Carter v. Estelle

• Decision Date: 17 July 1980
• Docket Number: Civ. A. No. H-80-433.
• Citation: 499 F. Supp. 777
• Parties: Albert H. CARTER, Petitioner, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Texas

499 F. Supp. 777

Albert H. CARTER, Petitioner, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent.

Civ. A. No. H-80-433.

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

July 17, 1980.

Arnold Anderson Vickery, Wendy Thomas Kendall, Houston, Tex., for petitioner.

Douglas M. Becker, Asst. Atty. Gen., Austin, Tex., for respondent.

MEMORANDUM AND ORDER

McDONALD, District Judge.

On June 13, 1980, the Court heard argument on the respondent's Motion to Dismiss for Failure to Exhaust State Remedies, the petitioner's Motion for Summary Judgment, and the petitioner's Motion for Bail. At the conclusion of the argument, the Court orally denied the respondent's motion to dismiss, granted summary judgment to the petitioner, and denied the motion for bail as moot. It indicated that a written order, outlining the reasons for the actions taken, would be forthcoming. This is that order.

INTRODUCTION

The petitioner was convicted of embezzlement on September 21, 1972, in Cause No. 178,126 in the 185th Judicial District Court of Harris County, Texas. After the jury found him guilty, evidence was submitted indicating that the petitioner had been convicted of perjury in 1962 in the United States District Court for the Middle District of Georgia and of embezzlement in 1969 in Cause No. 127,784 in the 174th District Court of Harris County, Texas. Pursuant to the Texas Recidivist Act, Tex.Penal Code Ann. art. 63 now § 12.42(d), he was given a mandatory life sentence. The petitioner appealed and, on June 5, 1974, the Texas Court of Criminal Appeals reversed. The conviction, the Court of Criminal Appeals held, had been based on insufficient evidence. Carter v. State, 510 S.W.2d 323 (Tex.Cr.App.1974). Five months later, in November, 1974, the petitioner was retried for the same offense. Although he filed a "Special Plea" in the district court, pursuant to Tex.Crim.Pro.Code Ann. art. 27.05, urging that his retrial was barred because of former jeopardy, that action was to no avail. He was reconvicted and sentenced, once again, to life imprisonment. Nearly four years later, in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 24, 98 S.Ct. 2151, 2154, 57 L.Ed.2d 15 (1978), the United States Supreme Court, "held that the Double Jeopardy Clause precludes a second trial once a federal or state reviewing court has determined that the evidence introduced at trial was insufficient to sustain the verdict." Arguing that Burks, supra, and Greene, supra, apply retroactively to his 1974 reconviction for embezzlement, the petitioner has moved for summary judgment and release on bail pending a ruling on the merits. The respondent opposes the motions for summary judgment and bail and has moved to dismiss for failure to exhaust state remedies.

EXHAUSTION OF STATE REMEDIES

The motion to dismiss will be dealt with first. The petitioner originally sought habeas corpus relief from this Court on December 3, 1974, in Cause No. 74-H-1603, styled, like the present case, Carter v. Estelle. In that action, he attacked both his 1969 embezzlement conviction, for which he had been sentenced to 7 years imprisonment, and his 1974 embezzlement conviction, for which he had been sentenced to life imprisonment. On July 19, 1978, approximately one month after the Supreme Court issued its decisions in Burks, supra, and Greene, supra, the petitioner filed a supplemental petition in 74-H-1603, asserting for the first time that he was entitled to habeas corpus relief because his 1974 retrial and conviction for embezzlement violated the Double Jeopardy Clause. The respondent moved to dismiss for failure to exhaust state remedies under Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978), because petitioner Carter had not raised this double jeopardy argument in his state habeas corpus petition. United States Magistrate Ronald J. Blask, in a memorandum and recommendation signed August 18, 1978, recommended that the motion to dismiss be granted and, on August 21, 1978, United States District Court Judge Finis E. Cowan dismissed the petitioner's application for failure to exhaust state remedies.

At this point, the case took an unusual procedural turn. On August 31, 1978, the petitioner filed a motion to vacate Judge Cowan's order. Noting that the petition in 74-H-1603 attacked both his 1969 embezzlement conviction and his 1974 embezzlement conviction, the petitioner pointed out that he had fully exhausted his state remedies as to the former and that his double jeopardy claim under Burks, supra, and Greene, supra, applied only to the latter. He argued, moreover, that dismissal of 74-H-1603 in its entirety would prevent him from obtaining any federal habeas corpus review of his 1969 conviction. The petitioner had filed 74-H-1603 on December 3, 1974, some five months before he had fully discharged the seven-year sentence associated with the 1969 conviction. Because of that, federal habeas corpus jurisdiction over 74-H-1603 continued to exist under Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), even after May 17, 1975, when service of the seven-year sentence was completed. It would not, however, the petitioner contended, extend to any federal habeas corpus action filed after May 17, 1975, even if that action had originally been filed in federal court prior to that date and dismissed for failure to exhaust state remedies. If justice was to be done, the petitioner claimed, 74-H-1603 could not be dismissed in its entirety.

Magistrate Blask and Judge Cowan agreed. In a memorandum and recommendation signed January 9, 1979, at 7-8, Magistrate Blask discussed the application of the exhaustion requirement laid out in Galtieri v. Wainwright, supra, to petitioner Carter's case:

The Galtieri rule is premised upon the principle that, "requiring exhaustion of all claims does not `bar the federal courthouse door' to any petitioner." Galtieri v. Wainwright, supra, at 355. Carter's seven year challenge will, in my judgment, be barred if, as the respondent suggests, the entire petition should be dismissed. Furthermore, ... this petition raises the problem of the appropriate resolution to be made where two distinct convictions arising in two separate state courts in this County are challenged in the same action in federal court. . . In order to avoid the harsh consequences engendered by dismissal of petitioner's viable seven year challenge and yet satisfy the demands of the exhaustion doctrine as to the issues raised in the life sentence case, it is Recommended that the Court's Order and Final Judgment dated August 21, 1978, be modified as follows:

1. This cause of action be severed and designated as C.A. No. 74-H-1603-A, incorporating petitioner's independent challenge to his 1969 seven year embezzlement conviction in Cause No. 137,784 in the 174th Judicial District Court of Harris County, Texas, and C.A. No. 74-H-1603-B, encompassing petitioner's independent challenge to his 1974 life sentence imposed in Cause No. 178,126 in the 185th Judicial District Court of Harris County, Texas;

2. As the Court has previously adopted the Memorandum and Recommendation of the undersigned that the life sentence (C.A. No. 74-H-1603-B) contains both exhausted and unexhausted claims, said action be dismissed, without prejudice, for failure to exhaust all available state remedies as required by law, and

3. Petitioner's seven year challenge (C.A. No. 74-H-1603-A) be retained on the Court's docket awaiting final disposition of the claims raised therein.

On February 8, 1979, Judge Cowan followed this recommendation, adopting Magistrate Blask's Memorandum and Recommendation as his own.

Approximately one month later, on March 9, 1979, the petitioner filed his state habeas corpus petition in the 185th District Court, Harris County, Texas under Cause No. 178,126C, urging primarily the double jeopardy claim. In his petition, he fully explained the United States District Court's handling of his claims in 74-H-1603. A copy of Judge Cowan's Order of February 8, 1979 was attached as an exhibit. The respondent answered on April 30, 1979. On November 14, 1979 the Texas Court of Criminal Appeals, sitting en banc, dismissed the petition without prejudice. Its explanation was as follows:

In his present application, petitioner admits that he has an application for writ of habeas corpus pending in the United States District Court for the Southern District of Texas, Houston Division, in an action styled Albert H. Carter v. W. J. Estelle, Jr., Civil Action No. 74-H-1603.

In Ex Parte Green, 548 S.W.2d 914 (Tex.Cr.App.1977), this Court stated: "A petitioner must decide which forum he will proceed in because this Court will not and the trial court in this state should not consider a petitioner's application so long as the federal courts retain jurisdiction of the same matter. Ex Parte Powers, 487 S.W.2d 101 (Tex.Cr.App.1972)." See also Ex Parte McNeil, 588 S.W.2d 592 (Tex. Cr.App.1979).

Nine days later, the petitioner moved for reconsideration of the order of dismissal. His three-page motion and a letter accompanying it carefully and cogently explained the difference between the action dismissed by the Court of Criminal Appeals and the action pending in federal court. For example, the Motion for Reconsideration of Dismissal Order stated, at 1 (emphasis in original):

This Court dismissed this action without prejudice solely because of a gross misunderstanding by this Court of a single fact. In the second paragraph of its dismissal order, this Court stated that "petitioner admits" that he has a federal habeas corpus action pending. That much is true, but the pending federal action (No. 74-H-1603-A) does not attack petitioner's present conviction (i. e., cause No. 178,126 in the state District Court). Rather, the federal habeas action attacks only Petitioner's prior convictions (including a federal conviction

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