Walters v. Scott

United States Court of Appeals,

Fifth Circuit.

No. 92-1297.

Victor Wayne WALTERS, Petitioner-Appellant.

v.

James A. COLLINS, Director, Texas Dep't of Criminal Justice,
Institutional Division, Respondent-Appellee.

May 31, 1994.

Appeal from the United States District Court for the Northern
District of Texas.

Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

WISDOM, Circuit Judge:

A state prisoner appeals from the district court's dismissal

of his petition for a writ of habeas corpus. The district court

dismissed the petition as untimely under Rule 9(a) of the Rules

Governing Section 2254 Cases ("Section 2254 Rules").1 We conclude

that the state has not met its burden of making a particularized

showing of prejudice sufficient to support a Rule 9(a) dismissal.

Accordingly, we REVERSE the district court's dismissal of the

petition and REMAND to the district court for an evidentiary

hearing.

I.

On August 16, 1978, petitioner/appellant Victor Wayne Walters

was indicted for murdering Donald Lee Blagg. Walters was indigent,

so the state trial court appointed Douglas H. Parks, a Dallas

1
Rules Governing Section 2254 Cases in the United States
District Courts, R. 9(a), 28 U.S.C. foll. § 2254.

1
attorney, to represent him. Parks advised Walters to plead guilty.

Walters did. The trial judge sentenced Walters to life in prison.

This case involves Walters's attempt to obtain appellate

review of his life sentence. According to Walters's habeas

petition, he told Parks he wanted to appeal his life sentence, and

Parks assured him an appeal would be filed. The record, however,

contains no entry indicating that an appeal in Walters's case was

ever filed. The state makes much of the presence in the record of

a written waiver of appeal. That waiver was ineffective to waive

Walters's right to appeal, however. Only Parks signed the waiver

of appeal. Neither Walters nor the trial judge, whose signatures

the waiver form also required, signed it.2 Parks later stated that

it was his usual practice to give an oral notice of appeal in open

court, and that he had "no reason to believe that his custom and

practice was different in this case".3

On November 30, 1978, three and a half months after his

conviction, Walters wrote to Parks inquiring about the status of

his appeal.4 Parks responded on December 16, 1978 with a letter in

2
1 Rec. 26 (Ex. C).
3
Parks made this statement in his affidavit to the court in
Walters's state habeas proceeding. Record excerpts tab 11.
4
Record Excerpts tab 9. Walters's letter states:

Dear Sir:

I'm writing you this letter to try to find out
about my appeal. I have not heard from you so I
thought I would write to see if you have heard anything
about my appeal from the court.

How long does an appeal take?

2
which he wrote:

This is to advise you that notice of appeal was given in the
above named and numbered cause on August 16, 1978. However,
I was appointed by the Court to represent you at trial and
have not been appointed as appellate attorney of record. You
should contact the District Clerk to see who has been
appointed to represent you on appeal.5

Parks's letter to Walters gave the wrong docket number. The letter

referred to a notice of appeal having been filed in case "No. F78-

6242-N"; Walters's case was numbered "F78-7290-IN". The record

lists no written notice of appeal in case F78-7290-IN.

After doing some research to the best of his limited ability,6

Please write me and let me know what is happening
with my appeal.

As soon as you hear something please let me know.

Thank you for your help.
5
Record Excerpts tab 10 (emphasis added). The state notes
that Parks's letter of December 16, 1978 is unsigned, but Parks's
affidavit to the state habeas court acknowledges the letter's
authenticity.

We note, as did Walters's court-appointed counsel at
oral argument, that Parks's letter to Walters was legally
ineffective to dissociate himself as Walters's attorney.
Under Texas law, the attorney-client relationship does not
end upon the conviction of a court-appointed lawyer's
client. The attorney must formally withdraw from the case;
if the attorney does not, the attorney is considered counsel
of record on appeal even if the attorney believes the
representation ended at the trial level. Ward v. State, 740
S.W.2d 794, 796-800 (Tex.Crim.App.1987). This was also the
rule at the time of Walters's trial. See Harrison v. State,
516 S.W.2d 192, 192-93 (Tex.Crim.App.1974).
6
It should surprise no one that Walters had difficulty
understanding the procedures he was required to follow to file a
notice of appeal and request appointment of appellate counsel.
One in Walters's circumstances could be expected to require a
great deal of time to acquire the most rudimentary legal research
skills. The state also does not dispute Walters's
characterization of the prison law library, from which he was

3
Walters wrote to the state court in which he was convicted to ask

about taking an appeal and having appellate counsel appointed. On

October 5, 1979, the trial court held that Walters's notice of

appeal was untimely.

Over nine years later, in February 1989, Walters filed a pro

se petition for a writ of habeas corpus in a Texas district court.

He alleged that he had been denied adequate assistance of counsel

and had been denied the right to appeal his conviction. The state

court, without holding a hearing, denied his petition on March 27,

1989. The Texas Court of Criminal Appeals affirmed the denial

without opinion on June 7, 1989. By first seeking a writ of habeas

corpus from the courts of Texas, Walters exhausted his state

remedies.

Walters then filed a pro se petition for a writ of habeas

corpus in federal district court. He again charged that he had

been (1) denied adequate assistance of counsel because his trial

counsel had failed to file a notice of appeal, (2) denied his right

to appeal his conviction, and (3) denied equal protection of the

laws. The case was referred to a magistrate judge who, without

holding an evidentiary hearing, recommended that his petition be

denied as untimely under Rule 9(a) of the Section 2254 Rules.7 On

expected to divine the nature and extent of his rights, as "very
limited".
7
This rule provides:

A petition may be dismissed if it appears that the
state of which the respondent is an officer has been
prejudiced in its ability to respond to the petition by
delay in its filing unless the petitioner shows that it

4
February 25, 1992, the district court adopted the magistrate

judge's findings and conclusions and dismissed Walters's petition.

The district court denied Walters a certificate of probable cause.

He appealed, and on December 28, 1992, Judge Edith H. Jones of this

Court granted him a certificate of probable cause8 on the grounds

that "[t]here is a substantial question whether the State's

allegations of prejudice are relevant to the issue raised by the

petitioner". We appointed counsel to represent Walters on this

appeal.

II.

At the outset we should emphasize the limited nature of our

inquiry. This case presents one question: has the State of Texas

made a sufficient showing of prejudice to support dismissal of

Walters's petition under Rule 9(a). The merits of Walters's habeas

petition, i.e., whether he was denied adequate assistance of

counsel, are not before this Court. His petition is not

frivolous.9

The state bears a heavy burden in seeking a dismissal based

on Rule 9(a) of the Section 2254 Rules. Rule 9(a) codifies the

equitable doctrine of laches as applied to habeas corpus

is based on grounds of which he could not have had
knowledge by the exercise of reasonable diligence
before the circumstances prejudicial to the state
occurred.
8
28 U.S.C. § 2253.
9
See, e.g., United States v. Gipson, 985 F.2d 212, 215 (5th
Cir.1993); Lumpkin v. Smith, 439 F.2d 1084, 1085 (5th Cir.1971)
(per curiam).

5
petitions.10 The application of Rule 9(a) must be carefully limited

to avoid abrogating the purpose of the writ of habeas corpus.11 The

burden is on the state to (1) make a particularized showing of

prejudice, (2) show that the prejudice was caused by the petitioner

having filed a late petition, and (3) show that the petitioner has

not acted with reasonable diligence as a matter of law.12 The

showing of prejudice must be based on the specific challenge raised

in the petition; mere passage of time alone is never sufficient to

constitute prejudice.13 The state must show that it has been

prejudiced in its ability to respond to the allegations in the

petitioner's petition; it is irrelevant that the state has been

prejudiced in its ability successfully to convict the petitioner

again.14 The prejudice must have been caused by the petitioner's

unreasonable delay in bringing the petition. Finally, the

petitioner's delay in bringing the petition must have been

unreasonable as a matter of law.

If the state makes its showing of these elements, the burden

10
Strahan v. Blackburn, 750 F.2d 438, 440 (5th Cir.), cert.
denied, 471 U.S. 1138, 105 S.Ct. 2683, 86 L.Ed.2d 700 (1985).
11
McDonnell v. Estelle, 666 F.2d 246, 251 (5th Cir.1982);
see also Hannon v. Maschner, 845 F.2d 1553, 1557 (10th Cir.1988)
and cases collected therein.
12
McDonnell, 666 F.2d at 253.
13
Id. at 251.
14
Vasquez v. Hillery, 474 U.S. 254, 264-65, 106 S.Ct. 617,
623-24, 88 L.Ed.2d 598 (1986); 17A Charles A. Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure §
4268.2 (2d ed. 1988) (first edition quoted with approval in
Strahan, 750 F.2d at 441).

6
of going forward shifts to the petitioner to show either (1) that

the state actually is not prejudiced, or (2) that the petitioner's

delay is "based on grounds of which he could not have had knowledge

by the exercise of reasonable diligence before the circumstances

prejudicial to the state occurred".15

A. Prejudice

Walters's petition alleges that he received ineffective

assistance of counsel because Parks never perfected Walters's

appeal and never properly withdrew from the case. Walters also

charges that he was denied effective assistance of counsel when the

trial court refused to appoint counsel to represent him on appeal.

The state must make a particularized showing of how the delay

has prejudiced its ability to defend against those allegations.

The state relies chiefly for its allegation of prejudice on Parks's

inability to find his main case file or to remember why the records

do not reflect a timely notice of appeal, and on the death of the

court reporter and the unavailability of the statement of facts

from Walters's plea colloquy and sentencing.16 The state also

contends that ambiguity in the record supports its allegation of

prejudice.

The state relies on Parks's affidavit submitted in the state

habeas proceeding to support its assertion that it has been

15
McDonnell, 666 F.2d at 251 (quoting Rule 9(a)).
16
The state's counsel at oral argument downplayed the
importance of the court reporter's death. The state's original
brief, however, relies squarely on the death of the court
reporter as a source of prejudice to the state.

7
prejudiced because, the state contends, Parks has no recollection

of the circumstances of Walters's case. In that affidavit, Parks

stated that "[a]fter a diligent search, [he] has been unable to

locate his main file after the passage of time"; that it was his

"custom and practice to give oral notice of appeal, in open court,

immediately after the pronouncement of sentence"; that he "has no

reason to believe that his custom and practice was different in

this case, particularly in light of his letter to [Walters] of

December 16, 1978"; and that he "has no knowledge or recollection

of any circumstances surrounding the failure of the records [in the

state court] failing to reflect timely notice of appeal". Parks's

affidavit does not state unequivocally that he has no recollection

of any of the circumstances surrounding Walters's case. Therefore,

the affidavit, standing alone, is insufficient to establish that

the state has been prejudiced by Parks's lack of recollection. On

remand, the state will have the opportunity to call Parks to

testify at the evidentiary hearing and may, at that time, seek to

establish prejudice on this basis.

We turn next to the state's allegations concerning the court

reporter's death and unavailability of records. Our focus is on

the facts surrounding Walters's sentencing. Walters has put

substantial evidence in the record suggesting that, immediately

after his sentencing, he wanted to appeal and said so. This

evidence includes (1) Walters's apparent refusal to sign a waiver

of appeal; (2) Walters's letter to Parks asking about the status

of his appeal; (3) Parks's reply stating that he had given a

8
notice of appeal; (4) Walters's letter to the state court

inquiring about an appeal; and (5) Parks's affidavit recalling

that it was his general practice to give oral notices of appeal in

cases like Walters's. From the record, it is clear that Walters

intended to appeal, and there is substantial, though conflicting,

evidence that Parks intended to appeal as well.17 The state

challenges none of this evidence, but instead hypothesizes that

Walters might have waived his right to an appeal at sentencing. We

cannot find that the state was prejudiced by the absence of the

court reporter's records from the sentencing, considering the

substantial evidence introduced by Walters that he did not

contemplate waiving his appeal.

Assuming for the moment that the death of the court reporter

and unavailability of records is a possible source of prejudice to

the state, we must hold that factor legally insufficient because

the state has not proved that it was actually prejudiced. If the

state wishes to establish prejudice from the death of the court

reporter and the unavailability of the court reporter's records, it

must also establish that the substance of those records is

17
Parks's signing of the waiver of appeal may suggest that
he did not contemplate an appeal in Walters's case. We have
already noted that the waiver was ineffective because it was not
signed by Walters or by the state judge. The waiver is further
undercut by Parks's affidavit to the state habeas court, in which
he recalls that his usual practice was to give oral notice of
appeal, and by Parks's letter to Walters of December 16, 1978, in
which he states that "notice of appeal was given" in Walters's
case in open court.

9
unavailable from other sources.18 This the state has not done. The

state has not shown in its brief, and was unprepared at oral

argument to discuss, whether the original trial judge, prosecuting

attorney, or other participants were still alive and could testify

to the contents of Walters's sentencing colloquy.19 Further, the

state does not dispute that the most important participants at the

sentencing for purposes of Walters's challenge, Parks and Walters,

are alive and available to testify.20 On these facts, we are unable

to conclude that the state has in any way been prejudiced by the

death of the court reporter.

B. Causation

We see insufficient evidence of causation in the facts the

state calls to our attention. Assuming arguendo that the death of

the court reporter and unavailability of records is construed as

18
In McDonnell the state presented the death of the trial
judge as a factor establishing prejudice. In reversing the
district court's Rule 9(a) dismissal, we stated that "prejudice
resulting from the judge's death occurs only if there are no
other sources from which the state can obtain the requisite
information to counter the petitioner's claim". McDonnell, 666
F.2d at 253 (emphasis added).
19
In response to a question at oral argument concerning
whether any of the participants in Walters's 1978 sentencing were
still alive, the state's attorney dodged the issue by stating
that he did not want to go outside the record in his arguments.
Those matters are "outside" the record, however, only because the
state has failed to shoulder its burden to include them. The
absence of these matters from the record supports Walters's
position, not the state's.
20
See Hannon, 845 F.2d at 1556, rejecting a Rule 9(a)
dismissal of a habeas petition charging ineffective assistance of
counsel on grounds identical to those Walters raises because
"[b]oth [the petitioner] and his former attorney are available to
testify".

10
prejudicial to the state, the state bears the further burden of

proving that Walters's delay in filing his habeas petition caused

those sources of evidence to be lost. At a minimum, this requires

the state to establish that if Walters had filed his habeas

petition at some earlier time, the evidence the state says it has

lost would have been available.21 The state has made no attempt to

do so. Nowhere in the record do we find, for example, the date the

court reporter died or the date the reporter's records became

unavailable. The court reporter may have died the day after

Walters's trial concluded, in which case the reporter's

unavailability would certainly not be attributable to Walters's

delay in bringing his habeas petition. We simply do not have the

necessary facts before us.22 Because of the state's burden to prove

those facts, their absence compels the conclusion that the

necessary foundation for a Rule 9(a) dismissal has not been laid.

C. Unreasonableness of the Delay

On the facts before us, we cannot conclude that the delay

between Walters's sentencing and his first habeas petition was

unreasonable. This is not a case in which the defendant "sat on"

known rights for nine years. Rather, it is a case in which the

defendant attempted to assert his rights immediately, only to be

blocked by the actions of his appointed counsel in unlawfully

21
Lawrence v. Jones, 837 F.2d 1572, 1575 (11th Cir.1988).
22
"The district court needs to determine when the
prejudicial deaths occurred and any other circumstances that
would show that [the state] would have been in a position to show
the facts surrounding [the defendant's] conviction had he only
brought his claim earlier". Id. at 1575 (footnote omitted).

11
abandoning him, then blocked again when the state trial court

denied his appeal as untimely. What the Tenth Circuit said in

Hannon v. Maschner is applicable in this case:

One factor presumably relevant in this case is that Hannon
attempted to file an out-of-time appeal and to have the
alleged trial errors addressed through post-conviction
procedures shortly after his incarceration and on numerous
subsequent occasions. Cf. Louis v. Blackburn, 630 F.2d 1105,
1110 (5th Cir.1980) (recognizing importance of petitioner's
previous efforts to attain relief in determining whether he
displayed due diligence). Each time the state court could
have cured the due process violation alleged here by providing
the equivalent of direct appellate review of the merits of his
claims.... Each time the state court refused.23

In sum, we find that the state's showing on each of the three

required elements is insufficient to sustain a summary dismissal

under Rule 9(a).

III.

The state offers us an alternative basis on which to uphold

the district court's judgment: Walters failed to comply with a

state procedural rule requiring that notices of appeal be filed

within ten days of the judgment. We reject this argument because

it is clear that the state habeas court did not deny relief

"because of the defendant's violation of state procedural

requirements".24 There is no plain statement in the state habeas

court's opinion that a state procedural default was used as an

23
845 F.2d at 1557-58 (emphasis added) (also citing Evitts
v. Lucey, 469 U.S. 387, 399-400, 105 S.Ct. 830, 837-838, 83
L.Ed.2d 821 reh'g denied, 470 U.S. 1065, 105 S.Ct. 1783, 84
L.Ed.2d 841 (1985)).
24
Shaw v. Collins, 5 F.3d 128, 131 (5th Cir.1993).

12
independent basis for the state court's disposition of the case.25

IV.

Our conclusion is narrow. We do not hold that Walters

received ineffective assistance of counsel. We hold only that the

state's allegations of prejudice are insufficient to support the

district court's summary dismissal of this petition under Rule 9(a)

of the Section 2254 Rules. On remand, the state will have another

opportunity to prove that it has been prejudiced, just as a

litigant whose summary judgment is denied may still prove his or

her case on the merits.26 Any further attempt by the state to show

prejudice, however, must be based on new evidence in addition to

that in the record before this Court; the state may not simply

25
See Harris v. Reed, 489 U.S. 255, 261-62, 109 S.Ct. 1038,
1042-43, 103 L.Ed.2d 308 (1989). Because the state court's
decision fairly appears to rest at least in part on federal law,
it must include a Harris "plain statement" to bar federal review.
See Coleman v. Thompson, 501 U.S. 722, ---- - ----, 111 S.Ct.
2546, 2556-57, 115 L.Ed.2d 640, 658-59, reh'g denied, --- U.S. --
--, 112 S.Ct. 27, 115 L.Ed.2d 1109 (1991); Young v. Herring, 938
F.2d 543 (5th Cir.1991) (en banc), cert. denied, --- U.S. ----,
112 S.Ct. 1485, 117 L.Ed.2d 627 (1992).
26
The state's failure to make a sufficient showing of
prejudice to support a summary Rule 9(a) dismissal does not mean
that the state cannot possibly prove prejudice, as we noted in
McDonnell v. Estelle:

In reversing the trial court's judgment on the 9(a)
motion, we do not imply that the events claimed as
prejudicial by the state could not prove prejudice.
And we certainly make no predictions as to the
conclusion a court might reach on the merits of
McDonnell's claim, should the state ultimately fail to
prove its 9(a) defense. We hold only that the evidence
submitted to show prejudice does not justify the
finding of prejudice by the district court in its
summary judgment.

McDonnell, 666 F.2d at 252.

13
relitigate this appeal in the district court.

We REVERSE the district court's judgment and REMAND this case

to the district court.27

27
See Jackson v. Estelle, 570 F.2d 546, 547 (5th Cir.1978).

14