Patrick v. Cockrell

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 01-10644 _______________

JESSE JOE PATRICK,

Petitioner-Appellant,

VERSUS

JANIE COCKRELL, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________

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

March 13, 2002

Before SMITH, BENAVIDES, and DENNIS, Jesse Patrick applies for a certificate of ap- Circuit Judges. pealability (“COA”) to challenge the denial of habeas corpus relief. We deny the application. JERRY E. SMITH, Circuit Judge:* I. Patrick was convicted of capital murder and * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be pub- * lished and is not precedent except under the limited (...continued) (continued...) circumstances set forth in 5TH CIR. R. 47.5.4.

sentenced to death; the conviction was af- The parties offer differing versions of what firmed on direct appeal, and the Supreme was properly appealed from the district court. Court denied a petition for writ of certiorari. Patrick seeks review of the August 22 opinion Patrick applied for and was denied habeas and order, contending that review of all issues relief from a state trial court in Texas; the encompassed in the order is proper, because denial was affirmed by the Texas Court of the grant of the second rule 60(b) motion (on Criminal Appeals. April 17) rendered his notice of appeal of May 16, 2001, timely under FED. R. APP. P. 4(a)- Patrick next filed for habeas relief in federal (1)(A). The state, though, avers that district court, which declined to issue a writ jurisdiction over the underlying appeal is per an opinion and order entered August 22, limited to a review of the soundness of the 2000. On September 11, 2000, Patrick moved rulings on the first rule 60(b) motion, because under FED. R. CIV. P. 59 to alter or amend the our precedents require reversal of the grant of judgment, alleging numerous errors in the the second rule 60(b) motion. opinion and order. Because the motion was untimely under FED. R. CIV. P. 6(a) and 59, it There is no doubt that Patrick’s rule 59(e) ultimately was construed as a FED. R. CIV. P. motion was untimely. Tardy rule 59(e) 60(b) motion for relief from judgment and was motions are properly treated as rule 60(b) denied on April 17, 2001.1 In the intervening motions. Halicki v. La. Casino Cruises, Inc., period, Patrick filed a rule 60(b) motion for 151 F.3d 465, 470 (5th Cir. 1998). With the relief from judgment, requesting the court to motion so construed, the district court vacate and re-enter the order so it would be declined to grant relief under the rule 60(b) timely. On the same day the court denied the standard for relief from judgment. first rule 60(b) motion, it granted the second. Because our resolution of the second rule II. 60(b) motion may moot the controversy over The parties contest the extent to which we the first such motion, we address it first. As have appellate jurisdictionSSnot jurisdiction to entertain the application for COA, but jurisdic- 2 tion over the underlying appeal. If we de- (...continued) termine that we are without jurisdiction over Patrick’s claim. The state’s procedural bar argu- the underlying appeal, we will not grant a ment is based on Patrick’s alleged failure to de- COA. Murphy v. Johnson, 110 F.3d 10 (5th velop the factual basis for his ineffective assistance Cir. 1997) (denial of COA for failing to meet of counsel claim in state court. 28 U.S.C. exhaustion requirement).2 § 2254(e)(2).

As the state concedes, this argument was not raised in the district court. Although we may raise 1 this procedural bar sua sponte in appropriate cir- Rule 59(e) requires such motions to be filed within ten days. Rule 6(a) sets out the method for cumstances, Smith v. Johnson, 216 F.3d 521, 524 calculating this ten-day period. (5th Cir. 2000), we do not find the circumstances of this case appropriate for sua sponte 2 In its brief, the state also raises the prospect of consideration. For one thing, because this is an procedural bar to prevent our habeas review of application for a COA, Patrick has not received (continued...) notice the procedural bar would be at issue.

we have said, the district court granted Patrick would have us use rule 60(b) to Patrick’s second rule 60(b) motion for relief circumvent the requirement of rule 4(a)(5). from judgment and entered a final judgment on This we decline to do. Where the “excusable April 17. Patrick timely filed a notice of neglect ” of a party results in failure timely to appeal from this entry of final judgment. The file an appeal, the more specific language of question is whether the entry of a new rule 4(a)(5) must govern over the more judgment, effectively resetting the appellate general language of rule 60(b). Thus, is cases clock for the substantive issues decided in the such as this, the thirty-day time limit of rule August 22 judgment, was an abuse of 4(a)(5), not the one-year limit of rule 60(b), discretion. prevails.4 West v. Keve, 721 F.2d 91, 95 (3d Cir. 1983); JAMES WM. MOORE ET AL., Federal Rule of Appellate Procedure 4(a)- MOORE’S FEDERAL PRACTICE § 304.14[5] (3d (5)(A)(i) sets a thirty-day limit on motions for ed. 2001). extension of time to file an appeal. Such ex- tensions may be granted by the district court This conclusion does not doom the entire on a showing of “excusable neglect.” FED. R. application for COA. Patrick’s notice of ap- APP. P. 4(a)(5)(A)(ii). The use of rule 60(b) peal is still effective, but only as to the order to extend the deadline in appellate rule 4(a) is denying the first rule 60(b) motion and not as generally prohibited. United States v. O’Neil, to the original judgment denying habeas relief, 709 F.2d 361, 372 (5th Cir. 1983); Chick Kam as to which it is untimely. Choo v. Exxon Corp., 699 F.2d 693, 694 (5th Cir. 1983). In that first motion, Patrick raised six is- sues: (1) Did the district court use an We recognize that there are cases incorrect standard in reviewing the ineffective permitting a rule 60(b) motion to set a new assistance of counsel claim; (2) was Patrick date for calculating the time to appeal where rule 4(a)(5) is not available. See, e.g., Fidelity & Deposit Co. v. USAFORM Hail Pool, Inc., 3 (...continued) 523 F.2d 744, 750-51 (5th Cir. 1975). These judgment, upheld the decision of the district court cases, though, appear to rely on a failure of the to reset the time for appeal by use of a rule 60(b) part y to receive notice of the entry of motion. Id. at 396. We join the Eighth Circuit in judgment.3 refusing to follow this decision. See Zimmer St. Louis Co. v. Zimmer Co., 32 F.3d 357 (8th Cir. 1994). 3 One case that arguably does not fall within 4 this class is Lewis v. Alexander, 987 F.2d 392 (6th There is a minor exception to this scheme, not Cir. 1993). The petitioner in Lewis failed to file a applicable here. Where the party seeking to appeal timely notice of appeal because it was docketed late out of time has been prejudiced by a failure to by the clerk (thus rendering the notice outside the receive notice of the entry of judgment (or ruling on thirty-day window of rule 4(a)). Petitioner’s a motion), the district court may reopen the time attorney failed to notice the late docketing until for appeal, but may only grant such a motion only after the time for filing a rule 4(a)(5) motion had if it is made within 180 days of the entry of lapsed. The court, apparently following cases judgment (or a ruling) and the conditions regarding based on a failure to receive notice of the entry of lack of notice are met. F ED. R. APP. P. 4(a)(6). (continued...) Patrick made no such motion.

deprived of effective assistance of counsel; denial of rule 60(b) relief from the original (3) did the court improperly deny Patrick judgment would be an abuse of discretion. funds under 21 U.S.C. § 848(q)(9) to develop his claims of mental illness and childhood IV. abuse; (4) was he denied due process by the Patrick argues that the district court em- refusal to submit to the jury a definition of ployed an improper legal standard to evaluate “deliberate”; (5) is article 37.071 of the Texas his habeas petitionSSusing the “reasonable jur- Code of Criminal Procedure unconstitutionally ists” standard of Drinkard v. Johnson, 97 F.3d vague; and (6) did the court’s refusal to define 751 (5th Cir 1996). This standard was “deliberately” contribute to the sentence of explicitly disapproved by the Supreme Court in death, in violation of the Eighth Amendment? Williams v. Taylor, 529 U.S. 362, 410 (2000) Patrick also raises, for the first time on appeal, (opinion of O’Connor, J.). Even if the court a challenge to the jury charge at the sentencing applied the incorrect standard, such error is phase of his trial. harmless if the court reached the right result. Beazley v. Johnson, 242 F.3d 248, 257 (5th III. Cir.), cert. denied, 122 S. Ct. 329 (2001). “To obtain a COA under § 2253(c), a Thus, our determination of whether the district habeas prisoner must make a substantial show- court reached the right result on the ineffective ing of the denial of a constitutional right.” assistance of counsel claim will also settle this Slack v. McDaniel, 529 U.S. 473, 483 (2000). issue. This demonstration “includes showing that reasonable jurists could debate whether (or, V. for that matter, agree that) the petition should Patrick claims his counsel was have been resolved in a different manner or constitutionally ineffective for failing further to that the issues presented were ‘adequate to investigate his psychological condition and for deserve encouragement to proceed further.’” failing to introduce mitigating evidence of his Id. at 484 (quoting Barefoot v. Estelle, 463 abusive childhood. Ineffective assistance U.S. 880, 894 & n.4 (1983)). claims are reviewed under Strickland v. Washington, 466 U.S. 668 (1984), which Patrick’s application also must be filtered requires the petitioner to show both a failure through the deference owed a rule 60(b) rul- by counsel that drops below an objective ing, which is reviewed only for abuse of dis- standard of reasonableness and a resulting cretion. Aucoin v. K-Mart Apparel Fashion prejudice. Id. at 687. This prejudice must be Corp., 943 F.2d 6, 8 (5th Cir. 1991). This re- sufficient to undermine confidence in the view is narrower than in a direct appeal, be- reliability of the trial. Id. cause it is confined to the propriety of the rule 60(b) ruling, not of the underlying action. Id. Patrick attempts to show ineffectiveness on To do otherwise would eviscerate the rules for account of his attorney’s failure to make fur- timely filing of appeals. Thus, to be entitled to ther investigations into his psychological health a COA, Patrick must demonstrate a denial of and abusive childhood. He claims such a constitutional right that is not only investigations would have uncovered organic substantial enough to meet the standard of brain damage or psychological problems. Slack, but also substantial enough that the There is no doubt criminal defense attorneys

have a duty to investigate as part of their ob- VI. ligation to provide effective assistance. Id. at Patrick alleges improper denial of funds to 691. This duty, however, is limited by the develop his claims of abuse and mental illness. same reasonableness standard applicable to A district court is authorized, on finding that other decisions of counsel. Id. investigative services are “reasonably necessary” to a habeas petitioner’s defense (to Patrick’s argument on this point is easily guilt or punishment), to pay for such services. refuted. When extensive psychological testing 21 U.S.C. § 848(q)(9). Patrick contends he was conducted on him more than ten years was erroneously denied these funds. We need after the initial trial, no organic brain damage not address the merits of this claim, because a was detected.5 The only psychological dis- COA is not a prerequisite to appealing the de- orders discerned were depression, anxiety, and nial of § 848(q) funds. Hill v. Johnson, 210 chronic post-traumatic stress. Even with the F.3d 481, 487 n.3 (5th Cir. 2000), cert. benefit of hindsight, counsel’s decision not to denied, 532 U.S. 1039 (2001). pursue additional psychological testing was en- tirely reasonable and did not fall below the VII. threshold of objectively reasonable Patrick presents three issues regarding the competence. Furthermore, even if we were to propriety of the trial court’s handling and use assume the decision not to pursue additional of the term “deliberately” to describe and eval- testing was deficient performance, we are not uate his mens rea. Specifically, Patrick alleges convinced the result of the trial would have that (1) the trial court’s refusal to submit a been different. definition of “deliberate” to the jury violated his right to due process, (2) article 37.071 of Patrick also points to trial counsel’s the Texas Code of Criminal Procedure is decision not to present mitigating evidence of unconstitutionally vague, and (3) the trial his abusive childhood and possible mental court’s refusal to define “deliberate” resulted illness. Patrick draws an analogy between his in a sentence of death in violation of the case and Williams v. Taylor, 529 U.S. 362 Eighth Amendment. (2000). Like the trial counsel in Williams, Patrick’s attorney failed to offer all possible All of these arguments depend on our find- mitigating evidence at his disposal. Unlike the ing a constitutional infirmity in the trial court’s petitioner in Williams, however, Patrick has use of the term “deliberate” in a capital case. not uncovered significant potentially mitigating Despite Patrick’s repeated characterizations of evidence since trial that counsel should have the possible problems with the use of discovered by conducting the type of “deliberate,” our caselaw squarely denies any investigation consistent with the command of infirmities in its use. Washington. Thus, even though Patrick’s counsel may not have provided assistance in The refusal to define the term was entirely accord with Washington, this failure did not appropriate in light of our precedents noting prejudice Patrick. that “deliberate” has a common-sense meaning and need not be further elucidated. Thompson v. Lynaugh, 821 F.2d 1054, 1060 (5th Cir. 5 The physician did, however, opine that further 1987) (holding that “deliberate” is “sufficiently testing might reveal such damage.

clear to allow the jury to decide the special on Penry v. Johnson (“Penry II”), 532 U.S. issues on punishment”).6 The Thompson court 782 (2001), which clarified Penry v. Lynaugh also was faced with an Eighth Amendment (“Penry I”), 492 U.S. 302 (1989).8 claim raised in the context of a challenge to the use of the word “deliberate.” The court The only bar to Patrick’s raising this construed this claim as a general due process argument now is our usual rule refusing to challenge to the fairness of the trial, and denied consider arguments not raised in the district habeas relief because “deliberate” has a court. North Alamo Water Supply Corp. v. common-sense meaning. Id. at 1060. Based City of San Juan, 90 F.3d 910, 916 (5th Cir. on the reasoning in Thompson, we see no 1996) (citing Singleton v. Wulff, 428 U.S. 106, constitutional problem with § 37.071.7 120 (1976)). We recognize an exception to this rule where “the issue involved is a pure VIII. question of law and a miscarriage of justice Patrick challenges the jury charge used dur- would result from our failure to consider it.” ing the sentencing portion of his trial. He Id. bases this challenge on Robertson v. Cockrell, 279 F.3d 1062 (5th Cir. 2002). There, we The timing of Patrick’s Robertson granted habeas relief to a petitioner who had argument precludes any suggestion of a received a jury instruction almost identical to miscarriage of justice. The Supreme Court that in Patrick’s case. Our panel in turn relied granted certiorari in Penry II on November 27, 2000, and issued its opinion on June 4, 2001. The grant of certiorari was during the 6 pendency of Patrick’s petition before the See also Nethery v. Collins, 993 F.2d 1154, district court; the opinion was handed down 1162 (5th Cir. 1993) (same); Milton v. Procunier, well before Patrick filed his original brief with 744 F.2d 1091, 1095-96 (5th Cir. 1984) (same). this court. His failure to raise an argument 7 In relevant part, this section reads, based on Penry II belies any claim he may have to an exception to our normal appellate On conclusion of the presentation of the waiver rule. evidence, the court shall submit the following three issues to the jury: There is an additional reason Patrick is not entitled to raise a Penry II argument before (1) whether the conduct of the this panel. A Penry claim must be based on defendant that caused the death of mitigating evidence actually presented, not evi- the deceased was committed dence that merely could have been presented. deliberately and with the Boyd v. Johnson, 167 F.3d 907, 912 (5th Cir. reasonable expectation that the 1999). Patrick has not raised sufficient death of the deceased or another would result. mitigating evidence to warrant relief under Penry II and Robertson. Indeed, his main TEX. CODE CRIM. P ROC. ANN. art. 37.071(b)(1) contention in support of his ineffective (Vernon 1990). This section has been amended assistance of counsel claim was his counsel’s several times since Patrick’s sentencing. See, e.g., 1991 Tex. Sess. Law Serv. ch. 838; 1999 Tex. 8 Sess. Law Serv. ch. 140. Penry v. Lynaugh, 492 U.S. 302 (1989).

failure to offer mitigating evidence. The application for a COA is DENIED.