Case: 19-11200 Document: 00516789844 Page: 1 Date Filed: 06/16/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 16, 2023
No. 19-11200 Lyle W. Cayce
____________ Clerk
Mark Moody,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CV-298
______________________________
Before Barksdale, Southwick, and Higginson, Circuit Judges.
Rhesa Hawkins Barksdale, Circuit Judge:
This appeal calls into play limitations placed on federal habeas review
by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28
U.S.C. §§ 2241–66, which promotes numerous objectives—most relevant
here, finality. The district court denied as untimely Texas state prisoner
Mark Moody’s 28 U.S.C. § 2254 habeas petition. At hand are the two issues
for which our court granted the controlling certificate of appealability,
pursuant to
28 U.S.C. § 2253(c): whether there is a constitutional right to
counsel in a state postconviction proceeding when it is petitioner’s “first
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opportunity to raise” an ineffective-assistance-of-trial-counsel claim; and
whether the equitable exception to procedural default announced in Martinez
v. Ryan, 566 U.S. 1 (2012), applies to AEDPA’s statute of limitations.
AFFIRMED.
I.
Moody, after waiving his right to appeal in his plea agreement, did not
file a direct appeal of his 2015 Texas conviction. His 2017 application for
state postconviction relief from that 2015 sentence was denied in 2018. In
2019, he filed this § 2254 petition, which was denied as untimely. Moody
contends the Supreme Court’s decision in Martinez, and its extension in
Trevino v. Thaler, 569 U.S. 413 (2013), excuse his untimeliness.
A.
Moody pleaded guilty in October 2015 to the Texas offense of driving
while intoxicated and felony repetition, in violation of Texas Penal Code
§§ 49.04 (DWI) & 49.09 (enhancement). The indictment included two
enhancement paragraphs. The first, titled “felony repetition”, stated Moody
had two prior misdemeanor Texas DWI convictions, in 1994 and 1998. The
second paragraph, titled “habitual offender notice”, stated he had two prior
felony Texas DWI convictions, in 1999 (DWI and felony repetition) and 2009
(same).
A third DWI conviction is a third-degree felony in Texas. Tex.
Penal Code § 49.09(b). Third-degree felonies typically carry a 10-year
maximum sentence. § 12.34. A third-degree felony, however, is punished as
a second-degree felony, with a 20-year maximum sentence, if defendant has
at least one prior felony conviction. § 12.42(a) (enhancement); § 12.33
(sentence). Finally, a third felony conviction—which applies to any felony
convictions, with exceptions not applicable here, not only felony DWI
convictions—classifies defendant as a “Habitual Felony Offender” and
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carries a sentence of either life or “any term of not more than 99 years or less
than 25 years”. § 12.42(d).
As part of his guilty plea in October 2015, Moody pleaded true to the
first enhancement paragraph (two prior misdemeanor DWI convictions); and
he and the State agreed his offense would be treated as a third-degree felony
subject to being punished as a second-degree felony pursuant to the
§ 12.42(a) enhancement discussed above, thus facing a maximum sentence
of 20 years. By doing so, Moody avoided facing the habitual-offender
enhancement, which he otherwise would have risked because of his two prior
felonies and, as stated, carries a 25-year minimum with the possibility of lifeimprisonment. His plea also included, inter alia, an appeal waiver.
The court on 19 October 2015 accepted his plea and sentenced him to
20-years’ imprisonment. Consistent with the appeal waiver, he did not file a
direct appeal.
B.
1.
Two years and two months after sentencing, Moody on 21 December
2017 filed a pro se habeas application in Texas state court, claiming the
following. His 1998 DWI conviction was obtained in violation of his Sixth
Amendment right to counsel (incorporated through the Fourteenth
Amendment) because he was never offered appointed counsel or informed of
his right to counsel, and his waiver of attorney was signed unknowingly,
rendering it void. Next, his 1998 conviction was used to enhance his 1999
conviction to a felony, and that 1999 felony conviction, in turn, subjected him
to the habitual-offender enhancement in his 2015 indictment (the sentence
for which he was serving). He would not have accepted the 2015 plea offer
had he not faced the habitual-offender enhancement; and, because his
unconstitutional 1998 conviction was used as the basis for seeking that
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enhancement, he was entitled to relief from his current (2015) sentence.
Finally, he had a right to appointed counsel for his postconviction proceeding
because it was his first appeal as of right.
The court adopted the State’s proposed findings and conclusions,
which included, inter alia, Moody’s failing to provide sufficient evidence and
authority in support of his claims. It transmitted the petition to the Court of
Criminal Appeals, recommending denial.
2.
The Court of Criminal Appeals on 4 April 2018 denied Moody’s
petition without a written order.
C.
1.
Nearly a year later, on 18 March 2019, Moody filed the 28 U.S.C.
§ 2254 habeas petition at issue. Proceeding pro se, he claimed—as he had in
his state proceeding—that his current (2015) sentence was unconstitutional
because his 1998 conviction was used to obtain his 2015 guilty plea. Relief
was warranted, he contended, because his appointed counsel was ineffective
during negotiation of his 2015 plea by failing to contest his unconstitutional
1998 conviction’s being used as a basis for enhancement. 1
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1
Regarding the federal habeas petition, we note that, in his state petition, Moody
did not explicitly raise, nor did the state court seem to construe his challenge as, an IATC
claim. And, because the district court denied the petition based on untimeliness, as
discussed further infra, it did not reach whether Moody’s claims were exhausted. See
§ 2254(b)(1) (providing, subject to exceptions, state prisoner must exhaust state remedies
before seeking federal habeas relief); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004)
(exhaustion requires state prisoner “fairly present his claim in each appropriate state
court” (citation omitted)). The State reserved the right to raise the exhaustion
requirement if Moody’s federal petition was deemed timely. See § 2254(b)(3) (“A State
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In support of his ineffective-assistance-of-trial-counsel (IATC) claim,
Moody alleged that, after sentencing, he contacted his 2015 counsel with
concerns about the voluntariness of his 1998 guilty plea upon discovering the
Supreme Court’s 1967 decision in Burgett v. Texas, 389 U.S. 109, 115 (1967)
(holding convictions obtained in violation of Gideon may not be used “to
support guilt or enhance punishment”). See generally Gideon v. Wainwright,
372 U.S. 335 (1963) (holding indigent defendants have constitutional right to
appointed counsel in criminal proceedings). Attached to his petition was
counsel’s response to a letter Moody had written him on 23 October 2015
(just days after the 19 October sentencing). Counsel’s response letter, dated
28 October, had not been included in Moody’s state habeas petition. 2
In that response letter, counsel stated he had examined (but without
specifying when) the record of the 1998 conviction and saw Moody signed an
attorney waiver which appeared to be legitimate. Counsel explained: “[i]f
there had been no waiver of counsel in the paperwork, then the conviction
would have been void, and subject to collateral attack”; and, if that had been
the case, it would have been sound strategy to contest the 2015 indictment by
challenging the 1998 conviction.
In that regard, counsel stated the signed waiver imposed on Moody
the burden of proving it was involuntary; in other words, the conviction was
_____________________
shall not be deemed to have waived the exhaustion requirement” unless it “expressly”
does so.).
2
Assuming Moody’s federal petition was timely and his IATC claim exhausted,
this presents the issue of whether the district court would be barred from considering this
letter in examining the merits of his claim. See Shinn v. Ramirez, 142 S. Ct. 1718, 1734
(2022) (holding “under § 2254(e)(2), a federal habeas court may not conduct an
evidentiary hearing or otherwise consider evidence beyond the state-court record based on
ineffective assistance of state postconviction counsel”). Because we affirm based on
untimeliness, we need not reach this issue.
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“not void” but “merely voidable”. Counsel further explained that, for the
2015 indictment, Moody “did not want” to risk going to trial “[f]or good and
sensible reasons”. Rather, he “got the best deal that was actually available
and sensibly avoided the risk of . . . getting a sentence of 25 years or more”.
The State countered that the petition was barred by AEDPA’s one-year statute of limitations, and that the limitations period should not be
equitably tolled. As referenced supra, it also reserved the right to raise the
exhaustion requirement if Moody’s petition was deemed timely. See
§ 2254(b)(3).
Moody responded his petition was timely because: (1) his state habeas
proceeding was the “first opportunity” to pursue his IATC claim; therefore,
that proceeding should be considered his first appeal as of right, for which he
was guaranteed the right to counsel; and (2) not having been appointed
counsel in the state habeas proceeding, his time to file his federal habeas
petition was tolled under the above-cited decision in Martinez v. Ryan, 566
U.S. 1 (2012) (holding ineffective assistance in initial-review collateral
proceedings can constitute sufficient cause to excuse procedural default).
Alternatively, he contended: (1) the one-year AEDPA limitations period did
not begin to run until the Court of Criminal Appeals denied his state petition
on 4 April 2018; therefore, his 18 March 2019 filing was timely, see
28 U.S.C.
§ 2244(d) (limitations period); and (2) his 2015 counsel’s “egregious
misconduct” warranted equitable tolling.
The district court rejected Moody’s contention that the limitations
period did not begin to run until his state petition was denied. It concluded
the one-year period began 18 November 2015 because that was the date the
time to file a direct appeal expired, therefore the time his conviction became
“final”. See § 2244(d) (providing limitations period commences from the
latest of, inter alia, “date on which the judgment became final by the
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conclusion of direct review or the expiration of the time for seeking such
review”). Accordingly, the court provided that, “absent any tolling”,
Moody’s time to file expired 17 November 2016, rendering untimely his 18
March 2019 filing in district court. (Moody does not challenge that finaljudgment date in our court.)
Regarding tolling, the court first concluded Moody was ineligible for
statutory tolling pursuant to § 2244(d)(2) (“properly filed” state habeas
application tolls AEDPA’s limitations period) because the one-year
limitations period that began on 18 November 2015 (when conviction became
final) had already expired when he filed his state petition on 21 December
2017. Second, equitable tolling was not warranted because Moody could
have discovered the Court’s 1967 Burgett decision “and raised his Gideon
claim in a timely-filed federal petition”, had he proceeded with reasonable
diligence. Finally, Martinez was inapplicable because that decision concerns
cause for excusing procedural default; it does not apply to AEDPA’s
limitations period.
Accordingly, the court denied Moody’s petition as untimely. It
contemporaneously denied a certificate of appealability (COA). Judgment
was entered on 2 October 2019, and Moody filed a notice of appeal on 29
October.
2.
In our court, Moody moved pro se for a COA, reasserting, and
elaborating on, the contentions he made in district court.
The requested COA was denied for his equitable-tolling and
constructive-denial-of-counsel issues. See United States v. Cronic, 466 U.S.
648, 659 (1984) (holding defendant is constructively denied counsel during
critical stage of criminal proceedings where counsel, inter alia, “fails to
subject the prosecution’s case to meaningful adversarial testing”).
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On the other hand, a COA was granted for his “Strickland [v.
Washington, 466 U.S. 668 (1984)] IATC claim and the issues of (1) whether
there is an exception to the constitutional rule that the right to counsel does
not apply to postconviction proceedings in cases where postconviction
proceedings are the first opportunity to raise an IATC claim and (2) whether
Martinez applies to statute-of-limitations issues under AEDPA”. Our court
also appointed Moody counsel. Because, as discussed infra, his petition is
untimely, we do not reach Moody’s IATC claim, including the exhaustion
issue referenced supra.
II.
Congress intended that AEDPA “further the principles of comity,
finality, and federalism” and “curb the abuse of the statutory writ of habeas
corpus”. Wallace v. Mississippi, 43 F.4th 482, 492 (5th Cir. 2022) (first
quoting Williams v. Taylor,
529 U.S. 420, 436 (2000); and then quoting
Graham v. Johnson,
168 F.3d 762, 780 (5th Cir. 1999)). Along that line, our
review is limited to the issues specified in the COA, which Moody has not
moved to expand. E.g., Simmons v. Epps,
654 F.3d 526, 535 (5th Cir. 2011);
Lackey v. Johnson,
116 F.3d 149, 151–52 (5th Cir. 1997).
In considering the issues allowed by the COA, we review “the district
court’s findings of fact for clear error and its conclusions of law de novo”.
Harrison v. Quarterman, 496 F.3d 419, 423 (5th Cir. 2007). Under AEDPA,
a federal court may grant a state prisoner’s habeas petition “if his
incarceration was the product of a state court adjudication that: ‘(1) 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
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding’”.
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Richardson v. Quarterman, 537 F.3d 466, 472 (5th Cir. 2008) (quoting
28
U.S.C. § 2254(d)).
A.
Moody, relying primarily on Justice Scalia’s dissent in Martinez,
contends that decision established a limited right to counsel in state
postconviction proceedings when those proceedings are a prisoner’s first
opportunity to pursue an IATC claim (sometimes referred to as initial-review
collateral proceedings). See Martinez, 566 U.S. at 18–19 (Scalia, J.,
dissenting) (“[T]he Court, in what it portrays as an admirable exercise of
judicial restraint, abstains from holding that there is a constitutional right to
counsel in initial-review state habeas. . . . Instead of taking that radical step,
the Court holds that, for equitable reasons, in a case such as the one before
us, failing to provide assistance of counsel, or providing assistance of counsel
that falls below the Strickland standard, constitutes cause for excusing
procedural default. The result, of course, is precisely the same”. (emphasis
omitted)). Moody claims, relying on the earlier-referenced decision in
Trevino v. Thaler, 569 U.S. 413 (2013), that his state habeas proceeding was
his first opportunity to pursue his IATC claim. See
id. at 428–29 (providing
Texas law “does not offer most defendants a meaningful opportunity to
present” an IATC claim). Therefore, Moody contends: he had a right under
Martinez to appointed counsel for that state habeas proceeding; and, because
he was not appointed counsel, his untimeliness should be excused.
The State counters in numerous ways, most notably: Martinez did not
establish a limited constitutional right to counsel in postconviction
proceedings; and adopting Moody’s proposed exception would conflict with
AEDPA’s objective of furthering finality, comity, and federalism.
Prior to Martinez, the Court long held no constitutional right to
counsel exists in discretionary appeals or collateral attacks on convictions.
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E.g., Lawrence v. Florida, 549 U.S. 327, 336–37 (2007); Coleman v. Thompson,
501 U.S. 722, 752 (1991); Pennsylvania v. Finley,
481 U.S. 551, 555 (1987); Ross
v. Moffitt,
417 U.S. 600, 610 (1974); Johnson v. Avery,
393 U.S. 483, 488
(1969). And this court, of course, followed suit. E.g., Matchett v. Dretke,
380
F.3d 844, 849 (5th Cir. 2004); In re Goff,
250 F.3d 273, 275–76 (5th Cir.
2001); Irving v. Hargett,
59 F.3d 23, 26 (5th Cir. 1995); Abraham v.
Wainwright,
407 F.2d 826, 828 (5th Cir. 1969).
Included in the above-cited examples, the Court in Coleman, around
20 years before Martinez, considered whether attorney error could constitute
sufficient cause to excuse procedural default where the attorney failed to
present a claim in state court. Coleman, 501 U.S. at 752–55. The procedural-default doctrine bars federal courts from reviewing habeas claims which were
denied by a state court pursuant to an independent and adequate state
procedural rule. E.g., id. at 729–32, 750. This rule is not jurisdictional, but
rather rooted in principles of federalism and comity; therefore, a prisoner’s
defaulted claim may be considered if he shows sufficient cause.
Id.
Coleman held “counsel’s ineffectiveness will constitute cause only if
it is an independent constitutional violation”. Id. at 755. The Court refused
to excuse Coleman’s default because a prisoner has no constitutional right to
an attorney in collateral proceedings; therefore, he bears the risk that
attorney error will result in procedural default, and there is no independent
constitutional violation when default occurs. Id. at 752–57.
In reaching that holding, the Court acknowledged that, for Coleman’s
proposed showing of cause to prevail, the general rule that there is not a right
to counsel in collateral proceedings would have to have “an exception . . . in
those cases where state collateral review is the first place a prisoner can
present a challenge to his conviction”. Id. at 755. The Court left that
question open because “one state court [had already] addressed Coleman’s
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claims”; therefore, he had a prior opportunity to present his challenges, so it
was enough that he did not have the right to counsel during his collateral
proceedings. Id.
This left-open question resurfaced in Martinez. Martinez’ state
postconviction petition was dismissed according to state procedural rules.
Martinez, 566 U.S. at 7. He claimed: his “state collateral proceeding was the
first place to challenge his conviction on grounds of ineffective assistance”;
therefore, “he had a constitutional right to an effective attorney in the
collateral proceeding”; and, because his postconviction counsel was
ineffective, causing his default, he had sufficient cause to excuse that default.
Id. at 4, 7–8.
At the outset, the Court noted that, although Martinez framed his
challenge as “a constitutional one”, the question before it was “more
narrow”: “whether a federal habeas court may excuse a procedural default
of an [IATC] claim when the claim was not properly presented in state court
due to an attorney’s errors in an initial-review collateral proceeding”. Id. at
5. Later, the Court recognized the question left open in Coleman regarding a
hypothetical right to counsel in these proceedings, but stated it was “not the
case” to resolve that question.
Id. at 8.
The Court held: “Where, under state law, [IATC claims] must be
raised in an initial-review collateral proceeding, a procedural default will not
bar a federal habeas court from hearing a substantial claim of [IATC] if, in
the initial-review collateral proceeding, there was no counsel or counsel in
that proceeding was ineffective”. Id. at 17 (emphasis added). It clarified
numerous times its holding was a narrow, equitable one, applicable only to
procedural default, and not a constitutional ruling. E.g.,
id. at 4, 8, 16.
Soon after that decision, the Court extended the Martinez procedural-default exception to criminal systems like Texas’, where state law makes it
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“virtually impossible” to pursue an IATC claim on direct review (as opposed
to outright forcing IATC claims to be brought in collateral proceedings
through procedural rules, as at issue in Martinez). Trevino, 569 U.S. at 423–
24, 428.
We agree with the State that Martinez and Trevino had no effect on the
long-established rule that there is no constitutional right to counsel in
postconviction proceedings. The Court has reaffirmed that rule postMartinez. E.g., Shinn v. Ramirez, 142 S. Ct. 1718, 1737 (2022) (“[I]n Coleman,
we reiterated that counsel’s ineffectiveness will constitute cause only if it is
an independent constitutional violation, and surmised that a hypothetical
constitutional right to initial-review postconviction counsel could give rise to
a corresponding claim for cause. Since then, however, we have repeatedly
reaffirmed that there is no constitutional right to counsel in state
postconviction proceedings”. (citations omitted)); Garza v. Idaho,
139 S. Ct.
738, 749 (2019) (“There is no right to counsel in postconviction proceedings
. . . .”); Davila v. Davis,
137 S. Ct. 2058, 2068 (2017) (“[W]e have never held
that the Constitution guarantees a right to counsel” during postconviction
review.).
And, other courts, including ours, have rejected that Martinez or
Trevino established any constitutional rules and have emphasized that the
narrow exceptions announced in those decisions apply only to excusing
procedural default under those particular facts. E.g., In re Hensley, 836 F.3d
504, 507 (5th Cir. 2016) (“Martinez recognized a narrow, equitable exception
to the procedural default doctrine . . . . That decision did not establish a new
rule of constitutional law”. (citation omitted)); In re Paredes,
587 F. App’x
805, 813 (5th Cir. 2014); Adams v. Thaler,
679 F.3d 312, 322 n.6 (5th Cir.
2012) (“Martinez . . . was an equitable ruling that did not establish a new rule
of constitutional law”. (citation omitted)); see also Ramirez, 142 S. Ct. at 1737
(“Martinez foreclosed any extension of its holding beyond the narrow
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exception to procedural default at issue in that case.” (citation omitted));
Davila, 137 S. Ct. at 2065–66 (“Martinez provides no support for extending
its narrow exception. . . . In all but those limited circumstances, Martinez
made clear that the rule of Coleman governs”. (citations omitted)); Bluemel
v. Bigelow, 613 F. App’x 698, 699 (10th Cir. 2015); Chavez v. Sec’y, Fla. Dep’t
of Corr.,
742 F.3d 940, 946 (11th Cir. 2014); Jones v. Ryan,
733 F.3d 825, 843
(9th Cir. 2013); Pagan-San Miguel v. United States,
736 F.3d 44, 45 (1st Cir.
2013).
In short, Moody did not have a constitutional right to counsel in his
state postconviction proceeding. Accordingly, we turn to the second issue
granted by the COA: whether the Martinez exception extends to AEDPA’s
limitation period.
B.
Moody’s position regarding this second issue is unclear. He, as
discussed supra, contends Martinez established a limited right to counsel in
initial-review collateral proceedings. He maintains denying him that right is
an “extreme malfunction” of the criminal justice system which habeas relief
is designed to remedy. He does not elaborate, however, on whether the
procedural-default exception announced in Martinez extends to AEDPA’s
limitations period.
The State primarily emphasizes the narrowness of Martinez, claiming
its holding applies only to procedural default, and pointing to other courts
that have held as much.
The Court in Martinez “was unusually explicit about the narrowness
of [its] decision”, and it “foreclosed any extension of its holding beyond the
narrow exception to procedural default at issue in that case”. Ramirez, 142
S. Ct. at 1737 (citation omitted).
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Several circuits have considered this issue and held Martinez
inapplicable to AEDPA’s limitations period, albeit some in nonprecedential
opinions. See, e.g., Lombardo v. United States, 860 F.3d 547, 557 (7th Cir.
2017); Arthur v. Thomas,
739 F.3d 611, 630 (11th Cir. 2014); see also United
States v. Robinson,
762 F. App’x 571, 576–77 (10th Cir. 2019); Taylor v.
Eppinger, No. 16-4227,
2017 WL 5125666, at *2 (6th Cir. 2 June 2017)
(unpublished); Bland v. Superintendent Greene SCI, No. 16-3457,
2017 WL
3897066, at *1 (3d Cir. 5 Jan. 2017) (unpublished).
We join those circuits. Martinez established a narrow, equitable
exception to procedural default; it has no applicability to the statutory
limitations period prescribed by AEDPA.
III.
For the foregoing reasons, the judgment is AFFIRMED.
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