Rivers v. Lumpkin ( 2022 )

Case: 18-11490 Document: 00516318000 Page: 1 Date Filed: 05/13/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 18-11490 May 13, 2022
Lyle W. Cayce
Clerk
Danny Richard Rivers,
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. 7:17-CV-124
Before Richman, Chief Judge, and Costa and Ho, Circuit Judges.
Per Curiam:*
This court granted a certificate of appealability (COA) on Danny
Richard Rivers’s claim for ineffective assistance of trial counsel based on an
alleged failure to conduct a reasonable investigation and interview witnesses.
The parties were directed to address “whether Rivers’s witness affidavits
*
Pursuant to 5th Circuit Rule 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should not be published and is not precedent except under the limited circumstances set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 Circuit Rule 47.5.4.
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No. 18-11490
were considered in the state court proceedings and whether the district court
properly deferred to the state habeas court’s adjudication, as well as the
merits of this claim.” We conclude that Rivers did not properly submit
evidence to support his claim in state court. We therefore affirm the district
court’s denial of habeas relief.
I
Rivers was convicted by a jury of one count of continuous sexual abuse
of a child, two counts of indecency with a child by contact, one count of
indecency with a child by exposure, and two counts of possession of child
pornography. 1 At trial, Rivers proceeded on the theory that the victims
fabricated the allegations of abuse at the behest of his ex-wife, who was their
mother, and that his ex-wife had downloaded the child pornography. Rivers
was convicted on all counts. On appeal, his convictions were affirmed. 2
Rivers then filed two state habeas applications. 3 His claims relating to
child pornography were dismissed because he had served his sentence for
those convictions. 4 After the trial court forwarded its findings and
conclusions, the Texas Court of Criminal Appeals (TCCA) remanded for
factfinding concerning his ineffective assistance of counsel claim.
The trial court ordered Rivers’s three trial attorneys to file affidavits.
They declared in nearly identical affidavits that Rivers had admitted to the
1
Rivers v. State, No. 08-12-145-CR, 2014 WL 3662569, at *1 (Tex. App.—El Paso
July 23, 2014) (unpublished).
2
Ex parte Rivers, Nos. WR-84,550-01 & 84,550-02, 2017 WL 3380491 (Tex. Crim.
App. June 7, 2017) (per curiam) (unpublished); Rivers, 2014 WL 3662569, at *5.
3
See Ex parte Rivers, Nos. WR-84,550-01 & 84,550-02, 2016 WL 5800277, at *1
(Tex. Crim. App. Oct. 5, 2016) (per curiam) (unpublished).
4
These claims are not at issue.
2
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child abuse offenses. They said their trial strategy was to show that, after
Rivers’s ex-wife lost custody of a daughter during their divorce proceeding,
she manipulated the child into fabricating the abuse allegations. Apart from
witness Antonio Dino Fernandez, who testified at trial, counsel asserted
generally that they had interviewed all witnesses Rivers identified and did not
call them to the stand. Rivers then filed an affidavit denying that he admitted
to the offenses and asked the court to order affidavits from the potential
witnesses.
The state habeas trial court found that Rivers had admitted to the
abuse offenses and that trial counsel “implemented a general trial strategy
that the victims fabricated the allegations of abuse at the behest of their
mother, who was [Rivers]’s ex-wife.” The court also found that Rivers had
not provided witness affidavits to support his claim regarding uncalled
witnesses. It concluded that counsel were not ineffective and that Rivers was
not prejudiced.
The trial court forwarded its findings to the TCCA. While the case
was pending, and before the TCCA issued its ruling, Rivers filed with the
TCCA three witness affidavits supporting his claim that counsel failed to
interview or call potential witnesses. These were the affidavits of Fernandez
(who had testified at trial), Misty Ross-Finley, and Danny Rivers, Sr. All
three affidavits are dated after the state trial court filed its findings of fact and
conclusions of law in the remanded proceedings. The letters from Rivers
transmitting these affidavits reflect that they were sent directly to the TCCA.
There is no indication in the record that these three affidavits were ever
presented to the state habeas trial court. In its opinion and order denying
habeas relief, the TCCA referred to affidavits from trial counsel that were
presented to the state trial court on remand and agreed with the trial court’s
“findings of fact and conclus[ion] that counsel were not ineffective.” The
3
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TCCA did not refer to the late-breaking affidavits in its opinion and order or
otherwise address those affidavits in any ruling.
Rivers then sought 28 U.S.C. § 2254 relief. He raised, inter alia, a
claim of ineffective assistance of trial counsel based on uncalled witnesses.
The federal magistrate judge relied on the state court’s findings and found
that Rivers had not provided affidavits from the potential witnesses nor any
assurance that they would have testified at trial had counsel interviewed
them; that Rivers merely speculated as to what testimony he believes those
witnesses would have given; and that counsel had interviewed the witnesses
Rivers identified. The magistrate judge recommended that relief be denied.
In response to the magistrate judge’s report and recommendation,
Rivers objected to the finding that he had not provided witness affidavits.
The federal district court’s order states that Rivers had filed affidavits and
that “[t]hese affidavits were also filed in the state habeas proceeding and
were before the [TCCA].” Nevertheless, the district court denied relief,
reasoning that a state court’s determinations on competing affidavits as to
ineffective assistance claims are “presumed correct unless the petitioner
presents clear and convincing evidence to the contrary.” The district court
adopted the magistrate judge’s report, denied relief, and denied a COA.
Rivers moved for reconsideration. The district court deemed the
motion timely under Federal Rule of Civil Procedure 59(e), but construed it
as a successive § 2254 petition and dismissed it for lack of jurisdiction.
Before the district court ruled on his motion, Rivers filed a notice of appeal.
Rivers argues that he filed the affidavits in the TCCA while his case
was still pending, and that the TCCA decided his case without considering
the affidavits. He also argues that the district court erred by denying relief
without holding an evidentiary hearing.
4
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The respondent first argues that the notice of appeal was untimely and
that a remand is necessary for a determination of good cause or excusable
neglect. He also argues that Rivers violated procedural rules in filing his
affidavits and that the TCCA did not consider them.
II
We must first consider our jurisdiction. A timely “notice of appeal in
a civil case is a jurisdictional requirement” when, as here, a statute sets the
time limit. 5 A notice of appeal in a civil action must be filed within thirty days
of the judgment from which the appeal is taken. 6 Rivers had thirty days after
the September 17, 2018 denial of his § 2254 petition—until October 17,
2018—to file a notice of appeal. “[T]hrough clerical oversight, the Court’s
order denying relief and final judgment were mailed to [Rivers] at the Beto
Unit in Tennessee Colony, Texas, rather than the McConnell Unit in
Beeville, Texas,” where Rivers was incarcerated. As a result, Rivers did not
deposit his notice of appeal into the prison mail system until November 14,
2018. 7
However, Rivers filed a postjudgment motion for reconsideration, and
certain postjudgment motions may extend the time for filing an appeal. 8 A
Rule 59(e) motion is timely if it is filed no later than twenty-eight days after
the entry of the judgment, with no possibility of extensions. 9 Rivers’s
postjudgment motion was filed more than twenty-eight days after the entry
5
Bowles v. Russell, 551 U.S. 205, 214 (2007).
6
28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A).
7
See Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998) (prison mailbox rule).
8
See Fed. R. App. P. 4(a)(4)(A).
9
Fed. R. Civ. P. 59(e); see Fed. R. Civ. P. 6(b)(2).
5
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of judgment, 10 rendering it untimely as a Rule 59(e) motion. 11 Moreover, his
untimely Rule 59(e) motion did not toll the time for noticing an appeal. 12
But the district court could have construed the motion as one seeking
relief under Federal Rule of Appellate Procedure 4(a)(5), which allows the
district court to extend the time for filing a notice of appeal if the requesting
party “shows excusable neglect or good cause.” 13 Such a motion is due no
later than thirty days after the expiration of the time for filing a notice of
appeal. 14 In this case, Rivers had until October 17, 2018, to file a notice of
appeal. Pursuant to the prison mailbox rule, his postjudgment motion was
filed on October 26, 2018, and was therefore timely under Rule 4(a)(5), as it
was filed within thirty days of the expiration of the time to file a notice of
appeal. 15 Along with his postjudgment motion, Rivers filed an affidavit
stating that the order accepting the magistrate judge’s finding had been sent
to his former address and then forwarded to him at the McConnell Unit. He
asserted that he received the order on October 15, 2018, and placed his
postjudgment motion in the prison mail system on October 26, 2018. The
district court noted that, “through clerical oversight, the Court’s order
denying relief and final judgment were mailed to [Rivers] at the Beto Unit in
Tennessee Colony, Texas, rather than the McConnell Unit in Beeville,
Texas,” and that Rivers filed his postjudgment motion twenty-one days after
10
See Spotville, 149 F.3d at 376-78.
11
See Fed. R. Civ. P. 59(e).
12
In re Crescent Res., L.L.C., 496 F. App’x 421, 424 (5th Cir. 2012) (per curiam)
(unpublished); see Fed. R. App. P. 4(a)(4)(A)(iv), (vi); Fed. R. Civ. P. 6(b)(2); Fed.
R. Civ. P. 59(e).
13
See Fed. R. App. P. 4(a)(5)(A)(ii).
14
Fed. R. App. P. 4(a)(5)(A)(i).
15
See id.; Spotville, 149 F.3d at 376-78.
6
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receiving the judgment. The same day, the district court granted Rivers’s in
forma pauperis (IFP) motion.
Rivers’s postjudgment motion, affidavit, and IFP motion—construed
liberally—could be a request for an extension of the thirty-day time limit to
file the notice of appeal based on excusable neglect or good cause. 16 Given
Rivers’s pro se status, the government’s lack of objection, and the fact that
Rivers submitted everything necessary to set forth a Rule 4(a)(5) motion, we
will treat his postjudgment motion as such. Further, it appears as though the
district court did the same because it granted Rivers’s IFP motion and
extended his time to file the postjudgment motion. It is unnecessary to
remand this case for a determination on good cause or excusable neglect
because the district court’s grant of his IFP motion, taken together with the
court’s decision to extend the time to file the postjudgment motion based on
clerical error, is tantamount to an excusable neglect finding excusing the
untimely notice of appeal. 17
This court reviews a ruling on a Rule 4(a)(5) motion for abuse of
discretion and gives more leeway to the excusable neglect determination
“when the district court grants the motion for an extension of time.” 18
“[T]he determination is at bottom an equitable one, taking account of all
relevant circumstances surrounding the party’s omission,” including the
“danger of prejudice,” “the length of the delay and its potential impact on
16
See Fed. R. App. P. 4(a)(5); cf. Frew v. Young, 992 F.3d 391, 395-96 (5th Cir.
2021) (discussing the various ways the court could post hoc construe a party’s motion on
appeal).
17
See Salts v. Epps, 676 F.3d 468, 474 (5th Cir. 2012) (concluding that the district
court did not abuse its “broad discretion” by granting an extension in light of the four-day
delay and the lack of any prejudice or bad faith).
18
Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 820 (5th Cir. 2007).
7
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judicial proceedings, the reason for the delay, including whether it was within
the reasonable control of the movant, and whether the movant acted in good
faith.” 19 In light of the foregoing, it would not have been an abuse of
discretion to extend the time to file a notice of appeal because Rivers did not
receive timely notice of the judgment; he filed a motion within the requisite
time period; he established excusable neglect or good cause through his
affidavit; and the court admitted to the clerical oversight causing the delay. 20
Additionally, the government does not contend that it would be prejudiced
by the delay.
As noted above, the prescribed period for filing a notice of appeal in
this case expired on October 17, 2018. With an extension under Rule 4(a)(5),
Rivers’s notice of appeal was due by December 14, 2018, fourteen days after
the district court’s November 30, 2018 order denying Rivers’s postjudgment
motion. 21 Rivers tendered his notice of appeal to prison authorities on
November 14, 2018. 22 Accordingly, Rivers timely filed a notice of appeal,
and we have jurisdiction to review his claims.
III
Under AEDPA, we will not reverse a state court ruling unless it was
“contrary to, or involved an unreasonable application of, clearly established
Federal law” or “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 23 Our review
is generally limited “to the record that was before the state court that
19
Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395 (1993).
20
See Stotter, 508 F.3d at 820; Salts, 676 F.3d at 474.
21
See Fed. R. App. P. 4(a)(5)(C).
22
See Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998).
23
28 U.S.C. § 2254(d)(1), (2).
8
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adjudicated the claim on the merits.” 24 To establish ineffective assistance of
counsel, a defendant must show that counsel performed deficiently and that
he was prejudiced. 25 Review of the state court’s ineffective assistance ruling
is “doubly” deferential when § 2254(d) applies. 26
Further, “[c]laims that counsel failed to call witnesses are not favored
on federal habeas review because the presentation of witnesses is generally a
matter of trial strategy and speculation about what witnesses would have said
on the stand is too uncertain.” 27 For this reason, a showing of prejudice for
claims of ineffective assistance based on uncalled witnesses requires
petitioners to “name the witness, demonstrate that the witness was available
to testify and would have done so, set out the content of the witness’s
proposed testimony, and show that the testimony would have been favorable
to a particular defense.” 28
Rivers alleges ineffective assistance of his trial counsel on the theory
that counsel was deficient in not calling or adequately preparing defense
witnesses. Rivers must present evidence to support this claim. 29 He has
produced two affidavits from uncalled witnesses and an affidavit from a trial
witness who he claims was inadequately prepared. But these affidavits were
not presented to the state habeas trial court. Rivers first produced the
affidavits after the state habeas trial court had ruled against him and while his
24
Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
25
Strickland v. Washington, 466 U.S. 668, 694 (1984).
26
Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotation marks and
citation omitted).
27
Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010).
28
Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009).
29
See id.9
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application was on appeal before the TCCA. He filed the affidavits directly
with the TCCA, which docketed the affidavits but did nothing more.
Texas has specific rules regarding supplementing the evidence on
appeal in a habeas case. 30 Rule 73.7 states that the TCCA will not consider
new evidence such as these affidavits unless accompanied by a motion
explaining their significance. 31 Even then, they will only be accepted if the
TCCA determines the need is truly exceptional. 32 “If the motion is granted,
[the] Court will specify a designated time frame for the party to file the
evidence . . . and the party must present his evidence to the habeas court
within that time frame.” 33
Rivers did not present his affidavits in line with the strictures of Rule
73.7. 34 He made no such motion, nor did he make the necessary argument
concerning the exceptional nature of this evidence. The TCCA made no
finding of exceptionality, did not grant his nonexistent motion, and—
unsurprisingly—did not mention the affidavits in its opinion denying relief. 35
In light of this, and the TCCA’s silence with respect to the affidavits, our
only conclusion can be that the TCCA decided they were improperly
submitted and not in evidence. To the extent that the district court found
otherwise, that finding is not supported by the record or Texas law.
30
See Tex. R. App. P. 73.7.
31
See Ex parte Speckman, 537 S.W.3d 49, 54 (Tex. Crim. App. 2017).
32
Tex. R. App. P. 73.7.
33
Speckman, 537 S.W.3d at 54-55.
34
See Tex. R. App. P. 73.7.
35
See Ex parte Rivers, Nos. WR-84,550-01 & 84,550-02, 2016 WL 5800277, at *1
(Tex. Crim. App. 2016).
10
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IV
Through the benefit of liberal construction of his pro se brief, Rivers
has also appealed the denial of an evidentiary hearing. Our review is generally
limited to evidence placed before the state habeas courts. 36 “Although state
prisoners may sometimes submit new evidence in federal court, AEDPA’s
statutory scheme is designed to strongly discourage them from doing so.” 37
For claims adjudicated on the merits in state court, as here, “the petitioner
must demonstrate that habeas relief is warranted under § 2254(d) on the state
court record alone. If the petitioner succeeds in satisfying this threshold
requirement, then a federal habeas court may entertain new evidence.” 38
Rivers must present evidence to support his claim of ineffective
assistance of trial counsel. 39 Because his affidavits were never properly
presented to the state habeas courts, he has not done so. Accordingly, Rivers
has not demonstrated that, on the state court record alone, he is entitled to
relief. 40 The district court correctly denied an evidentiary hearing. 41
* * *
We AFFIRM the district court’s denial of an evidentiary hearing and
denial of habeas relief.
36
Cullen v. Pinholster, 563 U.S. 170, 181 (2011); see also Broadnax v. Lumpkin, 987
F.3d 400, 406-07 (5th Cir. 2021).
37
Pinholster, 563 U.S. at 186.
38
Broadnax, 987 F.3d at 406-07 (emphasis in original) (citing Smith v. Cain, 708
F.3d 628, 634-35 (5th Cir. 2013)).
39
Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009).
40
See id. (requiring evidence to prove prejudice for a successful Strickland claim).
41
See Broadnax, 987 F.3d at 406-07.
11