Arthur Nathaniel Aiken v. James Spalding, Superintendent, Washington State Penitentiary, and Ken Eikenberry, Attorney General, State of Washington

684 F.2d 632 Arthur Nathaniel AIKEN, Plaintiff-Appellant, v. James SPALDING, Superintendent, Washington State Penitentiary, and Ken Eikenberry, Attorney General, State of Washington, Defendants-Appellees. No. 81-3592. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 6, 1982. Decided Aug. 17, 1982. Richard S. McMillin, Washington, D. C., for plaintiff-appellant. James Lobsenz, Seattle, Wash., for defendants-appellees. Appeal from the United States District Court for the Western District of Washington. Before GOODWIN and POOLE, Circuit Judges, and EAST, * District Judge. GOODWIN, Circuit Judge. 1 Aiken appeals the dismissal of his habeas corpus petition pursuant to Rule 9(a) of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254 (1976). Aiken was resentenced in 1973; his habeas petition, however, was not filed until 1979, due to an undenied lack of diligence by earlier counsel. The petition presents claims challenging the voluntariness of Aiken's confession as well as the effects of pretrial publicity. Rule 9(a) provides: 2 "A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its…

Aiken appeals the dismissal of his habeas corpus petition pursuant to Rule 9(a) of the Rules Governing Section 2254 Cases, 28 U.S.C. foil. § 2254 (1976). Aiken was re-sentenced in 1973; his habeas petition, however, was not filed until 1979, due to an undenied lack of diligence by earlier counsel. The petition presents claims challenging the voluntariness of Aiken’s confession as well as the effects of pretrial publicity.

Rule 9(a) provides:

The district court found that the state had made no showing that the delay in the filing of the petition had impaired its ability to address the issues raised therein. The district court agreed, however, with the state’s allegations that the lapse of time would prejudice the state in its ability to retry Aiken should he obtain habeas corpus relief. The court ruled that these assertions were cognizable within Rule 9(a), and therefore dismissed Aiken’s petition.

Rule 9(a) specifically provides that dismissal may be available where the state has been prejudiced in its ability to respond to a habeas petition by reason of the petitioner’s unreasonable delay in filing. The Advisory Committee Note 1 on the rule indicates that the drafters were…

concurring specially.

I concur in the majority opinion because I believe that the result here is dictated by the literal terms of Rule 9, which only permits the state to show prejudice “in its ability to respond to the petition.” However, I write separately to express my view that the Rule as interpreted does not conform to the realities of the criminal justice system.

It seems utterly unrealistic to suggest that the state may raise the prejudice it has suffered in responding to the petition caused by petitioner’s delay, but that it may not raise the prejudice it will suffer in attempting to retry the underlying charges against him. The principles of equitable estoppel animating Rule 9 apply equally well to the difficulties faced by the state in any retrial as to any problems it may have in responding to petitioner’s specific claims. Indeed, as demonstrated by this case, the difficulties involved in marshalling evidence for a retrial, including dispersal of witnesses, faulty memory and unwillingness to testify may often be more significant than the task of meeting petitioner’s specific allegations.

Since Rule 9 does not take into account those difficulties, the situation should…