Schaetzle v. Cockrell

• Decision Date: 15 August 2003
• Docket Number: No. 03-50215.,03-50215.
• Parties: David SCHAETZLE, Petitioner-Appellee, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

343 F.3d 440

David SCHAETZLE, Petitioner-Appellee, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant.

No. 03-50215.

United States Court of Appeals, Fifth Circuit.

August 15, 2003.

Philip J. Lynch (argued), San Antonio, TX, for Petitioner-Appellee.

Tommy Lee Skaggs (argued), Austin, TX, for Respondent-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, WIENER, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Texas prisoner David Schaetzle was granted conditional federal habeas relief based on his claim of ineffective assistance of counsel on direct appeal. Consistent with the standard of review mandated by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2241 et seq., at issue is whether the Texas Court of Criminal Appeals, without an opinion, unreasonably applied clearly established federal law in denying the following state habeas claim: that, on direct appeal, Schaetzle's counsel was ineffective by failing to challenge the sufficiency of the evidence for the retributory intent element required by Texas Penal Code § 36.06 (retaliation against public servant). See 28 U.S.C. § 2254(d)(1); e.g., Catalan v. Cockrell, 315 F.3d 491, 493 & n. 3 (5th Cir.2002) (where no written opinion by state habeas court, we assume proper law applied and review to determine whether such application was "objectively unreasonable"). JUDGMENT VACATED; HABEAS RELIEF DENIED.

I.

While cleaning his cell in the Travis County jail in February 1998, Schaetzle threw a bag of garbage from the upper to the lower tier of the cell block. As a result, Officer Spriegel ordered Schaetzle to be locked in his cell earlier than usual; Schaetzle became angry; the Officer told Schaetzle that, if he failed to obey, he would receive a 23-hour lockdown as punishment; and the Officer ordered Schaetzle to meet with him.

After Schaetzle ran to the Officer's location, he told Schaetzle to follow him to another area in order to confer. There, Schaetzle threatened Officer Spriegel by saying he would look him (the Officer) up "on the outside" when Schaetzle was released in one month.

Officer Spriegel reiterated to Schaetzle that, if his conduct continued, he would be locked down for 23 hours. They then walked toward Schaetzle's cell unit, with Schaetzle in front. Schaetzle spun around abruptly. Startled, Officer Spriegel grabbed Schaetzle's shirt, attempting to turn him around; Schaetzle struck the Officer; in an attempt both to avoid being struck and to restrain Schaetzle, the Officer wrapped his arms around Schaetzle; when Schaetzle continued to strike the Officer, he pushed Schaetzle away; and another Officer came to the scene and subdued Schaetzle.

Schaetzle was charged with both assault on, and retaliation against, a public servant. A jury convicted him on the retaliation, but not the assault, charge. Because of enhancements, Schaetzle was sentenced to 33-years imprisonment.

On direct appeal, Schaetzle's counsel presented one issue: whether the State violated Texas' mandatory ten-day trial preparation period, TEX.CODE CRIM. PROC. ANN. § 1.051(e), by making minor changes to the indictment six days before trial. The Court of Appeals in Austin affirmed. Schaetzle v. State, No. 03-98-00668-CR, 1999 WL 670711 (Tex.App. — Austin 1999) (unpublished). The Texas Court of Criminal Appeals accepted an out-of-time petition for discretionary review, but refused review. Schaetzle v. State, PDR No. 0888-00 (Tex.Crim.App. 30 August 2000) (per curiam) (unpublished).

Schaetzle sought state habeas review on a number of issues, including ineffective assistance of appellate counsel. The habeas trial court found an evidentiary hearing was unnecessary. (The State filed an affidavit by Schaetzle's counsel on direct appeal, stating she did not believe the evidence was factually or legally insufficient.) The court found the habeas application "contains no sworn allegation of fact which... would render [Schaetzle's] confinement illegal, and ... [Schaetzle] has not met his burden of establishing facts which would entitle him to relief". Ex parte Schaetzle, No. 98-3739-B (Travis County District Court 15 Oct. 2001).

The Texas Court of Criminal Appeals "denied [the application] without written order on findings of [the] trial court without a hearing". Ex parte Schaetzle, App. No. 30,103-06 (Tex.Crim.App. 21 Nov. 2001) (emphasis added).

Pursuant to 28 U.S.C. § 2254, Schaetzle applied for federal habeas relief, presenting numerous claims, including two for ineffective assistance of counsel on direct appeal (appellate counsel). The magistrate judge recommended denying all claims except the one for ineffective assistance of counsel (IAC) based on appellate counsel's not challenging the sufficiency of the evidence for the retributory intent element of Texas Penal Code § 36.06. Schaetzle v. Cockrell, No. A-02-CA-259-JN (W.D. Tex. 19 Dec. 2002) (Magistrate Judge Report and Recommendation).

The district court adopted the recommendations and granted conditional habeas relief on the IAC claim concerning appellate counsel and § 36.06. Id., No. A-02-CA-259-JN (W.D.Tex. 31 Jan. 2003). Habeas relief was granted "unless the state afford[ed] [Schaetzle] an out-of-time direct appeal with the assistance of competent counsel for the purposes of raising the legal sufficiency of the evidence issue [concerning § 36.06]".

After the district court denied the State's motion to stay the judgment, it requested similar relief from our court. We granted a stay, ordered an expedited appeal, and appointed counsel for Schaetzle.

II.

In reviewing a ruling on the merits of a habeas claim, the district court's findings of fact are reviewed for clear error; its conclusions of law, de novo. E.g., Foster v. Johnson, 293 F.3d 766, 776 (5th Cir.), cert. denied, 537 U.S. 1054, 123 S.Ct. 625, 154 L.Ed.2d 532 (2002). The heightened standards of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2241 et seq., apply. Accordingly, relief cannot be granted unless the challenged state court proceeding resulted in: (1) "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", 28 U.S.C. 2254(d)(1); or (2) "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)(2).

Only subpart (d)(1) (unreasonable application of clearly established federal law) is at issue. Under that subpart, "`unreasonable' does not mean merely `incorrect': an application of clearly established Supreme Court precedent must be incorrect and unreasonable to warrant federal habeas relief". Foster, 293 F.3d at 776 (emphasis in original) (citing Williams v. Taylor, 529 U.S. 362, 410-12, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

Because a federal habeas court only reviews the reasonableness of the state court's ultimate decision, the AEDPA inquiry is not altered when, as in this case, state habeas relief is denied without an opinion. E.g., Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir.2001), cert. denied, 535 U.S. 982, 122 S.Ct. 1463, 152 L.Ed.2d 461 (2002). See Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc) ("It seems clear to us that a federal habeas court is authorized by [§] 2254(d) to review only a state court's `decision,' and not the written opinion explaining that decision."), cert. denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003). For such a situation, our court: (1) assumes that the state court applied the proper "clearly established Federal law"; and (2) then determines whether its decision was "contrary to" or "an objectively unreasonable application of" that law. Catalan, 315 F.3d at 493 & n. 3 (quotation omitted); see Robertson v. Cain, 324 F.3d 297, 303 (5th Cir.2003) (assuming state court was aware of relevant Supreme Court decisions, although not cited in its opinion). The magistrate judge's report and recommendation, discussing Neal and Catalan (the latter rendered only the day before the recommendation), recognized this controlling standard in no-state-opinion cases.

For Schaetzle's IAC claim concerning appellate counsel, the applicable "clearly established Federal law as determined by the Supreme Court of the United States" — against which to measure the state court's decision — is found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (interpreting Sixth Amendment right to counsel). E.g., Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (applying Strickland to IAC claim concerning appellate counsel). To succeed in state habeas court on his IAC claim, pursuant to the "clearly established Federal law" found in Strickland, Schaetzle was required to show, as discussed infra: (1) appellate counsel's performance was deficient; and (2) this performance resulted in prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

It bears repeating that the test for federal habeas purposes is not whether Schaetzle made that showing. Instead, the test is whether the state court's decision — that Schaetzle did not make the Strickland-showing — was contrary to, or an unreasonable application of, the standards, provided by the clearly established federal law (Strickland), for succeeding on his IAC claim. Of course, in reaching our decision, we must consider the underlying Strickland standards.

Schaetzle was convicted under Texas Penal Code § 36.06, which, inter alia, prohibits retaliation against a public servant, as follows:

A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act: (1) in retaliation for or on account of the service or status of another as a: (A) public servant....

(Emphasis added.)

The ...