Philip Ray Workman v. Ricky Bell, Warden , 484 F.3d 837 ( 2007 )

DISSENT

R. GUY COLE, JR., Circuit Judge,

dissenting.

I would grant Workman’s stay of execution and therefore I respectfully dissent.

The majority denies Workman’s motion for a stay on the grounds that his allegations of fraud are not meritorious. The majority concludes that Workman has not established that fraud was committed “by an officer of the court” because Workman has not presented sufficient evidence showing that the Tennessee Attorney General knew about the alleged witness perjury, the missing evidence, or the statements by Memphis police describing Oliver’s death as the possible result of friendly fire.

Further, the majority takes it upon itself to review the record in the state-court proceedings and based on that record, concludes that Workman has failed to make “a meaningful showing that [Davis’s and Willis’s testimony] was indeed materially false.” The State does not argue before this Court, nor did it argue before the district court, that Workman’s showing as to the falsity of Davis’s and Willis’s testimony is lacking. In addition, the district court did not rely on this as a basis for denying Workman’s motion for relief from judgment. Indeed, the district court appears to have come to the opposite conclusion in light of its statement that “Petitioner’s fraud claims are replete with allegations, in part corroborated by the sworn testimony of Davis — a witness with relevant and personal knowledge — concerning the manufacturing of evidence, solicitation of perjury, and intimidation of witnesses by police officers investigating the shooting of Lt. Oliver.” (Dist. Ct.’s Order On Workman’s First Amended Motion For Equitable Relief at 17) (emphasis added). That the majority chooses to rely on a conclusion not pressed by the State or adopted by the district court strikes me as curious.

In any event, contrary to the majority’s reasoning, the ultimate merit of Workman’s claims has nothing to do with whether a stay of execution is warranted. See Alley v. Bell, 405 F.3d 371, 373 (6th Cir.2005) (en banc) (Cole, J. concurring) (“Perhaps Alley’s allegations of fraud are true, and perhaps they are not — obviously it will be up to the district court to consider the Rule 60(b) motion and determine if fraud actually occurred.”). Workman’s entitlement to a stay instead turns on whether he has shown a likelihood of success in arguing that he is entitled to an evidentiary hearing to prove his fraud claims. This in turn depends on whether the allegedly fraudulent conduct of State officials during Workman’s trial can be imputed to the State’s federal habeas counsel. I believe that Workman has made the necessary showing that he is likely to succeed on this inquiry.

The district court properly recognized that the central question here of whether fraud committed by State officials during Workman’s trial can be imputed to the State’s habeas counsel “continues to be ‘open and controversial’ in this Circuit.” (Dist. Ct.’s Order Granting In Part And Denying In Part Petitioner’s Application For Certificate Of Appealability at 8) (quoting Buell v. Anderson, 48 Fed.Appx. 491, 499 (6th Cir.2002)). Because of this lack of clarity, the district court stated that it was “forced to analyze Petitioner’s fraud-upon-the-court claim subject to a persisting ambiguity in circuit precedent governing whether and to what extent the alleged trial court fraud or misconduct of state officials can be imputed to the state’s habeas attorneys when fraud upon the federal habeas court is alleged.” (Dist. Ct.’s Order On Workman’s First Amended Motion For Equitable Relief at 15-16).

The district court drew on Buell, where Chief Judge Boggs characterized our evenly divided en banc opinions in Workman v. Bell, 227 F.3d 331 (6th Cir.2000), as setting forth a “broader” and a “more stringent” standard of what a habeas petitioner must show to be entitled to an evidentiary hearing on a Rule 60(b) motion alleging that the habeas court’s judgment was procured through fraud. Under the “broader” view, allegations of misconduct by the State’s trial counsel are sufficient to entitle a ha-beas petitioner to an evidentiary hearing on whether the State’s federal habeas counsel was aware of the fraud. Under the “more stringent” view, allegations of fraud against State officials during state-court proceedings cannot be attributed to the State’s federal habeas counsel. Although the district court here adopted the “more stringent” view, it nonetheless acknowledged that “[u]nder the ‘broader’ standard ... Petitioner has perhaps stated a claim of fraud upon the court deserving of further inquiry.” (Dist. Ct.’s Order On Workman’s First Amended Motion For Equitable Relief at 16).

I would therefore grant Workman’s motion for a stay due to the prevailing uncertainty about the applicable standard for determining whether his allegations entitle him to an evidentiary hearing. But a further consideration remains.

A panel of this Court, comprised of Chief Judge Boggs and Judges Norris and Clay recently granted a stay of execution in Johnson v. Bell, No. 05-6925, under, as the district court put it, “similar circumstances.” (Dist. Ct.’s Order Denying Motion For Stay Of Execution at 6, fn. 1). Johnson stood in the same procedural posture as this case at the time the stay there was granted. After federal review of Johnson’s habeas petition had run its course, Johnson filed a Rule 60(b) motion in the district court on the grounds that the district court’s denial of his habeas petition was procured by fraud. The district court denied both Johnson’s Rule 60(b) motion and his motion for a stay. Moreover, Johnson’s allegations of fraud are similar to Workman’s in that Johnson alleged that the State’s habeas counsel filed false documents in the district court and allowed a witness to testify falsely at trial. As here, the district court in Johnson (the same district court that has presided over Workman’s case), noted that the resolution of “whether the ‘broader’ or ‘more stringent’ standard [for reviewing claims of fraud by State officials] applies could be determinative of whether Petitioner is entitled to an evidentiary hearing on his fraud-upon-the-court claim.” Johnson v. Bell, No. 97-3052, Order Denying Motion For Stay Pending Appeal, dated Oct. 17, 2006, at 5. The only conceivable difference between Johnson and Workman then is that Johnson’s execution has been stayed, but unless the en banc Court or the U.S. Supreme Court intervenes, Workman’s will not be.

The situation is even more troubling when one considers that the Johnson panel could very well resolve the ambiguity surrounding what legal standard applies to Johnson’s and Workman’s claims of fraud and hold that Johnson is entitled to an evidentiary hearing on that basis. If that occurs, a manifest miscarriage of justice will ensue: Johnson will get his hearing, a hearing that Workman too would get, but for the fact that he will already have been executed. I simply cannot conclude that this inconsistency in the administration of the death penalty is permissible, especially where it can so easily be eliminated.

For these reasons, I believe that Workman is entitled to a stay of execution, and I therefore respectfully dissent.