Cantu-Tzin v. Johnson

• Decision Date: 02 December 1998
• Docket Number: P,No. 98-11358,CANTU-TZI,98-11358
• Citation: 162 F.3d 295
• Parties: Andrew Floresetitioner-Appellant, v. Gary JOHNSON, Director Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 295

162 F.3d 295

Andrew Flores CANTU-TZIN, Petitioner-Appellant, v. Gary JOHNSON, Director Texas Department of Criminal Justice Institutional Division, Respondent-Appellee.

No. 98-11358.

United States Court of Appeals Fifth Circuit.

Dec. 2, 1998.

Allen Richard Ellis, Mill Valley, CA, Mandy Welch, Texas Defender Service, Houston, TX, for Petitioner-Appellant.

Delane T. Hendrix, Austin, TX, for Respondent-Appellee.

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

Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Cantu is scheduled for execution by the State of Texas on December 3, 1998, for the June, 1990 murder-for-hire of three members of an Abilene family. He has filed neither state nor federal habeas petitions seeking to vacate his capital murder conviction. Instead, he filed in the federal district court only a motion to stay execution and for appointment of counsel, and those requests were initiated after his right to obtain federal relief has facially prescribed.

Cantu has moved this court for a stay of execution and appointment of counsel on appeal. We granted the motion for appointment of counsel on appeal, as the sole issue with which counsel is here concerned is the applicability of the statutory time bar. ¹

Cantu's petition for federal habeas relief indisputably falls outside the one-year limit prescribed by Congress in the Antiterrorism and Effective Death Penalty Act ("AEDPA") in order to bring regularity and finality to federal habeas proceedings. Cantu does not contest that his petition is facially untimely. Instead, he argues that the district court erred by failing to appoint him counsel under 21 U.S.C. § 848(q)(4)(B) and that it further erred in ruling on the limitations issues without allowing Cantu an opportunity to respond and without appointing counsel. Three questions are raised by Cantu's position: (1) whether the McFarland case requires appointment of counsel for a death-row prisoner whose petition is time-barred by AEDPA; ² (2) whether, under a narrow reading of McFarland, § 848(q)(4)(B) counseled appointment of counsel at least concerning the possibility of equitable tolling of the statute of limitations; and (3) whether, given the undisputed facts surrounding the progress of Cantu's case in state and federal courts, no ground for equitable tolling or for a stay of execution exists.

Our conclusions may be succinctly stated. First, neither McFarland nor § 848(q)(4)(B) requires appointment of counsel for the wholly futile enterprise of addressing the merits of a time-barred habeas petition. Second, the court may appoint counsel to represent a death-row inmate for purposes of litigating

the applicability of the limitations bar only, with sufficient time constraints to maintain the integrity of the limitation period. Third, where, as in this case, the facts that might be relevant to equitable tolling of limitations are undisputed and are wholly unfavorable to the petitioner, the court may deny a stay. We therefore deny the stay of execution.

BACKGROUND

Cantu is no stranger to self-representation. He dismissed his court-appointed attorney and represented himself on direct appeal to the Texas Court of Criminal Appeals. ³ His direct appeals terminated with the denial of certiorari by the Supreme Court in February, 1995. See Cantu v. Texas, 513 U.S. 1171, 115 S.Ct. 1145, 130 L.Ed.2d 1104.

Cantu never filed a petition for state habeas relief. Rather, after eluding the first execution date, ⁴ he sought appointment of counsel in the state court system. His first attorney was forced to withdraw because of a conflict of interest, but his second attorney cited "irreconcilable differences" with Cantu and was permitted to withdraw. Cantu requested discharge of Ingalsbe, his third court-appointed attorney, because Cantu thought for various reasons that Ingalsbe was not representing him effectively. A state court hearing was held in August 1997 in response to Cantu's self-styled "Motion for the Dismissal of State Habeas Counsel and for Self-Representation." The state trial court found that Cantu preferred to proceed pro se if his only choices were to continue to be represented by Ingalsbe or by any other attorney from Abilene; that Cantu did not want to be represented by Ingalsbe or any other attorney from Abilene; that Cantu was capable of representing himself in a post-conviction proceeding; and that Cantu knowingly and voluntarily waived the right to counsel if his only other choices were to be represented by Ingalsbe or another Abilene attorney. These findings, referred to the Texas Court of Criminal Appeals, resulted in an order discharging Ingalsbe on September 3, 1997, and permitting Cantu to proceed pro se.

After the September 3, 1997 order, Cantu and a would-be habeas attorney filed motions requesting the Texas Court of Criminal Appeals to reconsider appointment of counsel, but their motions were denied on November 19, 1997. Cantu then did nothing.

On October 14, 1998, more than a year after Cantu had been instructed to proceed pro se, the state convicting court set his execution date for December 3, 1998. Cantu filed a motion for appointment of counsel and stay of execution in the federal district court on November 3, 1998. Relying on McFarland, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666, Cantu asserted his right to counsel in advance of filing a habeas petition on the merits. The state responded by urging application of AEDPA's one-year limitation on federal habeas petitions, 28 U.S.C. § 2244(d)(1), and the consequent inapplicability of McFarland. The state did not, however, contest the appointment of counsel solely for the purpose of representing Cantu in the resolution of the statute of limitations issue.

On November 14, 1998, the district court entered an order finding that Cantu "engaged in dilatory tactics which allowed the one-year limitations period established by the Anti-Terrorism and Effective Death Penalty Act to expire." Cantu v. Johnson, No. 98-CV-236-c (N.D.Tex. Nov. 14, 1998) (order denying appointment of counsel and stay of execution). The court further concluded that Cantu had " 'flout[ed] the available processes' with his inaction and dilatory tactics." Id., quoting McFarland, 512 U.S. at 858, 114 S.Ct. at 2573. On this basis, the court denied the motions for appointment of counsel and for stay of execution, and it denied a certificate of appealability.

DISCUSSION

There can be no doubt that Cantu's attempt to invoke federal habeas jurisdiction is time-barred. The AEDPA, which became effective April 24, 1996, enacted a one-year period of limitation for federal habeas proceedings that runs, unless tolled, from the date on which the petitioner's conviction became final at the conclusion of direct review or during the pendency of a "properly filed application for State post-conviction or other collateral review." § 2244(d)(2). 28 U.S.C. § 2244(d)(1)(A). ⁵ Cantu's judgment became final on February 21, 1995. A strict construction of the statute would have prevented his seeking federal habeas relief after February 21, 1996, two months prior to enactment of the AEDPA. The Fifth Circuit has, however, permitted petitioners a "reasonable time" after enactment of the statute, i.e. until April 24, 1997, to file their habeas applications. See Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir.1998). Further, in "rare and exceptional circumstances," this court has held that the one year limitations period may be equitably tolled. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998), petition for rehearing pending.

In an additional twist favorable to Cantu, the Texas Attorney General's office agreed in a class action settlement to toll the time from request until appointment of state habeas counsel in the Texas Court of Criminal Appeals, for petitioners like Cantu who did not have a state writ of habeas corpus pending on December 2, 1996. Pyles v. Morales, No. 396-CV-2838-D (N.D.Tex. Dec. 2, 1996) (Agreed Order of Dismissal Without Prejudice). A generous reading of the Pyles agreement suggests that Cantu's state proceedings regarding appointment of counsel would not be counted for limitations purposes until the Court of Criminal Appeals ordered Cantu to proceed pro se on September 3, 1997. ⁶ Applying the AEDPA limitations period of one year from that date, it could be determined that Cantu could have filed a timely federal petition for writ of habeas corpus until September 3, 1998.

Instead, from September 3, 1997 until today, Cantu has never filed a petition for habeas relief in either state or federal court. The express AEDPA limitation has clearly expired.

Applying the McFarland decision with full force to this case cannot be correct. In McFarland, the Supreme Court interpreted 28 U.S.C. § 848(q)(4)(B), the statute affording court-appointed counsel to death row habeas petitioners, both to initiate a federal habeas proceeding and to authorize in most instances, the granting of a stay of execution even before a petition on the merits had been filed. McFarland, however, predates AEDPA's passage of a specific habeas limitation period, and even though AEDPA did not expressly modify the death row petitioner's right to counsel, it took the more onerous step of cutting off the availability of any federal court review after the limitation has run. Appointment of counsel for a capital-convicted defendant would be a futile gesture if the petitioner is time-barred from seeking federal habeas relief. Moreover, granting a stay of execution in such circumstances would directly undermine Congress's purpose in passing a statute of limitations.

Indeed, confirmation that a statutory limitations period should be enforced appears in the Supreme Court's later decision in Lonchar v. Thomas, 517 U.S. 314, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996). The tenor of the majority discussion in Lonchar is that ...