Weaver v. McKaskle

• Decision Date: 21 May 1984
• Docket Number: No. 83-1215,83-1215
• Citation: 733 F.2d 1103
• Parties: Frederick Douglas WEAVER, Petitioner-Appellant, v. Dan V. McKASKLE, Acting Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1103

733 F.2d 1103

Frederick Douglas WEAVER, Petitioner-Appellant, v. Dan V. McKASKLE, Acting Director, Texas Department of Corrections, Respondent-Appellee.

No. 83-1215.

United States Court of Appeals Fifth Circuit.

May 21, 1984.

Sylvia Mandel, Staff Counsel for Inmates, TDC, Laurel D. Owens, Huntsville, Tex., for petitioner-appellant.

Jim Mattox, Atty. Gen., El Paso, Tex., Charles A. Palmer, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before POLITZ, RANDALL and JOLLY, Circuit Judges.

RANDALL, Circuit Judge:

In this habeas corpus proceeding, we are called upon to decide if the district court properly denied relief because of the appellant's failure to comply with the applicable state contemporaneous objection rule. For the reasons that follow, we affirm.

I. Factual and Procedural Background.

The appellant, Frederick Weaver, was convicted of aggravated robbery in 1977 in Texas state court. At the punishment phase of the trial, the prosecution introduced evidence of two prior convictions, one from Illinois in 1960 for automobile theft, and one from Kansas in 1965 for robbery. ¹ Weaver's attorney objected to the introduction of the Illinois conviction on the grounds that Weaver had been pardoned and that it was no longer a final conviction. ² The court overruled the objection. The jury assessed, and the court imposed, a life sentence.

In 1980, in a state habeas proceeding, the Illinois conviction was reversed by an Illinois appellate court on the ground that a bona fide doubt existed as to whether Weaver had been competent to stand trial in 1960, and no hearing had been held to determine his competency. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). As we have indicated, this was not the ground upon which Weaver objected to the introduction of the Illinois conviction at his 1977 trial.

On appeal, Weaver contends 1) that because his competency was at issue with regard to the Illinois conviction, he was not required in 1977 to comply with the Texas contemporaneous objection rule; 2) that even if the contemporaneous objection rule is applicable, he has demonstrated cause for his failure to object properly and prejudice resulting from the introduction of the Illinois conviction; and 3) that the district court erred in failing to address Weaver's contention that the full faith and credit clause required the Texas courts to reverse his 1977 conviction in light of Illinois' reversal of his 1960 conviction.

II. The Contemporaneous Objection Rule.

In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court held that a state defendant procedurally defaults a claim by failing to comply with the state's contemporaneous objection rule, and that this procedural default precludes consideration of the claim in a federal habeas corpus proceeding absent a showing of cause and prejudice. Id. at 87, 97 S.Ct. at 2506. Under Texas law, a defendant's failure to object at trial to the introduction of an allegedly infirm prior conviction precludes a later attack upon the conviction that utilized the prior conviction. See Hill v. State, 633 S.W.2d 520, 525 (Tex.Cr.App.1981) (en banc). The Texas rule applies even where the alleged error is of constitutional dimension. See Hill, supra; Garcia v. State, 541 S.W.2d 428 (Tex.Cr.App.1976); Gibson v. State, 516 S.W.2d 406 (Tex.Cr.App.1974).

Weaver argues, however, that Wainwright v. Sykes and the Texas contemporaneous objection rule are inapplicable in his case. He contends that, because no contemporaneous objection is required to preserve the issue of competency to stand trial, see Pate v. Robinson, supra, neither should one be required when the objection is to the use of a prior conviction allegedly infirm because of the defendant's incompetency. This argument is fundamentally illogical. While it is an accurate statement of the law that no contemporaneous objection with regard to competency is required at the time of the trial that the defendant was allegedly incompetent to undergo, this case does not present that situation. Here, whether or not Weaver was competent to stand trial in Illinois in 1960, there is no allegation that Weaver was incompetent in Texas in 1977. It does not follow from the fact that there was a bona fide doubt in 1960 as to Weaver's competency that he was not required to raise the proper objection in 1977. Thus, we think that Wainwright v. Sykes and the Texas contemporaneous objection rule are applicable in this case.

III. Cause and Prejudice.

Weaver contends that, even if Wainwright v. Sykes is applicable, it does not bar his action because he has demonstrated cause for his failure to raise the proper objection at his 1977 trial, and prejudice resulting from the admission of the 1960 Illinois conviction. Weaver argues that if he was incompetent and incapable of understanding the proceedings against him in 1960, he can not be expected to object to that proceeding seventeen years later. He asserts that "[t]he 'cause' of Petitioner's failure to properly object is evident: due to incompetency he did not know what precisely was the error in his prior conviction." Brief for Appellant at 7.

In Wainwright v. Sykes, the Supreme Court held that a procedural default in state court bars federal habeas review of the alleged error unless the defendant can establish "cause and prejudice." The Court declined to define precisely the boundaries of the cause and prejudice standard, rejecting, however, the standard that had previously been set forth in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), which would make federal habeas review generally available to state convicts absent a knowing and deliberate waiver of the federal constitutional contention. 433 U.S. at 87, 97 S.Ct. at 2506. More recently, in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), the Court explored the cause and prejudice issue, again declining to state an explicit standard ³ but providing guidelines helpful to us today.

In Isaac, the defendants had failed to object at trial to a jury charge that placed on them the burden of proving self-defense. They sought relief for their procedural default on two grounds: first, that they could not have known at the time of trial that the due process clause addressed the burden of proof of an affirmative defense; and second, that any objection would have been futile because the state in question had long required criminal defendants to bear the burden of proving an affirmative defense.

The Supreme Court rejected both arguments, noting that In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), upon which the Isaac defendants could have based a constitutional objection, had been decided four years prior to their trials. The Court stated:

We note at the outset that the futility of presenting an objection to the state courts cannot alone constitute cause for a failure to object at trial. If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim.

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We need not decide whether the novelty of a constitutional claim ever establishes cause for a failure to object. We might hesitate to adopt a rule that would require trial counsel either to exercise extraordinary vision or to object to every aspect of the proceedings in the hope that some aspect might mask a latent constitutional claim.

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Where the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labelling alleged unawareness of the objection as cause for a procedural default.

102 S.Ct. at 1572-75 (footnotes omitted). ⁴ Courts that have applied Engle v. Isaac have uniformly refused to find "cause" for a failure to object at trial. See, e.g., Long v. McKeen, 722 F.2d 286, 287-88 (6th Cir.1983) (failure to object because of attorney's ignorance or incompetence), cert. denied, --- U.S. ----, 104 S.Ct. 1608, 80 L.Ed.2d 138 (1984); Farmer v. Prast, 721 F.2d 602, 606 (7th Cir.1983) (failure to object based on "insulating jurors from prejudicial argument"); Webster v. Engle, 721 F.2d 566, 568-69 (6th Cir.1983) (failure to object to jury instruction that violated state law). In this circuit, we have held that cause is not shown where the state court's alleged misunderstanding of the law would have rendered an objection "meaningless." Bass v. Estelle, 696 F.2d 1154, 1157 (5th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983). We have also held that alleged incompetence of counsel in failing to object does not constitute cause under Wainwright v. Sykes. Washington v. Estelle, 648 F.2d 276, 278 (5th Cir.), cert. denied, 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981). We do not think that Weaver's argument in the instant case compels a different result under Engle v. Isaac.

Weaver does not contend that a constitutional objection based on Pate v. Robinson to the validity of his 1960 conviction would have been novel in 1977. Neither does he argue that such an objection would have been futile. Rather, it is the Court's holding in Engle v. Isaac with regard to the availability of a basis for a constitutional claim, regardless of the defendant or his counsel's unawareness of such a claim, that is dispositive in this case. As we have noted, the basis for Weaver's constitutional objection--the Illinois court's failure to hold a competency hearing--had been established since Pate v. Robinson in 1966. Weaver was bound to assert this objection at his trial notwithstanding the fact that the 1960 conviction had not yet been reversed. ⁵ His argument attempting to justify his failure to do so based upon his alleged...