Daniel Sixta v. Rick Thaler, Director

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Daniel Sixta v. Rick Thaler, Director

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Case: 07-20890

Document: 00511208646

Page: 1

Date Filed: 08/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 19, 2010 N o . 07-20890 Lyle W. Cayce Clerk

D A N I E L JAMES SIXTA P e t it io n e r - Appellant v. R I C K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION R e s p o n d e n t - Appellee

A p p e a l from the United States District Court for the Southern District of Texas

B e fo r e DENNIS, OWEN, and SOUTHWICK, Circuit Judges. D E N N IS , Circuit Judge: P e t itio n e r Daniel James Sixta ("Sixta" or "the petitioner"), a Texas state p r is o n e r , appeals the district court's grant of summary judgment to Respondent R ic k Thaler ("the respondent") on his petition for habeas relief made pursuant t o 28 U.S.C. § 2254. Sixta moved for a certificate of appealability ("COA") on v a r io u s grounds, and we granted his request as to a single issue: Whether the r e s p o n d e n t in a § 2254 proceeding is constitutionally obliged to serve his answer a n d any exhibits thereto on a habeas corpus petitioner. We conclude that the a p p lic a b le procedural rules require the respondent in a § 2254 proceeding to s e r v e both the answer and any exhibits attached thereto on the habeas

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Case: 07-20890

Document: 00511208646

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Date Filed: 08/19/2010

No. 07-20890 p e t it io n e r , and we therefore do not reach the constitutional question presented. The respondent complied with these procedural rules because he properly served t h e answer, to which there were no attachments or exhibits, on Sixta. We

a c c o r d in g ly a ffir m the district court's grant of summary judgment and denial of h a b e a s relief. We also deny the remainder of Sixta's motion for a COA. I. BACKGROUND A jury convicted Sixta of intoxication manslaughter in Texas state court in December 2002. The trial court sentenced him to 20 years imprisonment. His c o n v ic t io n was affirmed on direct appeal. The Texas Court of Criminal Appeals r e fu s e d his petition for discretionary review, and the United States Supreme C o u r t denied his petition for a writ of certiorari. The evidence at trial established the following facts: Sixta drove Carolyn M e s s e n , a longtime friend and sometime girlfriend, to a beauty salon at a p p r o x im a t e ly 3:00 p.m. on the day in question. Sixta then went to a pool hall a n d returned to pick up Messen about three hours later. Messen could tell that S ix t a had been drinking. The two went to dinner at a nearby restaurant and S ix t a continued to drink. After dinner, the couple went to a bar where they p la y e d video games, and each of them had more than one drink at the bar. M e s s e n testified at trial that, on the way home from the bar, Sixta was driving a g g r e s s iv e ly and a bit too fast. A car driven by Martha Alford made a left turn in front of Sixta's vehicle, and the two vehicles collided. Alford's sister, Linda C o b le , was a passenger in Alford's car. Coble was killed in the accident. Officer D a v id Pearson, who performed an accident reconstruction at the scene, d e t e r m in e d that Sixta had been speeding prior to the accident. Blood samples t a k e n after the accident revealed that Sixta's blood alcohol content was nearly t h r e e times the legal limit, and Pearson concluded that Sixta's intoxication c a u s e d the accident. The jury found Sixta guilty.

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No. 07-20890 A fte r the Texas state courts denied his application for collateral relief, Sixta filed the instant § 2254 petition in the federal district court. In his p e t it io n , Sixta challenged various aspects of his trial and conviction proceedings, c la im in g , inter alia, that his trial counsel rendered ineffective assistance and t h a t the prosecution engaged in misconduct. The district court ordered the respondent to file an answer. Approximately two weeks before filing an answer, the respondent on his own in it ia tiv e filed a complete set of the state court records with the district. The r e s p o n d e n t then filed an answer to Sixta's petition and urged the district court t o deny Sixta's claims. The respondent, however, did not attach any exhibits or p o r t io n s of the state court record to the answer. The respondent served his a n s w e r on Sixta, but none of the state court records. T h r o u g h o u t the proceedings below, Sixta expressly moved for copies of the s t a t e court record and informed the district court of his need for those d o c u m e n t s . After the respondent answered, Sixta filed a motion to stay and a b a t e the proceedings so that he could obtain copies of the state court records " fr o m the Clerk of the Court." Specifically, he requested that the district court c l e r k loan him the state court records or that it furnish him a copy of those r e c o r d s at Sixta's expense. Sixta asserted that he needed the state court records s o that, inter alia, he could submit them to an accident reconstruction expert and s o that he could adequately reply to the respondent's answer. The respondent o p p o s e d Sixta's request. The district court denied the motion. Sixta thereafter w r o t e again to the district court clerk inquiring as to the cost and method for p u r c h a s in g the trial transcripts and records. The district court docket sheet does n o t reflect that Sixta ever received a reply to his inquiry. S ix t a then filed a motion seeking leave to file an amended petition. The d is t r ic t court found that Sixta was attempting to assert four new claims, that

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No. 07-20890 t h r e e of the new claims were unexhausted and that all were frivolous, and thus d e n ie d the motion to amend as futile. Noting that the respondent's answer cited legal precedent and facts o u ts id e the petition, the district court construed the respondent's answer as a m o t io n for summary judgment and ordered Sixta to respond to that motion. S ix t a subsequently filed his opposition to the respondent's summary-judgment m o t io n . In addition to responding to the merits of the respondent's motion, Sixta s o u g h t to have the district court order the respondent to serve him with copies o f the state court records that it had submitted to the court in support of its su m m a r y -ju d g m e n t motion. Sixta asserted that, without the state court records, h e was unable to adequately respond to specific factual assertions made by the r e s p o n d e n t . He also asserted that the respondent had a constitutional duty to s e r v e him with those documents filed in support of its answer. Alternatively, S ix t a requested to borrow the state court papers from the court and averred that h e would return them to the district court at his own expense. The district court entered a memorandum opinion granting summary ju d g m e n t in favor of the respondent and denying Sixta's claims. Accordingly, t h e district court dismissed Sixta's § 2254 petition, and it sua sponte denied him a COA. The district court denied Sixta's timely motion for reconsideration, but g r a n t e d him leave to proceed in forma pauperis. Sixta timely applied and moved fo r a COA on five issues. We granted a COA on the service issue presented here, a n d have not yet ruled on the remaining issues for which he seeks a COA. II. STANDARD OF REVIEW T h e district court's interpretation of procedural rules is reviewed de novo, a s are any constitutional questions raised by this appeal. Knight v. Kirby Inland M a r in e , 482 F.3d 347, 355 (5th Cir. 2007); United States v. Perez-Macias, 335 F .3 d 421, 425 (5th Cir. 2003).

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No. 07-20890 I I I . DISCUSSION T h is appeal asks us to determine whether the respondent in a § 2254 p r o c e e d in g is constitutionally obliged to serve his answer and any exhibits t h e r e to on a habeas corpus petitioner. We first consider any preliminary

p r o c e d u r a l questions (i.e., whether the habeas petitioner has a procedural right t o service of the answer and any exhibits attached thereto) that might render r e s o lu t io n of the constitutional questions unnecessary. See Slack v. McDaniel, 5 2 9 U.S. 473, 485 (2000) ("The recognition that the `Court will not pass upon a c o n s t it u t io n a l question although properly presented by the record, if there is also p r e s e n t some ground upon which the case can be disposed of' allows and e n c o u r a g e s the court to first resolve procedural issues." (quoting Ashwander v. T V A , 297 U.S. 288, 347 (1939) (Brandeis, J., concurring))). In § 2254 proceedings, the Rules Governing Section 2254 Cases (the " H a b e a s Rules"), in combination with the Federal Rules of Civil Procedure (the " C iv il Rules"), provide the applicable procedural law. See Habeas Rule 1(a) (" T h e s e rules govern a petition for a writ of habeas corpus filed in a United S t a te s district court under 28 U.S.C. § 2254."); Fed. R. Civ. P. 1 ("These rules g o v e r n the procedure in all civil actions and proceedings in the United States d is t r ic t courts."). When they conflict, the Habeas Rules control. See Habeas R u le 12 ("The Federal Rules of Civil Procedure, to the extent that they are not in c o n s is t e n t with any statutory provisions or these rules, may be applied to a p r o c e e d in g under these rules."); Fed. R. Civ. P. 81(a)(4)(A) ("These rules apply t o proceedings for habeas corpus . . . to the extent that the practice in those p r o c e e d in g s . . . is not specified in a federal statute, the Rules Governing Section 2 2 5 4 Cases, or the Rules Governing Section 2255 Cases."). Habeas Rule 5(a) requires the respondent in a § 2254 proceeding to file an a n s w e r to the petition when the "judge so orders." Habeas Rule 5(b) prescribes t h e required contents of the answer, specifying that it "must address the 5

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No. 07-20890 a lle g a t io n s in the motion" as well as procedural bars to adjudication on the m e r it s . Habeas Rule 5(c) requires that the answer "indicate what transcripts . . . are available, when they can be furnished, and what proceedings have been r e c o r d e d but not transcribed." Finally, also under Habeas Rule 5(c), "[t]he r e s p o n d e n t must attach to the answer parts of the transcript that the r e s p o n d e n t considers relevant." When the respondent does, in fact, attach exhibits to the answer, there can b e little dispute that those exhibits must be served together with the answer it s e lf on the habeas petitioner. Civil Rule 5(a) provides that "a pleading filed a ft e r the original complaint" "must be served on every party." In turn, Civil Rule 7 lists "an answer to a complaint" as a "pleading" and Civil Rule 10(c) provides t h a t "[a] copy of a written instrument that is an exhibit to a pleading is a part o f the pleading for all purposes." Considered together, the rules plainly require t h a t the respondent serve both the answer and any exhibits attached thereto on t h e habeas petitioner. We thus agree with the Fourth Circuit's decision in Thompson v. Greene, 4 2 7 F.3d 263 (4th Cir. 2005), which also reached this conclusion. Thompson in v o lv e d a § 2254 proceeding, in which the respondent filed an answer that " c o n t a in [e d ] twenty Exhibits." Although the respondent served the text of the a n s w e r on the petitioner, he neglected also to serve the attached exhibits. See id . at 265. The Fourth Circuit held that the Habeas and Civil Rules required s e r v ic e of those exhibits. See id. at 267. First, the Fourth Circuit reasoned that, u n d e r the habeas and civil rules, the "exhibits contained in the habeas corpus a n s w e r " are part of the answer itself for all purposes. See id. at 268. Second, the F o u r t h Circuit rejected the respondent's argument that the applicable rules do n o t require service of even the answer: "Although the Habeas Rules do not e x p lic it ly require service of the answer on the petitioner, such service--an e le m e n t a r y step in litigation in our judicial system--was plainly contemplated 6

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No. 07-20890 w h e n the Rules were promulgated by the Supreme Court in 1976. . . . Moreover, t h e Civil Rules clearly mandate service on an adversary of pleadings and their c o n t e n t s ." Id. at 268-69. Finally, the Fourth Circuit concluded that it is

ir r e le v a n t under the applicable rules whether (1) the habeas petitioner already d o e s or should possess the documents; (2) that he can obtain the documents by c o u r t order; or (3) that the respondent has a general policy of not serving the d o c u m e n t s when it would be too expensive. "Each of these contentions borders o n the frivolous." Id. at 271. The Fourth Circuit accordingly vacated the district c o u r t's dismissal of the petitioner and remanded for further proceedings. See id. Sixta relies heavily on Thompson in arguing for overturning the district c o u r t's judgment but, in doing so, fails to recognize a material difference between T h o m p s o n and the instant case: The respondent here never purported to attach t h e state court record, or any portions of it, as an exhibit to the answer. As e x p la in e d above, while the respondent filed the entire state court record with the fe d e r a l district court, he did so approximately a week or more before filing his a n s w e r . Moreover, the answer does not have any attachments or exhibits, and o n ly cites to the state court record. Because the respondent in fact served the a n s w e r -- a n d there were no exhibits to serve together with the answer--the r e s p o n d e n t satisfied his procedural obligations insofar as they required him to s e r v e the answer and the exhibits, if any, on the petitioner.1 T h is appeal does not call for us to determine whether and to what extent t h e applicable procedural rules or the Constitution required the respondent to a t t a c h portions of the state court record as exhibits to his answer. In particular, w e do not address the nature of the respondent's duty and discretion under

Accordingly, we need not determine whether the United States Constitution requires respondents to serve their answers and any exhibits on § 2254 habeas petitioners. Moreover, finding no error here, we need not determine whether the failure to comply with the rules' service requirement is subject to harmless-error review, or whether that failure is a structural error, as Sixta argues.

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No. 07-20890 H a b e a s Rule 5(c) to attach those portions of the transcript that he "deems r e le v a n t ." First, those issues are outside of the scope of the COA that Sixta r e q u e s te d and that we granted. "We have jurisdiction to address only the issue s p e c ifie d in the COA." United States v. Daniels, 588 F.3d 835, 836 (5th Cir. 2 0 0 9 ) (citing Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997)). Second, and in any event, the parties have not adequately briefed or argued these additional q u e s t io n s , and they are therefore waived. See United States v. Thames, 214 F.3d 6 0 8 , 611 n.3 (5th Cir. 2000); see also Fed. R. App. P. 28(a)(9)(A) ("[T]he argument . . . must contain: [the] appellant's contentions and the reasons for them, with c it a t io n s to the authorities and parts of the record on the which the appellant r e lie s ."). We thus leave open the possibility that the respondent was

p r o c e d u r a lly or constitutionally required to attach some portion of the state c o u r t records as exhibits to the answer, and then to serve those exhibits together w it h the answer pursuant to the applicable procedural rules. *** Sixta has also moved for a COA as to four other issues, which we have not y e t considered. Sixta seeks a COA as to whether: (1) the district court erred in d e n y in g his motion to amend his petition to include unexhausted claims as fu t ile ; (2) the district court erred in dismissing certain claims as procedurally d e fa u lt e d ; (3) the district court erred in concluding that Sixta's trial counsel did n o t render ineffective assistance in failing to consult an accident reconstruction e x p e r t and in advising Sixta not to accept the a plea offer; (4) the prosecution e n g a g e d in misconduct by soliciting knowingly perjured testimony. A COA may be granted only if the movant makes a substantial showing o f the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). As to those c la im s on which the district court denied relief on procedural grounds, "a COA s h o u ld issue . . . [if] the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a 8

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No. 07-20890 c o n s t it u t io n a l right and that jurists of reason would find it debatable whether t h e district court was correct in its procedural ruling." Slack, 529 U.S. at 484. Having reviewed Sixta's motion and the record, we conclude that Sixta has failed t o make the requisite showing as to the additional issues for which he seeks a COA. IV. CONCLUSION A c c o r d in g ly , we AFFIRM the district court's judgment denying Sixta's p e t it io n for habeas relief, and DENY the remainder of his motion for a COA. AFFIRMED; COA DENIED.

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