Ex Parte Al Letroy SMITH, Applicant.
No. WR-79,465-01.
Court of Criminal Appeals of Texas.
Oct. 1, 2014.
444 S.W.3d 661
The State‘s cross-point in its brief to the court of appeals says, “Appellant waived his right of appeal. Therefore his appeal should be dismissed.” In addressing the State‘s argument “that appellant waived his right to appeal,” the court of appeals disagreed with the State “for two reasons.” First, the court pointed out that the State had never objected to the proceedings by which the original certification was amended and the State raised its complaint for the first time on appeal. But the court did not say that the State forfeited its claim; it did not mention forfeiture at all. I think the Court reads too much into the opinion when it says that the court of appeals, “asserted that
The court of appeals’ second basis for rejecting the State‘s waiver argument was that the Rules of Appellate Procedure gave appellant the right to appeal and the record showed no waiver of that right. In this, the court was simply mistaken. Appellant‘s waiver of appeal was clear from both the plea papers and the record of the plea hearing.
I respectfully concur.
John C. Bennett, Amarillo, for Applicant.
John L. Owen, Asst. Dist. Atty., Amarillo, for the State of Texas.
KEASLER, J., delivered the opinion of the Court, in which KELLER, P.J., PRICE, HERVEY, COCHRAN, and ALCALA, JJ., joined.
Applicant Al Smith waited over ten years to claim in an application for a writ of habeas corpus that his rights to direct appeal and effective assistance of counsel were denied. Although the State did not plead laches in its answer to Smith‘s application, we hold that a court may consider sua sponte whether laches should bar an applicant‘s claim. We further hold that the current record supports a sua sponte laches inquiry. Smith‘s application is remanded to the habeas court to give Smith an opportunity to explain his delay and for the entry of findings of fact and conclusions of law.
I.
In June 2002, a jury found Smith guilty of assault on a public servant, and the judge sentenced him to a term of eight years’ confinement to run consecutively with another conviction. Appellate counsel was subsequently appointed, but no appeal was taken. In March 2013, Smith filed an application for a writ of habeas corpus pursuant to
Smith‘s application was forwarded to this Court without any findings of fact and conclusions of law entered by the habeas judge. We remanded the application to the habeas court to make findings and conclusions as to “whether [Smith] was denied his right to a meaningful appeal because [Smith‘s] counsel failed to timely file a notice of appeal.”1 After considering appellate counsel‘s affidavit, in which he stated that he had no personal recollection of the case and that his file did not contain a notice of appeal, the habeas judge found that appellate counsel failed to invoke the court of appeals’ jurisdiction. The judge concluded that Smith received ineffective assistance of appellate counsel and recommended that Smith be permitted to file an out-of-time appeal. The State did not object to the findings or conclusions. On our own motion, we ordered Smith‘s application be filed and set to determine “whether the State must plead laches for a court to consider it in determining whether to grant equitable relief.”2
II.
We have long acknowledged that the writ of habeas corpus is of common-law origin and governed by common-law equitable principles.3 Indeed, the earliest government of an independent Texas explicitly embraced English common law in this regard: “Every Judge, so nominated and commissioned, shall have jurisdiction over all crimes and misdemeanors recognized and known to the common law of England: he shall have power to grant writs of ‘habeas corpus’ in all cases known and practised, to and under the same laws[.]”4 This extraordinary and prerogative writ was so named because, while “it cannot be employed as a substitute for appeal,” “it seeks to relieve the petitioner from a wrongful act by anticipating and superseding the ordinary course of legal procedure.”5 At common law, it was “principally applied to remedy defects in the common-law proceedings; and therefore that equity jurisprudence was enter-
The concept that delay in seeking relief may, in certain instances, adversely affect an applicant‘s request for habeas corpus relief was first expressed in terms other than a formal recognition of the equitable defense of laches. In Ex parte Young, 479 S.W.2d 45, 46 (Tex. Crim. App. 1972), we stated that, “While we do not desire to make an absolute rule concerning habeas corpus petitioners who do not assert their legal remedies promptly, we nevertheless feel that in some instances, a petitioner‘s delay in seeking relief can prejudice the credibility of his claim.”12 In Young, we noted that Young had waited eight and a half years before complaining that counsel failed to file an appeal on his behalf despite being aware that he had such a right.13 Our denial of Young‘s application turned in part on several factors owing to his delay to bring his complaint: the unavailability of the trial record of his eleven-year-old conviction and the inability to fully explore the failure to appeal because of participants’ death and the erased memories of others.14
Our first direct exposition on the laches doctrine‘s effect on an applicant‘s request for habeas corpus relief is found in Ex parte Carrio, 992 S.W.2d 486 (Tex. Crim. App. 1999). In addressing the State‘s pleaded theory of laches, the Carrio Court recognized that an applicant‘s claim for relief had never before been denied under the laches doctrine and the Court has had no desire to impose upon an applicant a
The doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as 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.16
Concluding that “the doctrine of laches is a theory which we may, and should, employ in our determination of whether to grant relief in any given 11.07 case,” this Court in essence adopted the federal approach found in Rule 9(a) of the Rules Governing 28 U.S.C. § 2254 Cases.17 In effect, Carrio required the State to go beyond what would have been required to raise laches at common law by (1) requiring the State to make a particularized showing of prejudice and (2) limiting the type of prejudice the State may show to prejudice to its ability to respond to the claims raised in an application.18
Just two terms ago in Ex parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013), we abandoned Carrio‘s embrace of the federal approach in favor of a return to the common law‘s equitable principles that animate the laches doctrine.19 After Perez, the State is no longer required to make a particularized showing of prejudice, and the definition of prejudice has now expanded to include anything that places the State in a less favorable position, including prejudice to the State‘s ability to retry a defendant.20 The reasons for the restoration were many: The persuasiveness of the authorities Carrio relied upon had been undermined by the imposition of a strict statute of limitations for federal habeas claims, and the federal standard proved to be too rigid to serve effectively as an equitable standard.21 But more importantly, the federal standard deviated from the general principles of common-law equity.22
“[T]he writ of habeas corpus is an extraordinary remedy, any grant of which must be underscored by elements of fairness and equity.”23 To determine whether equitable relief should be granted then, it behooves a court to determine whether an applicant has slept on his rights and, if he has, whether it is fair and just to grant him the relief he seeks.24 The expanded approach ensures that courts keep, at the fore, the State‘s and society‘s interest in the finality of convictions,25 and consider the trial participants’ faded memories and the diminished availability of evidence.26 In these case-by-case inquiries, courts should consider, among
For the same reasons that we abandoned the federal approach to laches, we now hold that a court may sua sponte consider and determine whether laches should bar relief. In a civil suit in equity, the United States Supreme Court stated long ago that,
To let in the defence that the claim is stale, and that the bill cannot, therefore, be supported, it is not necessary that a foundation shall be laid by any averment in the answer of the defendants. If the case, as it appears at the hearing, is liable to the objection by reason of the laches of the complainants, the court will, upon that ground, be passive, and refuse relief....
A court of equity, which is never active in giving relief against conscience or public convenience, has always refused its aid to stale demands where a party has slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced; and, therefore, from the beginning of this jurisdiction there was always a limitation to suits in this court.29
More recently, the Supreme Court expressed a similar sentiment: “Among [the governing equitable principles of habeas corpus] is the principle that a suitor‘s conduct in relation to the matter at hand may disentitle him to the relief he seeks. Narrowly circumscribed, in conformity to the historical role of the writ of habeas corpus as an effective and imperative remedy for detentions contrary to fundamental law, the principle is unexceptionable.”30 And as Judge Cochran has noted, the path to a habeas corpus remedy is a costly one, exacting enormous societal and administrative costs.31 Protracted habeas corpus litigation defers convictions’ finality, “undermines confidence in the integrity of our procedures and inevitably delays and impairs the orderly administration of justice.”32 This in turn weakens the
Our holding should not be interpreted to suggest that all writ applications should be subjected to such scrutiny. Whether a habeas court properly raises laches calls for an elusive answer in the abstract. With its consideration of the totality of circumstances, the nature of equity itself defies definitive parameters. However, the habeas court should act on its own sparingly, questioning only those applications demonstrating an excessive delay that undermines or obstructs the principles and virtues the criminal-justice system promotes.
Smith contends that permitting sua sponte consideration of laches is inappropriate because it discords with our statutes and that laches is considered an affirmative defense and must be pleaded by the State. Smith argues that a sua sponte review of laches conflicts with or is implicitly precluded by
Smith next claims that habeas corpus proceedings are civil in nature, and as a result the pleading rules should be governed by the Texas Rules of Civil Procedure, namely Rule 94.39 He argues that under Rule 94 the State‘s failure to assert a laches theory barring relief in its responsive pleading means that the laches doctrine has been forfeited and is not in the case. Smith‘s characterization of habeas corpus proceedings may be correct at least in terms of the writ‘s historical notions. His ultimate conclusions, however, are not. As Smith concedes, we have held that habeas corpus is primarily a criminal proceeding and the Texas Rules of Civil Procedure do not ordinarily apply.40 Despite Smith‘s arguments to the contrary, we decline to make an exception here, especially in light of the varied equity interests at play that may extend beyond the parties’ arguments. To the extent Smith‘s arguments can be interpreted as asserting that laches‘s common-law provenance carries with it common-law pleading requirements, we find it unpersuasive. Whatever can be said about the common law‘s procedural requirements, they have not survived subsequent changes in case law, the enactment of statutes, and the adoption of rules specifically addressing habeas corpus pleadings and procedure.41
III.
While equity may ultimately require denying relief, it nonetheless requires giving the applicant an opportunity to explain his delay.43 An applicant must be afforded this opportunity—irrespective of whether the State alleges the delay disadvantages its own position—before a court recommends or concludes that laches compels the application‘s denial. In a sua sponte laches inquiry, a court may excuse an applicant‘s delay when the record demonstrates that his delay was the result of justifiable excuse or excusable neglect based on the totality of circumstances, or other compelling reasons entitle him to relief, such as newly available evidence or a new legal basis for relief.
IV.
Smith was convicted of assault on a public servant in June 2002. Ten and a half years elapsed before Smith filed his March 2013 application for habeas corpus relief claiming that he was denied his right to appeal and effective assistance of appellate counsel. Relying on counsel‘s affidavit, the habeas judge found that counsel had no independent recollection of the facts surrounding Smith‘s appeal and counsel‘s file did not contain a notice of appeal. From this, the habeas judge concluded that Smith‘s right to appeal was denied and recommended that relief be granted.
From Smith‘s application alone it appears quite clear that he was aware of his right to appeal. He states that he was advised of his right to appeal in July 2002. He further states that “On or about the 1st day of September, 2002” he “was concerned about his appeal and wrote to [the] State Counsel[] for Offenders regarding the stat[u]s of his appeal[.]”44 “On numerous occasions” Smith attempted to contact his appointed appellate counsel to no avail, although he does not place his attempts within a certain time period.45 Over nine years later in March 2012, Smith contacted the Potter County District Clerk‘s Office to ask about the status of his appeal. In August and September 2012, he learned from the District Clerk‘s Office and the court of appeals, respectively, that no notice of appeal had been filed in his case. In March 2013, he filed the present application.
A ten-and-a-half-year delay is extraordinary. From the current state of the record and assuming Smith‘s statements in his application are accurate, it is hard to escape the conclusion that he slept on his rights with full awareness of them. At a minimum, the delay is significant enough for this Court to justly ask whether Smith‘s claim should be precluded by laches.46 However, because the record is silent on the circumstances that may excuse this substantial delay, we reserve judgment as to whether laches bars Smith‘s request for relief until he is given an opportunity to explain his delayed application.
Accordingly, we remand this application to the habeas court to make findings of
This application is held in abeyance pending further habeas-court proceedings.
MEYERS, J., filed a dissenting opinion.
WOMACK, J., Concurred.
JOHNSON, J., dissented.
MEYERS, J., filed a dissenting opinion.
I disagreed with the majority when it expanded the doctrine of laches in writs of habeas corpus in Ex parte Perez, 398 S.W.3d 206, 219-20 (Tex. Crim. App. 2013) (Meyers, J., dissenting), and I disagree with it again today. The majority is handicapping applicants and further aiding the State by not requiring the State to plead laches at all, but then forcing the applicant to show, in yet another court, why his application should not be barred.
This process is particularly unkind to those applicants who had no idea why their case was not being advanced in the courts, as occurred here. As a consequence of his counsel‘s likely ineffective assistance, Applicant sat in jail for ten years before informing the courts that he never received his rightful appeal. Without a lawyer in jail with him, there is no reason an applicant should know the time limit for filing an application for a writ of habeas corpus. The majority talks in detail about using an equitable standard, but, considering that the alternative to filing a writ is being incarcerated, equity is clearly not on the side of applicants. And to excuse the State from having to assert laches at all, which may show that an application should be dismissed, further tips the balance of equity away from applicants. Further, there is nothing in the majority opinion that indicates what criteria one would follow in order to decide which cases warrant this sua sponte consideration. Reading the majority opinion, one can only draw the conclusion that this case is being returned for no reason other than the fact that a substantial amount of time has passed between the conviction and the application.
Instead of remanding this case for Applicant to explain his delay, we should be requiring the State to explain to us why it did not plead laches itself. Applicant now must overcome two burdens: proving he is not barred by laches, and proving he received ineffective assistance of counsel. Because I believe that the onus should be on the State and that we should not consider sua sponte whether laches bars an applicant‘s claim, I respectfully dissent.