Proctor v. Cockrell

• Decision Date: 12 March 2002
• Docket Number: No. 00-20698.,00-20698.
• Citation: 283 F.3d 726
• Parties: Aaron Dwayne PROCTOR, and Jonathon L. Lemell, Petitioners-Appellants, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 726

283 F.3d 726

Aaron Dwayne PROCTOR, and Jonathon L. Lemell, Petitioners-Appellants, v.Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 00-20698.

United States Court of Appeals, Fifth Circuit.

March 12, 2002.

Michael B. Charlton(argued), Houston, TX, for Petitioners-Appellants.

Charles A. Palmer, Asst. Atty. Gen. (argued), Austin, TX, for Respondent-Appellee.

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

Before KING, Chief Judge, and DAVIS and MAGILL,^* Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Aaron Proctor and Jonathon Lemell appeal from the district court's denial of their petitions for writs of habeas corpus under 28 U.S.C. § 2254.Petitioners argue that the Texas Court of Criminal Appeals' retroactive application of a new judicial interpretation of Texas law shifting the burden of proof to the defendant to establish the statute of limitations as a defense violates the Due Process Clause of the Fourteenth Amendment.Under the standard of review provided in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which governs this case, we conclude that the decision of the Texas Court of Criminal Appeals was not "contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court."Accordingly, we affirm the district court's denial of habeas relief.

I.

On January 29, 1982, five men, including Aaron Proctor and Jonathon Lemell robbed Wing K. Lew, Yit Oi Lew(Wing's wife), and Gloria Windom at gunpoint in the small grocery store that the Lews operated in Houston, Texas.During the robbery, Proctor shot Mr. Lew in the head and killed him.

The case reaches us following an extensive procedural history.On July 29, 1982, a Texas grand jury indicted petitioners for aggravated robbery of Mr. Lew by placing Ms. Lew in fear of imminent bodily injury or death.A jury found petitioners guilty of the aggravated robbery offense.The Texas Fourteenth Court of Appeals reversed the convictions, however, because of error in the jury selection process.

On January 8, 1988, almost six years after the commission of the offense, a grand jury again indicted petitioners, this time for aggravated robbery of Mr. Lew by causing serious bodily injury to him.The jury again found petitioners guilty.

While the jury was deliberating at the punishment stage of the trial, petitioners moved for a directed verdict of acquittal on the ground that the state had failed to prove beyond a reasonable doubt that the prosecution was brought within the five-year statute of limitations period for aggravated robbery.Petitioners argued that because the crime was committed on January 29, 1982, but the second indictment was not filed until January 8, 1988, nearly six years later, their prosecution was timebarred absent proof beyond a reasonable doubt to the contrary.At a hearing on this motion, the state conceded that it had presented no evidence at trial to establish that the prosecution was timely, but it proffered evidence to the court to that effect at that time.¹At the conclusion of the hearing, the trial court denied petitioners' motions for acquittal.The jury subsequently assessed Proctor's sentence at life imprisonment and Lemell'sat 65 years' imprisonment.

The Texas Eleventh Court of Appeals reversed petitioners' convictions on grounds that the convictions violated the Double Jeopardy Clause of the United States Constitution.The Texas Court of Criminal Appeals("the TCCA") reversed the judgment of the court of appeals on this issue and remanded the case to that court to consider other alleged points of error.On remand, the court of appeals affirmed petitioners' convictions, holding that petitioners could not argue that their prosecution was time-barred because they had failed to make a timely objection.Petitioners filed another appeal.

The TCCA again reversed the court of appeals, this time on the limitations issue.²The TCCA stated that "[t]he State has the burden to prove that the offense was committed within the statute of limitations period."³The court then cited a line of cases to support this proposition.⁴The TCCA explained that "[a]defendant's failure to object to a limitations defect on the face of the indictment does not relieve the State of its burden of proving at trial that the alleged offense occurred within the limitations period."⁵In light of this holding, the TCCA remanded the case again to the court of appeals to determine whether the state had presented sufficient evidence at trial of the timeliness of the prosecution to sustain the convictions.⁶

On the second remand, the court of appeals determined that the evidence at trial was insufficient to establish that the prosecution was timely brought and, therefore, ordered acquittals.The TCCA then granted the State's petitions for discretionary review to reconsider its earlier ruling.In its second opinion on the limitations issue, issued on March 11, 1998, the TCCA overruled its prior precedent, including its previous decision in this case, and held that the burden of proof on limitations initially belongs to the defense, not the prosecution.⁷Under this new rule, the defendant must assert limitations as a defense before the conclusion of the guilt-innocence stage of the trial.⁸If the defendant asserts a limitations defense, only then must the prosecution prove beyond a reasonable doubt that the prosecution is timely.⁹In reaching this result, the TCCA acknowledged that it had "held repeatedly that the State must always prove, as part of its burden of proof in a criminal prosecution, that the prosecution is not limitations-barred, even if the defendant does not raise the issue."¹⁰The TCCA then stated, however, that its previous cases lacked consistency, citing three cases in support of this proposition.¹¹

Finally, the TCCA concluded that retroactive application of the new limitations rule did not violate petitioners' due process rights because it did not "deprive them, retroactively, of fair warning of what conduct will give rise to which criminal penalties."¹²Relying on Collins v. Youngblood,¹³the court reasoned that its decision did not run afoul of the Due Process Clause because it did "not retroactively alter the definition of aggravated robbery as it existed in 1982, its range of punishment, or the substantive defenses that were available with respect to it."¹⁴

In August 1999, Proctor and Lemell petitioned for writs of habeas corpus under 28 U.S.C. § 2254.The district court granted the State's motion for summary judgment and denied the petitions without opinion.Petitioners now appeal.

II.

A.

In a federal habeas appeal, this court reviews the district court's grant of summary judgment de novo,¹⁵"applying the same standard of review to the state court's decision as the district court."¹⁶Because Proctor and Lemell filed their habeas petitions after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),¹⁷ that statute supplies the appropriate standard of review of the state court's order.In relevant part, the AEDPA provides that a federal court may grant habeas relief to a state prisoner where the state court's decision"was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."¹⁸The phrases "contrary to" and "unreasonable application of" have meanings independent of each other and establish "two categories of cases in which a state prisoner may obtain federal habeas relief with respect to a claim adjudicated on the merits in state court."¹⁹Therefore, we evaluate the TCCA's decision under each of these standards in turn below.

B.

We first consider whether the TCCA's retroactive application to petitioners of the new limitations rule is "contrary to ... clearly established federal law, as determined by the Supreme Court."²⁰A state court decision is "contrary to ... clearly established federal law, as determined by the Supreme Court" in two circumstances: (1) where "the state court applies a rule that contradicts the governing law set forth in [Supreme Court]cases;" or (2) where "the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts."²¹The Supreme Court has not decided a case on facts materially indistinguishable from the one at hand.Therefore, our task is to determine whether the TCCA's retroactive application of the new limitations rule to Proctor and Lemell contradicted clearly established Supreme Court law as it existed on March 11, 1998, the date of the TCCA's decision.²²This requires an analysis of Supreme Court law up to that date.

The Ex Post Facto Clause provides that "[n]o State shall ... pass any ... ex post facto Law."²³As its text makes clear, the Clause limits the powers of legislatures and does not, of its own force, apply to the judiciary.²⁴The Supreme Court has long recognized, however, that "limitations on ex post facto judicial decisionmaking are inherent in the notion of due process."²⁵Therefore, the Supreme Court's ex post facto jurisprudence forms the starting point of the due process inquiry.²⁶

The touchstone of the Supreme Court's ex post facto jurisprudence is Calder v. Bull.²⁷In that opinion, Justice Chase described four categories of prohibited ex post facto laws:

1st.Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d.Every law that aggravates a crime, or makes it greater that it was, when committed. 3d.Every law that changes the punishment, and inflicts a greater punishment, that the law annexed to the crime, when committed. 4th.Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the...