Bennett v. Collins

• Decision Date: 28 October 1993
• Docket Number: No. 6:89 CV 703.,6:89 CV 703.
• Parties: Baby Ray BENNETT, Appellant, v. James A. COLLINS, Director Texas Department of Criminal Justice, Institutional Division, Respondent.
• Court: U.S. District Court — Eastern District of Texas

835 F. Supp. 930

Baby Ray BENNETT, Appellant, v. James A. COLLINS, Director Texas Department of Criminal Justice, Institutional Division, Respondent.

No. 6:89 CV 703.

United States District Court, E.D. Texas, Tyler Division.

October 28, 1993.

Eden E. Harrington, Austin, for appellant.

William Charles Zapalac, Austin, for respondent.

ORDER

JUSTICE, District Judge.

I. Background and Procedural History

Applicant, Baby Ray Bennett, is a thirty year old black man. He is currently on death row at the Ellis 1 Unit of TDC, in Huntsville, Texas. (Application for Writ of Habeas Corpus at 1) hereinafter Application. Bennett was tried and convicted of capital murder,¹ and sentenced to death, in Case No. 3589, in the District Court of Newton County, 1st Judicial District of Texas, in November of 1985. He moved for a new trial on the basis of an affidavit filed by one juror indicating that she had answered Special Issue No. 2 "yes" even though she had reasonable doubt on the issue. (Application at 4). The motion for a new trial was denied. (Id. at 1). Applicant's conviction and death sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals. Bennett v. State, 742 S.W.2d 664 (Tex.Crim.App.1987).

Thereafter, applicant petitioned the United States Supreme Court for the writ of certiorari. Upon granting the writ, the Supreme Court vacated the death sentence, and remanded the case for further consideration in light of Satterwhite v. Texas.²Bennett v. Texas, 486 U.S. 1051, 108 S.Ct. 2815, 100 L.Ed.2d 917 (1988). The Texas Court of Criminal Appeals reexamined the case, but declined to engage in harmless error analysis because it was found that there had been no violation of applicant's Fifth or Sixth Amendment rights in connection with psychiatric testimony offered by Dr. Grigson's. Thus, the Texas Court of Criminal Appeals reaffirmed the original judgement, upholding the conviction as well as the death sentence. Bennett v. State, 766 S.W.2d 227, 231 (Tex. Crim.App.1989). Three judges dissented on the grounds that there had been constitutional violations, and that Dr. Grigson's testimony was, in fact, harmful error. Id., at 232. Applicant again petitioned the United States Supreme Court, but certiorari was denied. Bennett v. Texas, 492 U.S. 911, 109 S.Ct. 3229, 106 L.Ed.2d 578 (1989).

On August 8, 1989, applicant filed an application for the writ of habeas corpus with the District Court of Newton County.³ The trial court denied the application and accompanying motions, without a hearing, on November 17, 1989, ten days after the state's answer was filed, but before applicant had filed a response to the state's answer. (Application at 3). On November 29, 1989, the Texas Court of Criminal Appeals affirmed the trial court's dismissal as to all but one issue,⁴ which was set for submission to the court without argument. On October 16, 1991, the Texas Court of Criminal Appeals entered a written, unpublished order denying relief on the submitted issue. Ex parte Bennett, Application No. 70, 982 (Tex.Crim.App.1991). The state court's mandate was stayed on January 2, 1992, to allow applicant to seek relief in federal court. (Application at 3).

While the application was pending before the Texas Court of Criminal Appeals, applicant filed an application for the writ of habeas corpus with this court, on November 29, 1989. On December 20, 1989, this court entered an order staying the proceedings pending exhaustion of all state court remedies. After the Texas Court of Criminal Appeals denied Bennett's application, applicant moved to lift the stay entered by this court. On December 2, 1991, this court lifted the stay and granted applicant's motion to amend his original habeas application.

Applicant filed his amended application for the writ of habeas corpus on January 14, 1992. On June 5, 1992, this court entered an order that respondent show cause and answer within forty days from the date of service of the order; the answer was due July 15, 1992. Five days after the answer was due, on July 20, 1992, respondent filed a motion to extend time, which this court granted on July 21, 1992. A new due date was set for the answer, August 3, 1992. Respondent again failed to file a response, and again moved for an extension of time, on August 4, 1992, after the deadline had passed. On August 7, 1992, this court granted respondent's second motion for an extension, and set the due date for August 10, 1992.

Applicant, having not received a copy of respondent's answer by August 31, 1992, filed a motion for a special hearing on the merits, as well as requesting a finding that, as a result of its failure to respond in a timely manner, respondent had waived the procedural default defense.⁵

By October 30, 1992, this court had still not received respondent's answer, and therefore entered an order requiring that the attorneys for respondent appear before the court and show cause why they should not be held in contempt for violating the court's prior order to respond to applicant's writ of habeas corpus.

Respondent's attorney appeared before the court for the hearing on November 5, 1992. At that time, the attorney explained that, as far as he knew, the answer, containing a motion for summary judgement, was delivered to the mailroom on August 7, 1992, and he assumed that the document would be received by the court by the August 10, 1992 deadline.⁶ At the November 5, 1992, hearing, respondent explained that he had asked for the extensions because of "the length of the pleading and everything else, on August 4th Judge Hughes in Houston ordered our office to respond to a habeas petition in a death penalty case where there was an imminent execution date, and he wanted a response by the 7th of August." (Transcript of show cause hearing at 4). It has been noted with disapproval that counsel for the respondent offered a different explanation as to why he needed additional time to file his response in his second motion for extension of time and brief in support, filed with this court on August 4, 1993. In that motion, counsel explained that he needed additional time because he was

forced to suspend work on it the response in Bennett when he was assigned the task of preparing a portion of Respondent's Supreme Court brief in Graham v. Collins, ... in which briefs were due on August 22, 1993.... Due to the pressing nature of this task, there has not been sufficient time to complete the answer in this cause.

Respondent's Second Motion for Extension of Time at 1-2.⁷ Giving respondent the benefit of any doubt, this court allowed respondent to file a copy of its answer and motion for summary judgement.

On April 1, 1993, this court entered an order that a hearing be set to determine the merits of applicant's writ. A pretrial conference was held on May 18, 1993. Among the issues discussed at the pretrial conference was applicant's pending motion to find that the respondent had waived the procedural default defense. Applicant asserted that the court should find that the state had waived the procedural default defense by failing to respond in a timely manner. The respondent argued that

the court has already accepted the explanation of the State that the response was prepared and, at least, an attempt was made to file in a timely fashion, and that because of this the arguments for asserting a waiver of the procedural defenses being made by the petitioner is not valid.

(Transcript of the pre-trial conference at 8-9).

Applicant suggested that simply because the court permitted respondent to file an answer, the court had not thereby disposed of applicant's motion. Applicant argued that, in order to serve the ends of justice, the court should take the opportunity to disregard the procedural defaults. The court took applicant's motion under advisement, and set applicant's hearing on the merits for December 6, 1993.

The court has never received a formal response from respondent to applicant's motion asking the court to find that respondent has waived the procedural default defense.⁸ It is unclear why respondent has neglected to respond to applicant's motion; perhaps respondent misunderstood the argument made at the May 18, 1993, pre-trial conference to be a response to the motion. Never having received a formal response to applicant's motion, the motion has been decided without the benefit of respondent's input, aside from the argument made at the pretrial conference.

On August 23, 1993, applicant filed an unopposed motion to amend his habeas application. This court granted the motion and entered an order to that effect on August 25, 1993. In the August 25th order, the court stated that the respondent shall have thirty days to respond to the amended application. Once again, the court did not receive an answer, or a motion to extend time, before the thirty day period had expired. On September 27, 1993, respondent filed an untimely motion for an extension of time, proposing to file the amended answer on October 1, 1993.

Having determined that respondent has delayed far too often in these proceedings, and in an untimely manner in each instance, the motion for an extension of time shall be denied. Although the respondent did not receive a favorable ruling on its motion for an extension of time, the amended answer was filed, in an untimely manner, on October 1, 1993; however, the untimely amended answer will be disregarded.

This most recent delay is incomprehensible to the court, given the clear message delivered to respondent at the November 5, 1992, show cause hearing. The continued delay has forced the court to confront the reality of the present situation: despite repeated second chances by this court, including several extensions of time granted although the requests were filed in an untimely manner, respondent continues to flout the procedural requirements of the court. Such flagrant abuse of the system, resulting in numerous periods of delay,...