Mendoza v. Stephens

• Decision Date: 30 March 2015
• Docket Number: No. 12–70035.,12–70035.
• Parties: Moises Sandoval MENDOZA, Petitioner–Appellant v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

783 F.3d 203 (Mem)

Moises Sandoval MENDOZA, Petitioner–Appellant

v.William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 12–70035.

United States Court of Appeals, Fifth Circuit.

March 30, 2015.

Lydia M. Brandt, Esq. (argued), Brandt Law Firm, P.C., Richardson, TX, for Petitioner–Appellant.

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

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.

Opinion

PER CURIAM:

We GRANT the motion for the appointment of new supplemental counsel. We REMAND THIS CASE IN PART to the district court solely to appoint supplemental counsel consistent with this opinion and the requirements of 18 U.S.C. § 3599, and to consider in the first instance whether the petitioner can establish cause for the procedural default of any ineffective-assistance-of-trial-counsel claims pursuant to Martinez and Trevino that he may raise, and if so, whether those claims merit relief. We retain jurisdiction in the remainder of the case and STAY proceedings pending the conclusion of the district court's review.

Judges HIGGINBOTHAM and SOUTHWICK concur for the reasons stated in their opinion in Speer v. Stephens, 13–70001.

PRISCILLA R. OWEN, Circuit Judge, concurring:

I concur in the appointment of supplemental counsel, though I do not join the panel majority's truncated resolution of the issues. I write separately to address arguments raised by Mendoza and the State that are not discussed in the panel majority opinion and to set forth why I conclude that supplemental counsel is necessary in this case.

In this proceeding under 28 U.S.C. § 2254, Moises Sandoval Mendoza has appealed the district court's denial of habeas relief. After Mendoza had filed his initial brief in our court, the Supreme Court issued its decision in Trevino v. Thaler.¹ Mendoza then moved for a stay of his appeal, requesting that we remand to the district court for appointment of additional counsel. I concur in the decision to grant the motion to stay and to remand to the district court for further proceedings.

I

In April 2004, Mendoza was indicted for capital murder for intentionally killing Rachelle Tolleson by strangling her with his hands and stabbing her with a knife while committing or attempting to commit burglary, kidnapping, and aggravated sexual assault of Tolleson. After speaking with Mendoza and various members of his family, and considering the evidence against Mendoza, which included DNA evidence and multiple confessions, his defense team pursued a strategy of asserting that Mendoza was guilty of first-degree, but not capital, murder. The jury convicted Mendoza of capital murder, and he was sentenced to death in June 2005. His conviction and death sentence were affirmed on direct appeal in 2008.²

While Mendoza's direct appeal was pending, Lydia Brandt was appointed as Mendoza's state habeas counsel. Mendoza filed an application for a writ of habeas corpus in state court challenging his conviction and sentence on seven grounds,³ including assertions that he received ineffective assistance of trial counsel in five respects. The Texas Court of Criminal Appeals denied the application in 2009.⁴

Brandt was subsequently appointed as Mendoza's federal habeas counsel and presented Mendoza's seven state habeas claims in a habeas petition submitted to the federal district court in June 2010. Mendoza filed an amended petition in January 2011 and another in June 2011, both containing substantially the same seven claims originally presented. The district court permitted Mendoza to propound interrogatories to members of his trial defense team but denied his motion for an evidentiary hearing. Following a report and recommendation by a magistrate judge, the district court dismissed with prejudice Mendoza's claims unrelated to ineffective assistance of trial counsel and denied his five ineffective-assistance-of-trial-counsel claims in September 2012. The district court did not decide whether the deferential standard of review in 28 U.S.C. § 2254(d) applied, concluding that Mendoza's claims failed in any event.

Mendoza filed a motion to alter or amend the judgment, which the district court granted in part and denied in part, but which still resulted in the dismissal of Mendoza's claims unrelated to ineffective assistance of trial counsel, and judgment in favor of the Director of the Texas Department of Criminal Justice, Correction Institutions Division (the Director). Mendoza filed a notice of appeal and an application for a certificate of appealability, which was granted in December 2012 on Mendoza's first four ineffective-assistance claims.

While Mendoza's appeal was pending in this court, the Supreme Court decided Trevino v. Thaler, which held that its earlier decision in Martinez v. Ryan —that the procedural default of a substantial claim of ineffective assistance of trial counsel may be excused when the claim was not properly presented at the first opportunity in state court due to the ineffective assistance of state habeas counsel—applies to Texas state habeas proceedings.⁵ Mendoza subsequently moved to stay proceedings in this court and requested that we remand to the district court with instructions to appoint additional federal habeas counsel to investigate Brandt's possible ineffective assistance as state habeas counsel with regard to potential additional claims that trial counsel provided ineffective assistance. After Mendoza filed his motion, the Supreme Court decided Christeson v. Roper, in which the Court held that Christeson, who had been sentenced to death, was entitled to substitute federal habeas counsel who would not be laboring under a conflict of interest.⁶ Christeson's original federal habeas counsel had missed the filing deadline for Christeson's first federal habeas petition and could not be expected to argue that Christeson was entitled to equitable tolling of the statute of limitations.⁷

II

Mendoza, represented by Brandt, asserts that because Brandt served as both his federal and state habeas counsel, Brandt has a conflict of interest in light of the Supreme Court's decisions in Christeson and Trevino. Mendoza contends that Brandt was (and is) unable to conduct a sufficiently searching review of her own possible ineffective assistance as state habeas counsel because to do so, she would be required to assess whether she was ineffective in representing Mendoza with respect to ineffective-assistance-of-trial-counsel issues. Mendoza therefore requests that he be appointed additional counsel to conduct a review to determine whether there are any ineffective-assistance-of-trial-counsel claims that should have been, but were not, raised in the state habeas proceedings.

Congress has provided by statute, 18 U.S.C. § 3599(a), that a state defendant charged with committing a crime punishable by death is entitled to counsel if he is or becomes financially unable to obtain adequate representation.⁸ This includes counsel in federal habeas proceedings.⁹ It is undisputed that Mendoza is financially unable to obtain counsel and that he is entitled to court-appointed counsel.

Although § 3599 “fails to specify how a court should decide” a motion for appointment of new counsel,¹⁰ the Supreme Court concluded in Martel v. Clair that the “in the interests of justice” standard should apply in a case in which a defendant sentenced to death in state court sought new counsel during federal habeas proceedings.¹¹ The “in the interests of justice” standard is derived from 18 U.S.C. § 3006A, the provision that governs the appointment and substitution of counsel in federal non-capital litigation.¹² In Martel, the State of California had argued for a more stringent standard, contending that federal courts may replace an appointed lawyer only if there is an actual or constructive denial of counsel.¹³ This would occur, the State posited, in only three circumstances: “when the lawyer lacks the qualifications necessary for appointment under the statute; when he has a ‘disabling conflict of interest’; or when he has ‘completely abandoned’ the client.”¹⁴ Accordingly, the State of California conceded in Martel that actual or constructive denial of counsel would occur if the attorney had a “disabling conflict of interest.”

In adopting the “in the interests of justice” standard, the Supreme Court noted that “[h]abeas petitioners facing execution now receive counsel as a matter of right, not [sic] an exercise of the court's discretion” by virtue of § 3599(a)(2).¹⁵ The enactment of § 3599 by Congress “ ‘reflec [ted] a determination that quality legal representation is necessary’ in all capital proceedings to foster ‘fundamental fairness in the imposition of the death penalty.’ ”¹⁶

In the present case, the State of Texas argues, in essence, that Brandt is an excellent attorney and that she has acted as an effective advocate for Mendoza. The State contends that Mendoza has a functioning lawyer—Brandt—and therefore that Mendoza's motion for additional counsel should be denied. The Supreme Court rejected similar arguments in Martel and Christeson.¹⁷ The Supreme Court reasoned that such an interpretation of § 3599 would render its substitution provision “superfluous.”¹⁸ Importantly, the Supreme Court observed that “[e]ven in the absence of that provision [§ 3599 ], a court would have to ensure that the defendant's statutory right to counsel was satisfied throughout the litigation; for example, the court would have to appoint new counsel if the first lawyer developed a conflict with ... the client. ”¹⁹ The Court concluded in Christeson that a conflict arises when an attorney's interest in protecting her professional reputation is at odds with her duty to raise a claim of ineffective assistance.²⁰

Mendoza argues that Brandt may not be able to consider, recommend, or carry out an appropriate course of action in reviewing her own performance as state habeas counsel. In urging ...