Opinion
No. 3:00-CV-2709-P
November 8, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the United States District Court for the Northern District of Texas, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
A state prison inmate has filed a petition for writ of habeas corpus pursuant to Title 28, United States Code, Section 2254.
II. PARTIES
Petitioner, Gayland Bradford, is an inmate in the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Respondent, Janie Cockrell, is the Director of TDCJ-ID.
III. PROCEDURAL HISTORY
A jury convicted Petitioner of capital murder, and his punishment was assessed at death by lethal injection. State v. Bradford, Cause No. F89-76496-R (265th Dist. Ct., Dallas County, Tex. May 10, 1995). It was the second time that Petitioner had been tried, convicted, and sentenced to death for such offense. His present conviction and death sentence were affirmed on direct appeal, Bradford v. State, No. 72, 163 (Tex.Crim.App. Feb. 17, 1995) (unpublished), and his petition for writ of certiorari in the Supreme Court was denied. Bradford v. Texas, 528 U.S. 950, 120 S.Ct. 371, 145 L.Ed.2d 289 (1999).
Petitioner's original conviction was reversed by the Court of Criminal Appeals on direct appeal and remanded for a new trial. Bradford v. State, 873 S.W.2d 15 (Tex.Crim.App. 1993).
Petitioner subsequently filed a state application for writ of habeas corpus on June 8, 1999. (State Habeas Record, hereinafter "SHR", pp. 2-16.) The trial court entered findings of fact and conclusions of law and recommended that relief be denied. Ex parte Bradford, No. W89-76496-R(A) (265th Dist. Ct., Dallas County, Tex. Nov. 17, 1999); (SHR, pp. 22-44.) The Court of Criminal Appeals held that those findings of fact and conclusions of law were supported by the record and upon such basis denied relief in a written order. Ex parte Bradford, App. No. 44, 526-01 (Tex.Crim.App. Mar. 8, 2000) (unpublished).
Petitioner filed his federal petition for writ of habeas corpus on December 14, 2001. Respondent filed an answer on April 8, 2002, and furnished the state court records. Petitioner filed an additional application for authorization of funds for expert assistance on April 11, 2002 and a response to the answer on June 3, 2002. On June 20, 2002, the Supreme Court held in Atkins v. Virginia, ___ U.S. ___, 122 S.Ct. 2242 (2002) that the execution of the mentally retarded constitutes cruel and unusual punishment in violation of the Eighth Amendment. In response to this decision, Petitioner requests funds for expert assistance to develop his claim that he is mentally retarded and Respondent moves (1) for the dismissal of Petitioner's claim under Atkins and the denial of all other claims in the petition, and alternatively (2) for the dismissal of all claims in this petition.
IV. RULE 5 STATEMENT
In her answer, Respondent stated that Petitioner completely failed to exhaust all of his state court remedies pursuant to 28 U.S.C. § 2254(b), (c) and has no way to now exhaust his claim since under state law, he would be barred from returning to state court to file a successive habeas application. As a result, Respondent originally argued in her answer that all of Petitioner's claims are barred because of procedural default. However, in light of the Supreme Court's recent decision in Atkins, Respondent has conceded that Bradford may now present his Atkins claim to the state court in accordance with state law. See TEX. CODE CRIM. PROC. art. 11.071 § 5 (West 2001).
V. ISSUES
In six grounds for relief, Petitioner claims that (a) his trial counsel was ineffective during the punishment stage of his trial, (b) the execution of the mentally retarded constitutes cruel and unusual punishment, (c) the duration and conditions of his confinement constitute cruel and unusual punishment, and (d) the trial court relieved the prosecution of its duty to prove lack of mitigation circumstances beyond a reasonable doubt.
Petitioner's first through third claims for habeas corpus relief.
Petitioner's fourth claim for habeas corpus relief.
Petitioner's fifth claim for habeas corpus relief.
Petitioner's sixth claim for habeas corpus relief.
VI. THRESHOLD ISSUES.
Before addressing the merits of these claims, this Court must resolve a number of preliminary matters, particularly concerning the investigation and development of Petitioner's Atkins claim (that his execution would constitute cruel and unusual punishment because he is mentally retarded). Petitioner does not contest Respondent's claim that he did not exhaust this or the other grounds raised in his petition by first presenting them to the highest state court. However, he contends that further action in this Court is necessary because no state corrective process presently exists which is adequate to protect his newly-acquired rights under Atkins. Therefore, this Court must determine what investigation and development of this claim are appropriate in this Court, or if this cause should instead be stayed or dismissed so that Petitioner can first develop this claim in state court.
Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. The exhaustion doctrine, first announced in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), is now codified at 28 U.S.C. § 2254(b)(1) (1994 ed. Supp. III).O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999). This codification, 28 U.S.C. § 2254(b)(1), provides,
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant."
The exhaustion doctrine is not jurisdictional but is instead based in comity. See Rose v. Lundy, 455 U.S. 509, 516, 102 S.Ct. 1198, 1202, 71 L.Ed.2d 379 (1982). "State courts, like federal courts, are obliged to enforce federal law. Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." O'Sullivan, 526 U.S. at 844. For this reason, normally "a district court must dismiss habeas petitions containing both unexhausted and exhausted claims." Rose, 455 U.S. at 522. But if an unexhausted claim lacks merit, a district court may choose to deny it and finally resolve the matter, rather than dismiss it in favor of further state court action. See 28 U.S.C. § 2254(b)(2).
At the time his petition for federal habeas corpus relief was filed, Petitioner's alleged mental retardation would not have constituted a basis for federal habeas-corpus relief. It was not until the Supreme Court's decision in Atkins on June 20, 2002, that the execution of the mentally retarded was held to constitute cruel and unusual punishment in violation of the Eighth Amendment. Therefore, he cannot be faulted for failing to make this claim at the time of his state-court proceedings. Nevertheless, the manner in which such claims should be handled in the federal courts is far from clear.
The Fifth Circuit Court of Appeals characterized the period following Atkins as exhibiting a "welter of uncertainty." Bell v. Cockrell, ___ F.3d ___, 2002 WL 31320536 at *2 (5th Cir. 2002).
Following Atkins, Petitioner renewed his application for expert assistance and this Court called for and received briefs from both parties regarding the procedures to be followed in order to give effect to this new basis for relief, and particularly whether or not there is presently an available state corrective process that is effective to protect the rights of Petitioner pursuant to 28 U.S.C. § 2254(b)(1)(B). In those pleadings, Respondent Cockrell moved that this Court should deny Petitioner's request for expert assistance "with prejudice," dismiss his Atkins claim, and deny relief on all of his other claims. (Respondent Cockrell's Response to the Court's Order Directing the Parties to File Briefs in Light of Atkins v. Virginia, hereinafter "Respondent's Brief" p. 3.) In the alternative, Respondent moved that the entire petition — not only the Atkins claim, but all of Petitioner's claims — be dismissed without prejudice so that the state court may address the Atkins issue pursuant to the new rule of law established in that case. ( Id.)
Respondent's initial motion would involve a separation of these claims and require this Court to conduct a careful evaluation of any exceptions to the procedural bar asserted by Respondent in federal court. During such time, Petitioner's limitations period for returning to federal court on his Atkins claim would not be tolled. This Court concludes that the alternate motion is more appropriate under the present circumstances of this case.
In connection with her alternative motion, Respondent has made some important concessions. She has acknowledged that Texas law will permit Bradford an successive state habeas application in order to develop his Atkins claim (Response filed October 30, 2002, pp. 5-6), and she has also stated to this Court that "in light of the unique circumstances of this case, the Director would waive any limitations defense with respect to Bradford's remaining claims provided that those claims were re-filed within the time frame allotted by [28 U.S.C.] § 2244(d)(1)(C) for presenting his Atkins claim." ( Id. at p. 3, n. 2.) In light of these concessions, the Court concludes that the entire petition herein should be dismissed without prejudice.
This allows Petitioner to file his Atkins claim in federal court within one year from June 20, 2002, which is "the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2244(d)(1)(C). Such time period is tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). This tolling provision does not include a delay in federal court action before this claim may be dismissed in favor of further proceedings in state court. Therefore, any further delay in this Court will reduce the time that Petitioner has to exhaust his state court remedies and then get any future petition on this claim filed in federal court.
In Atkins, the Supreme Court expressed a preference for allowing state courts the first opportunity to develop procedures to implement this newly-recognized right. As described by the Fifth Circuit Court of Appeals in a case involving a duly exhausted claim,
The Supreme Court neither conclusively defined mental retardation nor provided guidance on how its ruling should be applied to prisoners already convicted of capital murder. Instead, the Court held,
Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, `we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.' 477 U.S. 399, 405, 416-17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).
Atkins, 122 S.Ct. at 2250. In these circumstances, inferior federal courts have no useful role to play until and unless following Atkins, a death sentence is reaffirmed or again imposed on Bell by the state courts. Just how the state courts will implement Atkins, we cannot say. Clearly, however, the state must be given the first opportunity to apply the Supreme Court's holding in order to insure consistency among state institutions and procedures and to adjust its prosecutorial strategy to the hitherto unforeseen new rule.Bell v. Cockrell, ___ F.3d ___, 2002 WL 31320536 at *2 (5th Cir. 2002). Such holding should apply with even greater force to such a claim that had never been presented to the state courts. See Smith v. Cockrell, ___ F.3d ___, 2002 WL 31447742 (5th Cir. 2002) (declining to usurp the state's position by considering such unexhausted claim.) Clearly, this Court should dismiss this petition without prejudice due to this unexhausted claim.
Acknowledging that his unexhausted claim of mental retardation should ultimately be dismissed and filed in state court, (Petitioner's Response to the Court's August 30, 2002 Order Directing the Parties to File Briefs in Light of the Supreme Court's Opinion in Atkins, hereinafter "Petitioner's Brief," p. 8.), Petitioner nonetheless insists that this Court authorize the payment of funds for him to investigate his claimed mental retardation before doing so because of the absence of any similar opportunity in state court. ( Id. at 3-7.) 21 U.S.C. § 848(q)(9) allows this Court to authorize funds for "expert . . . services which are reasonably necessary for the representation of the defendant. . . ." Relying upon this in his renewed application for such funds which he filed after Atkins, Petitioner produced state prison records indicating an I.Q. score of 68, within the range indicating mental retardation. (Renewed Application for Expert Funds, p. 4 and attachment; Petitioner's Brief, pp. 1, 2.) He argues that the state process is inadequate because it contains no express right for an indigent inmate to the appointment of counsel or expert assistance to develop a claim for a successive state habeas petition under Article 11.071, Section 5, of the Texas Code of Criminal Procedure. (Petitioner's Brief, pp. 3-4.) However, the lack of such an express funding provision in the statute does not automatically render the state process ineffective under 28 U.S.C. § 2254(b)(1)(B). While recognizing the need for Petitioner to have an adequate opportunity to develop his claims, this Court is not permitted to preempt the similar opportunity for the state to develop its process for enforcing this new constitutional restriction on the execution of its sentences. See Smith, 2002 WL 31447742 at *20.
Petitioner also mentioned an I.Q. score of 75 from a test administered by "an expert retained by petitioner's trial attorneys." (Petitioner's Brief, p. 2.)
Petitioner has an understandable concern for the proper development of his claim. His brief presents a disturbing scenario as shown, in part, by the following excerpt:
If this Court were to dismiss petitioner's current proceedings prior to the authorization of funds for an evaluation, he would be left with only the potential claim of mental retardation that he could not develop in the state courts. Without a current expert opinion that petitioner is mentally retarded, it is likely his attempt to exhaust the claim would be rejected by the Texas courts. . . .
Upon dismissal of his claim, petitioner would have to file a successive application for a writ of habeas corpus pursuant to TEX. CODE CRIM. PROC. art. 11.071 § 5. This application would be filed in the trial court, but would immediately be referred to the Texas Court of Criminal Appeals to determine if the application meets the strict requirements of a successive application under art. 11.071 § 5. Thus, petitioner would be unable to obtain the expert evaluation necessary to establish a viable claim of mental retardation.
(Footnote omitted.) (Petitioner's Brief, p. 3.) He then includes examples of state court precedent involving similar claims, indicating the need for such expert evaluation in order to avoid a summary denial of relief in state court. However, this Court is unwilling to conclude in advance that the state courts will refuse to develop appropriate ways to enforce this constitutional restriction upon its execution of death sentences. See Atkins, 122 S.Ct. at 2250. Even so, this does not preclude a subsequent review in this Court. Once a state has first addressed this question, federal courts retain the power to determine if the manner in which it has resolved such a claim comports with the requirements of due process. See, e.g., Ford, 477 U.S. at 405.
Therefore, the petition for a writ of habeas corpus filed by Gayland Bradford in this cause should be dismissed without prejudice to the refiling of same.
RECOMMENDATION
Petitioner has failed to exhaust state court remedies on each of the claims made in his petition for writ of habeas corpus. In light of the recent Supreme Court decision in Atkins v. Virginia, Respondent has made important concessions before this Court and it appears that further proceedings in this Court on such claims are not appropriate at this time. Therefore, Respondent's alternative motion to dismiss all of the claims contained in Petitioner's petition for a writ of habeas corpus should granted, and such petition should be DISMISSED without prejudice to the refiling of same after Petitioner has exhausted the remedies that may be available to him in the courts of the State of Texas.