Petition for Writ of Certiorari — Mayo v. Cockrell
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Supreme Oourt, U.S.
FILED
02 341 AUG 29 2002
OFFICE OF THE CLBAK
Jn The
Supreme Court of the Anited States
¢
JOHN MAYO,
Petitioner,
V.
JANIE COCKRELL, Director,
Texas Department of Criminal Justice,
Institutional Division,
—
Respondent.
¢
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
¢
PETITION FOR A WRIT OF CERTIORARI
¢
RANDOLPH L. SCHAFFER, JR.
Counsel of Record
1301 McKinney, Suite 3100
Houston, Texas 77010
(713) 951-9555
Counsel for Petitioner
John Mayo
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
Is a defendant constructively denied the assistance of
counsel during the time for filing a motion for new
trial in state court where trial counsel is not aware
that he is still counsel of record and provides no sub-
stantive representation?
Is the time for filing a motion for new trial a critical
stage of a criminal proceeding to which the right to
counsel attaches?
iio
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ......ccsscccsssseccsssssesssseceese j
TABLE OF AUTHORITIES ......cccssccccssecccsssececssseeeeee iv
OPINIONS BELOW o.eccccccscccssseccssscccsssecccsssseccsssecesse 1
JUREGDICTIONT oso scccecsoscosiccoesssnsesoescesscsosceserssorsessss 1
CONSTITUTIONAL PROVISIONS .....cccscsccsssseeesese 2 |
STATEMENT OF THE CASE ....ccsscccsssscccssssecessseceen 2 |
REASONS FOR GRANTING THE PETITION......... 5
I. THE COURT OF APPEALS ERRED IN
HOLDING THAT A DEFENDANT IS NOT
CONSTRUCTIVELY DENIED THE ASSIS-
TANCE OF COUNSEL DURING THE TIME :
FOR FILING A MOTION FOR NEW TRIAL
WHERE TRIAL COUNSEL IS NOT AWARE |
THAT HE IS STILL COUNSEL OF RECORD
AND PROVIDES NO SUBSTANTIVE REP-
EEE ACE MIET vivisencsvninsintnnnsuaciainbanincahitatesres 5
Il. THE COURT OF APPEALS ERRED IN |
SUGGESTING THAT THE TIME FOR FIL-
ING A MOTION FOR NEW TRIAL IS NOTA
CRITICAL STAGE OF A CRIMINAL PRO-
CEEDING TO WHICH THE RIGHT TO
COUR hs A ERATE on esssccnsesssscsscssenensosensees 9
CAV APITEINT biiniskssccinccnesnvalahemsaanieiisanvmnicicanuiaicne 13
iil
INDEX TO APPENDICES
Appendix A
Opinion of the United States Court of Appeals for
ERIS SE TES ENS One NE Te en ne TE TO App. 1
Appendix B
Memorandum and Order of the District Court....App. 22
Appendix C
Order of the United States Supreme Court deny-
IIIT ci ccibshcrhunbkdoaesbacberensiniinesssbnesansenevestewess App. 38
Appendix D
Order of the Texas Court of Criminal Appeals
denying habeas corpus relief ...................ccssseeeeeee App. 39
Appendix E
Findings of Fact, Conclusions of Law, and Order
Se eee App. 40
Appendix F
Fifth Circuit Order denying rehearing................. App. 45
¢
v
’
|
iv
TABLE OF AUTHORITIES
Page
CASES
Be WV. Comme, TH EAA, BIG Catt iacccecsccncncseciccscensesisvesecoses 5
Bell v. Hill, 190 F.3d 1089 (9th Cir. 1999), cert.
Te re SD ahve censutnsngsancesncenssacasetranss 12
Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en
banc), cert. denied, 122 S.Ct. 2347 (2002)............. 5, 8,12
Burnett v. State, 959 S.W.2d 652 (Tex. App. -
Houston [1st Dist.] 1997, pet. ref’d).............. cece 10
Evitts v. Lucey, 469 U.S. 387 (1985)....................sseeeees 11, 12
Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App.
I siccctainnstleaisaroshaceeanieleiolai Coached aiedcauanbaidakeastatinsledielicsdiaie tesa eaten daate 3
Ex parte Bronson, 254 S.W.2d 117 (Tex. Crim. App.
BD daccndicerchnnsseas teaensctamctonecons TSE ORT a PE 3
Frame v. State, 615 S.W.2d 766 (Tex. Crim. App.
WIE a ssccttsenteainehanasantiickotsiiehtcuaine tntaaadcspataddcahddsvanaiaonaan 7
Gideon v. Wainwright, 372 U.S. 335 (1963).............0... 10, 12
Hanson v. State, 11 S.W.3d 285 (Tex. App. — Hous-
toms [EGths TWiek.] TORS, BOG. POE GB) ncnccccceccnssceesscccvsssiseccesss 10
Johnston v. Mizell, 912 F.2d 172 (7th Cir. 1990),
cert. denied, 498 U.S. 1094 (1991).................cecceseceseeeees 10
Kitchen v. United States, 227 F.3d 1014 (7th Cir.
LTT IE Ae IS RT IST IO OOD TE Fe AMIE 10
Massingill v. State, 8 S.W3d 733 (Tex. App. -
BI Te div iat inictcintentinstnaesiciesens 10
Mempa v. Rhay, 389 U.S. 128 (1967) ............. eeeeeeeeeeees 11, 12
Menefield v. Borg, 881 F.2d 696 (9th Cir. 1989)................ 10
TABLE OF AUTHORITIES -— Continued
Page
Oldham v. State, 977 S.W.2d 354 (Tex. Crim. App.
1998), cert. denied, 525 U.S. 1181 (1999)... 10
Prudhomme v. State, 28 S.W.3d 114 (Tex. App. -
POR Tey BD I Danccccscccccacsentsnonisesivenstucepistconntonss 10
Robinson v. Norris, 60 F.3d 457 (8th Cir. 1995), cert.
ro” ME Be Bek TS: |; eee nem ne 10
State v. Holloway, 886 S.W.2d 482 (Tex. App. -
Houston [1st Dist.] 1994, pet. ref’d)............. eee 3,7
Strickland v. Washington, 466 U.S. 668 (1984)............... Pe
Teague v. Lane, 489 U.S. 288 (1989)..............cccccceeseeeeees 9,12
Thomas v. State, 796 S.W.2d 196 (Tex. Crim. App.
ee (a tcibassaaiacenabichpedeaaiibahihinna tid daiaamaae 3, 7
Trevino v. State, 565 S.W.2d 938 (Tex. Crim. App.
SIT iicccvstsictdcincchcsecasanestinddaeeaasnasieeabiemeaioiennanmmmaiad 10
United States v. Cronic, 466 U.S. 648 (1984).......... 5, 7, 8,9
CONSTITUTION
C7... COGUUNE. CINE, VE cisecncsnctsonisenienincissencneaeneanin 2,9
CE. COE, SRR, TEI cctcctniiacsmddaereinncaae 2
RULE
es Se a ee oi Se i as 11
1
PETITION FOR A WRIT OF CERTIORARI
John Mayo respectfully petitions for a writ of certio-
rari to review the judgment of the United States Court of
Appeals for the Fifth Circuit.
+
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Fifth Circuit affirming the denial of habeas corpus
relief is reported at 287 F.3d 336 (Appendix A). The Memo-
randum and Order of the district court is not reported
(Appendix B). The Order of the Supreme Court denying
certiorari in the state habeas corpus proceeding is re-
ported at 522 U.S. 998 (Appendix C). The Order of the
Texas Court of Criminal Appeals is not reported (Appendix
D). The Findings Of Fact, Conclusions Of Law, and Order
of the state district court is not reported (Appendix E). The
Order of the Fifth Circuit denying rehearing is not re-
ported (Appendix F).
¢
JURISDICTION
The Fifth Circuit affirmed the district court’s denial of
habeas corpus relief on March 28, 2002, and denied
rehearing on June 18, 2002. This petition is filed within 90
days of the latter date. This Court has jurisdiction under
28 U.S.C. § 1254(1). Petitioner initially invoked federal
jurisdiction under 28 U.S.C. § 2254.
,*
¥
2
CONSTITUTIONAL PROVISIONS
The Sixth Amendment to the United States Constitu-
tion provides, in pertinent part, “In all criminal prosecu-
tions, the accused shall enjoy the right ... to have the
Assistance of Counsel for his defence.”
The Fourteenth Amendment to the United States
Constitution provides, in pertinent part, “No State shall
... deprive any person of liberty . . . without due process of
law....”
¢
STATEMENT OF THE CASE
Petitioner, charged with aggravated sexual assault
and aggravated kidnapping, was represented at trial by
retained counsel, Paul Mewis, assisted by Cynthia Henley.
Unbeknownst to the court and counsel, one juror had a
final conviction for misdemeanor theft, which was discov-
erable as a public record in the Harris County Courthouse.
Had the juror disclosed the theft conviction on her juror
questionnaire, when she was questioned in the central
jury room, or during the voir dire examination, she would
have been released, as she was absolutely disqualified
from jury service under Texas law.
After petitioner was convicted and sentenced, he told
Mewis that he wanted to appeal. Mewis’ contract provided
that his representation of petitioner would terminate with
the jury’s verdict. He told petitioner to hire another lawyer
and he did no further legal work. Specifically, he did not
investigate the grounds for a new trial, including whether
any juror had a conviction that disqualified her from jury
service. He did not move to withdraw as counsel because
3
he was unaware that Texas law required him to continue
to represent petitioner following the sentencing until the
court permitted him to withdraw or substituted counsel in
his place. See Ex parte Axel, 757 S.W.2d 369, 373-74 (Tex.
Crim. App. 1988).
Mewis visited petitioner in jail about three weeks
later and learned that he could not afford to hire counsel.
Three days before the time expired to file a motion for new
trial and notice of appeal, Mewis arranged for petitioner to
be brought to court to file a pro se notice of appeal, sign an
affidavit of indigency, and request the appointment of
appellate counsel. That same day, the court appointed Will
Gray and mailed him notice of the appointment. Gray did
not learn of the appointment until the time had expired to
file a motion for new trial.
Petitioner did not discover the juror’s theft conviction
in time to file a motion for new trial and preserve the issue
for appeal. Had petitioner raised the juror disqualification
issue in a motion for new trial and proven that the juror
had a theft conviction, the trial court would have been
required to grant a new trial or the conviction would have
been reversed on appeal. See 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, pet.
ref’d). Texas law does not authorize habeas corpus relief
on the ground that a disqualified juror served. Thomas,
796 S.W.2d at 199; Ex parte Bronson, 254 S.W.2d 117, 121
(Tex. Crim. App. 1952).
Petitioner’s conviction was affirmed on appeal. Mayo
v. State, 1992 WL 91218 (Tex. App. — Houston [14th Dist.]
1992, pet. ref’d). He filed a state habeas corpus petition in
4
1997 alleging that he was constructively denied the assis-
tance of counsel during the time for filing a motion for new
trial. The state district court, after a hearing, concluded that
he “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 habeas corpus relief on the findings of the district
court. Ex parte Mayo, writ no. 35,090-01 (Tex. Crim. App.
1997). The United States Supreme Court denied certiorari.
Mayo v. Texas, 522 U.S. 998 (1997). The federal district
court and a divided panel of the Fifth Circuit held that the
state courts’ conclusion that petitioner had the assistance
of counsel during the time for filing a motion for new trial
was not an unreasonable application of federal law, as
established by the Supreme Court, nor was it based on an
unreasonable determination of the facts in light of the
evidence presented. The panel majority further suggested
that even if petitioner was denied the assistance of coun-
sel, the time for filing a motion for new trial is not a
critical stage of a criminal proceeding to which the right to
counsel attaches.
eo ne emgnnee seeming :
-
——————— s
5
REASONS FOR GRANTING THE PETITION
I.
THE COURT OF APPEALS ERRED IN HOLDING
THAT A DEFENDANT IS NOT CONSTRUCTIVELY
DENIED THE ASSISTANCE OF COUNSEL DUR-
ING THE TIME FOR FILING A MOTION FOR NEW
TRIAL WHERE TRIAL COUNSEL IS NOT AWARE
THAT HE IS STILL COUNSEL OF RECORD AND
PROVIDES NO SUBSTANTIVE REPRESENTATION.
Where counsel is absent at a critical stage of a crimi-
nal proceeding, the defendant is constructively denied the
assistance of counsel, and prejudice is presumed. United
States v. Cronic, 466 U.S. 648, 659 (1984): Bell v. Cone, 122
S.Ct. 1843, 1850 (2002). The en banc Fifth Circuit recently
held that a defendant was constructively denied the
assistance of counsel where his lawyer slept periodically
during the guilt phase of his trial. Burdine v. Johnson, 262
F.3d 336, 341 (5th Cir. 2001) (en banc), cert. denied, 122
S.Ct. 2347 (2002). With only a nod to Burdine, the panel
majority held+that the state courts did not unreasonably
apply clearly established federal law or make unreasonable
findings of fact in concluding that Mewis functioned as
counsel during the time for filing-a motion for new trial.’
This Court should grant certiorari to determine whether a
lawyer, who does not realize he is still representing the
defendant and provides no substantive representation
‘ Judge DeMoss, in dissent, would have held 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 evidence presented in the State court proceedings.” Mayo,
287 F.3d at 343.
6
during the time for filing a motion for new trial, has
rendered the “assistance” of counsel.
The majority concluded that Mewis’ ignorance of his
legal duty to continue to represent petitioner after the
sentencing did not “transform an error into the ‘denial’ or
‘absence’ of counsel [as] Mewis in fact represented his
client post-trial by taking steps to ensure the appointment
of appellate counsel;” thus, petitioner’s right to a first
appeal was not undermined. Mayo, 287 F.3d at 340, and
n.4. This holding implicates the fundamental question of
what constitutes the assistance of counsel.
Mewis did not provide post-trial “assistance” of counsel
in any meaningful sense of the term. Three days before the
deadline for filing a motion for new trial and notice of appeal,
he notified the trial court that he would not represent
petitioner on appeal, that petitioner was indigent, and that
the court needed to appoint counsel. By then, it was too late
for any lawyer to investigate non-record issues that had to be
raised in a motion for new trial or forever forfeited.
What is significant for present purposes is that Mewis
was not merely unaware of his legal duty to investigate
the grounds for a new trial; he was unaware that he was
still petitioner’s lawyer. In essence, he was “absent” during
this stage of the proceedings. Notifying the court that he
would not represent petitioner and requesting the ap-
pointment of appellate counsel did not constitute substan-
tive representation; from his perspective, he was merely
helping a former client obtain representation in the future.
The majority’s conclusion that Mewis’ inertia did not
undermine petitioner’s right to appeal cannot withstand
scrutiny. The 30-day period following the sentencing was
petitioner’s only opportunity to raise non-record issues
Bh a ae
such as juror disqualification. Without the assistance of
counsel, he could not preserve this issue for appeal.
The majority veered off course by focusing on whether
Mewis could have questioned the veniremembers about
their prior convictions during the voir dire examination or
investigated same during recesses at the trial. Mayo, 287
F.3d at 341.” Assuming arguendo that Mewis could have
done so, that does not resolve whether petitioner had the
assistance of counsel during the time for filing a motion for
new trial.°
The majority applied the wrong standard of review in
concluding that because petitioner could not establish
ineffective assistance of counsel under Strickland uv.
Washington, 466 U.S. 668 (1984), he could not establish
the constructive denial of counsel under United States v.
Cronic, supra. Mayo, 287 F.3d at 341. The majority ob-
served, “That Mayo’s [sic] conduct did not violate Strick-
land reinforces the conclusion that no basis for a
presumption of prejudice — the prerequisite of a denial of
* An inquiry into a veniremember’s criminal record during the voir
dire examination is unlikely to produce new information. A veniremember
who lied in the juror questionnaire and*to the presiding judge in the
central jury room is not likely to disclose a conviction to the lawyers
during the voir dire examination. Furthermore, once the testimony
starts, counsel should focus on trying the case, not on investigating
ancillary matters that he can investigate after the trial. Thus, the
majority erred in concluding that there was “no necessary connection
between Mewis’ alleged oversight and the post-trial period.” Jd. at 340.
* Competent appellate counsel routinely conducts this type of post-
trial investigation during the time for filing a motion for new tral,
occasionally with a favorable result. See Frame v. State, 615 S.W.2d 766
(Tex. Crim. App. 1981); Thomas v. State, supra; State v. Holloway,
supra.
8
counsel under Cronic — exists here.” Jd. at n.5. That a
claim would fail under Strickland has never been and is
not a reason for it to fail under Cronic. Otherwise, the
Fifth Circuit would have denied relief in Burdine, where
the defendant could not show that he was harmed by
counsel’s periodic naps during the trial.
The appropriate focus should be on what counsel
thought and did during the time for filing a motion for new
trial, not on what he could have done during the voir dire
examination and the trial. Petitioner does not contend
that Mewis’ trial performance was deficient; rather,
petitioner contends that Mewis was “absent” as counsel
during the time for filing a motion for new trial because he
did not know that he still represented petitioner. The
majority addressed a Strickland issue — whether it was
deficient performance not to question the veniremembers
about their criminal records or investigate same during
the trial — instead of a Cronic issue — whether petitioner
was denied the assistance of counsel where counsel of
record did not know that he still represented petitioner
and failed to perform the basic functions of post-trial, pre-
appeal counsel. In short, because Cronic applied to Bur-
dine — where counsel knew he represented the defendant,
was present at the trial, but slept periodically — then it
must also apply to petitioner — whose counsel did not know
he was counsel of record and failed to provide any sub-
stantive representation.
The dissent correctly observed that petitioner conclu-
sively proved in the state habeas corpus proceeding that
he was not represented by counsel during the time for
filing a motion for new trial. Mayo, 287 F.3d at 342-43. The
dissent would have held that the state courts’ conclusion to
the contrary was unreasonable in light of the evidence
Se
9
presented. This Court should grant certiorari to determine
whether a lawyer who is unaware that he is still counsel of
record and provides no substantive representation during
the time for filing a motion for new trial has rendered the
“assistance” of counsel within the meaning of the Sixth
Amendment.
II.
THE COURT OF APPEALS ERRED IN SUGGEST-
ING THAT THE TIME FOR FILING A MOTION
FOR NEW TRIAL IS NOT A CRITICAL STAGE OF A
CRIMINAL PROCEEDING TO WHICH THE RIGHT
TO COUNSEL ATTACHES.
Petitioner’s contention that he was denied the assis-
tance of counsel during the time for filing a motion for new
trial presupposes that he had a right to counsel during
that stage of the proceedings. The majority avoided an-
swering this question by concluding that Mewis did
provide the assistance of counsel during the time for filing
a motion for new trial. Mayo, 287 F.3d at 339-40. However,
the majority further suggested in dicta that this time
frame is not a critical stage, and that application of Cronic
would constitute a new rule under Teague v. Lane, 489
U.S. 288 (1989). Id. at n.3. The former conclusion conflicts
_ in principle with well-established Supreme Court prece-
dent, not to mention every federal circuit court and Texas
court of appeals decision regarding this issue. The latter
conclusion is incorrect under Teague, and conflicts with
federal circuit authority. Should this Court grant certiorari
to decide whether petitioner was denied the assistance of
counsel, it must also decide whether he was entitled to
that assistance during the time for filing a motion for new
trial.
a
10
The Texas Court of Criminal Appeals has expressly
reserved whether the time for filing a motion for new trial
is a critical stage of a criminal proceeding to which the
right to counsel attaches. Oldham v. State, 977 S.W.2d
354, 360-61 (Tex. Crim. App. 1998), cert. denied, 525 U.S.
1181 (1999). However, every Texas court of appeals that
has decided the issue has held that it is a critical stage.
See Prudhomme v. State, 28 S.W.3d 114 (Tex. App. - :
Texarkana 2000, no pet.); Hanson v. State, 11 S.W.3d 285
(Tex. App. — Houston [14th Dist.] 1999, pet. ref’d); Mass-
ingill v. State, 8 S.W.3d 733 (Tex. App. — Austin 1999, no
pet.); Burnett v. State, 959 S.W.2d 652 (Tex. App. — Hous-
ton [1st Dist.] 1997, pet. ref’d).“ Every federal circuit court
to decide this issue has agreed. See Robinson v. Norris, 60
F.3d 457 (8th Cir. 1995), cert. denied, 517 U.S. 1115 (1996);
Kitchen v. United States, 227 F.3d 1014 (7th Cir. 2000); cf.
Johnston v. Mizell, 912 F.2d 172 (7th Cir. 1990), cert.
denied, 498 U.S. 1094 (1991) (interpreting Illinois law);
Menefield v. Borg, 881 F.2d 696 (9th Cir. 1989) (interpret-
ing California law). The majority cited no case holding
that this time frame is not a critical stage.
The principles underlying well-settled Supreme Court
precedent compel the conclusion that the time for filing a
motion for new trial is a critical stage. A defendant is
entitled to counsel at every stage of a criminal proceeding
where his substantial rights are involved. Gideon v.
Wainwright, 372 U.S. 335, 344-45 (1963). The right to
‘ The rationale of these cases is that because the hearing on a
motion for new trial is a critical stage pursuant to Trevino v. State, 565
S.W.2d 938, 940 (Tex. Crim. App. 1978), logic dictates that the time for
filing the motion is also a critical stage.
11
counsel attaches to all proceedings at which the failure
to pursue strategies or remedies can result in the loss
of significant rights. Mempa v. Rhay, 389 U.S. 128, 135
(1967). A defendant has a constitutional right to counsel
during his first appeal. Evitts v. Lucey, 469 U.S. 387 (1985). A
motion for new trial is part of the appellate process and is
governed by Texas Rule of Appellate Procedure 21. It is a
prerequisite to presenting a point of error on appeal where
it is necessary to adduce facts not already in the record.
TEX. R. APP. Proc. 21.2. It is the procedural vehicle to
raise issues such as jury misconduct or juror disqualifica-
tion, which must be investigated following the conviction
and developed at a hearing. TEx. R. App. PRoc. 21.3. The
defendant must file the motion within 30 days of the
sentencing. TEX. R. App. Proc. 21.4. He must present the
motion to the trial court within 10 days of filing it and
must obtain a ruling within 75 days of the sentencing.
TEX. R. APP. PROC. 21.6.
Petitioner was confined in jail following his conviction.
Clearly, he réquired the assistance of counsel to investi-
gate whether there were grounds for a new trial and, if so,
to prepare a motion, timely file it, and obtain a hearing.
Supreme Court precedent compels the conclusion that this
time frame is a critical stage of a criminal proceeding that
requires the assistance of counsel.”
* The majority suggested in dicta that this issue “has no clearcut
practical answer” and that counsel’s only duty following the sentencing
is to file a timely notice of appeal. Mayo, 287 F.3d at 339, n.3. This is an
extremely narrow view of counsel’s post-trial obligations. The 30-day
period following the sentencing is the only time to investigate jury
misconduct and newly discovered evidence, and the logical time to
investigate juror disqualification.
ee
12
The majority also would have held that the Teague
doctrine bars relief because applying Cronic to petitioner’s
case would establish a new rule of federal law. Mayo, 287
F.3d at 339, n.3. The majority misinterpreted Teague. A
case announces a “new rule” within the meaning of Teague
if the result was not dictated by precedent existing at the
time the defendant’s conviction became final on appeal.
Teague, 489 U.S. at 301. Petitioner’s case does not break
new ground, as he relies on Gideon, Mempa, and Evitts,
well-settled Supreme Court precedent establishing that a
defendant is entitled to counsel at every stage of a crimi-
nal proceeding where his substantial rights are involved,
from arrest through the first appeal. A motion for new trial
is part of the appellate process in Texas. When petitioner’s
conviction became final in 1992, Supreme Court precedent
dictated that he was entitled to counsel during the time for
filing a motion for new trial. Thus, he does not seek the
adoption of a new rule of federal law. Bell v. Hill, 190 F.3d
1089, 1090-93 (9th Cir. 1999), cert. denied, 529 U.S. 1004
(2000) (Teague does not preclude federal habeas corpus
relief, as Supreme Court precedent compelled conclusion
that defendant entitled to counsel during time for filing
motion for new trial); cf. Burdine, 262 F.3d at 341-45
(Teague does not bar federal habeas corpus relief on
“sleeping counsel” claim).
This issue is not ripe unless this Court holds that
petitioner was denied the assistance of counsel during the
time for filing a motion for new trial. In that event, the
Court must consider this issue or, at the very least, re-
mand to the Fifth Circuit for further consideration.
ry
v
CONCLUSION
Petitioner requests that this Court grant the petition
for a writ of certiorari.
13
Respectfully submitted,
RANDOLPH L. SCHAFFER, JR.
Counsel of Record
1301 McKinney, Suite 3100
Houston, Texas 77010
(713) 951-9555
(713) 951-9854 (facsimile)
Attorney for Petitioner
John Mayo
App. 1
APPENDIX A
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
(Filed Mar. 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 estab-
lished Federal Law, as determined by the Supreme Court
a i al i
App. 2
of the United States ... ,” or was based on an unreason-
able 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:
Jacquelyn Barnes, a veniremember for Mayo’s trial,
represented on her juror questionnaire that she had never
béen 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. 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
' The state court held a hearing on July 24, 1997, and prepared its
findings of fact and conclusions of law based on testimony and docu-
mentary evidence.
App. 3
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 chal-
lenged 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 termi-
nate 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.
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).
App. 4
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 request-
ing 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 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, how-
ever, 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
App. 5
denied relief under § 2254, and this appeal followed after a
COA was granted.
DISCUSSION
This case turns on whether the state courts’ conclu-
sion 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 #f the evidence pre-
sented. 28 U.S.C. § 2254(d).
Mayo’s argument begins with the proposition that
criminal defendants are constitutionally entitled to effec-
tive assistance of 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 necessar-
ily follow from its premises. Few precedents exist explain-
ing 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 in-
stance, expressly withheld ruling on that issue, although
App. 6
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
(lst Cir. 1991), abrogated on other grounds by Roe uv.
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.” _
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 unneces-
sary, in resolving this appeal, to render such a broad
* 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.
App. 7
decision.’ Instead, we focus on the state court finding that
Mayo was not denied counsel during the post-trial phase.
* 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 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 actugl 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
(Continued on following page)
App. 8
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 ap-
pointed 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 appoint-
ment 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
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.
* 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 perform-
ance 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 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).
App. 9
obtain a mistrial or new trial. For two reasons, this omis-
sion 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 be-
tween Mewis’s alleged oversight and the post-trial period.
This lack of 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 Strick-
land 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 question-
naires 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
App. 10
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.’
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 attor-
ney could reasonably rely on Harris County’s juror pre-
screening procedures. The state courts did not unreasona-
bly apply clearly established Federal law or reach unrea-
sonable findings of fact in denying Mayo relief from his
conviction.°
* That Mayo’s conduct did not violate Strickland reinforces the
conclusion that no basis for a presumption of prejudice — the prerequi-
site of a denial of counsel under Cronic — exists here.
* 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.
App. 11
The judgment of the district court is AFFIRMED.
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.” It reasons:
Under Texas law, Mewis was bound to represent
Mayo until the trial court permitted him to with-
draw or appointed a new attorney. That Mewis
was unaware of his legal responsibility does not
* 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.”
aa i a ey
App. 12
transform an error into the “denial” or “absence”
of counsel. Mewis in fact represented his client
post-trial by taking steps to ensure the appoint-
ment 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.’ I am also cognizant that,
under Texas law, “[w]Jhen a motion for new trial is not filed
in a case, the rebuttable presumption is that it was con-
sidered 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 the majority's view, I believe it indisput-
able 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 sen-
tenced, he said that he wanted to appeal. Be-
cause I do not handle appeals, I told him to hire
* 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).
App. 13
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 pro-
vide him with additional legal assistance because
I did not intend to represent him on appeal. For
all practical purposes, he did not have the assis-
tance of counsel from the time that he was sen-
tenced 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 combina-
tion order appointing counsel and pauper’s oath
by 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.
App. 14
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.*° Mayo
claims he was without representation; both Mayo’s attor-
neys 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 Ap-
peals 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 from representation. Id. &
n.6. By failing to perform his statutory duty to formally
withdraw from representing Mayo, Mewis subjected Mayo
to this “ambiguity of representation,” leaving Mayo with-
out 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.
* 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.”).
I
ee pn
ae rm
App. 15
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 demon-
strated 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 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 States v.
App. 16
Ash, 413 U.S. 300, 313 (1973). Stated another way, critical
stages of the prosecution include all parts of the prosecu-
tion 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 ques-
tion has concluded that the post-trial, pre-appeal time
period for filing a motion for new trial is a critical stage.‘
See, e.g., Kitchen 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
~* 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.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. ~ >
App. 17
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 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 (“[TJhe
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,
App. 18
8 S.W.3d 733, 736 (Tex. 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 318; Upton v.
State, 853 S.W.2d 548, 553 (Tex. Crim. App. 1993). And
several of these courts thoroughly explained their conclu-
sion 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 imme-
diately after conviction is recognized in both case
law and statute. As previously discussed, an at-
torney’s responsibilities to his client do not end
with conviction. ...
A defendant “must comply with a myriad of pro-
cedural 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 mean-
ingful 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 per-
form these tasks without the assistance of coun-
sel 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 prepar-
ing, filing, presenting, and obtaining a hearing
on a proper motion for new trial, because the
App. 19
~
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 indispen-
sable 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 criti-
cal 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 altera-
tions 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 Su-
preme Court precedent to hold this time period is “criti-
cal.” 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 undoubt-
edly can affect a defendant’s substantial rights. Accord-
ingly, 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 constitution-
ally entitled to effective assistance of counsel. Moreover,
based on settled Supreme Court precedent, because Mayo
has shown he was denied the assistance of counsel during
a critical stage of his trial, he is relieved of the burden to
App. 20
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.’ 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 uv.
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 defen-
dant. 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 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
* 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 pre-
sumption of prejudice.
App. 21
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 —
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.”
Ill. 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 unreason-
able in light of the 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 proceed-
ings, 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.
App. 22
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN MAYO, §
Petitioner, :
VS. § CIVIL ACTION
GARY L. JOHNSON, § NO. H-97-3530
DIRECTOR, TEXAS §
DFPARTMENT OF :
CRIMINAL JUSTICE, §&
INSTITUTIONAL §
DIVISION,
Respondent §
MEMORANDUM AND ORDER
(Filed Sep. 30, 1999)
Pending before the Court in the above referenced
petition for federal writ of habeas corpus, pursuant to 28
U.S.C. § 2254, are cross motions for summary judgment
filed by Respondent Gary L. Johnson (instrument #6,
amended motion instrument #8) and by Petitioner John
May (#7).
Petitioner was convicted of aggravated kidnapping
and aggravated sexual assault on March 8, 1991. State v.
John Mayo, Cause No. 530604, 268rd District Court of
Harris County Texas. He was sentenced to a twenty-year
prison term and a $10,000.00 fine on the kidnapping
charge, and to a fifty-year prison term and a $10,000.00
fine on the assault charge. He filed a direct appeal, and his
conviction was affirmed. Mayo v. State, No. A14-91-325-
App. 23
CR. He then filed a petition for discretionary review,
which was refused by the Texas Court of Criminal Ap-
peals. He has exhausted state remedies in a state habeas
proceeding on the single ground raised in his federal
petition. Following an evidentiary hearing, the trial court
issued findings of fact and conclusions of law and recom-
mended denial of collateral relief, and the Texas Court of
Criminal Appeals denied relief without written order on
September 17, 1997, with a request for rehearing subse-
quently denied on October 8, 1997. Ex parte Mayo, No.
35,090-01 (Tex. Crim. App. 1997). The instant application
for federal habeas relief was timely filed on October 23,
1997.
Petitioner’s sole claim for federal habeas relief is that
he was constructively denied assistance of counsel’ during
* “[A] critical question in assessing a Sixth Amendment right to
counsel claim is whether the accused asserts that he received incompe-
tent counsel, or none at all.” Childress v. Johnson, 103 F.3d 1221, 1230
(5th Cir. 1997). “In certain Sixth Amendment contexts, prejudice is
presumed.” Strickland v. Washington, 466 U.S. 668, 692 (1984). “Actual
or constructive denial of the assistance of counsel altogether,” whether
at trial level or in a first appeal as of right, constitutes prejudice per se
and is constitutional error and invalidates a defendant’s conviction.
Penson v. Ohio, 488 U.S. 75, 88 (1988); United States v. Cronic, 466 U.S.
648, 659 (1984) (holding that actual or constructive denial of counsel at
a critical stage of a criminal trial constitutes prejudice per se and
invalidates a defendant’s conviction). The Supreme Court has explicitly
noted that it “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
proceeding.” United States v. Cronic, 466 U.S. 648, 662 n.25 (1984).
Nevertheless, “[a]part from [certain limited] circumstances ... there is
generally no basis for finding a Sixth Amendment violation unless the
accused can show how specific errors of counsel undermined the
reliability of the finding of guilt.” Jd. Examples of actual denials of
(Continued on following page)
App. 24
a critical stage of the proceedings, i.e., the time for filing a
motion for new trial. This Court finds that he has ex-
hausted his state court remedies.
The standard of review under § 104(3) of the Anti-
terrorism and Effective Death Penalty Act of 1996
counsel are the court’s failure to grant a defendant’s request for
appointment of counsel] or allowing counsel to withdraw without
appointing a new attorney. Coleman v. Thompson, 501 U.S. 722, 742
(1991); Penson, 488 U.S. at 81-84. Constructive denials of counsel would
include an attorney's total or near total derelictions in representation.
See, e.g., Cronic, 466 U.S. at 659-60 (prejudice is presumed if counsel
“fails to subject prosecution’s case to meaningful adversarial testing” or
is absent at a critical stage of the proceedings); Lozada v. Deeds, 498
U.S. 430, 432 (1991) (presuming prejudice when counsel failed to file
notice of appeal); Strickland, 466 U.S. at 692 (prejudice presumed if
counsel is burdened by an actual conflict of interest because “it is
difficult to measure the precise effect on the defense of representation
corrupted by conflicting interests”); Tippins v. Walker, 77 F.3d 682, 686
(2d Cir. 1996) (prejudice presumed where counsel slept through trial);
Castellanos v. United States, 26 F.3d 717, 720 (7th Cir. 1994) (prejudice
presumed where counsel failed to effectuate defendant’s instruction to
file a notice of appeal); Tucker v. Day, 969 F.2d 155, 159 (5th Cir. 1992)
(prejudice presumed where defense counsel sat in silence throughout
proceeding and acted as a “mere spectator”); Sharp v. Puckett, 930 F.2d
450, 451-52 (5th Cir. 1991) (standard Strickland analysis (determining
if counsel’s performance was deficient and if that deficiency prejudiced
the defendant) is not applied when there has been actual or construc-
tive complete denial of any assistance of appellate counsel); Siverson v.
O’Leary, 764 F.2d 1208, 1217 (7th Cir. 1985) (prejudice presumed where
defense counsel was not in the courtroom at a critical stage of the trial).
The Fifth Circuit has indicated that “A constructive denial of
counsel occurs ... in only a very narrow spectrum of cases where the
circumstances leading to counsel’s ineffectiveness are so egregious that
the defendant was in effect denied any meaningful assistance at all.”
Childress, 103 F.3d at 1229. Distinguishing “shoddy representation
from no representation at all,” the Fifth Circuit presumes prejudice
only when the defendant shows that counsel “was not merely incompe-
tent but inert.” Jd. at 103 F.3d at 1228-29.
App. 25
(“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996),
codified at 28 U.S.C. § 2254(d), enacted on April 24, 1996,
applies here. Under the AEDPA, 28 U.S.C. § 2254(d) as
amended, which applies a “reasonableness” inquiry’ to
state court decisions,
An application for a writ of habeas corpus on be-
half of a person in custody pursuant to the judg-
ment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the ad-
judication of the claim —
(1) resulted in a decision that was
contrary to, or involved an unreason-
able application of, clearly established
Federal law, as determined by the Su-
preme Court of the United States; or
(2) resulted in a decision that was
based on an unreasonable determina-
tion of the facts in light of the evidence
presented in the State Court proceed-
ing.
There has been no allegation that the state habeas court
made an unreasonable determination of the facts and
therefore section 2254(d)(1) governs here. Thus to prevail
on his application for federal writ of habeas corpus, Peti-
tioner must demonstrate that the state courts’ resolution
of his claim was “contrary to” or “involved an unreasonable
application of” Supreme Court precedent.
? Mata v. Johnaon, 99 F.3d 1261, 1267, vacated in part on rehear-
ing, 105 F.3d 209 (5th Cir. 1997).
App. 26
Thus under subsection (d)(1), the federal court may
grant habeas relief only where a state court’s decision is
contrary to “clearly established Supreme Court precedent.
Drinkard v. Johnson, 97 F.3d 751, 768 (5th Cir. 1996),
cert. denied, 117 S. Ct. 1114 (1997). “In effect, a reason-
able, good faith application of Supreme Court precedent
will immunize the state court conviction from federal
habeas reversal, even if federal courts later reject that
view of the applicable precedent.” Mata, 99 F.3d at 1268.
Under subsection (d)(2), federal habeas relief is only
available where state court determinations of law or of
mixed questions of law and fact are “unreasonable.” See,
e.g., Carter v. Johnson, 110 F.3d 1098, 1103 (5th Cir.
1997). The Fifth Circuit has defined unreasonable applica-
tion of law to facts as follows:
[W]e hold that an application of law to facts is
unreasonable only when it can be said that rea-
sonable jurists considering the question would be
of one view that-the state court ruling was incor-
rect. In other words, we can grant habeas relief
only if a state court decision is so clearly incor-
rect that it would not be debatable among rea-
sonable jurists.
Mata, 99 F.3d at 1266, quoting Drinkard, 97 F.3d at 769.
Thus the “unreasonable application” standard does not
consist of mere disagreement with a state court decision,
because such would result in de novo review. Carter, 110
F.3d 1103 n.4. The Fifth Circuit has characterized the
standard as “a somewhat hybrid standard of review that is
probably most closely akin to the traditional ‘clearly
erroneous standard that to any other established stan-
dard of review.” Mata, 99 F.3d at 1267. Also, under sub-
section (d)(2), state court factual decisions may be
|
.
ee eee ae ee
App. 27
overturned on habeas review only to the extent that they
are unreasonable in light of the evidence presented to the
state court in prior proceedings. 28 U.S.C. § 2254(d)(2);
Carter, 110 F.3d at 1104. Jd. at 767. Furthermore, state
court findings of fact are presumed to be correct under the
amended 28 U.S.C. § 2254(e)(1) and may be rebutted by a
petitioner only by clear and convincing evidence. Carter v.
Johnson, 110 F.3d 1098, 1104, 1110 (5th Cir. 1997).
Thus in conjunction with § 2254(d), § 2254(e) produces
the following effects. If the state courts reasonably deter-
mined questions of law, mixed questions of law and fact,
and questions of fact, based upon the facts that were
presented to them, no federal habeas relief is authorized
and no further analysis of the claim is required. If the
state courts reached an unreasonable legal determination,
the federal court may review the legal issue and any
mixed questions de novo. If the state courts made an
unreasonable factual determination in view of the facts
presented to them, the petitioner must show by clear and
convincing evidence that the factual finding was incorrect.
Still in effect for foreclosure of federal habeas relief
inter alia is the Teague v. Lane bar to retroactive applica-
tion of the new constitutional rule of law of criminal
procedure to a conviction that was final before the rule
was announced. Teague v. Lane, 489 U.S. 288 (1989)
(holding that new constitutional rules of criminal proce-
dure will not be applicable to those cases which have
become final before new rules are announced).
Summary judgment is appropriate where “the plead-
ings, depositions, answers to interrogatories, and admis-
sions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that
App. 28
the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c), Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986). The burden of proof then shifts to the
nonmovant to show that summary judgment is not inap-
propriate. Fields v. City of South Houston, 922 F.2d 1183,
1187 (5th Cir. 1991).
The key facts here, as found by the state habeas
district court, are as follows. Ex. A to Petition. Paul Mewis
(“Mewis”), assisted by Cynthia Hinley, represented Peti-
tioner through his trial in Cause Number 530604 in the
263d District Court of Harris County, Texas. From the
beginning, Mewis’s contract with Petitioner provided that
Mewis’ representation would extend only up to the jury
verdict and would not cover any appeal. After Petitioner
was convicted on March 8, 1991, Petitioner stated that he
wished to appeal. Mewis advised Petitioner that Petitioner
should obtain new counsel for appeal, and Mewis took no
further action on the case, did not investigate grounds for
a motion for new trial, and assumed Petitioner would find
new representation. Mewis did not move to withdraw and
was not aware that Texas law required him to continue to
represent Petitioner on appeal until the court allowed him
to withdraw or substituted other counsel in his place.
When Mewis had not received a notice of the appearance
of any appellate counsel by April 4, 1991, three days before
expiration of the deadline for filing a motion for new trial,
Mewis had Mayo brought to court to file a notice of appeal
and sign an affidavit of indigency requesting appointment
of appellate counsel. The Court appointed Will Gray
(“Gray”) to represent Petitioner and mailed Gray notice of
appointment. Gray, however, did not receive notice until
after the deadline expired, and therefore no motion for
new trial was filed.
App. 29
The basis for a motion for new trial would have been
that juror Jacqueline Clewis Barnes (“Barnes”) had been
convicted of misdemeanor theft in 1977, and that convic-
tion had never been set aside or otherwise challenged.’
Transcript (“TR”) of Evidentiary Hearing, Cause No.
530,604, 263d Judicial District Court of Harris County,
July 24, 1997, at 4-6. Barnes failed to disclose that convic-
tion either on the jury information form or during voir dire
proceedings. Id. at 7-8.
Under Texas law, a person convicted of theft, of any
degree, or of a felony, is absolutely disqualified from
serving on a jury. Tex. Code Crim. Proc. Ann. arts.
35.16(a(2) and 35.19(Vernon 1999)‘: Frame v. State, 615
* According to the state habeas district court’s findings of fact, Ex.
A to Petitioner, at 2,
5. At the time of trial, Barnes had a final conviction for
misdemeanor theft. On November 9, 1977, she pled guilty to
theft in Cause No. 5000358 in County Criminal Court at
Law Number 2 of Harris County, Texas; her punishment
was assessed at three days in jail and a fine of $200.00
6. Barnes [sic] prior conviction was discoverable as a pub-
lic record in the office of the Harris County District Clerk.
7. During the trial, neither the applicant, Mewis, nor co-
counsel, Cynthia Hinley, knew that Barnes had a prior theft
conviction.
8. Had Barnes disclosed her conviction during voir dire ex-
amination, Mewis would have challenged her for cause as
she was absolutely disqualified from jury service because of
the theft conviction.
* Article 35.16 provides in relevant part,
A challenge for cause is an objection to a ew juror,
alleging some fact which renders him incapable or unfit to
(Continued on following page)
App. 30
S.W.2d 766 (Tex. Crim. App. 1981). A defendant need not
show harm to his case where a juror is absolutely disquali-
fied. Thomas v. State, 796 S.W.2d 196, 199 (Tex. Ct. Crim.
App. 1990) (en banc). Petitioner therefore argues that had
Mewis filed a motion for new trial based on Barnes’
conviction, the trial court would have been required to
grant a new trial or the conviction would have been
overturned on appeal. State v. Holloway, 886 S.W.2d 482,
486 (Tex. App. — Houston [1st Dist.] 1994 pet. ref’d), cert.
denied, 516 U.S. 922 (1995); Thomas v. State, 796 S.W.2d
196, 197 (Tex. Ct. Crim. App. 1990) (en banc). Further-
more, the presence of an unqualified juror renders the
jury’ conviction void. Tex. Code Crim. Proc. Ann. 35.19
(Vernon 1999); Holloway, 886 S.W.2d at 483. Respondent
contends that the applicable standard of review here is
that for a sixth amendment ineffective assistance of
counsel claim under Strickland v. Washington, 466 U.S.
668 (1984),° with its requirement that the petitioner
serve in the jury. A challenge for cause may be made by ei-
- ther the State or the defense for any one of the following
reasons:
(2) That he has been convicted of theft or any felony... .
No juror shall be impaneled when it appears that he is sub-
ject to the second ... ground[) of challenge for cause set
forth above, although both parties may consent. All other
grounds for challenge may be waived by the party or parties
in whose favor such grounds exist.
Under Article 35.19,
No juror shall be impanelled when it appears that he is sub-
ject to the second ... cause of challenge in Article 35.16,
though both parties may consent.
* To support a claim for ineffective assistance of counsel, Petitioner
must show both that his “counsel’s representation fell below an
(Continued on following page)
App. 31
“affirmatively prove” prejudice,’ not the Texas rule of law
that a defendant need not show harm to be entitled to
reversal of his conviction on the ground that a juror was
absolutely disqualified due to a felony or theft conviction
under Thomas. Respondent maintains that Petitioner
cannot satisfy the prejudice prong of Strickland. He
further argues that constructive denial of counsel, with its
presumption of harm, has only been found “under a few
limited circumstances,” i.e., “when counsel is either totally
absent or is prevented by surrounding circumstances from
providing the effective assistance the Sixth Amendment
objective standard of reasonableness” and that “but for counsel’s
unprofessional errors, the result of the proceeding would have been
different,” i.e., that counsel’s performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A petitioner’s
failure to establish either requirement will defeat his ineffectiveness
claim. Linecum v. Collins, 958 F.2d 1271, 1278 (5th Cir. 1992). A court
need not decide whether counsel’s performance was deficient before
reviewing the prejudice suffered by Petitioner as a result of the alleged
incompetence. Jd. at 697.
Under the first prong of the Strickland test, there is a strong
presumption of counsel’s competence: the reviewing court should apply
a “heavy measure of deference” to an attorney's decisions from the
attorney's perspective and should avoid retrospective analysis. Jd. at
689. As long as counsel fulfilled his function . . . to make the adversarial
testing process work in a particular case,” the court should presume
that counsel’s significant decisions were reasonable at the time and
that his assistance was adequate. Jd. at 690. Decisions not to make
particular investigations are presumed reasonable and fall within the
“wide latitude” of counsel’s discretion. Jd. at 689.
* Strickland, 466 U.S. at 693. To demonstrate prejudice, a peti-
tioner must show that (1) but for counsel’s deficient professional
performance, there is a reasonable probability that the result of the
proceeding would have been different, and (2) that counsel’s deficient
performance rendered the trial fundamentally unfair. Id. at 694;
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
App. 32
contemplates.” May v. Collins, 948 F.2d 161, 167 (5th Cir.
1991), citing United States v. Cronic, 466 U.S. 648, 659
(1984), and Strickland, 466 U.S. at 692. Respondent
insists that Petitioner was represented by Mewis during
the time for filing a motion for new trial and that to the
extent that counsel omitted or failed to file such a motion,
Petitioner’s claim is one for ineffective assistance. Peti-
tioner must show, but cannot show, prejudice from such an
omission, i.e., not only that the juror was disqualified, but
also that Petitioner was denied a fair trial. Lockhart, 506
U.S. at 369-70.
Petitioner does not argue and makes no attempt to
prove prejudice under Strickland, i.e., that the results of
the trial would probably have been different had the juror
been disqualified. Therefore his claim depends on a deter-
mination of presumptive prejudice because of actual or
constructive denial of assistance of counsel during the
period for filing a motion for new trial in violation of the
sixth amendment.
After carefully reviewing the record and researching
the applicable law, this Court concludes as a matter of law
not raised by the parties that Petitioner’s motion for
summary judgment and application for federal writ of ~
habeas corpus should be denied and summary judgment
should be granted in favor of Respondent.
A threshold issue here is whether proceedings during
the period for filing a motion for new trial are a “critical
stage” of the prosecution requiring effective assistance of
counsel under the sixth amendment. In his petition,
Petitioner relied on Oldham v. State, 889 S.W.2d 461 (Tex.
App. — Houston [14th Dist.] 1994, pet. dism’d as improvi-
dently granted) (holding that failure to appoint counsel for
App. 33
appeal until after the deadline for a motion for new trial
had passed was denial of the defendant’s sixth amendment
right to counsel and a critical stage of the proceedings),
and Cox v. State, 797 S.W.2d 958 (Tex. App. — Houston
[1st Dist.] 1990, no pet.) (holding that where a defendant
was deprived of counsel during period in which motion for
new trial had to be filed, mandate would issue disposing of
appeal so that defendant could file motion for new trial)
for the proposition that the thirty-day period to file a
motion for new trial is a critical stage of the proceedings.
See also Callis v. State, 756 S.W.2d 826, 827 (Tex. App. —
Houston [1st Dist.] 1988, no pet.) (citing Trevino v. State,
565 S.W. 938, 941 (Tex. Crim App. 1978) (if appellate
counsel is not appointed until after the 30 days in which to
file a motion for new trial, the defendant has been denied
his sixth amendment right to counsel during a critical sate
[sic] of the prosecution).
The Fourteenth Court of Appeals in Oldham relied on
the violation of the defendant’s sixth amendment right to
counsel and Rule 2(b) of the Texas Code of Criminal
Procedures to set aside the defendant’s sentence and
notice of appeal and to permit the defendant to file a
motion for new trial. Oldham was reversed on state
procedural rule grounds after the petition in the instant
case was filed. 977 S.W.2d 354 (Tx. Ct. Crim. App. 1998)
(en banc), cert. denied, 119 S. Ct. 1121 (1999). More
relevant for Petitioner’s application for a federal writ, the
Texas Court of Criminal Appeals stated,
While we have 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), this Court has yet to address the is-
sue of whether a defendant is entitled to new
App. 34
- counsel during the time limit for filing a motion
for new trial to assist the defendant in preparing
the motion. See Wayne R. LaFave & Jerold H.
Israel, Criminal Procedure §11.2(b) (2nd ed.
1992) (defendant’s right to counsel at post-trial
proceedings before the trial judge that challenge
the conviction is not clear). This is the very ques-
tion we left unanswered in Connor v. State, 877
S.W.2d 325, 326-27 (Tex. Crim. App. 1994). Some
courts of appeals cases have held that there is
such a right. See, e.g., Boyette v. State, 908
S.W.2d 56 (Tex. App. — Houston [1st Dist.] 1995);
Oldham v. State, 889 S.W.2d 461 (Tex. App. —
Houston [14th Dist.] 1994); Cox v. State, 797
S.W.2d 958 (Tex. App. — Houston [lst Dist.]
1990); Callis v. State, 756 S.W.2d 826 (Tex. App.
— Houston [1st Dist.] 1988). However we are not
asked today to address this issue and we will not
do so, finding that the appellant has failed to
show that she was denied counsel during the
time limit for filing a motion for new trial.
Oldham, 977 S.W.2d at 360-61.
Among federal appellate courts, the First, Second and
District of Columbia Circuits have held that the sixth
amendment does not require appointment of counsel for a
motion for new trial. United States v. Trajeddini, 945 F.2d
458, 470 (lst Cir. 1991) (and cases cited therein), cert.
denied, 505 U.S. 1211 (1992). In Menefield v. Borg, 881
F.2d 696, 701 (9th Cir. 1989), the Ninth Circuit held that
“an accused who requests an attorney at the time of a
motion for a new trial is entitled to have one appointed.” It
concluded that under California law, a motion for new
trial is a critical stage of the prosecution. Jd. at 699.
Nevertheless, in Bell v. Hill, 1999 WL 695197 (9th Cir.
Sept. 9, 1999), the Ninth Circuit made clear that the
App. 35
Menefield court did not look at Supreme Court law, but
only at California law and that its holding was not dic-
tated by Supreme Court precedent.
There is no Supreme Court pronouncement as to
whether the period for filing a motion for new trial is a
“critical stage” of the prosecution requiring effective
assistance of counsel. “Reasonable contrary conclusions
reached by other courts” indicate that a rule was not
dictated by Supreme Court precedent. Butler v. McKellar,
494 U.S. 407, 415 (1990).
Under the AEDPA, this Court cannot grant a writ of
habeas corpus unless the state court’s conclusions’ in-
volved an unreasonable application of federal law as
determined by the Supreme Court. An application of
‘federal law is “unreasonable if it is so clearly incorrect
that it would not be debatable among reasonable jurists.
22 U.S.C. § 2254(d)(1); Nobles v. Johnson, 127 F.3d 409,
418 (5th Cir. 1997), cert. denied, 118 S.Ct. 1845 (1998).
’ The state district court judge based his relevant conclusions on
Texas state law:
20. While the applicant would have been entitled to relief
if this issue had been raised on direct appeal, he is not enti-
tled to relief on post-conviction writ of habeas corpus. Ex
parte Bronson, 158 Tex. Crim. 133, 864 S.W.2d 117 (1952);
Thomas v. State, 796 S.W.2d 196, 199 (Tex. Crim. App.
1990).
21. 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.
Ex. C, at p. 5, to Petition.
App. 36
Because there is no Supreme Court precedent and
because the state habeas court’s findings of fact and
conclusions of law and the Texas Court of Criminal Ap- —
peals’ denial of state habeas relief are not so clearly
incorrect that they would not be debatable among reason-
able jurists, the Court
ORDERS that Petitioner’s motion for summary
judgment is DENIED and his application for federal writ
of habeas corpus is DENIED with prejudice. The Court
further
ORDERS that final summary judgment is GRANTED
in favor of Respondent by separate order. Finally, because
Petitioner has failed to demonstrate a denial of a federal
right clearly established by Supreme Court precedent, the
Court
ORDERS that a certificate of appealability under
amended 28 U.S.C. § 2253(c)(2) shall not issue.
SIGNED this 29th day of September, 1999, at Hous-
ton, Texas.
-/s/ Melinda Harmon
MELINDA HARMON
UNITED STATES
DISTRICT COURT
App. 37
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN MAYO, § Michael N. Milby, Clerk
Petitioner :
VS. 5
GARY L. JOHNSON, DI. § CLV ACRION NO-
RECTOR, TEXAS DEPART- § 1-97-8980
MENT OF CRIMINAL §
JUSTICE, INSTITUTIONAL 8
DIVISION, :
Respondent §
FINAL SUMMARY JUDGMENT
(Filed Sept. 30, 1999)
Pursuant to the memorandum and order signed on
this day, the Court
ORDERS that FINAL SUMMARY JUDGMENT is
GRANTED in favor of by Respondent Gary L. Johnson
against Petitioner John Mayo and that Petitioner's
application for federal writ of habeas corpus is DENIED
with prejudice.
THIS IS A FINAL JUDGMENT.
SIGNED at Houston, Texas, This 29th day of Sep-
tember, 1999.
/s/ Melinda Harmon
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
App. 38
APPENDIX C
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, D.C. 20543
December 1, 1997
Mr. Randolph L. Schaffer Jr.
1301 McKinney
Suite 3100
Houston, TX 77010
Re: John Mayo v. Texas
No. 97-716
Dear Mr. Schaffer:
The Court today entered the following order in the
above entitled case:
The petition for a writ of certiorari is denied.
Sincerely,
/s/ William K. Suter
William K. Suter, Clerk
App. 39
APPENDIX D
OFFICIAL NOTICE FROM COURT OF
CRIMINAL APPEALS OF TEXAS
P.O. BOX 12308, CAPITAL STATION,
AUSTIN, TEXAS 78711
RE: Writ No. 35-090
STYLE: John Mayo
TRIAL COURT NO: 530604-A
(Filed Sept. 17, 1997)
This is to advise that the Court has denied without
written order on the findings of the trial court after a
hearing the application for writ of habeas corpus.
Troy C. Bennett, Clerk
RANDY SCHAFFER
1301 MCKINNEY
SUITE 3100
HOUSTON TX 77010
App. 40
APPENDIX E
No. 530604-A
Ex Parte : IN THE 263RD
JOHN MAYO § DISTRICT COURT
$ oF
§
Applicant. HARRIS COUNTY, TEXAS
FINDINGS OF FACT.
CONCLUSIONS OF LAW, AND ORDER
(Filed July 29, 1997)
Having reviewed the application for writ of habeas
corpus (including the attached exhibits and affidavits); the
respondent's answer; the testimony at the evidentiary
hearing held on July 24, 1997, and the official court
documents, the Court makes the following findings of fact
and conclusions of law:
1.
Jacqueline Clewis Barnes, the first veniremem-
ber on the jury panel, 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. Barnes either re-
sponded in the negative or remained silent; oth-
erwise, she would have not accompanied the
panel to the courtroom.
Neither the prosecutor nor defense counsel, Paul
Mewis, asked the veniremembers whether they
had been convicted of any felony or theft, in reli-
ance on the answers in the jury questionnaires
10.
11.
App. 41
and the knowledge that the veniremembers had
already been qualified on this question in the
central jury room.
Barnes served as a juror at trial.
At the time of trial, Barnes had a final conviction
for misdemeanor theft. On November 9, 1977,
she pled guilty to theft in Cause No. 500358 in
County Criminal Court at Law Number 2 of Har-
ris County, Texas; her punishment was assessed
at three days in jail and a fine of $200.00.
Barnes prior conviction was discoverable as a
public record in the office of the Harris County
District Clerk.
During the trial, neither the applicant, Mewis,
nor co-counsel, Cynthia Henley, knew that Bar-
nes had a prior theft conviction.
Had Barnes disclosed her conviction during voir
dire examination, Mewis would have challenged
her for cause, as she was absolutely disqualified
from jury service because of the theft conviction.
On March 8, 1991, the jury convicted the appli-
cant and sentenced him,to 50 years for aggra-
vated sexual assault and 20 years for aggravated
kidnapping.
Mewis contract with applicant provided that
Mewis’ representation would terminate with the
jury’s verdict.
On March 8, 1991, after sentencing, the appli-
cant told Mewis that he wanted to appeal. Be-
cause Mewis did not handle appeals, he told the
applicant to hire another lawyer.
12.
13.
14.
15.
16.
+ B
App. 42
Mewis took no further action on the case because
he assumed that the applicant would hire an-
other lawyer. Mewis did not investigate whether
there was jury misconduct nor did he check the
local criminal records of the jurors. Mewis did
not investigate the issues for a motion for new
trial nor did he file a motion for new trial. Nei-
ther did Henley, as she was hired only to assist
Mewis during the trial.
Mewis did not move to withdraw as counsel
because he was unaware that the law required
him to continue to represent applicant following
the conviction until such time as the court per-
mitted him to withdraw or other counsel substi-
tuted in his place.
When Mewis had not heard from another lawyer
after about three weeks, in his capacity as appli-
cant’s counsel, he met with the applicant in jail
to determine whether the applicant had hired
counsel for the appeal. Applicant 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, Mewis had the applicant brought to
court, file notice of appeal, and sign an affidavit
of indigency requesting the appointment of coun-
sel on appeal.
On April 4, 1991, the court appointed Will Gray
as appellate counsel and mailed him notice of the
appointment. Gray did not learn of his appoint-
ment until the time had expired to file a motion
for new trial.
Because no attorney discovered Barnes’ theft
conviction during the time for filing a motion for
new trial, the issue of her disqualification was
18.
19.
20.
21.
22.
App. 43
not raised in a motion for new trial, the evidence
was not developed at a hearing, and the issue
was not raised on appeal.
A juror is absolutely disqualified if she has been
convicted of theft. Tex. CODE CRIM. Proc. ANN.
art. 35.19 (1989); Frame v. State, 615 S.W.2d
766 (Tex. Crim. App. 1981)
Had counsel filed a motion for new trial alleging
that Barnes was absolutely disqualified from
serving as a juror, the trial court would have
been obligated to grant a new trial or the convic-
tion would have reversed on appeal. Thomas v.
State, 796 S.W.2d 196 (Tex. Crim. App. 1990);
State v. Holloway, 886 S.W.2d 482 (Tex. App. —
Houston [1st Dist.] 1994, pet. ref’d).
While the applicant would have been entitled to
relief had this issue been raised on direct appeal,
he is not entitled to relief on post-conviction writ
of habeas corpus. Ex parte Bronson, 158 Tex.
Crim. 133, 864 S.W.2d 117 (1952); Thomas v.
State, 796 S.W.2d 196, 199 (Tex. Crim. App.
1990).
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.
The Court recommends that habeas corpus relief
be denied.
ORDER
THE CLERK IS ORDERED to prepare a transcript of
all papers in Cause Number 530604-A and transmit them
to the Court of Criminal Appeals, as provided by TEX.
ee
App. 44
CODE CRIM. Proc. ANN. art. 11.07 (Vernon Supp. 1997).
The transcript shall include certified copies of the follow-
ing documents:
A. the application for writ of habeas corpus, includ-
B.
C.
F.
G.
ing any attached exhibits and affidavits;
the respondent’s Answer;
the Findings of Fact, Conclusions of Law and
Order;
the applicant’s Objections to the Findings of Fact
Conclusions of Law and Order;
the respondent’s reply to the applicant’s objections
to the Findings of Fact, Conclusions of Law and
Order (if any);
the transcript and statement of facts of the voir
dire examination in Cause Number 530604;
the statement of facts from the evidentiary
hearing in Cause Number 530604-A;
THE CLERK is further ORDERED to send a copy of
this order to the applicant, his counsel and to the respon-
dent.
Signed on this 25th day of July, 1997.
/s/ W.
WOODY DENSEN,
Presiding Judge
263rd District Court of
Harris County, Texas
APPROVED AS TO FORM
/s/ Randy Schaffer /s/ Ernest Davila
Randy Schaffer Ernest Davila
Counsel for Applicant Counsel for Respondent
App. 45
APPENDIX F
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20941
JOHN MAYO
Petitioner-Appellant
v.
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, Houston
ON PETITION FOR REHEARING EN BANC
(Filed Jun. 18, 2002)
(Opinion 03/28/02, 5 Cir.,___., __ F.3d __)
Before JONES, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:
(X) Treating the Petition for Rehearing En Banc as a
Petitioner for Panel Rehearing, the Petition for Panel
Rehearing is DENIED. No member of the panel nor judge
in regular active service of the court having requested that
the court be polled on Rehearing En Banc (FED. R. App. P.
App. 46
and 5TH Cir. R. 35), the Petition for Rehearing En Banc is
DENIED.
( ) Treating the Petition for Rehearing En Banc as a
- Petition for Panel Rehearing, the Petition for Panel
Rehearing is DENIED. The court having been polled at
the request of one of the members of the court and a
majority of the judges who are in regular active service not
having voted in favor (FED. R. App. P. and 5TH Cir. R. 35),
the Petition for Rehearing En Banc is DENIED.
ENTERED FOR THE COURT
/s/ Edith H. Jones
United States Circuit Judge
CLERK’S NOTE:
SEE FRAP AND LOCAL RULES 41 FOR STAY OF THE
MANDATE.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.