Ray Freeney v. Lorie Davis, Director
703 F. App'x 304
| 5th Cir. | 2017Background
- Freeney was convicted of capital murder in Texas and sentenced to death; state habeas counsel Leitner (with Charlton) filed a habeas petition alleging trial counsel ineffective assistance during punishment.
- Leitner withdrew; Donald Vernay was later appointed as successor state habeas counsel; the state courts (trial court and Texas Court of Criminal Appeals) denied relief on the merits after factual findings.
- In federal proceedings Vernay and Charlton were appointed; Charlton later withdrew, citing Martinez v. Ryan because he had been responsible for the state-habeas investigation and petition.
- Vernay filed Freeney’s federal habeas petition; the Director moved for summary judgment under 28 U.S.C. § 2254(d), and the district court granted summary judgment and denied a COA.
- After briefing in this court, new appellate counsel moved (163 days after counsel appointment) to remand so the district court could consider whether Vernay’s alleged failure to develop state-habeas IATC facts established cause under Martinez/Trevino to excuse procedural default and whether Vernay’s role created a conflict requiring substitution.
- The Fifth Circuit denied the remand as an abuse of discretion, finding Freeney unreasonably delayed seeking relief and bore responsibility for failing to seek substitute counsel earlier.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate court should remand to district court so petitioner can develop defaulted IATC claims and seek to establish cause under Martinez/Trevino | Freeney: Vernay failed to develop the factual basis of the IATC claim in state habeas, creating procedural default excused by ineffective assistance of state habeas counsel under Martinez/Trevino; Vernay’s involvement created a conflict requiring remand/substitution | Director: No basis shown for remand; merits were addressed by state courts and district court; petitioner delayed and had conflict-free counsel before seeking remand | Denied — court exercised § 2106 discretion to refuse remand because Freeney unreasonably delayed and bore responsibility for not seeking substitute counsel earlier |
| Whether Vernay’s role created a conflict of interest requiring remand or substitution | Freeney: Vernay could not review his own work, creating a conflict and violating right to conflict-free counsel | Director: No timely motion for substitute counsel was made; conflict claim is untimely and speculative | Denied — court held petitioner’s delay and failure to seek removal undermined the request |
| Whether Martinez/Trevino excuse of procedural default applies to permit adjudication of IATC claims | Freeney: Martinez/Trevino allow ineffective assistance of state habeas counsel to establish cause for defaulted trial IATC claims | Director: Even if applicable, petitioner failed to timely pursue the Martinez/Trevino route | Remand denied on discretionary grounds; court did not grant the requested Medina/Trevino-based further proceedings due to delay |
| Whether appellate court’s authority under 28 U.S.C. § 2106 supports remand here | Freeney: § 2106 permits remand for further proceedings as just | Director: § 2106 is discretionary and guided by sound legal principles; abuse of discretion considerations apply | Denied — appellate discretion exercised against remand because of prejudicial delay and petitioner’s responsibility |
Key Cases Cited
- Martinez v. Ryan, 566 U.S. 1 (2012) (ineffective assistance of state postconviction counsel can establish cause for procedural default in certain capital cases)
- Trevino v. Thaler, 569 U.S. 413 (2013) (applying Martinez in Texas to extend Martinez equitable rule)
- Martel v. Clair, 565 U.S. 648 (2012) (standard for substitution/appointment of counsel in federal habeas proceedings)
- Christeson v. Roper, 135 S. Ct. 891 (2015) (discussing substitute counsel principles in capital cases)
- Speer v. Stephens, 781 F.3d 784 (5th Cir. 2015) (remand to appoint supplemental counsel under § 3599 in light of Martinez/Trevino)
- Mendoza v. Stephens, 783 F.3d 203 (5th Cir. 2015) (per curiam) (same)
- Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016) (appellate discretion must be guided by sound legal principles)