Mayo v. Cockrell, 00-20941.

• Decision Date: 28 March 2002
• Docket Number: No. 00-20941.,00-20941.
• Citation: 287 F.3d 336
• Parties: John MAYO, Petitioner-Appellant, v. Janie COCKRELL, Director Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 336

287 F.3d 336

John MAYO, Petitioner-Appellant, v. Janie COCKRELL, Director Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 00-20941.

United States Court of Appeals, Fifth Circuit.

March 28, 2002.

Randy Schaffer (argued), Schaffer & Henley, Houston, TX, for Petitioner-Appellant.

Karyl Krug, Asst. Atty. Gen. (argued), Austin, TX, for Respondent-Appellee.

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

Before JONES, SMITH and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This court granted a certificate of appealability to permit John Mayo's appeal from a denial of § 2254 habeas relief on the claim that he was constructively deprived of legal counsel at a critical stage of his prosecution, the period during which a new trial could be sought. Texas courts denied relief on this claim, as did the federal district court. The issue before us, pursuant to AEDPA standards, is whether the state courts' decision "was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States ...," or was based on an unreasonable determination of the facts in light of the state court record. 28 U.S.C. § 2254(d). Mayo rests his claim entirely on United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and its progeny. Finding no basis to grant relief on these facts under Cronic, we affirm.

BACKGROUND

Mayo kidnapped, raped and sexually assaulted a Houston, Texas, woman in May 1989. He was convicted in March 1991 of aggravated kidnaping and aggravated sexual assault, and he received sentences of 20 and 50 years' imprisonment, respectively, for those offenses.

The facts pertinent to this case, which we paraphrase, are succinctly reported by the state habeas court:¹

Jacquelyn Barnes, a veniremember for Mayo's trial, represented on her juror questionnaire that she had never been accused in a criminal case. Before the veniremembers were brought to the courtroom, the presiding judge in the central jury room asked whether they had ever been convicted of any felony or theft. Barnes either responded in the negative or remained silent; otherwise, she would not have accompanied the panel to the courtroom.

Mayo was represented at trial by retained counsel Paul Mewis, assisted by Cynthia Henley. Neither the prosecutor nor defense counsel asked the veniremembers whether they had been convicted of any felony or theft, in reliance on the answers in the jury questionnaires and their knowledge that the veniremembers had already been qualified on this question in the central jury room. Barnes became a juror.

Unbeknownst to the parties and attorneys, Barnes had a final conviction for misdemeanor theft dating from 1977, which was discoverable as a public record in Harris County, Texas. Had Barnes disclosed her conviction during voir dire examination, the attorneys would have challenged her for cause, as she was absolutely disqualified from jury service under Texas law. TEX.CODE CRIM. PROC. ANN. art. 35.19 (1989); Frame v. State, 615 S.W.2d 766, 769 (Tex.Crim.App.1981).

Mayo was convicted and sentenced. Mewis's contract provided that his legal representation of Mayo would terminate with the jury's verdict. After sentencing, Mayo indicated his desire to appeal. Because Mewis did not handle appeals, he advised Mayo to hire another lawyer.

Mewis took no further action in the case because he assumed that Mayo would hire another lawyer. Neither Mewis nor Henley (as Mewis's assistant) investigated jury misconduct, checked the local criminal records of the jurors, or investigated or filed a motion for new trial.

Mewis did not move to withdraw as counsel because he was unaware that Texas law required him to continue to represent Mayo following conviction until such time as the court permitted him to withdraw or substituted counsel. Ex parte Axel, 757 S.W.2d 369, 373-74 (Tex.Crim. App.1988).

Nevertheless, when Mewis had not heard from a prospective appellate lawyer after about three weeks, he met with Mayo in jail to determine whether another lawyer had been hired. Mayo said he was indigent. On April 4, 1991, three days before the time expired to file a motion for new trial and notice of appeal, Mewis assured that Mayo was brought to court, that he filed a notice of appeal, and that he signed an indigency affidavit requesting court-appointed appellate counsel. That same day, the court appointed Will Gray as appellate counsel and mailed him notice of the appointment. Gray did not, however, learn of his appointment until the time had expired to file a motion for new trial.

No attorney discovered Barnes's theft conviction in time to file a motion for new trial or to raise the issue on appeal. Had counsel filed a motion for new trial and proven that Barnes was absolutely disqualified from serving as a juror, the trial court would have had to grant a new trial, or the conviction would have been reversed on appeal. Thomas v. State, 796 S.W.2d 196, 197 (Tex.Crim.App.1990); State v. Holloway, 886 S.W.2d 482, 484 (Tex. App. — Houston [1st Dist.] 1994). Under Texas law, however, Mayo is not entitled to obtain habeas corpus relief on a claim involving a disqualified juror. Thomas, 796 S.W.2d at 199; Ex parte Bronson, 158 Tex.Crim. 133, 254 S.W.2d 117, 121 (Tex. Crim.App.1952)

The state habeas court concluded that Mayo "was not denied assistance of counsel during the time for filing a motion for new trial, as Paul Mewis remained attorney of record." The Texas Court of Criminal Appeals denied Mayo's application for habeas corpus relief without written order on the findings of the trial court. The federal district court denied relief under § 2254, and this appeal followed after a COA was granted.

DISCUSSION

This case turns on whether the state courts' conclusion that Mayo was not denied the assistance of counsel during the period for filing a new trial motion was an unreasonable application of Federal law, as established by the Supreme Court, or was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).

Mayo's argument begins with the proposition that criminal defendants are constitutionally entitled to effective assistance of counsel at every "critical stage" of prosecution and through the conclusion of direct appeal. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985). A defendant whose attorney provides no meaningful assistance may, however, be constructively denied the assistance of counsel. United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984). In Mayo's view, his lawyer's failure to research or file a motion for new trial was the equivalent of denying him counsel for the purpose of challenging Ms. Barnes's qualifications as a juror.

The initial problem with this argument is that, from the standpoint of AEDPA, its conclusion does not necessarily follow from its premises. Few precedents exist explaining whether the period for filing a motion for new trial is a "critical stage" of prosecution to which the right to counsel attaches. The Texas Court of Criminal Appeals, for instance, expressly withheld ruling on that issue, although lower Texas courts have described the post-trial period as "critical." Compare Prudhomme v. State, 28 S.W.3d 114, 121 (Tex.App. — Texarkana 2000), with Smith v. State, 17 S.W.3d 660, 663 n. 3 (Tex.Crim.App.2000), and Oldham v. State, 977 S.W.2d 354, 360-61 (Tex.Crim.App.1998). Several federal courts of appeals have held that there is no constitutional right to counsel for post-appeal motions for new trial. United States v. Tajeddini, 945 F.2d 458, 470 (1st Cir.1991), abrogated on other grounds by Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); United States v. Lee, 513 F.2d 423, 424 (D.C.Cir. 1975); United States v. Birrell, 482 F.2d 890, 892 (2d Cir.1973). But three federal courts of appeals have held, on particular facts, that the motion for new trial phase is a critical stage of the prosecution. Kitchen v. United States, 227 F.3d 1014, 1018-19 (7th Cir.2000); Robinson v. Norris, 60 F.3d 457, 459-60 (8th Cir.1995); Menefield v. Borg, 881 F.2d 696, 699 (9th Cir.1989). The district court here seized on the absence of "clearly established Federal law, as determined by the Supreme Court....," and concluded that the period for filing a motion for new trial is not clearly a critical phase; hence, the state courts did not unreasonably reject Mayo's habeas claim.²

Unfortunately for Mayo, his position succeeds only if the right to counsel clearly and fully attaches to the post-trial, pre-appeal phase of prosecution. But it is unnecessary, in resolving this appeal, to render such a broad decision.³ Instead we focus on the state court finding that Mayo was not denied counsel during the post-trial phase. This finding is not legally or factually unreasonable. Under Texas law, Mewis was bound to represent Mayo until the trial court permitted him to withdraw or appointed a new attorney.⁴ That Mewis was unaware of his legal responsibility does not transform an error into the "denial" or "absence" of counsel. Mewis in fact represented his client post-trial by taking steps to ensure the appointment of appellate counsel.

The only asserted flaw in Mewis's legal representation was his failure to investigate the criminal records of Mayo's jury, to unearth a thirteen-year-old misdemeanor conviction of one juror, and to use that technicality to obtain a mistrial or new trial. For two reasons, this omission has no constitutional significance.

First, even if Mewis should have investigated the jurors' criminal histories, the investigation need not have awaited the outcome of trial. Mewis could have questioned the jurors on the...