Dorrough v. Estelle

• Decision Date: 29 July 1974
• Docket Number: No. 73-1881.,73-1881.
• Citation: 497 F.2d 1007
• Parties: Jerry Mack DORROUGH, Petitioner-Appellant, v. W. J. ESTELLE, Director, TDC, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

497 F.2d 1007 (1974)

Jerry Mack DORROUGH, Petitioner-Appellant, v. W. J. ESTELLE, Director, TDC, Respondent-Appellee.

No. 73-1881.

United States Court of Appeals, Fifth Circuit.

July 29, 1974.

David M. Ellis, Dallas, Tex. (Court-appointed), for petitioner-appellant.

Gilbert J. Pena, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Before RIVES, WISDOM and MORGAN, Circuit Judges.

WISDOM, Circuit Judge:

In this appeal from the district court's denial of his petition for a writ of habeas corpus, Jerry Mack Dorrough attacks the constitutionality of article 44.09, Vernon's Tex.Code Crim.Proc.Ann. Dorrough argues that he was denied equal protection of the laws when his direct appeal from a state felony conviction was dismissed upon his escape from confinement, and was not reinstated upon his subsequent recapture. Article 44.09 strips the Court of Criminal Appeals of jurisdiction in pending appeals by convicted felons who escape from custody, but provides for reinstatement under specified conditions, not met by Dorrough. We hold that the Texas statute violates the equal protection clause of the fourteenth amendment.

Dorrough was convicted in a Texas court of bank robbery and sentenced to twenty-five years confinement. He appealed. While his direct appeal was pending, on May 27, 1963, he and his cellmate escaped from prison, commandeering a United States mail truck to make their getaway. Dorrough was recaptured two days later. He is now serving a twenty-five year sentence in a federal penitentiary for the theft of the mail truck. See 18 U.S.C. § 2114.¹ The State of Texas has filed a detainer warrant against Dorrough for the unserved portion of his state sentence. In this action he seeks to void the detainer.²

After Dorrough was recaptured, on motion by the State the Court of Criminal Appeals dismissed his direct appeal in accordance with article 44.09, Tex.Code Crim.Proc.Ann., which provides:

If the defendant, pending an appeal in the felony case, makes his escape from custody, the jurisdiction of the Court of Criminal Appeals shall no longer attach in the case. Upon the fact of such escape being made to appear, the court shall, on motion of the State\'s attorney, dismiss the appeal; but the order dismissing the appeal shall be set aside if it is made to appear that the defendant has voluntarily returned within ten days to the custody of the officer from whom he escaped; and in cases where the punishment inflicted by the jury is death or confinement in an institution operated by the Department of Corrections for life, the court may in its discretion reinstate the appeal if the defendant is recaptured or voluntarily surrenders within thirty days after such escape.

Arguing that the statute violates the equal protection clause of the fourteenth amendment, Dorrough filed an action in the district court against the State of Texas seeking damages and injunctive relief under the Civil Rights Act, 42 U. S.C. § 1983. The case was referred to a United States magistrate, who held that the suit could not be pursued under the Civil Rights Act, but could be maintained as a claim for habeas corpus relief.³ The magistrate substituted the present respondent-appellee for the State of Texas and found that Dorrough was in custody under Braden v. 30th Judicial Circuit Court of Kentucky, 1973, 410 U. S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443, and that state remedies had been exhausted. On the merits, the magistrate found no violation of equal protection and recommended denial of all relief. The district court adopted the magistrate's findings and conclusions and issued an order denying relief.⁴ We reverse.

Equal protection analysis is "two-tiered": under the standard most often employed, a state classification will be upheld if rationally related to a legitimate state purpose; but classifications that are "suspect" or that touch on a "fundamental interest" will be subjected to "strict scrutiny" and struck down unless justified by a compelling state interest. See Shapiro v. Thompson, 394 U.S. 618, 655, 89 S.Ct. 1322, 22 L.Ed.2d 600 (Harlan, J. concurring); Developments in the Law — Equal Protection, 82 Harv.L.Rev. 1065 (1969). The first fork in the well-traveled road of equal protection analysis, therefore, poses the question of the proper standard of review.

Dorrough urges that a strict standard be employed here. Equal access to criminal appeals, he contends, is a fundamental right and as such may be denied only to serve a compelling state interest. In support of this position, Dorrough relies on Griffin v. Illinois, 1956, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, and numerous related cases.⁵ The thrust of this line of decisions is that a state may not discriminate against defendants on account of their poverty in parceling out rights of the accused. Plainly, the cases demonstrate that "once established . . . avenues of appellate review must be kept free of unreasoned distinctions that can only impede open and equal access to the courts", Rinaldi v. Yeager, 1966, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L. Ed.2d 577. The cases do not, however, accord equal access to appellate review the status of a fundamental interest capable of triggering strict scrutiny.⁶

The Supreme Court has recently declared that the determination of what interests are to be considered "fundamental" for purposes of choosing the proper standard or review under the equal protection clause should begin with an examination of substantive constitutional safeguards. Writing for the Court in San Antonio Independent School District v. Rodriguez, 1973, 411 U.S. 1, 33-34, 93 S.Ct. 1278, 1297, 36 L. Ed.2d 16, Justice Powell described the inquiry as whether the interest involved is "explicitly or implicitly guaranteed by the Constitution". Appeals from state criminal convictions are not so favored. It has long been established that the federal Constitution does not require states to provide appellate review: "An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. . . . It is wholly within the discretion of the state to allow or not to allow such a review". McKane v. Durston, 1894, 153 U.S. 684, 687, 14 S.Ct. 913, 915, 38 L.Ed. 867; Griffin v. Illinois, supra, 351 U.S. at 18, 76 S.Ct. 585. Of course, the Constitution requires that when provided appeals must comport with principles of due process and equal protection. Pate v. Holman, 5 Cir. 1965, 341 F.2d 764, 773 n. 10, modified on other grounds, 343 F.2d 546. But the fourteenth amendment protections may not be used to bootstrap the stricter standard of review for equal protection analysis. There are present here none of the substantive constitutional rights found at the heart of those "fundamental interests" that trigger strict scrutiny.⁷

Although in dismissing Dorrough's direct appeal Texas has employed a harsh sanction, the severity of the detriment caused by the classification provides no key to whether the interest infringed is "fundamental". See San Antonio Independent School District v. Rodriguez, supra, 411 U.S. at 33, 93 S.Ct. 1278. Recognizing the importance of the interests concerned, the Supreme Court has nevertheless refused to accord welfare benefits,⁸ housing,⁹ education,¹⁰ and discharge in bankruptcy¹¹ preferred status under the equal protection clause.¹² Faced with a paucity of logical limitations once an interest is declared "fundamental" and the compelling state interest test is brought to bear, the Court has balked.¹³ See Note, New Tenets in Old Houses: Changing Concepts of Equal Protection in Lindsey v. Normet, 58 Va.L.Rev. 930, 941 (1972). Instead of broadening the reach and number of fundamental interests, the Court has found flexibility in the other prong of equal protection analysis, the rational relationship test.

Under "traditional" equal protection analysis, legislative classifications are permitted if they are rationally related to a legitimate state interest. See United States Department of Agriculture v. Moreno, 1973, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782. Commentators have often noted that, at least at one time, this test seemed heavily weighted in favor of upholding the classification.¹⁴ It was a test of "minimal scrutiny". Today, however, whatever it may have been in the past, the rational relationship standard is relatively strict. Recent Supreme Court cases teach that the test calls for a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals.¹⁵

Under the Texas statute Dorrough is a member of a narrow and special class of criminal defendants — those defendants convicted and sentenced to terms of years in felony cases who escape and do not return voluntarily within 10 days. Tex.Code Crim.Proc.Ann. art. 44.09. The statute does not affect the right of appeal of those who escape before trial or sentencing. McGee v. State, Tex.Cr. App.1969, 445 S.W.2d 187, 190. It does not affect escaping nonfelons. And, although it provides for dismissal of appeals of escaping defendants sentenced to death or life terms, it provides more liberally for reinstatement of these appeals.

The appellee argues that the statute treats equally all those within the subject class; that is, all convicted defendants who, like Dorrough, escape from confinement after being sentenced to a term of years and do not voluntarily return within 10 days are treated alike in being deprived of any pending direct appeal. That fact is uncontested. But as the Supreme Court noted in McLaughlin v. Florida, 1964, 379 U.S. 184, 191, 85 S.Ct. 283, 288, 13 L.Ed.2d 222, our inquiry must go further. "Judicial inquiry under the Equal Protection Clause . . . does not end with a showing of equal application among the members of the class defined by the legislation. The courts must reach and...