Smith v. Collins

• Decision Date: 24 November 1992
• Docket Number: No. 91-8197,91-8197
• Citation: 977 F.2d 951
• Parties: Frank SMITH, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 951

977 F.2d 951

Frank SMITH, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 91-8197.

United States Court of Appeals Fifth Circuit.

Nov. 24, 1992.

Rehearing Denied Jan. 5, 1993.

W.V. Dunnam, Jr., Waco, Tex., for petitioner-appellant.

Dana E. Parker, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before THORNBERRY, GARWOOD, and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Frank Smith (Smith) appeals the district court's denial of his habeas corpus petition under 28 U.S.C. § 2254 challenging his Texas 1977 conviction and sentence for aggravated robbery. Concluding that Smith has demonstrated no reversible error in the district court's denial of relief, we affirm.

Factual and Procedural Background

Smith was convicted of aggravated robbery in September 1977 in Gillespie County, Texas. The indictment alleged two prior convictions, a 1952 conviction and a 1966 conviction, for the purpose of sentence enhancement. Smith did not object to proof of either of the prior convictions. As a result of the two prior convictions, Smith's sentence was enhanced to a mandatory life sentence. See TEX.PENAL CODE ANN. § 12.42(d). On May 25, 1983, the Texas Court of Criminal Appeals, on Smith's direct appeal, affirmed the conviction and sentence. See Smith v. State, 650 S.W.2d 842 (Tex.Cr.App.1983) (table) (unpublished).

While Smith was incarcerated for the 1977 aggravated robbery conviction, he learned of the Supreme Court's 1965 decision in Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), holding that a material witness could not serve as a bailiff in the same criminal trial in which he was testifying. Smith remembered that two of the state's witnesses, the sheriff and deputy sheriff of Falls County, in his 1952 trial also served as bailiffs in that trial. Thus, in May 1984 Smith filed an application for writ of habeas corpus in state district court challenging the validity of his 1952 Falls County conviction. Smith contended that the bailiffs who attended the jury during the trial were also material witnesses, in violation of Turner.

The presiding judge of the 82nd Judicial District Court of Falls County, Texas, recommended that Smith's application for state habeas relief be granted, and the Falls County District Attorney admitted the truth of some of Smith's allegations. Notwithstanding the district court's recommendation, the Texas Court of Criminal Appeals denied Smith's application without written order on July 18, 1984. Smith's counsel filed a motion to reconsider on July 29, 1984. On December 12, 1984, the Texas Court of Criminal Appeals issued an en banc Order. The court noted that the district court had not held an evidentiary hearing, and that the district judge had represented Smith in his 1952 trial. The court found it appropriate that another judge be appointed to preside over further hearings, ordered that an evidentiary hearing be held, and that Smith present evidence regarding the reason for his thirty-two year delay in challenging his 1952 conviction and whether such delay constituted laches.

After holding an evidentiary hearing, the state district court found that two material witnesses in the 1952 trial served as bailiffs went to dinner and a movie with the jury, and interacted with the jury during the deliberation stage. The court also found that "the Statement of Facts in [the 1952 case] did not contain any reference to who the bailiffs were and the papers of the cause do not reveal such fact." The state district court concluded that "Smith first acquired knowledge that the above facts might [a]ffect the validity of said conviction at some time in the past few years when he read a law book," that Smith "was not guilty of any laches," and that "as a matter of law [Smith] is entitled to the relief sought herein." On June 19, 1985, the Texas Court of Criminal Appeals granted Smith habeas relief and set aside his 1952 conviction.

In November 27, 1985, Smith filed an application for state habeas relief in the 216th Judicial District of Gillespie County challenging the validity of his 1977 conviction. Smith alleged that: (1) his 1977 conviction and sentence were void because the subsequently vacated 1952 conviction had been used for enhancement; (2) if the court determined that he had not shown cause for failing to object to the introduction of the 1952 conviction, his counsel's failure to object constituted ineffective assistance of counsel; (3) the trial court erroneously instructed the jury that convictions of witnesses could not be considered for any purpose except credibility; (4) the trial court erred in not allowing Smith to present evidence on his motion to change venue until after the jury had been selected and sworn and in overruling said motion; (5) the trial court erred in overruling Smith's challenges for cause; (6) a material witness knowingly testified falsely and the State knowingly withheld this evidence from Smith; and (7) the Texas Court of Criminal Appeals erred in not extending the time in which Smith could file a pro se supplemental appellate brief.

The state trial court conducted an evidentiary hearing. With regard to the claim of improper enhancement, the court found that

"Applicant's [1977] trial counsel was informed by Applicant that key State's witnesses served as jury bailiffs in the [1952 trial] in the District Court of Falls County subsequent to Applicant's conviction in [1977] in the District court of Gillespie County being affirmed by the Court of Criminal Appeals. Nothing in the record or statement of facts of the Falls County trial reflected such occurrence, and Applicant did not know until after his Gillespie County conviction was affirmed that such occurrence rendered the Falls County conviction void."

The district court entered the following legal conclusions: (1) "Applicant's failure to object at his trial in Gillespie County to the introduction of his prior conviction in Falls County on the ground that such conviction was void because key State's witnesses served as jury bailiffs precludes his collaterally attacking his Gillespie County conviction on that ground"; (2) "Applicant failed to establish 'cause' for his failure to object to the admissibility of his prior conviction"; and (3) "Considering the totality of his representation and his unawareness of the infirmity in the prior conviction, Applicant's attorney did not render ineffective assistance of counsel in failing to object to the admissibility of the prior conviction on the ground that it was constitutionally void." On September 30, 1987, the Texas Court of Criminal Appeals denied Smith's application for state habeas relief "without written order on findings of the trial court after hearing."

Having exhausted his state remedies, Smith filed the instant petition for federal habeas relief in May 1988. Smith alleged that: (1) his 1977 conviction and sentence were void because the subsequently vacated 1952 conviction had been used for enhancement; (2) if the court determined that he had not shown cause for failing to object to the introduction of the 1952 conviction, his counsel's failure to object constituted ineffective assistance of counsel; (3) the trial court erroneously instructed the jury that convictions of witnesses could not be considered for any purpose except credibility; (4) the trial court erred in not allowing Smith to present evidence on his motion to change venue until after the jury had been selected and sworn; and (5) the Texas Court of Criminal Appeals erred in not extending the time in which Smith could file a pro se supplemental appellate brief. On April 26, 1990, the magistrate judge issued a report recommending that the district court deny relief. On August 15, 1990, the district court adopted the magistrate judge's findings and conclusions, made additional findings and conclusions, and denied relief. Smith filed a Motion for Reconsideration, which the district court denied on March 10, 1991. ¹ Smith brings this appeal.

Discussion

I. Void Enhancement Conviction

The district court rejected Smith's contention that he was entitled to habeas relief because his void 1952 conviction was used to enhance his 1977 sentence. The district court found that the Texas Court of Criminal Appeals denied Smith relief on the basis of a state procedural bar, and that Smith had not shown adequate cause for his failure to make a timely objection. Smith contends that the district court erred both in concluding that he had not demonstrated cause and that the Texas Court of Criminal Appeals relied on a procedural default in denying relief.

A. Procedural bar

We first address Smith's contention that we are not barred from reviewing his habeas claim because of procedural default. In Texas, it is well-established that "the failure to object at trial to introduction of proof of an allegedly infirm prior conviction precludes a defendant from thereafter attacking the conviction in which the prior conviction was utilized." Ex Parte Cashman, 671 S.W.2d 510, 512 (Tex.Crim.App.1983) (en banc) (opinion on State's Motion for Rehearing). Generally, "[u]nless a habeas petitioner shows cause and prejudice, a court may not reach the merits of: ... (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims." Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). However, under Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989), absent a "plain statement" that the claim is barred by a state procedural default, "federal courts ... will presume that there is no independent and adequate state ground for a state court decision [if]...