La Rosa v. Davis
| Decision Date | 25 July 2018 |
| Docket Number | Civil Action No. B-17-cv-00099 |
| Parties | JAVIER DE LA ROSA, JR., Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
Before the Court is Petitioner Javier De La Rosa, Jr.'s pro se "Petition for a Writ of Habeas Corpus by a Person in State Custody" (hereinafter, De La Rosa's "§ 2254 Petition" or "Petition"). Dkt. No. 1. The Court is also in receipt of Respondent's "Motion for Summary Judgment with Brief in Support" ("Respondent's Motion"). Dkt. No. 77. For the reasons stated herein, it is recommended that (1) Respondent's Motion be DENIED, (2) De La Rosa's Petition be GRANTED, unless an out-of-time appeal is extended, and (3) this case be REMANDED to the 107th Judicial District Court, for reentry of judgment upon which the time for De La Rosa to file a notice of appeal will begin anew.
This Court has jurisdiction over De La Rosa's Petition pursuant to 28 U.S.C. § 1331 and § 2254.
Javier De La Rosa, Jr. was arrested for the murder of Tiffany Vanessa Galvan on August 25, 2010. Dkt. No. 16-4 at 22-24. On October 8, 2010, a Cameron County, Texas, juvenile court found probable cause to believe that De La Rosa had committed murder. Dkt. No. 71-1 at 28-29. The court transferred the case to the 197th Judicial District Court for De La Rosa to be tried as an adult. Id.
A grand jury indicted De La Rosa for capital murder on January 12, 2011. Dkt. No. 16-4 at 24. He pleaded guilty to the lesser included offense of murder on March 8, 2012. Dkt. No. 15-15 at 4-8. Following a trial on punishment, a jury sentenced De La Rosa to 90 years of imprisonment. Dkt. No. 16-7 at 59-60. Judgment was entered on May 4, 2012, and the trial court noted that De La Rosa had waived "his right to direct appeal or post-conviction writs of habeas corpus as to his guilty plea and conviction for the offense of Murder." Id. at 60-64. De La Rosa filed a notice of appeal on June 5, 2012. Id. at 81.
1. During representation by Garza
Reynaldo Garza, III was appointed to serve as De La Rosa's appellate counsel. Dkt. No. 16-7 at 81. Noting the trial court's certification that De La Rosa did not have the right to appeal, the Thirteenth Court of Appeals (the "appellate court" or the "Thirteenth Court") ordered Garza to brief the issue of De La Rosa's appellate rights. Dkt. No. 18-15 at 2. Garza complied on July 18, 2012, and filed amotion for the appellate court to hold that De La Rosa's waiver of appeal did not apply to his sentencing proceedings. Dkt. No. 18-12 at 8, 10. The appellate court granted the motion on November 16, 2012. Id. at 1.
Garza filed an Anders brief seeking to withdraw from his representation of De La Rosa on April 3, 2013.1 Dkt. No. 16-2. De La Rosa responded to the Anders brief with a pro se motion for an extension of time to file a reply brief, alternatively to be construed as De La Rosa's pro se response to the Anders brief. Dkt. No. 42-3 at 22-23. On July 30, 2013, the Thirteenth Court abated the appeal for "a determination of what constitutes a complete record." Dkt. No. 19-3 at 61-62.
On August 15, 2013, the trial court held a hearing, with De La Rosa present, "to determine status of record on appeal from the Thirteenth Court of Appeals." Dkt. No. 19-15. An assistant district attorney informed the court that he and De La Rosa had "entered into an agreement to supplement the record with those three items that the cause has been remanded for this Trial Court to make a determination on." Id. at 5. In an "Agreed Supplementation of the Record by Written Stipulation" with the State, De La Rosa stipulated that several records had been hand-delivered to him. Dkt. No. 16-8 at 4. Upon hearing about the stipulation, the trial court found that the relevant documents had been inadvertently omitted from the record on appeal, but had been made available to De La Rosa, by agreement of the parties, and were to be sent to the Thirteenth Court. Id. at 6. The next day, the trial court received a previously mailed, pro se motion byDe La Rosa to be represented by counsel at the hearing regarding the completeness of the record. Dkt. No. 16-10 at 41. The trial court denied the motion as untimely "because Defendant failed to urge said motion at the hearing and because he did not file it until the day after the hearing was held." Id. at 46, 48. His case returned to the appellate court, De La Rosa submitted a new pro se filing on November 18, 2013, to be construed in the alternative as another pro se response to Garza's Anders brief. Dkt. No. 42-3 at 39.
The appellate court entered an order abating the appeal on January 6, 2014. Dkt. No. 18-10. In its order, the court acknowledged the various pro se motions from De La Rosa, and considered them "together with the other pro se pleadings on file, as appellant's pro se brief in this matter." Id. at 2.2 The court stated: Id. at 3. The court noted that Garza "did not have the entire record when he filed his Anders brief." Id. The court granted Garza's motion to withdraw, abated the appeal, and remanded the case to the trial court for appointment of a new appellate attorney. Id. A brief on the merits was to be due thirty days after the filing of a supplemental record of the proceedings. Id. at 3-4.
2. During representation by RuBane
Rebecca RuBane was appointed to serve as De La Rosa's new appellate counsel on January 13, 2014. Dkt. No. 16-10 at 54. The appellate court reinstated De La Rosa's appeal and set a deadline for RuBane to file the appellant's brief by February 14, 2014. Dkt. No. 16-17. Despite granting RuBane three extensions of time, the court had still not received the appellant's brief by July 1, 2014. Dkt. No. 16-19. In the meantime, De La Rosa filed (1) a letter asking to be notified of all court actions, because RuBane was not sending him any communications, (2) a letter he sent to RuBane, asking why he had not heard from her and urging her to raise the "arguable issues" identified by the appellate court, and (3) a motion for leave to file pro se requests for another abatement of the appeal and appointment of new appellate counsel. Dkt. No. 42-3 at 92, 93, 96, 97, 100. In one such motion, filed May 30, 2014, De La Rosa stated that RuBane had not contacted him in the three months since she had been appointed. Id. at 97.
The appellate court ordered RuBane to file a brief by July 11, 2014. Dkt. No. 16-19. RuBane requested another extension of time to file the brief, and the court issued a "final" order for her to do so by July 18, 2014. Dkt. No. 17-1. RuBane failed to file the brief. Dkt. No. 17-11. The court again abated the appeal and remanded the case to the trial court for a hearing to determine "(1) whether appellant desires to prosecute this appeal; (2) why appellant's counsel has failed to file a brief and whether counsel has effectively abandoned the appeal; (3) whether appellant has been denied effective assistance of counsel; (4) whether appellant'scounsel should be removed; and (5) whether appellant is indigent and entitled to new court-appointed counsel." Id.
The trial court held a hearing on August 4, 2014, at which RuBane stated that she had been ill but anticipated that she could "have the brief ready within two weeks from today's date." Dkt. No. 19-14 at 4. The trial court stated it would make findings that the brief would be submitted in two weeks and that there was not a need to appoint a new attorney. Id. at 5. A supplemental clerk's record was filed in the appellate court on August 6, 2014. Dkt. No. 16-12.
On August 18, 2014, RuBane filed the "Appealant's Breif," which described itself as an Anders brief. Dkt. No. 16-3 (errors in original). RuBane's Anders brief exclusively presented points that had been raised by Garza in his Anders brief, using slightly different word choice and phrasing throughout. Compare id. with Dkt. No. 16-2. RuBane sought permission to withdraw from representation of De La Rosa. Dkt. No. 16-3 at 18. The appellate court ordered RuBane to resubmit her Anders brief within 10 days, as it "failed to: (1) provide appellant with a form motion for pro se access to the appellate record, mailing address of the Court, and instructions to file the motion within 10 days and (2) inform appellant of his pro se right to seek discretionary review should the Court of Appeals declare his appeal frivolous." Dkt. No. 18-7. RuBane did not do so, instead notifying the court that her computer had "crashed." Dkt. No. 17-20 at 3. De La Rosa filed a pro se letter asking the court to strike RuBane's Anders brief, or to grant him an extension of time to file a response. Dkt. No. 42-3 at 104. The court granted the extension. Dkt.No. 44.
The appellate court ordered RuBane to comply with its order to correct her Anders brief by September 19, 2014, and specified that if she did not, she would have to appear to "show cause why she should not be held in contempt of court." Dkt. No. 18-1. RuBane again did not comply. Dkt. No. 17-20 at 4. Over the next few days, the clerk of the court attempted to contact RuBane to assist her with filing the requisite information. Id. RuBane notified the court that "she was ready to file her notice, but was experiencing technical difficulties because her computer had again 'crashed.'" Id. RuBane subsequently filed two more documents, but neither complied with the court's order. Id.
The appellate court held a show-cause hearing on September 25, 2014. Dkt. No. 18-2. Despite being ordered to appear, RuBane...
To continue reading
Request your trial