Beall v. Cockrell

Decision Date18 October 2001
Docket NumberNo. 3-01-CV-0546-D.,3-01-CV-0546-D.
Citation174 F.Supp.2d 512
PartiesEdward BEALL, Petitioner, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division Respondent.
CourtU.S. District Court — Northern District of Texas

Edward Bell, Dalhart, TX, pro se.

Karyl Krug, Atty. General of Texas, Habeas Corpus Div., Austin, TX, for respondent.


FITZWATER, District Judge.

After making an independent review of the pleadings, files and records in this case, and the Findings and Recommendation of the United States Magistrate Judge, I am of the opinion that the Findings and Recommendation of the Magistrate Judge are correct and they are hereby adopted as the Findings of the Court.


KAPLAN, United States Magistrate Judge.

This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:


Petitioner Edward Beall was convicted of aggravated sexual assault and sentenced to 10 years confinement. His conviction and sentence were upheld by the Texas Court of Criminal Appeals on direct appeal and collateral review. Beall v. State, No. 05-98-01086-CR, 1999 WL 512162 (Tex. App. — Dallas, July 21, 1999, pet.ref'd); Ex parte Beall, No. 48,403-01 (Tex.Crim.App. Feb. 21, 2001). Petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2254.

By order dated May 4, 2001, respondent was directed to answer the habeas petition "within sixty (60) days of the date of this order, answering in substance as required by Rule 5 of the Rules Governing 28 U.S.C. § 2254 Cases in the United States District Courts." ORDER TO SHOW CAUSE, 5/4/01. Respondent did not file an answer within 60 days as required. Instead, counsel for respondent filed a motion for extension of time on July 6, 2001 — three days after this answer was due. As grounds for her untimely motion, Assistant Attorney General Anne M. Marshall stated that she went to work for the Habeas Corpus Division on July 2, 2001 and had responsive pleadings due in three other cases over the next two weeks. Marshall also cited two vacancies at the Attorney General's Office "which is impacting the remaining staff." (Resp. First Mot. for Ext. of Time at 1). The Court granted a 30-day extension and ordered respondent to answer or otherwise plead by August 6, 2001. The order specifically recites that "[n]o further extensions will be granted absent exceptional circumstances." ORDER, 7/9/01.

The August 6, 2001 deadline came and went without any word from respondent. On August 10, 2001, the Court directed its staff attorney to contact the attorney-in-charge to determine why no answer had been filed. Marshall advised the staff attorney that she had inadvertently failed to calender the response date because of her lack of familiarity with the office computer system. After being reminded that she had missed the answer deadline, Marshall assured the staff attorney that she would file a motion for extension of time and an answer by August 13, 2001.1 However, no pleadings were filed on that date. The magistrate judge then directed the district clerk to enter a default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure.2 Default was entered on August 14, 2001.

On August 15, 2001 — two days after Marshall promised the Court that she would file an answer and nine days after this pleading was due — respondent filed an out-of-time motion for extension of time and an answer to the habeas petition. When respondent learned that a default already had been entered, she objected to the magistrate judge's order or, alternatively, sought to alter or amend the judgment. That motion was denied on August 23, 2001.3 On August 30, 2001, respondent filed a motion to set aside the entry of default. The Court will consider that motion and the motion for extension of time to file an answer at the outset.4


A district court may set aside an entry of default "[f]or good cause shown." FED. R. CIV. P. 55(c); Lacy v. Sitel Corp., 227 F.3d 290, 291-92 (5th Cir.2000). Among the factors relevant to this determination are: (1) whether the default was willful; (2) whether setting aside the default would prejudice the opposing party; and (3) whether a meritorious defense is presented. See Matter of Dierschke, 975 F.2d 181, 183 (5th Cir.1992), citing United States v. One Parcel of Real Property, 763 F.2d 181, 183 (5th Cir.1985). Although these factors are not talismanic, willful failure alone may constitute sufficient cause for refusing to set aside an entry of default. Dierschke, 975 F.2d at 184-85. Willfulness in this context is reviewed under an "excusable neglect" standard. CJC Holdings, Inc. v. Wright & Lato, Inc., 979 F.2d 60, 64 (5th Cir.1992).

Respondent candidly acknowledges that there is "no excuse for the behavior of Anne Marshall, who has been replaced by [another attorney] as a result of the circumstances giving rise to this default." (Rep. Mot. to Set Aside Dflt. at 3). Nevertheless, respondent argues that the willful conduct of her former attorney should not be imputed to the TDCJ-ID, "particularly given that this is a habeas corpus case." (Id.). Many courts, including the Fifth Circuit, frown on the use of default judgments to grant habeas relief without reaching the merits of the claim. Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir.1981), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981) ("dilatoriness, standing alone, does not provide a sufficient basis for granting the writ"); see also Bleitner v. Welborn, 15 F.3d 652, 653 (7th Cir.1994) (default judgments disfavored in habeas proceedings); Gordon v. Duran, 895 F.2d 610, 612 (9th Cir.1990) (same); Aziz v. Leferve, 830 F.2d 184, 187 (11th Cir.1987) (same); Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir.), cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984) (same); Allen v. Perini, 26 Ohio Misc. 149, 424 F.2d 134, 138 (6th Cir.), cert. denied, 400 U.S. 906, 91 S.Ct. 147, 27 L.Ed.2d 143 (1970) (same). However, that does not mean that a court is powerless to sanction dilatory conduct in violation of its orders. At least one district judge in this circuit, frustrated by the repeated failure of the Texas Attorney General to meet court-imposed deadlines in a habeas case, has refused to consider an untimely response. Bennett v. Collins, 835 F.Supp. 930, 935-36 (E.D.Tex.1993) (Justice, J.). See also Frick v. Quinlin, 631 F.2d 37, 40 (5th Cir.1980) (court may either consider or disregard response filed five days late). The Court finds that such a sanction is appropriate here.

Counsel for respondent failed to comply with two court orders requiring her to answer petitioner's application for writ of habeas corpus. Only after the clerk entered a default did respondent file a responsive pleading. By her own admission, there is no excuse for this dilatory conduct. Although the Court cannot enter a default judgment, it is not required to set aside the entry of default or allow respondent to file an untimely answer. Accordingly, respondent's motion to set aside the entry of default and motion for extension of time to file an answer should be denied. The Court will consider the habeas petition without reference to the untimely pleadings submitted by respondent.5


Petitioner challenges his aggravated sexual assault conviction and resulting 10-year sentence on multiple grounds. Succinctly stated, he contends that: (1) the prosecutor and defense counsel improperly commented on his failure to testify; (2) the state failed to disclose exculpatory evidence; (3) a witness testified about his post-arrest silence; (4) he received ineffective assistance of counsel; and (5) the cumulative effect of these errors resulted in an unfair trial.


The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). Under the AEDPA, a habeas petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir.2000). A presumption of correctness attaches to factual determinations made by a state court, and the petitioner must rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir.1998), cert. denied, 526 U.S. 1041, 119 S.Ct. 1339, 143 L.Ed.2d 503 (1999).


Petitioner first contends that the prosecutor and defense counsel improperly...

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