Mayo v. Cockrell

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 00-20941

______________________

JOHN MAYO,

Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

March 28, 2002

Before JONES, SMITH, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This court granted a certificate of appealability to

permit John Mayo’s appeal from a denial of § 2254 habeas relief on

the claim that he was constructively deprived of legal counsel at

a critical stage of his prosecution, the period during which a new

trial could be sought. Texas courts denied relief on this claim,

as did the federal district court. The issue before us, pursuant

to AEDPA standards, is whether the state courts’ decision “was

contrary to, or involved an unreasonable application of, clearly

established Federal Law, as determined by the Supreme Court of the

United States . . .,” or was based on an unreasonable determination

of the facts in light of the state court record. 28 U.S.C.

§ 2254(d). Mayo rests his claim entirely on United States v.

Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984), and its progeny.

Finding no basis to grant relief on these facts under Cronic, we

affirm.

BACKGROUND

Mayo kidnapped, raped and sexually assaulted a Houston,

Texas, woman in May 1989. He was convicted in March 1991 of

aggravated kidnaping and aggravated sexual assault, and he received

sentences of 20 and 50 years’ imprisonment, respectively, for those

offenses.

The facts pertinent to this case, which we paraphrase,

are succinctly reported by the state habeas court:1

Jacquelyn Barnes, a veniremember for Mayo’s trial,

represented on her juror questionnaire that she had never been

accused in a criminal case. Before the veniremembers were brought

to the courtroom, the presiding judge in the central jury room

asked whether they had ever been convicted of any felony or theft.

1

The state court held a hearing on July 24, 1997, and prepared its

findings of fact and conclusions of law based on testimony and documentary

evidence.

2

Barnes either responded in the negative or remained silent;

otherwise, she would not have accompanied the panel to the

courtroom.

Mayo was represented at trial by retained counsel Paul

Mewis, assisted by Cynthia Henley. Neither the prosecutor nor

defense counsel asked the veniremembers whether they had been

convicted of any felony or theft, in reliance on the answers in the

jury questionnaires and their knowledge that the veniremembers had

already been qualified on this question in the central jury room.

Barnes became a juror.

Unbeknownst to the parties and attorneys, Barnes had a

final conviction for misdemeanor theft dating from 1977, which was

discoverable as a public record in Harris County, Texas. Had

Barnes disclosed her conviction during voir dire examination, the

attorneys would have challenged her for cause, as she was

absolutely disqualified from jury service under Texas law. TEX.

CODE CRIM. PROC. ANN. art. 35.19 (1989); Frame v. State, 615 S.W. 2d

766, 769 (Tex. Crim. App. 1981).

Mayo was convicted and sentenced. Mewis’s contract

provided that his legal representation of Mayo would terminate with

the jury’s verdict. After sentencing, Mayo indicated his desire to

appeal. Because Mewis did not handle appeals, he advised Mayo to

hire another lawyer.

3

Mewis took no further action in the case because he

assumed that Mayo would hire another lawyer. Neither Mewis nor

Henley (as Mewis’s assistant) investigated jury misconduct, checked

the local criminal records of the jurors, or investigated or filed

a motion for new trial.

Mewis did not move to withdraw as counsel because he was

unaware that Texas law required him to continue to represent Mayo

following conviction until such time as the court permitted him to

withdraw or substituted counsel. Ex parte Axel, 757 S.W.2d 369,

373-74 (Tex. Crim. App. 1988).

Nevertheless, when Mewis had not heard from a prospective

appellate lawyer after about three weeks, he met with Mayo in jail

to determine whether another lawyer had been hired. Mayo said he

was indigent. On April 4, 1991, three days before the time expired

to file a motion for new trial and notice of appeal, Mewis assured

that Mayo was brought to court, that he filed a notice of appeal,

and that he signed an indigency affidavit requesting court-

appointed appellate counsel. That same day, the court appointed

Will Gray as appellate counsel and mailed him notice of the

appointment. Gray did not, however, learn of his appointment until

the time had expired to file a motion for new trial.

No attorney discovered Barnes’s theft conviction in time

to file a motion for new trial or to raise the issue on appeal.

Had counsel filed a motion for new trial and proven that Barnes was

4

absolutely disqualified from serving as a juror, the trial court

would have had to grant a new trial, or the conviction would have

been reversed on appeal. Thomas v. State, 796 S.W.2d 196, 197

(Tex. Crim. App. 1990); State v. Holloway, 886 S.W.2d 482, 484

(Tex. App.--Houston [1st Dist.] 1994). Under Texas law, however,

Mayo is not entitled to obtain habeas corpus relief on a claim

involving a disqualified juror. Thomas, 796 S.W.2d at 199; Ex parte

Bronson, 254 S.W.2d 117, 121 (Tex. Crim. App. 1952)

The state habeas court concluded that Mayo “was not

denied assistance of counsel during the time for filing a motion

for new trial, as Paul Mewis remained attorney of record.” The

Texas Court of Criminal Appeals denied Mayo’s application for

habeas corpus relief without written order on the findings of the

trial court. The federal district court denied relief under §

2254, and this appeal followed after a COA was granted.

DISCUSSION

This case turns on whether the state courts’ conclusion

that Mayo was not denied the assistance of counsel during the

period for filing a new trial motion was an unreasonable

application of Federal law, as established by the Supreme Court, or

was based on an unreasonable determination of the facts in light of

the evidence presented. 28 U.S.C. § 2254(d).

Mayo’s argument begins with the proposition that criminal

defendants are constitutionally entitled to effective assistance of

5

counsel at every “critical stage” of prosecution and through the

conclusion of direct appeal. Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 2064 (1984); Evitts v. Lucey, 469 U.S.

387, 396, 105 S.Ct. 830, 836 (1985). A defendant whose attorney

provides no meaningful assistance may, however, be constructively

denied the assistance of counsel. United States v. Cronic, 466

U.S. 648, 659, 104 S.Ct. 2039, 2047 (1984). In Mayo’s view, his

lawyer’s failure to research or file a motion for new trial was the

equivalent of denying him counsel for the purpose of challenging

Ms. Barnes’s qualifications as a juror.

The initial problem with this argument is that, from the

standpoint of AEDPA, its conclusion does not necessarily follow

from its premises. Few precedents exist explaining whether the

period for filing a motion for new trial is a “critical stage” of

prosecution to which the right to counsel attaches. The Texas

Court of Criminal Appeals, for instance, expressly withheld ruling

on that issue, although lower Texas courts have described the post-

trial period as “critical.” Compare Prudhomme v. State, 28 S.W.3d

114, 121 (Tex. App. -- Texarkana 2000), with Smith v. State, 17

S.W.3d 660, 663 n.3 (Tex. Crim. App. 2000), and Oldham v. State,

977 S.W.2d 354, 360-61 (Tex. Crim. App. 1998). Several federal

courts of appeals have held that there is no constitutional right

to counsel for post-appeal motions for new trial. United States v.

Tajeddini, 945 F.2d 458, 470 (1st Cir. 1991), abrogated on other

6

grounds by Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029

(2000); United States v. Lee, 513 F.2d 423, 424 (D.C. Cir. 1975);

United States v. Birrell, 482 F.2d 890, 892 (2d Cir. 1973). But

three federal courts of appeals have held, on particular facts,

that the motion for new trial phase is a critical stage of the

prosecution. Kitchen v. United States, 227 F.3d 1014, 1018-19 (7th

Cir. 2000); Robinson v. Norris, 60 F.3d 457, 459-60 (8th Cir.

1995); Menefield v. Borg, 881 F.2d 696, 699 (9th Cir. 1989). The

district court here seized on the absence of “clearly established

Federal law, as determined by the Supreme Court . . . .,” and

concluded that the period for filing a motion for new trial is not

clearly a critical phase; hence, the state courts did not

unreasonably reject Mayo’s habeas claim.2

Unfortunately for Mayo, his position succeeds only if the

right to counsel clearly and fully attaches to the post-trial, pre-

appeal phase of prosecution. But it is unnecessary, in resolving

this appeal, to render such a broad decision.3 Instead, we focus

2

Mayo proceeded in state court and in this court solely on the theory

that he was denied counsel pursuant to Cronic and not, under Strickland, that his

attorney was constitutionally ineffective.

3

The broad question has no clearcut practical answer. Having counsel

during the motion for new trial phase may or may not be necessary to preserving

the defendant’s rights to a fair trial and effective appeal. Investigating juror

misconduct, for instance, may be, but is not necessarily, feasible only after the

jury has been discharged. Another type of post-trial motion may challenge the

effectiveness of trial counsel, but such a claim may better be raised in a habeas

corpus petition, after the results of the alleged errors have been ascertained

on appeal. Other types of claims may justify the discretionary grant of a new

trial but need not be raised in that fashion in order to preserve them for

appeal. Hence, unlike phases of the prosecution during which attorney

7

on the state court finding that Mayo was not denied counsel during

the post-trial phase. This finding is not legally or factually

unreasonable. Under Texas law, Mewis was bound to represent Mayo

until the trial court permitted him to withdraw or appointed a new

attorney.4 That Mewis was unaware of his legal responsibility does

representation has been deemed “critical” by the Supreme Court -- arraignment;

gaps in trial that afford the opportunities for consultation with the defendant;

the introduction of evidence pertinent to the defendant; direct appeal -- the

post-trial, pre-appeal phase seems, in the absence of a specific claim, to

demand representation by counsel at a minimum only for filing a timely notice of

appeal. (Mewis fulfilled his responsibility to Mayo for this purpose.)

Accordingly, to grant Mayo’s petition would extend the Supreme

Court’s decision in Cronic. The Court explained in Cronic that a criminal

defendant, even though formally represented by counsel, may suffer an actual or

constructive denial of representation in three circumstances: where counsel is

totally absent or is prevented from assisting the accused during a critical

stage; where counsel has a conflict of interest; and where counsel entirely fails

to subject the prosecution’s case to meaningful adversarial testing. The

circumstances of denial must justify a presumption of prejudice. Cronic, 466

U.S. at 659, 104 S.Ct. at 2046. In Burdine, this court held that when defense

counsel slept for “not insubstantial periods of time” during the guilt phase of

the capital murder trial, the defendant was constructively denied counsel.

Burdine v. Johnson, 262 F.3d 336, 341 (5th Cir. 2001) (en banc). Nothing in the

majority opinion in Burdine speaks to a Sixth Amendment claim arising in the

post-trial, pre-appeal phase of a non-capital prosecution. Further, as has been

shown, a priori judgment about the necessity of counsel during that phase is

impossible. Under the terms of Cronic or Burdine, then, Mayo’s broad claim fails

for lack of a demonstration that prejudice is so likely to occur if counsel is

“absent” during this phase as to render individual consideration of claims

unnecessary. Since Cronic as presently understood does not support a holding

that the right to counsel inevitably continues during the post-trial phase of

prosecution, the Teague doctrine would pose a bar to its extension here. Teague

v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989). Even in Burdine, the court,

conscious of Teague, went out of its way both to explain that it articulated no

“new rule” and to limit the decision to its specific facts. Burdine, 262 F.3d

at 349. Burdine offers no hope that other habeas defendants may succeed in

obtaining case-specific relief under Cronic or Teague.

4

Mayo’s argument proves too much by conflating the attorney’s alleged

error or misjudgment with “denial” or “absence” of counsel under Cronic. Cronic

went out of its way to stress that “only when circumstances justify a presumption

of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into

counsel’s performance at trial.” Cronic, 466 U.S. at 662, 104 S.Ct. at 2048.

The alleged error here was not so temporally tied to the post-trial, pre-appeal

phase as to justify a presumption of ineffectiveness at that stage. Cases relied

on by Mayo are thus not on point because the denial of counsel and attorney

incompetence on appeal, respectively, in those cases inevitably undermined the

8

not transform an error into the “denial” or “absence” of counsel.

Mewis in fact represented his client post-trial by taking steps to

ensure the appointment of appellate counsel.

The only asserted flaw in Mewis’s legal representation

was his failure to investigate the criminal records of Mayo’s jury,

to unearth a thirteen-year-old misdemeanor conviction of one juror,

and to use that technicality to obtain a mistrial or new trial.

For two reasons, this omission has no constitutional significance.

First, even if Mewis should have investigated the jurors’

criminal histories, the investigation need not have awaited the

outcome of trial. Mewis could have questioned the jurors on the

subject during voir dire exam. Indeed, the voir dire examination

provided the best opportunity to reveal disqualifying

characteristics. Moreover, Mewis, armed with copies of the juror

questionnaires, could have begun an investigation of the seated

jurors by means of outside sources as soon as trial commenced.

While the deadline for filing a motion for new trial fixes a

completion date under Texas procedure for such an investigation, it

does not constrain the initiation of inquiries into jurors’

criminal records. There is no necessary connection between Mewis’s

alleged oversight and the post-trial period. This lack of

defendant’s right to a first appeal. See Blankenship v. Johnson, 118 F.3d 312

(5th Cir. 1997); Lombard v. Lynaugh, 868 F.2d 1475 (5th Cir. 1989).

9

connection is irreconcilable with any Cronic claim regarding that

period.

Second, the facts demonstrate why Mayo declines to

characterize his claim as resting on the Strickland test for

constitutionally deficient legal representation. A Strickland

claim arises only if the attorney’s error falls outside the bounds

of professional reasonableness. Strickland, 466 U.S. at 688, 104

S.Ct. at 2065. Mewis did not question prospective jurors about

their criminal histories because he relied on pre-qualification for

that precise point. Pre-qualification took place by means of

written questionnaires and inquiries by the judge who conducts

juror screening in the Houston courts’ central jury room. It was

not professionally unreasonable to rely on this dual screening

mechanism. Surely the best evidence of the reasonableness of

Mewis’s conduct lies in the fact that the prosecutor, who had as

much to lose as Mayo had to gain from the belated identification of

an unqualified juror, also relied on the pre-screening techniques.

If Mewis’s actions in failing to ask veniremembers about possible

criminal records were not professionally unreasonable, it follows

that the failure to conduct post-trial investigation and file a

motion for new trial cannot have been deficient.5

5

That Mayo’s conduct did not violate Strickland reinforces the

conclusion that no basis for a presumption of prejudice – the prerequisite of a

denial of counsel under Cronic – exists here.

10

Our conclusion may be stated narrowly. Whether or not

the right to counsel attaches for some purposes during the post-

trial, pre-appeal phase of the prosecution, Mayo was not

constructively denied the assistance of counsel for purposes of

filing a new trial motion solely to assert the disqualification of

a juror, where (a) the disqualification might have been discovered

earlier, and (b) Mayo’s attorney could reasonably rely on Harris

County’s juror pre-screening procedures. The state courts did not

unreasonably apply clearly established Federal law or reach

unreasonable findings of fact in denying Mayo relief from his

conviction.6

The judgment of the district court is AFFIRMED.

6

The dissent finds unreasonable the state’s conclusion that Mayo was

represented by counsel during the post-trial, pre-appeal phase. The dissent

bases its view on attorney Mewis’s affidavit revealing his ignorance of the

requirements of Texas law. Under the dissent’s alchemy, it is hard to see how

the line between Cronic and Strickland errors could be drawn, with the result

that petitioners’ heavy burdens of proving Strickland deficiency and prejudice

would be lightened to the Cronic standard of “absence” and presumed prejudice.

Were the dissent’s position correct, the magnitude of Mayo’s windfall here would

be striking, since Mewis’s conduct, which did not rise to the level of deficient

representation under Strickland, would transmute into a habeas-demanding Cronic

error.

11

DeMOSS, Circuit Judge, dissenting:

The majority concludes, as did the state habeas court, that

John Mayo was not deprived of the assistance of counsel during the

post-trial, pre-appeal time for filing a motion for new trial,

despite the existence of affidavits from his attorneys attesting

that they in fact did not represent Mayo during this period.

Because I believe this conclusion to be unreasonable in light of

the evidence presented in the State habeas proceeding, I

respectfully dissent. Further, because I conclude that the post-

trial, pre-appeal time for filing a motion for new trial is a

“critical stage” in the proceedings, I would grant Mayo’s request

for habeas relief.

I. ASSISTANCE OF COUNSEL

The majority concludes that the state habeas court’s finding

that Mayo was not denied counsel during the post-trial, pre-appeal

time for filing a motion for new trial was “not legally or

factually unreasonable.”7 It reasons:

7

The state habeas court’s entire analysis consisted of one

sentence: “The applicant was not denied assistance of counsel

during the time for filing a motion for new trial, as Paul Mewis

remained attorney of record.”

Under Texas law, Mewis was bound to represent Mayo

until the trial court permitted him to withdraw or

appointed a new attorney. That Mewis was unaware

of his legal responsibility does not transform an

error into the “denial” or “absence” of counsel.

Mewis in fact represented his client post-trial by

taking steps to ensure the appointment of appellate

counsel.

I have no quarrel with the majority’s recognition that, as a

matter of Texas law, trial counsel remains under a duty to continue

representing his or her client until the court permits a

withdrawal.8 I am also cognizant that, under Texas law, “[w]hen a

motion for new trial is not filed in a case, the rebuttable

presumption is that it was considered by the appellant and

rejected,” and that the appellant carries the burden to “rebut the

presumption that the appellant was represented by counsel.” Oldham

v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998).

However, “being under a duty to represent” and actually

performing that duty are horses of a different color. Contrary to

8

This principle has been long recognized by the Texas Court

of Criminal Appeals, e.g., Harrison v. State, 516 S.W.2d 192, 192

(Tex. Crim. App. 1974), and is now codified in the Texas Code of

Criminal Procedure. See. TEX. CODE CRIM. PROC. art. 26.04(j)(2).

13

the majority’s view, I believe it indisputable in this case that

Mayo did rebut the presumption that he was represented by counsel

during the time for filing a motion for new trial. Mayo presented

two affidavits in support of his claim—one from Mewis, his trial

attorney, and one from Gray, his appointed appellate attorney.

Mewis’s affidavit stated:

On March 8, 1991, after Mr. Mayo was

sentenced, he said that he wanted to appeal.

Because I do not handle appeals, I told him to hire

another lawyer. I assumed that he would do so. I

took no further action on his case.

When I had not heard from another lawyer after

about three weeks, I went to see Mr. Mayo in jail

to determine whether he had hired counsel for the

appeal. He said that he could not afford to do so.

On April 4, 1991, three days before the time

expired to file a motion for new trial and notice

of appeal, I had Mr. Mayo brought to court. I

filed a notice of appeal and had him sign an

affidavit of indigency requesting the appointment

of counsel on appeal. The court appointed Will

Gray.

After Mr. Mayo was sentenced, I did not

provide him with additional legal assistance

because I did not intend to represent him on

appeal. For all practical purposes, he did not

have the assistance of counsel from the time that

he was sentenced until Mr. Gray learned of the

court appointment. As a result, no lawyer

investigated the possible grounds for a motion for

new trial.

Gray’s affidavit stated:

The coordinator of the 263rd District Court

customarily forwarded me a copy of the combination

order appointing counsel and pauper’s oath by

14

United States Mail. . . . If the order were mailed

on April 4, 1991, the earliest I could have

received it would have been April 6, 1991.

I was not able to speak with the Appellant or

file a motion for new trial by April 7, 1991.

In my view, these affidavits effectively rebut the presumption

that Mayo was represented by counsel during the time period for

filing a motion for new trial.9 Mayo claims he was without

representation; both Mayo’s attorneys have sworn under oath that

Mayo was without representation; and no motion for new trial was

actually filed. I cannot conceive what more conclusive proof we

could require Mayo to present to demonstrate he was in fact without

representation.

In Ward v. State, the Texas Court of Criminal Appeals

emphasized that the “continuity of representation from trial to

appeal is necessary to correct the ambiguity of representation

which all too often follows a conviction.” 740 S.W.2d 794, 797

(Tex. Crim. App. 1987). As the court explained, this is the

precise reason for the rule requiring counsel to formally withdraw

9

This evidence distinguishes this case from those where the

Texas Court of Criminal Appeals has rejected similar claims. See

Smith v. State, 17 S.W.3d 660, 663 (Tex. Crim. App. 2000) (“We

therefore assume, absent a showing in the record to the contrary,

that appellant was adequately counseled regarding his right to file

a motion for new trial.”) (emphasis added); Oldham, 977 S.W.2d at

363 (“There is nothing in the record to suggest that the attorney

did not discuss the merits of a motion for a new trial with the

appellant, which the appellant rejected.”).

15

from representation. Id. & n.6. By failing to preform his

statutory duty to formally withdraw from representing Mayo, Mewis

subjected Mayo to this “ambiguity of representation,” leaving Mayo

without an attorney to counsel him or investigate grounds for

filing a motion for new trial, and depriving the trial court of

notice that it was necessary to appoint new counsel.

Because both Mayo’s attorneys disclaim representing him during

the post-trial, pre-appeal period for filing a motion for new

trial, and because, in fact, no motion for new trial was filed, I

would hold that Mayo has demonstrated that he was without

representation during that period. The state habeas court’s

conclusion that Mayo was represented is “an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. § 2254(d)(2). Because the

majority holds otherwise, I respectfully dissent.

II. CRITICAL STAGE

As the majority notes, before prejudice in this case can be

presumed, Mayo must also show that the period he was without

counsel was a “critical stage” of the proceedings. United States

v. Cronic, 466 U.S. 648, 659 (1984). The state habeas courts did

not consider this issue. The panel majority likewise declined to

reach this issue because its conclusion that Mayo had

16

representation is dispositive of Mayo’s appeal. Nonetheless, the

majority opines, in dicta, that the time period for filing a motion

for new trial is not a critical period under Cronic. I disagree.

It is well settled that a defendant is constitutionally

entitled to the assistance of counsel at every critical stage of

the proceedings. E.g., id.; Michigan v. Jackson, 475 U.S. 625,

629-30 (1986); United States v. Wade, 388 U.S. 218, 224-25 (1967);

White v. Maryland, 373 U.S. 59, 60 (1963). Under the test

articulated by the Supreme Court, whether a particular time period

is a critical stage turns on an assessment of whether, at the time

in question, “the accused required aid in coping with legal

problems or assistance in meeting his adversary.” United State v.

Ash, 413 U.S. 300, 313 (1973). Stated another way, critical stages

of the prosecution include all parts of the prosecution implicating

substantial rights of the accused. Mempa v. Rhay, 389 U.S. 128,

134 (1967).

While the Supreme Court has not considered precisely this

issue, every federal circuit court to address the question has

concluded that the post-trial, pre-appeal time period for filing

a motion for new trial is a critical stage.10 See, e.g., Kitchen

10

As the majority notes, several federal courts have held

that there is no constitutional right to counsel for post-appeal

motions for new trial that are merely collateral attacks. See,

e.g., United States v. Tajeddini, 945 F.2d 458, 470 (1st Cir.

17

v. United States, 227 F.3d 1014, 1019 (7th Cir. 2000); Williams v.

Turpin, 87 F.3d 1204, 1210 n.5 (11th Cir. 1996); Robinson v.

Norris, 60 F.3d 457, 460 (8th Cir. 1995); Menefield v. Borg, 881

F.2d 696, 699 (9th Cir. 1989). And at least two other circuit

courts, without expressly mentioning motions for new trial, have

held that “the hiatus between the termination of trial and the

beginning of an appeal” is a critical stage. Baker v. Kaiser, 929

F.2d 1495,1499 (10th Cir. 1991); Nelson v. Peyton, 415 F.2d 1154,

1157 (4th Cir. 1969).

Each of these circuits looked to the effect of a motion for

new trial in the particular state at issue. Relying on principles

articulated by the Supreme Court, each court ultimately concluded

that this time period, under the relevant state law, qualified as

a critical stage. Thus, while I find these cases instructive, I

recognize that the proper focus here is on whether a defendant’s

substantive rights are affected during the post-trial, pre-appeal

time period for filing a motion for new trial under Texas law. See

Hamilton v. Alabama, 368 U.S. 52, 53 (1961).

In Texas, Rule 21 of the Texas Rules of Appellate Procedure

governs motions for new trial. Under this rule, a motion for new

1991), overruled in part on other grounds by Roe v. Flores-Ortega,

528 U.S. 470 (2000). However, it cites no cases, and I have found

none, holding that the post-trial, pre-appeal time period for

filing a motion for new trial is not a critical stage.

18

trial is a prerequisite to points raised on appeal “only when

necessary to adduce facts not in the record.” TEX. R. APP. PROC. 21.

The Texas Court of Criminal Appeals has never squarely

addressed whether the time period for filing a post-trial, pre-

appeal motion for new trial is a critical stage. It has held that

a defendant is entitled to counsel at a hearing on a motion for new

trial. Trevino v. State, 565 S.W.2d 938, 940 (Tex. Crim. App.

1978). However, the two times it has been asked to consider

whether the time for filing a motion for new trial was a critical

stage, it has not reached the question. Instead, both times it

concluded, as a threshold matter, that the defendant had failed to

demonstrate that he or she was actually without counsel during this

period. Smith v. State, 17 S.W.3d 660, 663 (Tex. Crim. App. 2000)

(“We hold that appellant has failed to overcome the presumption

that he was adequately represented by counsel during the time for

filing a motion for new trial.”); Oldham, 977 S.W.2d at 361 (“[T]he

appellant has failed to show that she was denied counsel during the

time limit for filing a motion for new trial.”).

Nonetheless, every Texas court of appeals to consider the

issue has concluded that, in Texas, the post-trial, pre-appeal time

for filing a motion for new trial is a “critical stage.” See,

e.g., Prudhomme v. State, 28 S.W.3d 114, 119 (Tex. App.—Texarkana

2000, order); Massingill v. State, 8 S.W.3d 733, 736 (Tex.

19

App.—Austin 1999, no pet.); Hanson v. State, 11 S.W.3d 285, 288

(Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); Burnett v,

State, 959 S.W.2d 652, 656 (Tex. App.—Houston [1st Dist.] 1997,

pet. ref’d). These courts all begin their analysis with the

recognition that whether a particular stage is critical turns on an

assessment of the usefulness of counsel to the accused at that

time. See Ash, 413 U.S. at 313; Upton v. State, 853 S.W.2d 548,

553 (Tex. Crim. App. 1993). And several of these courts thoroughly

explained their conclusion that, under Texas law, the time period

at issue in this case does affect the substantive rights of the

accused:

The importance of counsel to a defendant

immediately after conviction is recognized in both

case law and statute. As previously discussed, an

attorney’s responsibilities to his client do not

end with conviction. . . .

A defendant “must comply with a myriad of

procedural rules in order to perfect a meaningful

appeal.” While a motion for new trial is not a

prerequisite to appeal in every case, for a

meaningful appeal of some issues a defendant must

prepare, file, present, and obtain a hearing on a

proper motion for new trial in order to adduce

facts not otherwise shown by the record. It is no

more reasonable to require a defendant to perform

these tasks without the assistance of counsel than

it is to require him to represent himself at a new

trial hearing.

Massingill, 8 S.W.3d at 736 (citations omitted).

We find it to be indisputable that counsel can be

useful in coping with legal problems in preparing,

filing, presenting, and obtaining a hearing on a

20

proper motion for new trial, because the process of

preserving error with a motion for new trial is

governed by a myriad of rules and can be a rather

arduous task. . . . We also find it to be beyond

dispute that a motion for new trial can be an

extremely important tool for presenting an appeal.

A motion for new trial is generally not a

prerequisite to an appeal, but it can be

indispensable for a meaningful appeal of issues

which are reliant on facts outside the record.

. . . .

If a hearing on a motion for a new trial is a

critical stage [as held by the Texas Court of

Criminal Appeals in Trevino], then logic dictates

that the time period for filing the motion is also

a critical stage of the proceedings.

Prudhomme, 28 S.W.3d at 118-19 (citations and alterations omitted).

In sum, although the United States Supreme Court and the Texas

Court of Criminal Appeals have never considered this precise issue,

every federal circuit court and Texas state court to do so has

relied on settled Supreme Court precedent to hold this time period

is “critical.” I am persuaded by the Texas courts of appeals’

reasoning that, even though a motion for new trial is not always a

prerequisite to an appeal in Texas, it undoubtedly can affect a

defendant’s substantial rights. Accordingly, I would hold that the

post-trial, pre-appeal time period for filing a motion for new

trial is a critical stage of the proceedings during which a

defendant is constitutionally entitled to effective assistance of

counsel. Moreover, based on settled Supreme Court precedent,

because Mayo has shown he was denied the assistance of counsel

21

during a critical stage of his trial, he is relieved of the burden

to show specific prejudice. Cronic, 466 U.S. at 659 n.25 (“The

Court has uniformly found constitutional error without any showing

of prejudice when counsel was either totally absent, or prevented

from assisting the accused during a critical stage of the

proceedings.”); Prejudice is presumed.11 Id.

Finally, I disagree with the majority’s conclusion that

holding the post-trial, pre-appeal time period for filing a motion

for new trial to be a critical stage would represent an

impermissible extension of Cronic under Teague v. Lane. Stated

simply, Teague teaches us that a federal court reviewing a habeas

petition cannot apply a new constitutional rule of law in granting

relief to the defendant. 489 U.S. 288, 310 (1989). In Burdine v.

Johnson, we considered the scope of Cronic’s rule that mandates a

presumption of prejudice when a defendant’s counsel is absent

during a critical stage of the proceedings. 262 F.3d 336, 345 (5th

Cir. 2001). There our en banc Court stated that Cronic identified

the “fundamental idea” under the Sixth Amendment that a “defendant

must have the actual assistance of counsel at every critical stage

11

For this reason, the majority’s discussion about the merits

of Mayo’s motion for new trial should be irrelevant to our

analysis. Contrary to the majority’s suggestion, a defendant is

not required to prove prejudice as a prerequisite to his or her

entitlement to a presumption of prejudice.

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of a criminal proceeding for the court’s reliance on the fairness

of that proceeding to be justified.” Id.

Because I am convinced that the time period for filing a post-

trial, pre-appeal motion for new trial fits comfortably within

long-established Supreme Court precedent, I do not believe Mayo’s

claim is Teague barred. This is true even though the Supreme Court

has never expressly designated this particular stage as critical.

See Williams v. Taylor, 529 U.S. 362, 382 (2000) (“[A]s our

precedent interpreting Teague has demonstrated, rules of law may be

sufficiently clear for habeas purposes even when they are expressed

in terms of a generalized standard rather than as a bright-line

rule.”) (Stevens, J., concurring).

Teague teaches us that a rule is “new” only if it “breaks new

ground or imposes a new obligation on the States or the Federal

Government.” Teague, 489 U.S. at 301. Here, the Supreme Court has

clearly articulated standards for this Court to use in determining

whether a stage is critical. Simply applying those standards does

not amount to application of a “new rule.”

III. CONCLUSION

I would hold that the state courts’ conclusion that Mayo was

represented by counsel during the time for filing a post-trial,

pre-appeal motion for new trial is unreasonable in light of the

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evidence presented in the State court proceedings. Because the

majority holds otherwise, I respectfully dissent. Further, because

I believe that Mayo was without counsel during a critical stage of

the proceedings, I would reverse the district court’s judgment and

remand to the state district court to permit Mayo to file an out-

of-time motion for new trial under the state laws existing at the

time of his conviction.

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