Ex parte Carrio

• Decision Date: 26 May 1999
• Docket Number: 73180
• Citation: 992 S.W.2d 486
• Parties: IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. 73,180 and 73,181 EX PARTE NORMAN EDWARD CARRIO, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM HARRIS COUNTY Price, J. delivered the opinion of the court in which McCormick, P.J., Mansfield, Keller, Holland, Johnson, and Keasler, J.J. joined. Meyers, J. delivered a dissenting opinion in which Womack, J. joined. O P I N I O N This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of murder and attempted murder. Punishment was assessed at sixty years and twenty years, respectively, in the Texas Department of Criminal Justice, Institutional Division. Applicant's convictions were affirmed on direct appeal. Carrio v. State,(Tex. App.--Houston , delivered
• Court: Texas Court of Criminal Appeals

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 73,180 and 73,181

EX PARTE NORMAN EDWARD CARRIO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM HARRIS COUNTY

Price, J. delivered the opinion of the court in which McCormick, P.J., Mansfield, Keller, Holland, Johnson, and Keasler, J.J. joined. Meyers, J. delivered a dissenting opinion in which Womack, J. joined.

O P I N I O N

This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of murder and attempted murder. Punishment was assessed at sixty years and twenty years, respectively, in the Texas Department of Criminal Justice, Institutional Division. Applicant's convictions were affirmed on direct appeal. Carrio v. State, Nos. 14-83-334-CR and 14-83-335-CR (Tex. App.--Houston [1st Dist.], delivered July 12, 1984, pets. ref'd).

Applicant contends, inter alia, that his convictions should be set aside as he received ineffective assistance of counsel.1 Specifically, he has raised numerous contentions regarding counsel's alleged failure to investigate, interview witnesses, and prepare for trial.

The trial court has entered findings of fact and conclusions of law, based upon the State's response, stating that due to Applicant's fourteen year delay in waiting to attack the instant convictions, the State's ability to respond has been prejudiced. The trial court recommends relief be denied under the doctrine of laches.2 This Court has never denied relief on a valid claim due to an applicant's delay in bringing the claim. On the contrary, we have held that "we have no desire to impose upon defendants the requirement that claims for relief be asserted within a specified period of time." Ex parte Galvan, 770 S.W.2d 822, 824 (Tex. Crim. App. 1989) (citing Ex parte Rocha, 482 S.W.2d 169 (Tex. Crim. App. 1972), and Ex parte Young, 479 S.W.2d 45 (Tex. Crim. App. 1972)).

Nevertheless, we have recognized that delay on the applicant's part will affect his credibility. Young, 479 S.W.2d. at 46.

The federal courts, however, have long recognized the common-law doctrine of laches in evaluating post-conviction writs of habeas corpus, and in fact codified that doctrine in Rule 9(a) of the Rules Governing 2254 Cases. Rule 9(a) provides as follows:

A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.

In the Advisory Committee Note following this Rule, the commentators state that the grounds of error most susceptible to dismissal under Rule 9(a) are ineffective assistance of counsel, denial of right to appeal, involuntary guilty plea, use of coerced confession, and illegally constituted jury. The commentators reason that, when these claims are asserted after the passage of many years, attorneys for the defendant and the state have difficulty in ascertaining the facts. The commentators further reason that often the defense attorney has little or no recollection as to what took place and many of the participants in the trial are dead or their whereabouts unknown. Further, the court reporter's notes may have been lost or destroyed, thus eliminating any exact record of what transpired.

Finally, the commentators note that Rule 9(a) is not a statute of limitations but instead is based on the equitable doctrine of laches. Further, the language of the Rule is permissive rather than mandatory; "[T]his clearly allows the court which is considering the petition to use discretion in assessing the equities of the particular situation."

The Fifth Circuit has acknowledged that the application of Rule 9(a) "must be carefully limited to avoid abrogating the purpose of the writ of habeas corpus." Walters v. Scott, 21 F.3d 683, 686 (5th Cir. 1994). It is the burden of the State "to (1) make a particularized showing of prejudice, (2) show that the prejudice was caused by the petitioner having filed a late petition, and (3) show that the petitioner has not acted with reasonable diligence as a matter of law." Id. at 686-87 (emphasis in original). The court explained that the type of prejudice the State must show is prejudice in its ability to respond to the allegations in the petition. Id. at 687.

If the State makes its showing of these elements, it is then the burden of the petitioner, in federal court, to show either that the state actually has not been prejudiced or that the petitioner's delay is justified under the rule. Walters, 21 F.3d at 687. Significantly, "delay alone is no bar to federal habeas relief . . . In order to prevail on a laches claim respondent must make a particularized showing of prejudice." Strahan v. Blackburn, 750 F.2d 438, 441 (5th Cir. 1985) (citing McDonnell v. Estelle, 666 F.2d 246, 251 (5th Cir. 1982)).

We agree with the State that the doctrine of laches is a theory which we may, and should, employ in our determination of whether to grant relief in any given 11.07 case. The fact that Texas has no statute or rule comparable with Rule 9(a) is notable but not ultimately prohibitive, since laches is an equitable common-law doctrine. We now address the State's laches argument. Applicant was convicted in 1983, and he filed this writ application in the trial court on November 4, 1997. Thus, the trial court's findings are correct that Applicant has delayed some fourteen years in presenting his claims.

The State makes a general argument that Applicant's delay alone in raising his grounds for relief has prejudiced its ability to respond to the current claims. However, as in the fifth circuit, the length of delay alone will not constitute either unreasonableness of delay or prejudice.3 Id. at 443.

Neither the State, nor the Applicant, had the benefit of the instant opinion. Therefore, we do not believe the issue of laches has been properly presented by the parties and this Court still lacks sufficient information upon which to evaluate Applicant's claims of ineffective assistance of counsel or the State's claim of laches.

Since Applicant has stated facts requiring resolution and since this Court cannot hear evidence, it is necessary for the matter to be returned to the trial court for resolution of those issues. The trial court may resolve those issues as set out in Article 11.07 3 (d), V.A.C.C.P., in that it may order affidavits from counsel, depositions, interrogatories, or a hearing. In the appropriate case the trial court may rely on personal recollection. If the trial court elects to hold a hearing, either by a magistrate as set out in Article 11.07, 3 (d), or in person, it shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent, and the Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Article 26.04, V.A.C.C.P., appoint an attorney to represent him at the hearing. The trial court should then make findings of fact as to the issue of ineffective assistance of counsel, should it find that the doctrine of laches, as set out in this opinion, does not apply. The trial court should also make any further findings of fact and conclusions of law which it deems relevant and appropriate to the disposition of Applicant's application for habeas corpus relief.

Since this Court does not hear evidence, Ex parte Rodriguez, 169 Tex.Cr.R. 367, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this opinion. The trial court shall resolve the issues presented within ninety days of the date of this opinion.4 A supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held along with the trial court's findings of fact and conclusions of law shall be returned to this Court within one hundred twenty days of the date of this opinion.5

Price, J.

MEYERS, J., delivered this dissenting opinion in which WOMACK, J., joined.

DISSENTING OPINION

In granting this Court the power to issue writs of habeas corpus, the Texas Constitution specifically makes such power subject to regulation under the law:

Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus . . ..

TEX. CONST. art. V, 5 (emphasis added). In a separate provision, the Legislature was granted the power to enact laws affecting the speed and effectiveness of the writ of habeas corpus:

The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.

TEX. CONST. art. I, 12 (emphasis added). This constitutional provision led this Court, ten years ago, to decline to impose any kind of time requirement for asserting habeas corpus claims:

Almost six years have passed since the applicant was convicted in this case and he has never complained previously that he was denied an appeal. This Court has consistently and properly held that we have no desire to impose upon defendants the requirement that claims for relief be asserted within a specified period of time. [citations omitted] Such a rule would be arbitrary and probably unconstitutional. Art. I, 12, Tex. Const.

Ex parte Galvan, 770 S.W.2d 822, 824 (Tex. Crim. App. 1989).

While imposition of a rule like that fashioned by the majority today was viewed then as "arbitrary and probably unconstitutional," the majority now considers such rule to be "a theory which we may, and should, employ in . . . any given 11.07 case." Majority op. at 4. No serious attempt is made to explain why we now view laches as...