Carmell v. Quarterman , 292 F. App'x 317 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 8, 2008
No. 06-40578 Charles R. Fulbruge III
Clerk
SCOTT LESLIE CARMELL
Petitioner - Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent - Appellee
Appeal from the United States District Court
for the Eastern District of Texas, Sherman
USDC No. 4:02-CV-421
Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Petitioner-appellant Scott Leslie Carmell, proceeding pro se, appeals the
district court’s denial of his petition for writ of habeas corpus. Carmell argues
that his constitutional rights were violated when the Texas Court of Appeals
reaffirmed his convictions on remand from the United States Supreme Court,
and that he was denied effective assistance of appellate counsel during those
remand proceedings. With respect to his first contention, we affirm the district
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 06-40578
court’s denial of habeas relief. However, we conclude that Carmell’s claim of
ineffective assistance of appellate counsel on remand warrants relief. Thus, we
reverse and remand solely on that issue.
I.
Scott Leslie Carmell was convicted of fifteen counts of sexual offenses
committed against his step-daughter—eight counts of indecency with a child,
five counts of sexual assault, and two counts of aggravated sexual assault.1
Carmell appealed, arguing, inter alia, that four of his fifteen convictions were
obtained without sufficient evidence. See Carmell v. State (Carmell I), 963
S.W.2d 833, 835–36 (Tex. App.—Fort Worth 1998, pet. ref’d). Carmell’s
argument rested on article 38.07 of the Texas Code of Criminal Procedure,
which, prior to a 1993 amendment, allowed convictions for indecency with a child
and sexual assault to be supported by “the uncorroborated testimony of the
victim of the sexual offense if the victim informed any person, other than the
defendant, of the alleged offense within six months after the date on which the
offense is alleged to have occurred.” TEX. CODE CRIM. PROC. ANN. art. 38.07
(Vernon 1992) (emphasis added). The pre-1993 statute further provided that
“[t]he requirement that the victim inform another person of an alleged offense
does not apply if the victim was younger than 14 years of age at the time of the
alleged offense.” Id.
Carmell argued that under this statute one of his sexual assault
convictions, Count 7, and three of his indecency convictions, Counts 8 through
10, were based on insufficient evidence because they rested only on the
uncorroborated testimony of the victim who had failed to make a timely outcry.
See Carmell I, 963 S.W.2d at 836. At the time that the sexual conduct
1
Carmell was sentenced to a twenty-year term of imprisonment on each of the
indecency and sexual assault convictions, and he was sentenced to two terms of life
imprisonment for the aggravated sexual assault convictions, with all fifteen prison terms to
run concurrently.
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underlying the four convictions occurred, Carmell’s victim was over fourteen
years of age, yet she waited more than a year to reveal to her mother what had
happened. Consequently, her outcry was not timely under the 1992 version of
article 38.07.
The Texas Court of Appeals held that the 1993 version of article 38.07
applied to Carmell’s convictions and rejected Carmell’s insufficiency-of-the-
evidence claim. Id. The amended version of the statute raised the age of victims
who were not required to make a timely outcry from “younger than 14” to
“younger than 18” years of age. Act of May 10, 1993, 1993 Tex. Sess. Law Serv.
ch. 200, 389 (West) (codified as amended at TEX. CODE CRIM. P. ANN. art. 38.07
(Vernon 1993)). Despite the fact that the amended statute took effect after the
offense conduct occurred, the Texas Court of Appeals found that it applied to
Carmell’s case because it was merely “a rule of procedure.” Carmell I, 963
S.W.2d at 836. As the victim was younger than eighteen years old when the
conduct alleged in Counts 7 through 10 occurred, there was no corroboration-or-
outcry requirement under article 38.07, as amended, so the Texas Court of
Appeals affirmed Carmell’s convictions. Id. Carmell’s petition for discretionary
review was refused by the Texas Court of Criminal Appeals (the “TCCA”).
The United States Supreme Court granted certiorari and reversed
Carmell’s convictions on Counts 7 through 10. See Carmell v. Texas (Carmell II),
529 U.S. 513, 552–53 (2000). The Court compared the 1993 amended version of
article 38.07, which was applied by the Texas Court of Appeals in Carmell’s case,
with the earlier version that required, for conviction, corroborating evidence or
outcry within six months if the victim was over fourteen years old, and concluded
that the amended version changed the quantum of evidence necessary to sustain
a conviction. Id. at 530. Thus, because Carmell committed the offenses charged
in Counts 7 through 10 before the effective date of the 1993 amendment and his
victim was over fourteen years of age at the time of the offenses, the Supreme
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Court held that Carmell’s convictions on those four counts, “insofar as they are
not corroborated by other evidence,” violated the constitutional prohibition on
ex post facto laws and could not stand. Id. at 552. The Court reversed the
judgment of the Texas Court of Appeals and remanded for further proceedings
not inconsistent with the Court’s opinion. Id. at 553.
Three days after the Supreme Court issued its decision, the Texas Court
of Appeals recalled its mandate, and Carmell requested appointment of counsel
on remand. By order issued on June 14, 2000, the Texas Court of Appeals
granted Carmell’s request by abating the appeal and remanding the case to the
trial court for the appointment of counsel by June 27, 2000. The order also
provided for the automatic reinstatement of the appeal upon receipt of the
supplemental record. On June 21, 2000, the trial court appointed Tom Whitlock
to represent Carmell.
On June 26, 2000, the Texas Court of Appeals received the trial court’s
supplemental record reflecting the appointment of Whitlock. At that point, the
appeal having been automatically reinstated and submitted to a panel, the State
of Texas filed a motion requesting leave to file a supplemental brief. The State
argued that “the opinion on remand raised a new issue that the State did not
have an opportunity to brief,” namely, whether there was sufficient
corroborating evidence adduced at trial to sustain the conviction under the 1992
version of article 38.07. The Texas Court of Appeals granted the motion, and the
State filed its supplemental brief on July 24, 2000.
On July 5, 2000, Carmell drafted a letter to Whitlock which set forth
certain expectations Carmell had of the representation. These expectations
included: maintaining confidentiality and the attorney-client privilege;
communicating with Carmell in a timely and direct manner; being willing to file
a brief in excess of the 50-page limit as well as a reply to the State’s brief;
requesting oral argument; obtaining records still in the custody of trial counsel;
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and obtaining Carmell’s approval before filing any briefs. Carmell concluded his
list of expectations with a conditional request: “If you do not have the time,
interest, or orientation to work with me according to the things contained herein,
then I respectful[ly] ask you [to] file a Motion to Withdraw and a Motion to
Appoint Appellate Counsel.” The letter also contained a post-script reading: “Do
whatever it takes to win. Or, get me another attorney.” Despite the overtone of
an ultimatum, Carmell apparently did not assume that this language would
deter Whitlock from representing him because he concluded the letter by saying:
“I am looking forward to a phone call (or a visit) in the immediate future.”
After receiving this correspondence from Carmell, Whitlock determined
that he would not be able to provide satisfactory representation to Carmell.
Whitlock filed a motion for leave to withdraw in the trial court on July 24,
2000—the same day that the State filed its supplemental brief. The trial court
granted the motion and substituted Jack McKeathen as Carmell’s counsel on
July 24, 2000. The Texas Court of Appeals received notice of the substitution of
counsel on July 26, 2000, as well as another supplemental record documenting
the substitution of counsel in the trial court shortly thereafter. About three
weeks later, on August 17, 2000, the Texas Court of Appeals issued its opinion
in the case. Carmell v. State (Carmell III), 26 S.W.3d 726 (Tex. App.—Fort
Worth 2000, pet. ref’d). After a de novo review of the trial record, applying the
1992 version of the statute, the Texas Court of Appeals concluded that the
victim’s testimony was sufficiently corroborated at trial and affirmed Carmell’s
convictions. Id. at 727–28. The next day, Carmell’s new attorney, McKeathen,
sought leave to file a supplemental brief and requested that the court delay the
release of its opinion. In his motion, McKeathen explained that he was not
informed of his appointment as Carmell’s attorney until July 28, 2000, and
further certified that the State had no objection to the motion. However, on
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No. 06-40578
August 21, 2000, the Texas Court of Appeals denied McKeathen’s request as
moot.
On August 22, 2000, Carmell filed a pro se motion in the Texas Court of
Appeals seeking the dismissal of McKeathen and the appointment of new
counsel based on the complete lack of communication from McKeathen regarding
the status of his case on remand. His motion was denied. McKeathen then
moved for rehearing, to have the court’s opinion withdrawn, and for leave to file
a supplemental brief. But, once again, the Texas Court of Appeals denied the
motions. Thus, no brief was ever filed by, or on behalf of, Carmell during the
appellate proceedings on remand. Subsequently, the TCCA refused Carmell’s
petition for discretionary review, and the Supreme Court denied his petition for
writ of certiorari.
Carmell sought state habeas relief in fifteen separate applications (one for
each of his convictions), arguing, in relevant part, that he was denied effective
assistance of counsel during his appellate proceedings on remand from the
Supreme Court, and that his constitutional rights were infringed by the Texas
Court of Appeals’ decision to affirm his convictions again on remand. All fifteen
applications were denied without written order on November 13, 2002.
Having exhausted his state court remedies, Carmell timely filed the
instant 28 U.S.C. § 2254 habeas petition on December 18, 2002. As he had in his
state habeas applications, Carmell argued that he was denied effective
assistance of appellate counsel in the Texas Court of Appeals upon remand from
the United States Supreme Court, and that the Texas Court of Appeals violated
his constitutional rights by refusing to follow the Supreme Court’s mandate. On
January 17, 2006, a magistrate judge (the “MJ”) recommended that all of
Carmell’s claims be denied on the merits. Carmell objected to the MJ’s report
and recommendation, but the district court overruled those objections and
adopted the MJ’s report and recommendation in an order dated March 6, 2006.
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That same day, the district court entered its final judgment denying Carmell’s
petition. Carmell timely filed a notice of appeal and sought a certificate of
appealability (“COA”) and leave to proceed in forma pauperis (“IFP”). The
district court granted Carmell IFP status but denied him a COA. Subsequently,
this court granted Carmell a COA solely on the following two issues: (1) whether
the Texas Court of Appeals’ ruling on remand from the United States Supreme
Court violated Carmell’s constitutional rights by considering whether there was
other evidence of Carmell’s guilt in the trial record that corroborated the victim’s
testimony; and (2) whether Carmell was denied effective assistance of appellate
counsel on remand.
II.
“In an appeal from the denial of habeas relief, we review a district court’s
findings of fact for clear error and its legal determinations de novo.” Bosley v.
Cain, 409 F.3d 657, 662 (5th Cir. 2005). The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) requires a district court considering a § 2254
habeas petition to defer to the state court’s adjudication on the merits of the
petitioner’s claims unless the state court’s adjudication resulted in a decision
that was: “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court”; or “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” § 2254(d); see also Miniel v. Cockrell, 339 F.3d 331,
336–37 (5th Cir. 2003). “A state court’s decision is deemed contrary to clearly
established federal law if it reaches a legal conclusion in direct conflict with a
prior decision of the Supreme Court or if it reaches a different conclusion than
the Supreme Court based on materially indistinguishable facts.” Miniel, 339
F.3d at 336 (citation omitted). “A state court’s decision constitutes an
unreasonable application of clearly established federal law if it is objectively
unreasonable.” Id. (citation omitted).
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In this case, Carmell’s post-conviction proceedings in state court resulted
in denials without written order by the TCCA. These denials were nevertheless
“on the merits.” See Bledsue v. Johnson, 188 F.3d 250, 256–57 & n.13 (5th Cir.
1999) (citing Ex parte Thomas, 953 S.W.2d 286, 288–89 (Tex. Crim. App. 1997)).
Thus, the TCCA’s denial of Carmell’s claims is entitled to deference under
AEDPA, with the unreasonable-application inquiry for each claim focusing on
the TCCA’s ultimate legal conclusion, not its reasoning. See Neal v. Puckett, 286
F.3d 230, 246 (5th Cir. 2002).
A.
Carmell challenges the district court’s rejection of his claim that the
decision to affirm his convictions on Counts 7 through 10 on remand violated his
constitutional rights. Carmell argues that the Texas Court of Appeals acted in
contravention of the Supreme Court’s mandate by reviewing the record to find
evidence corroborating the victim’s testimony even though, he contends, the
Supreme Court had already determined that the evidence was legally
insufficient to sustain those convictions. Thus, according to Carmell, the Texas
Court of Appeals’ error in implementing the mandate on remand violated not
only the Supremacy Clause, see U.S. CONST. art. VI, cl. 2; Martin v. Hunter’s
Lessee, 14 U.S. (1 Wheat.) 304 (1816),2 but also his due process rights when “the
State [was allowed] to resurrect the corroboration issue.”3 As we see Carmell’s
2
The Supremacy Clause is not a source of federal rights. Instead, it operates to “secure
federal rights by according them priority whenever they come in conflict with state law.”
Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 613 (1979) (internal quotation
omitted).
3
We note that Carmell does not make a direct challenge to the legal sufficiency of the
corroborating evidence adduced at trial under Jackson v. Virginia, 443 U.S. 307 (1979).
Rather, his due process claim apparently stems from a criminal defendant’s guarantee under
the Fourteenth Amendment that on a first appeal, as of right, the state court’s actions will
comport with fair procedure. See Evitts v. Lucey, 469 U.S. 387, 393 (1985) (explaining that
states’ procedures for deciding criminal appeals as of right are subject to the demands of due
process in that they must provide for an adequate, effective, and fair appeal); see also Griffin
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No. 06-40578
mandate argument, the Supreme Court’s holding in Carmell II was based on a
violation of the Ex Post Facto Clause, and were Carmell to be held in violation
of the Court’s mandate (as he argues), the violation of the Ex Post Facto Clause
would be ongoing.
It has long been established that inferior state courts are obligated to
enforce the Supreme Court’s mandate on remand. See Briggs v. Pennsylvania
R.R. Co., 334 U.S. 304, 306 (1948); 28 U.S.C. § 1257(a).4 That is to say that once
a case has been decided by the Supreme Court on appeal and remanded to the
court below, “[w]hatever was before the Court and is disposed of, is considered
finally settled. The inferior court is bound by the decree, as the law of the case;
and must carry it into execution according to the mandate . . . .” Ex Parte
Sibbald v. United States, 37 U.S. (12 Pet.) 488, 492 (1838); see Vendo v. Lektro-
Vend Corp., 434 U.S. 425, 427–28 (1978); In re Sanford Fork & Tool Co., 160
U.S. 247, 255 (1895); see also United States v. Becerra, 155 F.3d 740, 753 (5th
Cir. 1998) (“[A] lower court on remand must implement both the letter and the
spirit of the [appellate court’s] mandate, and may not disregard the explicit
directives of that court.” (second alteration in original) (citation and internal
quotation marks omitted)), abrogated on other grounds as recognized in United
States v. Farias, 481 F.3d 289, 291–92 (5th Cir. 2007). However, “[w]hile a
v. Illinois, 351 U.S. 12, 19–20 (1956) (imposing constitutional constraints on states when they
choose to create appellate review). Along those lines, Carmell urges that “[j]ustice . . . cannot
be secured” when an inferior court, the Texas Court of Appeals here, “refuses to honor the
decision of the United States Supreme Court,” the final arbiter of the matter.
4
See also Hunter’s Lessee, 14 U.S. (1 Wheat.) at 351–52 (“It is an historical fact, that
the [S]upreme [C]ourt of the United States have, from time to time, sustained this appellate
jurisdiction [over state courts] in a great variety of cases, brought from the tribunals of many
of the most important states in the union, and that no state tribunal has ever breathed a
judicial doubt on the subject, or declined to obey the mandate of the [S]upreme [C]ourt . . . .
This weight of contemporaneous exposition by all parties, this acquiescence of enlightened
state courts, and these judicial decisions of the [S]upreme [C]ourt through so long a period, do,
as we think, place the doctrine upon a foundation of authority which cannot be shaken . . . .”).
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No. 06-40578
mandate is controlling as to matters within its compass, on the remand a lower
court is free as to other issues.” Quern v. Jordan, 440 U.S. 332, 347 n.18 (1979)
(quoting Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939)). Therefore, to
determine whether the Supreme Court’s mandate was not followed in Carmell
III, we must carefully examine the issues that were actually decided by the
Supreme Court in Carmell II as well as the Court’s final directive in that case.
See Kansas City S. Ry. Co. v. Guardian Trust Co., 281 U.S. 1, 10 (1930) (“For the
proper construction of the decree under consideration, regard is to be had to the
issues before the court on appeal, the findings applied for and the directions
given.”).
To begin, in support of his construction, Carmell cites to several places in
Carmell II where he claims that the Court suggested that the evidence of
corroboration was insufficient. See, e.g., 529 U.S. at 530 (“[P]etitioner could be
(and was) convicted on the victim’s testimony alone, without any corroborating
evidence.”); id. at 531 (“Texas’ retrospective application of the amendment to
[a]rticle 38.07 permitted petitioner to be convicted with less than the previously
required quantum of evidence.”). However, these snippets from the majority
opinion were preceded by footnote four, explaining in relevant part that:
The State argues that there is evidence corroborating
the victim’s testimony, so it does not help petitioner
even if the old law applies. Before the state court,
however, petitioner argued that “there was nothing to
corroborate [the victim’s] version of events,” . . . and
that court accepted the contention as correct for the
purposes of its decision. We do the same here.
Carmell II, 529 U.S. at 519 n.4 (emphasis added) (internal citations omitted).
The most plausible reading of this passage is that the Court only assumed a lack
of corroborating evidence, arguendo, in order to reach the ex post facto question.
Such assumptions are not part of the mandate and, as such, do not constrain the
lower court on remand. See WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND
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PROCEDURE: JURISDICTION 2d § 4478.3, at 757 (2002) (“A mere recital of matters
assumed for purposes of decision and dicta are not part of the mandate.”
(emphasis added)); United States v. Uccio, 940 F.2d 753, 757–58 (2d Cir. 1991)
(explaining that the passage in the court of appeals’ opinion that simply stated
the position taken by the district court before the appeal was not a ruling on the
issue and did not establish the law of the case). Thus, the Court’s later
references to insufficient corroboration neither explicitly nor implicitly disposed
of the issue.
Further support for this interpretation is found in Justice Ginsburg’s
dissent in Carmell II. Cf. Harris v. Sentry Title Co., 806 F.2d 1278, 1280–81 (5th
Cir. 1987) (relying, in part, on the dissent in the prior appeal to determine the
scope of the court’s mandate). In particular, the dissent cites the majority
opinion’s footnote four, noting:
The Texas Court of Appeals did not rule on whether the
State in fact did corroborate [the victim’s] testimony at
trial. I note the testimony of [the victim’s] mother that
when she visited Carmell in jail and told him he needed
to confess if he was sorry for what he had done, he
wrote “‘adultery with [the victim]’” on a piece of paper.
[Carmel I,] 963 S.W.2d at 835. That testimony might
count as corroboration. Because this question is outside
the grant of certiorari, I (like the Court, see ante, at
[519] n.4) do not further address it.”
Carmell II, 529 U.S. at 555 n.2 (Ginsburg, J., dissenting) (emphasis added).
Additionally, it is key that the majority opinion’s ultimate holding was
open-ended—“we hold that petitioner’s convictions on [C]ounts 7 through 10,
insofar as they are not corroborated by other evidence, cannot be sustained under
the Ex Post Facto Clause”—and instructed that “the judgment of the Texas
Court of Appeals is reversed, and the case is remanded for further proceedings
not inconsistent with this opinion.” Id. at 552–53 (emphasis added). Taken as
a whole, it is clear that the Supreme Court in fact neither considered nor decided
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No. 06-40578
(even implicitly) the issue of corroboration, and thus the Texas Court of Appeals
decision to visit the issue of corroboration on remand was not inconsistent with
the Supreme Court’s mandate.5
Additionally, we find unpersuasive Carmell’s citations to decisions from
other courts construing his victory in Carmell II to suggest that a different
outcome should have resulted on remand in Carmell III. See, e.g., Hameen v.
Delaware, 212 F.3d 226, 241–42 (3d Cir. 2000) (“[The Carmell II Court] held that
the 1993 amendment to the Texas law was ex post facto as applied to [Carmell]
because it reduced the ‘quantum of evidence’ necessary to convict [Carmell]
inasmuch as without the amendment he could not have been convicted on the
counts in question.”); McColloch v. State, 39 S.W.3d 678, 683 (Tex.
App.—Beaumont 2001, pet. ref’d). Those opinions only invoked Carmell II for
its ex post facto analysis. They neither conducted a searching review of the case
nor ascertained the exact scope of the mandate. For those courts’ purposes, it
was sufficient to present the underlying facts in Carmell II without explaining
that the corroboration issue had yet to be decided in fact.
Carmell further argues that the Texas Court of Appeals determined in
Carmell I that there was insufficient evidence to corroborate the victim’s
testimony, and, thus, that its subsequent decision on remand, Carmell III, also
conflicted with the “law of the case.” Carmell misreads the opinion of the Texas
Court of Appeals in Carmell I, which only mentioned the issue of corroborating
5
We also note that the Supreme Court, in reaching its conclusion that the Texas Court
of Appeals’ decision violated the Ex Post Facto Clause, stated the Texas rule that a “trial
court’s failure to comply with the requirements of [a]rticle 38.07 . . . results . . . in the reversal
of conviction and remand for entry of an order of acquittal.” Id. at 518 n.2. Because the
sufficiency requirements of article 38.07 were not included in the jury instructions at trial and
were first raised as an issue when Carmell appealed his convictions, the “trial court” did not
“fail[ ] to comply with the requirements of [a]rticle 38.07.” Id. Consequently, the improper
application of the amended version of article 38.07 occurred in the Texas Court of Appeals in
Carmell I and could be corrected on remand by applying the pre-amendment statute to the
record evidence without transgressing the Supreme Court’s mandate.
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No. 06-40578
evidence in framing Carmell’s argument. See Carmell I, 963 S.W.2d at 836 (“In
his sixth point, appellant argues that he should be acquitted of one of the sexual
assault convictions because [the victim] did not tell her mother about the abuse
until ‘years after the offense’ and there was nothing to corroborate [the victim’s]
version of events.” (emphasis added)). Thereafter, the Court dealt solely with the
issue of which version of article 38.07 should apply—the ex post facto issue. See
id.
In sum, we agree with the district court’s decision to deny relief on this
issue because we cannot say that the state habeas court’s decision—an implied
conclusion that Carmell III is not inconsistent with Carmell II—“was contrary
to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).
B.
Carmell also contends that he was denied effective assistance of appellate
counsel in the Texas Court of Appeals during the continuation of his direct
appeal proceedings on remand from the Supreme Court. As support, Carmell
points to his first attorney’s withdrawal from the case because of his
“unwillingness to be a zealous advocate” and to his second attorney’s failure to:
“(1) file a brief, (2) file a responsive brief to the State’s brief, (3) file a motion for
extension of time to file a brief, and/or (4) request oral argument.” Additionally,
Carmell urges that both attorneys’ alleged failures amounted to the constructive
denial of any assistance on appeal requiring a presumption of prejudice. See
Penson v. Ohio, 488 U.S. 75, 88 (1988). Alternatively, Carmell submits that
prejudice exists because there is a reasonable probability that, but for counsels’
deficient performance, Carmell would have prevailed on remand.
Before turning to the merits of Carmell’s ineffective assistance of counsel
claim, we first address a factual finding of the district court. In its answer to
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Carmell’s federal habeas petition, the State argued, very briefly, that Carmell
could not allege that he received ineffective assistance of counsel when he
requested that his counsel withdraw at a critical stage of the proceeding.6 The
MJ’s report and recommendation, which was adopted by the district court, found
that “counsel withdrew as counsel for Petitioner based upon Petitioner’s own
request” in the July 5, 2000 letter and that Carmell had failed to show deficient
performance by virtue of that requested withdrawal.
The district court’s determination that Carmell requested Whitlock to
withdraw as counsel is a finding of fact that is reviewed for clear error. Bosley,
409 F.3d at 662. For the reasons stated below, we conclude that the district
court’s finding that Carmell requested Whitlock to withdraw is clearly
erroneous.
Whitlock’s motion to withdraw as counsel states that he withdrew because
he “could not meet certain criteria set out in writing by [Carmell].” The criteria
set forth in the letter, detailed supra in Part I, do not exceed reasonable
expectations of competent representation. Confidentiality, communication, and
collaboration are essential to all representations and are neither excessive nor
unreasonable demands to make upon counsel. Carmell’s post-script to “do
whatever it takes to win[, o]r get me another attorney” was not a directive
requiring Whitlock to withdraw. Indeed, Carmell’s letter concluded with the
statement that he was looking forward to a phone call or visit from Whitlock.
6
In the State’s appellate brief, its argument in the district court has morphed into two
more complicated legal arguments: (1) the invited error doctrine estops Carmell from claiming
ineffective assistance of counsel because he terminated Whitlock’s representation; and (2)
Carmell waived his right to counsel by insisting upon his choice of counsel at a critical stage
of the proceedings. We do not address arguments raised for the first time on appeal. Instead,
we will address the argument which the State made to the district court and formed the basis
for the district court’s finding of fact (and ensuing legal conclusion). We note, however, that
the state trial court obviously did not conclude that Carmell waived his right to counsel based
upon the letter because it simultaneously appointed McKeathen when it allowed Whitlock to
withdraw as counsel.
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In sum, Carmell’s letter was merely an expression of an earnest desire to have
competent, dedicated representation during the remand proceedings. Only
Whitlock was in a position to determine if he had sufficient time and resources
to provide Carmell with the quality of representation described in the letter.
Whitlock made this determination unilaterally and had no contact with Carmell
regarding the decision to withdraw. Therefore, we conclude that the district
court erred when it found Carmell requested Whitlock to withdraw.
We next turn to the substance of Carmell’s ineffective assistance of counsel
claim. After the district court faulted Carmell for the ill-timed substitution of
counsel, it apparently failed to consider Carmell’s argument that his second
attorney, McKeathen, rendered constitutionally ineffective assistance of counsel
by failing to file any brief or motion for extension of time before the Texas Court
of Appeals.
A criminal defendant has a constitutional right to the effective assistance
of counsel on his first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 397
(1985). Because an appellant after remand “stands in the same position” under
Texas law as when the initial appeal was filed, Theus v. State, 863 S.W.2d 489,
491 (Tex. Crim. App. 1993) (en banc), this constitutional guarantee extends to
the remand proceedings here. Ordinarily, to prevail on a claim of ineffective
assistance of counsel, a defendant must show: (1) that his counsel’s performance
was deficient in that it fell below an objective standard of reasonableness; and
(2) that the deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 689–94 (1984). To demonstrate prejudice, a
petitioner must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Id. at 694. However, “[i]n certain Sixth Amendment contexts, prejudice is
presumed.” Id. at 692. One such context includes the “[a]ctual or constructive
denial of the assistance of counsel altogether.” Id.; Penson, 488 U.S. at 88.
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No. 06-40578
Carmell contends that the circumstances of his appointment of counsel rendered
it a “mere formal appointment” and the proceedings on remand a “meaningless
ritual.” Consequently, he argues that prejudice should be presumed, as it was
in Penson.
In Penson, the petitioner’s appellate counsel filed a document captioned
“Certification of Meritless Appeal and Motion,” failing to draw attention to
anything that might arguably support the appeal as suggested by the Court in
Anders v. Califonia,7 and moved the court to allow him to withdraw as appellate
counsel. 488 U.S. at 77–78. The state appellate court granted the counsel’s
motion to withdraw before its own examination of the record. Id. at 78. Some
time later, the state court reviewed the case and found that the record supported
several arguably meritorious grounds for reversal of the petitioner’s conviction
and modification of his sentence. Id. at 81. Nevertheless, it did not appoint new
counsel. Id. The Supreme Court held that the state appellate court had erred
when it failed to appoint new counsel once it had determined that the record
supported several arguable claims. Id. at 83–84. Because this left the petitioner
“entirely without the assistance of counsel on appeal,” the Court presumed
prejudice. Id. at 88–89.
In the more recent case of Smith v. Robbins, 528 U.S. 259 (2000), the
Court further explained the scope of its holding in Penson. Namely, in Penson
the Court “distinguished denial of counsel altogether on appeal, which warrants
a presumption of prejudice, from mere ineffective assistance of counsel on
appeal, which does not.” Id. at 286. In Robbins, the Court concluded that
because the defendant there “ha[d] received appellate counsel who ha[d]
7
386 U.S. 738, 744 (1967) (holding that a criminal appellant may not be denied
representation on appeal based on appointed counsel’s bare assertion that he or she is of the
opinion that there is no merit to the appeal and thus providing a prophylactic procedure under
such circumstances, requiring a “conscientious examination” of the case and a “brief referring
to anything in the record that might arguably support the appeal”).
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No. 06-40578
complied with a valid state procedure for determining whether the defendant’s
appeal [was] frivolous, and the State ha[d] not at any time left the defendant
without counsel on appeal, there [was] no reason to presume that the defendant
had been prejudiced.” Id. (emphasis added).8 The Robbins Court reiterated that
while a “strong presumption of reliability” normally applies to judicial
proceedings, “when, as in Penson, there has been a complete denial of counsel,
[courts] understandably presume the opposite.” Id.
Here, Carmell contends that because his first attorney withdrew and no
brief was ever filed on his behalf during his appeal proceedings on remand, his
situation is similar to that of the petitioner in Penson. However, the facts
presented in Penson were more egregious than those in this case in that in
Penson the state appellate court chose not to appoint new counsel even after it
discovered arguable merit in the petitioner’s appeal. Those facts stand in stark
contrast to the Texas trial court’s decision here to appoint new counsel the same
day that Carmell’s first attorney on remand was permitted to withdraw. As
such, Carmell, unlike the petitioner in Penson, was never actually denied
counsel at a critical stage of his appeal on remand. See Roe v. Flores-Ortega, 528
U.S. 470, 483 (2000) (“The presumption that counsel’s assistance is essential
requires us to conclude that a trial is unfair if the accused is denied counsel at
a critical stage. The same is true on appeal.” (citations and internal quotation
marks omitted)).
Of course, the “complete denial of counsel,”—when counsel is either totally
absent or prevented from assisting the accused during a critical stage of a
proceeding—is not the only situation in which prejudice is presumed. Wright v.
8
The Court’s holding in Robbins stemmed, at least in part, from federalism and
separation-of-powers concerns raised by the prospect of the federal judiciary dictating specific
details of an Anders process to states, rather than leaving the “challenging task of crafting
appropriate procedures . . . to the laboratory of the States in the first instance.” Id. at 275
(alteration in original) (citation and internal quotation marks omitted).
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No. 06-40578
Van Patten, --- U.S. ---, 128 S. Ct. 743, 746 (2008) (citation omitted). In United
States v. Cronic, 466 U.S. 648, 658 (1984), the Supreme Court recognized two
additional situations in which a Sixth Amendment violation may be found
“without inquiring into counsel’s actual performance or requiring the defendant
to show the effect it had” on the proceeding. Bell v. Cone, 535 U.S. 685, 695
(2002). They include: “where counsel is called upon to render assistance under
circumstances where competent counsel very likely could not”; and, most
relevant here, where a petitioner is represented by counsel, but his or her
“counsel entirely fails to subject the prosecution’s case to meaningful adversarial
testing.” Id. at 696 (emphasis added) (citation omitted); see Cronic, 466 U.S. at
656 (“The right to effective assistance of counsel is . . . the right of the accused
to require the prosecution’s case to survive the crucible of meaningful
adversarial testing.”). With respect to the latter category of cases, the Court has
clearly indicated that the attorney’s failure to test the prosecution’s case must
be complete in order to presume prejudice. Cone, 535 U.S. at 697; see also
Haynes v. Cain, 298 F.3d 375, 381 (5th Cir. 2002) (en banc) (reinforcing the
notion that defense counsel must entirely fail to subject the prosecution’s case to
meaningful adversarial testing for the Cronic exception to apply).
Here, Carmell’s attorneys completely failed to challenge the State’s case
during remand proceedings in the Texas Court of Appeals. Specifically,
Carmell’s first court-appointed attorney on remand, Whitlock, failed to discuss
the case with him. And, Carmell’s second court-appointed attorney, McKeathen,
failed to check with Whitlock, the State’s attorney, or the court in order to
determine the status of the case before the Texas Court of Appeals’ judgment
was issued; failed to file a timely motion for leave to file a supplemental brief or
for extension of time; and ultimately failed to file a brief in the Texas Court of
Appeals responding to the State’s arguments. Without any brief filed on his
behalf, Carmell was deprived of his right to challenge the State’s
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No. 06-40578
characterization of the trial evidence and the legal theory upon which the Texas
Court of Appeals searched the record de novo for corroboration of the victim’s
testimony. In addition, McKeathen never notified Carmell of his appointment
as attorney of record, thereby leaving Carmell entirely unaware of what was
occurring in the appeal process. These aggregated errors undermined the
reliability of the process. And, they are of sufficient magnitude to warrant the
presumption of prejudice and for us to conclude that Carmell’s constitutional
right to the effective assistance of counsel on appeal (after remand) was violated.
Therefore, we conclude that, in light of the complete lack of an adversarial
testing of issues stemming from the Supreme Court’s remand order, the state
habeas court’s denial of relief on Carmell’s ineffective assistance of counsel claim
was an objectively unreasonable application of the Supreme Court’s clearly
established Sixth Amendment jurisprudence. See Neal, 286 F.3d at 236
(analyzing an ineffective assistance of counsel claim under the “unreasonable
application” standard of § 2254(d)(1)). As such, the district court erred in
denying Carmell federal habeas relief.
III.
For the foregoing reasons, we AFFIRM the district court’s denial of relief
based on the alleged failure of the Texas Court of Appeals to follow the Supreme
Court’s mandate. But, with respect to Carmell’s ineffective assistance of
appellate counsel claim on remand, we REVERSE the district court’s judgment
denying habeas relief and REMAND the case to the district court for entry of
judgment granting habeas relief on Counts 7 through 10, unless the state affords
Carmell an out-of-time appeal in the Texas Court of Appeals, with the assistance
of counsel, within such reasonable time as the district court may fix.
19