Young v. Dretke, 02-50341.

Citation356 F.3d 616
Decision Date09 January 2004
Docket NumberNo. 02-50341.,02-50341.
PartiesEdward Michael YOUNG, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Institutions Division, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Robin Norris (argued), Hart & Norris, El Paso, TX, for Petitioner-Appellant.

James M. Terry, Jr. (argued), Austin, TX, for Respondent-Appellee.

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

Before REAVLEY, JOLLY and JONES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Edward Michael Young was convicted of murder and is now serving a sixty-year sentence in the Texas prison system. He appeals the district court's denial of his petition for a writ of habeas corpus in which he alleges ineffective assistance of counsel. He bases his claim on his attorney's failure to move for the dismissal of the prosecution under applicable Texas statutes (that have subsequently been amended), which required dismissal of the prosecution with prejudice if the indictment was untimely. The indictment is conceded to have been untimely. The state habeas court concluded that Young's counsel had, indeed, rendered deficient performance by failing to move for dismissal of the prosecution. It further concluded that there was a reasonable probability that, but for that deficiency, Young never would have been tried and, hence never convicted, of the crime for which he is presently imprisoned. This conclusion was based on the court's interpretation of state law and its application to the facts of this case. See TEX.CODE CRIM. P. arts. 28.061, 32.01 (West 1989). Yet, the state habeas court ultimately denied relief, concluding that, despite the deficient performance of counsel that affected the outcome, Young was not prejudiced. Under the state court's application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), prejudice was to be determined by reference to current law, rather than the law at the time of the deficient performance. This interpretation led the state court to conclude that Young had suffered no prejudice (under the second prong of Strickland) because the Texas statute subsequently had been amended to remove the bar to further prosecution following dismissal.

The determinant question on appeal is whether the state habeas court's conclusion that Young was not prejudiced by his counsel's deficient performance was contrary to, or an unreasonable application of, federal law. Two cases will inform the court's application of Strickland in these circumstances: Lockhart v. Fretwell, supra, and Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In Fretwell, the Supreme Court stated that a Strickland prejudice "analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective" and "may grant the defendant a windfall to which the law does not entitle him." 529 U.S. at 369-70, 120 S.Ct. 1495. Such "[u]nreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Id. at 372, 120 S.Ct. 1495. Fretwell, however, was further delineated by the Court in Williams: Fretwell does "not justify a departure from a straightforward application of Strickland when the ineffectiveness of counsel does deprive the defendant of a substantive or procedural right to which the law entitles him." 529 U.S. at 393, 120 S.Ct. 1495 (emphasis in original). Accordingly, the question in this case is whether the undisputed deficient performance of Young's counsel deprived Young of a substantive or procedural right to which he was entitled. Fretwell, 506 U.S. at 372, 113 S.Ct. 838; Williams, 529 U.S. at 393, 120 S.Ct. 1495.

The state habeas court concluded that, under Texas law, if Young's counsel had moved for dismissal, Young would have been "entitled" to dismissal of the prosecution, and that the State would have been barred from further prosecution. It is therefore clear that the state habeas court found that the deficient performance of Young's counsel deprived him of substantive and procedural rights to which the law entitled him. Yet, the state habeas court, without reference to Williams, applied Fretwell to conclude that ultimately Young was not prejudiced because the statute subsequently had been amended to allow reprosecution after dismissal of the indictment. Because this holding fails to properly distinguish Fretwell and disregards Williams' interpretation of Fretwell, it is both contrary to, and an unreasonable application of, Supreme Court precedent. Because the state habeas court concluded that there was a reasonable probability that Young would not have been prosecuted for the murder of Tracy Ann Bering had his counsel moved for dismissal, Young has established the requisite prejudice under Strickland.

I

On September 20, 1991, Tracy Ann Bering was murdered. Young was arrested, and Jaime Gandara was appointed to represent him, that same day. Young was released on bail, but he was not indicted until February 16, 1993, approximately seventeen months later, which was the third term of court following his arrest and release on bail. At the time of Young's arrest, indictment and trial for murder, article 32.01 of the Texas Code of Criminal Procedure provided:

When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant at the next term of the court which is held after his commitment or admission to bail.

(Emphasis added.) During that time, article 28.061 of the Code of Criminal Procedure provided, in relevant part,

A discharge under ... Article 32.01 of this code is a bar to any further prosecution for the offense discharged and for any other offense arising out of the same transaction, other than an offense of a higher grade that the attorney representing the state and prosecuting the offense that was discharged does not have the primary duty to prosecute.

(Emphasis added.)

Thus, under the express terms of Article 32.01, by the first Monday of July 1992, Young would have been entitled to have the prosecution against him dismissed with prejudice under Article 28.061 because the State had not yet indicted him, unless the State was able to demonstrate good cause for the delay. However, his appointed counsel did not seek such a dismissal, and Young was indicted for the murder of Tracy Ann Bering approximately seventeen months after his arrest.

Young filed two pre-trial motions to dismiss the indictment for speedy trial violations, which the trial court denied after a hearing. Following a jury trial, Young was convicted of murder. Young was sentenced to sixty years in prison, a sentence he is now serving.

The conviction and sentence were affirmed on direct appeal to the Court of Appeals, Eighth District of Texas at El Paso, on August 14, 1997, in an unpublished opinion. Young v. State, No. 08-95-00251-CR. On direct appeal, Young argued that the trial court erred by denying his motions to dismiss for speedy trial violations. In its brief on direct appeal, the State admitted that the pre-indictment delay was clearly attributable to the State. Although the state court of appeals rejected Young's speedy trial claim, it did so on the ground that Young had filed motions for continuance in which he asserted that he would not be prejudiced by a delay of the trial. The state court of appeals noted, however, that the State had not explained the twenty-seven month delay between Young's arrest and initial trial setting. Obviously, that twenty-seven month period includes the seventeen months between Young's arrest and indictment. Thus, the state court of appeals implicitly concluded that the State had failed to give any reasons for the pre-indictment delay.

Young petitioned the Texas Court of Criminal Appeals for discretionary review. Young argued that the court of appeals incorrectly failed to apply the provisions of articles 32.01 and 28.061 to reverse for the reason that the indictment was not presented within the time prescribed by law. The Texas Court of Criminal Appeals refused the petition for discretionary review on January 21, 1998. Young v. State, PDR No. 1566-97.

Young filed his post-conviction application for relief in state court on February 23, 1999. He asserted various claims of ineffective assistance of counsel and insufficiency of the evidence. Pertinent to this appeal is Young's claim that his Sixth Amendment rights were violated by ineffective assistance of his counsel, who failed to move for the dismissal of the prosecution for failure to timely indict under Texas law.1 The state habeas trial court concluded that trial counsel rendered deficient performance by failing to move for dismissal of the prosecution and that Young would have been entitled to a dismissal with prejudice under the Texas statutes then in effect. In pertinent part, the court made the following "Conclusions of Law":

1. Had Applicant's attorney, Jaime Gandara, moved for dismissal of the charges and discharge of the bail against Applicant for the offense for which he was convicted prior to the presentation of an indictment against Applicant, Applicant would have been legally entitled to such dismissal and discharge under Texas Code of Criminal Procedure, article 32.01.

2. Had the charges against Applicant been dismissed and his bail discharged under Texas Code of Criminal Procedure, article 32.01, the State would have been barred...

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