Saldano v. Roach
| Decision Date | 23 March 2004 |
| Docket Number | No. 03-40905.,03-40905. |
| Citation | 363 F.3d 545 |
| Parties | Victor Hugo SALDANO, Petitioner-Appellee, Doug Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee, v. John R. ROACH, District Attorney of Collin County, Texas, Movant Plaintiff-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John Anthony Stride (argued), McKinney, TX, for Roach.
Stanley G. Schneider, Schneider & McKinney, Houston, TX, for Petitioner-Appellee.
Matthew F. Stowe (argued), Melanie P. Sarwal, Asst. Solicitor General, Austin, TX, for Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of Texas.
Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.
Victor Hugo Saldano was convicted of a capital offense and sentenced to death. Saldano subsequently filed a petition for writ of habeas corpus in federal court challenging his sentence. John R. Roach, the District Attorney of Collin County, Texas, appeals the district court's denial of his application to intervene as of right in Saldano's habeas corpus suit. For the following reasons, we affirm in part and dismiss in part.
In 1996, a Texas jury convicted Saldano of capital murder. During the punishment phase of Saldano's trial, the Collin County District Attorney ("District Attorney") called Dr. Walter Quijano, a psychologist, to testify as an expert witness. Dr. Quijano provided the jury with a list of twenty-four unweighted factors that he advised the jury to use in evaluating Saldano's future dangerousness. One of the factors was race. As to this factor, Dr. Quijano stated that Saldano was Hispanic, pointed out that Hispanics were over-represented in the Texas prison system, and opined that there was a correlation between race and ethnicity and future dangerousness. During closing arguments, the District Attorney reminded the jury to consider the twenty-four factors laid out by Dr. Quijano when assessing Saldano's future dangerousness. Saldano did not object either to Dr. Quijano's testimony or to the District Attorney's reference to it during his closing argument; instead, he met Dr. Quijano's testimony through cross-examination and the presentation of a rebuttal witness.
After hearing all the evidence, the jury found that there was a probability that Saldano would commit criminal acts of violence that would constitute a continuing threat to society. In addition, the jury found insufficient mitigating circumstances to warrant life imprisonment rather than the death penalty. Consequently, the trial judge sentenced Saldano to death.
Saldano appealed directly to the Texas Court of Criminal Appeals, claiming that he had been denied due process of law because his race and ethnicity were improperly used to support a finding of future dangerousness during the punishment phase of his trial. The District Attorney argued that, because Saldano did not object to Dr. Quijano's testimony, Saldano's claim was procedurally barred by Texas's contemporaneous objection rule. The Court of Criminal Appeals affirmed Saldano's conviction and sentence, after finding that Saldano's claim was, indeed, procedurally barred.
The United States Supreme Court granted certiorari. Before the Supreme Court, the Attorney General of the State of Texas assumed representation of the State.1 The Attorney General confessed error in Saldano's sentencing and declined to raise Saldano's procedural default as a defense. The Supreme Court vacated the judgment against Saldano and "remanded to the Court of Criminal Appeals of Texas for further consideration in light of the confession of error." Saldano v. Texas, 530 U.S. 1212, 1212, 120 S.Ct. 2214, 147 L.Ed.2d 246 (2000).2
On remand, the State Prosecuting Attorney,3 with the District Attorney's help, represented the State before the Court of Criminal Appeals. The Attorney General submitted a brief as amicus curiae. Once again, the Court of Criminal Appeals ruled that Saldano's claim was procedurally barred. Saldano v. State, 70 S.W.3d 873, 891 (Tex.Crim.App.2002) (en banc).
Saldano subsequently petitioned the United States District Court for the Eastern District of Texas for a writ of habeas corpus. The Attorney General — representing Doug Dretke, in his official capacity as Director of the Texas Department of Criminal Justice, Institutional Division — confessed error and waived Saldano's procedural default. The District Attorney filed an application to intervene as of right to oppose Saldano's petition on procedural-default and harmless-error grounds. The district court held that the political-question doctrine prevented it from considering the merits of the District Attorney's application for intervention.4
The District Attorney appealed. In Saldano v. O'Connell, 322 F.3d 365, 371 (5th Cir.2003), we held that the district court erred in finding that the District Attorney's application for intervention presented it with a non-justiciable political question. Therefore, we reversed the district court's order and remanded the District Attorney's application to the district court for disposition on the merits. Id.
On remand, the district court denied the District Attorney's application for intervention and granted Saldano's petition for a writ of habeas corpus. Saldano v. Cockrell, 267 F.Supp.2d 635 (E.D.Tex.2003). The District Attorney appeals both the order denying his application for intervention and the judgment granting Saldano's petition for a writ of habeas corpus. Director Dretke did not appeal the district court's judgment, but he did file a brief in opposition to the District Attorney's appeal.
This court reviews de novo a district court's decision to deny an application for intervention under Rule 24(a)(2) of the Federal Rules of Civil Procedure. Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.1994); cf. 6 JAMES WM. MOORE et al., MOORE'S FEDERAL PRACTICE § 24.24[2][b], at 24-94 to 24-95 (3d ed. 2003) (describing circuit split).5
Intervention as of right under Rule 24(a)(2) is proper when:
(1) the motion to intervene is timely; (2) the potential intervener asserts an interest that is related to the property or transaction that forms the basis of the controversy in the case into which she seeks to intervene; (3) the disposition of that case may impair or impede the potential intervener's ability to protect her interest; and (4) the existing parties do not adequately represent the potential intervener's interest.
Doe v. Glickman, 256 F.3d 371, 375 (5th Cir.2001). The District Attorney claims that he meets all four of Rule 24(a)(2)'s requirements. The district court, however, ruled that the District Attorney did not meet the second requirement for intervention because he had failed to "establish that his direct, substantial, legally protectable interests [would] be impaired or impeded by the disposition of th[e] case in his absence as a party." Saldano, 267 F.Supp.2d at 641. We agree.
To meet the second requirement for Rule 24(a)(2) intervention, a potential intervenor must demonstrate that he has an interest that is related to the property or transaction that forms the basis of the controversy. Doe, 256 F.3d at 375. Not any interest, however, is sufficient; the interest must be "direct, substantial, [and] legally protectable." Id. at 379 (alteration in original) (internal quotation marks omitted). We have explained that "the interest [must] be one which the substantive law recognizes as belonging to or being owned by the applicant." New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 464 (5th Cir.1984) (en banc). In addition, the intervenor should be the real party in interest regarding his claim. Id.
In this suit against Director Dretke, the real party in interest is the State of Texas. See Diamond v. Charles, 476 U.S. 54, 57 n. 2, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (). And, although the District Attorney claims to have the authority to act as the State's representative in this case, state law provides otherwise. Under Texas law, a district attorney's duties and responsibilities are defined by statute. State v. Allen, 32 Tex. 273, 275 (1869). Texas law does not grant district attorneys the authority to represent either state officials, such as Director Dretke, or the State in a federal habeas corpus proceeding. See TEX.CODE CRIM. PROC. ANN. art. 2.01 (Vernon Supp. 2004) ().6 Instead, as the District Attorney concedes, Texas law gives the Attorney General the authority to represent Director Dretke and the State in suits such as this. See Sierra Club v. City of San Antonio, 115 F.3d 311, 314 (5th Cir. 1997) (); League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 844 (5th Cir.1993) (en banc) ().
Furthermore, since the Attorney General is properly representing the State in this case, Texas law does not permit the District Attorney to assume representation of the State as well. Under Texas law, "either the Attorney General or a county or district attorney may represent the State in a particular situation, but these are the only choices, whichever official represents the State exercises exclusive authority and if services of other lawyers are utilized, they must be `in subordination' to his authority." Hill v. Tex. Water Quality Bd., 568 S.W.2d 738, 741 (Tex.Civ.App. — Austin 1978, writ ref'd n.r.e.); cf. Saldano, 70...
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