Baxter v. Estelle, 78-2107

• Decision Date: 03 April 1980
• Docket Number: No. 78-2107,78-2107
• Citation: 614 F.2d 1030
• Parties: Jerry Dwayne BAXTER, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1030

614 F.2d 1030

Jerry Dwayne BAXTER, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections,

Respondent-Appellee.

No. 78-2107.

United States Court of Appeals, Fifth Circuit.

April 3, 1980.

Karen K. Brown, Asst. Public Defender, Houston, Tex., for petitioner-appellant.

Douglas M. Becker, J. E. Seymour, P. E. George, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

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

Before JONES, CHARLES CLARK and GEE, Circuit Judges.

CHARLES CLARK, Circuit Judge:

Jerry Dwayne Baxter filed this petition for a writ of habeas corpus, seeking his release from the Texas Department of Corrections, where he is serving concurrent sentences for burglary and theft. He challenges the constitutionality of his custody on several grounds. He asserts that the prison's disciplinary procedures, which resulted in the loss of good-time credit, violated his constitutional rights. He further contends that both his convictions are invalid because he was denied effective assistance of counsel. Finally, he argues that his burglary conviction is wrongful because the Texas burglary statute incorporates an unconstitutional presumption. After a hearing, the district court denied relief on all grounds. Baxter appeals. Although our reasoning differs in part from that employed by the district court, we affirm its judgment.

I. Prison Disciplinary Proceeding

Baxter pled guilty at a prison disciplinary hearing to the offense of possession of marijuana. The unit disciplinary committee punished him by placing him in solitary confinement for eleven days, demoting him in status, and depriving him of earned good-time credit. Baxter did not appeal through the administrative procedures provided by the Texas Department of Corrections' rules and regulations but filed a state habeas corpus petition with respect to the hearing. The state courts denied his petition.

Baxter then sought federal habeas relief. His petition alleges that the disciplinary proceeding violated several constitutional guarantees. In particular, he asserts that threats by prison officials coerced his guilty plea; that he was not provided written notice of the offense for which he was disciplined, as required by Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); that he could not be found guilty of possession because no marijuana was ever found; that he was unable to exercise his right to appeal because he was held in solitary confinement after the hearing, lacking both knowledge of his right to appeal and writing materials with which to draft his appeal; and that the sentence imposed in the disciplinary proceedings constituted cruel and unusual punishment. The district court concluded that none of Baxter's contentions had merit.

We do not consider the merits of Baxter's claims, however, for he failed to exhaust his administrative remedies. The district court found that the Texas Department of Corrections' rules provide a prisoner the right to appeal a penalty assessed at a disciplinary hearing to the Director at any time, without limitation. As we held in Lerma v. Estelle, 585 F.2d 1297 (5th Cir. 1978), a federal court may not grant habeas corpus relief to a petitioner who has failed to exhaust all administrative remedies, including an appeal to the Director of Corrections. Baxter is entitled to no relief on his claims, regardless of their merit, until he has pursued such an appeal. Thus, although the district court's consideration of the merits of these claims was improper, its denial of habeas corpus relief was correct.

II. Adequacy of Counsel

Baxter is now serving a fifteen-year sentence for first-degree burglary (the 1975 Harris County conviction) concurrently with a ten-year sentence for felony theft (the 1975 Brazoria County conviction). Baxter pled guilty to both offenses but here asserts that the pleas were the result of ineffective assistance of counsel.

A. The 1975 Harris County Conviction

Baxter's consistent history of entering guilty pleas to charges brought against him spans more than two decades. The first such plea relevant to this case was entered in 1962, when he pled guilty to burglary and felony theft charges. In 1970, he pled guilty to another burglary charge in which the 1962 burglary conviction was alleged for enhancement purposes. In 1975, on his lawyer's advice, Baxter pled guilty in Harris County to burglary. Had he not pled guilty, his prior convictions could have resulted in his prosecution as an habitual offender, subject to a mandatory life sentence.

Baxter now asserts that he was denied effective assistance of counsel in the 1975 Harris County proceeding because his lawyer did not investigate the possible invalidity of the two prior convictions upon which enhancement could have been based. Baxter attacks the 1970 prior conviction by asserting that he was denied effective assistance of counsel in that case as well, but the only ineffectiveness asserted was that his 1970 lawyer failed to investigate the validity of the 1962 conviction. If the 1962 conviction could in fact be validly used for enhancement purposes, then the failure of the lawyers in both 1970 and 1975 to investigate the validity of that conviction could in no circumstances constitute ineffective assistance of counsel. Sand v. Estelle, 551 F.2d 49 (5th Cir. 1977). Thus, the alleged failure of counsel in the 1975 Harris County conviction depends entirely upon whether Baxter's 1962 conviction was valid.

To attack his 1962 conviction, Baxter once again raises the claim of ineffective assistance of counsel. The gravamen of the attack, as presented in the habeas petition, is that his lawyer was appointed five minutes before trial and, unable to conduct any independent investigation of the law or facts of Baxter's case, could neither reasonably determine whether Baxter had a good defense nor intelligently recommend to him how to plead. Thus, Baxter asserts, his guilty plea was not intelligently entered and he was thereby denied effective assistance of counsel.

At the hearing before the district court, Baxter amplified this claim for the first time by testifying about the details of his putative defense. In his testimony he asserted that he was "pilled up" at the time of the 1962 offense and did not even know that the automobile in which he was sitting was stolen. He then claimed that when he was surprised by the police in his drugged condition, he hit an officer in the mouth and fled to a friend's, while the police shot at him. He testified that when the police caught him they beat a confession out of him. Based on this scenario, Baxter asserts that counsel did not render effective assistance by permitting him to plead guilty.

Baxter testified at first that he had told all the underlying facts to his court-appointed counsel, but on cross-examination and on examination by the court, he testified that he was unable to recall what, if anything, he had told his attorney. The district court denied the writ, finding that Baxter was foreclosed from proving these allegations concerning his 1962 attorney because of his unreasonable delay and the resulting prejudice to the state.

We agree. A petition for habeas corpus may be dismissed if the petitioner's unreasonable delay in filing the petition has prejudiced the state in its ability to respond. This rule has traditionally been applied to habeas corpus petitions under the equitable doctrine of laches, ¹ and it continues to apply under the provisions of Rule 9(a) of the Rules Governing § 2254 Cases. ² Although the § 2254 Rules probably do not apply to this case, ³ we need not determine to what extent, if at all, Rule 9(a) did more than embody preexisting law, for we find that the facts of this case demonstrate prejudice so great caused by such unreasonable delay that the claim is barred under either formulation of the rule.

Laches is an equitable doctrine. Its application must be considered on the facts of each case, based upon the reasonableness of the party's behavior under the circumstances. Baxter's delay was unreasonable in the extreme. The offense itself, the alleged beating and coerced confession, and the asserted ineffective assistance of counsel all took place in 1962. Baxter first raised these specific factual allegations in 1977 fifteen years later.

Baxter of course knew the facts upon which his claim is based during the entire period; it is not as if he only recently became aware of the grounds for a sixth amendment claim. Indeed, given Baxter's intelligence, education, ⁴ and familiarity with the criminal justice system, ⁵ it is difficult to understand why he did not initially raise these factual allegations to the trial court in 1962 or by a collateral attack soon after. As the district court observed at the hearing:

If those facts actually existed, there is no doubt about the fact that the man would have told the judge in open court. . . . He's not going to be standing there. He's not an idiot. He's not a moron. He's not that ill educated. He wasn't that much of a stranger to court proceedings. He had been convicted before.

And it is just illogical for this court to believe that any rational human being and he admitted to me he was not pilled up; it was long after the alleged beating; he knew what he was doing it is illogical for this court to believe that if, in fact, there was any substance to that story, the petitioner would (not) have, at that time, or shortly thereafter, have raised that issue. It is illogical to assume otherwise.

We are not dealing with a moron. We are not dealing with an uneducated person. We are dealing with someone who is reasonably intelligent.

Thus, Baxter has been sleeping on his rights since 1962, when he first could reasonably be expected to have raised this claim. Baxter offers no excuse for his fifteen-year delay. On the contrary, he had every incentive...