Clark v. State of Tex., 85-2232

• Decision Date: 30 April 1986
• Docket Number: No. 85-2232,85-2232
• Citation: 788 F.2d 309
• Parties: Clifton Earl CLARK, Petitioner-Appellant, v. STATE OF TEXAS and O.L. McCotter, Director, Texas Department of Corrections, Respondents-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 309

788 F.2d 309

Clifton Earl CLARK, Petitioner-Appellant, v. STATE OF TEXAS and O.L. McCotter, Director, Texas Department of Corrections, Respondents-Appellees.

No. 85-2232

Summary Calendar.

United States Court of Appeals Fifth Circuit.

April 30, 1986.

Clifton Earl Clark, Angleton, Tex., for petitioner-appellant.

Jim Mattox, Atty. Gen., William C. Zapalac, Asst. Atty. Gen., Austin, Tex., for respondents-appellees.

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

Before CLARK, Chief Judge, WILLIAMS, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Petitioner Clifton Clark was convicted by a Texas jury of aggravated robbery in March, 1980, and was sentenced to life-imprisonment. He brought this federal habeas application, 28 U.S.C. Sec. 2254, to challenge his conviction. He claimed that the evidence was insufficient to support his conviction and that a jury charge was constitutionally defective. The district court, 617 F.Supp. 163, denied the application, dismissing the insufficiency of the evidence claim on procedural grounds and finding no constitutional defect in the jury charge. As we are barred from considering Clark's claims by his procedural default, we affirm.

I

Clark did not directly appeal his conviction. He did, however, raise the issues of the insufficiency of the evidence and the impropriety of the jury charge in an application for state habeas relief. The state court denied the application because of Clark's failure to directly appeal these issues as required by Texas law and because of his abuse of the habeas writ.

The federal district court found that it was barred from considering the merits of Clark's insufficiency of the evidence claim by his procedural default in failing to directly appeal this issue. See Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982) ("when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas corpus relief absent a showing of cause and actual prejudice"). The district court found nothing in the record suggesting a cause for Clark's failure to appeal and therefore did not address the merits of his claim. However, for undisclosed reasons the district court did address the merits of the jury charge claim and found the charge to be constitutional.

II

Under Texas law, both the questions of the sufficiency of the evidence and of the propriety of a jury charge may be raised on direct appeal but not in a habeas proceeding. Ex Parte Coleman, 599 S.W.2d 305, 306-07 (Tex.Cr.App.1979). Clark's failure to appeal these questions therefore constituted a procedural default under state law and was treated as such by the state habeas court.

The Supreme Court has held that the procedural default of a state defendant who fails to comply with the contemporaneous objection rule precludes federal habeas review of the claim absent a showing of cause and prejudice. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). We have held that the...