Ex parte Perez

• Decision Date: 08 May 2013
• Docket Number: No. AP–76800.,AP–76800.
• Citation: 398 S.W.3d 206
• Parties: Ex Parte Alberto Giron PEREZ, Applicant.
• Court: Texas Court of Criminal Appeals

398 S.W.3d 206

Ex Parte Alberto Giron PEREZ, Applicant.

No. AP–76800.

Court of Criminal Appeals of Texas.

May 8, 2013.

Earl Griffin Jr., Attorney at Law, Childress, TX, for Appellant.

John R. Messinger, Assistant State Prosecuting Attorney, Austin, TX, Lisa C. McMinn, State's Attorney, Austin, for The State.

OPINION

ALCALA, J., delivered the opinion of the Court in which KELLER, P.J., PRICE, WOMACK, KEASLER, HERVEY, and COCHRAN, JJ., joined.

In this case, we alter the parameters of the equitable doctrine of laches as it applies to bar a long-delayed application for a writ of habeas corpus. Recognizing that our current approach to laches in the habeas corpus context has imposed an unreasonably heavy burden upon the State, we now adopt a revised approach that is consistent with the Texas common-law definition of that doctrine. In doing so, we expand the definition of prejudice under the existing laches standard to incorporate all forms of prejudice so that a court may consider the totality of the circumstances in deciding whether to hold an application barred by laches. Our revised approach is motivated by our recognition that the current laches standard is too rigid and, as a result, some applicants have been permitted to seek post-conviction relief despite excessive and unjustified delays that have prejudiced the State's ability to defend long-standing convictions. This approach has failed to account for the State's interest in finality and is incompatible with fundamental principles of fairness and equity, which must underlie any grant of habeas corpus relief. In light of our revised approach to the doctrine of laches, we remand this case to the trial court to give both Alberto Giron Perez, applicant, and the State an opportunity to present additional evidence.

I. Background and Procedural History

Applicant was found guilty of murder, and his conviction was affirmed by the court of appeals in 1992. Perez v. State, No. 07–91–00225–CR (Tex.App.–Amarillo Oct. 9, 1992, no pet.). In 2011, almost twenty years later, applicant filed this application for post-conviction relief pursuant to Texas Code of Criminal Procedure Article 11.07. SeeTex.Code Crim. Proc. art. 11.07. Applicant contends that he was denied the opportunity to pursue discretionary review in this Court because his appellate counsel failed to notify him of his conviction's affirmance in the court of appeals until June 1993, by which time the deadline for filing a petition for discretionary review (PDR) had passed.¹ Applicant further contends that appellate counsel's failure to timely notify him of his conviction's affirmance constituted ineffective assistance of counsel and that he should now be afforded the opportunity to file an out-of-time PDR. In response, the State invokes the equitable doctrine of laches and urges that applicant be barred from proceeding with his application for post-conviction relief.

The trial court's findings, which are supported by the record, show that appellate counsel did not provide applicant with notice of the court of appeals's opinion until after the deadline for filing a PDR, and that applicant had the information necessary to seek an out-of-time PDR as early as 1993 but failed to do so until almost two decades later. The trial court concluded that applicant failed to show that, absent counsel's conduct, he would have timely filed a PDR.

On the issue of laches, the trial court found that the State would be prejudiced in its ability to retry applicant if he were awarded a new trial through habeas corpus relief. This finding addressed the State's contention that it has been prejudiced as a result of applicant's filing delay “because of the passage of time as well as its inability to locate the murder weapon, key eyewitnesses to the shooting and its reasonable expectation that the faded memories of the witnesses will hamper the State's ability to present a case.” The State further noted that the lead investigator in the case was retired and elderly.

The trial court also found that the State is prejudiced in its ability to respond to the application based on appellate counsel's “hazy memory of the events” related to the PDR. The trial court's finding was based on an affidavit from appellate counsel, in which he stated that, aside from his failure to timely communicate the conviction's affirmance, he had “little independent memory of the events described in applicant's writ” and had retained no records pertaining to his representation of applicant. Based on his “custom and practice,” counsel stated that he would have informed applicant that he was entitled to “a first appeal as a matter of right, that a second appeal was not a matter of right and that [counsel] would not file a meritless PDR, though [applicant] could.” Counsel further stated that it was his “usual practice and routine” to timely forward a copy of the court of appeals's opinion to defendants, and that he did “not remember” why applicant did not receive a copy of the opinion or timely notice of the conviction's affirmance.

This Court ordered briefing on the issue of whether laches could be the basis to deny applicant the opportunity to file an out-of-time PDR based on the State's claim of prejudice to its ability to retry him.²See Ex parte Perez, No. AP–76,800, 2012 WL 1882234, at *1 (Tex.Crim.App.2012) (not designated for publication). Applicant argues that this Court, in keeping with its current approach, should find a habeas application barred by laches only if the State demonstrates, among other things, precisely how an applicant's delayed filing has caused the State to be unable to respond to the allegations raised in the application. Applicant urges that the State's assertion of prejudice to its ability to re-try applicant is irrelevant to the laches inquiry and should be disregarded. The State responds by arguing that this Court should revise its current approach to laches to permit consideration of prejudice to the State's ability to retry an applicant, and further urges this Court to apply a rebuttable presumption of prejudice when an applicant's conviction is more than five years old. Although we decline to adopt a rebuttable presumption of prejudice to the State after a specified period of time, we agree with the State that the current approach to laches should be revised to afford courts greater latitude to weigh all equitable considerations in a particular case.

II. Application of Laches in the Post–Conviction Context

A. This Court Has Previously Applied Federal Standard In Analyzing Laches

In Ex parte Carrio, this Court determined that the doctrine of laches was appropriate for application in the habeas corpus context. 992 S.W.2d 486, 487–88 (Tex.Crim.App.1999) (“[T]he 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 common-law doctrine of laches is defined as

neglect to assert right or claim which, taken together with lapse of time and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity. Also, it is the neglect for an unreasonable and unexplained length of time under circumstances permitting diligence, to do what in law, should have been done.

Id. at 487 n. 2 (citing BLACK'S LAW DICTIONARY 875 (6th ed.1990)). ³

In Carrio, we reasoned that laches could be the basis for denial of habeas relief even in the absence of an applicable statute or rule because “laches is an equitable common-law doctrine,” and habeas corpus is an equitable remedy. See id. at 488;Ex parte Gaither, 387 S.W.3d 643, 648 (Tex.Crim.App.2012); Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex.1998) (when claim “is equitable in nature, laches may be raised as a defense to its prosecution”). We found it appropriate to apply laches in the post-conviction context because “equity aids the vigilant and not those who slumber on their rights.” See Carrio, 992 S.W.2d at 487 n. 2 (internal quotations omitted). We noted that, “when [ ] claims are asserted after the passage of many years, attorneys for the defendant and the state have difficulty ascertaining the facts.” Id. at 487 (citing Advisory Committee Notes, former Rule 9(a) of the Rules Governing 28 U.S.C. § 2254 Cases). We further reasoned that it would be inequitable to permit long-delayed claims to proceed because “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.” Id. at 487–88.

In holding that we would employ laches to evaluate post-conviction writs of habeas corpus, we cited favorably to the federal courts' application of laches to federal petitions for habeas corpus. See id. at 487–88. We explained that federal courts “have long recognized” laches in “evaluating post-conviction writs” and have “codified that doctrine in Rule 9(a) of the Rules Governing 28 U.S.C. § 2254 Cases.” See id.; former Rule 9(a) foll. 28 U.S.C. § 2254 (West 1994); Walters v. Scott, 21 F.3d 683, 686 (5th Cir.1994) (interpreting federal Rule 9(a)); Strahan v. Blackburn, 750 F.2d 438, 441 (5th Cir.1985) (same). Rule 9(a) was a statutory rule of laches that provided for dismissal of a federal petition for a writ of habeas corpus “if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition....” ⁴

The federal laches standard was rooted in the common-law doctrine of laches, but contained several important differences. Under the Fifth Circuit interpretation of Federal Rule 9(a), to invoke laches in response to a habeas petition, a state was required 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...