Revised November 22, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50374
JOHN FAHLE, Plaintiff-Appellant,
versus
JOHN CORNYN, Attorney General for the State of Texas, Defendant-Appellee.
Appeal from the United States District Court for the Western District of Texas
November 3, 2000
Before GARWOOD, HIGGINBOTHAM, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Appellant John Fahle (“Fahle”) appeals the district court’s denial of his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. We granted a certificate of appealability (“COA”) on
the issue of whether Fahle was entitled to and was denied a full panoply of criminal procedure rights,
including the right to a hearing and the right to assistance of counsel, prior to being held in contempt,
sentenced to three days in jail, and fined $500 by the Texas Court of Criminal Appeals. For the
following reasons, we affirm the district court’s denial of habeas relief. FACTUAL AND PROCEDURAL BACKGROUND
On November 11, 1995, John Fahle was appointed appellate counsel in a death penalty case.
He was required to file his client’s brief on October 30, 1996, in the Texas Court of Criminal Appeals,
but the court granted him an extension until March 31, 1997. In granting the extension, the court
stated that it would not consider further motions for extensions and that failure to file his client’s brief
by the March 31st deadline could result in a judgment of contempt against Fahle.
Fahle did not meet the March 31st deadline, and on April 15, 1997, the Texas Court of
Criminal Appeals ordered him t o file, by April 30, 1997, his client’s brief and show cause why he
should not be held in contempt for failing to meet the deadline. Fahle neglected to respond to the
court’s order by April 30th. However, he filed an affidavit on May 6, 1997, explaining his reasons
for failing to timely file his client’s brief and stating that he expected to file the brief by May 12, 1997.
In his affidavit, Fahle stated that, during the weeks before the March 31st deadline, he had
been in court on an almost daily basis and listed the cases for which he had appeared in court. Fahle
also stated that he had represented Rick McLaren, who allegedly kidnaped his neighbors on April 27,
1997, and engaged in a standoff with police for several days in Fort Davis, Texas. Fahle further
explained that, while he did not immediately travel to Fort Davis, he was in constant contact with law
enforcement officials there as well as the Texas Attorney General’s Office. He went to Fort Davis
on May 3, 1997, and returned to his home on May 5, 1997. Fahle also stated in his affidavit that he
had been unable to work for several months prior to the March 31st deadline because his wife left
him.
Fahle did not file his client’s brief by May 12th, but instead filed it on June 17, 1997.
However, before he filed the brief, the Texas Court of Criminal Appeals entered a judgment of
2 contempt against him. The court entered the contempt judgment on June 2, 1997, stating that it was
“plain from the record that the said John Fahle has failed to comply with the orders of this Court and,
especially, the ORDER TO SHOW CAUSE AND FILE BRIEF dated April 15, 1997, and is
therefore, in contempt of this Court and should be punished for contempt.”
The court sentenced Fahle to three days in jail and imposed a $500 fine. The court also issued
an alias capias directing law enforcement officers to arrest him. Fahle has not been arrested. When
he filed his client’s brief on June 17th, Fahle also requested that the Court of Criminal Appeals stay
his surrender to custody so that he could consult with counsel. The court denied his request, and he
filed a petition for a writ of habeas corpus in the district court. The district court stayed the execution
of the contempt order pending resolution of the habeas proceeding. The district court also denied
the Texas Attorney General’s motion to dismiss for failure to exhaust state remedies. The court
accepted the finding of the magistrate judge that Fahle did not have an adequate state remedy and
excused him from the exhaustion requirement.
In his habeas petition, Fahle contended that: (1) he did not receive notice of the charges
against him; (2) he did not receive a hearing; (3) he was denied the opportunity to consult with
counsel after the Court of Criminal Appeals entered the contempt order; (4) the Court of Criminal
Appeals failed to follow state procedures for contempt proceedings; (5) the Court of Criminal
Appeals did not have sufficient evidence to support the judgment of contempt; and (6) the judgment
of contempt violated the due process rights of the client whom Fahle had been appointed to represent.
Accepting the findings of the magistrate judge, the district court denied Fahle’s petition for habeas
relief.
3 Fahle then sought a COA from this Court. A judge of this Court granted the COA on the
issue of “whether Fahle was entitled to a full panoply of criminal procedure rights, including the right
to a hearing and right to counsel, prior to being held in contempt and, if so, whether Fahle was
unconstitutionally denied that right.” The order also requested that the parties brief “whether Fahle
has waived any right to criminal procedural safeguards he may have had by failing to file affidavits
in a timely fashion as ordered by the state appellate court.”
DISCUSSION
In a habeas corpus appeal, we review the district court’s conclusions of law de novo and its
findings of fact for clear error. Thompson v. Cain,161 F.3d 802, 805 (5th Cir. 1998).
In response to his claim that he was entitled to a live evidentiary hearing, the district court
found that Fahle received a sufficient opportunity to be heard. The court also found that Fahle had
not offered any explanations for his failure to timely file his client’s brief aside from those in his
affidavit to the Court of Criminal Appeals.
The Supreme Court and this Court have indicated that a petty criminal contempt penalty does
not exceed imprisonment for six months or a fine of $5,000. See International Union, United Mine
Workers of America v. Bagwell, 512 U.S. 821, 838 n.5, 114 S.Ct. 2552, 2562, 129 L.Ed.2d 642
(1994); Crowe v. Smith, 151 F.3d 217, 229 (5th Cir. 1998). In Texas, the penalty for contempt of
court is limited to “a fine of not more than $500 or confinement in the county jail for not more than
six months, or both such a fine and confinement in jail.” TEX. GOV’T CODE ANN. § 21.002 (Vernon
2000). The Texas Court of Criminal Appeals sentenced Fahle to three days in jail and a $500 fine.
This contempt sanction was petty in nature.
4 Fahle argues t hat he was entitled to a live evidentiary hearing to explain why he failed to
timely file his client’s brief. However, he has not pointed to any case holding that one who is charged
with petty criminal contempt is per se entitled to a live evidentiary hearing. Nevertheless, “[t]he
fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in
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Revised November 22, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50374
JOHN FAHLE, Plaintiff-Appellant,
versus
JOHN CORNYN, Attorney General for the State of Texas, Defendant-Appellee.
Appeal from the United States District Court for the Western District of Texas
November 3, 2000
Before GARWOOD, HIGGINBOTHAM, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Appellant John Fahle (“Fahle”) appeals the district court’s denial of his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. We granted a certificate of appealability (“COA”) on
the issue of whether Fahle was entitled to and was denied a full panoply of criminal procedure rights,
including the right to a hearing and the right to assistance of counsel, prior to being held in contempt,
sentenced to three days in jail, and fined $500 by the Texas Court of Criminal Appeals. For the
following reasons, we affirm the district court’s denial of habeas relief. FACTUAL AND PROCEDURAL BACKGROUND
On November 11, 1995, John Fahle was appointed appellate counsel in a death penalty case.
He was required to file his client’s brief on October 30, 1996, in the Texas Court of Criminal Appeals,
but the court granted him an extension until March 31, 1997. In granting the extension, the court
stated that it would not consider further motions for extensions and that failure to file his client’s brief
by the March 31st deadline could result in a judgment of contempt against Fahle.
Fahle did not meet the March 31st deadline, and on April 15, 1997, the Texas Court of
Criminal Appeals ordered him t o file, by April 30, 1997, his client’s brief and show cause why he
should not be held in contempt for failing to meet the deadline. Fahle neglected to respond to the
court’s order by April 30th. However, he filed an affidavit on May 6, 1997, explaining his reasons
for failing to timely file his client’s brief and stating that he expected to file the brief by May 12, 1997.
In his affidavit, Fahle stated that, during the weeks before the March 31st deadline, he had
been in court on an almost daily basis and listed the cases for which he had appeared in court. Fahle
also stated that he had represented Rick McLaren, who allegedly kidnaped his neighbors on April 27,
1997, and engaged in a standoff with police for several days in Fort Davis, Texas. Fahle further
explained that, while he did not immediately travel to Fort Davis, he was in constant contact with law
enforcement officials there as well as the Texas Attorney General’s Office. He went to Fort Davis
on May 3, 1997, and returned to his home on May 5, 1997. Fahle also stated in his affidavit that he
had been unable to work for several months prior to the March 31st deadline because his wife left
him.
Fahle did not file his client’s brief by May 12th, but instead filed it on June 17, 1997.
However, before he filed the brief, the Texas Court of Criminal Appeals entered a judgment of
2 contempt against him. The court entered the contempt judgment on June 2, 1997, stating that it was
“plain from the record that the said John Fahle has failed to comply with the orders of this Court and,
especially, the ORDER TO SHOW CAUSE AND FILE BRIEF dated April 15, 1997, and is
therefore, in contempt of this Court and should be punished for contempt.”
The court sentenced Fahle to three days in jail and imposed a $500 fine. The court also issued
an alias capias directing law enforcement officers to arrest him. Fahle has not been arrested. When
he filed his client’s brief on June 17th, Fahle also requested that the Court of Criminal Appeals stay
his surrender to custody so that he could consult with counsel. The court denied his request, and he
filed a petition for a writ of habeas corpus in the district court. The district court stayed the execution
of the contempt order pending resolution of the habeas proceeding. The district court also denied
the Texas Attorney General’s motion to dismiss for failure to exhaust state remedies. The court
accepted the finding of the magistrate judge that Fahle did not have an adequate state remedy and
excused him from the exhaustion requirement.
In his habeas petition, Fahle contended that: (1) he did not receive notice of the charges
against him; (2) he did not receive a hearing; (3) he was denied the opportunity to consult with
counsel after the Court of Criminal Appeals entered the contempt order; (4) the Court of Criminal
Appeals failed to follow state procedures for contempt proceedings; (5) the Court of Criminal
Appeals did not have sufficient evidence to support the judgment of contempt; and (6) the judgment
of contempt violated the due process rights of the client whom Fahle had been appointed to represent.
Accepting the findings of the magistrate judge, the district court denied Fahle’s petition for habeas
relief.
3 Fahle then sought a COA from this Court. A judge of this Court granted the COA on the
issue of “whether Fahle was entitled to a full panoply of criminal procedure rights, including the right
to a hearing and right to counsel, prior to being held in contempt and, if so, whether Fahle was
unconstitutionally denied that right.” The order also requested that the parties brief “whether Fahle
has waived any right to criminal procedural safeguards he may have had by failing to file affidavits
in a timely fashion as ordered by the state appellate court.”
DISCUSSION
In a habeas corpus appeal, we review the district court’s conclusions of law de novo and its
findings of fact for clear error. Thompson v. Cain,161 F.3d 802, 805 (5th Cir. 1998).
In response to his claim that he was entitled to a live evidentiary hearing, the district court
found that Fahle received a sufficient opportunity to be heard. The court also found that Fahle had
not offered any explanations for his failure to timely file his client’s brief aside from those in his
affidavit to the Court of Criminal Appeals.
The Supreme Court and this Court have indicated that a petty criminal contempt penalty does
not exceed imprisonment for six months or a fine of $5,000. See International Union, United Mine
Workers of America v. Bagwell, 512 U.S. 821, 838 n.5, 114 S.Ct. 2552, 2562, 129 L.Ed.2d 642
(1994); Crowe v. Smith, 151 F.3d 217, 229 (5th Cir. 1998). In Texas, the penalty for contempt of
court is limited to “a fine of not more than $500 or confinement in the county jail for not more than
six months, or both such a fine and confinement in jail.” TEX. GOV’T CODE ANN. § 21.002 (Vernon
2000). The Texas Court of Criminal Appeals sentenced Fahle to three days in jail and a $500 fine.
This contempt sanction was petty in nature.
4 Fahle argues t hat he was entitled to a live evidentiary hearing to explain why he failed to
timely file his client’s brief. However, he has not pointed to any case holding that one who is charged
with petty criminal contempt is per se entitled to a live evidentiary hearing. Nevertheless, “[t]he
fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in
a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18
(1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62
(1965)). The Co urt of Criminal Appeals afforded Fahle a meaningful opportunity to explain his
failure to meet the extended deadline through affidavits from himself and others. Fahle has not shown
that the opportunity to explain his failure through affidavits was constitutionally insufficient.
Moreover, Fahle has not shown how he was prejudiced by the lack of a live evidentiary
hearing. He has not offered any explanations, aside from the ones that he asserted in his affidavit, that
he would have presented to the court at a live hearing. He has not stated that he would have called
any witnesses and has not claimed that he was prevented from asserting any rights by the lack of a
live hearing.
In the habeas context, this Court has found that in some cases the requirement that there be
a hearing on the merits may be satisfied by a “paper hearing” rather than by an in-court evidentiary
hearing. See, e.g., Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994). Similarly, under the
circumstances of this case, the “paper hearing” given to Fahle by the Court of Criminal Appeals was
sufficient.
Fahle also complains that the Court of Criminal Appeals found him in criminal contempt
before affording him the opportunity to seek assistance of counsel. He claims that the court did not
give him adequate notice of “the gravity of the proceeding” to alert him of the need to seek assistance
5 of counsel. The district court denied relief on the basis of denial of assistance of counsel. The court
found that Fahle received notice and an opportunity to respond to the contempt charges, but he
simply failed to seek the assistance of counsel. We find that Fahle’s claim is essentially a notice
claim, and the Court of Criminal appeals clearly gave him adequate notice that he was facing criminal
contempt sanctions.
Finally, Fahle makes the conclusory arguments, under the rubric “Other Due Process
Considerations,” that the Court of Criminal Appeals did not presume him to be innocent and that he
was not proven guilty beyond a reasonable doubt by a neutral fact finder. Fahle has wholly failed to
support these allegations, and we decline to grant habeas relief on either of them.
We find that the opportunity afforded by the Court of Criminal Appeals for Fahle to explain
his failure to timely file his client’s brief was meaningful and constitutionally sufficient. We do not
reach the issue of whether Fahle waived any of his rights to criminal procedural safeguards.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of Fahle’s petition for
habeas relief.
AFFIRMED.