Hernandez v. Thaler

• Decision Date: 06 January 2011
• Docket Number: No. 10–50319.,10–50319.
• Citation: 630 F.3d 420
• Parties: Alfred HERNANDEZ, Petitioner–Appellant,v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

630 F.3d 420

78 Fed.R.Serv.3d 472

Alfred HERNANDEZ, Petitioner–Appellant,

v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 10–50319.

United States Court of Appeals, Fifth Circuit.

Jan. 6, 2011.

Alfred Hernandez, Rosharon, TX, pro se.Marta Rew McLaughlin, Austin, TX, for Thaler.Appeal from the United States District Court for the Western District of Texas.Before HIGGINBOTHAM, SMITH and ELROD, Circuit Judges.PER CURIAM:

In substance, petitioner-appellant Alfred Hernandez seeks a certificate of appealability (a “COA”) granting him permission to appeal the district court's denial of his motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6). The judgment in question applied the then-controlling rule of Salinas v. Dretke¹ and dismissed Hernandez's habeas petition as barred by limitations. Hernandez argues that if the district court had applied the rule announced in Jimenez v. Quarterman, ² it would have determined that his petition was timely filed. On this point, Hernandez is right. Where he is wrong is on his claim that the Supreme Court's announcement of a new method of calculating the limitations period under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) is the kind of extraordinary circumstance that warrants relief under Rule 60(b)(6). This latter claim is foreclosed by the binding precedent of this court and the Supreme Court. As a result, we deny Hernandez's motion for a COA.

I.

A Texas jury convicted Hernandez of aggravated robbery in 1997, and the trial court sentenced him to a term of forty-five years imprisonment. The Thirteenth Court of Appeals in Corpus Christi affirmed his conviction on January 6, 2000. Hernandez did not file a petition for discretionary review with the Texas Court of Criminal Appeals (“the CCA”), so his conviction became final on March 7, 2000.³ According to Hernandez, his attorney never informed him that the court of appeals had denied his appeal or that he had a right to file a petition for discretionary review with the CCA. Instead, Hernandez states, he did not learn his conviction had been affirmed “until about two years later” when he sent an inquiry to the CCA.

Hernandez filed a state application for a writ of habeas corpus on June 17, 2003, more than three years after his conviction became final. His state habeas application alleged claims of ineffective assistance of counsel at trial, ineffective assistance of counsel on appeal, and prosecutorial misconduct. In December 2004, the CCA granted the application in part, authorizing Hernandez to file an out-of-time petition for discretionary review and ordering Hernandez “returned to the point at which he can file a meaningful petition.” Hernandez filed a petition for discretionary review in January 2005, and the CCA denied it on March 16, 2005.

A little more than two months later, on May 27, 2005,⁴ Hernandez filed his federal habeas petition. The Western District of Texas docketed the petition under cause number 5:05–cv–0533. Hernandez's federal habeas petition raised the same three claims his state habeas application raised. On May 4, 2006, the district court issued a memorandum opinion and order in which it concluded that Hernandez's petition was barred by AEDPA's statute of limitations.⁵ The same day, the district court entered a final judgment. The judgment contained several errors,⁶ but it is clear from the record that Hernandez, the district court, and this court all understood that his petition had been dismissed on limitations grounds.⁷ In December 2006, this court denied Hernandez's motion for a COA.

Fast forward three-and-a-half years. On March 16, 2010, Hernandez filed a document that the district court treated as a second habeas petition. For reasons we explain below, we ultimately conclude this filing should have been construed as a motion for relief from judgment under Rule 60(b)(6). However, the district court construed this filing to be a new, stand-alone habeas petition and docketed it under a separate cause number: 5:10–cv–0219. On March 30, 2010, the district court dismissed the new petition because it was a second or successive petition filed without authorization from this court ⁸ and because it was barred by limitations. The district court also denied a COA.

On April 12, 2010, Hernandez timely filed a notice of appeal under cause number 5:05–cv–0533 that stated “that petitioner wishes to appeal this court's decision of March 30, 2010.” However, the district court did not enter any orders in cause number 5:05–cv–0533 on March 30, 2010. The order of March 30, 2010, was entered under cause number 5:10–cv–0219. Hernandez never filed a notice of appeal that listed cause number 5:10–cv–0219.

II.

AEDPA allows a petitioner to appeal a district court's final order in a § 2254 proceeding only if either this court or the district court issues a COA.⁹ “ ‘When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim,’ as here, a certificate of appealability should issue only when the prisoner shows both ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.’ ”¹⁰

A.

Before turning to the merits of Hernandez's motion for a COA, we pause to assure ourselves of our jurisdiction.¹¹ Habeas proceedings are civil actions,¹² and the timely filing of a notice of appeal is a jurisdictional prerequisite to a civil appeal.¹³ Hernandez seeks to appeal an order entered on March 30, 2010, in cause number 5:10–cv–0219, but he filed his notice of appeal in cause number 5:05–cv–0533. We must determine whether Hernandez's error in listing the wrong cause number on his notice of appeal divests us of jurisdiction to consider his motion for a COA.

We conclude that it does not. The Federal Rules of Appellate Procedure “have for their primary purpose the securing of speedy and inexpensive justice in a uniform and well ordered manner; they were not adopted to set traps and pitfalls by way of technicalities for unwary litigants.”¹⁴ In accordance with that purpose, “a policy of liberal construction of notices of appeal prevails in situations where the intent to appeal ... [a] mislabeled ruling is apparent and there is no prejudice to the adverse party. The party who makes a simple mistake in designating the judgment appealed from does not forfeit his right of appeal where the intent to pursue it is clear.”¹⁵ We have previously held that the mistake of a party whose attorney inadvertently listed the wrong case number on a notice of appeal was “excusable neglect” where the attorney recognized the mistake and moved to amend the notice.¹⁶ Today we adopt the view previously expressed by the Seventh,¹⁷ Ninth,¹⁸ Eleventh,¹⁹ and Federal²⁰ Circuits that even when an appellant has not moved to correct his mistake in listing an incorrect docket number, the notice of appeal is still effective so long as the “the intent to appeal from a specific ruling can fairly be inferred by probing the notice and the other party was not misled or prejudiced.”²¹

Here, Hernandez's notice of appeal clearly states his intention to appeal the district court's order of March 30, 2010. The arguments in Hernandez's memorandum of law in support of his motion for a COA also make it apparent that he is challenging the March 30, 2010 order. That he listed the wrong cause number on the notice does not make his intention any less apparent.²² In addition, there is no prejudice to the state, which is not required to file a response to Hernandez's motion for a COA.²³ Therefore, we conclude that the notice of appeal that Hernandez filed on April 12, 2010, satisfies the requirements of 28 U.S.C. § 2107 and Federal Rule of Appellate Procedure 4(a)(1), giving us jurisdiction to decide the merits of his motion for a COA.²⁴

B.

We conclude that Hernandez's filing of March 16, 2010, should be construed as a motion under Federal Rule of Civil Procedure 60(b)(6) for relief from the judgment entered in cause number 5:05–cv–0533. It is true that Hernandez, using the standard court-provided form for a petition for a writ of habeas corpus by a person in state custody, styled his March 16, 2010 filing as a habeas petition. But pro se habeas petitions “are not held to the same stringent and rigorous standards as are pleadings filed by lawyers.”²⁵ The filings of a federal habeas petitioner who is proceeding pro se are entitled to the benefit of liberal construction.²⁶ It is the substance of the relief sought by a pro se pleading, not the label that the petitioner has attached to it, that determines the true nature and operative effect of a habeas filing.²⁷

If Hernandez's March 16, 2010 filing is construed as a second or successive habeas petition, then it must be dismissed.²⁸ As a threshold matter, Hernandez failed to move this court for an order authorizing the district court to consider the petition.²⁹ Further, the two claims documented in the March 16, 2010 filing—ineffective assistance of trial counsel and denial of due process due to prosecutorial misconduct—are identical to the two claims presented in Hernandez's 2005 habeas petition, which means the March 16, 2010 filing would be a second or successive habeas petition.³⁰ And AEDPA mandates that “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.”³¹

We should adjudicate Hernandez's latest filing on its merits if possible,³² and Rule 60(b)(6) provides a mechanism through which we can do so. A habeas petitioner cannot use “ Rule 60(b) to present new claims for relief from a state court's judgment of conviction” or to “attack[ ] the federal court's previous...