IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-20475
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CARL THOMAS CORTE,
Petitioner-Appellee,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(H-96-CV-1806)
_________________________________________________________________
April 7, 2000
Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Carl Corte seeks habeas corpus relief, charging that his
sentence was unconstitutional. The magistrate judge vacated the
sentence and ordered the state court to release Corte within ninety
days “unless the State of Texas, within such 90-day period, either
retries or releases Carl Thomas Corte.” We vacate the order and
remand with instruction.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I
Corte was convicted in Texas state court in 1981 of aggravated
robbery. Corte had a 1957 conviction for forgery that was used to
enhance his sentence in the 1981 matter. After unsuccessfully
seeking relief from Texas state courts, Corte filed a petition for
writ of habeas corpus in federal court in June 1996. The basis for
both his state and federal claims was that the 1957 conviction was
invalid because he was not represented by counsel at sentencing;
accordingly, the conviction should not have been used to enhance
his sentence for his 1981 offense.
The parties consented to proceed before a federal magistrate
judge. The magistrate judge determined that the state habeas
court’s adjudication of Corte’s claims was based on an unreasonable
application of clearly established federal law because the state
court placed the burden of proof on Corte for establishing that he
was not represented by counsel in the 1957 proceeding. But the
magistrate judge dismissed the application on the grounds that
Corte had unreasonably delayed bringing his claim, and that this
had prejudiced the State. On appeal, this court vacated the
judgment and remanded for an evidentiary hearing on unreasonable
delay and prejudice.
On remand, the magistrate judge determined that Corte’s delay
was excusable and that the State failed to demonstrate prejudice.
The magistrate judge found that Corte lacked counsel at his 1957
sentencing hearing and that the State failed to demonstrate that
2
Corte had waived counsel. Thus, the magistrate judge determined
that Corte’s 1957 conviction was invalid and should not have been
used to enhance his sentence in 1981.
The magistrate judge then determined that Corte was entitled
to a new trial, as opposed to resentencing, because he had been
convicted and sentenced by a jury.1 Accordingly, the magistrate
judge declared the 1957 conviction void, ordered that the 1981
conviction be vacated and that Corte be released ninety days after
the entry of judgment, “unless the State of Texas, within such 90-
day period, either retries or releases Carl Thomas Corte.” The
magistrate judge later denied the State’s motion to alter or amend
judgment but granted the State’s request for a stay of judgment
pending appeal. The State appealed.
On appeal, the State does not contest the magistrate judge’s
determination that the 1957 conviction is void, nor does the State
argue that the conviction should not have been used for sentencing
enhancement. The issue raised by the State is whether, after
finding error only at the punishment phase of the trial, the
magistrate judge exceeded her authority by ordering the State to
retry Corte or release him.
1
This determination may have been based on Texas law as it
existed in 1981, providing that if a prior conviction used for
sentencing enhancement is void, and if punishment is decided by the
convicting jury, the conviction must be set aside. Tex. Code Crim.
Proc. Ann. Art. 37.07(2)(b) (Vernon 1981). This law was
subsequently changed, however, to allow the court to resentence the
defendant only, and this change was made retroactive. Tex. Code
Crim. Proc. Ann. Art. 44.29(b) (West 1998).
3
II
We must first determine the proper standard of review. The
State contends that we should review this issue de novo. In Smith
v. Lucas, 9 F.3d 359, 365 n.11 (5th Cir. 1993), we held that “the
district court’s conclusions about the extent of its authority in
issuing the writ under both our mandate and federal law are . . .
issues of law reviewable de novo.” At the same time, 28 U.S.C.
§ 2243 grants district courts the discretion to dispose of habeas
corpus matters “as law and justice require.” The Supreme Court has
interpreted § 2243 to allow federal courts “broad discretion in
conditioning a judgment granting habeas relief.” Hilton v.
Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d 724
(1987).
We do not believe there is a contradiction here. When the
district court rules on the bounds of its own authority in
fashioning habeas corpus remedies, we review its determination de
novo. But when the district court actually imposes a particular
remedy, we review the choice made for an abuse of discretion.2
III
We thus review the remedy imposed by the magistrate judge here
for an abuse of discretion. The magistrate judge did not consider
the bounds of her authority. She provided the state court with an
2
This standard of review governs even when the district court
has fashioned a remedy outside the realm of its ability to do so.
Such a remedy, however, is an abuse of discretion as a matter of
law.
4
option--either set Corte free or retry him. We review this order
for an abuse of discretion.
A district court’s power under the writ of habeas corpus is
solely over the body of the petitioner. Duhamel v. Collins, 955
F.2d 962, 968 (5th Cir. 1992). This sole power is to order the
petitioner’s release. Smith, 9 F.3d at 366. The district court
can, of course, withhold habeas relief if the state court is able
to correct the constitutional error. Richmond v. Lewis, 506 U.S.
40, 52, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992). But the district
court’s power over the petitioner’s body and ability to deny
release under certain circumstances does not give a district court
the authority to dictate to state courts the proper method for
correcting the constitutional error. That is up to them.
For that reason, the district court’s order in this case was
outside its authority, and consequently was an abuse of discretion.
The district court ordered the state court to retry Corte for the
1981 offense. A full retrial is not constitutionally necessary,
however, because the constitutional error alleged related solely to
sentencing. The state court may correct the constitutional error
in the sentence using whatever means it finds appropriate under
state law.3 Thus, we remand to the district court with an
instruction that it issue an order to the state court to release
Corte unless the state court corrects the constitutional error
3
As already noted, it appears that under Texas law, only the
sentencing issue will need to be retried.
5
within ninety days.
IV
For the reasons stated herein, the district court order is
VACATED, and the case is REMANDED for proceedings pursuant to this
decision.
VACATED and REMANDED.
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