Millard v. Lynaugh

• Decision Date: 04 March 1987
• Docket Number: No. 85-1448,85-1448
• Citation: 810 F.2d 1403
• Parties: Frank R. MILLARD, Petitioner-Appellant, v. James A. LYNAUGH, Interim Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1403

810 F.2d 1403

Frank R. MILLARD, Petitioner-Appellant, v. James A. LYNAUGH, Interim Director, Texas Department of Corrections, Respondent-Appellee.

No. 85-1448.

United States Court of Appeals Fifth Circuit.

March 4, 1987.

Ronald Frappier, Jenkins & Gilchrist, Mark D. Wigder, Dallas, Tex., (ct. apptd.), for petitioner-appellant.

Frank Roger Millard, pro se.

William C. Zapalac, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before REAVLEY and POLITZ, Circuit Judges, and ROBINSON, ^* District Judge.

MARY LOU ROBINSON, District Judge:

Petitioner Frank Roger Millard was convicted of aggravated robbery and sentenced to an enhanced 35 year prison term by a Texas jury. Millard appeals from the federal district court's denial of his petition for writ of habeas corpus. He raises issues based on the following theories: denial of right to a speedy trial, invalid sentence enhancement, double jeopardy, ineffective assistance of counsel, and improper imposition of abuse of writ sanction by the Texas Court of Criminal Appeals. We affirm the district court's denial of habeas relief.

BACKGROUND

In 1977, Petitioner was convicted of aggravated robbery and was sentenced as an habitual offender to a mandatory sentence of life imprisonment based on a jury finding of two prior felony convictions. On June 6, 1979, the Texas Court of Criminal Appeals ruled that one of the prior convictions used for enhancement of punishment was void because the underlying indictment was fatally defective. Ex Parte Millard, 587 S.W.2d 703, 705 (Tex.Crim.App.1979) (en banc). The court set aside Petitioner's conviction and remanded the case to the state district court for retrial. Id.

On October 8, 1979, Petitioner filed an application for writ of habeas corpus with the state trial court pursuant to the speedy trial provisions of the Texas Code of Criminal Procedure. On October 12, 1979, Petitioner signed a Defendant's Waiver of Statutory Speedy Trial.

On December 2, 1980, Petitioner was retried and convicted of the primary offense of aggravated robbery. Petitioner's conviction was enhanced by a single prior felony conviction. He was sentenced as a repeat offender to 35 years in the state penitentiary. Petitioner's conviction was affirmed by the Texas Court of Appeals.

Millard made several unsuccessful attempts to obtain state habeas relief from his second conviction. On June 9, 1982, the Texas Court of Criminal Appeals cited Petitioner for abuse of the writ and prohibited Petitioner from filing further state habeas applications "unless the applicant has first shown that any contentions presented have not been raised previously and a showing is made that they could not have been presented in any earlier application for habeas relief." Thus, Petitioner has exhausted his state remedies.

Petitioner filed an original and an amended federal petition for writ of habeas corpus. An evidentiary hearing was held by the United States Magistrate on December 20, 1984. On April 10, 1985, the Magistrate filed his third and final report recommending that Petitioner's application for habeas relief be denied and dismissed. The district court adopted the Magistrate's recommendations and entered judgment denying Petitioner's requested habeas relief.

1. Speedy Trial.

The United States Magistrate held an evidentiary hearing on Petitioner's contention that he was denied the right to a speedy trial under the Texas Speedy Trial Act, Tex.Code Crim.Pro. art. 32A.02 (Vernon Supp.1987). The Magistrate found that Petitioner had knowingly and intelligently signed a waiver of his statutory speedy trial rights in hopes of encouraging continued plea negotiation with the state. The Magistrate further found that the subsequent written motions for speedy trial and a motion to withdraw the waiver were filed in the midst of ongoing plea negotiations and were a deliberate attempt by Petitioner to create a speedy trial issue for future habeas consideration. The Magistrate's findings were adopted by the district court. They are supported by the record including the testimony of Millard's lawyer and are not clearly erroneous. See Hayes v. Maggio, 699 F.2d 198, 201 (5th Cir.1983).

Petitioner's claim that his speedy trial rights were violated by the state's failure to reprosecute him within the 120 days prescribed by the Texas Speedy Trial Act, Tex.Code Crim.Pro. art. 32A.02 (Vernon Supp.1987), is without merit. "The statute does not provide a technique to force dismissal because of delays in which the defendant has been a willing participant." Cockrell v. State, 632 S.W.2d 664, 666 (Tex.App.--Ft. Worth 1982). Furthermore, a defendant's rights under the state act can be relinquished by an affirmative intentional waiver. Evans v. State, 678 S.W.2d 303, 304 (Tex.App.--Ft. Worth 1984). Because Petitioner knowingly signed a waiver and willingly participated in the delay of his retrial, we reject his claim that the state speedy trial act was violated.

In any event, federal consideration of a claim that a state has violated its own speedy trial rules is limited to a determination of whether the state's action has violated Petitioner's constitutional right to a speedy trial or to due process. Wallace v. Lockhart, 701 F.2d 719, 729 (8th Cir.) cert. denied, 464 U.S. 934, 104 S.Ct. 340, 78 L.Ed.2d 308 (1983). Constitutional speedy trial claims are resolved by using the balancing process set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972). The Barker Court described four factors for assessing such claims: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his rights; and (4) the prejudice to the defendant resulting from the delay.

Three interests of a defendant that a court should consider in assessing prejudice are: (1) to prevent oppressive pretrial incarceration; (2) to minimize the anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired.

The threshold consideration in applying the Barker test is whether the delay is of sufficient length to be deemed "presumptively prejudicial, thus requiring an inquiry into the other Barker factors." Gray v. King, 724 F.2d 1199, 1202 (5th Cir.) cert. denied, 469 U.S. 980, 105 S.Ct. 381, 83 L.Ed.2d 316 (1984). Because the present eighteen month delay falls within the range of delay considered "presumptively prejudicial" in this Circuit, ¹ consideration of the three remaining Barker factors is appropriate.

Consideration of the remaining factors does not weigh in favor of petitioner's speedy trial claim. In large part the delay is attributable to the petitioner rather than to the state. Petitioner's motions for speedy trial were not consistent with his other actions. He and his counsel were engaged in ongoing plea negotiations which included an offer to testify at a trial in the future. Petitioner's waiver of the state speedy trial act together with the nature of his extended plea negotiations are evidence that his efforts were directed toward the cultivation of a favorable plea bargain and not toward an early trial date. As already stated, the finding that petitioner's motions were filed in order to create an issue to be kept in reserve and not in a sincere effort to obtain a speedy trial is supported by the evidence. Further the petitioner has not established any improper reason for the delay. Indeed, the conviction in petitioner's first trial belies the suggestion that the state intentionally delayed the retrial to gain some unspecified tactical advantage over petitioner.

The circumstances of this case mitigate the otherwise oppressive nature of an eighteen month pretrial incarceration. Pursuant to Tex.Code Crim.Pro. art. 42.03 Sec. 2, (Vernon Supp.1987), Millard will receive credit on his 35 year sentence for the time he served pending retrial. Gray, 724 F.2d at 1204. It is apparent that Petitioner having been convicted once, was not eager to face another Texas jury and preferred instead to use his time served as leverage in the plea negotiation process.

Finally, Petitioner has failed to show that his defense was impaired by the delay of which he now complains. There is no evidence that any witness that his trial counsel wished to present was lost during the delay. Likewise petitioner does not contend that any physical evidence was destroyed or otherwise became unavailable for his second trial. Further, Petitioner had the benefit of a complete transcript from his first trial to assist him in preparing for the second. Millard has failed to meet his burden to show prejudice.

After consideration and balancing of the four Barker elements we conclude that Petitioner's Sixth Amendment speedy trial rights were not violated. Accordingly, Petitioner is not entitled to federal habeas relief on his speedy trial claim.

2. Invalid Enhancement

Petitioner asserts that his conviction in the present case was enhanced by a constitutionally invalid prior conviction. He contends that the prior conviction was based on a fatally defective charging instrument.

In this Circuit, the sufficiency of a state charging instrument "is not a matter for federal habeas corpus relief unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction." Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir.1984) quoting Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir.1980). "Jurisdiction to try an offense includes jurisdiction to determine whether the offense is properly charged." Murphy v. Beto, 416 F.2d 98, 100 (5th Cir.1969). Therefore, the question of whether a defective charging instrument deprived the state court of jurisdiction is foreclosed to a federal habeas court if "the sufficiency of the [charging instrument] was squarely presented to the highest court of the state on appeal, and that...