Rheuark v. Shaw

• Citation: 477 F. Supp. 897
• Decision Date: 31 August 1979
• Docket Number: CA3-76-1336-F and CA3-77-444-F.,No. CA3-76-171-F,CA3-76-171-F
• Parties: Jack RHEUARK v. Bill SHAW, Paul T. Bastas, Don Metcalf, John Whittington, David Pickett, Jim Jackson, Jim Tyson, Roy Orr, and County of Dallas. John DOESCHER v. Paul T. BASTAS, Don Metcalf, John Whittington, David Pickett, Jim Jackson, Jim Tyson, Roy Orr, and the County of Dallas. Robert Allen JORDAN v. Paul T. BASTAS, Hon. Don Metcalf, John H. Whittington, David Pickett, Jim Jackson, Jim Tyson, Roy Orr, and County of Dallas.
• Court: U.S. District Court — Northern District of Texas

477 F. Supp. 897

Jack RHEUARK v. Bill SHAW, Paul T. Bastas, Don Metcalf, John Whittington, David Pickett, Jim Jackson, Jim Tyson, Roy Orr, and County of Dallas.

John DOESCHER v. Paul T. BASTAS, Don Metcalf, John Whittington, David Pickett, Jim Jackson, Jim Tyson, Roy Orr, and the County of Dallas.

Robert Allen JORDAN v. Paul T. BASTAS, Hon. Don Metcalf, John H. Whittington, David Pickett, Jim Jackson, Jim Tyson, Roy Orr, and County of Dallas.

Nos. CA3-76-171-F, CA3-76-1336-F and CA3-77-444-F.

United States District Court, N. D. Texas, Dallas Division.

July 3, 1979.

August 31, 1979.

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Vincent W. Perini and Elizabeth Unger Carlyle, Dallas, Tex., for plaintiff Rheuark.

Tedford E. Kimbell and Janet L. Babcock, Allen, Knuths, Cassell & Short, Dallas, Tex., for plaintiff Doescher.

Molly Steele Bishop, Thompson & Knight, Dallas, Tex., for plaintiff Jordan.

John B. Tolle, Gerald A. Banks, Sue LaGarde, Asst. Dist. Attys., Dallas, Tex., for all defendants.

On Award of Attorney Fees August 31, 1979.

MEMORANDUM OPINION

ROBERT W. PORTER, District Judge.

Doescher, Jordan and Rheuark were convicted in the Texas state courts of various criminal offenses. They each sought to appeal their convictions to the Texas Court of Criminal Appeals, but it took between nine and twenty-three months for the transcription of the court proceedings to be prepared by the court reporter. Each Plaintiff alleges that these delays violated their constitutional rights to speedy appeal and due process, and that they are entitled to damages and injunctive relief under 42 U.S.C. § 1983. The court, in summary, holds:

(1) The delays in this case violated Plaintiffs' constitutional due process rights on appeal, for which Rheuark and Doescher are each entitled to $1.00 as nominal damages and Jordan is entitled to $3,000 actual damages, but they are not entitled to any injunctive relief or punitive damages;

(2) Judge Metcalf is judicially immune for his judicial acts which caused Plaintiffs' injuries;

(3) Absolute legislative immunity appeals to local government officials performing legislative acts and the Dallas County Commissioners are entitled to legislative immunity for their legislative acts which caused Plaintiffs' injuries;

(4) Dallas County is liable for damages and attorneys' fees because the actions of the Commissioners constituted a policy and custom of Dallas County that violated Plaintiffs' rights;

(5) Court reporters are entitled to greater qualified immunity than state executive officials, and Bastas is entitled to qualified immunity for his acts which caused Plaintiffs' injuries; and

(6) Under 42 U.S.C. § 1988 attorneys fees are taxed as costs, and in this case are taxed as such against judges, legislators and court reporters in their official capacities despite claims of absolute judicial and legislative immunity, and claims of qualified immunity for court reporters.

John Doescher was convicted of aggravated robbery on March 12, 1975 in Criminal District Court No. 2 in Dallas, Texas, and on March 20, 1975 the trial judge sentenced him to 75 years in prison. Doescher filed a timely notice of appeal on April 11, 1975 by filing a pauper's oath in which he requested the trial judge to appoint an attorney to represent him on appeal and to order the court reporter to prepare a statement of facts free of charge.

The statement of facts was completed on December 6, 1976 and Doescher's conviction was affirmed by the Texas Court of Criminal Appeals on September 27, 1978. Doescher's motion for rehearing was denied on March 21, 1979. The time that elapsed between ordering his statement of facts to be prepared and the actual preparation of the statement of facts was 20 months.¹

Robert Allen Jordan was convicted of carrying a prohibited weapon in a tavern on October 5, 1976 in Criminal District Court No. 2 in Dallas, Texas, and on October 22, 1976 the trial judge sentenced him to 12 years in prison and a $3,000.00 fine. Jordan gave a timely notice of appeal on October 22, 1976 and the trial judge then ordered the court reporter to prepare a statement of facts covering the proceedings in Jordan's trial.

The statement of facts was completed on July 22, 1977. Jordan's conviction was reversed and remanded by the Texas Court of Criminal Appeals for a new trial. On April 20, 1978, Jordan entered a plea of guilty to the charge and received a sentence of three years, with credit for time served since March 8, 1976. Jordan was released from the Texas Department of Corrections on May 1, 1978.

The time that elapsed between ordering his statement of facts to be prepared and the actual preparation of the statement of facts was nine months.²

Jack Rheuark was convicted of armed robbery in January, 1975 in Criminal District Court No. 2 in Dallas, Texas, and on February 10, 1975 the trial judge sentenced him to 99 years in prison. Rheuark filed a timely notice of appeal on February 10, 1975 and the trial judge then ordered the court reporter to prepare a statement of facts concerning the proceedings in Rheuark's trial.

Rheuark's statement of facts was completed on January 21, 1977. Rheuark's conviction was affirmed by the Texas Court of Criminal Appeals.

The time that elapsed between ordering the statement of facts to be prepared and the actual preparation of the statement of facts was 23 months, 11 days.³

RHEUARK'S PRO SE REPRESENTATION

Plaintiff Rheuark in certain pro se petitions and at a hearing on February 21, 1979, expressed some dissatisfaction with the attorney's representation alleging that his court appointed counsel had not raised a claim under 42 U.S.C. § 1985 and had failed to subpoena certain witnesses. The court advised the Plaintiff that he had no right to counsel in a 1983 action, and that he could represent himself.

You have a right to represent yourself⁴ or you have a right to be represented by counsel⁵, but you can't have some of each.⁶ You go one way or the other and that's clearly the law when there is an attorney at record in the case . . . You are represented by highly competent counsel particularly in this field . . . but I want you to tell me what you wish to do.

Hearing February 21, 1979 at 5-6

The Court also stated "(i)f the evidence raised the issue of conspiracy . . . I would likely grant a trial amendment to . . . let the pleadings conform with the evidence." Hearing February 21, 1979 at 7-8.

Plaintiff Rheuark then elected to proceed to trial represented by counsel. The evidence presented at trial raised the issue of a conspiracy, and therefore the Court permits Plaintiff Rheuark to amend his complaint by including a conspiracy claim under 42 U.S.C. § 1985(2) and (3) that he was denied equal protection of the laws by his failure to receive a speedy appeal.

EXHAUSTION OF STATE REMEDIES

A petitioner must exhaust his state remedies in a § 1983 or a § 1985 civil suit for damages where the damage is related to the underlying criminal conviction and when he seeks injunctive relief under 42 U.S.C. § 1983. 42 U.S.C. § 1983; 42 U.S.C. § 1985; Fulford v. Klein, 529 F.2d 377 (5th Cir. 1976) aff'd en banc, 550 F.2d 342 (5th Cir. 1977); Gaito v. Ellenbogen, 425 F.2d 845 (3rd Cir. 1970). Exhaustion of state remedies is not required where the federal suit is independent of any habeas allegations. Id.

Doescher has exhausted his state remedies. He filed pro se briefs with the Texas Court of Criminal Appeals contending that he had been denied his right to a speedy appeal. The Texas Court of Criminal Appeals considered his arguments and concluded:

"We have reviewed appellant's pro se supplemental briefs and have concluded that their consideration would add nothing to the jurisprudence of this state and they are hereby overruled."

Doescher v. State, 578 S.W.2d 385 (Tex. Crim.App.1978).

Doescher's motion for rehearing was denied March 21, 1979.⁷

Jordan has exhausted his state remedies because his conviction was overturned by the Texas Court of Criminal Appeals, and he subsequently pled guilty to time served and was released from prison on May 1, 1978.

Rheuark has technically not exhausted his state court remedies. Although Rheuark did raise the denial of his statement of facts in a successful attempt to avoid the exhaustion requirement before he received his statement of facts, see Rheuark v. Wade, 540 F.2d 1282 (5th Cir. 1976), he has apparently never alleged before a state or federal court that such denial entitled him to any habeas corpus relief other than receipt of his statement of facts. Rheuark has received his statement of facts.

Exhaustion of state remedies is not required when a petitioner seeks damages and injunctive relief against state court officials for their alleged failure to forward a state trial court transcript to the State Appellate Court if the petitioners are not seeking relief from their sentences, 42 U.S.C. § 1983; Rheuark v. Shaw, 547 F.2d 1257 (5th Cir. 1977)⁸, and therefore Doescher, Jordan and Rheuark are not required to exhaust their state remedies.

SIXTH AMENDMENT RIGHT TO SPEEDY APPEAL

The Sixth Amendment to the Constitution guarantees that "(i)n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . ." U.S.Const. Amendment VI. The right to a speedy trial extends to the sentencing of a defendant and an unreasonable delay may constitute a violation of the Sixth Amendment. Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United States v. Campbell, 531 F.2d 1333 (5th Cir. 1976); United States v. James, 459 F.2d 443 (5th Cir. 1972).

An early Supreme Court decision held that an appeal from a state judgment of conviction was not a matter of right, and was not a necessary element of due process. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, ...