Carter v. Estelle

• Decision Date: 01 June 1982
• Docket Number: No. 80-1981,80-1981
• Citation: 677 F.2d 427
• Parties: Albert H. CARTER, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 427

677 F.2d 427

Albert H. CARTER, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent-Appellant.

No. 80-1981.

United States Court of Appeals, Fifth Circuit.

June 1, 1982.

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

Arnold Anderson Vickery, Houston, Tex., for petitioner-appellee.

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

Before POLITZ and RANDALL, Circuit Judges, and PARKER ^*, District Judge.

RANDALL, Circuit Judge:

This case involves two questions: (1) whether petitioner Albert H. Carter met the requirements of the exhaustion doctrine before bringing the present federal habeas corpus action and (2) whether his 1974 retrial and conviction for embezzlement violated the double jeopardy clause. The district court below held that state remedies had been exhausted, found for Carter on his substantive claims, and ordered him released. The State of Texas has appealed this decision. We affirm. Our view is that Carter has no available and effective state remedy in the state courts and has met the requirements of exhaustion doctrine. We also agree with the district court's analysis of the double jeopardy issue, which in several ways anticipated our own later decision in Bullard v. Estelle, 665 F.2d 1347 (5th Cir. 1982).

I. The History of this Litigation.

Carter was convicted of perjury in Cause No. 2158 in the Middle District of Georgia in 1962. In 1969, he was convicted of his second felony offense, embezzlement, in the 174th District Court of Harris County, Texas, in Cause No. 137,784. For the 1969 conviction, Carter received a sentence of seven years. During his incarceration for the 1969 conviction, he was indicted and convicted in still another case, Cause No. 178,126, again for embezzlement. This third conviction occurred on September 18, 1972, and on October 24, 1972, he was sentenced to life imprisonment. The 1962 and 1969 convictions were used to enhance Carter's sentence to life, and the life sentence was ordered to run consecutively to his seven-year sentence for the 1969 conviction.

Carter appealed his 1972 conviction to the Texas Court of Criminal Appeals. The Appeals Court reversed his conviction, finding that there was insufficient evidence to establish ownership and control of the money the indictment had charged Carter with embezzling. The case was remanded to the trial court and Carter filed a "Special Plea" claiming that double jeopardy barred his retrial. The trial court did not specifically pass on the "Special Plea", but Carter was subsequently retried and convicted in 1974 on an identical embezzlement charge. Once again, the 1962 and 1969 felony convictions were used to enhance his sentence to life, this sentence to be served consecutively to the seven year sentence he was already serving for the 1969 conviction.

Carter did not appeal his 1974 conviction. On December 3, 1974, he filed a habeas petition, Cause No. 74-H-1603, attacking the conviction in federal court. After four different amendments by Carter, this petition eventually raised claims attacking the 1974, 1969, and 1962 convictions. ¹

In 1978, the Supreme Court decided 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, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), and held that the double jeopardy clause precludes a second trial of a defendant when a prior conviction has been reversed by an appellate court for insufficiency of the evidence. This was substantially the same theory which Carter had argued four years previously in his 1974 "Special Plea" requesting that he not be retried for embezzlement. Thus, on July 19, 1978, a month after Burks and Greene were decided, Carter filed a fifth amendment to his habeas petition in No. 74-H-1603, alleging for the first time in his various habeas petitions that the double jeopardy clause invalidated his 1974 conviction.

The State of Texas moved to dismiss No. 74-H-1603, alleging Carter's failure to exhaust state remedies. The State argued that because this newest theory was never raised before in a state habeas petition or on appeal of the 1974 conviction, Carter had not exhausted the remedies available to him. Relying on this circuit's en banc decision in Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978), the State argued that No. 74-H-1603 was at best a "mixed" petition consisting of both exhausted and unexhausted claims, and, under Galtieri, the entire petition should be dismissed without prejudice. United States Magistrate Ronald J. Blask, in a memorandum and recommendation signed August 18, 1978, recommended that the motion to dismiss be granted. On August 21, 1978, District Judge Finis E. Cowan adopted the recommendation and dismissed No. 74-H-1603 for failure to exhaust state remedies.

At this point events took a complicated and unusual turn. On August 31, 1978, Carter filed a motion for reconsideration of the court's decision, requesting that the dismissal order be vacated. Carter argued that his petition in No. 74-H-1603 attacked both his 1969 embezzlement conviction and his 1974 embezzlement conviction. He claimed 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 No. 74-H-1603 in its entirety would prevent him from obtaining any federal habeas corpus review of his 1969 conviction. Carter had filed No. 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 No. 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, Carter 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 had been dismissed for failure to exhaust state remedies. If justice was to be done, Carter insisted, No. 74-H-1603 could not be dismissed in its entirety.

The matter was once again referred to Magistrate Blask, who issued a second memorandum and recommendation. In this second memorandum, dated January 9, 1979, the magistrate characterized No. 74-H-1603 as a mixed petition with the 1969 claims exhausted and the 1974 claims only partially exhausted. The magistrate then 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... (I)n 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 and splitting No. 74-H-1603 into two actions.

Carter did not wait for the February 8 severance by the district court. Instead, after the August 21 order dismissing the case, he filed a second state habeas challenge to his 1974 conviction in state court, No. 178,126-B, on September 21, 1978, in the 185th District Court of Harris County, Texas. ² The district court dismissed, finding it had no jurisdiction. On January 10, 1979, the Texas Court of Criminal Appeals dismissed, explaining:

In this Court, Carter argues that the order entered by the trial court was incorrect; and, that because of a recent amendment to Article 11.07, Vernon's Ann.C.C.P., the trial court erroneously concluded that it did not have jurisdiction of this proceeding. We need not reach Carter's contentions, however, because he admits under oath that he is presently challenging the validity of his conviction in Cause Number 178,126, by federal habeas corpus proceedings. Out of deference to the federal courts, we will not exercise our habeas corpus jurisdiction until Carter's attack on the validity of his conviction in Cause Number 178,126, has been finally concluded in the federal courts.

Therefore, the instant proceeding is dismissed without prejudice to Carter's reapplying to the trial court for habeas corpus relief pursuant to Article 11.07, s...