Rocha v. Thaler

• Decision Date: 17 December 2010
• Docket Number: Nos. 09-70018,Nos. 05-70028,s. 05-70028,s. 09-70018
• Citation: 628 F.3d 218
• Parties: Felix ROCHA, Petitioner-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

628 F.3d 218

Felix ROCHA, Petitioner-Appellant,

v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

Nos. 05-70028, 09-70018.

United States Court of Appeals, Fifth Circuit.

Dec. 17, 2010.

Kathryn M. Kase (Court-Appointed), David R. Dow, Managing Sr. Counsel (argued) (Court-Appointed), Tex. Def. Serv., Houston, TX, for Rocha.

Edward Larry Marshall (argued), Postconviction Lit. Div., Austin, TX, for Thaler.

Appeal from the United States District Court for the Southern District of Texas; Melinda Harmon, Judge.

ON PETITION FOR REHEARING EN BANC

(Opinion Sept. 15, 2010, 5th Cir., 619 F.3d 387)

(Panel Rehearing Denied Nov. 17, 2010)

Before JOLLY, HIGGINBOTHAM and HAYNES, Circuit Judges.

PER CURIAM:

The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor (Fed. R.App. P. And 5th Cir. R. 35), the Petition for Rehearing En Banc is DENIED.

Voting against en banc rehearing were: Chief Judge Edith H. Jones, Judge Carolyn Dineen King, Judge E. Grady Jolly, Judge W. Eugene Davis, Judge Jerry E. Smith, Judge Emilio M. Garza, Judge Carl E. Stewart, Judge Edith B. Clement, Judge Edward C. Prado, Judge Priscilla R. Owen, and Judge Leslie H. Southwick.

Voting for en banc rehearing were: Judge Fortunato P. Benavides, Judge James L. Dennis, Judge Jennifer W. Elrod, and Judge Catharina Haynes.^*

Upon the filing of this order, the clerk shall issue the mandate forthwith. See Fed. R.App. P. 41(b).

DENNIS, Circuit Judge, joined by BENAVIDES, Circuit Judge, dissenting from the denial of rehearing en banc:

I respectfully dissent from the majority's refusal to grant rehearing en banc in Balentine v. Thaler, 626 F.3d 842 (5th Cir.2010), and Rocha v. Thaler, 626 F.3d 815 (5th Cir.2010).¹

The Supreme Court in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), announced the standard for determining "whether various forms of references to state law [by state courts] constitute adequate and independent state grounds." 463 U.S. at 1038, 103 S.Ct. 3469. That standard is: "[W]hen ... a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did becauseit believed that federal law required it do so." Id. at 1041, 103 S.Ct. 3469.

The Balentine and Rocha panel opinions do not adhere to and faithfully apply the Long standard. Instead, they engage in the "process of examining [and unauthorized- Erie guessing at] state law," which the Court in Long found to be "unsatisfactory because it requires [federal judges] to interpret state laws with which we are generally unfamiliar, and which often, as in this case, have not been discussed at length by the parties." Id. at 1039, 103 S.Ct. 3469. Further, the panel opinions, in effect, adopt the practice of denying federal court review "if the ground of the [state court] decision was at all unclear," which the Long Court expressly disapproved. See id. at 1038, 103 S.Ct. 3469 (rejecting Lynch v. New York, 293 U.S. 52, 55 S.Ct. 16, 79 L.Ed. 191 (1934), which the Court characterized as "tak[ing] the strict view that if the ground of decision was at all unclear, we would dismiss the case"). The Court in Long rejected "outright dismissal of [such] cases [because] there is an important need for uniformity in federal law, and ... this need goes unsatisfied when we fail to review an opinion that rests primarily upon federal grounds and where the independence of an alleged state ground is not apparent from the four corners of the opinion." Id. at 1039, 103 S.Ct. 3469.

In Balentine and Rocha, the panels' authors, after initially adhering to the Long standard, make volte-face and examine ambiguous and obscure state court data to guess that the unexplained dismissals of state habeas claims by the Texas Court of Criminal Appeals (CCA) are based on an independent and adequate state ground. I respectfully but strenuously disagree because these opinions seriously undermine the Long standard in our jurisdiction and retrogress into the ad hoc method of dealing with cases involving possible independent and adequate state grounds that the Supreme Court expressly disapproved as "antithetical to the doctrinal consistency that is required when sensitive issues of federal-state relations are involved." Id. at 1039, 103 S.Ct. 3469. For these reasons, I dissent from the very serious step the panel authors undertake, viz., departing from a full and faithful adherence to the Long standard, which the Court adopted in 1983 and has continuously adhered to in numerous decisions until the present day.

The Court's adherence to the full Long standard was demonstrated as recently as February 23, 2010, in Florida v. Powell, --- U.S. ----, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010). There, the question presented was whether advice that a suspect has "the right to talk to a lawyer before answering any of [the law enforcement officers'] questions," and that he can invoke this right "at any time ... during th[e] interview," satisfies Miranda. Id. at 1199-1200. The Court held that it does. Id. Before fully addressing the issue, however, the Court addressed Powell's contention that the Florida Supreme Court, by relying not only on Miranda but also on the Florida Constitution, rested its decision on an independent and adequate state ground. See id. at 1201 (citing Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ("This Court will not review a question of federal law decided by a state court if the decision ... rests on a state law ground that is independent of the federal question and adequate to support the judgment.")). " 'It is fundamental,' " the Court stated, " 'that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validityunder the federal constitution of state action.' " Id. (quoting Minnesota v. Nat'l Tea Co., 309 U.S. 551, 557, 60 S.Ct. 676, 84 L.Ed. 920 (1940))

"To that end," the Court recalled, "we announced, in [ Long] the following presumption":

"[W]hen ... a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so."

Id. at 1201-02 (quoting Long, 463 U.S. at 1040-41, 103 S.Ct. 3469). "At the same time," the Court further recalled, "we adopted a plain-statement rule to avoid the presumption: 'If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.' " Id. at 1202 (quoting Long, 463 U.S. at 1041, 103 S.Ct. 3469).

Ultimately, the Court in Florida v. Powell concluded that "[u]nder the Long presumption, we have jurisdiction to entertain this case. Although invoking Florida's Constitution and precedent in addition to this Court's decisions, the Florida Supreme Court treated state and federal law as interchangeable and interwoven; the court at no point expressly asserted that state-law sources gave Powell rights distinct from, or broader than, those delineated in Miranda." Id. at 1202 (citing Long, 463 U.S. at 1044, 103 S.Ct. 3469). This decision shows that Long is alive and well in the Supreme Court and must be adhered to by this Court of Appeals.

Contrary to the Balentine and Rocha writers' apparent impressions, the Supreme Court has not changed or weakened the Long standard's requirement that when a state court decision fairly appears "to be interwoven with ... federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion" we must assume that the state court decided as it did on the belief that federal law required it to do so. The Court's recent decision in Florida v. Powell emphasizes and turns on this very same provision. Nor, contrary to the panel authors' inference, has the Court treated its decision in Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), as changing the Long standard in any way. This is evidenced by Florida v. Powell's citation of Coleman only for the proposition that federal courts will not disturb state court decisions resting on state law grounds independent of federal questions and adequate to support the judgment. Id. at 1201.

Also, Chief Justice Rehnquist's opinion for the Court in Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995), emphatically refused to alter or overrule the Long standard, agreeing with Justice Ginsburg that " '[s]ince Long, we repeatedly have followed [its] "plain statement" requirement.' " Id. at 8 n. 2, 115 S.Ct. 1185 (quoting id. at 33, 115 S.Ct. 1185 (Ginsburg, J., dissenting), in turn quoting Harris v. Reed, 489 U.S. 255, 261 n. 7, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (opinion of Blackmun, J.)) (citing Illinois v. Rodriguez, 497 U.S. 177, 182, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (opinion of Scalia, J.); Pennsylvania v. Muniz, 496 U.S. 582, 588 n. 4, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (opinion of Brennan, J.); Maryland v. Garrison, 480 U.S. 79, 83-84 n. 4, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (opinion of Stevens, J.);Caldwell v. Mississippi, 472 U.S. 320, 327-28, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (opinion of...