Saldano v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED APRIL 8, 2004
IN THE UNITED STATES COURT OF APPEALS March 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40905
VICTOR HUGO SALDANO
Petitioner - Appellee
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent - Appellee
v.
JOHN R ROACH, District Attorney of Collin County, Texas
Movant Plaintiff - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.
KING, Chief Judge:
Victor Hugo Saldano was convicted of a capital offense and
sentenced to death. Saldano subsequently filed a petition for
writ of habeas corpus in federal court challenging his sentence.
John R. Roach, the District Attorney of Collin County, Texas,
appeals the district court’s denial of his application to
intervene as of right in Saldano’s habeas corpus suit. For the
following reasons, we affirm in part and dismiss in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
1
In 1996, a Texas jury convicted Saldano of capital murder.
During the punishment phase of Saldano’s trial, the Collin County
District Attorney (“District Attorney”) called Dr. Walter
Quijano, a psychologist, to testify as an expert witness. Dr.
Quijano provided the jury with a list of twenty-four unweighted
factors that he advised the jury to use in evaluating Saldano’s
future dangerousness. One of the factors was race. As to this
factor, Dr. Quijano stated that Saldano was Hispanic, pointed out
that Hispanics were over-represented in the Texas prison system,
and opined that there was a correlation between race and
ethnicity and future dangerousness. During closing arguments,
the District Attorney reminded the jury to consider the twenty-
four factors laid out by Dr. Quijano when assessing Saldano’s
future dangerousness. Saldano did not object either to Dr.
Quijano’s testimony or to the District Attorney’s reference to it
during his closing argument; instead, he met Dr. Quijano’s
testimony through cross-examination and the presentation of a
rebuttal witness.
After hearing all the evidence, the jury found that there
was a probability that Saldano would commit criminal acts of
violence that would constitute a continuing threat to society.
In addition, the jury found insufficient mitigating circumstances
to warrant life imprisonment rather than the death penalty.
Consequently, the trial judge sentenced Saldano to death.
Saldano appealed directly to the Texas Court of Criminal
2
Appeals, claiming that he had been denied due process of law
because his race and ethnicity were improperly used to support a
finding of future dangerousness during the punishment phase of
his trial. The District Attorney argued that, because Saldano
did not object to Dr. Quijano’s testimony, Saldano’s claim was
procedurally barred by Texas’s contemporaneous objection rule.
The Court of Criminal Appeals affirmed Saldano’s conviction and
sentence, after finding that Saldano’s claim was, indeed,
procedurally barred.
The United States Supreme Court granted certiorari. Before
the Supreme Court, the Attorney General of the State of Texas
assumed representation of the State.1 The Attorney General
confessed error in Saldano’s sentencing and declined to raise
Saldano’s procedural default as a defense. The Supreme Court
vacated the judgment against Saldano and “remanded to the Court
of Criminal Appeals of Texas for further consideration in light
of the confession of error.” Saldano v. Texas, 530 U.S. 1212,
1212 (2000).2
1
The District Attorney sought leave to file a brief with
the Supreme Court defending the judgment of the Court of Criminal
Appeals, but the Supreme Court denied this request.
2
Following the Supreme Court’s ruling in Saldano, four
other state inmates, each of whom had been sentenced to death as
a result of punishment-phase hearings in which Dr. Quijano gave
substantially similar testimony, petitioned for federal writs of
habeas corpus. The Attorney General confessed error in each case
and, in each, the federal court vacated the death sentence and
granted a new sentencing hearing. See Alba v. Johnson, No. 00-
40194 (5th Cir. Aug. 21, 2000) (unpublished opinion); Broxton v.
3
On remand, the State Prosecuting Attorney,3 with the
District Attorney’s help, represented the State before the Court
of Criminal Appeals. The Attorney General submitted a brief as
amicus curiae. Once again, the Court of Criminal Appeals ruled
that Saldano’s claim was procedurally barred. Saldano v. State,
70 S.W.3d 873, 891 (Tex. Crim. App. 2002) (en banc).
Saldano subsequently petitioned the United States District
Court for the Eastern District of Texas for a writ of habeas
corpus. The Attorney General--representing Doug Dretke, in his
official capacity as Director of the Texas Department of Criminal
Justice, Institutional Division--confessed error and waived
Saldano’s procedural default. The District Attorney filed an
application to intervene as of right to oppose Saldano’s petition
on procedural-default and harmless-error grounds. The district
court held that the political-question doctrine prevented it from
considering the merits of the District Attorney’s application for
Johnson, No. H-00-CV-1034 (S.D. Tex. Mar. 28, 2001) (unpublished
opinion); Blue v. Johnson, No. H-99-0350 (S.D. Tex. Oct. 2, 2000)
(unpublished opinion); Garcia v. Johnson, No. 99-CV-00134 (E.D.
Tex. Sept. 7, 2000) (unpublished opinion).
3
The State Prosecuting Attorney has primary authority
for representing the State before the Texas Court of Criminal
Appeals, but a district attorney may assist the State Prosecuting
Attorney. Saldano v. State, 70 S.W.3d 873, 876-77 (Tex. Crim.
App. 2002) (en banc) (citing TEX. GOV’T CODE ANN. § 42.001(a) for
the authority of the State Prosecuting Attorney); TEX. GOV’T CODE
ANN. § 42.005(b). Article 2.01 of the TEXAS CODE OF CRIMINAL PROCEDURE
outlines the scope of authority of a district attorney.
4
intervention.4
The District Attorney appealed. In Saldano v. O’Connell,
322 F.3d 365, 371 (5th Cir. 2003), we held that the district
court erred in finding that the District Attorney’s application
for intervention presented it with a non-justiciable political
question. Therefore, we reversed the district court’s order and
remanded the District Attorney’s application to the district
court for disposition on the merits. Id.
On remand, the district court denied the District Attorney’s
application for intervention and granted Saldano’s petition for a
writ of habeas corpus. Saldano v. Cockrell, 267 F. Supp. 2d 635
(E.D. Tex. 2003). The District Attorney appeals both the order
denying his application for intervention and the judgment
granting Saldano’s petition for a writ of habeas corpus.
Director Dretke did not appeal the district court’s judgment, but
he did file a brief in opposition to the District Attorney’s
appeal.
II. INTERVENTION
A. Standard of Review
This court reviews de novo a district court’s decision to
deny an application for intervention under Rule 24(a)(2) of the
Federal Rules of Civil Procedure. Sierra Club v. Espy, 18 F.3d
4
The district court did, however, allow the District
Attorney to file a brief as an amicus curiae.
5
1202, 1205 (5th Cir. 1994); cf. 6 JAMES WM. MOORE ET AL., MOORE’S
FEDERAL PRACTICE § 24.24[2][b], at 24-94 to 24-95 (3d ed. 2003)
(describing circuit split).5
B. Intervention as of Right
Intervention as of right under Rule 24(a)(2) is proper when:
(1) the motion to intervene is timely; (2) the potential
intervener asserts an interest that is related to the
property or transaction that forms the basis of the
controversy in the case into which she seeks to
intervene; (3) the disposition of that case may impair or
impede the potential intervener’s ability to protect her
interest; and (4) the existing parties do not adequately
represent the potential intervener’s interest.
Doe v. Glickman, 256 F.3d 371, 375 (5th Cir. 2001). The District
Attorney claims that he meets all four of Rule 24(a)(2)’s
requirements. The district court, however, ruled that the
District Attorney did not meet the second requirement for
intervention because he had failed to “establish that his direct,
substantial, legally protectable interests [would] be impaired or
impeded by the disposition of th[e] case in his absence as a
party.” Saldano, 267 F. Supp. 2d at 641. We agree.
To meet the second requirement for Rule 24(a)(2)
intervention, a potential intervenor must demonstrate that he has
an interest that is related to the property or transaction that
forms the basis of the controversy. Doe, 256 F.3d at 375. Not
5
A different standard of review applies to the district
court’s decision regarding the timeliness of the potential
intervenor’s application, see Espy, 18 F.3d at 1205 n.2, but
timeliness is not at issue here, since all parties agree that the
District Attorney’s application was timely.
6
any interest, however, is sufficient; the interest must be
“direct, substantial, [and] legally protectable.” Id. at 379
(alteration in original) (internal quotation marks omitted). We
have explained that “the interest [must] be one which the
substantive law recognizes as belonging to or being owned by the
applicant.” New Orleans Pub. Serv., Inc. v. United Gas Pipe Line
Co., 732 F.2d 452, 464 (5th Cir. 1984) (en banc). In addition,
the intervenor should be the real party in interest regarding his
claim. Id.
In this suit against Director Dretke, the real party in
interest is the State of Texas. See Diamond v. Charles, 476 U.S.
54, 57 n.2 (1986) (“A suit against a state officer in his
official capacity is, of course, a suit against the State.”).
And, although the District Attorney claims to have the authority
to act as the State’s representative in this case, state law
provides otherwise. Under Texas law, a district attorney’s
duties and responsibilities are defined by statute. State v.
Allen, 32 Tex. 273, 275 (1869). Texas law does not grant
district attorneys the authority to represent either state
officials, such as Director Dretke, or the State in a federal
habeas corpus proceeding. See TEX. CODE CRIM. PROC. ANN. art. 2.01
(Vernon Supp. 2004) (outlining the duties of district
attorneys).6 Instead, as the District Attorney concedes, Texas
6
Art. 2.01 of the TEXAS CODE OF CRIMINAL PROCEDURE provides:
Each district attorney shall represent the State in all
7
law gives the Attorney General the authority to represent
Director Dretke and the State in suits such as this. See Sierra
Club v. City of San Antonio, 115 F.3d 311, 314 (5th Cir. 1997)
(“Under Texas law, the Attorney General enjoys an exclusive right
to represent state agencies; other attorneys who may be permitted
to assist the Attorney General are subordinate to his
authority.”); League of United Latin Am. Citizens, Council No.
4434 v. Clements, 999 F.2d 831, 844 (5th Cir. 1993) (en banc)
(“The Attorney General may represent state officials in their
official capacities . . . .”).
Furthermore, since the Attorney General is properly
representing the State in this case, Texas law does not permit
the District Attorney to assume representation of the State as
well. Under Texas law, “either the Attorney General or a county
or district attorney may represent the State in a particular
situation, but these are the only choices, whichever official
represents the State exercises exclusive authority and if
criminal cases in the district courts of his district and
in appeals therefrom, except in cases where he has been,
before his election, employed adversely. When any
criminal proceeding is had before an examining court in
his district or before a judge upon habeas corpus, and he
is notified of the same, and is at the time within his
district, he shall represent the State therein, unless
prevented by other official duties. It shall be the
primary duty of all prosecuting attorneys, including any
special prosecutors, not to convict, but to see that
justice is done. They shall not suppress facts or secrete
witnesses capable of establishing the innocence of the
accused.
8
services of other lawyers are utilized, they must be ‘in
subordination’ to his authority.” Hill v. Tex. Water Quality
Bd., 568 S.W.2d 738, 741 (Tex. Civ. App.--Austin 1978, writ ref’d
n.r.e.); cf. Saldano, 70 S.W.3d at 883 (“[T]he State has only one
interest in a criminal case, and the State can be represented by
only one attorney in making such decisions as whether to seek
review and whether to confess error.”). As the Texas Court of
Criminal Appeals aptly noted in a state habeas appeal: “In every
appeal, such decisions must be made as whether to appeal, . . .
what points to raise[,] whether to confess error, . . . whether
to seek further review and on what grounds. Some one person must
make these decisions; there cannot be conflicting decisions.” Ex
Parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001) (en banc)
(per curiam). In sum, Texas law does not grant the District
Attorney the authority to represent the State here. Thus, the
District Attorney’s interest in this case is not “one which the
substantive law recognizes as belonging to or being owned by the
applicant.” New Orleans Pub. Serv., Inc., 732 F.2d at 464.
Nevertheless, the District Attorney argues that his
intervention is proper in light of Baker v. Wade, 769 F.2d 289
(5th Cir. 1985) (en banc), overruled on other grounds by Lawrence
v. Texas, 123 S. Ct. 2472 (2003). In Baker, a federal district
court ruled that Texas’s sodomy statute was unconstitutional and
enjoined a class of Texas officials from enforcing the statute.
Id. at 291. A district attorney, who was an unnamed member of
9
the defendant class, sought to appeal the district court’s
judgment, since the Attorney General had declined to do so. Id.
The district attorney filed a motion to intervene and to be named
a class representative, and a Fifth Circuit judge granted the
motion. Id. The en banc court ruled that the district attorney
had a sufficient interest in the suit for purposes of
intervention because he had been specifically enjoined by the
district court from enforcing Texas’s sodomy statute and, thus,
his power to enforce the State’s criminal laws had been impaired.
Id. at 291-92.
The District Attorney’s reliance on Baker is misplaced.
Unlike the district attorney in Baker, who was an unnamed member
of the defendant class, the District Attorney is not a party to
this case. Therefore, the District Attorney is not legally bound
by the district court’s decision to grant habeas relief in the
same way in which the district attorney in Baker was bound.7
Furthermore, in Baker, the injunction clearly impaired the
district attorney’s ability to carry out his official duties
under state law because it prevented him from enforcing one of
Texas’s criminal laws. Here, by contrast, the District Attorney
7
Because, however, the District Attorney must still
“represent the State in all criminal cases in the district courts
of his district and in appeals therefrom,” TEX. CODE CRIM. PROC.
ANN. art. 2.01, he is “bound” to make a decision on how to
proceed in the light of intervening decisions. Naturally, in
exercising that authority and carrying out that responsibility,
he is obligated, as an attorney and officer of the court, to heed
governing caselaw.
10
has not been prevented from performing his duties under Texas law
because he may still seek the death penalty in this and other
cases.8 Thus, the District Attorney has not demonstrated that
his interest in this case is “substantial” and “legally
cognizable” like the district attorney’s interest in Baker.
Consequently, while intervention was proper in Baker, it is not
proper under the facts of this case.9
It is true that the District Attorney will be affected, as a
practical matter, by the district court’s order. The District
Attorney certainly worked hard to obtain a conviction and to
defend the conviction and sentence on appeal. Understandably,
the District Attorney does not wish to undergo the costs and
burdens of conducting a new sentencing hearing. If this were a
sufficient interest to justify intervention, however, a state
district attorney would be able to intervene in almost any habeas
corpus suit where he did not agree with the Attorney General’s
method of representing the State. This outcome would be contrary
8
Although the District Attorney may no longer elicit
testimony regarding the correlation between race and future
dangerousness, the district court’s order has not impaired his
job function because, under Texas law, district attorneys are not
permitted to present such testimony in any case. TEX. CODE CRIM.
PROC. ANN. art. 37.07, § 3(a)(2) (Vernon Supp. 2004) (“[E]vidence
may not be offered by the state to establish that the race or
ethnicity of the defendant makes it likely that the defendant
will engage in future criminal conduct.”).
9
We also note that we have never applied Baker in the
context of habeas corpus, and we see no reason to do so here.
11
to state law, which has chosen the Attorney General, rather than
the various district attorneys, to represent the State in federal
habeas corpus suits.
Furthermore, even if the District Attorney’s interest in
this suit were sufficient to permit his intervention, we would
nevertheless conclude that Rule 24 intervention is improper
because the District Attorney has not demonstrated that he meets
the fourth requirement for intervention: that his interest is
inadequately represented by the existing parties. Doe, 256 F.3d
at 375. To meet this requirement, a potential intervenor must
show that the representation of his interest by existing parties
to the suit “‘may be’” inadequate. Edwards v. City of Houston,
78 F.3d 983, 1005 (5th Cir. 1996) (en banc) (quoting Trbovich v.
United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972)).
The District Attorney contends that the Attorney General is
not representing his interest in this case because the Attorney
General is not adequately representing the State’s interest.
According to the District Attorney, the Attorney General’s
representation of the State’s interest is inadequate because the
Attorney General “aligned himself with Saldano and joined Saldano
in urging the district court to vacate Saldano’s sentence” and
because the Attorney General did not appeal the district court’s
order granting habeas relief to Saldano.
As the District Attorney has conceded, however, the Attorney
General has discretion to confess error and to waive procedural
12
default. See, e.g., Alba v. Johnson, No. 00-40194 (5th Cir. Aug.
21, 2000) (unpublished opinion) (accepting the Texas Attorney
General’s confession of error);10 Brown v. State, 95 Tex. Crim.
664, 664, 255 S.W. 750, 751 (1923) (accepting the Attorney
General’s confession of error); cf. McGee v. Estelle, 722 F.2d
1206, 1212 (5th Cir. 1984) (“As the chief legal officer of the
state, the attorney general is the appropriate person to assert,
or to waive” habeas exhaustion requirements.). The Attorney
General is not an inadequate representative simply because he has
taken these actions, especially when state law gives him the
authority to do so.
It is true that, in exercising his discretion to confess
error and to waive procedural default, “the Attorney General
cannot bind state officials, his clients, to his own policy
preferences.” Clements, 999 F.2d at 840. There is no
indication, however, that the Attorney General is acting contrary
to the will of the State or his client, Director Dretke. Indeed,
there is evidence that the Attorney General’s confession of error
and waiver of procedural default furthers the State’s goal of
ensuring that capital sentencing is untainted by racial
prejudice, as manifested by recently enacted state legislation.
See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(2) (Vernon Supp.
2004) (“[E]vidence may not be offered by the state to establish
10
Alba involved almost identical facts--indeed, even the
same expert witness--as this case.
13
that the race or ethnicity of the defendant makes it likely that
the defendant will engage in future criminal conduct.”).
Moreover, the Attorney General’s failure to appeal does not
make him an inadequate representative of the State’s interest.
In Baker, we stated that,
In this case where the district court has rejected
binding Supreme Court authority, the circuit court is
entitled to conclude as a matter of law that those
interests were inadequately represented by those who
failed to pursue the appeal and that the state officer
seeking to intervene was a proper party to do so.
769 F.2d at 292. According to the District Attorney, Baker
stands for the proposition that a party’s failure to appeal an
adverse judgment renders the party an inadequate representative
of the potential intervenor’s interest. Crucial to our holding
in Baker, however, was not simply that the Attorney General chose
not to appeal, but that the Attorney General failed to appeal
where, as the en banc court saw it, “binding Supreme Court
authority” indicated that the statute was not, in fact,
unconstitutional. Id. While we need not decide whether the
Attorney General’s confession of error was correct--indeed, as we
explain below, we do not have jurisdiction to decide this
question--we can conclude that the district court, by accepting
the Attorney General’s confession of error, did not ignore
binding Supreme Court authority. Cf. McCleskey v. Kemp, 481 U.S.
279, 309 n.30 (1987) (“The Constitution prohibits racially biased
prosecutorial arguments.”); Baldwin v. Alabama, 472 U.S. 372, 382
14
(1985) (“[A] death sentence based upon consideration of ‘factors
that are constitutionally impermissible or totally irrelevant to
the sentencing process, such as for example the race . . . of the
defendant,’ would violate the Constitution.” (dictum) (quoting
Zant v. Stephens, 462 U.S. 862, 885 (1983))). Similarly, without
deciding whether the district court was correct in accepting the
State’s waiver of procedural default and waiver of harmless
error, we hold that the district court did not ignore Supreme
Court authority in so doing.11 Cf. Trest v. Cain, 522 U.S. 87,
89 (1997) (“[P]rocedural default is normally a ‘defense’ that the
State is ‘obligated to raise’ and ‘preserv[e]’ if it is not to
‘lose the right to assert the defense thereafter.’” (second
alteration in original) (quoting Gray v. Netherland, 518 U.S.
152, 166 (1996))); 2 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS
CORPUS PRACTICE & PROCEDURE § 31.2a (4th ed. 2001) (“[T]he ‘harmless
error’ obstacle does not arise unless the state asserts it; the
state’s failure to do so in a timely and unequivocal fashion
waives the defense.”). Consequently, there is no reason to
11
As the District Attorney points out, Coleman v.
Thompson held that federal habeas review is barred--absent a
showing of cause and prejudice, or a fundamental miscarriage of
justice--when a state prisoner has defaulted his federal claim
pursuant to an adequate and independent state bar, such as
Texas’s contemporaneous objection rule. 501 U.S. 722, 750
(1991). The district court did not violate the rule announced in
Coleman, however, when it granted habeas relief to Saldano.
Coleman does not prevent a State from waiving a procedural bar in
the first place. See Trest v. Cain, 522 U.S. 87, 89 (1997)
(holding that procedural default is a defense that the State must
raise).
15
conclude that the Attorney General’s decision not to appeal makes
him an inadequate representative of the State’s interest.
Finally, the District Attorney contends that the Attorney
General inadequately represents his interest because the Attorney
General’s position in this case is directly contrary to the
position taken by the District Attorney. In Ex Parte Taylor, the
Court of Criminal Appeals rejected a very similar argument:
The district attorney argues finally that he and the
State Prosecuting Attorney should be allowed to file
separate petitions because they have different interests:
he wants to win only one case, while the State
Prosecuting Attorney has to look out for all the cases of
all the prosecutors of the state. We emphatically
disagree. The State of Texas has only one, indivisible
interest in a criminal prosecution: to see that justice
is done.
36 S.W.3d at 887 (footnote omitted). In other words, even though
the Attorney General and the District Attorney might choose to
vindicate the State’s interest in different ways, the fact
remains that the Attorney General and the District Attorney share
an identical interest in this case: to see that justice is done.
See TEX. CODE CRIM. PROC. ANN. art. 2.01 (Vernon Supp. 2004) (“[T]he
primary duty of all prosecuting attorneys [is] not to convict,
but to see that justice is done.”). In confessing error and
waiving Saldano’s procedural default, the Attorney General has
taken the position that justice in this case requires that
Saldano be resentenced. This choice is not unreasonable under
the circumstances. Simply because the District Attorney would
have made a different decision does not mean that the Attorney
16
General is inadequately representing the State’s interest--and
hence, the District Attorney’s claimed interest--especially since
state law specifically gives the Attorney General the discretion
to make these kinds of decisions.12
Because we conclude that the District Attorney does not have
a “direct, substantial, and legally protectable interest” in
these proceedings, and that any interest he does have is
adequately represented by the Attorney General, we hold that the
district court properly denied his application for intervention
under Rule 24(a)(2). See Espy, 18 F.3d at 1205 (“If a party
seeking to intervene fails to meet any one of [Rule 24(a)(2)’s]
requirements, it cannot intervene as a matter of right.”).
III. GRANT OF HABEAS RELIEF
In light of our ruling on intervention, we do not have
jurisdiction to address the remaining issues raised by the
District Attorney in his appellate brief. See Marino v. Ortiz,
484 U.S. 301, 304 (1988) (“The rule that only parties to a
lawsuit, or those that properly become parties, may appeal an
12
The District Attorney also suggests that Attorney
General is inadequately representing the State’s interest by
failing to defend the Court of Criminal Appeals’s decision in
Saldano v. State, 70 S.W.3d at 876-78. The Court of Criminal
Appeals, however, does not alone express the will of the State;
before our court, the Attorney General is the proper official to
speak for the State. As we stated in McGee, “[d]eference is due
the states, as governmental units, not their courts, their
executives, or their legislatures, save as these bodies represent
the state itself.” 722 F.2d at 1212.
17
adverse judgment, is well settled.”); Edwards, 78 F.3d at 993
(“[B]ecause [the applicants] were denied leave to intervene, and
thus never obtained the status of party litigants in this suit,
we dismiss their appeals, insofar as they seek review of the
district court’s final judgment [on the merits].”).
IV. CONCLUSION
Accordingly, we AFFIRM the district court’s order denying
the District Attorney’s application to intervene in this case and
DISMISS the District Attorney’s appeal of the district court’s
order granting habeas relief.
18