Jiminez v. Estelle, 76-3128

• Decision Date: 12 August 1977
• Docket Number: No. 76-3128,76-3128
• Citation: 557 F.2d 506
• Parties: Pablo Ramos JIMINEZ, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

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.

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 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. Zerbst, standard will no longer govern all procedural default cases. Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973) began the process. In Davis, the Court held as a matter of statutory construction that the scope of section 2255 review was intended by Congress to be no greater than the availability of relief in normal criminal proceedings. The Court therefore held that a challenge to the composition of a grand jury was not cognizable under section 2255 unless the conditions of Rule 12 of the Federal Rules of Criminal Procedure, which provides that failure to raise such an objection before trial "constitutes a waiver thereof" unless the court grants relief "for cause shown," were met.

Davis was extended to state cases in Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) aff'g Newman v. Henderson, 496 F.2d 896 (5th Cir. 1974). There, a state prisoner sought federal habeas corpus relief on the ground that blacks had been unconstitutionally excluded from the grand jury that indicted him. He had not raised the claim at his state trial, despite state law requiring challenges to the grand jury's composition to be made before trial. Otherwise, the law provided, "all such objections shall be considered as waived and shall not afterwards be urged or heard." The Supreme Court affirmed our decision denying relief:

"We conclude . . . that the Court of Appeals was correct in holding that the rule of Davis v. United States applies with equal force when a federal court is asked in a habeas corpus proceeding to overturn a state-court conviction because of an allegedly unconstitutional grand jury indictment. In a collateral attack upon a conviction that rule requires . . . not only a showing of 'cause' for the defendant's failure to challenge the composition of the grand jury before trial, but also a showing of actual prejudice."

425 U.S. at 542, 96 S.Ct. at 1711.

Davis and Francis unmistakably signal a partial departure from the rigorous test of Johnson v. Zerbst in forfeiture cases and, now, the Supreme Court has come full circle in Wainwright v. Sykes, --- U.S. ----, 97 S.Ct. 2497, 53 L.Ed.2d 594. The Court has extended the contemporaneous objection rule to a case in which the basis of the habeas claim was so fundamental as the voluntariness of a confession:

"We therefore conclude that Florida procedure did, consistently with the United States Constitution, require that petitioner's confession be challenged at trial or not at all, and thus his failure to timely object to its admission amounted to an independent and adequate state procedural ground which would have prevented direct review here. See Henry v. Mississippi, 379 U.S. 443, [85 S.Ct. 564, 13 L.Ed.2d 408] (1965)." --- U.S. at ----, 97 S.Ct. at 2506.

The Court does, however, recognize that rigid application of that rule would be too draconian a forfeiture to be acceptable under our system of justice. The Court, therefore, provides a failsafe mechanism to prevent a defendant's becoming the victim of a miscarriage of justice. This provision is contained in the Court's precise question which it posed and answered in Sykes. Having, in that case, concluded that a failure of the habeas petitioner to make timely objection as required by state law constituted a waiver, the Court said:

"We thus come to the crux of this case. Shall the rule of Francis v. Henderson, supra, barring federal habeas review absent a showing of 'cause' and 'prejudice' attendant to a state procedural waiver, be applied to a waived objection to the admission of a confession at trial? We answer that question in the affirmative. (Emphasis added.)." --- U.S. at ----, 97 S.Ct. at 2506.

(Footnote omitted).

The Court...