Carroll F. YOUNGBLOOD, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellee.
No. 88-2888.
United States Court of Appeals, Fifth Circuit.
Sept. 8, 1989.
Rehearing and Rehearing En Banc Denied Oct. 19, 1989.
884 F.2d 956
The Board‘s petition in civil contempt is GRANTED to the extent noted above.
S. Michael Bozarth, Asst. Atty. Gen., and Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Before GEE, GARZA and JONES, Circuit Judges.
GARZA, Circuit Judge:
This case presents a novel question in the Fifth Circuit under the Ex Post Facto clause of the United States Constitution. We are convinced that article 37.10(b) of the
BACKGROUND
On March 17, 1982, appellant Carroll Youngblood was convicted by a Texas jury of aggravated sexual abuse. He was sentenced to life imprisonment and a fine of $10,000. His conviction was affirmed on appeal. Subsequently, he filed an application for a writ of habeas corpus with the Texas Court of Criminal Appeals, relying upon Bogany v. State, 661 S.W.2d 957 (Tex.Crim.App.1983) (en banc). In Bogany, the Texas Court of Criminal Appeals held that the sentence enhancement provision,
In response to the Bogany decision, the Texas Legislature enacted
Youngblood then filed a writ of habeas corpus petition in federal district court contending that the retroactive application of
Discussion
Exhaustion of State Remedies.
The government argues that Youngblood‘s petition should be denied because he has never presented his federal ex post facto claim before a state tribunal in post-conviction proceedings. The district court concluded that forcing appellant to resort to post-conviction proceedings before the Texas Court of Criminal Appeals would be futile. We agree.
The Texas Court of Criminal Appeals decided Ex parte Johnson in October of 1985. In that case, the court concluded that
The Ex Post Facto Clause.
Nine years after the adoption of the United States Constitution, the Supreme Court had occasion to consider the meaning of the words ex post facto as used in
More recently, the Supreme Court has stated that two critical elements must be present for a law to fall within the ex post facto prohibition. First, it ” ‘must be retrospective, that is, it must apply to events occurring before its enactment‘; and second, ‘it must disadvantage the offender affected by it.’ ” Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)). The Court also noted that a law which merely changes “modes of procedure” will not violate the Ex Post Facto clause unless it also alters “substantial personal rights” of the accused. Miller, 482 U.S. at 430, 107 S.Ct. at 2451 (citing Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)). It is uncontroverted that the Texas Court of Criminal Appeals, and the district court below, approved the application of
At the time Youngblood was convicted, the jury rendered a verdict that was unauthorized by law; it assessed a term of years imprisonment in addition to a $10,000 fine. Also at the time of conviction, assessment of an unauthorized fine rendered the verdict void ab initio under Texas law and entitled the defendant to a new trial. Subsequent to Youngblood‘s conviction, the Texas legislature passed
The government urges that “it cannot be argued” that
The state court‘s analysis of
Thus, we may accept the state court‘s characterization of
The government argues that the retroactive application of
These authorities fail to consider the import of Thompson v. Utah, supra, wherein the Supreme Court held that a law which authorized a jury of only eight persons, instead of twelve, to pass upon the guilt of the defendant, when applied retroactively, violated the Ex Post Facto clause. In that case, there was no punishment of a previously innocent act, there was no change in the burden of proof required to establish guilt and there was no elimination of a previously available defense. The focus in Thompson v. Utah was upon whether the retrospective deprivation of the right to trial before a jury composed of twelve persons rather than eight materially altered the position of the defendant to his disadvantage.1
In two other early cases, the Supreme Court instructed that a statute need not even relate to a crime, or inflict a punishment, in the judicial sense, for the commission of past crimes, in order to constitute an ex post facto law. In Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356 (1866), the Court held that the exclusion of a minister from the exercise of his clerical function unless he agreed to take an oath that he had not engaged in or encouraged armed aggression against the United States government was an ex post facto law. Similarly, in Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366 (1866), the Court found that the exclusion of a lawyer from practice for his refusal to take the oath described in Cummings, supra, was ex post facto. Clearly then, determination of the question whether a statute punishes a previously innocent act, or makes more burdensome the standard of proof, or eliminates a defense that was available at the time the act was committed cannot be dispositive of the inquiry whether such a statute violates the Ex Post Facto clause. Once it is determined that the law in question was applied retrospectively,
At the time of Youngblood‘s conviction, it was the law of Texas that a verdict of the type rendered in this case was void ab initio and its imposition entitled the accused to a new trial. That right, with its attendant possibility that a second jury just might acquit the defendant, was apparently considered sufficiently “substantial” to provoke the Texas legislature to enact
Prior Texas law made it impossible to deprive defendants such as Youngblood of their liberty without affording them a new trial. Whether or not it is a wise policy to provide that level of protection against unauthorized verdicts, it cannot be gainsaid, in our opinion, that the subsequent elimination of that right worked to appellant‘s disadvantage.2 Delineation of the boundary between “substantial” rights and those considered not substantial, like the distinction between fundamental and non-fundamental rights, is an inquiry not susceptible of examination by scientific formulae or comprehensive enumeration. However, given the universal references in the ex post facto jurisprudence to such concepts as “material disadvantage” and substantial “protection,” we are confident that the right to have one‘s guilt retried before a different jury—with its attendant possibility that the outcome might be different the second time around—is comfortably encompassed within the category of rights considered “substantial.”
Appellant was sentenced under a procedure that was not authorized by Texas law at the time of the commission of his offense. The retroactive application of
GEE, concurring:
Concurring entirely in the majority opinion in this very close case, I also agree with Judge Jones‘s observations regarding the Supreme Court‘s “modes of procedure” authorities such as Thompson v. Utah. Their present state constitutes more of a bright spectrum than a bright line.
EDITH H. JONES, concurring.
I concur with the majority opinion because, for ex post facto purposes, I cannot perceive a meaningful distinction between Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1897), and this case. Thompson acknowledged that “mere modes of procedure” are not within the ken of the ex post facto clause, but it proceeded to hold that the right to be tried by twelve jurors “was regarded, at the time of the adoption of the Constitution, as vital for the protection of life and liberty,” and was enjoyed by the defendant at the time he committed the offense charge. 170 U.S. at 352, 18 S.Ct. at 623. Consequently, Utah‘s “procedural” change to permit criminal trials before eight jurors was held to operate ex post facto to deprive the defendant of this substantial right.
I suggest, however, that the distinction between “mere modes of procedure” and
There is little doubt that the defendant in several of these later cases was materially disadvantaged by the changes in criminal procedure which occurred after the commission of his offense. Consider the significance to a defendant of the right to a separate rather than joint trial with co-defendants, (Beazell) or of prohibiting testimony of a convicted felon (Hopt) or circumstantial evidence (Thompson) against a defendant, to say nothing of prohibiting the state‘s appeal from the grant of a new trial to the defendant (Mallett). The Court emphasized, however, in Dobbert, that:
Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.
432 U.S. at 294, 97 S.Ct. at 2298.
If we are to continue to hold that “procedural” changes that do not affect the traditional ex post facto concerns—the definition of a proscribed or criminal act or its punishment or available defenses1—nevertheless run afoul of the clause, I fear that the Supreme Court‘s decisions offer little guidance for distinguishing among such procedural cases. In the absence of such guidance, I can see no overriding principle from which to disagree with the majority‘s conclusion that this procedural change so substantially affected the defendant‘s rights as to violate the ex post facto clause.