UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-11358
_______________________
ANDREW FLORES CANTU-TZIN,
Petitioner-Appellant,
versus
GARY JOHNSON, DIRECTOR
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
December 2, 1998
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant Cantu is scheduled for execution by the State
of Texas on December 3, 1998, for the June, 1990 murder-for-hire of
three members of an Abilene family. He has filed neither state nor
federal habeas petitions seeking to vacate his capital murder
conviction. Instead, he filed in the federal district court only
a motion to stay execution and for appointment of counsel, and
those requests were initiated after his right to obtain federal
relief has facially prescribed.
Cantu has moved this court for a stay of execution and
appointment of counsel on appeal. We granted the motion for
appointment of counsel on appeal, as the sole issue with which
counsel is here concerned is the applicability of the statutory
time bar.1
Cantu’s petition for federal habeas relief indisputably
falls outside the one-year limit prescribed by Congress in the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) in order to
bring regularity and finality to federal habeas proceedings. Cantu
does not contest that his petition is facially untimely. Instead,
he argues that the district court erred by failing to appoint him
counsel under 21 U.S.C. § 848(q)(4)(B) and that it further erred in
ruling on the limitations issues without allowing Cantu an
opportunity to respond and without appointing counsel. Three
questions are raised by Cantu’s position: (1) whether the McFarland
case requires appointment of counsel for a death-row prisoner whose
petition is time-barred by AEDPA;2 (2) whether, under a narrow
reading of McFarland, § 848(q)(4)(B) counseled appointment of
counsel at least concerning the possibility of equitable tolling of
the statute of limitations; and (3) whether, given the undisputed
facts surrounding the progress of Cantu’s case in state and federal
courts, no ground for equitable tolling or for a stay of execution
exists.
Our conclusions may be succinctly stated. First, neither
McFarland nor § 848(q)(4)(B) requires appointment of counsel for
1
On November 30, 1998, Mandy Welch and A. Richard Ellis were
appointed as counsel on appeal for these purposes.
2
McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568 (1994).
2
the wholly futile enterprise of addressing the merits of a time-
barred habeas petition. Second, the court may appoint counsel to
represent a death-row inmate for purposes of litigating the
applicability of the limitations bar only, with sufficient time
constraints to maintain the integrity of the limitation period.
Third, where, as in this case, the facts that might be relevant to
equitable tolling of limitations are undisputed and are wholly
unfavorable to the petitioner, the court may deny a stay. We
therefore deny the stay of execution.
BACKGROUND
Cantu is no stranger to self-representation. He
dismissed his court-appointed attorney and represented himself on
direct appeal to the Texas Court of Criminal Appeals.3 His direct
appeals terminated with the denial of certiorari by the Supreme
Court in February, 1995. See Cantu v. Texas, 513 U.S. 1171, 115
S.Ct. 1145.
Cantu never filed a petition for state habeas relief.
Rather, after eluding the first execution date,4 he sought
appointment of counsel in the state court system. His first
attorney was forced to withdraw because of a conflict of interest,
3
Counsel was appointed for him in a motion for rehearing in the
Texas Court of Criminal Appeals and on the petition for certiorari.
4
In 1995, Cantu filed a motion for stay and appointment of
counsel in federal district court, following the procedure set
forth in McFarland, 512 U.S. at 852 n.1, 114 S. Ct. at 2570 n.1.
The case was voluntarily dismissed, however, when the State of
Texas passed a law affording court-appointed counsel for state
habeas proceedings to indigent death-row inmates.
3
but his second attorney cited “irreconcilable differences” with
Cantu and was permitted to withdraw. Cantu requested discharge of
Ingalsbe, his third court-appointed attorney, because Cantu thought
for various reasons that Ingalsbe was not representing him
effectively. A state court hearing was held in August 1997 in
response to Cantu’s self-styled “Motion for the Dismissal of State
Habeas Counsel and for Self-Representation.” The state trial court
found that Cantu preferred to proceed pro se if his only choices
were to continue to be represented by Ingalsbe or by any other
attorney from Abilene; that Cantu did not want to be represented by
Ingalsbe or any other attorney from Abilene; that Cantu was capable
of representing himself in a post-conviction proceeding; and that
Cantu knowingly and voluntarily waived the right to counsel if his
only other choices were to be represented by Ingalsbe or another
Abilene attorney. These findings, referred to the Texas Court of
Criminal Appeals, resulted in an order discharging Ingalsbe on
September 3, 1997, and permitting Cantu to proceed pro se.
After the September 3, 1997 order, Cantu and a would-be
habeas attorney filed motions requesting the Texas Court of
Criminal Appeals to reconsider appointment of counsel, but their
motions were denied on November 19, 1997. Cantu then did nothing.
On October 14, 1998, more than a year after Cantu had
been instructed to proceed pro se, the state convicting court set
his execution date for December 3, 1998. Cantu filed a motion for
appointment of counsel and stay of execution in the federal
district court on November 3, 1998. Relying on McFarland, 512 U.S.
4
849, 114 S. Ct. 2568, Cantu asserted his right to counsel in
advance of filing a habeas petition on the merits. The state
responded by urging application of AEDPA’s one-year limitation on
federal habeas petitions, 28 U.S.C. § 2244(d)(1), and the
consequent inapplicability of McFarland. The state did not,
however, contest the appointment of counsel solely for the purpose
of representing Cantu in the resolution of the statute of
limitations issue.
On November 14, 1998, the district court entered an order
finding that Cantu “engaged in dilatory tactics which allowed the
one-year limitations period established by the Anti-Terrorism and
Effective Death Penalty Act to expire.” Cantu v. Johnson, No. 98-
CV-236-c (N.D. Tex. Nov. 14, 1998) (order denying appointment of
counsel and stay of execution). The court further concluded that
Cantu had “‘flout[ed] the available processes’ with his inaction
and dilatory tactics.” Id., quoting McFarland, 512 U.S. at 858,
114 S. Ct. at 2573. On this basis, the court denied the motions
for appointment of counsel and for stay of execution, and it denied
a certificate of appealability.
DISCUSSION
There can be no doubt that Cantu’s attempt to invoke
federal habeas jurisdiction is time-barred. The AEDPA, which
became effective April 24, 1996, enacted a one-year period of
limitation for federal habeas proceedings that runs, unless tolled,
from the date on which the petitioner’s conviction became final at
the conclusion of direct review or during the pendency of a
5
“properly filed application for State post-conviction or other
collateral review.” § 2244(d)(2). 28 U.S.C. § 2244(d)(1)(A).5
Cantu’s judgment became final on February 21, 1995. A strict
construction of the statute would have prevented his seeking
federal habeas relief after February 21, 1996, two months prior to
enactment of the AEDPA. The Fifth Circuit has, however, permitted
petitioners a “reasonable time” after enactment of the statute,
i.e. until April 24, 1997, to file their habeas applications. See
Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998). Further,
in “rare and exceptional circumstances,” this court has held that
the one year limitations period may be equitably tolled. Davis v.
Johnson, 158 F.3d 806, (5th Cir. 1998), petition for rehearing
pending.
In an additional twist favorable to Cantu, the Texas
Attorney General’s office agreed in a class action settlement to
toll the time from request until appointment of state habeas
counsel in the Texas Court of Criminal Appeals, for petitioners
like Cantu who did not have a state writ of habeas corpus pending
on December 2, 1996. Pyles v. Morales, No. 396-CV-2838-D (N.D.Tex.
Dec. 2, 1996) (Agreed Order of Dismissal Without Prejudice). A
generous reading of the Pyles agreement suggests that Cantu’s state
proceedings regarding appointment of counsel would not be counted
for limitations purposes until the Court of Criminal Appeals
5
Other triggering provisions for the one-year bar, contained in
subsections (B), (C), and (D) of § 2244(d)(1), are not material
here.
6
ordered Cantu to proceed pro se on September 3, 1997.6 Applying
the AEDPA limitations period of one year from that date, it could
be determined that Cantu could have filed a timely federal petition
for writ of habeas corpus until September 3, 1998.
Instead, from September 3, 1997 until today, Cantu has
never filed a petition for habeas relief in either state or federal
court. The express AEDPA limitation has clearly expired.
Applying the McFarland decision with full force to this
case cannot be correct. In McFarland, the Supreme Court
interpreted 28 U.S.C. § 848(q)(4)(B), the statute affording court-
appointed counsel to death row habeas petitioners, both to initiate
a federal habeas proceeding and to authorize in most instances, the
granting of a stay of execution even before a petition on the
merits had been filed. McFarland, however, predates AEDPA’s
passage of a specific habeas limitation period, and even though
AEDPA did not expressly modify the death row petitioner’s right to
counsel, it took the more onerous step of cutting off the
availability of any federal court review after the limitation has
run. Appointment of counsel for a capital-convicted defendant
would be a futile gesture if the petitioner is time-barred from
seeking federal habeas relief. Moreover, granting a stay of
6
Other interpretations of the Pyles agreement are possible. For
instance, it could be decided that the tolling there authorized
ceased to run upon the appointment of Cantu’s second habeas
counsel, who was later dismissed for “irreconcilable differences.”
If so, the AEDPA limitation would have ended several months earlier
than the date we have calculated. As the State suggests, it is
unnecessary for us to construe the impact of the Pyles agreement
definitively, and we have not done so.
7
execution in such circumstances would directly undermine Congress’s
purpose in passing a statute of limitations.
Indeed, confirmation that a statutory limitations period
should be enforced appears in the Supreme Court’s later decision in
Lonchar v. Thomas, 517 U.S. 314, 116 S.Ct. 1293 (1996). The tenor
of the majority discussion in Lonchar is that federal courts should
not intervene to create equitable reasons for denying stays of
execution when federal law and the habeas rules have prescribed
principles applicable to the complex mix of equities in capital
cases. See id. 517 U.S. at 326-27, 116 S. Ct. at 1301. By the
same token, however, when Congress has stepped in to balance the
competing interests, as it did in AEDPA, courts should be loath to
evade that balance. McFarland, which represents a judicial gloss
on the appointment-of-counsel statute, should not impede
application of a later-enacted limitation period on federal habeas
relief.
This is not to say that death row inmates may never file
initial federal habeas petitions more than one year after the
conclusion of direct or collateral review proceedings. First, the
conditions to the one-year bar contained in § 2244(d)(1) may apply.
See supra note 5. Second, this court has recently held that the
limitations period of AEDPA is subject to “equitable tolling” in
“rare and exceptional circumstances.” Davis, 158 F.3d at ___.
Where a petition lends itself to the interpretation that rare and
exceptional circumstance may pertain, and hence that the petitioner
is entitled to seek federal relief on the merits, a narrower
8
reading of McFarland may require appointment of counsel solely to
resolve limitations questions. While the delay occasioned by
appointment of counsel and determining the application of the
statute of limitations would marginally infringe the AEDPA limit,
these delays fulfill a long-recognized exception to limitations
statutes. See id. 158 F.3d at . Further, appointment of
counsel on such a limited basis may be handled expeditiously by the
trial court and with due regard for Congress’s intent to
circumscribe federal habeas relief.
But even if we incorrectly surmise that a broad reading
of McFarland is generally inconsistent with the enactment of
§ 2244(d), McFarland still does not guarantee an automatic stay of
execution for capital defendants. While McFarland ensures a right
to counsel that “necessarily includes a right for that counsel
meaningfully to research and present a defendant’s habeas claims,”
it also emphasizes that the grant of a stay is ultimately
discretionary. McFarland, 512 U.S. at 858, 114 S. Ct. at 2573. As
a result,
If a dilatory capital defendant inexcusably
ignores this opportunity [to secure counsel]
and flouts the available processes, a federal
court presumably would not abuse its
discretion in denying a stay of execution.
Id.
The record of proceedings in the state court, which was
furnished to the district court and this court during the course of
Cantu’s attempt to secure federal habeas relief, demonstrates his
9
disdain for and lack of cooperation with state access-to-counsel
procedures and the AEDPA deadline.
Over thirteen months, from August 1996 to September 1997,
Cantu was appointed three separate attorneys to represent him in
state post-conviction proceedings. One cited irreconcilable
differences with Cantu. The last one was dismissed at Cantu’s
request. Cantu insisted on trying to call the shots with the state
courts when he insisted that Ingalsbe, the third lawyer, should no
longer represent him, and further that no attorney from Abilene
should be appointed to represent him, although the crime occurred
in Abilene and the convicting court was located there, and that he
would rather represent himself than endure those alternatives. He
should not be heard to complain that the Texas courts found him
capable of self-representation and then allowed him to undertake
it, as he requested exactly that relief and had previously
dismissed a court-appointed counsel and represented himself on
direct appeal. Yet Cantu persisted in complaints that a fourth
lawyer should be appointed for him. Cantu thus flouted the state
court’s procedures and passed up the opportunity to pursue habeas
relief on the merits.
Cantu’s appellate counsel suggest that fact issues exist
that would predicate equitable tolling on the state’s failure to
appoint Cantu a competent habeas counsel. He supports this
position in two ways. First, he implies that Ingalsbe, the third
state-appointed attorney, was incompetent. This attack grossly
mischaracterizes Ingalsbe’s experience as a district attorney,
10
criminal law practitioner for over 20 years, 1967 graduate of
Baylor Law, and participant in capital and habeas cases. As the
state court found, Ingalsbe had obtained Cantu’s file from the
Texas Resource Center and was reviewing it before Cantu moved to
dismiss him. He testified that he planned to file a habeas
petition within the deadline set by the Texas Court of Criminal
Appeals.
Second, Cantu assaults the Texas courts’ findings that he
was capable of self-representation and voluntarily elected that
option rather than to have Ingalsbe or any Abilene attorney
represent him. Inmates are not entitled to court-appointed counsel
of their choice. United States v. Breeland, 53 F.3d 100, 106 n.11
(5th Cir. 1995); Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
App. 1982). Cantu chose self-representation rather than the choice
he was offered by the state. The circumstances that Cantu alleges
to support equitable tolling thus rest on an incomplete recitation
of the record, backtracking on his expressed choice of self-
representation, and a misunderstanding of an inmate’s ability to
control the choice of court-appointed counsel.
His approach to the federal courts has been no more
praiseworthy. A bevy of pleadings filed with the Texas Court of
Criminal Appeals throughout 1997 demonstrates that Cantu was well
aware of the AEDPA limitation period for seeking federal habeas
relief. See Appellant’s Objection to Court’s September 2, 1997
Findings, Record at Tab 16 n.1, Cantu v. Texas (No. 71,314);
Hearing Requesting Self Representation, Record at Tab 13 p. 6 (No.
11
10,172-B); Motion to File Skeletal Application for Writ of Habeas
Corpus, Record at Tab 21 p.6-7 (No. 71,314). He was also aware of
the Pyles agreement extending the AEDPA limit under certain
circumstances. See Record at Tab 21 p.6 (No. 71,314). Once he was
ordered to proceed in habeas pro se, however, Cantu did nothing.
He did not preserve his collateral review rights in state court,
which would have tolled the AEDPA limitation, and he made no effort
to obtain federal relief for over a year, until after an execution
date had been scheduled and after the AEDPA deadline had
unquestionably passed.
Cantu’s course of conduct demands application of the
exception to McFarland, if McFarland would otherwise apply here.
Further, it contradicts any possibility that equitable
circumstances exist which might authorize a tolling of the AEDPA
limitation period.
For all of these reasons, we conclude that any attempt by
Cantu to seek federal habeas relief at this point is time-barred
under the limit expressly contained in AEDPA, this court’s caselaw,
and a generous interpretation of the Pyles agreement; that Cantu
was not entitled to appointment of counsel on the merits of a
habeas petition, although he may have been entitled to be
represented by counsel for the sole purpose of litigating the
limitation issue; and that the fully-developed record of state
proceedings demonstrates the unavailability of equitable tolling of
the AEDPA limitations period.
12
We DENY Cantu’s request for a stay of execution; motion
for appointment of counsel on appeal, limited to the issues before
us is GRANTED. To the extent a certificate of appealability is
necessary, although it was not requested by petitioner, it is
DENIED.
ENDRECORD
13
BENAVIDES, Circuit Judge, dissenting:
The motion by Andrew Flores Cantu-Tzin (“Cantu”) for
appointment of counsel and a stay of his execution pending his
filing of a federal habeas petition was denied by the district
court because the court found that Cantu “engaged in dilatory
tactics which allowed the one-year limitations period established
by the Anti-terrorism and Effective Death Penalty Act to expire.”
The majority affirms that decision based on its finding that
appointing counsel and granting a stay in order to address the
merits of Cantu’s time-barred habeas petition would be a “wholly
futile enterprise” because there is no possibility that equitable
circumstances exist which might authorize a tolling of the AEDPA
limitation period. Although the majority’s ultimate conclusion
that Cantu’s habeas petition would be barred by AEDPA might be
correct, I dissent because the majority makes this determination
without Cantu having properly been granted his statutory right to
the assistance of counsel.
In McFarland v. Scott, 512 U.S. 849, 114 S. Ct. 2568 (1994),
the Supreme Court construed 21 U.S.C. § 848(q)(4)(B), which
entitles indigent capital defendants to representation on federal
collateral review, as directing that “the right to appointed
counsel adheres prior to the filing of a formal, legally
sufficient habeas corpus petition.” Id. at 855, 114 S. Ct. at
2572. Neither the Court in McFarland nor the text of §
848(q)(4)(B) conditions this right to assistance of counsel in
14
any way, and it was improper for the district court to have
denied it on the basis of Cantu’s supposed “dilatory tactics.”
Furthermore, the majority’s suggestion that AEDPA’s one-year
limitation period on filing habeas petitions restricts the right
to assistance of counsel to defendants who file a habeas petition
within the one-year period is inconsistent with our recent
decision in Davis v. Johnson, No. 98-20507, 1998 WL 733731 (5th
Cir. Oct. 21, 1998). There, we joined our sister circuits in
holding that “AEDPA’s one-year statute of limitations does not
operate as a jurisdictional bar and can, in appropriate
exceptional circumstances, be equitably tolled.” Id. at *4. By
finding that there is no right to counsel where the one-year
limitation period has lapsed, the majority undermines McFarland
and Davis by eliminating indigent capital defendants’ right to
have counsel assist them in demonstrating the exceptional
equitable circumstances that could require tolling the
limitations period.
In McFarland, the Supreme Court also reaffirmed the district
courts’ jurisdiction to stay executions because “the right to
counsel necessarily includes a right for that counsel
meaningfully to research and present a defendant’s habeas
claims.” McFarland, 512 U.S. at 858, 114 S. Ct. at 2573. The
Court provided an exception to the general rule that an execution
must be stayed to provide time for adequate representation by
counsel where “a dilatory capital defendant inexcusably ignores
this opportunity and flouts the available processes.” Id. at
15
858, 114 S. Ct. at 2573. Nonetheless, the majority errs by
finding that the district court could properly apply that
exception to this case without first appointing counsel to
represent Cantu or conducting an evidentiary hearing. First, by
improperly denying Cantu the assistance of counsel, the district
court denied him the opportunity to present the strongest legal
arguments that he had neither been dilatory nor flouted the
available habeas procedures. Without the benefit of having such
arguments before it, the district court was unable to assess
properly whether Cantu’s failure to file an earlier habeas
petition was inexcusable or not. Second, without holding an
evidentiary hearing, the district court could not properly find
that Cantu either had been dilatory or had flouted the available
habeas procedures. Of the three attorneys that represented Cantu
in his state post-conviction proceedings, two were dismissed
solely upon motion by the attorney. The third, Ingalsbe, was
dismissed upon Cantu’s request, but the record suggests that
Ingalsbe failed to make any substantial steps toward filing any
habeas relief on behalf of Cantu. Although there is evidence
that Cantu did agree to represent himself pro se instead of
continuing to be represented by Ingalsbe or another attorney from
Abilene, several motions filed by Cantu after Ingalsbe was
dismissed indicated that Cantu still desired to be represented by
counsel. Less than a year lapsed from the filing of the last of
these motions in state court until Cantu filed his motion in
federal court for the appointment of counsel and a stay of his
16
execution. Without an independent inquiry into the facts
underlying these events, it was an abuse of discretion for the
district court to have presumed that Cantu was being inexcusably
dilatory and was flouting the habeas procedures instead of
reasonably seeking representation and assistance in filing for
habeas relief.
The Supreme Court has noted that “[d]ismissal of a first
federal habeas petition is a particularly serious matter, for
that dismissal denies the petitioner the protections of the Great
Writ entirely, risking injury to an important interest in human
liberty.” Lonchar v. Thomas, 517 U.S. 314, 324, 116 S. Ct. 1293,
1299 (1996). For that reason, it is improper for this court to
deny Cantu’s single chance at federal collateral review of his
state death penalty conviction without ensuring that he had a
sufficient opportunity to be assisted by counsel in seeking that
review. Refusing him such assistance undermines his statutory
right under 21 U.S.C. § 848(q)(4)(B), ignores prior precedent of
the Supreme Court, undermines a prior decision of this Court, and
ultimately denies Cantu due process under the law. I would grant
Cantu the stay of execution and remand this case to the district
court for him to be appointed counsel solely for the purpose of
defending against the state’s claim that his habeas corpus
petition would be time barred. Only by allowing Cantu to have
counsel on the issue of limitations can it be assured that his
right to have counsel assist him in this, his first federal
17
habeas corpus challenge to a death penalty conviction, will not
be infringed.
18