Walters v. Scott, 92-1297

• Decision Date: 31 May 1994
• Docket Number: No. 92-1297,92-1297
• Citation: 21 F.3d 683
• Parties: Victor Wayne WALTERS, Petitioner-Appellant. v. Wayne SCOTT, Director, Texas Dep't of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 683

21 F.3d 683

Victor Wayne WALTERS, Petitioner-Appellant. v. Wayne SCOTT, Director, Texas Dep't of Criminal Justice Institutional Division, Respondent-Appellee.

No. 92-1297.

United States Court of Appeals Fifth Circuit.

May 31, 1994.

Robert Matthew Kyle, Lynn, Stodghill & Melsheimer, L.L.P., Dallas, TX (court-appointed), for appellant.

R. Ray Buvia, C. Rex Hall, Jr., Asst. Attys. Gen., Dan Morales, Atty. Gen. of Texas, Austin, TX, for appellee.

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

Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

WISDOM, Circuit Judge:

A state prisoner appeals from the district court's dismissal of his petition for a writ of habeas corpus. The district court dismissed the petition as untimely under Rule 9(a) of the Rules Governing Section 2254 Cases ("Section 2254 Rules"). ¹ We conclude that the state has not met its burden of making a particularized showing of prejudice sufficient to support a Rule 9(a) dismissal. Accordingly, we REVERSE the district court's dismissal of the petition and REMAND to the district court for an evidentiary hearing.

I.

On August 16, 1978, petitioner/appellant Victor Wayne Walters was indicted for murdering Donald Lee Blagg. Walters was indigent, so the state trial court appointed Douglas H. Parks, a Dallas attorney, to represent him. Parks advised Walters to plead guilty. Walters did. The trial judge sentenced Walters to life in prison.

This case involves Walters's attempt to obtain appellate review of his life sentence. According to Walters's habeas petition, he told Parks he wanted to appeal his life sentence, and Parks assured him an appeal would be filed. The record, however, contains no entry indicating that an appeal in Walters's case was ever filed. The state makes much of the presence in the record of a written waiver of appeal. That waiver was ineffective to waive Walters's right to appeal, however. Only Parks signed the waiver of appeal. Neither Walters nor the trial judge, whose signatures the waiver form also required, signed it. ² Parks later stated that it was his usual practice to give an oral notice of appeal in open court, and that he had "no reason to believe that his custom and practice was different in this case". ³

On November 30, 1978, three and a half months after his conviction, Walters wrote to Parks inquiring about the status of his appeal. ⁴ Parks responded on December 16, 1978 with a letter in which he wrote:

This is to advise you that notice of appeal was given in the above named and numbered cause on August 16, 1978. However, I was appointed by the Court to represent you at trial and have not been appointed as appellate attorney of record. You should contact the District Clerk to see who has been appointed to represent you on appeal. ⁵

Parks's letter to Walters gave the wrong docket number. The letter referred to a notice of appeal having been filed in case "No. F78-6242-N"; Walters's case was numbered "F78-7290-IN". The record lists no written notice of appeal in case F78-7290-IN.

After doing some research to the best of his limited ability, ⁶ Walters wrote to the state court in which he was convicted to ask about taking an appeal and having appellate counsel appointed. On October 5, 1979, the trial court held that Walters's notice of appeal was untimely.

Over nine years later, in February 1989, Walters filed a pro se petition for a writ of habeas corpus in a Texas district court. He alleged that he had been denied adequate assistance of counsel and had been denied the right to appeal his sentence. The state court, without holding a hearing, denied his petition on March 27, 1989. The Texas Court of Criminal Appeals affirmed the denial without opinion on June 7, 1989. By first seeking a writ of habeas corpus from the courts of Texas, Walters exhausted his state remedies.

Walters then filed a pro se petition for a writ of habeas corpus in federal district court. He again charged that he had been (1) denied adequate assistance of counsel because his trial counsel had failed to file a notice of appeal, (2) denied his right to appeal his sentence, and (3) denied equal protection of the laws. The case was referred to a magistrate judge who, without holding an evidentiary hearing, recommended that his petition be denied as untimely under Rule 9(a) of the Section 2254 Rules. ⁷ On February 25, 1992, the district court adopted the magistrate judge's findings and conclusions and dismissed Walters's petition. The district court denied Walters a certificate of probable cause. He appealed, and on December 28, 1992, Judge Edith H. Jones of this Court granted him a certificate of probable cause ⁸ on the grounds that "[t]here is a substantial question whether the State's allegations of prejudice are relevant to the issue raised by the petitioner". We appointed counsel to represent Walters on this appeal.

II.

At the outset we should emphasize the limited nature of our inquiry. This case presents one question: has the State of Texas made a sufficient showing of prejudice to support dismissal of Walters's petition under Rule 9(a). The merits of Walters's habeas petition, i.e., whether he was denied adequate assistance of counsel, are not before this Court. His petition is not frivolous. ⁹

The state bears a heavy burden in seeking a dismissal based on Rule 9(a) of the Section 2254 Rules. Rule 9(a) codifies the equitable doctrine of laches as applied to habeas corpus petitions. ¹⁰ The application of Rule 9(a) must be carefully limited to avoid abrogating the purpose of the writ of habeas corpus. ¹¹ The burden is on the state to (1) make a particularized showing of prejudice, (2) show that the prejudice was caused by the petitioner having filed a late petition, and (3) show that the petitioner has not acted with reasonable diligence as a matter of law. ¹² The showing of prejudice must be based on the specific challenge raised in the petition; mere passage of time alone is never sufficient to constitute prejudice. ¹³ The state must show that it has been prejudiced in its ability to respond to the allegations in the petitioner's petition; it is irrelevant that the state has been prejudiced in its ability successfully to convict the petitioner again. ¹⁴ The prejudice must have been caused by the petitioner's unreasonable delay in bringing the petition. Finally, the petitioner's delay in bringing the petition must have been unreasonable as a matter of law.

If the state makes its showing of these elements, the burden of going forward shifts to the petitioner to show either (1) that the state actually is not prejudiced, or (2) that the petitioner's delay is "based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred". ¹⁵

A. Prejudice

Walters's petition alleges that he received ineffective assistance of counsel because Parks never perfected Walters's appeal and never properly withdrew from the case. Walters also charges that he was denied effective assistance of counsel when the trial court refused to appoint counsel to represent him on appeal.

The state must make a particularized showing of how the delay has prejudiced its ability to defend against those allegations. The state relies chiefly for its allegation of prejudice on Parks's inability to find his main case file or to remember why the records do not reflect a timely notice of appeal, and on the death of the court reporter and the unavailability of the statement of facts from Walters's plea colloquy and sentencing. ¹⁶ The state also contends that ambiguity in the record supports its allegation of prejudice.

The state relies on Parks's affidavit submitted in the state habeas proceeding to support its assertion that it has been prejudiced because, the state contends, Parks has no recollection of the circumstances of Walters's case. In that affidavit, Parks stated that "[a]fter a diligent search, [he] has been unable to locate his main file after the passage of time"; that it was his "custom and practice to give oral notice of appeal, in open court, immediately after the pronouncement of sentence"; that he "has no reason to believe that his custom and practice was different in this case, particularly in light of his letter to [Walters] of December 16, 1978"; and that he "has no knowledge or recollection of any circumstances surrounding the failure of the records [in the state court] failing to reflect timely notice of appeal". Parks's affidavit does not state unequivocally that he has no recollection of any of the circumstances surrounding Walters's case. Therefore, the affidavit, standing alone, is insufficient to establish that the state has been prejudiced by Parks's lack of recollection. On remand, the state will have the opportunity to call Parks to testify at the evidentiary hearing and may, at that time, seek to establish prejudice on this basis.

We turn next to the state's allegations concerning the court reporter's death and unavailability of records. Our focus is on the facts surrounding Walters's sentencing. Walters has put substantial evidence in the record suggesting that, immediately after his sentencing, he wanted to appeal and said so. This evidence includes (1) Walters's apparent refusal to sign a waiver of appeal; (2) Walters's letter to Parks asking about the status of his appeal; (3) Parks's reply stating that he had given a notice of appeal; (4) Walters's letter to the state court inquiring about an appeal; and (5) Parks's affidavit recalling that it was his general practice to give oral notices of appeal in cases like Walters's. From the record, it is clear that Walters intended to appeal, and there is substantial, though conflicting, evidence that Parks intended to appeal as well. ¹⁷ The state challenges none of this evidence, but instead hypothesizes that Walters might have waived his right to...