Ex parte Smith

• Decision Date: 01 October 2014
• Docket Number: 79,465–01.
• Citation: 444 S.W.3d 661
• Parties: Ex Parte Al Letroy SMITH, Applicant.
• Court: Texas Court of Criminal Appeals

444 S.W.3d 661

Ex Parte Al Letroy SMITH, Applicant.

79,465–01.

Court of Criminal Appeals of Texas.

Oct. 1, 2014.

John C. Bennett, Amarillo, for Applicant.

John L. Owen, Asst. Dist. Atty., Amarillo, for the State of Texas.

OPINION

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

Applicant Al Smith waited over ten years to claim in an application for a writ of habeas corpus that his rights to direct appeal and effective assistance of counsel were denied. Although the State did not plead laches in its answer to Smith's application, we hold that a court may consider sua sponte whether laches should bar an applicant's claim. We further hold that the current record supports a sua sponte laches inquiry. Smith's application is remanded to the habeas court to give Smith an opportunity to explain his delay and for the entry of findings of fact and conclusions of law.

I.

In June 2002, a jury found Smith guilty of assault on a public servant, and the judge sentenced him to a term of eight years' confinement to run consecutively with another conviction. Appellate counsel was subsequently appointed, but no appeal was taken. In March 2013, Smith filed an application for a writ of habeas corpus pursuant to Texas Code of Criminal Procedure Article 11.07 alleging that he was denied his rights to appeal and effective assistance of appellate counsel. In April 2013, the State filed its answer generally denying Smith's allegations and further informing the trial court that the State requested a response from appellate counsel it had not yet received. The State's answer did not plead laches or any theory of the case beyond a general denial.

Smith's application was forwarded to this Court without any findings of fact and conclusions of law entered by the habeas judge. We remanded the application to the habeas court to make findings and conclusions as to “whether [Smith] was denied his right to a meaningful appeal because [Smith's] counsel failed to timely file a notice of appeal.”¹ After considering appellate counsel's affidavit, in which he stated that he had no personal recollection of the case and that his file did not contain a notice of appeal, the habeas judge found that appellate counsel failed to invoke the court of appeals' jurisdiction. The judge concluded that Smith received ineffective assistance of appellate counsel and recommended that Smith be permitted to file an out-of-time appeal. The State did not object to the findings or conclusions. On our own motion, we ordered Smith's application be filed and set to determine “whether the State must plead laches for a court to consider it in determining whether to grant equitable relief.”²

II.

We have long acknowledged that the writ of habeas corpus is of common-law origin and governed by common-law equitable principles.³ Indeed, the earliest government of an independent Texas explicitly embraced English common law in this regard: “Every Judge, so nominated and commissioned, shall have jurisdiction over all crimes and misdemeanors recognized and known to the common law of England: he shall have power to grant writs of ‘habeas corpus' in all cases known and practised, to and under the same laws[.]”⁴ This extraordinary and prerogative writ⁵ was so named because, while “it cannot be employed as a substitute for appeal,” “it seeks to relieve the petitioner from a wrongful act by anticipating and superseding the ordinary course of legal procedure.”⁶ At common law, it was “principally applied to remedy defects in the common-law proceedings; and therefore that equity jurisprudence was entertained upon the same ground which now constitutes the principal reason of its interference, viz., that a wrong is done, for which there is no plain, adequate, and complete remedy [at law].”⁷ Without legislation or case law altering the scope of habeas corpus and the relief that may be granted, we fall back on the contours of habeas corpus at common law.⁸ Although the modern writ has been subjected to significant change, it has predominantly been procedural, with the most noticeable exception of precluding merits review of subsequent applications.⁹ On balance, the modern writ of habeas corpus remains true to its ancient origins with its focus on fairness.¹⁰ As we have noted, the Texas Constitution does not “guaranty a right to habeas corpus relief that is broader than that available at common law.”¹¹ It is with this origin in view that we address the issue before us today.¹²

The concept that delay in seeking relief may, in certain instances, adversely affect an applicant's request for habeas corpus relief was first expressed in terms other than a formal recognition of the equitable defense of laches. In Ex parte Young, we stated that, “While we do not desire to make an absolute rule concerning habeas corpus petitioners who do not assert their legal remedies promptly, we nevertheless feel that in some instances, a petitioner's delay in seeking relief can prejudice the credibility of his claim.”¹³ In Young, we noted that Young had waited eight and a half years before complaining that counsel failed to file an appeal on his behalf despite being aware that he had such a right.¹⁴ Our denial of Young's application turned in part on several factors owing to his delay to bring his complaint: the unavailability of the trial record of his eleven-year-old conviction and the inability to fully explore the failure to appeal because of participants' death and the erased memories of others.¹⁵

Our first direct exposition on the laches doctrine's effect on an applicant's request for habeas corpus relief is found in Ex parte Carrio. In addressing the State's pleaded theory of laches, the Carrio Court recognized that an applicant's claim for relief had never before been denied under the laches doctrine and the Court has had no desire to impose upon an applicant a specific time period to assert his claim.¹⁶ We looked to Black's Law Dictionary's definition of “laches”:

The doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It 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.¹⁷

Concluding 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,” this Court in essence adopted the federal approach found in Rule 9(a) of the Rules Governing 28 U.S.C. § 2254 Cases.¹⁸ In effect, Carrio required the State to go beyond what would have been required to raise laches at common law by (1) requiring the State to make a particularized showing of prejudice and (2) limiting the type of prejudice the State may show to prejudice to its ability to respond to the claims raised in an application.¹⁹

Just two terms ago in Ex parte Perez, we abandoned Carrio's embrace of the federal approach in favor of a return to the common law's equitable principles that animate the laches doctrine.²⁰ After Perez, the State is no longer required to make a particularized showing of prejudice, and the definition of prejudice has now expanded to include anything that places the State in a less favorable position, including prejudice to the State's ability to retry a defendant.²¹ The reasons for the restoration were many: The persuasiveness of the authorities Carrio relied upon had been undermined by the imposition of a strict statute of limitations for federal habeas claims, and the federal standard proved to be too rigid to serve effectively as an equitable standard.²² But more importantly, the federal standard deviated from the general principles of common-law equity.²³

“[T]he writ of habeas corpus is an extraordinary remedy, any grant of which must be underscored by elements of fairness and equity.”²⁴ To determine whether equitable relief should be granted then, it behooves a court to determine whether an applicant has slept on his rights and, if he has, whether it is fair and just to grant him the relief he seeks.²⁵ The expanded approach ensures that courts keep, at the fore, the State's and society's interest in the finality of convictions,²⁶ and consider the trial participants' faded memories and the diminished availability of evidence.²⁷ In these case-by-case inquiries, courts should consider, among other things, the length of applicant's delay in requesting equitable relief, the reasons for the delay, and the degree and type of prejudice borne by the State resulting from applicant's delay.²⁸ But equity does not require that an applicant be barred from relief by mere delay alone. In Perez, we held that delay may be excused when the record shows that (1) an applicant's delay was not unreasonable because it was due to a justifiable excuse or excusable neglect; (2) the State would not be materially prejudiced as a result of the delay; or (3) the applicant is entitled to equitable relief for other compelling reasons, such as new evidence that shows he is actually innocent of the offense.²⁹ But in Perez, we specifically declined to address the issue in the present case.

For the same reasons that we abandoned the federal approach to laches, we now hold that a court may sua sponte consider and determine whether laches should bar relief. In a civil suit in equity, the United States Supreme Court stated long ago that,

To let in the defence that the claim is stale, and that the bill cannot, therefore, be supported, it is not necessary that a foundation shall be laid by any averment in the answer of the defendants. If the case, as it appears at the hearing, is liable to the objection by reason of the laches of the complainants, the court will, upon that

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