*1 Carroll Glenn SCOTT, Applicant.
No. WR-62896-02. Criminal Appeals of Texas.
April Scott, pro
Carroll se. Glenn Proctor, D.A., Belton, Sean K. Asst. Paul, Atty., Austin, Matthew State’s state.
ORDER PER CURIAM. post-conviction
This is a for a writ of forwarded to this Court pursuant CRiM. Pkoc. TexCode art. Applicant 11.07. convicted of at- capital tempted burglary murder and habitation, and punishment was assessed twenty-five years at confinement for ten years, respectively. These convictions were affirmed.1 alia, contends, inter to file a opportunity denied for discretionary his appel- review because notify late did not him that the had been or what he convictions a petition. needed to do to file such An affidavit2 filed counsel states my (Tex.App.- represent Scott v. Mr. S.W.2d firm ... did Scott on pet.). Austin peal, and did file a brief in his case. We trial, raised all the issues we raised at 2. Counsel states his affidavit: "I know some, e.g., improper and then admission that one of Mr. Scott’s is that I the lack of double failing 'abandoned' violations, jeopardy objections jury to the (PDR). Discretionary Petition Review charge, refusing requested defense instruc- all, misunderstanding, First of let there be no *2 en, by preponderance a nor firm have the his law that neither case, attorney provided consti- appellate that his file to pertaining Applicant’s written of counsel to assistance practice tutionally ineffective it his firm’s usual but that was from prevented Applicant decision on appellate the client of the advise discretionary for review. filing petition for petition discre- a and of his The trial court recom- tionary review. is denied. corpus relief Habeas op- Applicant granted an mended that petition an portunity to file out-of-time COCHRAN, J., concurring filed a discretionary review. opinion in which KEASLER HERVEY, JJ., joined. judge trial stated:
The Here, say with certain- the Court cannot denying appli- join I order the Court’s ty attorney’s] action or inaction [the he failed corpus relief because cant habeas his Applicant to be denied caused the attorney did not prove appellate that his to practical to a but the file him of his to advise same; Applicant the the effect has been mat- discretionary separate As a review. Moreover, right. denied this has been ter, is however, I think also has finds that the record the Court of laches from rais- doctrine barred the Applicant that the yielded no evidence his convic- years after ing this issue twelve Therefore, the this denial. caused appeals. court of tion affirmed the the Applicant Court concludes granted
should be
an out-of-time
I.
attorney
an
and his
disagree
retained
Applicant
with the trial court’s
and,
trial
represent
him at
law firm
Applicant’s
recommendation.
It
later,
juryA
found
appeal.
on
prove, by
preponderance
burden
capital murder and
guilty
attempted
was consti
8,
on November
burglary
en
of a habitation
tutionally
deficient before
affirmed his
1991. The court
corpus.3
on writ of
titled
relief
25,
In his
August
1993.1
does not
the trial
convictions
support
The record
a writ of habeas
Applicant
prov-
conclusion that
has
court’s
Chandler,
(Tex.
S.W.3d 350
charge,
Unfortunately,
parte
3. Ex
etc.
tions
(“To
Crim.App.2005)
were still affirmed
the Third
convictions
obtain habeas
State, 861
Appeals.
See Scott v.
Court
counsel un
assistance of
relief for ineffective
pet.).
(Tex.App.-Austin,
no.
S.W.2d 440
Second,
Washington,
der
v.
Strickland
independent
I
recollection
have
performance
his counsel’s
must show that
filing
involving the
of the circumstances
that there is a ‘reasonable
was deficient and
Discretionary
Mr.
Review on
Petition for
probability’
con
sufficient
undermine
—one
opinion
If
on direct
Scott's behalf.
the outcome
in the result—that
fidence
conviction, my
peal
the defendant's
his counsel's defi
but for
have been different
practice was to advise the client
usual
firm’s
see,
omitted);
(footnote
performance”)
cient
to file a PDR
he or she had
Richardson,
865, 870
e.g.,
of Criminal
within
with
(Tex.Crim.App.2002) (Applicant "must
at-
spoken
...
I had
certain time.
his entitle
violation and
constitutional
case,
torneys
worked with me on this
who
by preponderance of
to habeas relief
ment
being
of that
and neither has documentation
evidence”).
Therefore,
say
case.
all can
this
to advise
it was our usual
(Tex.App.-
v.
PDR and reason to believe we II. in that not this case. tardiness, I also Turning to issue And what evidence there that coun- by the applicant conclude that is barred in this sel’s usual was not followed obtaining from relief on doctrine of laches Only applicant’s case? assertion. bare explana- provided this claim. He has Applicant made assertions about numerous why years after his attorney’s representation, his but all of tion he waited twelve except them were refuted the record bring this claim. convictionwas affirmed single one. On asser- this compelling cir- has He failed show alone, tion trial court recommended for equitable which would call cumstances given an that be out-of-time suggestion appli- relief. There is no wrongly cant’s conviction logic The chain of is as follows: giving appli- appeals, the court of opportunity PDR; cant not file a Applicant did likely to lead to discretionary review later, applicant claims 2. Twelve pro than a exercise PDR; anything other that he to file wanted forma futility. persua- Had made a “certainty” his at- is no There showing that the court of had sive torney’s denied actions or inactions conviction, PDR; his claim wrongly affirmed his lamp suspiciously fell 6. Ante at-. like “the This sounds table,” things happen, just off the as if these by human hands. untouched equity might stronger, delay but he has not in bringing his claim affect his done so.7 credibility.11 Carrio,8 As we noted in Normally, laches is a doctrine that must “The doctrine upon of laches is based pled proven by opposing par- the maxim equity vigilant aids the but, ty,12 limitation, like statutes of and not those who slumber their protects doctrine laches also courts from rights. It is as neglect defined to assert expending judicial scarce resources on which, right or claim together taken stale claims and only contentions.13 Not lapse of time and other circum- should an opposing litigant frown upon causing stances prejudice to an adverse dilatoriness delay, but courts them-
party, operates
aas
bar in a court of
selves should scowl upon such
Also,
conduct.
equity.
it is the
neglect
unexplained
unreasonable
length
Furthermore,
applicant’s dilatoriness
time under
permitting
circumstances
dil-
has
in unfairly sullying
succeeded
the rep-
igence,
law,
to do
what
should have
utation
attorney.
former
That attor-
been done.”9
*5
ney
keep applicant’s
failed to
triple
file for
We further stated that “[t]his Court has
the attorney-grievance
period;
limitations
never denied
a
relief on valid claim due to
but,
put
had he been
of appli-
notice
delay in bringing the claim”
time,
cant’s dissatisfaction at an earlier
Texas,
because
system,
unlike the federal
documentary
well
have
evidence
does not have a
of
statute
limitations which
to rebut applicant’s
claim
him. Al-
a
requires
petition for habeas
corpus
though
filed within a
the nominal
period
opposing
certain
of time.10
However, we also noted that an applicant’s party, did not raise the equitable defense
course,
7. Of
if
application
an inmate files an
(quoting
Id. at 487 n. 2
9.
Black’s Law Dictio-
nary
corpus
for
writ
habeas
within a
reasonable
(6th ed.1990)).
875
discovering
time after
that his conviction had
appeal,
only prove
been affirmed on
he need
Id. at
487.
10.
failed
inform him of his
pro
se PDR and that he would
Id.
timely
have
so in a
manner had he been
Crow,
right.
parte
told of this
Ex
See
180
Id.
(Tex.Crim.App.2005) (noting
S.W.3d
applicant
had
carried
burden
parte Steptoe,
13. See Ex
438-
timely
have
a
pro
would
filed
se PDR
J.,
(Cochran,
(Tex.Crim.App.2004)
dissent
“he
filed his
[for habeas
ing) (noting
judicial
the enormous cost in
year
relief] less
a
than
after the court
time,
final,
effort,
appeals’s opinion
money
exacted
habeas
became
he has al-
leged
deprived
stating
that he was
"by protracting
to file
review and
PDR and
he believes a PDR
have
finality
litigation,
habeas review
criminal
significant
had a
chance of
And
success....
integrity
'undermines confidence in the
of our
controverting
suggesting
there
nois
evidence
delays
procedures'
inevitably
impairs
PDR”).
that he would not
filed a
Con-
orderly
justice”;
administration of
con
versely, it is at
least
reasonable inference
cluding
“[rjoutinely granting
habeas cor
that the fact that
any
failed to take
pus
requesting
claims
an out-of-time
steps
to assert his
to file
se
proa
PDR
review,
discretionary
long
filed
after a
for twelve
is some indication that he
direct
on the merits
highly
was not
motivated
exercise this
appeals,
court of
undermines
deterrent
timely
and would not have exercised it in a
and rehabilitative functions of
criminal
manner.
law”).
(Tex.Crim.App.1999).
8.
plicant’s O’BRIEN. Derrick Sean grave in this He has suffered scenario? allowing to assert No. WR-51264-03. injustice. By so representation of deficient his claim of Texas. of Criminal en- virtually long after the relevant events origi- which was sures that evidence May asser- nally to rebut available longer exists. should not tions no permits inmates
condone many years after their convic-
to wait for (and attorneys’ files
tions final their are discarded) likely to assert claims lost Houston, Burnett, Greene Catherine assistance of counsel. ineffective Appellant. presumption I would hold that there is a Wilson, Hous- Atty., Asst. District Roe credibility of an who against the Austin, Paul, ton, Atty., State’s Matthew of counsel asserts ineffective assistance for State. in petition claim first raised when that four-year outside the ORDER attorney-grievance statute of limitations. rebutted, presumption This but PER CURIAM. applicant provides unless an evidence *6 for ha- subsequent application This is why timely could file a claim or how he not beas advances attorney’s unable to discover claim, asserting that Eighth Amendment constitutionally conduct, deficient his bare pain during the adminis- suffer not assertions should be deemed sufficient injec- during lethal tration of chemicals claim for relief. Courts support tion. willing apply should the doctrine of mur capital convicted of Applicant was party-in-inter- laches behalf of the real 9, 1994. affirmed the April der on reputation has competence est whose why O’Brien v. explained conviction sentence. been attacked and who has 1996). May 71,859 (Tex.Crim.App. no. sup- produce he is unable to evidence 16, 1997, filed his On December port his own defense. for writ of application initial habeas deny applicant relief for these August to Article 11.071. On pursuant reasons, as well as those stated appli a supplemental filed order. Court’s corpus. We de cation for writ of on his initial nied relief writ, dismissed, as an abuse subsequent application. untimely WR-51,264-01, O’Brien, No. WR- February 51,264-02 (Tex.Crim.App. 2002). 15, 2006, stay we issued May On applicant’s sec to review of the execution of ha- subsequent application writ ond corpus. beas