Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

United States Court of Appeals,
Fifth Circuit.
No. 95-21041.
Augustine MARTINEZ, Petitioner-Appellant,
v.
Gary L. JOHNSON, Director, Texas Dept. of Criminal Justice, Institutional Division,
Respondent-Appellee.
Feb. 3, 1997.
Appeal from the United States District Court for the Southern District of Texas, Houston.
Before WISDOM, JONES and WIENER, Circuit Judges.
WISDOM, Circuit Judge:
Augustine Martinez was convicted in Texas state court of aggravated sexual assault upon his
eight-year-old daughter. His conviction was affirmed on direct appeal and his request for state habeas
corpus relief was denied without written order.
On April 20, 1995, Martinez, proceeding pro se, filed a copy of his state habeas petition as
a petition for a writ under 28 U.S.C. § 2254. Martinez included in his petition a "Petition for
Discovery to Pro duce the Entire Record", which he had apparently filed in state court. He also
included excerpts from the state trial record pertinent to the issues he raised in the petition.
On May 26, 1995, the magistrate judge granted Martinez leave to proceed in forma pauperis.
The magistrate judge also issued a show cause order under 28 U.S.C. § 2243 in which he noted that
preliminary examination of the petition established that summary dismissal was not warranted. He
also ordered the respondent, the Director of the Texas Department of Criminal Justice-Institutional
Division, to file "an answer or other pleading" within 60 days after receiving the show cause order,
and advised that under FRCP 12(c), "if matters outside the pleadings are relied upon, the respondent's
motion shall be treated as a motion for summary judgment and should be titled as such ". (Emphasis
in original.) In the same order, the magistrate judge ordered Martinez to "file a response to any
dispositive motion filed by the respondent, within 30 days " and warned that failure to comply with
that order would "result in dismissal of this action for want of prosecution under Rule 41(b),

Fed.R.Civ.P." (Emphasis in original.)
The respondent filed a motion for summary judgment on July 31, 1995. Martinez did not file
a responsive pleading. On September 25, 1995, the district court entered an order finding:
Since petitioner has failed to respond to [the respondent]'s Motion for Summary Judgment,
the court concludes that he lacks interest in prosecuting this matter. Accordingly, this action
will be dismissed without prejudice for want of prosecution pursuant to [Fed.R.Civ.P.] 41(b)
and pursuant to the court's inherent power to manage its own docket "to achieve the orderly
and expeditious disposition of cases'. (Citation omitted.)
On October 6, 1995, Martinez moved the district court to reconsider its order and reinstate
his action. Martinez asserted that he failed to respond to the motion for summary judgment because
he "was waiting to be served with the record".
On November 1, 1995, the district court entered an order finding that it was apparent from
Martinez's § 2254 petition that he "already had access to these documents as a result of his direct
appeal and petition for writ of habeas corpus in state court" and that "Martinez does not explain why
these documents were no t available to him for use in his response to the motion for summary
judgment". The district court found that Martinez's failure to respond was due to circumstances
within his control and denied the motion to reconsider. On December 1, 1995 Martinez filed a notice
of appeal. On the same day, the district court found that Martinez had not made a substantial
showing of the denial of any federal right and denied Martinez a certificate of probable cause. On
December 14, the district court entered an amended order denying all relief sought in Martinez'
motion to reconsider.
This court granted a certificate of probable cause and ordered the respondent to brief: (1)
"whether the district court dismissal of Martinez's 28 U.S.C. § 2254 petition for failure to prosecute
pursuant to Fed.R.Civ.P. 41(b), without reviewing the record and without determining whether an
evidentiary hearing was appropriate, was inconsistent with the Rules Governing Section 2254 Cases",
and (2) "whether Martinez's "Petition for Discovery' was properly before the district court and
whether the district court abused its discretion by failing to order discovery".1
1This case was on appeal before Congress passed the Antiterrorism and Effective Death
Penalty Act of 1996.

Standard of Review
The standard of review for a Fed.R.Civ.P. 41(b) dismissal is whether the district court abused
its discretion.2 The denial of a Fed.R.Civ.P. 59(e) motion to alter or amend is reviewed for an abuse
of discretion.3 A notice of appeal from the denial of a timely Fed.R.Civ.P. 59(e) motion brings up
the underlying judgment for review.4
Fed.R.Civ.P. 41(b).
Martinez's petition is governed by the Rules Governing Section 2254 Cases (the "habeas
rules").5 These rules, specifically adopted by the Supreme Court to govern habeas petitions filed by
prisoners in state custody, require petitions to be filed in a specific form6, compel the respondent to
file some kind of answer7, and empower the court to dismiss a petition either after the petition alone
is filed8, or after the petition, answer, transcript, and record are filed, even without an evidentiary
hearing.9 Nowhere, however, do the habeas rules require that a petitioner react to any responsive
pleadings filed by the respondent. Thus, the magistrate judge's show cause order represents an
innovation in habeas procedure.
Martinez argues that this innovation is inconsistent with the habeas rules and, therefore, was
an abuse of discretion. The respondent argues that the district court has inherent authority to control
its docket and may dismiss an action whenever necessary to "achieve the orderly and expeditious
disposition of cases". The respondent points out that Martinez was on notice that he was required
2McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.1988).
3Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990); Batterton v. Texas General
Land Office, 783 F.2d 1220, 1225 (5th Cir.), cert. denied, 479 U.S. 914, 107 S.Ct. 316, 93
L.Ed.2d 289 (1986).
4United States v. One 1988 Dodge Pickup, 959 F.2d 37, 41 n. 5 (5th Cir.1992).
5See Rules Governing Section 2254 Cases, Rule 1.
6See Rules Governing Section 2254 Cases, Rule 2.
7See id., Rule 5.
8See id., Rule 4.
9See id., Rule 8.

to respond to any dispositive motion within 30 days and that the dismissal was without prejudice,
leaving Martinez free to re-file his habeas petition.
Under the Federal Rules of Civil Procedure, a district court may, upon a defendant's motion,
dismiss an action for failure to prosecute or to comply with any court order.10 The district court also
has the inherent authority to dismiss an action sua sponte, without motion by a defendant.11 "The
power to invoke this sanction is necessary in order to prevent undue delays in the disposition of
pending cases and to avoid congestion in the calendars of the [d]istrict [c]ourts."12
Federal habeas corpus proceedings initiated by a state prisoner are governed by the habeas
rules. Rule 11 of the habeas rules provides that "[t]he Federal Rules of Civil Procedure, to the extent
that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed
under these rules".13 Thus, our role is to determine whether the district court's application of
Fed.R.Civ.P. 41(b) is consistent with the habeas rules.
In Harris v. Nelson,14 the precursor t o Rule 11 of the habeas rules, the Supreme Court
addressed the issue whether Fed.R.Civ.P. 33, relating to interrogatories to parties, applies in habeas
proceedings. Although the Court found that this instrument of discovery was not intended to extend
to habeas proceedings, the Court noted that, where Congress is largely silent, "the courts may fashion
appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial
usage".15 Thus, where there are procedural gaps in the habeas rules, the district courts have broad
discretion to apply the Federal Rules of Civil Procedure.
10Fed.R.Civ.P. 41(b) provides that: "[f]or failure of the plaintiff to prosecute or to comply
with these rules or any order of court, a defendant may move for dismissal of an action or of any
claim against the defendant". (Emphasis added.)
11Link v. Wabash R.R.Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734
(1962); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.1988).
12Link v. Wabash Railroad, 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734
(1962).
13Rules Governing Section 2254 Cases, Rule 11 (emphasis added).
14394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969).
15394 U.S. at 299, 89 S.Ct. at 1090.

In the instant case, the magistrate judge had determined that summary dismissal of the
petition was not warranted and issued a show cause order. The district court had before it both the
petition and the respondent's answer. At this point, the district court dismissed the petition without
prejudice pursuant to Fed.R.Civ.P. 41(b) and its "inherent power to manage its own docket"
Although we are skeptical that the district court's managing his docket in this manner will "achieve
orderly and expeditious disposition of cases", we cannot say that the district court's application of
Fed.R.Civ.P. 41(b) conflicts with the habeas rules. Accordingly, there was no abuse of discretion.
Petition for Discovery
The respondent was also ordered to brief whether the district court erred in failing to allow
Martinez to discover the portions of the record requested in his petition. The respondent argues that
"the state had already given Martinez a free copy of this transcript for purposes of his direct appeal",
and that Martinez failed to show that his appellate records were not available from other sources.
The respondent argues t hat Martinez was not entitled to a copy of his state appellate records to
"conduct a fishing expedition". The respondent further argues that Martinez's "petition for discovery"
demonstrates that he had access to portions of the transcribed testimony and "was reasonable able
to articulate his grounds for relief".
Martinez argues that he was challenging the sufficiency of the evidence to support his
conviction and that "it is impossible for Appellant to allude to the inconsistencies of the record
without the trial records".
Rule 6(a) of the Rules Governing Section 2254 Cases allows for all forms of discovery that
are available under the Federal Rules of Civil Procedure provided that the district court grants leave
for discovery "for good cause shown".16 The district court found, based on Martinez's petition, that
he had copies or portions of copies of his state court record and did not explain why he no longer had
access to them. Thus, the district court found that Martinez had not shown good cause for his
discovery request. We cannot say this was an abuse of discretion.17
16Rules Governing Section 2254 Cases, Rule 6(a).
17See McCowin v. Scott, 67 F.3d 100, 102 (5th Cir.1995).