Jiminez v. Estelle, No. 76-3128

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore TUTTLE, GOLDBERG and CLARK; TUTTLE
Citation557 F.2d 506
PartiesPablo Ramos JIMINEZ, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
Docket NumberNo. 76-3128
Decision Date12 August 1977

Page 506

557 F.2d 506
Pablo Ramos JIMINEZ, Petitioner-Appellant,
v.
W. J. ESTELLE, Jr., Director, Texas Department of
Corrections, Respondent- Appellee.
No. 76-3128.
United States Court of Appeals,
Fifth Circuit.
Aug. 12, 1977.

Page 507

C. David Evans, Allen F. Cazier, San Antonio, Tex., for petitioner-appellant.

John L. Hill, Atty. Gen., Walter C. Prentice, Asst. Atty. Gen., David M. Kendall, First Asst. Atty. Gen., Joe B. Dibrell, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before TUTTLE, GOLDBERG and CLARK, Circuit Judges.

TUTTLE, Circuit Judge:

The appellant here seeks a reversal of the judgment of the district court denying habeas corpus relief from an alleged illegal twenty-year sentence which was determined by the jury after hearing evidence of prior convictions under the Texas Enhancement Statute. The state relies upon its rule that unless a defendant contemporaneously objects to the introduction of evidence against him on the very ground on which he later seeks relief on appeal or on habeas corpus, such ground is not later cognizable, e. g., Aldrighetti v. State, 507 S.W.2d 770 (Tex.Cr.App.1974); Spead v. State, 500 S.W.2d 112 (Tex.Cr.App.1973); Branch v. State, 477 S.W.2d 893 (Tex.Cr.App.1972). This rule, which we might call the "correct contemporaneous objection rule," is hermetically sealed by its observance in state habeas corpus procedure, which follows the same doctrine and forecloses collateral attack in the same fashion as direct review. E. g., Ex parte Gill, 509 S.W.2d 357 (Tex.Cr.App.1974); Ex parte Bagley, 509 S.W.2d 332 (Tex.Cr.App.1974).

Appellant Jiminez was convicted by a Texas jury of possession of heroin. Pursuant to the state's bifurcated trial/sentence procedures, the jury then heard additional evidence for the purpose of assessing punishment. The only evidence presented by the state was the fact that Jiminez had twice been convicted of felonies in Michigan. A state habeas court found, and the state conceded in its brief and at oral argument, that with respect to the Michigan convictions, Jiminez (1) was not represented by counsel; (2) was indigent; (3) was not informed of his right to have counsel appointed; and (4) did not waive the assistance of counsel.

Jiminez' counsel objected to the evidence of the former convictions on the ground that it was hearsay and that it violated Jiminez' confrontation clause rights, but counsel did not contend that use of prior uncounselled convictions for the purpose of setting punishment was a violation of due process.

The United States district court denied relief, holding that Jiminez should be estopped from complaining about the state's use of the prior convictions. The district court based its ruling on the mistaken belief that Jiminez had himself "opened the door" for the state by testifying about the prior convictions. This finding was clearly erroneous: Jiminez never testified until the evidence had first been introduced, over his

Page 508

objection, by the state. Nevertheless, the state now argues, the judgment of the district court should be affirmed because Jiminez either (1) intentionally waived his constitutional right not to have the jury consider the uncounselled convictions in assessing punishment; or (2) committed an inexcusable procedural default which should be held to bar adjudication of his claim by a federal habeas court.

I. FROM WAIVER TO PROCEDURAL DEFAULT

As originally established by Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), waiver of constitutional rights was a consensual concept, depending on "intentional relinquishment or abandonment of a known right," 304 U.S. at 464, 58 S.Ct. at 1023. The person making the waiver had to know he had the right and had to deliberately forego its assertion. Later opinions transposed "waiver" terminology to cases involving procedural default or forfeiture. 1 In this type of case, the only known fact is that the defendant failed to claim his rights at the time when a procedural rule requires them to be asserted upon penalty of forfeiture; why he failed to act, or even whether he knew that he might claim the right in question, is immaterial to the operation of the forfeiture rule. A defendant who failed to claim constitutional protections at appropriate junctures in the trial process was often said to have "waived" those rights. This would be high fiction, of course, under the Johnson standard because in a forfeiture case the "waiver" is a penalty enforced by the court, unrelated to whether the failure was a considered tactical choice or plea bargain made by the defendant and his lawyer.

The confusion was understandable, because for a time the same standard was used in federal habeas corpus to govern both (1) the finding of a Johnson v. Zerbst waiver, and (2) the determination whether a procedural default grave enough to preclude habeas adjudication of the merits of a belatedly asserted claim had taken place. Whether the default occurred in federal or state court, the operative term became "deliberate bypass," reflecting the Johnson v. Zerbst emphasis on considered choice:

"We therefore hold that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately bypassed the orderly procedure of the state courts and in so doing has forfeited his state court remedies. But we wish to make very clear that this grant of discretion is not to be interpreted as a permission to introduce legal fictions into federal habeas corpus. The classic definition of waiver enunciated in Johnson v. Zerbst . . . furnishes the controlling standard."

Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963) (collateral attack in federal court after procedural default in state court); accord, Henry v. Mississippi, 379 U.S. 443, 451-52, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965) (direct review in federal court after procedural default in state court); Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969) (collateral review in federal court after procedural default in federal trial court).

Recent Supreme Court decisions, however, establish that the Johnson v....

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34 practice notes
  • Bromwell v. Williams, Civ. No. K-76-926.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • December 30, 1977
    ...v. Brewer, 561 F.2d 126, 130 n.6 (8th Cir. 1977);10 Evans 445 F. Supp. 114 v. Maggio, 557 F.2d 430 (5th Cir. 1977); Jiminez v. Estelle, 557 F.2d 506, 510-11 (5th Cir. 1977);11 United States v. Williams, 544 F.2d 1215, 1217-18 (4th Cir. 1976). None of the participants in Bromwell's trial rea......
  • Farrow v. U.S., No. 74-2429
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 31, 1978
    ...876, 879-80 (5th Cir. 1978) (Sykes applicable to § 2255 proceedings involving " fundamental constitutional right"); Jiminez v. Estelle, 557 F.2d 506, 508-11 (5th Cir. 1977) (Sykes applicable to Tucker claims under § 2254). Sykes was made retroactive in Estelle v. McDonald, 433 U.S. 904, 97 ......
  • Carrier v. Hutto, No. 83-6039
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 27, 1983
    ...remanded for the district judge to determine whether the failure to object resulted from a tactical decision. Accord, Jiminez v. Estelle, 557 F.2d 506, 510-11 (5th Cir.1977). 6 See also Collins v. Auger, 577 F.2d 1107, 1110 n. 2 (8th Cir.1978) (dictum), cert. denied, 439 U.S. 1133, 99 S.Ct.......
  • Thomas v. Zant, No. 81-7675
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 10, 1983
    ...v. United States, 575 F.2d 515, 519 (5th Cir.1978); Coco v. United States, 569 F.2d 367, 369-71 (5th Cir.1978); Jiminez v. Estelle, 557 F.2d 506, 508-09 (5th Cir.1977); McKnight v. United States, 507 F.2d 1034, 1036-37 (5th Cir.1975); Aaron v. Capps, 507 F.2d 685 (5th Cir.1975); Morris v. U......
  • Request a trial to view additional results
34 cases
  • Bromwell v. Williams, Civ. No. K-76-926.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • December 30, 1977
    ...v. Brewer, 561 F.2d 126, 130 n.6 (8th Cir. 1977);10 Evans 445 F. Supp. 114 v. Maggio, 557 F.2d 430 (5th Cir. 1977); Jiminez v. Estelle, 557 F.2d 506, 510-11 (5th Cir. 1977);11 United States v. Williams, 544 F.2d 1215, 1217-18 (4th Cir. 1976). None of the participants in Bromwell's trial rea......
  • Farrow v. U.S., No. 74-2429
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 31, 1978
    ...876, 879-80 (5th Cir. 1978) (Sykes applicable to § 2255 proceedings involving " fundamental constitutional right"); Jiminez v. Estelle, 557 F.2d 506, 508-11 (5th Cir. 1977) (Sykes applicable to Tucker claims under § 2254). Sykes was made retroactive in Estelle v. McDonald, 433 U.S. 904, 97 ......
  • Carrier v. Hutto, No. 83-6039
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 27, 1983
    ...remanded for the district judge to determine whether the failure to object resulted from a tactical decision. Accord, Jiminez v. Estelle, 557 F.2d 506, 510-11 (5th Cir.1977). 6 See also Collins v. Auger, 577 F.2d 1107, 1110 n. 2 (8th Cir.1978) (dictum), cert. denied, 439 U.S. 1133, 99 S.Ct.......
  • Thomas v. Zant, No. 81-7675
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 10, 1983
    ...v. United States, 575 F.2d 515, 519 (5th Cir.1978); Coco v. United States, 569 F.2d 367, 369-71 (5th Cir.1978); Jiminez v. Estelle, 557 F.2d 506, 508-09 (5th Cir.1977); McKnight v. United States, 507 F.2d 1034, 1036-37 (5th Cir.1975); Aaron v. Capps, 507 F.2d 685 (5th Cir.1975); Morris v. U......
  • Request a trial to view additional results

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