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EX PARTE Cory ROSS, Applicant
On March 6, 2015, Applicant was adjudicated guilty of injury to a child and sentenced to confinement for forty years. He appealed, but on March 11, 2016, the court of appeals affirmed the trial court's judgment. Unfortunately, Applicant's counsel did not inform him of the court of appeals’ decision until June of 2016, well outside the time for filing a petition for discretionary review (PDR). Applicant did not file a PDR, and his judgment became final.
Applicant was notified about the court of appeals’ decision denying him relief by a letter from his counsel drafted on June 9, 2016. Critically, in that same letter, Applicant's counsel told him:
You might be able to obtain an out of time Petition for Discretionary Review (PDR), but you must file a writ of habeas corpus with the trial court. The trial court can recommend to the Texas Court of Criminal Appeals that you be granted the right to file an out-of-time PDR.
The letter from Applicant's counsel also: (1) gave him instructions on how to pursue a writ; (2) explained the argument that he could make—that he did not receive timely notice from his counsel about the court of appeals’ decision; and (3) asserted that the letter itself enclosed a form for Applicant to use to prepare his application.
Now, almost seven years later, Applicant has finally filed an application for the writ of habeas corpus. Among other claims made in his application, Applicant seeks the right to file an out-of-time PDR. Applicant provides no explanation for his extremely long delay. But the Court grants him the right to file an out-of-time petition anyway. I cannot join the Court's decision.
To better understand the circumstances presented by this application, consider the usual time for filing a PDR. Our rules ordinarily permit the filing of a PDR up to 30 days after the court of appeals renders its judgment. Tex. R. App. P. 68.2(a). If Applicant had acted right away, immediately after he became aware of the court of appeals’ decision in his case, he would have sought the right to pursue an out-of-time PDR at three times the number of days that our rules ordinarily permit for filing a PDR. But because Applicant waited to file his writ application until December of 2022, he first sought to pursue his PDR rights at close to eighty times the number of days that our rules ordinarily permit for filing a PDR.
Because the Court grants relief in the form of an out-of-time PDR in these circumstances, it makes me wonder how long would be too long to wait to pursue an out-of-time PDR. Would ten years be too much? Would twenty years be too much? Would fifty years be too much? Perhaps the answer is that there is no limit. But the Court does not address that question today.
I have regularly urged the Court and our trial courts as well, when addressing long delayed applications for the writ of habeas corpus, to consider the doctrine of laches. See, e.g., Ex parte Bazille, 663 S.W.3d 68 (Tex. Crim. App. 2022) (Yeary, J., concurring). In Ex parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013), this Court explained that the doctrine of laches is defined as:
neglect to assert right or claim which, taken together with lapse of time and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity.
Id. at 210 (quoting from Ex parte Carrio, 992 S.W.2d 486, 487–88 (Tex. Crim. App. 1999), which itself quoted from Black's Law Dictionary 875 (6th ed. 1990)). But the definition quoted by the Court did not stop there. Without great elaboration, the Court's definition also included the following language:
Also, it is the neglect for an unreasonable and unexplained length of time under circumstances permitting diligence, to do what in law, should have been done.
Id. The first part of the definition: (1) focused on “neglect” in asserting a right or claim; and (2) invoked a notion of delay that causes prejudice to an adverse party as part of its calculation. But the second part eschewed any notion of prejudice to an adverse party and focused only on delay that is (1) unreasonable; and (2) unexplained. It is this second part on which I focus today.
Habeas corpus, this Court has said, is an “equitable remedy.” Id.; Ex parte Moreno, 245 S.W.3d 419, 428 (Tex. Crim. App. 2008). Courts exercising equitable powers do so as a matter of their sound discretion. See, e.g., Johnson v. Cherry, 726 S.W.2d 4, 8 n.2 (Tex. 1987) (“The exercise of our equitable power is discretionary[.]”); Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998) (“Matters of equity are addressed to the trial court's discretion.”). According to this Court's precedents, “equity aids the diligent and not those who slumber on their rights.” Moreno, 245 S.W.3d at 428−29. This same principle of equity has also been recognized by our sister Court, the Supreme Court of Texas. Rivercenter Associates v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (explaining that “equity aids the diligent and not those who slumber on their rights”) (internal quotation marks and brackets omitted). And, at times, the Supreme Court has found that delay alone without explanation, and without consideration of any notion of prejudice to an adverse party, is sufficient reason to deny equitable relief.
In Rivera, for example, Rivercenter sought mandamus relief “from a trial court's order overruling its motion to quash [a] jury demand[.]” The Supreme Court observed that “Rivercenter waited over four months after the filing of the Defendants’ jury demand before asserting any rights it may have had under the jury waiver provisions[,]” and that, “[t]he record reveal[ed] no justification for this delay.” Id. “Under these circumstances”—presumably those where the record showed a delay and no explanation for it—the Court concluded, “Rivercenter ha[d] not shown diligent pursuit of any right to a non-jury trial.” Id. And the relief that was sought was denied. Id. at 368.
The Fourth Court of Appeals has also recognized that equity does not favor a remedy in the face of unexplained delay. In re State ex rel. Hilbig, 985 S.W.2d 189 (Tex. App.—San Antonio 1998). In Hilbig, the State sought mandamus relief against a trial court arguing that it had no authority to terminate probationary periods in certain felony driving while intoxicated cases pursuant to Section 20 of former Article 42.12 of the Code of Criminal Procedure. Id. at 190 (citing former Tex. Code Crim. Proc. art. 42.12, § 20). The court of appeals agreed with the State that the trial court “acted outside the scope of Section 20,” but it denied mandamus relief on the ground that the State had “waited an average of fifteen months to complain about the [trial court's] rulings” and had “offered no direct explanation for the passage of time.” Id. at 192.
Whether derived from the doctrine of laches or from some other equitable doctrine or rule, the principle that “neglect for an unreasonable and unexplained length of time under circumstances permitting diligence, to do what in law, should have been done” is well grounded, and it supports denial of equitable relief. Its elements are certainly satisfied by the facts of this case. Applicant waited nearly seven years after learning about the adverse decision of the court of appeals in his case and after receiving notice that he could pursue an out-of-time PDR by filing a writ of habeas corpus in the trial court. Only then, after such an extreme delay, did Applicant finally file his habeas application requesting an out-of-time PDR. But “equity [should not aid] those who slumber on their rights.” Moreno, 245 S.W.3d at 428−29 (original brackets and quotation marks omitted).
Nearly seven years after Applicant received late notice from his counsel about the court of appeals’ decision rejecting his claims for relief on direct appeal, and even after Applicant received contemporaneous notice from counsel about how to pursue an application for habeas relief to restore his opportunity to pursue a PDR, and even without any explanation for Applicant's extreme delay, the Court grants Applicant relief in the form of an out-of-time PDR. But the equities do not favor Applicant.
I would deny relief. Because the Court does not, I respectfully dissent.
I join Judge Yeary's dissenting opinion. But I write separately because although Applicant is not ultimately entitled to relief here, that does not change the fact that appellate counsel was deficient for failing to timely notify Applicant of the court of appeals’ decision. In numerous recent opinions, I have highlighted this issue because it represents a recurring theme in our post-conviction habeas cases and is a troubling sign that some appellate attorneys are both failing to keep abreast of case developments and failing to communicate with their clients about the process for seeking discretionary review. Therefore, I want to again emphasize the importance of appellate counsel's duty to provide timely and accurate information to clients regarding their right to file a pro se PDR following the resolution of their direct appeals.
In 2015, after Applicant was adjudicated guilty of injury to a child, appellate counsel filed Applicant's direct appeal. On March 11, 2016, the court of appeals issued its opinion affirming the trial court's judgment. Ross v. State, No. 05-15-00351-CR, 2016 WL 929277 (Tex. App.—Dallas Mar. 11, 2016, no pet.) (mem. op., not designated for publication). In his instant post-conviction habeas application, Applicant alleges that his appellate counsel did not inform him of the court of appeals’ opinion until June 9, 2016—three months after the opinion was handed down. This was two months too late to file a petition for discretionary review in this Court. See Tex. R. App. P. 68.2(a) (providing that a petition for discretionary review must generally be filed within 30 days of the date of the court of appeals’ opinion). In appellate counsel's letter to Applicant, she implicitly acknowledged that she was late in notifying Applicant of the appellate court's decision. She explained that she “did not receive an email from the court [of appeals] when the opinion was handed down in March, and [she does] not have record of receiving the notice from the court.” She then advised Applicant that he may be able to obtain an out-of-time PDR from this Court by filing an application for a post-conviction writ of habeas corpus. Appellate counsel included a blank Article 11.07 habeas application with her letter.
II. Appellate Counsel's Duties Under the Appellate Rules
Criminal defendants have a constitutional right to the effective assistance of counsel. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right to effective assistance extends to the first direct appeal. Evitts v. Lucey, 469 U.S. 387, 395–96, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Ward v. State, 740 S.W.2d 794, 799 (Tex. Crim. App. 1987). Although a criminal defendant has no right to the assistance of counsel for purposes of actually pursuing discretionary review, appellate counsel still has the duty to advise the defendant regarding his right to file a pro se PDR. In re Schulman, 252 S.W.3d 403, 411 (Tex. Crim. App. 2008) (detailing appellate counsel's duties to clients upon denial of relief on appeal). This obligation is codified in the Texas Rules of Appellate Procedure:
In criminal cases, the attorney representing the defendant on appeal shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant's right to file a pro se petition for discretionary review under Rule 68. This notification shall be sent certified mail, return receipt requested, to the defendant at his last known address. The attorney shall also send the court of appeals a letter certifying his compliance with this rule and attaching a copy of the return receipt within the time for filing a motion for rehearing. The court of appeals shall file this letter in its record of the appeal.
Tex. R. App. P. 48.4 (emphasis added). As Rule 48.4 clearly states, appellate counsel must: (1) send a copy of the court of appeals’ opinion and notify her client of his right to pursue a pro se PDR “within five days after the opinion is handed down;” (2) send that notification via certified mail, with a return receipt requested; and (3) send the court of appeals a letter certifying compliance with Rule 48.4.
Appellate counsel's actions here failed to satisfy the standards set forth by Rule 48.4. Even if we credit appellate counsel's explanation that she did not receive timely notice of the appellate court's decision, as required by the Rules of Appellate Procedure, see Tex. R. App. P. 48.1, appellate counsel still had an obligation to stay abreast of the status of Applicant's case. With online case status updates being readily available through the appellate courts’ websites, there is no justification for relying solely upon the appellate courts’ notification processes to keep track of cases. Further, even accepting that some delay in notifying Applicant would have been justified had counsel not immediately received notice of the court of appeals’ decision, it took counsel three months after the court's decision to notify Applicant. Thus, even allowing for some grace period here, as the Rules of Appellate Procedure do,1 the delay in notifying Applicant in this case was, by any measure, excessive. Counsel's failure to abide by Rule 48.4 deprived Applicant of his opportunity to pursue an entire proceeding. See Ex parte Owens, 206 S.W.3d 670, 675 (Tex. Crim. App. 2006) (noting that counsel's failure to inform a client of his right to pursue a petition for discretionary review “deprive[d] him of an entire proceeding”).
III. Appellate Counsel's Duties Under the Rules of Professional Conduct
More generally, I also note here that the Texas Disciplinary Rules of Professional Conduct require lawyers to keep clients reasonably informed of any case developments and to effectively communicate with their clients in a manner that permits the clients to make informed decisions related to their cases. Tex. Disciplinary Rules Prof'l Conduct R. 1.03(a)–(b). Further, “in representing a client, a lawyer shall not[ ] neglect a legal matter entrusted to the lawyer.” Id. R. 1.01(b)(1).
Ultimately, appellate counsel's failure to timely advise Applicant regarding his right to pursue a pro se PDR fell short of the standards for professionalism set forth in the disciplinary rules. Such failure also places unnecessary burdens on the courts and causes judicial inefficiency that wastes taxpayer dollars. I certainly understand and acknowledge that we are all human beings who make mistakes. But, it is my ethical obligation to bring attention to this issue so that all attorneys may be reminded of the effect of failing to stay on top of their cases and properly communicate with their clients. See Tex. Code Jud. Conduct, Canon 3(D)(2) (“A judge who receives information clearly establishing that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct should take appropriate action.”). By bringing attention to this issue, perhaps this attorney and other appellate attorneys will be motivated to take steps to ensure that such situations do not occur in the future.
Despite the foregoing, for the reasons already addressed in Judge Yeary's dissenting opinion, Applicant should not be afforded the opportunity to pursue an out-of-time PDR at this late juncture. Therefore, I would deny relief.
1. The Rules of Appellate Procedure allow for an extension of the deadline for filing a PDR when a party has not received notice or actual knowledge of the appellate court's decision within the time period for filing. But such a request for extension must be filed within 90 days of the court's judgment. Rule 4.5, entitled “No Notice of Judgment or Order of Appellate Court; Effect on Time to File Certain Documents,” provides:(a) Additional Time to File Documents. A party may move for additional time to file ․ a petition for discretionary review, if the party did not—until after the time expired for filing the document—either receive notice of the judgment or order from the clerk or acquire actual knowledge of the rendition of the judgment or order.(b) Procedure to Gain Additional Time. The motion must state the earliest date when the party or the party's attorney received notice or acquired actual knowledge that the judgment or order had been rendered. The motion must be filed within 15 days of that date but in no event more than 90 days after the date of the judgment or order.․(d) Order of the Court. If the court finds that the motion for additional time was timely filed and the party did not ․ receive the notice or have actual knowledge of the judgment or order, the court must grant the motion. The time for filing the document will begin to run on the date when the court grants the motion.Tex. R. App. P. 4.5.
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Docket No: NO. WR-94,371-02
Decided: September 20, 2023
Court: Court of Criminal Appeals of Texas.
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