The opinion of the court was delivered by: ROY
Now before the Court is the fifth petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 we have received from Roy C. Reynolds, an inmate presently incarcerated in the Cummins Unit of the Arkansas Department of Correction. Mr. Reynolds first entered the custody of the Department following his conviction for first-degree rape and kidnapping by a Crittenden County Circuit Court jury on March 7, 1969. He was thereafter sentenced to ninety-nine years' imprisonment on each charge, with the terms to be served consecutively. The file indicates that no appeal was taken from this judgment of conviction. The petitioner then filed a motion for post conviction relief pursuant to Rule 1 of the Arkansas Rules of Criminal Procedure.
His motion was denied by the trial court and affirmed on appeal by the Arkansas Supreme Court. Reynolds v. State, 248 Ark. 153, 450 S.W.2d 555 (1970).
In 1972, Mr. Reynolds petitioned this Court with his first application for habeas corpus relief. He alleged in his petition that the conduct of both the pretrial lineup and the in-court identification was so impermissibly suggestive that it violated his right to due process. United States District Judge G. Thomas Eisele denied relief, and was affirmed on appeal by the Eighth Circuit Court of Appeals. Reynolds v. Lockhart, 470 F.2d 161 (8th Cir. 1972).
The applicant's second petition was filed with this Court in 1974 and challenged several alleged trial court errors.
United States District Judge Oren Harris denied the applicant's second petition, and the Eighth Circuit affirmed that dismissal, although it noted that Mr. Reynolds' appeal issue might merit reconsideration by the Arkansas courts. Reynolds v. Lockhart, 497 F.2d 314 (8th Cir. 1974).
In light of this directive, the Crittenden County Circuit Court scheduled a hearing to address the question of whether the applicant was properly informed of his right to appeal. The trial court found that he was not so informed, and appointed Mr. John D. Bridgforth to represent him in a belated appeal to the Arkansas Supreme Court. While this appeal was pending, Mr. Reynolds requested, and was granted, permission to substitute Mr. Bart Mullis as counsel on appeal. The appellate brief submitted by counsel alleged that the trial court erred in taking a one-week recess during the trial and that the petitioner's trial counsel was ineffective. The Arkansas Supreme Court rejected these contentions and affirmed his conviction in an opinion not designated for publication. Reynolds v. State, CR 75-178 (Ark. S. Ct. February 9, 1976).
The applicant then filed his third petition, alleging that his counsel was ineffective and that he failed to receive a fair trial because the trial court had granted a seven-day continuance during the trial. This application, before Judge Eisele, was denied, and the Eighth Circuit affirmed the dismissal. Reynolds v. Mabry, 574 F.2d 978 (8th Cir. 1978).
In 1985, Mr. Reynolds filed his fourth petition for habeas relief with this Court. United States District Judge William R. Overton denied his application for relief. Reynolds v. Lockhart, PB-C-85-1 (E.D. Ark. Feb. 25, 1985). Furthermore, the district court denied the petitioner's request for a certificate of probable cause, as did the Eighth Circuit when so requested.
Thereafter, on November 8, 1985, Mr. Reynolds filed the pending petition, his fifth, alleging a multitude of trial errors.
The respondent replied by filing a Motion to Dismiss on the ground that the applicant had abused the writ, citing Rule 9(b) of the Rules Governing § 2254 Cases in the United States District Courts. It is this motion which we now address.
Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
Rule 9(b) of the Rules Governing § 2254 Cases in the United States District Courts. Similar provisions are contained in section 2244(b) of Title 28. The general effect of both Rule 9(b) and section 2244(b) is to codify the criteria outlined in the Supreme Court decision of Sanders v. United States, 373 U.S. 1, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963). In Sanders, the Court set forth several guidelines for determining the propriety of addressing a successive application for habeas relief. These guidelines were summarized as follows:
Controlling weight may be given to denial of a prior application for federal habeas corpus or 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.
Id. at 15. What we must determine, then, is whether the petitioner's application for habeas relief should be dismissed as an improper successive petition.
First, have the same grounds presented in the present petition been adversely determined to the applicant in his prior petition? By "ground," the Sanders decision simply meant a sufficient legal basis ...