Opinion
3:02-CV-913-M
August 21, 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 District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for a writ of habeas corpus brought by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently incarcerated at the Eastham Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Lovelady, Texas. Respondent is the Director of the TDCJ-ID. The court has issued process in this case.
Statement of the Case: Following his plea of not guilty, Petitioner was convicted of conspiracy to commit capital murder, enhanced with two prior felonies, in Criminal District Court No. 4 of Dallas County, Texas, Cause No. F-92-02464-KLK. He was sentenced to life imprisonment. The Court of Appeals affirmed his conviction see Matthews v. State, 05-92-02724-CR (Tex.App.-Dallas July 28, 1998), and on January 27, 1999, the Court of Criminal Appeals refused his petition for discretionary review. Subsequently, Petitioner filed a state habeas corpus application, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court without a hearing. Ex parte Matthews, No. 6,114-02, at cover.
Petitioner has filed two prior federal habeas corpus petitions pursuant to 28 U.S.C. § 2254, challenging his conviction. See Matthews v. Johnson, 3:96-CV-777-T (N.D. Tex., Dallas Div., filed on March 19, 1996); and Matthews v. Johnson, 3:97-CV-1475-T (N.D. Tex., Dallas Div., filed on June 18, 1997). Both petitions were filed during the pendency of his direct appeal. On July 31, 1997, the district court adopted the recommendations of the magistrate judge, filed in each case on June 23, 1997, and (1) denied the first petition on the merits and (2) dismissed the second petition without prejudice for failure to exhaust state court remedies. See Attachments I and II for copy of the recommendations filed on June 23, 1997.
Before addressing the merits of the first petition, the district court found that "the exhaustion requirement ha[d] been rendered meaningless by the inordinate delay in the state appellate process." Matthews v. Johnson, 3:96-CV-0777-T, op. at 4 (N.D. Tex., Sept. 17, 1996) (recommendation adopted Oct. 23, 1996). It, thus, denied Respondent's motion to dismiss the federal petition based on the pending state court appeal. Id.
In the present petition for a writ of habeas corpus, Petitioner again seeks to challenge his conviction for conspiracy to commit capital murder. He alleges as follows:
1. Newly discovered evidence shows (a) the State wrongfully failed to disclose exculpatory evidence, and (b) the prosecution suppressed evidence that another individual committed the crime;
2. Petitioner was deprived of counsel during voir dire;
3. Petitioner was wrongfully denied the opportunity to question a biased juror;
4. The placing of the biased juror on the jury panel created a conflict of interest;
5. The transcript (hereinafter referred to as Statement of Facts) wrongfully fails to include the voir dire;
6. The Statement of Facts is incomplete;
7. The prosecuting attorney was without state power to prosecute under articles 2.01 and 2.07 of the code of Criminal Procedure;
8. The indictment fails to allege a culpable mental state;
9. No evidence supports the conviction;
10. Petitioner's should have been charged with attempted murder, a second degree felony, not conspiracy to commit capital murder;
11. The indictment was fatally defective;
12. The State failed to charge Kenneth Moorefleld as an unindicted co-conspirator;
13. Moorefleld's testimony was uncorroborated;
14. The jury was improperly instructed in connection with art. 38.17 of the Code of Criminal Procedure;
15. The State improperly used the perjured testimony of Janice Moore;
16. The preparation of a complete Statement of Facts was unreasonably delayed;
17. The State failed to comply with art. 40.09, § 7 of the Code of Criminal Procedure in connection with the proper supplementation of the trial record;
18. Petitioner was convicted in violation of the Ex Post Facto Clause;
19. Petitioner was denied his right to a speedy trial;
20. Petitioner was prosecuted in violation of the Interstate Agreement on Detainers Act;
21. The State trial judge lacked the authority to try his case; and
22. The State failed to produce witness statements as required by Texas Rule of Evidence 614.
(Petition ¶ 20 and Memorandums in Support).
In response to this court's order to show cause, Respondent filed an answer on July 1, 2002, alleging that the present petition is second or successive and that the same should either be dismissed without prejudice or transferred to the Fifth Circuit Court of Appeals.
On August 2, 2002, Petitioner filed a motion seeking an extension of time to reply to Respondent's answer. This motion is moot in light of the fact that the District Court lacks jurisdiction over his petition as set out more fully below.
Findings and Conclusions: The instant petition is subject to the screening provisions set out in 28 U.S.C. § 2244 (b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That section provides that a second or successive habeas petition pursuant to § 2254 must be certified by a panel of the appropriate court of appeals before it can be heard in the district court. See In re Epps, 127 F.3d 364 (5th Cir. 1997); see also In re Tolliver, 97 F.3d 89, 90 (5th Cir. 1996) (addressing a similar provision applicable to second or successive motions pursuant to 28 U.S.C. § 2255). In Felker v. Turpin, 518 U.S. 651, 663-64 (1996), the Supreme Court observed that the amendments to § 2244 "simply transfer from the district court to the court of appeals a screening function which would previously have been performed by the district court as required by . . . Rule 9(b) [of the Rules Governing § 2254 Cases]."
Although Matthews' second § 2254 petition does not render this petition a second or successive petition under § 2244(b), see e.g. Slack v. McDaniel, 529 U.S. 473, 486 (2000) (habeas petition filed after prior petition was dismissed for failure to exhaust state remedies was not successive), the disposition of his first petition on the merits falls squarely within its terms, i.e. failure to have presented his grounds in No. 3:96-CV-777-T. In light of the provisions of the AEDPA and the Supreme Court decision in Felker v. Turpin, supra, the question of whether such failure to raise all his present grounds in the prior case constitutes an abuse of the writ is a screening function reserved to the Fifth Circuit.
Respondent asserts that grounds 19 and 20 of his present petition were raised and denied on the merits in the first petition.
Unless the Fifth Circuit Court of Appeals first grants Petitioner leave to file his present petition for habeas corpus relief this court lacks jurisdiction to consider the same. Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). Therefore, this petition should be dismissed for want of jurisdiction. Such a dismissal, however, is without prejudice to Petitioner's right to file a motion for leave to file a second or successive § 2254 petition in the United States Court of Appeals for the Fifth Circuit pursuant to § 2244(b)(3)(A). See In re Epps, 127 F.3d at 364 (setting out the requirements for filing a motion for authorization to file a successive habeas petition in the Fifth Circuit Court of Appeals).
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition for writ of habeas corpus be dismissed for want of jurisdiction, but without prejudice to Petitioner's right to file a motion for leave to file a second or successive § 2254 petition in the United States Court of Appeals for the Fifth Circuit pursuant to 28 U.S.C. § 2244 (b)(3)(A).
The Clerk will mail a copy of this recommendation to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.
ATTACHMENT I
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
WILLIAM GARY MATTHEWS Petitioner, No. 3-96-CV-0777-T vs.
GARY JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division Respondent.
FINDINGS AND RECOMMENDATION OF TILE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636 (b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follows:I. PROCEDURAL BACKGROUND
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner William Gary Matthews is an inmate in the Texas prison system. Respondent Gary Johnson is the Director of the Texas Department of Criminal Justice, Institutional Division.
Petitioner was convicted of conspiracy to commit capital murder. Punishment was assessed at life imprisonment. Petitioner filed a notice of appeal on August 31, 1992. This appeal is still pending. Matthews v. State, No. 05-92-02724-CR (Tex.App.-Dallas). Petitioner has not filed any motions for post-conviction relief in state court. Instead, he filed this action in federal court. Respondent has appeared and filed an answer.
Respondent originally filed a motion to dismiss based on the pending state court appeal. The magistrate judge found that "the exhaustion requirement has been rendered meaningless by the inordinate delay in the state appellate process." Matthews v. Johnson, No. 3-96-CV-0777-T, op. at 4 (N.D. Tex., September 17, 1996) (recommendation adopted October 23, 1996).
II. ISSUES PRESENTED
Petitioner presents two broad arguments in six grounds for relief. He contends that: (1) the trial court violated his right to a speedy trial under the sixth amendment and the Interstate Agreement on Detainers Act; and (2) his conviction was based on illegal tape recorded conversations admitted into evidence.III. STANDARD OF REVIEW
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). A petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law; or (2)resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254 (d). A state court decision is not "contrary to clearly established federal law" unless a different result was dictated by existing Supreme Court precedent. Drinkard v. Johnson, 97 F.3d 751, 768-69 (5th Cir. 1996), cert. denied, 117 S.Ct. 1114 (1997). A state fact finding is not "unreasonable" unless the petitioner can rebut the finding by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1). An application of law to facts is not "unreasonable" unless "the state court decision is so clearly incorrect that it would not be debatable among reasonable jurists." Moore v. Johnson, 101 F.3d 1069, 1076 (5th Cir. 1996); Mata v. Johnson, 99 F.3d 1261, 1267 (5th Cir. 1996), vacated in part on other grounds, 105 F.3d 209 (1997).
IV. SPEEDY TRIAL CLAIMS
Petitioner contends that the 44 months delay in bringing him to trial violated his rights under the sixth amendment to the United States Constitution. He also maintains that this delay was contrary to the provisions of the Interstate Agreement on Detainers Act.
A. Applicable Law
The sixth amendment guarantees a defendant in a criminal case the right to a speedy trial. U.S. CONST. amend VI; Barker v. Wingo, 407 U.S. 514, 519-22, 92 S.Ct. 2182, 2186-88, 33 L.Ed.2d 101 (1972). The court must consider four factors in order to determine whether this right has been violated. These factors are: (1) the length of delay; (2) the reason for the delay; (3) when the defendant asserted his right; and (4) prejudice to the defendant resulting from the delay. Barker, 92 S.Ct. at 2192; United States v. Lucien, 61 F.3d 366, 371 (5th Cir. 1995). No single factor is determinative. Barker, 92 S.Ct. at 2193. The threshold inquiry is the length of delay. Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 2690-91, 120 L.Ed.2d 520 (1992). The Fifth Circuit has held that a delay of more than one year between the date of arrest or indictment and the date of trial is presumptively prejudicial. Robinson v. Whitley, 2 F.3d 562, 568 (5th Cir. 1993), cert. denied, 114 S.Ct. 1197 (1994); United States v. Garcia, 995 F.2d 556, 560 (5th Cir. 1993). The court must then make specific findings concerning the other three factors. Different weights should be assigned to different reasons offered for the delay. Barker, 92 S.Ct. at 2192; Lucien, 61 F.3d at 371.
The right to a speedy trial is also protected under the Interstate Agreement on Detainers Act. TEX. CODE CRIM. PROC. ANN. art. 51.14, et. seq. (Vernon 1979). This congressionally sanctioned compact enables one state to gain custody of a prisoner incarcerated in another jurisdiction in order to prosecute him on criminal charges. See Birdwell v. Skeen, 983 F.2d 1332, 1335-36 (5th Cir. 1993), cert. denied, 115 S.Ct. 378 (1994). The process is initiated when the state places a detainer on a prisoner. Birdwell, 983 F.2d at 1336. The prisoner may then request a speedy disposition of the charges under Article III of the Act. Birdwell, 983 F.2d at 1336. The state seeking custody is required to bring the prisoner to trial within 180 days after a proper request is received. TEX. CODE CRIM. PROC. ANN. art. 51.14, Article III (a). If the trial does not commence within that time, the charges are dismissed with prejudice and the detainer becomes invalid. TEX. CODE CRIM. PROC. ANN. art. 51.14, article V(c).
B. The Evidence
The factual basis of this claim was fully developed in the trial court. Petitioner was arrested for auto theft and armed robbery in Lincoln County. New Mexico on August 28, 1988. (SF-I 5). He was indicted in Texas for conspiracy to commit capital murder on September 19, 1988. The Lincoln County Sheriff was notified of the indictment the next day. (SF-I 31-32). Petitioner was convicted and sentenced in the New Mexico case on March 7, 1989. (SF-I 6; Supp. Answer, Ex. 1). At that time, the trial judge told him that he would be returned to Texas to stand trial. (SF-I 6-7). A prison caseworker also advised petitioner that Texas authorities had placed a detainer on him. (SF-I 7). Petitioner wrote to the Dallas County District Clerk on May 2, 1989 asking for a prompt trial or the dismissal of all charges. (SF-I 47; Dx. 4). A second letter was sent on June 8, 1989. (SF-I 48, Dx. 2). Both of these letters were returned to petitioner by the clerk's office. (SF-I 48-49; Dx. 1, 3). The Dallas County Sheriff eventually placed a detainer on petitioner for an unrelated drug charge. (Supp. Answer, Ex. 2). This detainer was issued on June 14, 1989 and received by New Mexico prison authorities on July 13, 1989. (Supp. Answer, Ex. 2). Petitioner was informed of this detainer but took no action. (SF-I 20).
A second detainer on the conspiracy charge was issued on June 21, 1990. (SF-I 33, Supp. Answer, Ex. 4). Petitioner learned about the detainer on July 19, 1990. (SF-I 9; Supp. Answer, Ex. 3, 4). However, nothing further transpired until the Dallas County District Attorney sent a request for temporary custody to New Mexico authorities on March 11, 1992. (Supp. Answer, Ex. 5). New Mexico immediately initiated proceedings under Article III of the Interstate Agreement on Detainers Act. (Supp. Answer, Ex. 7). Petitioner waived extradition and was taken into custody by the Dallas County Sheriff on April 28, 1992. (SF-I 17, 19; Supp. Answer, Ex. 9). His trial began on June 5, 1992.
C. Sixth Amendment Claim
Petitioner first contends that his constitutional right to a speedy trial was violated. The Court initially observes that the 44 month delay between the date of indictment and date of trial is presumptively prejudicial. See Robinson, 2 F.3d at 568; Garcia, 995 F.2d at 560. Therefore, the Court must consider: (1) the reason for delay; (2) when petitioner asserted his right; and (3) any prejudice to petitioner resulting from the delay.
1. Reason for Delay
The prosecutor testified at the hearing and explained the reasons for this delay. He said that he wanted to try two related capital murder cases first because "they charged the most severe crime and they involved potential co-defendant testimony." (SF-I 94). Joy Aylor and George Anderson Hopper were originally set for trial on March 5, 1990. (SF-I 95). The cases were severed shortly before jury selection was scheduled to begin. The prosecutor decided to try Aylor first because her case was more complex. (SF-I 95). However, Aylor fled the country before trial. (SF-I 96). The Hopper case was postponed until June 3, 1991 after one of his lawyers was appointed to the state court bench. (SF-I 97-98). In the interim, the prosecutor tried two other capital murder cases. Both trials lasted over five months. (SF-I 96-97). Petitioner's brother and co-conspirator, Buster James Matthews, was tried after the Hopper jury was selected but before testimony began. (SF-I 98). The Hopper case concluded on March 18, 1992. (SF-I 99). Petitioner was extradited from New Mexico on April 28, 1992 and stood trial six weeks later. (SF-I 99-100).
Petitioner argues that the prosecutor intentionally delayed his trial "in order to gain a strategic advantage via information gained in other cases." (Supp. Brief at 5). He suggests that the state would have been unable to convict him without this information. However, there is no evidence in the record to support this assertion. Instead, the record shows that petitioner was involved in one of two related capital murder conspiracies. The cases had to be tried one at a time. The prosecutor made a tactical decision to try the most complicated cases first. These other cases were unavoidably delayed through no fault of the state. Significantly, the prosecutor notified New Mexico authorities of the conspiracy indictment the day after it was returned. He wanted petitioner to have "immediate notice" of the charges so he could assert his rights under the Interstate Agreement on Detainers Act. (SF-I 32). The prosecutor testified that he would have made every effort to provide petitioner with a speedy trial had he properly requested one. (SF-I 95). The Court finds that these are neutral reasons that weigh less heavily against the state.
2. Assertion of the Right
Petitioner was informed of the conspiracy charges shortly after his arrest in New Mexico. He sent two letters to the Dallas County District Clerk requesting a speedy trial. The first letter was sent on May 2, 1989. The second letter was sent on June 8, 1989. Both letters were returned by the clerk's office citing various deficiencies. Petitioner never renewed his request for a speedy trial until after he was transferred back to Texas.
It is clear that petitioner asserted his right to a speedy trial within a year after the criminal charges were filed. This is entitled to "strong evidentiary weight" because "it may reflect the seriousness of the personal prejudice [the defendant] is experiencing." United States v. Palmer, 537 F.2d 1287, 1288 (5th Cir. 1976), cert. denied, 98 S.Ct. 738 (1978), citing Barker, 92 S.Ct. at 2182 (1972). However, it is equally significant that petitioner totally abandoned his efforts to return to Texas after his first attempt failed. Petitioner offered no explanation for his inaction between June 1989 and April 1992. His continued silence and lack of interest in the Texas criminal case must be weighed against him.
Respondent suggests that petitioner never sent these letters to the district clerk. He relies on the testimony of three court officials to support this argument. Jeannine King Losack, Teresa Ellison Heard, and Norma Houston all testified at the speedy trial hearing. Losack and Heard signed the deficiency notices allegedly sent to petitioner. (Dx. 1, 3). However, they did not recall sending the form letters and did not know what type of inquiry triggered their response. (SF-I 82, 88). Both Losack and Heard said that it was their usual custom, routine and practice to forward letters from defendants to the court where their charges are pending. (SF-I 83, 87). Norma Houston is a deputy clerk assigned to Criminal District Court No. 5. She said that she searched the court files and was unable to find any "speedy trial motions or motions asking for a disposition of the case under the Interstate Agreement on Detainers [Act]." (SF-I 28).
This evidence does not support the inference drawn by respondent. Rather, these court employees merely described what typically happens when they receive correspondence from a defendant. None of them had any specific recollection about letters they might have received in this particular case. It is not surprising that these letters were not found in the court files since the originals were returned to petitioner. Although petitioner has profound credibility problems, there is no reason to doubt his testimony on this point.
3. Prejudice
Finally, petitioner argues that he was prejudiced by the delay in bringing him to trial. Three types of prejudice may result from post-indictment delay: (1) oppressive pretrial incarceration; (2) anxiety and concern of the accused; and (3) the possibility that the defense will be impaired. Doggett, 112 S.Ct. at 2692; Cowart v. Hargett, 16 F.3d 642, 647 (5th Cir.), cert. denied, 115 S.Ct. 227 (1994). Here, petitioner was continually incarcerated in New Mexico on other charges since his indictment in Texas. It is therefore impossible for him to establish prejudice due to his confinement. See Cowart, 16 F.3d at 647; Russell v. Lynaugh, 892 F.2d 1205, 1216 (5th Cir. 1989), cert. denied, 111 S.Ct. 2909 (1991). The Court will proceed to address the other factors.
Petitioner first contends that he was reclassified by New Mexico prison officials because of the detainer placed against him. The record shows that petitioner was removed from his work assignment based on "confidential information" that he was an escape risk. He was transferred to a different area of the prison away from the Sally port entrance and any motor vehicles. (Supp. Brief, Ex. D). Significantly, this action was not taken until March 17, 1992 — nearly two years after the detainer was lodged against petitioner and just one month before he was extradited to Texas. There were no adverse consequences as a result of this detainer during the intervening time period.
Petitioner also suggests that this long delay impaired his ability to locate several key alibi witnesses. He initially testified that these witnesses would say that he was "at home" on the day of the offense. (SF-I 14-15). However, petitioner later said that the witnesses would testify that he was "at the lake." (SF-I 53). Yet a third version of what transpired was brought to the court's attention after trial. Petitioner asked to meet with one of the prosecutors after he was convicted. (SF-II 8). Defense counsel declined to participate in the meeting. (SF-II 8). Petitioner confirmed that he was in Kaufman County at the time of the offense and "fired shots at Mr. Aylor's vehicle as it approached the bridge." (SF-II 11-12). The prosecutor felt that it was important to supplement the record with this information because petitioner had previously testified that "he had some alibi witnesses that he couldn't find that would say that he was somewhere else." (SF-II 12). At the conclusion of this hearing, the judge stated:
These witnesses were identified as Lana Wallace, Pat Bordman, Larry Vick and fluster James. (SF-I 14).
If I did not formally deny the speedy trial motion before, I would certainly make it clear that's what my intent was. I will formally deny it now, if I need to, on the record.
I want to say, for the record, in denying that . . . even before I heard the evidence this morning, I believe that I had sufficient grounds to deny the speedy trial motion based on the law and the evidence I had before me at that earlier hearing, including that of the defendant, whose credibility I was entitled to judge.
(SF-II 14-15).
The trial court implicitly found that petitioner failed to make an affirmative showing of actual prejudice. This finding has ample support in the record, particularly in view of the conflicting testimony given by petitioner. The Court is unable to conclude that this decision is "so clearly incorrect that it would not be debatable among reasonable jurists." Moore, 101 F.3d at 1076.
D. Interstate Agreement on Detainers Act
Petitioner has also failed to establish a violation of the Interstate Agreement on Detainers Act. The record shows that petitioner never properly invoked his rights under the Act. Petitioner was told to contact Cathleen M. Catanach, Records Administrator for the New Mexico Department of Corrections, if he wanted to request final disposition of his untried indictment. (Supp. Answer, Ex. 3). Nevertheless, he chose to write a letter to court officials rather than ask the prison to contact Dallas County authorities. This letter was not sent by registered or certified mail. See TEX. CODE CRIM. PROC. ANN. art. 51.14, Article III (b). In addition, the letter did not contain a certificate specifying his sentence, the time served, the amount of good time, and information on parole. See TEX. CODE CRIM. PROC. ANN. art. 51.14, Article III (a). The 180 day period never began to run in this case because petitioner's request was defective under the Act. See, e.g. United States v. Henson, 945 F.2d 430, 434 (1st Cir. 1991) (prisoner must show strict compliance with statutory provisions of IAD); Capser v. Ryan, 822 F.2d 1282, 1292 (3d Cir. 1987), cert. denied, 108 S.Ct. 714 (1988) (same).
The Court concludes that petitioner was not denied the right to a speedy trial under the sixth amendment or the Interstate Agreement on Detainers Act. These grounds for relief are without merit and should be overruled.
Petitioner's brother and co-conspirator, Buster James Matthews, also challenged his state court conviction on speedy trial grounds. Buster and petitioner were both arrested in New Mexico on August 28, 1988 and indicted in Texas on September 19, 1988. Buster was not tried until December 16, 1991. The prosecutor offered the same reasons to justify this three year delay. Buster learned that a detainer had been lodged against him when he applied for a job at the prison in 1991. He attempted to invoke his right to a speedy trial by filing a motion with the Texas court instead of contacting New Mexico prison officials. This motion was not sent by certified mail and failed to include the required certification. The state appellate court held there was no sixth amendment violation and petitioner failed to properly invoke his rights under the Interstate Agreement on Detainers Act. Matthews v. State, No. 05-92-00027-CR, op. at 6-9 (Tex.App.-Dallas, April 20, 1994). This Court agreed and denied habeas relief. Matthews v. Johnson, No. 3-95-CV-2523-H, op. at 5-7 (N.D. Tex., August 21, 1996) (recommendation adopted September 9, 1997). The case is currently pending on appeal to the Fifth Circuit. Matthews v. Johnson, No. 96-11221.
V. FOURTH AMENDMENT CLAIMS
Petitioner also argues that his conviction was tainted by the admission of illegal tape recorded conversations into evidence. He states that these tapes were the result of an unlawful search and seizure. Respondent maintains that petitioner is not entitled to habeas relief under the Stone doctrine.A. Applicable Law
Petitioner has alleged a violation of his fourth amendment rights. U.S. CONST. amend IV. However, a federal court may not grant habeas relief where the state has provided an opportunity for full and fair litigation of the issue. Stone v. Powell, 428 U.S. 465, 493-95, 96 S.Ct. 3037, 3052-53, 49 L.Ed.2d 1067 (1976); Williams v. Collins, 16 F.3d 626, 637 (5th Cir.), cert. denied, 115 S.Ct. 42 (1994). This rule applies to all fourth amendment claims. See Williams, 16 F.2d at 637 (search and seizure); Cardwell v. Taylor, 461 U.S. 571, 572, 103 S.Ct. 2015, 2016, 76 L.Ed.2d 333 (1983) (arrest). A petitioner must plead and prove that the state court proceeding was inadequate in order to obtain post-conviction relief in federal court. Davis v. Blackburn, 803 F.2d 1371, 1372 (5th Cir. 1986).
ATTACHMENT II
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
WILLIAM GARY MATTHEWS Petitioner, No. 3-97-CV-1475-T vs.
GARY JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division Respondent.
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636 (b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follows:PROCEDURAL BACKGROUND
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner William Gary Matthews is an inmate in the Texas prison system. Respondent Gary Johnson is the Director of the Texas Department of Criminal Justice, Institutional Division.
Petitioner was convicted of conspiracy to commit capital murder on July 17, 1992. Punishment was assessed at life imprisonment. Petitioner filed a notice of appeal on August 31, 1992. This appeal is still pending. Matthews v. State, No. 05-92-02724-CR (Tex.App.-Dallas). Frustrated by the delay in state court, petitioner sought habeas relief in federal court March 19, 1996. He argued that his conviction should be set aside because: (1) the trial court violated his right to a speedy trial under the sixth amendment and the Interstate Agreement on Detainers Act; and (2) illegal tape recorded conversations were improperly admitted into evidence. Respondent moved to dismiss the federal habeas case based on the pending state court appeal. This Court found that "the exhaustion requirement has been rendered meaningless by the inordinate delay in the state appellate process" and denied the motion. Matthews v. Johnson, No. 3-96-CV-0777-T, op. at 4 (N.D. Tex., September 17, 1996) (recommendation adopted October 23, 1996). The magistrate judge considered the merits of the habeas petition and recommended that relief be denied on June 23, 1997. This recommendation is currently pending before the district judge.
Petitioner filed a second habeas case in federal court on June 18, 1997 — five days before the magistrate judge issued his findings and recommendation in the first case. He now claims that the prosecutor failed to disclose exculpatory evidence from a key witness. Petitioner recently discovered that Joseph Walter Thomas told police that the murder-for-hire conspiracy ended in 1984. He alleges that this statement was never given to his lawyer and "would have directly affected the admissibility of a 1988 tape-recorded telephone conversation." (Petition at 7B). Petitioner did not raise this claim on appeal or in his first habeas case. The Court must therefore determine whether it is properly presented in a successive habeas petition.
Thomas testified at trial that he hired petitioner and his brother to kill Larry Aylor. (SF-II 18-23). He indicated that the conspiracy began in 1986 and continued until 1988. (SF-II 25-28).
APPLICABLE LAW
A petitioner must fully exhaust state remedies before seeking federal habeas relief. 28 U.S.C. § 2254 (b). This entails submitting the factual and legal basis of any claim to the highest available state court for review. Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 103 S.Ct. 1508 (1983). A state prisoner must present his claims to the Texas Court of Criminal Appeals in a petition for discretionary review or an application for writ of habeas corpus. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). A federal habeas petition that contains unexhausted claims must be dismissed in its entirety. Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990), cert. denied, 111 S.Ct. 2862 (1991); Bautista, 793 F.2d at 110.
There are limited exceptions to the exhaustion doctrine. A petitioner is not required to exhaust state remedies if there is either an absence of available state corrective process or the existence of circumstances rendering such process ineffective to protect his rights. 28 U.S.C. § 2254 (b)(1)(B). An inordinate and unjustified delay in the state appellate process may excuse the exhaustion requirement. Vail v. Estelle, 711 F.2d 630, 632 (5th Cir. 1983); Shelton v. Heard, 696 F.2d 1127, 1129 (1983). See also Carpenter v. Young, 50 F.3d 869, 870-71 (10th Cir. 1995) (two year delay creates presumption that state appellate process is ineffective); Coe v. Thurman, 922 F.2d 528, 530-31 (9th Cir. 1990) (four year delay); Wade v. Lockhart, 674 F.2d 721, 722 (8th Cir. 1982) (two year delay). However, the delay must be solely attributable to inadequate state procedures and impinge on the petitioner's due process rights. See Deters v. Collins, 985 F.2d 789, 795-96 (5th Cir. 1993).
DISCUSSION
Petitioner was previously allowed to maintain a federal habeas case without satisfying the exhaustion requirement because of the four-year delay in the disposition of his state court appeal. However, the claims raised by petitioner in his first habeas proceeding had fully matured when his appeal was perfected. He was unable to present those claims in state court because the court reporter did not file a statement of facts and his attorney failed to submit a brief. Under those circumstances, the exhaustion requirement [was] rendered meaningless by the inordinate delay in the state appellate process." Matthews, No. 3-96-CV-0777-T, op. at 4. In the instant case, there is no dilatory conduct attributable to the state. Petitioner first learned of the exculpatory evidence on May 27, 1997 while reading a book about the murder conspiracy. He called the author who confirmed that Thomas told police that the conspiracy ended in 1984. Petitioner asked his lawyer if this statement was ever produced at trial. Defense counsel responded, "I do not recall receiving a statement of Joseph Thomas, and have no opinion whether one was given to me or not." (Petition at 7B). Petitioner did not even attempt to present this constitutional claim in state court. Instead, he immediately filed a second habeas petition in federal court.
The Court concludes that petitioner should be required to exhaust his state remedies before seeking federal habeas relief. There is no absence of available state corrective process or circumstances that render such process ineffective to protect his rights. See 28 U.S.C. § 2254 (b)(1)(B). Petitioner can raise this new claim in his pending appeal or an application for writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure. For these reasons, this case should be dismissed for failure to exhaust state remedies.
The Court recognizes that any subsequent habeas petition will be subject to the requirements of 28 U.S.C. § 2244 (b). However, this should not excuse the exhaustion requirement. Petitioner may still obtain federal court review of this newly discovered constitutional claim if he proves that: (1) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (2) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found him guilty of the underlying offense. 28 U.S.C. § 2244 (b)(2)(B). This determination must be made by a three-judge panel of the court of appeals before petitioner files another application for habeas relief in district court. 28 U.S.C. § 2244 (b)(3)(B).
Ordinarily, the Court would consider the second habeas petition as a motion for leave to amend the pending habeas case. However, that would subject the first case to dismissal because the claim raised in the second case is unexhausted. See Thomas, 919 F.2d at 334 (federal habeas petition that contains unexhausted claims must be dismissed in its entirety).
RECOMMENDATION
It plainly appears from the face of the petition and the state court record that petitioner has failed to satisfy the exhaustion requirement. Therefore, this case should be dismissed without prejudice. See RULES GOVERNING SECTION 2254 CASES, Rule 4.
__/s/ JEFF KAPLAN____________ JEFF KAPLAN UNITED STATES DISTRICT JUDGE