White v. Johnson

• Decision Date: 09 July 1999
• Docket Number: No. 96-40978,96-40978
• Citation: 180 F.3d 648
• Parties: Larry Joe WHITE, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, 1 Respondent-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 648

180 F.3d 648

Larry Joe WHITE, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, ¹

Respondent-Appellee.

No. 96-40978.

United States Court of Appeals, Fifth Circuit

July 9, 1999.

Larry Joe White, Huntsville, TX, pro se.

Ross Rayburn, Austin, TX, for Respondent-Appellee.

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

Before HIGGINBOTHAM, DUHE and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Texas prisoner Larry Joe White appeals from the district court's judgment denying White's 28 U.S.C. § 2254 petition for writ of habeas corpus. White is before the Court pro se and in forma pauperis. White claims that trial counsel failed to inform him of his appellate rights, thereby depriving him of the right to appeal. White seeks permission to file an out-of-time appeal.

The district court relied upon state court fact findings that counsel did not fully inform White with respect to his appellate rights. The district court nonetheless denied relief because White had not identified any meritorious issues to be raised on direct appeal. Where counsel's failure to advise a criminal defendant of his appellate rights causes the defendant to lose the right to appeal his conviction or sentence, prejudice is presumed, and relief does not depend upon whether the defendant would have been able to raise meritorious issues on appeal. See United States v. Gipson, 985 F.2d 212, 215 (5th Cir.1993); Childress v. Lynaugh, 842 F.2d 768, 772 (5th Cir.1988); Thor v. United States, 574 F.2d 215, 221 (5th Cir.1978); Lumpkin v. Smith, 439 F.2d 1084, 1085 (5th Cir.1971). White has demonstrated that counsel's deficient performance deprived him of the right to appeal. We therefore reverse the district court's judgment denying relief and remand for entry of an order providing that the writ of habeas corpus will issue unless the State of Texas elects to cure the constitutional violation by permitting White to file an out-of-time appeal.

BACKGROUND

In July 1989, White was indicted on charges that he sexually assaulted his minor son. White was arrested in New York and returned to Texas. Counsel was appointed to represent White, but shortly thereafter permitted to withdraw. The trial court appointed a second lawyer, who negotiated a plea bargain with the state. In March 1990, White pleaded guilty pursuant to that plea bargain in exchange for ten years deferred adjudication probation. See TEX.CODE CRIM.P. art. 42.12 § 5(a). White was also ordered to pay court costs, restitution and probation fees.

White thereafter failed to pay restitution and probation fees as mandated in the trial court's order deferring adjudication. In September 1991, the state filed a motion for revocation of White's probation and a petition requesting that the trial court proceed to a final adjudication of White's guilt and the imposition of an appropriate sentence. Shortly thereafter, White's second lawyer was replaced by a third appointed lawyer, Craig Barlow. In January 1992, White, counseled by Barlow, pleaded true to the allegations in the state's petition for adjudication of guilt. The trial court then found White guilty, but delayed sentencing to allow time for preparation of a presentence report. After consideration of the presentence report, the trial court sentenced White to fifteen years in prison. The trial court entered final judgment on February 2, 1992.

On April 22, 1992, White filed a pro se notice of appeal by mailing the same to the county clerk. The notice was received by the Fifth District Court of Appeals in Dallas, Texas on May 4, 1992. The trial court ordered a transcript of the proceedings in White's case, and it was forwarded to the Texas Court of Appeals. On July 13, 1992, the Texas Court of Appeals notified White that his appeal would be dismissed as untimely because it was not filed within thirty days, as required by Texas Rule of Appellate Procedure 41(b)(1).

On June 21, 1994, White filed a state application for habeas corpus with the Texas Court of Criminal Appeals, alleging that counsel's failure to inform him of his appellate rights, and particularly the time frame in which an appeal must be filed, caused him to lose the opportunity to appeal certain issues relating to the trial court's judgment. The Texas Court of Criminal Appeals remanded the matter to the state trial court for further exploration of White's factual allegations. The trial court ordered attorney Barlow to file an affidavit responding to White's allegations that he was not advised of his right to appeal. Barlow testified by affidavit that he advised White that the state's allegations of non-payment would be difficult to oppose, but that the trial court might be persuaded to continue the deferred adjudication if White could provide an adequate explanation for the non-payment. Barlow therefore advised White to plead true to the state's allegations. Barlow testified that he explained to White that pleading true would limit those arguments that might be successfully presented on appeal. Barlow counseled White that any appeal following a plea of true would probably be unsuccessful. These conversations apparently occurred in the context of White's decision to plead true to the state's allegations and before White was convicted and sentence was imposed.

Barlow conceded that he did not specifically advise White that he had a right to appeal, or that he had thirty days in which to perfect an appeal. Barlow testified that he assumed White did not want to appeal because White did not contact Barlow after sentence was imposed. Based upon this evidence, the state trial court entered findings: (1) that the trial court did not implicitly grant White permission to appeal by transferring the statement of facts to the Texas Court of Criminal Appeals, and (2) that trial counsel failed to apprise White that he had thirty days in which to appeal. These findings were referred to the Texas Court of Criminal Appeals, which summarily denied relief without opinion.

White then filed this federal petition for habeas corpus relief. The district court referred the matter to a magistrate judge, who entered an order directing White to identify the issues he desired to present on direct appeal in the Texas courts. After White responded with a list of issues for consideration, the magistrate judge recommended that relief be denied because White failed to identify meritorious issues for appeal. The district court agreed, granting judgment in favor of the Director and denying White's petition for habeas corpus relief. White moved for a certificate of probable cause for appeal in the district court, which was denied. This Court later granted CPC on the issue of whether White's trial counsel was ineffective for failing to fully inform him of his appellate rights.

DISCUSSION

White maintains that he is entitled to an out-of-time appeal because neither his appointed counsel nor the trial court informed him of his appellate rights. Construed liberally, White's pleadings allege that he was denied the effective assistance of counsel because counsel's failure to inform him of his appellate rights caused him to lose the opportunity to appeal. Ineffective assistance of counsel claims are controlled by the familiar two-pronged test defined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under that test, White must demonstrate that counsel's conduct was constitutionally deficient in that it fell below an objective standard of reasonableness as measured by prevailing professional norms. Id. at 2064; see also Gipson, 985 F.2d at 215. White must also demonstrate that he was prejudiced by counsel's deficient performance. Strickland, 104 S.Ct. at 2064; Gipson, 985 F.2d at 215. A defendant is prejudiced by counsel's failure to fully inform him of his appellate rights when that failure actually causes the defendant to lose the right to appeal. See Gipson, 985 F.2d at 215; United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989); Martin v. Texas, 737 F.2d 460, 462 (5th Cir.1984); Norris v. Wainwright, 588 F.2d 130, 135 (5th Cir.1979) (all requiring that counsel's unprofessional errors, rather than some other factor, actually cause the denial of defendant's right to appeal). The defendant is not required to demonstrate that he would present merit worthy issues on appeal. See, e.g., Gipson, 985 F.2d at 215; Childress, 842 F.2d at 772.

I. Deficient Performance

We begin by examining the scope of counsel's constitutional duty to inform a criminal defendant of his appellate rights. Criminal defense counsel is not burdened by any general duty to perfect an appeal of every criminal conviction. Childs v. Collins, 995 F.2d 67, 69 (5th Cir.1993). The decision whether to appeal is made by the defendant. See United States v. Faubion, 19 F.3d 226, 231 (5th Cir.1994); Childs, 995 F.2d at 69 n. 1; Norris, 588 F.2d at 137. But counsel is constitutionally required to fully inform the defendant as to his appellate rights. See Faubion, 19 F.3d at 231; Childs, 995 F.2d at 69; see also Gipson, 985 F.2d at 215; Martin, 737 F.2d at 462; Lamb v. Estelle, 667 F.2d 492, 496 (5th Cir.1982); Norris, 588 F.2d at 135-37; Lumpkin, 439 F.2d at 1085. Counsel's duty to a criminal defendant in this context requires more than simply notice that an appeal is available or advice that an appeal may be unavailing. See Gipson, 985 F.2d at 215; Martin, 737 F.2d at 461-62. "The Constitution requires that the client be advised not only of his right to appeal, but also of the procedure and time limits involved and of his right to appointed counsel on appeal." Faubion, 19 F.3d at 231 (internal quotes omitted); see also Childs, 995 F.2d at 69; Norris, 588 F.2d at 134-35; Lumpkin, 439 F.2d at 1085. Counsel's failure to so advise a defendant once a conviction is entered falls below prevailing professional standards and is...