*2 JONES, DeMOSS, Before SMITH and in cused a criminal case. Before the Judges. Circuit veniremembers were brought to the court-
room, the presiding judge in the central
jury room asked
JONES,
they
EDITH
whether
had ever
H.
Judge:
Circuit
convicted
any felony
been
or theft.
granted
This court
a certificate
ap-
Barnes either responded in the negative or
pealability
permit
Mayo’s appeal
John
silent; otherwise,
remained
she would not
§
from a denial of
2254 habeas relief on have accompanied the panel to the court-
the claim that he was constructively de-
room.
prived of legal counsel
a critical stage
Mayo
at trial by re-
prosecution,
the period during
which
Mewis,
tained counsel Paul
by
assisted
trial could be sought.
Texas courts
Cynthia Henley. Neither the prosecutor
claim,
relief on this
denied
as did the fed-
nor defense counsel asked the venire-
us,
eral district court. The issue before
members whether
had
they
been convicted
standards,
pursuant to AEDPA
is whether
any
theft,
felony or
in reliance on the
the state
to,
courts’
contrary
decision “was
in
jury
answers
questionnaires and
of,
involved an
application
knowledge
their
the veniremembers
clearly
Law,
established Federal
as deter-
already
had
been qualified on
question
this
mined
jury
central
room. Barnes became
...,” or
States
was based on an unreason-
juror.
able determination
of the facts
fight
Unbeknownst to the parties and attor-
state
record.
28 U.S.C.
neys, Barnes had a final conviction for
2254(d).
§
Mayo rests
entirely
his claim
misdemeanor
theft dating from
Cronic,
on United States v.
which was discoverable as a public record
S.Ct.
(1984),
lenged her she absolutely disqualified from jury service under Texas BACKGROUND law. Tex.Code CRiM. art. 35.19 Ann. Proc. (1989); Frame v. Mayo kidnapped, raped sexually and as- 769 (Tex.Crim.App.1981). Houston, Texas, saulted a May woman in He in March Mayo convicted 1991 of was convicted and sentenced. aggravated kidnaping aggravated and sex- Mewis’s contract provided that his assault, ual and he received sentences of Mayo would terminate years’ and 50 imprisonment, respective- jury’s sentencing, verdict. After ly, for those offenses. Mayo indicated his Be- desire hearing 1. The state court July held a on testimony conclusions of law based prepared findings its documentary of fact and evidence. law, however, not entitled Mayo is he Texas appeals, not handle did Mewis cause a claim relief on corpus lawyer. another to obtain to hire advised Thomas, juror. disqualified involving in the case action no further took *3 Bronson, 199; 158 parte Ex 796 S.W.2d hire Mayo that would he assumed (Tex. 117, 121 133, 254 S.W.2d Tex.Crim. Hen- Mewis nor Neither lawyer. another Crim.App.1952) assistant) jury (as investigated ley Mewis’s rec- local criminal misconduct, checked court concluded habeas The state filed investigated or or jurors, ords of coun- of not denied assistance Mayo “was trial. for new a motion a motion for fifing during the time sel attor- trial, Paul Mewis remained as as to withdraw not move did Mewis Court of Crim- The Texas ney of record.” unaware that Tex- he was counsel because Mayo’s application denied repre- Appeals inal him to continue required as law order relief without written corpus until such conviction Mayo following sent The court. findings with- of the trial him to on the permitted time as the court relief under parte Ex court denied federal district draw substituted (Tex.Crim. 369, 2254, Axel, § 373-74 and this followed granted. was COA App.1988).
Nevertheless, had not Mewis when DISCUSSION lawyer appellate prospective heard from a weeks, Mayo he met with after about three the state on whether case turns This law- whether another jail to determine not de- Mayo was conclusion courts’ he was Mayo said been hired. yer had during the of assistance counsel nied the 1991, 4, days three April indigent. On motion was an filing a new period for to file motion expired the time before law, as Federal application of as- appeal, notice of new trial and Court, or was established court, brought sured unreasonable determination based anon that he appeal, notice of and that he filed a presented. light of the evidence the facts requesting affidavit indigency signed 2254(d). § 28 U.S.C. That appellate counsel. court-appointed Gray day, appointed Will same begins with the Mayo’s argument mailed notice him appellate as defendants that criminal proposition not, Gray did howev- appointment. constitutionally entitled effective assis er, until the time appointment learn of his stage” of every “critical tance counsel at for new trial. a motion expired had file through conclusion prosecution Washington, v. Strickland appeal. direct theft Barnes’s attorney discovered No 2052, 2064, 668, 687, 104 80 S.Ct. 466 U.S. file a motion in time to conviction (1984); Lucey, v. 469 674 Evitts L.Ed.2d appeal. Had the issue on trial or to raise 836, 396, 830, 387, 83 105 S.Ct. new trial and counsel filed (1985). A whose defendant L.Ed.2d 821 disqual absolutely proven Barnes assistance attorney meaningful provides juror, the trial serving as a ified from however, constructively denied may, a new grant had to court would have v. of counsel. United States assistance reversed have been or the would conviction 2039, Cronic, S.W.2d 796 on Thomas 2047, In L.Ed.2d 80 (Tex.Crim.App.1990); State file (Tex. view, research or lawyer’s failure to Holloway, 886 S.W.2d equivalent 1994). for new trial Under Dist.] App. [1st — Houston denying him purpose 1029, 145 of S.Ct. (2000); L.Ed.2d 985 challenging qualifications Ms. Barnes’s Lee, States v. (D.C.Cir. 513 F.2d juror. 1975); Birrell, United States v. 482 F.2d (2d Cir.1973). But three federal problem initial this argument courts of that, appeals held, have AEDPA, particular from the standpoint of its facts, that the necessarily conclusion does not motion for phase follow from new trial premises. its New precedents stage exist critical prosecution. ex Kitch plaining whether States, en v. United the period 1018- motion for new trial stage” is a “critical Cir.2000); Norris, Robinson v. prosecution to which the to counsel (8th Cir.1995); F.3d 459-60 *4 Menefield attaches. The Texas Court of Criminal v. Borg, 696, Cir.1989). instance, Appeals, for expressly withheld The district court here seized on the ab issue, on that ruling although lower Texas of “clearly sence law, established Federal post-trial courts have described the as by determined the Supreme Court Compare as Prudhomme v. “critical.” ....,” and concluded that the period for State, 28 S.W.3d 121 (Tex.App . —Tex filing a motion for new trial is not a clearly State, 2000), with v. arkana Smith hence, critical phase; the state courts did S.W.3d 663 n. 3 (Tex.Crim.App.2000), not unreasonably reject Mayo’s habeas v. Oldham 360- claim.2 61 (Tex.Crim.App.1998). Several federal Unfortunately Mayo, for position appeals of courts have held that there is no if only succeeds the right constitutional to clearly to counsel post- counsel for appeal fully attaches new trial. motions to the pre- Tajeddini, (1st States appeal phase prosecution. of F.2d But Cir.1991), abrogated on grounds by unnecessary, other in resolving this appeal, to Roe Flores-Ortega, 120 render such a Instead, broad decision.3 Mayo proceeded opportunities state court and in this for consultation with the defen- solely theory dant; court on the that he was denied the pertinent introduction of evidence not, pursuant counsel to Cronic and defendant; to the post-tri- direct —the Strickland, that his attorney was al, constitution- seems, pre-appeal phase in the absence of ally ineffective. claim, specific a representation to by demand only filing counsel a timely minimum question 3. The broad has prac- no clearcut (Mewis appeal. notice of respon- fulfilled his tical Having answer. counsel the mo- sibility Mayo to purpose.) for this phase may tion for new trial may not be Accordingly, grant Mayo’s to petition would necessary preserving to rights the defendant’s Supreme extend the Court’s decision in Cron- to a appeal. fair trial and Investigat- effective explained ic. The Court in Cronic misconduct, ing instance, be, juror may defendant, criminal though formally rep- even but necessarily, not only feasible after the counsel, by may resented suffer an actual or jury discharged. has been type Another of representation constructive denial of in three post-trial may challenge the effective- circumstances: totally counsel is counsel, where ab- ness of trial may but such a claim prevented sent assisting or is from the ac- corpus better be raised in a petition, stage; cused a critical where counsel alleged the results errors have interest; has a conflict of and where appeal. been ascertained on types Other entirely subject prosecution’s may fails to justify the discretionary grant claims case of a meaningful testing. new trial but need not be adversarial The in that cir- raised fash- preserve justify ion Hence, order to cumstances of presump- them for denial must Cronic, phases prejudice. tion prosecution unlike dur- 466 U.S. at ing Burdine, attorney representation which 104 S.Ct. at has been 2046. In this court held by deemed "critical” slept Court— when defense counsel for "not in- arraignment; gaps in that afford the periods substantial guilt time” subject during jurors on the tioned finding state court
we focus on
Indeed, the voir dire ex-
during the
exam.
voir dire
not denied
Mayo was
legal-
opportunity
is not
the best
finding
provided
This
amination
phase.
post-trial
Texas
More-
characteristics.
disqualifying
Under
factually unreasonable.
reveal
ly or
represent
Mewis,
copies of
law,
over,
armed
was bound
Mewis
to with-
begun
him
an
permitted
could have
until the trial
juror questionnaires,
That
attorney.4
by
means
appointed
jurors
draw or
investigation of the seated
legal responsi-
of his
Mewis was unaware
as trial com-
sources
soon
of outside
into
error
bility
not transform
does
the deadline
While
menced.
of counsel.
“denial” or “absence”
completion
trial fixes
motion for new
post-trial
his client
in fact
such an
procedure
date under
appointment
to ensure
taking steps
the ini-
it does not constrain
investigation,
appellate
jurors’ criminal
inquiries
into
tiation
necessary connection
There is no
records.
in Mewis’s
flaw
only
asserted
oversight and the
alleged
Mewis’s
between
in
was his failure
lack of connection
This
post-trial period.
records of
vestigate
criminal
*5
claim re-
any Cronic
is irreconcilable
misde
thirteen-year-old
to unearth
jury,
period.
that
garding
use
juror,
to
of one
and
conviction
meanor
or
technicality
obtain a mistrial
to
that
Second,
why
facts demonstrate
reasons,
omission
this
For two
new trial.
his claim
to characterize
as
Mayo declines
significance.
has no constitutional
constitu-
test for
resting on the Strickland
representation. A
tionally
deficient
investi-
First,
should
even if Mewis
have
only if the attor-
claim arises
histories,
Strickland
criminal
jurors’
gated the
the bounds
falls outside
ney’s error
not have awaited
need
investigation
Strickland,
reasonableness.
ques-
professional
have
Mewis could
outcome of trial.
trial,
hope
offers no
that
at 349. Burdine
the defen
F.3d
capital
phase of the
murder
may
ob-
succeed in
other habeas defendants
constructively
counsel. Bur
denied
dant was
(5th
Johnson,
taining case-specific
under Cronic
relief
341
Cir.
dina v.
banc).
2001) (en
Teague.
Nothing in the
speaks
Amend
to a Sixth
opinion in Burdina
argument proves too much
con
Mayo's
4.
pre-ap-
arising
post-trial,
in the
ment claim
misjudg
alleged
flating
attorney’s
error or
non-capital prosecution. Fur
peal phase of a
of counsel
with "denial” or "absence”
shown,
ment
ther,
judgment
priori
as has been
way
Cronic
out of its
Cronic.
went
necessity
that
of counsel
about the
justify a
"only when circumstances
that
stress
the terms of
impossible. Under
phase is
can a
then,
presumption of
Sixth
Burdina,
ineffectiveness
claim
broad
Cronic or
inqui
without
claim sufficient
Amendment
preju
that
lack
a demonstration
fails for
performance
trial.”
ry
at
Cron
counsel’s
into
"absent”
likely to occur if counsel is
dice is so
ic,
S.Ct. at
U.S.
104
con
phase
to render individual
this
as
temporally tied
here was
so
alleged error
not
unnecessary.
Since
claims
sideration of
phase
justify
as to
post-trial,
to the
sup
not
presently understood does
Cronic as
.
stage.
at that
of ineffectiveness
inevi
port
holding
to counsel
by Mayo
not on point
on
are thus
Cases relied
phase of
tably
post-trial
continues
attorney
and
denial of counsel
because the
pose a
Teague doctrine would
prosecution, the
respectively,
Lane,
appeal,
incompetence on
in
Teague
here.
bar to its extension
inevitably
the defen
cases
undermined
those
L.Ed.2d
Blankenship
See
Burdine,
right to a first
court,
dant’s
conscious
Even in
Cir.1997);
Johnson,
(5th
On view, effectively my In these affidavits sentenced, that he he said wanted Mayo rep- was presumption that ap- rebut the I do not handle appeal. Because period the time by counsel lawyer. resented him hire I another peals, told (Tex. State, trial, Harrison new as Paul filing time in attorney Crim.App.1974), and is now codified of record.” Mewis remained Procedure. See. Code of Criminal Texas Tex by long recognized principle has been 2. This 26.04(j)(2). Proc. art. Code Crim. e.g., Appeals, of Criminal filing a motion for new Mayo trial.3 cause the majority otherwise, holds I re- claims he representation; was without spectfully dissent. Mayo’s attorneys
both
have sworn under
Mayo
oath that
representa-
was without
II. CRITICAL STAGE
tion; and no motion for
new
notes,
As
prejudice
before
actually filed.
I cannot
what
conceive
in this
can
presumed,
case
Mayo must
proof
more conclusive
we could require
also
period
show that the
he was without
Mayo to present to demonstrate he was in
counsel was a
stage”
“critical
pro-
fact without representation.
ceedings.
Cronic,
United States v.
In Ward v.
the Texas Court of
648, 659,
U.S.
104 S.Ct.
80 L.Ed.2d
Appeals
Criminal
emphasized that
(1984).
The state habeas courts did
“continuity of representation from trial to
not consider this issue.
panel majori-
is
necessary to
ambigui-
correct the
ty likewise declined to reach this issue
ty
which all
often
too
because its conclusion that Mayo had rep-
follows a conviction.” 740 S.W.2d
resentation
dispositive
Mayo’s
(Tex.Crim.App.1987). As the court ex-
Nonetheless, the majority opines,
dicta,
plained, this is the precise reason for the
period
the time
for filing a motion for
rule requiring
formally with-
new trial
is not a
period
critical
representation.
draw from
Id. & n.
By
disagree.
Cronic.
I
failing
perform
his statutory duty to
formally
from
withdraw
representing
It
is well settled that a defendant
Mayo,
subjected
Mayo to this “am-
constitutionally entitled to the assistance
biguity
representation,”
leaving
every
counsel at
stage
critical
without an attorney to counsel him or in-
id.;
proceedings. E.g.,
Michigan v. Jack-
vestigate grounds for filing a motion for
son,
625, 629-80,
106 S.Ct.
trial,
and depriving the trial court of
(1986);
Because both attorneys disclaim L.Ed.2d 193 representing Under the test articu- him lated pre-appeal period Supreme Court, whether a because, particular fact, time stage is a critical no motion filed, turns whether, new trial on an would assessment at the hold that Mayo has time in question, demonstrated that he “the required was with- accused aid *8 out in period. coping problems that or assistance The state in meeting habeas court’s his adversary.” conclusion that United States Ash, represented 313, is “an 300, v. 413 2568, U.S. 93 S.Ct. 37 (1973). determination of the facts in light of the L.Ed.2d 619 way, Stated another presented evidence in the pro- State critical stages prosecution court of the include all 2254(d)(2). ceeding.” § 28 U.S.C. Be- parts prosecution implicating sub- 3. distinguishes This evidence trial.”) this from case to file a motion (emphasis for new those where Ap the Court added); Oldham, of Criminal (“There 977 363 S.W.2d at peals rejected has similar claims. See Smith nothing suggest in the record that the State, 660, v. 17 S.W.3d (Tex.Crim.App. 663 attorney did not discuss the merits of a mo- 2000) ("We assume, therefore absent a show tion for a appellant, new trial with the which ing contrary, in the record to the appellant that appellant rejected.”). the adequately regarding counseled
344 raised points prerequisite ais Mempa v. new trial the accused. rights of
stantial necessary to adduce 254, “only 134, 19 when 128, 88 S.Ct. Rhay, 389 U.S. Tf,x.R.App. PROC. record.” in the (1967). facts not L.Ed.2d 336 has not con Supreme the While issue, federal every this Appeals precisely
sidered Texas Court Criminal question has the to address court the circuit whether addressed squarely has never pre-appeal post-trial, that pre-ap- concluded filing a post-trial, period time new trial motion for filing a stage. time trial is a critical for new peal motion See, v. e.g., stage.4 Kitchen critical is a is entitled held that defendant It has (7th 1014, States, 1019 227 F.3d motion for new hearing on a counsel at 87 F.3d Turpin, Cir.2000); 938, v. State, Williams 565 S.W.2d v. trial. Trevino (11th Cir.1996); Robinson 1204, However, n. 5 1210 (Tex.Crim.App.1978). 940 (8th Cir.1995); 457, Norris, 460 F.3d v. 60 to consider it has been asked two times (9th 696, F.2d 699 Borg, v. 881 time for whether Menefield Cir.1989). circuit two at least other And it has not stage, critical was a new trial mentioning mo courts, expressly Instead, without times both question. reached “the held that have matter, for new concluded, tions a threshold trial and the termination hiatus between had to demonstrate failed the defendant critical appeal” of an beginning actually without that he or she was 1495, Kaiser, 929 F.2d stage. State, Baker v. 17 period. this Smith (10th Cir.1991); Peyton, Nelson v. (“We 660, (Tex.Crim.App.2000) S.W.3d Cir.1969). 1154, 1157 to overcome has appellant hold that failed adequately he looked to the ef- circuits Each of these time for during the by counsel partic- a motion for new fect of Oldham, trial.”); filing motion Relying on principles ular state issue. (“[T]he appellant has at 361 977 S.W.2d Court, each by the articulated denied counsel show that she was failed to time concluded this ultimately filing a motion for time limit for during the law, quali- state under the relevant period, trial.”). Thus, I find stage. while a critical fied as instructive, recognize cases these Nonetheless, ap court of every Texas here is on whether proper focus has concluded consider the issue peals are affected rights defendant’s substantive Texas, that, post-trial, peri- pre-appeal time new trial is filing a motion for new trial under filing a od for See, e.g., Prudhomme stage.” “critical Alabama, 368 Hamilton v. Texas law. See State, (Tex.App 28 S.W.3d . —Tex 7 L.Ed.2d 2000, order); Massingill v. arkana (Tex.App. S.W.3d — Austin State, 11 Hanson v. S.W.3d pet,); Texas, the Texas Rules of 21 of In Rule (Tex.App. [14th Dist.] governs motions Appellate Procedure — Houston v, State, ref'd); rule, Burnett pet. this a motion trial. Under *9 Flores-Ortega, notes, grounds by Roe v. federal courts several 4. As the 985 145 L.Ed.2d is no constitutional have held there cases, However, found and I have it cites post-appeal for motions to counsel none, See, holding post-trial, that the merely collateral attacks. trial that are for new trial a motion period time Tajeddini, 945 F.2d e.g., United States stage. (1st Cir.1991), not a critical part on other overruled in 470 652, 656 (Tex.App. [1st Dist.] be an extremely important pre- tool for — Houston refd). 1997, pet. begin These courts all senting appeal. A motion for new analysis their recognition trial is generally not a prerequisite to an a particular stage whether is critical turns appeal, but it can be indispensable for a on an assessment of the usefulness of meaningful appeal of which issues counsel to the accused at that time. See reliant on facts outside the record. Ash, 2568; 413 U.S. at Upton S.Ct. (Tex.Crim. App.1993). And If a hearing several these courts on a motion for a new trial thoroughly that, explained their conclusion is a critical stage [as held the Texas law, under Texas time period issue at Court of Criminal Appeals ], in Trevino in this case does affect the substantive then logic dictates that the time period rights of the accused: for filing the motion is also a critical
The importance
stage
of counsel to a defen-
the proceedings.
dant
immediately
conviction
rec-
Prudhomme,
(cita-
We find it to be indisputable that coun-
counsel during
trial,
a critical stage of his
can
sel
coping
useful in
with legal
he is
relieved
specif-
burden
show
problems in preparing,
filing, present-
prejudice. Cronic,
ic
ing, and
at 659 n.
obtaining a
hearing on a proper
(“The
motion
S.Ct. 2039
uniformly
Court has
pro-
cess of
found
preserving error
constitutional
any
with a
error without
showing
new trial is
governed by myriad
prejudice
when counsel was
rules and can
absent,
be a
totally
rather
either
or prevented
arduous
from
task.... We also find it to be beyond
assisting the
accused
a critical
dispute that a motion for new
stage
can
proceedings.”);
Prejudice is
*10
“new”
a rule is
us that
Teague teaches
Id.
presumed.5
imposes
a
ground
if it
new
only
“breaks
majority’s
the
disagree
I
Finally,
Feder-
or the
on the States
obligation
pre-
holding
the
that
conclusion
at
Teague,
al Government.”
filing
time
Here,
Court
Supreme
109 S.Ct.
repre-
stage would
a critical
to be
new trial
for this
standards
clearly articulated
has
of Cronic
extension
impermissible
an
sent
determining whether a
to use in
Court
simply,
Stated
Teague v. Lane.
under
applying those
Simply
is critical.
stage
court
a federal
us
Teague teaches
application
not amount to
does
standards
apply
cannot
petition
reviewing a habeas
rule.”
of “newa
in granting
law
rule of
new constitutional
288, 310,
489 U.S.
defendant.
relief to the
(1989). In
1060,
109 S.Ct. III. CONCLUSION Johnson, considered we Burdine v. con- courts’ hold the state I would that mandates of Cronic’s rule scope clusion a defen- when prejudice presumption post- filing counsel a critical is absent dant’s counsel trial for new motion proceedings. stage of pre- the evidence light Cir.2001). banc our en There proceedings. court in the State sented that Cronic identified stated otherwise, holds I Because the the Sixth idea” “fundamental Further, I dissent. respectfully must have that a “defendant Amendment Mayo was without believe every assistance of the actual stage proceedings, during a critical proceeding of a criminal stage critical judg- court’s the district I would reverse of that the fairness reliance on the court’s district state ment remand Id. justified.” to be proceeding Mayo to file out-of-time permit that the time convinced am Because trial under the state laws for new motion post-trial, pre-appeal period for of his existing at the time conviction. comfortably within fits prece- Supreme Court long-established
dent, Mayo’s not believe claim I do though true even This is
Teague barred. expressly never Court has stage as critical. particular this
designated Taylor,
See Williams (2000) 1495, 146 L.Ed.2d (“[A]s Teague interpreting precedent our Martinez, REYES; Virginia Alex demonstrated, may be rules of law has Plaintiffs-Appellees, purposes even clear for habeas sufficiently of a terms expressed they when rather than as standard generalized TEXAS; RICHMOND, CITY OF rule.”) (Stevens, J., concur-
bright-line Defendants, al., et ring). prejudice prove as a reason, required to is not majority!s discussion dant 5. For this to a prerequisite to his or her entitlement motion for about merits analysis. irrelevant to our prejudice. trial should suggestion, defen- Contrary majority’s