Lead Opinion
OPINION
delivered the opinion of the Court in which
In this case, we alter the parameters of the equitable doctrine of laches as it applies to bar a long-delayed application for a writ of habeas corpus. Recognizing that our current approach to laches in the ha-beas corpus context has imposed an unreasonably heavy burden upon the State, we now adopt a revised approach that is consistent with the Texas common-law definition of that doctrine. In doing so, we expand the definition of prejudice under the existing laches standard to incorporate all forms of prejudice so that a court may consider the totality of the circumstances in deciding whether to hold an application barred by laches. Our revised approach is motivated by our recognition that the current laches standard is too rigid and, as a result, some applicants have been permitted to seek post-conviction relief despite excessive and unjustified delays that have prejudiced the State’s ability to defend long-standing convictions. This approach has failed to account for the State’s interest in finality and is incompatible with fundamental principles of fairness and equity, which must underlie any grant of habeas corpus relief. In light of our revised approach to the doctrine of laches, we remand this case to the trial court to give both Alberto Giron Perez, applicant, and the State an opportunity to present additional evidence.
I. Background and Procedural History
Applicant was found guilty of murder, and his conviction was affirmed by the court of appeals in 1992. Perez v. State, No. 07-91-00225-CR (Tex.App.-Amarillo Oct. 9, 1992, no pet.). In 2011, almost twenty years later, applicant filed this application for post-conviction relief pursuant to Texas Code of Criminal Procedure Article 11.07. See Tex.Code CRiM. PROC. art. 11.07. Applicant contends that he was denied the opportunity to pursue discretionary review in this Court because his appellate counsel failed to notify him of his conviction’s affirmance in the court of appeals until June 1993, by which time the deadline for filing a petition for discretionary review (PDR) had passed.
The trial court’s findings, which are supported by the record, show that appellate counsel did not provide applicant with notice of the court of appeals’s opinion until after the deadline for filing a PDR, and that applicant had the information necessary to seek an out-of-time PDR as early as 1993 but failed to do so until almost two decades later. The trial court concluded that applicant failed to show that, absent counsel’s conduct, he would have timely filed a PDR.
On the issue of laches, the trial court found that the State would be prejudiced in its ability to retry applicant if he were awarded a new trial through habeas corpus relief. This finding addressed the State’s contention that it has been prejudiced as a result of applicant’s filing delay “because of the passage of time as well as its inability to locate the murder weapon, key eyewitnesses to the shooting and its reasonable expectation that the faded memories of the witnesses will hamper the State’s ability to present a case.” The State further noted that the lead investigator in the case was retired and elderly.
The trial court also found that the State is prejudiced in its ability to respond to the application based on appellate counsel’s “hazy memory of the events” related to the PDR. The trial court’s finding was based on an affidavit from appellate counsel, in which he stated that, aside from his failure to timely communicate the conviction’s af-firmance, he had “little independent memory of the events described in applicant’s writ” and had retained no records pertaining to his representation of applicant. Based on his “custom and practice,” counsel stated that he would have informed applicant that he was entitled to “a first appeal as a matter of right, that a second appeal was not a matter of right and that [counsel] would not file a meritless PDR, though [applicant] could.” Counsel further stated that it was his “usual practice and routine” to timely forward a copy of the court of appeals’s opinion to defendants, and that he did “not remember” why applicant did not receive a copy of the opinion or timely notice of the conviction’s affirmance.
This Court ordered briefing on the issue of whether laches could be the basis to deny applicant the opportunity to file an out-of-time PDR based on the State’s claim of prejudice to its ability to retry him.
II. Application of Laches in the Post-Conviction Context
A. This Court Has Previously Applied Federal Standard In Analyzing Laches
In Ex parte Carrio, this Court determined that the doctrine of laches was appropriate for application in the habeas corpus context.
neglect to assert right or claim which, taken together with lapse of time and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity. Also, it is the neglect for an unreasonable and unexplained length of time under circumstances permitting diligence, to do what in law, should have been done.
Id. at 487 n. 2 (citing BLACK’S LAW DICTIONARY 875 (6th ed.1990)).
In Carrio, we reasoned that laches could be the basis for denial of habeas relief even in the absence of an applicable statute or rule because “laches is an equitable common-law doctrine,” and habeas corpus is an equitable remedy. See id. at 488; Ex parte Gaither,
In holding that we would employ laches to evaluate post-conviction writs of habeas corpus, we cited favorably to the federal courts’ application of laches to federal petitions for habeas corpus. See id. at 487-88. Wé explained that federal courts “have long recognized” laches in “evaluating post-conviction writs” and have “codified that doctrine in Rule 9(a) of the Rules Governing 28 U.S.C. § 2254 Cases.” See id.; former Rule 9(a) foll. 28 U.S.C. § 2254 (West 1994); Walters v. Scott,
The federal laches standard was rooted in the common-law doctrine of laches, but contained several important differences. Under the Fifth Circuit interpretation of Federal Rule 9(a), to invoke laches in response to a habeas petition, a state was required to “(1) make a particularized showing of prejudice, (2) show that the prejudice was caused by 'the petitioner having filed a late petition, and (3) show that the petitioner has not acted with reasonable diligence as a matter of law.” Carrio,
Although this Court, in Camo, did not expressly state that it was adopting the Fifth Circuit laches standard, that standard has, in practice, governed our approach to laches in subsequent post-conviction cases. See Carrio,
B. Federal Laches Standard No Longer Appropriate for Texas
This Court’s adoption of the federal laches standard in Carrio was logically sound at the time, but the events of the decade since Carrio demand that we abandon that standard in favor of a more equitable approach. As we explain in three points below, those events show that federal courts no longer employ the federal laches standard we adopted; a significant number of other jurisdictions have rejected that standard; and that standard, as applied in Texas, has proven too rigid to effectively serve as an equitable standard.
First, the federal laches standard is no longer good law. Several years prior to this Court’s adoption of the federal standard, Congress enacted a strict one-year limitations period for federal habeas corpus that has now obviated the need for the laches doctrine in that context. See 28 U.S.C. § 2244(d); Pub.L. 104-132, 110 Stat. 1217, 1220 (Apr. 24, 1996). The enactment of a one-year limitations period was, in part, a congressional reaction to the failure of the federal courts to effectively employ equitable doctrines, such as laches, to bar applicants from seeking ha-beas corpus relief after lengthy delays. See Steptoe,
Second, other states have rejected the federal standard as not current, too narrow, and overly rigid. For example, California rejected the federal standard because it found that standard was “neither current nor controlling.” See In re Douglas,
Third, the federal standard has proven too rigid to serve effectively as an equitable standard. Federal courts found that, under their restrictive interpretation of Rule 9(a), the State faced an almost impossible burden to establish laches, even when an applicant’s delay was “extreme.” See, e.g., Smith v. Jones,
As shown by the events of the decade since this Court decided Carrio, the federal standard that we adopted has been abandoned by the federal courts and a significant number of state courts, and has strayed far from the common-law understanding of laches by establishing a burden of proof that has been nearly impossible for the State to satisfy. We, therefore, abandon that formulaic standard in favor of the more flexible common-law approach to laches in the post-conviction context.
III. Common-Law Standard Better Comports With Equitable Considerations
As we have described above, the events of the last decade require that we abandon the aspect of Carrio that approved of Texas’s application of the federal laches standard. See Carrio,
Consistent with the common-law doctrine of laches, going forward, we will (1) no longer require the State to make a “particularized showing of prejudice” so that courts may more broadly consider material prejudice resulting from delay, and (2) expand the definition of prejudice under the existing laches doctrine to permit consideration of anything that places the State in a less favorable position, including prejudice to the State’s ability to retry a defendant, so that a court may consider the totality of the circumstances in deciding whether to grant equitable relief. See Caldwell,
Our revised approach under the broadened prejudice standard is consistent with the principle that the writ of habeas corpus is an extraordinary remedy, any grant of which must be underscored by elements of fairness and equity. See, e.g., Ex parte Emmons,
Similar to a court’s review of a claim that a defendant’s right to a speedy trial has been violated, it may be proper to consider, among all relevant circumstances, factors such as the length of the applicant’s delay in filing the application, the reasons for the delay, and the degree and type of prejudice resulting from the delay. See Dragoo v. State,
With respect to the degree of proof required, the extent of the prejudice the State must show bears an inverse relationship to the length of the applicant's delay. This “sliding scale” approach is analogous to the flexible burden of proof applicable to speedy-trial claims. In that context, this Court has observed that the defendant’s burden of proving a speedy-trial violation varies inversely with the State’s degree of culpability and the length of the delay. See Cantu v. State,
Furthermore, our revised approach comports with this Court’s prior statements that, in determining whether habeas relief is warranted, we must afford adequate weight to the State’s broad interest in the finality of a long-standing conviction. See Ex parte Moreno,
Aside from the changes discussed above, we leave intact the equitable princi-pies that permit a court to reject the State’s reliance on laches when the record shows that
• an applicant’s delay was not unreasonable because it was due to a justifiable excuse or excusable neglect;
• the State would not be materially prejudiced as a result of the delay; or
• the applicant is entitled to equitable relief for other compelling reasons, such as new evidence that shows he is actually innocent of the offense or, in some cases, that he is reasonably likely to prevail on the merits.
See, e.g., Ex parte Scott,
Given the nature of habeas corpus relief, it is reasonable to permit a court to consider whether an applicant has slept on his rights and, if he has, how that has affected the State, and whether, in light of
III. Conclusion
In light of our revised approach to the doctrine of laches, and because neither applicant nor the State has had the benefit of this opinion, we remand this case to the trial court so that the parties may be afforded the opportunity to produce additional evidence.
Notes
. "[A]ppellate counsel has a duty to notify the appellant of the actions of the appellate court [on direct appeal].” Ex parte Jarrett,
. Specifically, we asked "whether the State's showing that it would be prejudiced in its ability to re-try Applicant if this Court were to grant relief on a petition for discretionary review is sufficient to invoke the doctrine of laches and deny Applicant the opportunity to
. In Texas, laches has been described as "an equitable remedy that prevents a plaintiff from asserting a claim due to lapse of time.” Green v. Parrack,
. Federal Rule 9(a) read in its entirety,
Delayed Petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he or she could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.
See Former Rule 9(a) foll. 28 U.S.C. § 2254 (deleted 2004). Rule 9(a) was enacted in 1976 and governed dismissal of delayed applications for federal habeas corpus until 1996, when a strict one-year statute of limitations was enacted. See 28 U.S.C. § 2244(d) (one-year statute of limitations applies to all federal habeas corpus petitions).
. Procedurally, under the Fifth Circuit laches standard, the State was required to initially make a "particularized showing of prejudice” with respect to the "state’s ability to respond to the petition.” Strahan v. Blackburn,
. To meet the requirement that it make a particularized showing of prejudice in its ability to respond to the allegations, the State could "not merely allege prejudicial facts,” but was required to "offer concrete proof of the allegations.” Rideau v. Whitley,
. In adopting the term from the federal court’s implementation of Rule 9, this Court did not define how the State would make "a particularized showing of prejudice” in Carrio. See Ex parte Carrio,
. Over half of all states now employ statutes of limitation for state post-conviction relief, thus making the equitable doctrine of laches largely inapplicable in those states. See, e.g., Ala. Rule Crim. Proc. 32.2(c) (Alabama, one-year statute of limitations); Alaska Stat. § 12.72.020 (Alaska, 18 months); FL. R.Crim. Proc. 3.850 (Florida, two years); Ga.Code Ann. 9-14-42 (Georgia; four years); Idaho Code § 19-4902(a) (Idaho, one year); Ill.Code Crim. Proc. Art. 122 (Illinois, three years); Kan. Stat. 60-1507 (Kansas, one year); Md. Code Crim. Proc. § 7-103 (Maryland, ten years); Nev.Rev.Stat. § 34.726(1) (Nevada, one year); Tenn.Code Ann. § 40-30-102(b) (Tennessee, one year); Rev:Code Wash. § 10.73.090 (Washington, one year).
. As a result of the difficulties inherent in meeting the former federal laches standard, applicants were frequently permitted to seek federal habeas relief even after lengthy delays. See, e.g., Bedford v. Attorney General of Alabama,
. We cite the following unpublished cases as examples, recognizing that they are non-binding and non-precedential. See, e.g., Ex parte Waites, No. WR-71,327-01,
. Other states, applying their own common-law doctrine of laches, have permitted a court to consider whether the State will be preju
. We do not identify any precise period of time after which laches necessarily applies, although we recognize that delays of more than five years may generally be considered unreasonable in the absence of any justification for the delay. See, e.g., Ex parte Florentino,
. Because the State raised laches in response to this application, we do not reach the question of whether the State must plead laches for a court to consider it in determining whether to grant equitable relief. We do observe, however, that any pleadings invoking laches in the habeas context need only give notice to the opposing side and need not rise to the level of a prima facie showing of particularized prejudice, as was required under the federal courts' interpretation of Rule 9(a). See Walters,
. Our altered approach is consistent with other states that, in applying their own common law, have recognized that the laches inquiry must be flexible and made in light of the particular circumstances of the case. See, e.g., Raso,
. The dissenting opinion suggests that, at this stage, we need not consider the State’s ability to retry a case because that can be done later. But there will never be a later time. If, in granting an application for a writ of habeas corpus, an appellate court returns a case to a trial court for retrial, a trial court has no authority to disregard the directive by determining that the retrial would be barred by laches. Specific to the issue of out-of-time PDRs, the dissenting opinion suggests that we should grant leave to file an out-of-time PDR and decide the laches issue only if we later decide on discretionary review that applicant (now turned appellant) is entitled to relief. Such an approach would not only overlook the State's properly raised laches argument here, but it would also overlook the fact that this Court’s decision to grant an out-of-time PDR is a procedurally significant one that restores certain rights to an appellant. See Mestas v. State,
Dissenting Opinion
filed a dissenting opinion.
Although we have not yet seen Applicant’s petition for discretionary review, the majority says that there is no reason to allow him to file an out-of-time PDR because the passage of time makes it hard for the State to retry him. There are a few steps the majority seems to be skipping here. First, Applicant may not file a PDR even if we allow him to; second, the chances of us granting the PDR are pretty slim; and third, it is even more unlikely that we would grant Applicant relief-especially in the form of a new trial. I think the majority is a bit premature to worry about the State’s ability to retry. The majority focuses on the heavy burden on the State, but all Applicant is asking is to be allowed to file a PDR. And if we deny this application, then he has used his one writ of habeas corpus and any future writ would be dismissed as subsequent under Code of Criminal Procedure Article 11.07, Section 4.
It looks like the State has won the trifecta here because the majority has (1) expanded the doctrine of laches to include prejudice to the State’s ability to retry a defendant, (2) applied this definition of prejudice at a point in the case when the State’s ability to retry the defendant is not yet at issue, and (3) done so without the State even having to raise the issue. The enthusiasm exhibited by the majority in this case rivals that of a pharmaceutical company who has eagerly announced the miracle cure for a disease that has not yet been discovered and may not even exist. The purpose of this opinion at this stage of the game escapes me, as does the motivation. There was certainly no necessity to implement laches at this stage of the writ process. Apparently there was either a desire to present the State with this theory to halt the proceedings before they even begin or this particular Applicant simply fit the profile for someone who is undeserving of the granting of a writ. In either case, it has now turned into the gift that keeps on giving.