidence regarding mental condition did not qualify as newly discovered evidence and would not have impacted his sentence. Greenawalt sought review from the Arizona Supreme Court on February 19, 1996.
On April 23, 1996, he filed a preliminary petition for writ of habeas corpus in the U.S. District Court for Arizona, alleging violations of his federal constitutional rights, including due process and ineffective assistance of counsel under the Fifth, Sixth, Eighth, and Fourteenth Amendments. The petition lacked factual support for these claims and was filed while a similar claim was pending in state court. He requested the appointment of Denise Young as counsel due to his indigent status and sought additional time for her to amend the petition following a thorough record review.
The day after filing, President Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996, which changed federal habeas corpus procedures. Greenawalt acknowledged filing the preliminary petition to preserve jurisdiction over potential federal constitutional violations that might be affected by the new Act. On September 5, 1996, the district court dismissed the preliminary petition without prejudice, citing failure to exhaust state remedies, as the Arizona Supreme Court had not yet ruled on his petition for review. The court noted that the premature filing appeared to be an attempt to avoid the application of the new Act to his case.
The district judge determined that Greenawalt would not experience prejudice from the dismissal of his preliminary petition, reasoning that the Act applied to all pending cases irrespective of their filing dates. Greenawalt was granted permission to refile his petition after completing state court proceedings, while the court did not address his requests for counsel or to proceed in forma pauperis. Greenawalt did not appeal this order. The Arizona Supreme Court denied his petition for review on October 21, 1996, and reconsideration on December 17, 1996. A petition for certiorari was filed with the U.S. Supreme Court on December 16, 1996, but no action was taken before Arizona scheduled Greenawalt's execution for January 23, 1997.
On January 2, 1997, Denise Young sought to vacate the district court's September 5 Order under Rule 60(b) or to reopen the appeal time. The district court denied both motions on January 6, stating the preliminary petition did not adequately present claims and that Greenawalt was still exhausting claims in state court. The court concluded that the clerk had mailed a copy of the September 5 Order to Greenawalt, despite Young's affidavit asserting he did not receive it. Young was not entitled to notice as she was not appointed as Greenawalt's counsel.
Subsequently, on January 8, 1997, a Federal Public Defender filed an application for a certificate of appealability (CPC) on Greenawalt's behalf, arguing the district court overlooked Ninth Circuit precedent concerning the Act's retroactivity, failed to stay the action pending state court exhaustion, and improperly denied Young notice of the September 5 Order. The district court denied the CPC application on January 10, 1997, affirming its previous order did not ignore the Ninth Circuit precedent, properly dismissed the preliminary petition, and reiterated that Young was not entitled to notice. The court also clarified that the dismissal would allow Greenawalt to file a new federal petition, classifying it as his second habeas corpus petition.
Greenawalt filed a notice of appeal regarding the district court's decision and subsequently submitted several requests to this court, including an application for a certificate of probable cause (CPC) to appeal the January 6 Order, a motion to recall the mandate from a previous case (Greenawalt II), a request to file a second habeas petition in federal district court, and a motion for a stay of execution. Oral arguments were held on January 16, 1997.
The district court had denied Greenawalt's request for a CPC on January 10, 1997, leading him to appeal that denial, despite his counsel acknowledging there is no authority indicating such a denial is appealable. Consequently, the court dismissed the direct appeal from the January 6 Order and noted that a CPC is required to appeal denials of Rule 60(b) motions as well as the denial of Federal Rule of Appellate Procedure 4(a)(6) motions, as these are considered final orders in habeas corpus proceedings under 28 U.S.C. § 2253.
The amendment to § 2253 stipulates that a circuit justice or judge must issue a certificate of appealability for habeas corpus appeals. Although the standard for obtaining a CPC has become more stringent, the court did not need to determine if the amendments applied to cases without a CPC issued before the act's effective date, concluding that Greenawalt could not satisfy even the more lenient standard for a CPC.
For a CPC to be issued, a petitioner must show a substantial denial of a federal right, demonstrating that issues are debatable among jurists or could be resolved differently. The court reviews denials of motions under Rule 60(b) and Rule 4(a)(6) for abuse of discretion, necessitating a determination of whether Greenawalt made a substantial showing of such abuse.
Rule 60(b)(6) allows a court to relieve a party from a final judgment for any reason that justifies such relief, but it is applied sparingly and requires "extraordinary circumstances" to prevent manifest injustice. In this case, Greenawalt, acting pro se, was found to have received timely notice of the September 5 Order, and the court determined there were no extraordinary circumstances that warranted relief. His failure to appeal was attributed to inattention or inexperience, neither of which qualifies as extraordinary. Additionally, Greenawalt did not demonstrate any prejudice resulting from the September 5 Order, further supporting the court's denial of his Rule 60(b)(6) motion.
Greenawalt argued that the district court abused its discretion by dismissing his preliminary petition instead of staying it while he exhausted his claims in state court. However, he acknowledged that his petition included an unexhausted claim of ineffective assistance of counsel. Supreme Court precedent mandates that district courts must dismiss "mixed" petitions containing unexhausted claims to promote comity and protect the right to relief. Greenawalt's counsel conceded that his claims were unexhausted at the time of the September 5 dismissal, aligning with established legal standards requiring dismissal under such circumstances.
Greenawalt's application for a Certificate of Probable Cause (CPC) cites Fetterly v. Paskett and Neuschafer v. Whitley to argue that the district court should have stayed his petition instead of dismissing it. In Fetterly, the Ninth Circuit ruled that a district court should stay a habeas corpus petition with only exhausted claims to allow time for exhausting new claims in state court. However, Greenawalt's situation involved a petition that, under Rose v. Lundy, necessitated immediate dismissal due to unexhausted claims, a point that Fetterly does not support. The Fetterly petitioner sought a stay precisely because his petition would be dismissed under Rose if amended to include unexhausted claims. Additionally, Fetterly's context as a first federal habeas petition means the equities favoring a stay are lower for Greenawalt’s successive petition. Dismissal of a first federal habeas petition is significant as it denies the protections of the Great Writ, impacting human liberty interests. In Neuschafer, a suggestion was made that a district court could hold a federal petition in abeyance for exhaustion purposes, but this was not a request in that case and is considered dicta. Consequently, given the clear directive from Rose, the district court acted correctly in dismissing Greenawalt's preliminary petition for containing an unexhausted claim, as supported by Supreme Court and Ninth Circuit precedent.
The Act's amendments to federal habeas corpus laws require state prisoners to fully exhaust their claims in state courts before filing federal habeas petitions, a principle upheld despite changes made by Congress and the Supreme Court. Greenawalt's situation, where the Act potentially worsened his legal standing, is acknowledged, but his federal petition was dismissed as premature because he had not exhausted state remedies. The district court's dismissal was based on proper grounds, despite an erroneous assumption about the Act's retroactive application. Even if the court's reasoning was flawed, the dismissal is upheld due to the valid exhaustion requirement. Greenawalt also argued that the district court erred by not appointing counsel for his preliminary petition. While this argument holds merit, it was unnecessary to resolve since Greenawalt failed to show any resulting prejudice, as he conceded that no fully exhausted federal claims were present at the time. Any petition filed with appointed counsel would still have been dismissed for lack of exhaustion.
Greenawalt argued that the lack of appointed counsel prejudiced him in two ways: first, he speculated that counsel could have prompted the State to waive the exhaustion requirement, which the State has denied, asserting it would not have waived it. Second, he posited that counsel might have convinced the district court to stay his petition rather than dismiss it, but such a stay would contravene established precedent. The district court's dismissal of his preliminary petition on September 5, 1996, was deemed proper, and its refusal to reconsider that decision under Rule 60(b)(6) was not an abuse of discretion; thus, Greenawalt did not demonstrate a substantial showing of such abuse, leading to the denial of his application for a certificate of appealability (CPC).
Greenawalt also sought a CPC to appeal the denial of his motion to reopen the time for appeal under Federal Rule of Appellate Procedure 4(a)(6), arguing that his attorney, Denise Young, did not receive notice of the September 5 order. The district court denied this motion, reasoning that Young was not a party entitled to notice as she had not been appointed in federal court, and Greenawalt failed to show substantial abuse of discretion in this ruling, resulting in another CPC denial.
Additionally, Greenawalt requested the recall of a mandate from a prior case, emphasizing exceptional circumstances based on the Eighth Circuit's questioning of a claim from his first habeas petition related to jury instructions on lesser-included offenses. The Eighth Circuit found disagreement with the prior interpretation of the Beck doctrine, noting a constitutional issue when state law prohibited such instructions in death-eligible cases.
Greenawalt's request to revisit his Beck claim is not supported, as he has failed to demonstrate the necessary exceptional circumstances. He may appeal to the Supreme Court regarding inter-circuit disputes. Greenawalt has submitted two interrelated requests to file a successive federal habeas corpus petition. The first request argues that the governing Act suspends the writ of habeas corpus in his "unprecedented situation," asserting a violation of Article I, § 9 of the Constitution. However, this argument has been previously rejected by the Supreme Court in Felker, which upheld the Act's restrictions as constitutionally permissible. Consequently, this request is denied.
For the second request under 28 U.S.C. 2244(b)(3)(A), Greenawalt must show a prima facie case satisfying stringent requirements for successive petitions. He fails to meet the criteria established in 28 U.S.C. 2244(b)(2), as he cannot demonstrate a new rule of constitutional law applicable to his case or that no reasonable factfinder would have found him guilty due to alleged ineffective assistance of counsel at sentencing. Therefore, this request is also denied.
Additionally, Greenawalt's motion for a stay of execution is considered under the standard set in Barefoot v. Estelle, which requires substantial grounds for relief. Given the earlier findings, a stay of execution is deemed unwarranted, and the motion is denied. Overall, all requests for relief are denied.
