Ray Freeney v. Lorie Davis, Director , 703 F. App'x 304 ( 2017 )


Menu:
  •      Case: 16-70007      Document: 00514101235         Page: 1    Date Filed: 08/03/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 16-70007
    Fifth Circuit
    FILED
    August 3, 2017
    RAY MCARTHUR FREENEY,                                                 Lyle W. Cayce
    Clerk
    Petitioner–Appellant,
    v.
    LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
    JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent–Appellee.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:14-CV-373
    Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
    PER CURIAM: *
    IT IS ORDERED that Appellant’s motion to remand to the district court
    to allow newly appointed counsel an opportunity to develop and present any
    defaulted IATC claims and to seek to establish cause for the default is
    DENIED.
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 16-70007      Document: 00514101235        Page: 2    Date Filed: 08/03/2017
    No. 16-70007
    I
    Freeney was convicted in Texas state court of capital murder and
    sentenced to death. James Leitner was appointed as his state habeas counsel,
    and he, with the help of Michael Charlton, filed a habeas petition on January
    24, 2005, asserting, in relevant respect, a claim that Freeney’s trial counsel
    rendered ineffective assistance (IATC) “by not investigating, developing, and
    presenting readily available evidence during the punishment phase.”
    Over three years later, Leitner moved to withdraw. The state trial court
    granted the motion and subsequently appointed Donald Vernay. Three years
    later, the State filed a motion pursuant to Texas Code of Criminal Procedure
    article 11.071 § 8 to have a factual issue concerning the IATC claim designated
    as unresolved. Both parties filed proposed findings of fact and conclusions of
    law. The state trial court adopted the State’s propositions and recommended
    that the Texas Court of Criminal Appeals (TCCA) deny relief on the merits,
    concluding that Freeney had established neither ineffective assistance nor
    prejudice. The TCCA subsequently instructed the state trial court to resolve
    certain factual issues that remained; 1 the state trial court did so and again
    recommended that the TCCA deny relief because Freeney had established
    neither ineffective assistance nor prejudice; and the TCCA adopted the state
    trial court’s findings and conclusions, resulting in an order denying Freeney
    habeas relief. 2
    Vernay filed a motion in federal district court to have himself and
    Charlton appointed as federal habeas counsel. After the district court granted
    the motion, Charlton moved to withdraw. In his motion, filed on October 27,
    1  Ex parte Freeney, No. WR-78109-01, 
    2013 WL 1182745
    , at *2 (Tex. Crim. App. Mar.
    20, 2013).
    2 Ex parte Freeney, No. WR-78109-01, 
    2014 WL 333695
    , at *1 (Tex. Crim. App. Jan.
    29, 2014).
    2
    Case: 16-70007         Document: 00514101235   Page: 3   Date Filed: 08/03/2017
    No. 16-70007
    2014, Charlton stated that Martinez v. Ryan 3 necessitated his withdrawal
    because “[h]e was responsible for the investigation of Mr. Freeney’s claims and
    for the development and filing of Mr. Freeney’s petition for writ of habeas
    corpus” in state court. He also noted that “[a]fter careful consideration,” both
    he and Vernay concluded that “it [was] in Mr. Freeney’s interest that Mr.
    Vernay be permitted to proceed acting as Mr. Freeney’s sole counsel.” The
    district court granted the motion on November 19, 2014, and on January 26,
    2015, Vernay filed Freeney’s federal habeas petition.
    The Director of the Correctional Institutions Division of the Texas
    Department of Criminal Justice (the Director) moved for summary judgment,
    asserting, in pertinent part, that 28 U.S.C. § 2254(d) barred relief on Freeney’s
    IATC claim. The district court granted the motion. It reasoned that the state
    habeas court’s resolution of his IATC claim “was not contrary to, or an
    unreasonable application of federal law.” The district court also declined to
    issue a certificate of appealability (COA).
    Freeney sought a COA from this court.           While the application was
    pending, Vernay retired from legal practice. This court appointed new counsel
    on December 12, 2016. Five months later, on May 24, 2017, Freeney’s new
    counsel moved to remand the case to district court and requested a stay of the
    appellate proceeding “pending the conclusion of the district court’s review.”
    II
    Freeney seeks remand so that “the district court [may] consider, in the
    first instance, whether Mr. Freeney can establish cause for the procedural
    default of any [IATC] claims he may raise, and if so, whether those claims merit
    relief.” Although he states his purpose broadly, he limits the substantive
    content of his briefing to an argument that Vernay failed to develop the factual
    3   
    566 U.S. 1
    (2012).
    3
    Case: 16-70007        Document: 00514101235          Page: 4     Date Filed: 08/03/2017
    No. 16-70007
    basis for the IATC claim raised in Freeney’s state habeas petition. A fully
    developed claim, Freeney asserts, would be in a “significantly different and
    stronger evidentiary posture,” rendering it unexhausted and, according to
    Freeney, procedurally defaulted. 4 Freeney argues that Vernay’s failure to
    develop the claim equates to ineffective assistance of counsel providing cause,
    pursuant to Martinez and Trevino v. Thaler,                   5   to excuse the purported
    procedural default. Because “Vernay . . . could not evaluate the shortcomings
    of his own work,” Freeney maintains, Vernay labored under a conflict of
    interest, which violated Freeney’s “statutory right to conflict-free counsel” and
    requires remand.
    In support of his motion, he principally relies on Speer v. Stephens 6 and
    Mendoza v. Stephens, 7 two recent Fifth Circuit cases he views as “essentially
    identical” to this case. This assertion, however, is both legally and factually
    inaccurate. First, in Speer and Mendoza, the court remanded so that the
    district court, in light of Martinez and Trevino, could appoint supplemental
    counsel pursuant to 18 U.S.C. § 3599(e). 8 The analysis of a motion to appoint
    supplemental counsel is driven by the Supreme Court’s reasoning in
    Christeson v. Roper 9 and Martel v. Clair, 10 both of which addressed motions to
    substitute counsel—not motions to remand after the petitioner already had
    conflict-free counsel. 11 Second, as the concurrence in Mendoza notes, the
    4 See TEX. CODE CRIM. P. 11.071 § 5(a); Kittelson v. Dretke, 
    426 F.3d 306
    , 315 (5th Cir.
    2005) (“[I]f the prisoner fails to exhaust available state remedies, and the state court to which
    the prisoner would have to present his claims in order to exhaust them would find the claims
    procedurally barred, the prisoner has defaulted those claims.”).
    5 
    133 S. Ct. 1911
    (2013).
    6 
    781 F.3d 784
    (5th Cir. 2015).
    7 
    783 F.3d 203
    (5th Cir. 2015) (per curiam).
    8 
    Speer, 781 F.3d at 785-86
    ; 
    Mendoza, 783 F.3d at 204
    (OWEN, J., concurring).
    9 
    135 S. Ct. 891
    (2015) (per curiam).
    10 
    565 U.S. 648
    (2012).
    11 
    Christeson, 135 S. Ct. at 893-94
    ; 
    Martel, 565 U.S. at 657
    (assessing the “standard
    that district courts should use to adjudicate federal habeas petitioners’ motions to substitute
    4
    Case: 16-70007       Document: 00514101235          Page: 5     Date Filed: 08/03/2017
    No. 16-70007
    petitioner in that case moved for supplemental counsel sixty-five days after the
    Supreme Court issued Trevino.              12   The petitioner in Speer moved for
    supplemental counsel eighty-seven days after Trevino issued. 13 As is evident
    from the nature of the motions filed in Speer and Mendoza, neither petitioner
    had conflict-free counsel before filing. Conversely, Freeney received conflict-
    free counsel on December 12, 2016, and filed a motion to remand to assert a
    claim pursuant to Martinez and Trevino on May 24, 2017—163 days after
    receiving conflict-free counsel and almost four years after the Court decided
    Trevino. One of Freeney’s attorneys, citing Martinez, withdrew on October 27,
    2014, before Freeney filed his federal habeas petition, a filing which also
    occurred well after Trevino issued.
    This court’s statutory authority to remand derives from 28 U.S.C. § 2106,
    which states that “any . . . court of appellate jurisdiction . . . may remand the
    cause and . . . require such further proceedings to be had as may be just under
    the circumstances.” This statute grants appellate courts “broad authority to
    dispose of district court judgments as they see fit,” 14 but, as the Supreme Court
    has repeatedly admonished, discretionary decisions must nevertheless “be
    guided by sound legal principles.” 15
    counsel in capital cases” and then determining “whether the District Court abused its
    discretion in denying [the petitioner’s] second request for new counsel under § 3599’s
    ‘interests of justice’ standard”).
    12 
    Mendoza, 783 F.3d at 209
    (OWEN, J., concurring).
    13 Compare Motion to Abate Appeal and Appoint Counsel at 5, Speer v. Stephens, 
    781 F.3d 784
    (5th Cir. 2015) (No. 13-70001) (reflecting that the petitioner filed the motion on
    August 23, 2013), with Trevino v. Thaler, 
    133 S. Ct. 1911
    (2013) (Decided on May 28, 2013).
    14 GuideOne Specialty Mut. Ins. Co. v. Missionary Church of Disciples of Jesus Christ,
    
    687 F.3d 676
    , 682 n.3 (5th Cir. 2012) (citing § 2106); accord United States v. Macias, 
    435 F.2d 1294
    , 1295 (5th Cir. 1971) (per curiam) (noting that the Fifth Circuit has “broad discretion to
    ‘require such further proceedings to be had as may be just under the circumstances’” (quoting
    § 2106)).
    15 Halo Elecs., Inc. v. Pulse Elecs., Inc., 
    136 S. Ct. 1923
    , 1932 (2016) (quoting Martin
    v. Franklin Capital Corp., 
    546 U.S. 132
    , 139 (2005)).
    5
    Case: 16-70007       Document: 00514101235             Page: 6   Date Filed: 08/03/2017
    No. 16-70007
    Freeney initiated federal habeas proceedings after the issuance of
    Trevino and after one of his two attorneys withdrew because “[h]e was
    responsible for the investigation of Mr. Freeney’s claims and for the
    development and filing of Mr. Freeney’s petition for writ of habeas corpus” in
    state court. By at least this latter point, Freeney should have known of the
    ineffectiveness of state habeas counsel claim that he contends should provide
    cause to excuse the procedural default of an ineffective assistance of trial
    counsel claim. Yet at no point did Freeney seek additional counsel to explore
    the claim he now wishes to raise on remand. He did not raise this claim until
    approximately two years and six months after his attorney withdrew and
    nearly four years after Trevino issued. It cannot be doubted that this delay
    was unreasonable, 16 and Freeney has not argued to the contrary. To the extent
    that responsibility for Vernay’s purported conflict is relevant, 17 Freeney bears
    substantial responsibility for failing to request Vernay’s removal despite the
    notice the withdrawal of his other attorney provided.
    *        *         *
    Accordingly, the motion to remand is DENIED.
    16 See 
    Martel, 565 U.S. at 662
    (noting that, in the context of a request for appointment
    of substitute counsel, “[p]rotecting against abusive delay is an interest of justice”).
    17 See 
    id. at 663
    (noting that the client’s responsibility for a conflict is relevant in
    considering a request for appointment of substitute counsel).
    6