Walters v. Scott, No. 92-1297

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore WISDOM, BARKSDALE, and EMILIO M. GARZA; WISDOM
PartiesVictor Wayne WALTERS, Petitioner-Appellant. v. Wayne SCOTT, Director, Texas Dep't of Criminal Justice, Institutional Division, Respondent-Appellee.
Decision Date31 May 1994
Docket NumberNo. 92-1297

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.

Page 685

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

Page 686

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)

Page 687

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...

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32 practice notes
  • Figueroa v. Portuondo, No. 97 Civ. 2920(AKH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 10, 1999
    ...filed a late petition, and (3) show that the Petitioner has not acted with reasonable diligence as a matter of law." Walters v. Scott, 21 F.3d 683, 686-87 (5th Cir.1994); see also Hill, 697 F.2d at 1035; Honeycutt v. Ward, 612 F.2d 36, 41-42 (2d Cir.1979), cert. denied, 446 U.S. 985, 100 S.......
  • U.S. v. Crouch, No. 93-7719
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 30, 1996
    ...loss of witnesses or documents occurring before delay becomes improper are not considered. See, e.g., Parks at 868. Cf. Walters v. Scott, 21 F.3d 683, 688-89 (5th 28 We observe that the Lovasco Court, while reversing the dismissal prior to trial for preindictment delay, commented in a footn......
  • Smith v. Secretary of New Mexico Dept. of Corrections, No. 93-2218
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 7, 1995
    ...years old. This defense of prejudice in the ability to respond is equitable in nature, akin to laches. See, e.g., Walters v. Scott, 21 F.3d 683, 686 (5th Cir.1994) ("Rule 9(a) codifies the equitable doctrine of laches as applied to habeas corpus petitions.") (footnote omitted); Smith v. Duc......
  • Williams v. Sims, No. 04-1154.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 1, 2004
    ...Blackburn, 750 F.2d 438, 443-44 (5th Cir.1985) (11 years). But because abuse of the writ was the equivalent of laches, Walters v. Scott, 21 F.3d 683, 686-87 (5th Cir.1994), proof that the respondent's ability to defend the case had been impaired by the petitioner's delay was required, Natio......
  • Request a trial to view additional results
32 cases
  • Figueroa v. Portuondo, No. 97 Civ. 2920(AKH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 10, 1999
    ...filed a late petition, and (3) show that the Petitioner has not acted with reasonable diligence as a matter of law." Walters v. Scott, 21 F.3d 683, 686-87 (5th Cir.1994); see also Hill, 697 F.2d at 1035; Honeycutt v. Ward, 612 F.2d 36, 41-42 (2d Cir.1979), cert. denied, 446 U.S. 985, 100 S.......
  • U.S. v. Crouch, No. 93-7719
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 30, 1996
    ...loss of witnesses or documents occurring before delay becomes improper are not considered. See, e.g., Parks at 868. Cf. Walters v. Scott, 21 F.3d 683, 688-89 (5th 28 We observe that the Lovasco Court, while reversing the dismissal prior to trial for preindictment delay, commented in a footn......
  • Smith v. Secretary of New Mexico Dept. of Corrections, No. 93-2218
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 7, 1995
    ...years old. This defense of prejudice in the ability to respond is equitable in nature, akin to laches. See, e.g., Walters v. Scott, 21 F.3d 683, 686 (5th Cir.1994) ("Rule 9(a) codifies the equitable doctrine of laches as applied to habeas corpus petitions.") (footnote omitted); Smith v. Duc......
  • Williams v. Sims, No. 04-1154.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 1, 2004
    ...Blackburn, 750 F.2d 438, 443-44 (5th Cir.1985) (11 years). But because abuse of the writ was the equivalent of laches, Walters v. Scott, 21 F.3d 683, 686-87 (5th Cir.1994), proof that the respondent's ability to defend the case had been impaired by the petitioner's delay was required, Natio......
  • Request a trial to view additional results

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