Opinion
CIVIL NO. SA-00-CA-443-EP
March 3, 2003
ORDER GRANTING RESPONDENT'S NOTION TO DISMISS FOR FAILURE TO EXHAUST AVAILABLE STATE REMEDIES
The matter before the Court is respondent's motion to dismiss for failure to exhaust available state remedies, filed November 6, 2002.
See docket entry no. 17.
I. Synopsis
For the reasons set forth hereinafter, this Court will grant respondent's motion and dismiss this cause without prejudice so as to permit petitioner to return to state court and file a successive application for state habeas corpus relief, pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5(a)(1), asserting petitioner's unexhausted claim that he is mentally retarded and, therefore, immune from execution by virtue of the United States Supreme Court's holding in Atkins v. Virginia. In Atkins, the Supreme Court held that the Eighth Amendment prohibits the execution of mentally retarded capital murderers.II. Background and Procedural History
On April 23, 1991, a Bexar County grand jury indicted petitioner Steve Rodriguez in cause no. 910CR-2045 on a charge of capital murder. Petitioner pleaded guilty. Tried without the benefit of the separate special sentencing issue mandated by the Supreme Court's opinion in Penry v. Johnson, petitioner's sentencing jury answered the special issues before it in a manner that compelled the state trial court to impose a sentence of death. Petitioner appealed. The Texas Court of Criminal Appeals affirmed petitioner's conviction and sentence of death in an opinion issued May 17, 1995. The United States Supreme Court denied petitioner's petition for writ of certiorari on October 30, 1995.Petitioner filed an application for state habeas corpus relief on October 21, 1996. The state trial court held an evidentiary hearing on December 10, 1997. In an Order issued December 14, 1999, the state trial court adopted the State's proposed findings of fact and conclusions of law, which included a recommendation that petitioner's state habeas corpus application be denied. On April 12, 2000, the Texas Court of criminal Appeals denied petitioner's state habeas corpus application without written Order.
See State Court records from Petitioner's State Habeas Corpus Proceeding, i.e., App. No. 44,330-01 (henceforth "State Habeas Records"), at pp. 1-57.
The Statement of Facts or verbatim transcription of the testimony from that hearing appears among the state court records submitted to this Court by respondent.
See State Habeas Records, at pp.
See Ex parte Steve Rodriguez, App. No. 44,330-01 (Tex.Crim.App. April 12, 2000).
Petitioner filed his initial federal habeas corpus petition in this Court on October 10, 2000, asserting a single claim for relief. On December 8, 2000, petitioner filed an amended petition in which he asserted only two claims for relief. On September 30, 2002, petitioner filed a supplemental federal habeas corpus petition in which he argued that he was exempt from execution under the Supreme Court's holding in Atkins v. Virginia, i.e., that he was mentally retarded and thus legally immune from execution.
See docket entry no. 7. Petitioner's sole claim for relief was an assertion that petitioner's trial counsel rendered ineffective assistance by failing to request appointment of a partisan expert to assist defense counsel in presenting testimony regarding petitioner's competency to stand trial and mental retardation.
See docket entry no. 8. In addition to re-urging his original claim for relief, i.e., his ineffective assistance claim, petitioner also argued in his amended petition that the state trial court erred in refusing to appoint a mental health expert to assist petitioner's trial counsel at trial.
See docket entry no. 16. Curiously, at no point has petitioner attempted to assert a claim based upon the Supreme Court's holding in Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001).
On November 6, 2002, respondent filed a motion to dismiss petitioner's supplemented federal habeas corpus petition on the ground that the petitioner had failed to exhaust available state court remedies with regard to his new claim premised on Atkins. In a responsive pleading filed November 25, 2002, petitioner admitted that he had never presented his Atkins claim to any state court but argued that (1) any attempt he might make to exhaust available state court remedies on his Atkins claim would be summarily dismissed as an abuse of the writ and (2) the respondent was attempting to engage in gamesmanship and, thereby, to induce the petitioner to allow the AEDPA's one-year statute of limitations to lapse before petitioner could return to this Court after having exhausted his Atkins claim.
See docket entry no. 17.
See docket entry no. 18.
III. Analysis and Authorities
A. AEDPA Standard of ReviewBecause petitioner filed his federal habeas corpus action after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court's review of petitioner's claims for federal habeas corpus relief is governed by the AEDPA.
See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001).
Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States 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 proceeding.
See Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000); and 28 U.S.C. § 2254 (d)(1).
The Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of Title 28 U.S.C. § 2254 (d)(1) have independent meanings.
See Bell v. Cone, 535 U.S. 685, ___, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002); Penry v. Johnson, 532 U.S. at 792, 121 S.Ct. at 1918; and Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.
Under the "contrary to" clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts.
See Bell v. Cone, 535 U.S. at ___, 122 S.Ct. at 1850; Penry v. Johnson, 532 U.S. at 1918, ("A state court decision will be `contrary to' our clearly established precedent if the state court either `applies a rule that contradicts the governing law set forth in our cases,' or `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'"); and Williams v. Taylor, 529 U.S. at 404-06, 120 S.Ct. at 1518-19.
Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." The focus of this inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable and an "unreasonable" application is different from a merely incorrect one.
See Woodford v. Visciotti, ___ U.S. ___, ___, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2002); Bell v. Cone, 535 U.S. at ___, 122 S.Ct. at 1850; Penry v. Johnson, 532 U.S. at 792, 121 S.Ct. at 1918; and Williams v. Taylor, 529 U.S. at 407-08, 120 S.Ct. at 1520-21.
In Williams, the Supreme Court expressly reserved for another day the issue of how federal habeas courts should determine whether a state court erroneously extended a legal principle into a new realm or erroneously refused to extend existing legal principle into a new area. See Williams v. Taylor, 529 U.S. at 408-09, 120 S.Ct. at 1521.
See Woodford v. Visciotti, ___ U.S. at ___, 123 S.Ct. at 360; Penry v. Johnson, 532 U.S. at 793, 121 S.Ct. at 1918; Williams v. Taylor, 529 U.S. at 409-11, 120 S.Ct. at 1520-22.
See Woodford v. Visciotti, ___ U.S. at ___, 123 S.Ct. at 360; Bell v. Cone, 535 U.S. at ___, 122 S.Ct. at 1850; Penry v. Johnson, 532 U.S. at 793, 121 S.Ct. at 1918; and Williams v. Taylor, 529 U.S. at 410-11, 120 S.Ct. at 1522.
The AEDPA significantly restricts the scope of federal habeas review of state court fact findings, requiring that a petitioner challenging state court factual findings establish by clear and convincing evidence that the state court's findings were erroneous.
See Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 625, 154 L.Ed.2d 532 (2002); Rudd v. Johnson, 256 F.3d 317, 319 (5th Cir. 2001), cert. denied, 534 U.S. 1001 (2001): "The presumption is particularly strong when the state habeas court and the trial court are one and the same."; Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000), cert. denied, 532 U.S. 915 (2001); Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000), cert. denied, 531 U.S. 849 (2000), (holding state court fact findings are presumed correct and the petitioner has the burden of rebutting the presumption by clear and convincing evidence); Hicks v. Johnson, 186 F.3d 634, 637 (5th Cir. 1999), cert. denied, 528 U.S. 1132 (2000), (holding the AEDPA requires federal habeas courts to accept as correct state court factual determinations unless the petitioner rebuts same by clear and convincing evidence); Morris v. Cain, 186 F.3d 581, 583 (5th Cir. 1999); Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999); Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998), cert. denied, 526 U.S. 1041 (1999); Williams v. Cain, 125 F.3d 269, 277 (5th Cir. 1997), cert. denied, 525 U.S. 859 (1998), (recognizing that under the AEDPA, state court factual findings "shall be presumed correct unless rebutted by `clear and convincing evidence'"); Hernandez v. Johnson, 108 F.3d 554, 558 n. 4 (5th Cir. 1997), cert. denied, 522 U.S. 984 (1997), (holding that under the AEDPA, the proper forum for the making of all factual determinations in habeas cases will shift to the state courts "where it belongs" and recognizing that the AEDPA clearly places the burden on the federal habeas petitioner "to raise and litigate as fully as possible his potential federal claims in state court"); and 28 U.S.C. § 2254 (e)(1).
B. Exhaustion Requirement
Under the AEDPA, federal courts lack the power to grant habeas corpus relief on unexhausted claims. A fundamental prerequisite to federal habeas corpus relief under Title 28 U.S.C. § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief. A federal court is free to raise the lack of exhaustion sua sponte.
See Mercadel v. Johnson, 179 F.3d 271, 276-77 (5th Cir. 1999); Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir. 1998); and Jones v. Jones, 163 F.3d 285, 299 (5th Cir. 1998), cert. denied, 528 U.S. 895 (1999).
However, Title 28 U.S.C. § 2254 (b)(2) empowers a federal habeas court to deny rely premised upon an exhausted claim. Daniel v. Cockrell, 283 F.3d 697, 701-02 (5th Cir. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 286, 154 L.Ed.2d 126 (2002).
See Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); Sterling v. Scott, 57 F.3d 451, 453 (5th Cir. 1995), cert. denied, 516 U.S. 1050 (1996); and 28 U.S.C. § 2254 (b)(1)(A).
See Granberry v. Greer, 481 U.S. 129, 133-36, 107 S.Ct. 1671, 1674-76, 95 L.Ed.2d 119 (1987); Shute v. State of Texas, 117 F.3d 233, 237 (5th Cir. 1997); and Graham v. Johnson, 94 F.3d 958, 970 (5th Cir. 1996). A federal court is also free to disregard a State's waiver of the exhaustion requirement when the interests of comity require such. See Earhart v. Johnson, 132 F.3d 1062, 1065 (5th Cir. 1998), cert. denied, 525 U.S. 933 (1998).
In order to exhaust, a petitioner must "fairly present" all of his claims to the state courts. The exhaustion requirement is satisfied when the substance of the federal habeas claim has been "fairly presented" to the highest state court, i.e., the petitioner presents his claims before the state courts in a procedurally proper manner according to the rules of the state courts. The presentation of claims for the first time on discretionary review to the state's highest court does not constitute "fair presentation" for exhaustion purposes. Full exhaustion of all claims presented is required before federal habeas corpus relief is available. The exhaustion requirement is not met if the petitioner presents new legal theories or factual claims in his federal habeas petition. Likewise, to have "fairly presented" hisfederal claim, the petitioner must have reasonably alerted the state courts to the federal nature of his claim.
See Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. at 270, 275-76, 92 S.Ct. 509, at 512-13, 30 L.Ed.2d 438 (1971); Jones v. Jones, 163 F.3d at 296; and Shute v. State of Texas, 117 F.3d at 237: "a habeas petitioner `must fairly apprize the highest court of his state of the federal rights which were allegedly violated.'" In Texas, the highest state court with jurisdiction to review the validity of a state criminal conviction is the Texas Court of Criminal Appeals. See Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985).
Moore v. Cain, 298 F.3d 361, 364 (5th Cir. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1360, ___ L.Ed.2d ___ (2003); and Mercadel v. Johnson, 179 F.3d at 275.
Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989); Satterwhite v. Lynaugh, 886 F.2d at 92.
See Rose v. Lundy, 455 U.S. 509, 518-22, 103 S.Ct. 1198, 1203-05, 71 L.Ed.2d 379 (1982); and Thomas v. Collins, 919 F.2d at 334.
See Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 277-78, 74 L.Ed.2d 3 (1982); Wilder v. Cockrell, 274 F.3d at 259, ("where petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement"); and Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
See Wilder v. Cockrell, 274 F.3d at 260: "A fleeting reference to the federal constitution, tacked onto the end of a lengthy, purely state-law evidentiary argument, does not sufficiently alert and afford a state court the opportunity to address an alleged violation of federal rights."
A Texas inmate seeking federal habeas relief who, in directly appealing his state criminal conviction, has by-passed the Texas Court of Criminal Appeals will not be deemed to have exhausted his state remedies until he has raised his claims before the state's highest court through collateral review provided by state habeas procedures. Where a federal habeas corpus petitioner urges an issue that he failed to raise on direct appeal, he must first use available state collateral procedures to satisfy the exhaustion requirement. However, if a Texas prisoner has obtained a ruling on the merits on a claim from an intermediate Texas appellate court and his petition for discretionary review has been denied by the Texas Court of Criminal Appeals, he need not file a subsequent state petition for habeas corpus relief urging the same claim in order to have exhausted state relief.
Richardson v. Procunier, 762 F.2d at 432; see also Carter v. Estelle, 677 F.2d 427, 442 n. 10 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983).
Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995), cert. denied, 515 U.S. 1123 (1995).
See Shute v. State of Texas, 117 F.3d at 237, (holding that when a state prisoner properly presented his federal claim to the highest state court on direct review, he need not ask for state collateral relief on the same ground and on the same evidence); Myers v. Collins, 919 F.2d 1074, 1076-77 (5th Cir. 1990). See also Sones v. Hargett, 61 F.3d 410, 415 (5th Cir. 1995), (holding that Section 2254 does not require repetitious applications to state courts); and Bennett v. Whitley, 41 F.3d 1581, 1582-83 (5th Cir. 1994), (holding that a Louisiana prisoner who properly exhausts state remedies on a claim of insufficient evidence in his direct appeal and whose subsequent attempt to re-litigate the same issue in a state habeas corpus proceeding is barred under state procedural default rules prohibiting re-examination of an issue disposed of via direct appeal is NOT procedurally barred from presenting his insufficient evidence claim in a subsequent federal habeas corpus action).
The issue of whether a federal habeas corpus claim has been "fairly presented" to the highest responsible state appellate court is separate and distinct from the issue of whether that claim is procedurally defaulted. In fact, a claim is exhausted when it is clear the habeas petitioner is now procedurally barred under state law from asserting same in the state courts.
Gray v. Netherlan, 518 U.S. 152, 161, 116 S.Ct. 2074, 2080, 135 L.Ed.2d 457 (1996); Evans v. Cockrell, 285 F.3d 370, 375 (5th Cir. 2002); Horsley v. Johnson, 197 F.3d 134, 137 (5th Cir. 1999).
In Texas, a state prisoner has available habeas corpus relief through Article 11.07 of the Texas Code of Criminal Procedure as a means of collaterally attacking his conviction or any improprieties with regard to his parole revocation.
See Ex parte Hall, 696 S.W.2d 915, 917 (Tex.Crim.App. 1985); and Ex parte Henderson, 645 S.W.2d 469, 472 (Tex.Crim.App. 1983) (en banc).
Presenting new legal or factual theories that have not been presented to the state courts in a federal habeas petition warrants dismissal of the petition. Likewise, federal constitutional claims must have been presented to, and considered by, the state courts in a federal constitutional context; it is insufficient that all the facts underlying a federal claim were before the state court or that a somewhat similar state-law claim was made, Finally, a habeas petitioner who presents material additional evidentiary support to the federal court that was not presented to the state courts has not exhausted state remedies with regard to that evidence. However, the presentation for the first time in a federal habeas corpus proceeding of affidavits and documentary evidence that do not differ from the factual allegations previously presented to the state courts does not raise exhaustion problems.
See Sones v. Hargett, 61 F.3d at 414-15, (holding that the exhaustion requirement is not satisfied if a petitioner presents new legal theories or entirely new factual claims in his petition in the federal court); Thomas v. Collins, 919 F.2d at 334-35, (holding that presenting new legal theories based upon facts presented in state proceedings does not satisfy the exhaustion requirement); Knox v. Butler, 884 F.2d 849, 852 n. 7 (5th Cir. 1989), cert. denied, 494 U.S. 1088 (1990): "on habeas review, federal courts must respect the autonomy of state courts by requiring that petitioners advance in state court all grounds for relief, as well as all factual allegations supporting those grounds. This rule extends to the evidence establishing the factual allegations themselves."; Dispensa v. Lynaugh, 847 F.2d 211, 217 (5th Cir. 1988), (holding that a claim is not exhausted where a federal habeas petitioner presents the same legal claim to a federal court that he presented in state court but supports that claim with new factual allegations that he did not make in the state courts); Joyner v. King, 786 F.2d 1317, 1320 (5th Cir. 1986), cert. denied sub nom. Joyner v. Phelps, 479 U.S. 1010 (1986); Rodriguez v. McKaskle, 724 F.2d 463, 466 (5th Cir. 1984), cert. denied, 469 U.S. 1039 (1984), (holding that the exhaustion requirement is not normally satisfied if a petitioner presents new legal theories or entirely new factual claims); Vela v. Estelle, 708 F.2d 954, 958 (5th Cir. 1983), cert. denied, 464 U.S. 1053 (1984); and Burns v. Estelle, 695 F.2d 847, 849-50 (5th Cir. 1983), (holding that where a petitioner asserted a claim of ineffective assistance based upon certain facts in a state proceeding, a new claim of ineffective assistance based upon an entirely new set of facts had not been "exhausted").
See Duncan v. Henry, 513 U.S. at 365-66, 115 S.Ct. at 888; Wilder v. Cockrell, 274 F.3d at 259; Yohey v. Collins, 985 F.2d 222, 226 (5th Cir. 1993); and Minor v. Lucas, 697 F.2d 697, 698 (5th Cir. 1983).
See Graham v. Johnson, 94 F.3d at 968-69; and Knox v. Butler, 884 F.2d at 852 n. 7: "on habeas review, federal courts must respect the autonomy of state courts by requiring that petitioners advance in state court all grounds for relief, as well as all factual allegations supporting those grounds. This rule extends to the evidence establishing the factual allegations themselves."
See Dowthitt v. Johnson, 230 F.3d 733, 745-46 (5th Cir. 2000), cert. denied, 532 U.S. 915 (2001).
The Supreme Court and Fifth Circuit have directed the district courts to dismiss "mixed" petitions. i.e., those containing exhausted and un-exhausted claims, for failure to exhaust available state remedies with regard to all of the claims for federal habeas relief. Even where a respondent has waived the exhaustion defense, the AEDPA places the burden on a federal habeas petitioner to raise and litigate as fully as possible his potential federal claims in state court. Therefore, ordinarily, this Court is required to dismiss federal habeas petitions that include unexhausted claims. However, the exhaustion requirement is not jurisdictional. Prior to the enactment of the AEDPA, it was incumbent on a federal district court to independently examine the relevant pleading and state court records to determine whether the interests of comity and federalism will be better served by addressing the merits forthwith or by requiring a series of additional state court proceedings before reviewing the merits of the petitioner's claim. The reason for this treatment of the exhaustion requirement is that its genesis lies in the principles of comity and federalism that underlie our national judicial system. When Congress enacted the AEDPA, it mandated that all state habeas remedies be exhausted before a federal court may grant federal relief on a claim but also provided that a federal court may deny federal habeas relief on an unexhausted claim. If the case presents an issue involving an unresolved question of fact or state law, a federal court may insist on complete exhaustion to ensure its ultimate review of the issue is fully informed. There is a strong presumption in favor of requiring the prisoner to pursue his available state remedies. Those principles guide this Court's review of federal habeas petitions filed by state prisoners regardless of whether they are expressly asserted by the parties in a specific legal proceeding.
See Rose v. Lundy, 455 U.S. at 518-22, 102 S.Ct. at 1203-05; Alexander v. Johnson, 163 F.3d at 908; Sones v. Hargett, 61 F.3d at 415; Sterling v. Scott, 57 F.3d at 453; and Burns v. Estelle, 695 F.2d at 850-52.
See Hernandez v. Johnson, 108 F.3d 554, 558 n. 4 (5th Cir. 1997), cert. denied, 522 U.S. 984 (1997), (holding that, under the AEDPA, the proper forum for the making of all factual determinations in habeas cases will shift to the state courts "where it belongs" and recognizing that the AEDPA clearly places the burden on the federal habeas petitioner "to raise and litigate as fully as possible his potential federal claims in state court").
See Rose v. Lundy, 455 U.S. at 518-22, 102 S.Ct. at 1203-05; Sterling v. Scott, 57 F.3d at 453; and Burns v. Estelle, 695 F.2d at 850-52.
See Earhart v. Johnson, 132 F.3d at 1065; and Herbst v. Scott, 42 F.3d 902, 905 (5th Cir. 1995), cert. denied, 515 U.S. 1148 (1995).
See Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct. 1671, 1675, 95 L.Ed.2d 119 (1987); Earhart v. Johnson, 132 F.3d at 1065-66; and Graham v. Johnson, 94 F.3d 958, 970 (5th Cir. 1996).
Id.
See Jones v. Jones, 163 F.3d at 298-99; and 28 U.S.C. § 2254 (b)(2).
See Granberry v. Greer, 481 U.S. at 134-35, 107 S.Ct. at 1675-76; Horsley v. Johnson, 197 F.3d 134, 137 (5th Cir. 1999), ("comity and judicial economy make it appropriate to insist on complete exhaustion where `unresolved questions of fact or state law might have an important bearing.'"); Earhart v. Johnson, 132 F.3d at 1065-66; and Graham v. Johnson, 94 F.3d at 968-70.
Granberry v. Greer, 481 U.S. at 131, 107 S.Ct. at 1674; Mercadel v. Johnson, 179 F.3d at 277.
C. Synthesis
There is no genuine dispute that the petitioner has failed to "fairly present" his Atkins claim to any state court. Insofar as petitioner contends that there are no state remedies available to him at this juncture, he is in error. The Fifth Circuit has recognized that the Supreme Court's holding in Atkins constituted a new rule of constitutional criminal procedure that has retroactive effect. Section 5(a)(1) of Article 11.071 of the Texas Code of Criminal Procedure expressly and specifically authorizes the filing and prosecution of a successive application for state habeas corpus relief in a death penalty case when the claim asserted in the successive application asserts claims and issues that could not have been resented previously in a timely application because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application. Subsection 5(d) of Article 11.071 clarifies that the legal basis for a claim is "unavailable" on or before a date if that legal basis was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court or a subordinate federal or state appellate court on or before that date. This is precisely the situation which faces petitioner at this juncture. At the time he filed his original state habeas corpus petition, i.e., in October, 1996, neither the petitioner nor anyone else not gifted with prescience or omniscience could have reasonably foreseen the Supreme Court's watershed decision in Atkins. Atkins implicitly overruled the Supreme Court's refusal in its first Penry opinion to recognize an Eighth Amendment prohibition against the execution of the mentally retarded. Thus, there are state habeas remedies currently available to petitioner if he wishes to "fairly present" his Atkins claim to the state courts.
See Bell v. Cockrell, 310 F.3d 330, 332 (5th Cir. 2002).
See Article 11.071, § 5(a)(1), Tex. Code Crim. Proc. Ann (Vernon Supp. 2003).
Insofar as petitioner argues that it would be futile for him to attempt to exhaust state remedies with regard to his Atkins claim, the short answer is that the AEDPA statutorily prohibits this Court from granting petitioner federal habeas corpus relief on an unexhausted claim. Petitioner's rather vague references to unspecified events in two cases styled Moore and Davis do not even begin to establish that there are any circumstances currently extant which would render a successive application for state habeas corpus relief under Article 11.071 Section 5(a)(1) "ineffective" to protect petitioner's rights.
See Mercadel v. Johnson, 179 F.3d at 276-77; Alexander v. Johnson, 163 F.3d at 908; Jones v. Jones, 163 F.3d at 299; and 28 U.S.C. § 2254 (b)(1)(A).
However, Title 28 U.S.C. § 2254 (b)(2) empowers a federal habeas court to deny rely premised upon an exhausted claim. Daniel v. Cockrell, 283 F.3d at 701-02.
The passage of the AEDPA marked a dramatic shift in the nature of federal habeas corpus review of state criminal convictions and sentences. As explained above, it is no longer the role of the federal courts to serve as de novo determiners of legal or factual issues raised by state prisoners in federal habeas corpus proceedings. Rather, the responsibility for making the initial determination of the facts and law in a particular case now lies almost exclusively with the state courts. This Court's role is limited to reviewing the state court's findings of fact and conclusions of law under the AEDPA's highly deferential standard outlined above. The Fifth Circuit held in Bell v. Cockrell that the inferior federal courts should have no role in the resolution of Atkins claims until after the appropriate state courts have fulfilled their responsibilities under the AEDPA. It would be a waste of scarce judicial resources for this Court to hold an evidentiary hearing on petitioner's factually and legally undeveloped Atkins claim when (1) this Court is statutorily precluded from granting relief on that claim and (2) an avenue for obtaining state habeas review of same remains untested. The principles of comity which underlie the exhaustion requirement compel this Court to dismiss this cause without prejudice so that the petitioner may return to the appropriate state trial court and pursue a successive state habeas corpus application.
Petitioner is correct that the AEDPA's one-year statute of limitations has not been statutorily tolled during the pendency of this federal habeas corpus proceeding. However, the doctrine of equitable tolling affords one means of avoiding the pernicious result petitioner fears once this Court dismisses this cause without prejudice. Provided that petitioner exercises due diligence to present his Atkins claim to the appropriate state court in a timely manner, this Court is aware of no absolute barrier to petitioner thereafter seeking federal habeas review of whatever determination the Texas Court of Criminal Appeals makes with regard to petitioner's Atkins claim.
See Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 2129, 150 L.Ed.2d 251 (2001), (holding that the statutory tolling provision of § 2244(d)(2) does not apply to a previous federal habeas corpus petition dismissed for failure to exhaust available state remedies).
See Duncan v. Walker, 533 U.S. at 183, 121 S.Ct. at 2130 (Justices Stevens and Souter concurring).
The exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts and, thereby, to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings. The State of Texas, through respondent, has requested that this Court dismiss petitioner's mixed federal habeas corpus petition for the express and specific purpose of permitting the appropriate state courts to have an opportunity to address the merits of petitioner's Atkins claim. At this juncture, neither the Supreme Court nor the Fifth Circuit has offered the District Courts much guidance with regard to how Atkins claims are to be handled or even which party should bear the burden of proof on the issue. Thus, the landscape drawn by Atkins remains quite foggy at this point in time.
See Carey v. Saffold, 536 U.S. 214, ___, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002); Duncan v. Walker, 533 U.S. at 179, 121 S.Ct. at 2128; O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999); and Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982).
In Smith v. Cockrell, 311 F.3d 661, 684-85 (5th Cir. 2002), the Fifth Circuit held that an Atkins claim which had never been litigated in the district court could not be raised for the first time on direct appeal from denial of federal habeas corpus relief. In Bell v. Cockrell, 310 F.3d 330, 332-33 (5th Cir. 2002), the Fifth Circuit held that Atkins claims are not barred by the non-retroactivity doctrine of Teague v. Lane but that a district court should dismiss without prejudice for want of exhaustion any Atkins claim that had never been presented to the state courts. At this juncture, petitioner has not presented this court with an unexhausted Atkins claim.
Even the Supreme Court's opinion in Atkins failed to furnish any real guidance to lower courts regarding how such claims are to be resolved. For instance, the Supreme Court failed to set forth a definitive legal definition of "mentally retarded" or "mental retardation," instead simply referring to a pair of clinical definitions of same. See Atkins v. Virginia, 536 U.S. at ___ n. 5, 122 S.Ct. at 2245 n. 5. Likewise, the Supreme Court offered no suggestion as to what procedures state courts should establish for resolving claims of mental retardation raised by death row inmates or even which party should bear the burden of proof on that issue.
This latter issue raises a particular perplexing question in light of the Supreme Court's opinion in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Ring, the Supreme Court extended to capital sentencing proceedings the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which requires jury determination of all factual issues which enhance a convicted criminal defendant's sentence beyond the statutory maximum for the offense charged in the indictment. Neither the Supreme Court nor the Fifth Circuit have yet addressed the issue of whether the holding in Ring, when applied to the holding in Atkins, mandates jury determination of whether a convicted capital murder defendant is mentally retarded.
D. Conclusions
What is clear is that no state court has yet been given an opportunity to address the merits of the petitioner's Atkins claim and Texas habeas corpus statutes do not foreclose a successive state habeas corpus application filed by petitioner asserting an Atkins claim. Under such circumstances, the principle of comity underlying the exhaustion doctrine compels this Court to dismiss petitioner's mixed petition without prejudice for failure to exhaust available state habeas corpus remedies.
Likewise, petitioner may also wish to take this opportunity to present the Texas Court of Criminal Appeals with his potentially meritorious claim premised on the Supreme Court's June 4, 2001 opinion in Penry II. Frankly, given the fact that Dr. Sparks concluded in December, 1991 that the petitioner was not mentally retarded, see Rodriguez v. State, 899 S.W.2d at 660, petitioner's current claims attacking the effectiveness of his trial counsel for not seeking a second opinion regarding petitioner's mental health status smack of Monday morning quarterbacking of the worst kind.
Accordingly, it is hereby ORDERED that:
1. Respondent's motion to dismiss for failure to exhaust state remedies, filed November 6, 2002, is GRANTED.
See docket entry no. 17.
2. Petitioner's federal habeas corpus petition, as amended and supplemented, is DISMISSED WITHOUT PREJUDICE for failure to exhaust available state habeas remedies on petitioner's Atkins claim.
3. All other pending motions are DISMISSED AS MOOT.
4. The Clerk shall prepare and enter a Judgment in conformity with this Order.