Escobedo v. Estelle

• Decision Date: 06 July 1981
• Docket Number: No. 80-1500,80-1500
• Citation: 650 F.2d 70
• Parties: Ronnie ESCOBEDO, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Respondent-Appellee. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 70

650 F.2d 70

Ronnie ESCOBEDO, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Respondent-Appellee.

No. 80-1500

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

July 6, 1981.

Rehearing Granted Sept. 8, 1981.

See 655 F.2d 613.

Ronnie Escobedo, pro se.

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

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

Before GEE, RUBIN and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

The court below dismissed without prejudice Petitioner-Appellant Ronnie Escobedo's petition for habeas corpus, brought under 28 U.S.C. § 2254 (1976), for failure to exhaust state remedies. For the reasons set forth below, we reverse and remand.

I. FACTUAL BACKGROUND LEADING TO THIS APPEAL

In June 1970, Escobedo pleaded guilty in a Texas district court to charges of felony theft; he was sentenced to four years in prison. Escobedo did not appeal, and has served the four-year sentence in full. In October 1977, Escobedo was convicted of burglary after a jury trial in another Texas district court. In part upon the basis of the 1970 conviction, he was given an enhanced sentence of life in prison for the 1977 conviction. Escobedo has appealed the 1977 conviction to the Texas Court of Criminal Appeals, but that court apparently has not yet ruled on that direct appeal. ¹

Shortly after his conviction in 1977, Escobedo filed a petition for habeas corpus in the Texas courts pursuant to Tex.Code Crim.Pro.Ann. art. 11.07, § 2 (Vernon 1977 & 1980 Supp.), in which he collaterally attacked the 1970 conviction on grounds that his guilty plea was unknowing and involuntary because it was made without effective assistance of counsel. This petition was denied without opinion by the Texas Court of Criminal Appeals in May 1978.

In August 1978, Escobedo filed this action under 28 U.S.C. § 2254 (1976) in federal district court, collaterally attacking through federal habeas corpus his 1970 conviction on the same grounds he had urged in his state habeas petition. ² Under federal law governing habeas corpus, this attack on his 1970 conviction is not made moot by the fact that Escobedo has completed his four-year sentence, for it cannot be shown "that there is no possibility that any collateral legal consequences will be imposed (on Escobedo) on the basis of the challenged conviction." Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968). Escobedo " 'has a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.' " Id. at 58, 88 S.Ct. at 1900 (quoting Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 230, 91 L.Ed. 196 (1946)). ³ The State does not argue to the contrary.

Rather, the State contends here, as it did in the district court, that Escobedo has not exhausted his available state remedies as required by 28 U.S.C. § 2254(b) (1976). ⁴ One ground that Escobedo has urged in his direct appeal from the 1977 conviction (which apparently is still pending in the Texas Court of Criminal Appeals) is that the prosecution used the allegedly void 1970 conviction to enhance to life imprisonment Escobedo's sentence for the 1977 conviction. ⁵ The State argues here that Escobedo's state-court remedies cannot be deemed to have been exhausted unless and until the Texas Court of Criminal Appeals rejects in Escobedo's direct appeal from his 1977 conviction his collateral attack on the 1970 conviction.

The federal magistrate to whom the district court had referred the case agreed with the State's position, and made this recommendation:

While it may be true that the issue raised in this petition has been first presented to the state courts under the post conviction requirements of the law, it would appear that, in the interest of comity, the Court should refrain from determining the merits of the matter until the state courts have rendered a final decision on petitioner's direct appeal. It is clear that the conviction under attack in this action formed an integral part of the conviction and sentence now before the Texas Court of Criminal Appeals, and constitute(s) one of the grounds upon which the petitioner seeks relief (in that court). Thus in the interest of the principles of comity and sound judicial administration, it is recommended that this cause of action be dismissed, without prejudice, for failure to exhaust state remedies.

The district court followed this recommendation, and Escobedo appeals.

II. HAS ESCOBEDO EXHAUSTED HIS AVAILABLE STATE REMEDIES?

The law on exhaustion is well developed and relatively straightforward in this circuit. As we said in Bufalino v. Reno, 613 F.2d 568, 570 (5th Cir. 1980),

(a) state prisoner is ordinarily not able to obtain habeas corpus relief from a federal court unless he has first exhausted the available state remedies. The exhaustion doctrine is grounded on notions of comity; the exhaustion requirement is an accommodation of the federal system to give the state the initial opportunity to decide (and correct if need be) alleged violations of federal constitutional rights. The exhaustion rule does not relate to the jurisdiction of the federal court but rather addresses the appropriate exercise of that jurisdiction in light of our unique American system of dual sovereignty.

Generally speaking, the doctrine requires only that the federal claim have been fairly presented to the highest court of the State, either on direct review of the conviction or in a post-conviction attack. Id. See also Ogle v. Estelle, 592 F.2d 1264, 1267 (5th Cir. 1979); Galtieri v. Wainwright, 582 F.2d 348, 353-54 (5th Cir. 1978) (en banc); and the cases cited in each. "(A) prisoner who has properly raised his federal claim in a collateral state proceeding has exhausted his state remedies and is not required to resort to some other state procedure by which the same issue can be raised or to make successive applications for the same relief in state court." 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4264, at 628 (1978). Further, "whether the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in petitioner's brief in the state court (A) district court commits plain error in assuming that a habeas petitioner must have failed to raise in the state courts a meritorious claim that he is incarcerated in violation of the Constitution if the state appellate court's opinion contains no reference to the claim." Smith v. Digmon, 434 U.S. 332, 333-34, 98 S.Ct. 597, 598-99, 54 L.Ed.2d 582 (1978) (per curiam).

The State contends that Escobedo's state-court habeas petition cannot be deemed to have "fairly presented" to the Texas Court of Criminal Appeals the grounds for his collateral attack on his 1970 conviction, and that Escobedo therefore has not exhausted his state remedies with respect to this claim. The State begins its argument by citing Brown v. Estelle, 530 F.2d 1280 (5th Cir. 1976), and Tooten v. Shevin, 493 F.2d 173 (5th Cir. 1974), cert. denied, 421 U.S. 966, 95 S.Ct. 1957, 44 L.Ed.2d 454 (1975), in support of the proposition that the exhaustion doctrine requires not only that a petitioner have presented his allegations to the state courts, but that he have followed the proper state procedures in so doing. The State then argues that the Texas Court of Criminal Appeals' dismissal of Escobedo's petition was "wholly unrelated to any decision on the merits of (Escobedo's) claim" i. e., that Escobedo's federal claim was not fairly presented to the state court because some procedural rule of state law barred its consideration while Escobedo's direct appeal was pending. The State suggests two such procedural rules.

First, the State contends that the Texas Court of Criminal Appeals may have dismissed Escobedo's habeas petition as moot because he had already served the four-year sentence assessed him for the 1970 conviction. That court did, at one time, dismiss habeas petitions on this ground. E. g., Ex parte Putnam, 456 S.W.2d 916 (Tex.Cr.App.1970); Ex parte Brown, 374 S.W.2d 895 (Tex.Cr.App.1964). More recently, however, the Texas Court of Criminal Appeals has recognized that "because of the serious collateral consequences arising from a felony conviction, the doctrine of mootness does not prohibit a collateral attack by writ of habeas corpus brought after the petitioner has successfully served the sentence for the felony conviction." Ex parte Clark, 588 S.W.2d 898, 899 (Tex.Cr.App.1979). ⁶ It thus appears that the State's first suggestion is ill-founded under Texas law. ⁷

More plausibly, the State argues that the Texas Court of Criminal Appeals' rejection of Escobedo's state-court habeas attack on his 1970 conviction was not based on the merits of that collateral attack, but was instead based on the Texas rule that "habeas corpus may not be used as a substitute for appeal." E. g., Ex parte Powell, 558 S.W.2d 480, 481 (Tex.Cr.App.1977). ⁸ We disagree.

It is true that under Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), a constitutionally invalid prior conviction may not be used to enhance the sentence given for a subsequent conviction. And it is also true that the Texas courts have uniformly allowed defendants to attack collaterally the validity of a prior conviction in the context of a direct appeal from an enhanced sentence imposed for a subsequent conviction. E. g., Walker v. State, 486 S.W.2d 330 (Tex.Cr.App.1972). But the Texas courts have not held that a prior conviction's validity may only be attacked in that context. Rather, the Texas courts have allowed defendants to attack collaterally a prior conviction in a separate state-court habeas action, even after the subsequent conviction and enhanced sentence have been affirmed on...