835 F.2d 1120 | 5th Cir. | 1988
Lead Opinion
In 1981 a jury in the Nineteenth Judicial District of Louisiana convicted James Tas-co of felony theft. Shortly after the conviction, the prosecution filed a bill of information under Louisiana’s habitual offender statute
At a hearing on the bill, the state trial judge asked Tasco whether he had consulted with his attorney regarding the third offender charge. Tasco responded that he had not, and his attorney, Vincent Wilkins, confirmed that there had been no consultation. Wilkins asked to see “whatever the State’s got to offer,” and, after examining some papers handed to him by the prosecutor, consulted with his client for a few minutes. The court then asked whether Tasco wished to admit or deny the allegations in the Habitual Offender Petition. Wilkins responded that this client wished to deny the allegations but was more concerned with continuing the matter. The state judge denied the continuance, and the state entered its documentary evidence of the prior convictions without objection from Wilkins.
The prosecutor then called Tasco to the stand where he was sworn in over Wilkins’s objection that his client was protected against self-incrimination even at the sentencing stage. The state trial judge expressed the opinion that neither the Fifth Amendment of the United States Constitution nor the corresponding amendment of the Louisiana Constitution had “any applicability whatsoever to this particular hearing.” When Tasco refused to answer the prosecutor’s questions, the court held him in contempt and sentenced him to six months in prison on that charge in addition to twenty years at hard labor, the maximum penalty authorized by the habitual offender statute.
Tasco appealed the conviction and sentence to the Louisiana Supreme Court which affirmed without opinion.
Having exhausted his state remedies, Tasco petitioned for a writ of habeas corpus in federal district court.
Because we find that the defense counsel’s failure to object to the denial of the continuance does not bar consideration of the merits and because, if Tasco had no notice of the recidivism charges until the day of the hearing, he was deprived of due process to his possible prejudice, we reverse the district court’s decision and remand for an evidentiary hearing to determine when Tasco and his attorney first received notice of the charges and, if notice was inadequate, whether Tasco has suffered any prejudice as a result.
I.
If the failure of the defense to object to the denial of a continuance was what led the Louisiana courts to deny Tasco post-conviction relief, we may not address the merits of the due process claim nor grant habeas relief absent a showing of cause for the failure to object and prejudice resulting from the due process deprivation.
We conclude that the Louisiana courts did not rely on the procedural bar in this case. The state did not advocate a disposition on procedural grounds in the Louisiana courts, and, indeed, the state urges this court to reach the merits. The
Louisiana’s contemporaneous objection rule contains an exception for “rights ... so basic that they can be raised for the first time ... in an application for a writ of habeas corpus (Art. 362).”
II.
If, as Tasco asserts, neither he nor his attorney knew of the recidivism charges until the day of the sentence-enhancement hearing, the court’s failure to allow Tasco sufficient delay to consult with his attorney and to prepare a defense violated the due process clause of the federal constitution. More than fifty years ago the Supreme Court stated: “The prompt disposition of criminal cases is to be commended and encouraged. But in reaching that result a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense.”
The state contends, however, that any deprivation of Tasco’s constitutional rights was harmless error under Chapman v. California
We find no merit in Tasco’s second claim, that the sentencing court violated his Fifth Amendment right not to be forced to testify against himself. The court’s judicial notice of his identifying tattoos and scar did not impinge on his Fifth Amendment privilege,
For these reasons, we REVERSE the district court’s decision in part and REMAND for an evidentiary hearing
. La.Rev.Stat.Ann. § 15.529.1 (West 1981).
. State v. Tasco, 412 So.2d 107 (La.1982).
. State ex rel. Tasco v. Blackburn, 475 So.2d 774 (La.1985).
. 28 U.S.C. § 2254 (1982).
. Wainwright v. Sykes, 433 U.S. 72, 84-85, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977); Bates v. Blackburn, 805 F.2d 569, 573 (5th Cir.1986).
. Clark v. Maggio, 737 F.2d 471, 473-74 n. 6 (5th Cir.1984), cert. denied, 470 U.S. 1055, 105 S.Ct. 1761, 84 L.Ed.2d 823 (1985); Moran v. Estelle, 607 F.2d 1140, 1142-43 (5th Cir.1979).
. Bates, 805 F.2d at 574; Preston v. Maggio, 705 F.2d 113, 116 (5th Cir.1983), cert. denied, 471 U.S. 1104, 105 S.Ct. 2334, 85 L.Ed.2d 850 (1985).
. La. Code Crim.Proc.Ann. art. 841 (West 1984) (Revision Comment (b)).
. La. Code Crim.Proc.Ann. art. 362 (West 1966).
. State v. Ellis, 487 So.2d 752, 756 (La.Ct.App.1986); State v. Davalie, 313 So.2d 587, 590-91 (La.1975).
. State v. Nelson, 379 So.2d 1072, 1074-75 (La.1980).
. Cf. Clark v. Blackburn, 632 F.2d 531, 533 n. 1 (5th Cir.1980).
. Powell v. Alabama, 287 U.S. 45, 59, 53 S.Ct. 55, 60, 77 L.Ed. 158 (1932). See also In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948); Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948).
. Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204-05, 51 L.Ed.2d 393 (1977); Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967).
. Ellis, 487 So.2d at 756; Davalie, 313 So.2d at 590-91.
. La.Rev.Stat.Ann. § 15:529.1.A.(2)(a).
. 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).
. Chapman, 386 U.S. at 24, 87 S.Ct. at 828. See also Rose, 478 U.S. at -, 106 S.Ct. at 3105 (and cases cited therein).
. Cf. United States v. Olson, 716 F.2d 850, 853 (11th Cir.1983).
. United States v. Wade, 388 U.S. 218, 222, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967).
.Guice v. Fortenberry, 661 F.2d 496, 500-01 (5th Cir.1981) (en banc).
Concurrence Opinion
with whom JONES, Circuit Judge, joins specially concurring:
I concur in all of Judge Rubin’s cogent opinion except so much of the last paragraph of part I as may imply that the Louisiana courts do not apply a contemporaneous objection rule in respect to claims of constitutional error, or at least do not do so on habeas corpus under Louisiana Code of Criminal Procedure article 362(9).
The principal Louisiana statutory provision requiring contemporaneous objection is Louisiana Code of Criminal Procedure article 841, and it makes no express exception for constitutional error. It is true, as Judge Rubin’s opinion points out, that the official revision comment (b) to article 841 states, “Of course, certain rights are so basic that they can be raised for the first time ... in an application for a writ of habeas corpus (Art. 362)_” However, this statement does not necessarily exclude application of a cause and prejudice, or similar requirement for raising unobjected to claims of constitutional error. It is also true that Louisiana Code of Criminal Procedure article 362(9) allows habeas corpus relief for constitutional errors, but this, again, is not necessarily inconsistent with a
To read article 362(9), and the comments to article 841, as completely doing away with the requirement for objection in proceedings under article 362(9) suggests that, for example, a case could not be reversed on appeal on the grounds of constitutionally improper jury instructions or erroneously admitted evidence, where there was an unexcused failure to object at trial, even though the point was briefed and argued to the appellate court, but the conviction could nevertheless be set aside on habeas corpus under article 362(9). It would seem to be the essence of good judicial administration to review the claimed error on the merits, if it is so to be reviewed at all, at the earliest opportunity to appropriately do so, which will generally be on direct appeal. Of course, that is a determination to be made by Louisiana, not by the federal judiciary. But this consideration does suggest caution in concluding that Louisiana has elected to follow such an unusual path.
I recognize that language in Justice Dennis’ opinion in State v. Nelson, 379 So.2d 1072, 1074-75 (La.1980), does indicate that Louisiana has indeed elected to follow that path, at least in a situation arguably analogous to that here. However, not only was that particular question not before the court in Nelson, which was a direct appeal, but it is clear that a majority of the justices declined to join in Justice Dennis’ opinion. Of the six justices participating, three (Summers, C.J., Blanche and Watson, JJ.) concurred in the result “only” (and did not write), and Justice Marcus’ concurring opinion does not speak to this matter. It is also true that in Clark v. Blackburn, 632 F.2d 531, 533 n. 1 (5th Cir.1980), there is language indicating that the Louisiana contemporaneous objection rule simply does not apply in proceedings under article 362(9). However, this language in Clark would appear to be dicta inasmuch as there “petitioner’s habeas claim was denied by the state courts on the merits,” and for that reason we too were bound to rule on the merits. Id. To take the broad view expressed in the Clark dicta would be to in effect make the contemporaneous objection rule generally unavailable in challenges under 28 U.S.C. § 2254 to Louisiana convictions. Yet we have on many occasions applied the cause and prejudice, procedural default rule to Louisiana convictions challenged under section 2254. See, e.g., Tyler v. Phelps, 643 F.2d 1095, 1100-02 (5th Cir.1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1992, 72 L.Ed.2d 455 (1982); Preston v. Maggio, 705 F.2d 113, 116 (5th Cir.1983); Rollins v. Maggio, 711 F.2d 592 (5th Cir.1983); Webb v. Blackburn, 773 F.2d 646, 650-51 (5th Cir.1985); Glass v. Blackburn, 791 F.2d 1165, 1169-70 (5th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1985, 95 L.Ed.2d 824 (1987); Bates v. Blackburn, 805 F.2d 569, 572-76 (5th Cir.1986). Absent some clearer indication that we have misread the relevant Louisiana law, I would not depart from the teaching of these decisions.
Nevertheless, for the reasons stated in the next to last paragraph of part I of Judge Rubin’s opinion, I agree that in this case we may properly reach the merits.
As neither party in this case has requested oral argument, and as all of the judges participating agree that the case may be disposed of without oral argument, the filing of this special concurrence is consistent with this Court’s summary calendar policies.