Burdine v. Johnson

• Decision Date: 01 March 2000
• Docket Number: No. Civ.A. H-94-4190.,Civ.A. H-94-4190.
• Citation: 87 F.Supp.2d 711
• Parties: Calvin Jerold BURDINE, Petitioner, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

Page 711

87 F.Supp.2d 711

Calvin Jerold BURDINE, Petitioner, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.

No. Civ.A. H-94-4190.

United States District Court, S.D. Texas, Houston Division.

March 1, 2000.

Robert L. McGlasson, Attorney at Law, Decatur, GA, Mandy Jo Welch, Burr & Welch, Houston, TX, for petitioner.

John Cornyn, Attorney General of Texas, Gena Blount Bunn, Assistant Attorney General and Chief, Capital Litigation Division, Douglas Alan Danzeiser, Assistant Attorney General, Office of the Texas Attorney General, Austin, TX, for respondents.

ORDER

HITTNER, District Judge.

Pending before the Court are the Motion for Stay of Judgment Pending Appeal and Motion for Leave to File Untimely Motion for Stay of Judgment Pending Appeal and Alternative Motion for Relief from Judgment filed by respondent Gary Johnson ("Johnson" or "the State"), and the Motion for Immediate Release from Custody filed by petitioner Calvin Jerold Burdine ("Burdine"). Having considered the motions, the submissions, arguments of counsel, the record and the applicable law, the Court determines that the State's motions should be DENIED and Burdine's motion should be GRANTED IN PART AND DENIED IN PART.

BACKGROUND

This is a capital habeas corpus proceeding in which petitioner Burdine sought relief on a variety of grounds relating to the constitutionality of his murder conviction and sentence of death. Burdine was convicted in Texas state district court in Houston for the death of his former house-mate and companion, W.T. "Dub" Wise ("Wise"). Wise was killed on April 17, 1983, during the course of a robbery committed by Burdine and another, Douglas McCreight.¹ On direct appeal, Burdine's conviction was affirmed by the Texas Court of Criminal Appeals. See Burdine v. Texas, 719 S.W.2d 309 (Tex.Crim.App. 1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987).

Burdine subsequently applied for a writ of habeas corpus in state court. Burdine's first application was denied. Following an evidentiary hearing on the second application, the state trial court determined that the great weight and preponderance of the evidence supported Burdine's contention that his court-appointed attorney, Joe Cannon ("Cannon"), "repeatedly dozed and/or actually slept during substantial portions of [Burdine's] capital murder trial."² Ex Parte Burdine, Cause No. 37944-B (183rd Dist.Ct. Harris County, Texas, April 3, 1995). The trial court therefore recommended that habeas relief be granted. See id.

The Texas Court of Criminal Appeals agreed that "the trial court's findings of fact are supported by the record." Ex Parte Burdine, Writ No. 16,725-06 (Tex. Crim.App. April 6, 1995). However, over the dissent of three judges, the court held in a one-page, unsigned opinion that Burdine was "not entitled to relief because he failed to discharge his burden of proof under Strickland v. Washington, [466] U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." Id.

Burdine then sought habeas relief in federal court under 28 U.S.C. § 2254. On September 29, 1999, this Court granted Burdine's application, holding, inter alia, that "[a] sleeping counsel is equivalent to no counsel at all." Burdine v. Johnson, 66 F.Supp.2d 854, 866 (S.D.Tex.1999) (referred to hereinafter as "the Order"). The Court specifically decreed: "[I]t is ORDERED that the State of Texas SHALL EITHER RETRY OR RELEASE Burdine within 120 days of the date of the entry of this order." Id. at 867.

The State timely perfected an appeal from the Order to the United States Court of Appeals for the Fifth Circuit. This action, however, did not automatically stay the Order or relieve the State of its obligation to comply with the Order. See Fed.R.App.P. 8 & 23; United States ex rel. Barnwell v. Rundle, 461 F.2d 768 (3d Cir. 1972). Nor did the State seek a stay of the Order within the 120-day period pursuant to Federal Rule of Appellate Procedure 8 and Federal Rule of Civil Procedure 62. Absent such a stay from either the district court or the court of appeals, the State was required to comply with the Order by either retrying Burdine, or releasing him from prison, within 120 days.

The 120-day window for complying with the Order expired on January 27, 2000. The State did not initiate new trial proceedings, and did not release Burdine, within the prescribed period. The State finally requested a stay of the Order on February 10, 2000. On February 11, 2000, the Court ordered the Office of the Texas Attorney General to show cause why it should not be held in contempt for violating the Court's September 29, 1999 order. The State was further ordered to show cause why Burdine should not immediately be released from custody. A hearing was held on February 14, 2000 with all counsel of record present.

In this case of first impression in the Fifth Circuit, this Court must now decide the ramifications of the State's failure to comply with the Order. The State urges the Court to refrain from imposing sanctions for contempt. The State further requests that the Court grant the State's untimely motion to stay the September 29, 1999 order, or invoke Federal Rule of Civil Procedure 60(b), which allows the Court, under certain circumstances, to excuse a party's "mistake" or "neglect" and relieve it from the obligations imposed by an order. Burdine responds that the State should be held accountable for its noncompliance with the Order, and asks the Court to order his immediate and unconditional release.

ANALYSIS

Initially, the Court takes note of its inherent authority to hold the State in contempt for its noncompliance with the September 29, 1999 order. "The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts and, consequently, to the due administration of justice." Chilcutt v. United States, 4 F.3d 1313, 1327 n. 38 (5th Cir.1993) (quoting Ex parte Robinson, 86 U.S. (19 Wall.) 505, 22 L.Ed. 205 (1873)), cert. denied sub nom. Means v. Wortham, 513 U.S. 979, 115 S.Ct. 460, 130 L.Ed.2d 367 (1994). "A party commits contempt when he violates a definite and specific order of the court requiring him to perform or refrain from performing a particular act or acts with knowledge of the court's order." Piggly Wiggly Clarksville, Inc. v. Mrs. Baird's Bakeries, 177 F.3d 380, 382 (5th Cir.1999). Here, the State concedes that it violated the September 29, 1999 order.

A federal court may elect to address a violation of its order as civil contempt, criminal contempt, or both. See United States v. Hilburn, 625 F.2d 1177, 1179 (5th Cir.1980). In general, whether a contempt is civil or criminal turns on the character and purpose of the sanction imposed. International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 827-28, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). The Supreme Court has explained that "a contempt sanction is considered civil if it is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Id.

In a civil contempt proceeding, the contemnor's good faith, or the fact that the violation was unintentional, is not a defense. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 93 L.Ed. 599 (1949); see also Waffenschmidt v. MacKay, 763 F.2d 711, 726 (5th Cir. 1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 794, 88 L.Ed.2d 771 (1986). This is because civil contempt sanctions are not imposed to punish the contemnor, but rather to compel compliance with a court order or "compensate a party who has suffered unnecessary injuries or costs because of contemptuous conduct." Travelhost, Inc. v. Blandford, 68 F.3d 958, 961-62 (5th Cir. 1995). The sanctions "are to be adapted to the particular circumstances of each case." N.L.R.B. v. Trailways, Inc., 729 F.2d 1013, 1023 (5th Cir.1984); see generally 11A Charles A. Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 2960 (1995).

Burdine asks this Court to fashion a contempt sanction that will remedy the harm caused by the State's failure to comply with the Order of this Court. Burdine has suggested several contempt penalties, including an order requiring the State to release Burdine from custody immediately and permanently, without the possibility of a retrial on the underlying charge.

The State urges the Court to deny all such relief. The essence of the State's argument is that the Court should decline to hold the State accountable for the mistakes of its attorneys. Instead, the State argues, the Court should relieve the State from the consequences of those mistakes by granting the State's untimely motion to stay the Order or granting it relief from the Order pursuant to Federal Rule of Civil Procedure 60(b). However, the State's argument fails to address the specific conditional language of this Court's Order or the nature and purpose of the writ of habeas corpus.

"[I]n a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release." Fay v. Noia, 372 U.S. 391, 402, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), overruled on other grounds by Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Smith v. Lucas, 9 F.3d 359, 366 (5th Cir.1993). This fundamental canon of a free society has long been embodied in the writ of habeas corpus, "the most celebrated writ in the English law." 3 Blackstone Commentaries 129, quoted in Fay, 372 U.S. at 400, 83 S.Ct. 822. The writ is "antecedent to statute, and throwing its root deep into the genius of our common law.... It is perhaps the most important writ known to the constitutional law of England, affording as it does...