Vela v. Estelle

• Decision Date: 05 July 1983
• Docket Number: No. 82-1236,82-1236
• Citation: 708 F.2d 954
• Parties: Conrado VELA, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 954

708 F.2d 954

Conrado VELA, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

No. 82-1236.

United States Court of Appeals Fifth Circuit.

July 5, 1983.

Thomas E. Baker, Texas Tech Univ., School of Law, Lubbock, Tex., Court-Appointed, for petitioner-appellant.

Brenda K. Smith, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before THORNBERRY, RUBIN and TATE, Circuit Judges.

THORNBERRY, Circuit Judge:

INTRODUCTION:

Petitioner Conrado Vela, a prisoner in the Texas Department of Corrections, appeals from the district court's denial of his petition for a writ of habeas corpus alleging ineffective assistance of counsel. We conclude that Vela's counsel at his sentencing proceeding was constitutionally deficient, and that counsel's errors resulted in actual and substantial disadvantage to his client's defense. Accordingly, we reverse the district court's judgment and remand with instructions to grant the writ unless the State elects within a reasonable time to retry Vela.

FACTS AND PROCEDURAL HISTORY:

On the evening of July 1, 1973, a dispute erupted between petitioner's brother, Fred Vela, and Kenneth Brown, a clerk at the convenience store where the disturbance occurred. Brown accepted Fred Vela's invitation to "step outside" and settle their differences. As they left the store, they encountered petitioner, Conrado Vela, who became involved in the dispute. Brown punched petitioner in the mouth, knocking him off his feet, then went back into the store. Enraged, petitioner sped home, retrieved his automatic pistol, and returned to the store twenty minutes later. Upon entering the store, he opened fire on Brown. Petitioner fired six to eight times, striking Brown in the back and killing him. Petitioner then returned home, where he was later arrested.

Petitioner [hereinafter Vela] pled guilty in open court to the indictment charging him with murder with malice of Kenneth Brown. The guilty plea was accepted by the trial court and repeated for the jury. Under the Texas procedure in effect at that time, the jury then had the option of finding Vela guilty of murder with malice aforethought, which carried a punishment of two years to life, or murder without malice aforethought, carrying a term of two to five years imprisonment. ¹

The jury found Vela guilty of murder with malice aforethought and assessed his punishment at 99 years confinement in the Texas Department of Corrections.

Vela shortly thereafter appealed his conviction in state court through court-appointed counsel, urging three points of error: 1) The trial court erred in admitting testimony by Harvey Martin as to Brown's good character, when that was not in issue; 2) The trial court erred in admitting testimony by Brown's widow that was irrelevant, immaterial and calculated solely to prejudice the jury; 3) The trial court erred in failing to grant Vela's motion for a mistrial on the ground that the State's closing argument to the jury was harmful, prejudicial and manifestly improper.

The Texas Court of Criminal Appeals ruled that: 1) Although it was error to admit the prejudicial character testimony, Vela's counsel failed to make a specific objection sufficient to preserve the error for review; 2) Testimony by Brown's widow was completely irrelevant, immaterial, and prejudicial. However, since all but a small portion of this inadmissible testimony was admitted in other testimony without an objection from Vela's counsel, there was no reversible error; 3) Because counsel failed to specifically object to the State's closing argument as outside the record and inflammatory, the alleged error was waived. Unable to reach the merits of any of Vela's asserted points of error because of counsel's failure to preserve them for review by making the proper objections, the Court affirmed Vela's conviction. Vela v. State, 516 S.W.2d 176, 176-179 (Tex.Cr.App.1974).

Vela next filed a petition for habeas corpus in the court that had convicted him, alleging that he had been denied his constitutional right to effective assistance of counsel at his sentencing proceeding. The court concluded that Vela had received effective assistance of counsel, and recommended that all relief be denied. The Texas Court of Criminal Appeals then denied Vela's application without written order.

Vela next applied pro se for federal habeas corpus relief under 28 U.S.C.A. Sec. 2254 (West 1977), again claiming ineffective assistance of counsel. The magistrate concluded that trial counsel's "inartful" performance "more than adequately represented the Petitioner," and alternatively found that even if counsel's performance was seriously inadequate, Vela had failed to show that the sentencing proceeding was so unfairly prejudicial as a whole to be "fundamentally unfair" in light of the overwhelming evidence of guilt. The district court adopted the magistrate's findings, conclusions and recommendation, and dismissed Vela's petition. Vela appeals that dismissal to this Court.

ANALYSIS:

Exhaustion Requirement

We are faced at the outset with the State's contention that Vela's supplemental brief to this Court contains claims which the state habeas court never had the opportunity to consider. ² The State maintains that we may not entertain these unexhausted claims, and must dismiss Vela's petition as mixed. Specifically, the State alleges that Vela now for the first time claims that his attorney at trial failed to prepare him for questions regarding his guilty plea, neglected to make a large number of objections he should have made, or objected on improper grounds, failed to properly stipulate to evidence, and performed inadequately in his summation. The State does not object to Vela's citation on appeal of the three central errors urged in his state habeas petition as grounds for a finding that counsel was ineffective, viz. 1) failure to properly object to prejudicial character testimony, 2) failure to properly object to Brown's widow's testimony, and 3) failure to properly object to the State's closing argument.

The principle that a state prisoner must normally exhaust all available state remedies before he can apply for federal habeas relief has been established for nearly a century. See Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886). This exhaustion requirement, now codified at 28 U.S.C.A. Secs. 2254(b), (c), ³ "serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights." Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 1202-03, 71 L.Ed.2d 379 (1982).

Exhaustion is not a jurisdictional prerequisite, but derives from considerations of comity between the state and federal judicial systems. ⁴ Felder v. Estelle, 693 F.2d 549 (5th Cir.1982); Galtieri v. Wainwright, 582 F.2d 348, 354 (5th Cir.1978). The rule that a state prisoner is required to exhaust his state remedies before he applies for federal habeas relief is not graven in stone. Minor v. Lucas, 697 F.2d 697 (5th Cir.1983). To have exhausted his state remedies, a habeas petitioner must have fairly presented the substance of his claim to the state courts. Picard, 92 S.Ct. at 513 (1971). It is not enough that petitioner has merely been through the state courts. Id. 92 S.Ct. at 512.

Normally, the exhaustion requirement is not satisfied if a petitioner presents new legal theories ⁵ or entirely new factual claims in his petition to the federal court. Brown v. Estelle, 701 F.2d 494 (5th Cir.1983); Winfrey v. Maggio, 664 F.2d 550, 553 (5th Cir.1981); Hart v. Estelle, 634 F.2d 987, 989 (5th Cir.1981); Messelt v. State of Alabama, 595 F.2d 247, 250 (5th Cir.1979).

Here, there is no dispute that the alleged sixth amendment violation and its underlying legal theories were presented to both the state habeas court and the federal district court. Vela argued before both courts that counsel's failure to render reasonably effective assistance deprived him of his sixth amendment right to counsel, as incorporated in the fourteenth amendment due process clause.

The only dispute here is over those instances of alleged substandard conduct cited in this appeal which were not explicitly enumerated in Vela's state habeas petition.

This Court has normally refused to review on habeas entirely new factual claims never presented to the state habeas court. Brown, 701 F.2d at 495-96; Burns v. Estelle, 695 F.2d 847, 849-50 (5th Cir.1983); Hart, 634 F.2d at 989; Knoxson v. Estelle, 574 F.2d 1339, 1340 (5th Cir.1978). In Brown, petitioner supplemented the record on appeal with three affidavits that corroborated several substantially unsupported contentions argued before the state court. We affirmed the district court's dismissal of Brown's petition for failure to exhaust available state remedies. In Hart, we remanded with directions to dismiss the habeas petition because it presented entirely new medical testimony never considered by the state court. In Knoxson, we dismissed the petition because it contained new factual allegations based on documents which became part of the record only after the state habeas court had dismissed the petition. Similarly, in Burns, we found that petitioner had failed to exhaust his state remedies when he presented in support of his ineffective assistance of counsel claim entirely new evidence of the existence of a deceased alibi witness whom his attorney arguably should have called to testify at trial. None of this evidence was presented to the state habeas court. As we stated in Burns:

The "substance" of Burns' claim is quite different in his federal petition. For the first time, he...