Saldano v. O'Connell

• Decision Date: 18 February 2003
• Docket Number: No. 02-41208.,02-41208.
• Citation: 322 F.3d 365
• Parties: Victor Hugo SALDANO, Petitioner-Appellee, Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee, v. Tom O'CONNELL, Collin County Criminal District Attorney, Movant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 365

322 F.3d 365

Victor Hugo SALDANO, Petitioner-Appellee, Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee, v. Tom O'CONNELL, Collin County Criminal District Attorney, Movant-Appellant.

No. 02-41208.

United States Court of Appeals, Fifth Circuit.

February 18, 2003.

William Richard Thompson, II, Asst. Sol. Gen., Philip Andrew Lionberger, Deputy Sol. Gen., Austin, TX, for Respondent-Appellee.

Stanley G. Schneider, Schneider & McKinney, Houston, TX, for Petitioner-Appellee.

John Anthony Stride, McKinney, TX, for Movant-Appellant.

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

Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.

KING, Chief Judge:

In 1996, Victor Hugo Saldano was convicted and sentenced to death for the capital murder of Paul King. On appeal, we are asked to resolve whether the district court erred in holding that the Collin County District Attorney's application for intervention presented it with non-justiciable political questions.

FACTUAL AND PROCEDURAL BACKGROUND

The Collin County District Attorney's Office ("District Attorney") represented the State of Texas in this case at trial and on Saldano's direct appeal of his death sentence to the Texas Court of Criminal Appeals. During the punishment phase of the trial, the District Attorney called clinical psychologist Dr. Walter Quijano to testify as an expert regarding Saldano's potential for being a continuing threat to society. Dr. Quijano identified twenty-four unweighted "factors" that he deemed appropriate to the jury's sentencing determination. One of Dr. Quijano's statistical factors was race. As to this factor, Dr. Quijano correlated the over-representation of African Americans and Hispanics in the prison population (when compared to their percentages of the general population) with an increased susceptibility for "future dangerousness" within these races. Because Saldano is from Argentina, Dr. Quijano further testified that Saldano would be considered Hispanic. During closing arguments, the District Attorney reminded the jury to rely on the twenty-four factors outlined by Dr. Quijano in determining "future dangerousness" and to take the formula of twenty-four factors and "plug it in." Saldano's trial counsel failed to object to Dr. Quijano's testimony or the evidence and argument offered by the District Attorney regarding race.

The jury ultimately found that Saldano presented a continuing threat to society (by answering "yes" to the "future dangerousness" special issue question) and Saldano was thereafter sentenced to death by the trial court. On direct appeal to the Texas Court of Criminal Appeals, Saldano challenged the admissibility of Dr. Quijano's testimony. In response, the District Attorney argued that Saldano was procedurally barred from raising this claim. The Texas Court of Criminal Appeals agreed with the District Attorney and affirmed the judgment of the trial court.

On writ of certiorari to the United States Supreme Court, however, the Attorney General of Texas ("Attorney General") took over the representation of the State. The Attorney General confessed error and declined to raise the procedural bar defense previously argued by the District Attorney.¹ The Supreme Court thereafter vacated the judgment of the Texas Court of Criminal Appeals and remanded to the court for further disposition in light of the confession of error by the State. Saldano v. Texas, 530 U.S. 1212, 120 S.Ct. 2214, 147 L.Ed.2d 246 (2000).

On remand to the Texas Court of Criminal Appeals, the Attorney General again confessed error in the trial court. The Texas Court of Criminal Appeals, however, invited the District Attorney to file a brief and to share in oral argument. The District Attorney again argued that any error had been waived by Saldano. The court agreed and affirmed the judgment of the trial court. In so doing, it found that evidence regarding the correlation of race and recidivism did not constitute fundamental error and that "the State's confession of error in the Supreme Court of the United States is contrary to our state's procedural law for presenting a claim on appeal, as well as the Supreme Court's enforcement of such procedural law when it is presented with equal-protection claims." Saldano v. State, 70 S.W.3d 873, 891 (Tex.Crim.App.2002).

Saldano subsequently filed a petition for writ of habeas corpus in federal district court contending that the District Attorney's use of race as a factor in the jury's evaluation of future dangerousness constitutes fundamental error requiring reversal of his death sentence. In response, Respondent Janie Cockrell, through the Attorney General, acknowledged that "the infusion of race as a factor for the jury to weigh in making its determination violated [Saldano's] constitutional right to be sentenced without regard to the color of his skin," and "seriously undermined the fairness, integrity, or public reputation of the judicial process." The Attorney General did not raise, as a defense, that Saldano had waived this alleged error. The District Attorney moved to file a brief as amicus curiae; this motion was granted by the district court. While acknowledging that the Attorney General is the proper respondent for the State in this civil case, the District Attorney also filed an application to intervene as of right. On July 16, 2002, the district court held that the District Attorney's application for intervention presented it with non-justiciable political questions. The District Attorney appeals this order.

JURISDICTION and STANDARD OF REVIEW

Although the district court here styled its order as a denial of the District Attorney's application for intervention, it, in fact, did not opine on the merits of the application because it, sua sponte, found jurisdiction lacking. See, e.g., Gordon v. Texas, 153 F.3d 190, 196 (5th Cir.1998)("We do not interpret the district court's opinion, however, to be a formal disposition of the plaintiffs' cases on these other bases. The court held that the plaintiffs' claims were nonjusticiable under the political question doctrine. Having concluded that it lacked the power to adjudicate the plaintiffs' claims, logically the district court could not then proceed to address the merits of the other defenses raised by the defendants."). Instead, the district court specifically held that it had no jurisdiction to review the merits of the application. The Supreme Court has ruled that an "abstention-based stay order [i]s appealable as a `final decision' under [28 U.S.C.] § 1291 because it put[s] the litigants effectively out of court, and because its effect [i]s precisely to surrender jurisdiction of a federal suit." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 713, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (internal quotations and citations omitted). Likewise, as the district court order here concluding that it had no jurisdiction to review the District Attorney's application for intervention "put the litigant[] effectively out of court," id., the order "conclusively determine[d] an issue that is separate from the merits," id. at 714, 116 S.Ct. 1712, and is thus a "final decision" under § 1291.

The district court's order regarding its lack of jurisdiction to review the District Attorney's application for intervention is a "final decision" for purposes of this court having jurisdiction to hear the appeal under 28 U.S.C. § 1291. The relevant question of law that this court must review de novo, therefore, is whether the district court properly held that the District Attorney's application for intervention presents non-justiciable political questions. See Guillory v. Cain, 303 F.3d 647, 650 (5th Cir.2002) (holding that questions of law are reviewed de novo).

ANALYSIS OF THE DISTRICT COURT'S ORDER and THE POLITICAL QUESTION DOCTRINE

The district court sua sponte held that this case presents political questions, stating that:

Although the movant frames the issue as controlled by Fed.R.Civ.P. 24, whether to allow intervention under that rule cannot be separated from a political question. In other words, the question of whether a district attorney, who originally represented the state in criminal litigation, has a sufficient interest in the death sentence obtained in that litigation to allow him to intervene in collateral litigation about the constitutionality of the sentencing procedures employed in that litigation is inextricably bound up with the question of whether the State of Texas would prefer to preclude the federal court from considering the merits of Saldano's constitutional claim, or would instead prefer to allow the federal court to address the claim. The court must abstain from deciding political questions. See Public Citizen v. Bomer, 115 F.Supp.2d 743, 746 (W.D.Tex.2000), aff'd on other grounds, 274 F.3d 212 (5th Cir.2001); see also Baker v. Wade, 769 F.2d 289, 299 (5th Cir.1985), cert. denied, 478 U.S. 1022, 106 S.Ct. 3337, 92 L.Ed.2d 742 (1986) (Rubin, J., dissenting).

Upon review, we conclude that the questions presented by the District Attorney's application for intervention are justiciable.

Whether an issue presents a non-justiciable political question cannot be determined by a precise formula. The doctrine is primarily rooted in the constitutional separation of powers among the three branches of the federal government. See Powell v. McCormack, 395 U.S. 486, 518, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). As observed by the Supreme Court in Baker v. Carr, each of the varying formulations which may be used to describe a non-justiciable political question "has one or more elements which identify [the question] as essentially a function of the separation of powers." Id. at 217, 82 S.Ct. 691. The Baker Court outlined the scope of the political question doctrine by reviewing...