Opinion
09-23-00319-CV
10-16-2023
IN RE A. P. MERILLAT
Submitted on October 12, 2023
Original Proceeding 284th District Court of Montgomery County, Texas Trial Cause No. 23-07-10244-CV
Before Horton, Johnson and Wright, JJ.
MEMORANDUM OPINION
PER CURIAM
In this original proceeding, Relator A. P. Merillat filed a petition seeking mandamus relief to compel the trial court to set aside its order granting the Real Party, death row inmate, William Keith Speer, a Rule 202 petition to depose Merillat and requiring Merillat to appear for a deposition, with documents requested by Speer, no later than October 27, 2023. We requested a response, which Speer timely filed. After reviewing the mandamus petition, the response, and the record before us, we conditionally grant mandamus relief.
Background
In 2001, Speer was convicted of capital murder and sentenced to death for the 1997 murder of a fellow inmate committed while Speer was already serving a life sentence for a capital murder. See Speer v. State, No. 74,253, 2003 WL 22303983 (Tex. Crim. App. Oct. 8, 2003) (mem. op., not designated for publication) and Speer v. State, 890 S.W.2d 87 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). In 2003, the Court of Criminal Appeals affirmed his conviction for the 1997 murder. See Speer, 2003 WL 22303983. In 2004, the Court of Criminal Appeals denied Speer's initial application for a writ of habeas corpus on the merits. See Ex parte Speer, No. 59,101-01, 2004 WL 7330992, at *1 (Tex. Crim. App. June 30, 2004) (not designated for publication). According to the record, Speer is set to be executed on October 26, 2023, for the 1997 murder.
The factual background of the 1997 murder is described in several of the state and federal proceedings in which Speer has sought review. For purposes of background only, we include the following factual summary from Speer v. Dir., 2018 U.S. Dist. LEXIS 244337, *3-6, 2018 WL 11350010 (E.D. Tex. June 25, 2018) (report and recommendation of Magistrate).
Factual Background
On July 11, 1997, a Texas prison inmate named Gary Dickerson was strangled to death in his cell at the Barry Telford Unit in Bowie County, Texas. The events leading to his murder were as follows: A member of [an] [] gang within the prison had given Dickerson money to buy contraband cigarettes from an inmate named James Baker. Prison authorities confiscated the money from Dickerson, however, before he could purchase the cigarettes. In order to stay square with the [] gang, Dickerson told Baker to give the cigarettes directly to the [] gang member without payment. Dickerson threatened to inform the authorities about a large shipment of contraband tobacco Baker was about to receive if Baker did not comply with his request.
Inmate Michael Constandine, the leader of a prison gang called the [], had also become involved with Baker's smuggling operation. Constandine himself owed money to a prison gang called the []. To raise money, he decided to obtain a cut of Baker's tobacco shipment. Constandine threatened Baker with physical harm if he did not agree.
When the tobacco shipment was intercepted by authorities, all three gangs believed that Dickerson had told the authorities about Baker's operation. Dickerson asked to be placed in protective custody, and his request was granted. After a week, however, he was returned to the general population when he proved unwilling to provide further information. Within a day of being returned, he was killed.
Constandine testified that he met with three people to decide what action to take against Dickerson. Two of them were gang members: Jessie Barnes and Anibal Canales. The third was Speer, who was not a member of the gang, but was being considered for membership. Constandine ordered Speer and Canales to kill Dickerson. While Barnes acted as lookout, Speer and Canales went to Dickerson's cell on the pretext of smoking a cigarette. As Dickerson bent down to blow smoke in the vent below his toilet, Speer reached over and placed him in a choke hold until he eventually stopped breathing. 9 RR 164; 10 RR 45B46, 192B94, 252. Speer later recounted to fellow [gang] members that he choked Dickerson so hard that he crushed something in his throat and that he told Dickerson as he was dying, "don't f[] with the [gang][], not even in hell." 10 RR 45B47, 192B94, 254. Speer also wrote a letter to fellow inmate and prospective gang member David Ellis describing the murder. 10 RR 36B44; SX 34. In that letter, identified by several [gang][] members as having been written by Speer, Speer said:
I'm in Seg for killing a snitch. He may not have snitched on the 240 packs like the police say, but he had my family's name in his mouth in 1-Building, so I made his parole come early! The [gang][] is not no joke. We play the game and we play to win! [].
Speer filed a habeas corpus petition in federal district court, and he filed a motion in federal court to stay and abate his federal habeas proceeding arguing he had "recently discovered several meritorious claims which were not presented to the state courts." See Speer v. Dretke, No. 2:04-cv-00269, 2008 WL 2065798, at *1 (E.D. Tex. May 13, 2008) (not selected for publication). More specifically, his claims were "based upon the prosecution's failure to disclose to his trial counsel that it had offered incentives to inmate witnesses in exchange for their testimony." Id. Speer sought a stay so that he could exhaust what he described as newly discovered claims in state court. The federal district court granted the stay.
Speer filed a subsequent habeas application in the convicting court on July 8, 2008. In compliance with Art. 11.071, § 5(b)(1), the convicting court forwarded the application to the Court of Criminal Appeals. The Court of Criminal Appeals remanded the application to give Speer an opportunity to show when and how he obtained what he was claiming was the newly discovered evidence and to establish whether he discharged his duty to exercise due diligence in obtaining the evidence at the earliest opportunity. See Ex parte Speer, No. WR-59,101-02, 2008 WL 4803515, at *1 (Tex. Crim. App. Nov. 5, 2008) (order, not designated for publication). The trial court held a hearing and then forwarded the supplemental record to the Court of Criminal Appeals. The trial court found the application failed to show an exception to Article 11.071, section 5.
On review in the Court of Criminal Appeals, the Court of Criminal Appeals determined that the allegations in Speer's subsequent application failed to satisfy the requirements of Article 11.071, section 5(a), and the Court dismissed the application as an abuse of the writ. See Ex parte Speer, No. WR-59,101-02, 2010 WL 724430 (Tex. Crim. App. Mar. 3, 2010) (order, not designated for publication) (citing Tex. Code Crim. Proc. Ann. art. 11.071, § 5(a)).
Thereafter, Speer returned to federal court. In one of Speer's federal proceedings, Speer sought relief in federal court for the alleged failure of his counsel to present mitigating evidence in his trial for the murder of his fellow inmate. Speer v. Stephens, 781 F.3d 784, 787 (5th Cir. 2015).The Fifth Circuit remanded that matter in part with instructions "to appoint supplemental counsel" and "to consider in the first instance whether Speer can establish cause and prejudice for the procedural default of any ineffective-assistance-of-trial-counsel claims pursuant to Martinez and Trevino that he may raise, and if so, whether those claims merit relief." Id. Speer also sought habeas relief in federal court for an alleged speedy trial violation and for Brady claims. See Speer v. Lumpkin, 824 Fed.Appx. 240, 248 (5th Cir. 2020).The Fifth Circuit affirmed the denial of habeas relief on Speer's speedy trial claim and on the Brady claims, but it authorized Speer to appeal his ineffective assistance claim, which was based on Speer's claim that the attorney who represented him in his trial had failed to adequately investigate evidence that he claimed would have served to mitigate his punishment. Id.
In 2021, the Fifth Circuit affirmed the district court's ruling, concluding that Speer could not establish prejudice based on his claim that his trial attorney had failed to adequately investigate mitigation evidence. See Speer v. Lumpkin, 860 Fed.Appx. 66, 72 (5th Cir. 2021, op. on r'hg), cert. denied, 142 S.Ct. 2818 (2022).
Current Matter
On July 17, 2023, Speer filed a verified petition in the 284th District Court in Montgomery County, Texas, to take another deposition of A.P. Merillat to investigate a claim against Merillat in his individual capacity, which Speer contends he has the right to file under 42 U.S.C. section 1983 for a Sixth Amendment violation arising from the "uncounseled statements" Speer allegedly made to other inmates that were used against Speer in his murder trial, and a claim that the State and Merillat withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Speer alleged he was entitled to take the Rule 202 deposition and seek a production of documents, because it would further assist Speer in identifying whether he had a basis to allege exceptions to his 1983 claim being barred by the statute of limitations, such as deliberate concealment or the discovery rule. Speer attached to his petition an excerpt from Merillat's earlier deposition of March 31, 2009. In the 2009 deposition, Merillat testified that there may be other letters that he either kept apart from the Special Prosecution Unit's file or that after the investigation in the 1997 murder he had destroyed some documents.
In response to Speer's Rule 202 petition to take Merillat's deposition, Merillat objected on five grounds. First, according to Merillat, in 2009 Speer was deposed on the same subject of what parts of the 1997 murder investigation had subsequent to the investigation been destroyed. Second, Merillat argued that Speer failed to support his Rule 202 petition with evidence. Third, Merillat pointed out that the Fifth Circuit had found that Speer failed to show his defense had been prejudiced by a Brady violation, and it held that Speer's trial counsel had ample other evidence revealing that sweetheart deals were given to the jailhouse informants in exchange for testimony. Fourth, Merillat claimed that if Speer were to file a section 1983 claim against him, the claim would be barred by the statute of limitations. Fifth, Merillat argued that Rule 202 does not permit a party to require a deponent to produce documents, suggesting that Speer's actual goal was to attack his criminal conviction.
The trial court conducted a hearing on Speer's Rule 202 petition on September 15, 2023. Speer's attorney told the trial court that on May 10, 2023, he received six boxes of documents with 25,000 pages, which the attorney represented was the entire file of the Special Prosecution Unit. The Special Prosecution Unit turned over another 600 or 700 pages in June and made an additional disclosure in August. According to Speer's attorney, some of the documents had not previously been disclosed. Speer's counsel argued,
In '09, Mr. Merillat was ordered by a court order to produce all documents of relevance in the case at that hearing, before and during that hearing. He did not. He actually alluded in the [2009] hearing to the fact that he had some personal letters in - of a spiritual nature, I think he called them, which were not produced and were not dealt with at that depo because they weren't there.
Counsel for Speer argued the deposition would not be a burden to Merillat because a court reporter and Merillat's lawyer would be present, and Speer had documents to refresh Merillat's recollection. Merillat's attorney argued that Speer was trying to gather evidence to challenge his conviction before a habeas court. In response Speer's attorney argued no caselaw prohibits using a Rule 202 deposition for "for the investigation for other purposes."
During the hearing, Merillat's attorney explained that Speer had access to "[d]ocuments that are a very similar nature to ones they're presenting here[]" and suggested that Speer had not filed a section 1983 lawsuit because it would be dismissed quickly due to the statute of limitations. In response, Speer's attorney argued the equities were in his favor because "life is at stake." Responding to the trial court's comment that a 1983 lawsuit "has exactly zero effect on a scheduled execution[,]" Speer's attorney represented, "we want to accomplish, you know, getting the lawsuit going while our client is still alive." When the trial court asked whether Speer had been deposed, Speer's lawyer replied: "Absolutely not. I would never depose my client or put him on the stand for any reason." Later, Speer's attorney qualified his statement and said: "Maybe down the road, if he's - his conviction has been reversed, and he's sitting in prison somewhere, it could - we may well end up putting him on the stand."
On September 16, 2023, the trial court signed an order granting Speer's Rule 202 petition to depose Merillat. In its order, the trial court ordered Merillat to appear for deposition and to produce the documents that Speer requested on an agreed date no later than October 27, 2023. The trial court's order states "the benefits of permitting the depositions[] and requiring Mr. Merillat to bring with him the requested documents, outweighs the nominal burden of granting the request." See Tex. R. Civ. P. 202.4(a)(2). On October 4, 2023, Speer filed a motion to compel Merillat to appear for the deposition by October 10, 2023. In response, Merillat sought mandamus relief in this Court. We stayed the deposition, asked Speer to respond, and he complied with the Court's request.
Rule 202 and Mandamus Review
Mandamus is an extraordinary remedy granted only when the relator shows that the trial court clearly abused its discretion and that no adequate appellate remedy exists. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). When a petitioner seeks a pre-suit deposition order against an anticipated defendant, the order granting the petition is considered ancillary to the subsequent suit and thus neither final nor appealable. In re Jorden, 249 S.W.3d 416, 419 (Tex. 2008) (orig. proceeding). "An improper order under Rule 202 may be set aside by mandamus." In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (orig. proceeding).
If the applicable statute of limitations conclusively bars as-yet unfiled claims, then a court order allowing the Rule 202 petitioner to investigate those claims serves no legal purpose. Glassdoor, Inc. v. Andra Grp., LP, 575 S.W.3d 523, 527 (Tex. 2019). Likewise, a trial court cannot grant a Rule 202 petition to investigate a potential claim that is not yet ripe. In re DePinho, 505 S.W.3d 621, 624-25 (Tex. 2016) (orig. proceeding). "Rule [202] does not broadly authorize investigation of any action the petitioner may have based on future events[.]" A "claim" under Rule 202 "denotes an existing-rather than future or speculative-right that may be presently asserted." Id. at 624. A "potential" claim under Rule 202 is one that "a plaintiff may or may not assert in the future based upon actual events that have already caused some sort of injury." Id.
Arguments
In his mandamus petition, Merillat contends Speer conceded that the statute of limitations would apply. Merillat argues Speer cannot revive the tolling period when he should have exercised reasonable diligence to investigate the withholding of evidence in 2009 when Speer was expressly aware of a potential claim and when he sought subsequent habeas corpus relief based on Merillat's alleged withholding of evidence.
Speer argues the Special Prosecution Unit recently disclosed to Speer additional evidence that indicates further misconduct that may give rise to a civil rights lawsuit under section 1983. Speer argues a new deposition of Merillat will likely lead to the discovery of additional evidence that changes the fundamental character of his Brady claim and provides support that was heretofore unavailable for a section 1983 suit. Speer argues that a new deposition may lead to the discovery of evidence that Merillat either failed to preserve or destroyed evidence that would enable Speer to argue for tolling limitations due to fraudulent concealment.
In Texas, section 1983 actions are governed by the two-year personal injury statute of limitations. Nickerson v. Tex. Dep't of Crim. Justice-Institutional Div., No. 09-10-00091-CV, 2011 WL 2732605, at *2 (Tex. App.-Beaumont July 14, 2011, no pet.) (mem. op., not designated for publication); see also Tex. Civ. Prac. &Rem. Code Ann. § 16.003(a). "Under federal law, the [limitations] period begins to run the 'moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.'" Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001) (internal quotations omitted). "A plaintiff's awareness encompasses two elements: '(1) The existence of the injury; and (2) causation, that is, the connection between the injury and the defendant's actions.'" Id. Merillat admitted in his 2009 deposition that he had not produced letters of a "spiritual" nature. Speer evidently used that admission and other letters that were produced to support a subsequent habeas corpus application based upon an alleged violation of Brady v. Maryland and the State's suppression of the relevant evidence. See Ex parte Speer, 2010 WL 724430, at *1; see also Speer, 824 Fed.Appx. at 243, 246-47.
"A party asserting fraudulent concealment must establish an underlying wrong, and that 'the defendant actually knew the plaintiff was in fact wronged[] and concealed that fact to deceive the plaintiff.'" BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 67 (Tex. 2011) (internal quotations omitted). "Fraudulent concealment only tolls the running of limitations until the fraud is discovered or could have been discovered with reasonable diligence." Id. Here, it is undisputed that Speer was actually aware that Merillat had withheld documents and disposed of documents in 2009.
It is clear from the record and the previously filed writs and reported cases that Speer has been aware since 2009 that Merillat withheld information from him in his 2001 trial and Speer knew the connection between Merillat's actions and his alleged injury more than two years ago. Therefore, the two-year statute of limitations has run on any accrued section 1983 claim that Speer might have against Merillat as it might relate to the evidence he claims Merillat withheld. The evidence he desires to develop through a deposition would not support a new claim of a new constitutional violation; rather, it would merely improve the evidence available to support a claim he has been on notice of since 2009.
Merillat argues that Speer's allegation that Merillat withheld communications between Merillat and the jailhouse informants who testified at Speer's trial necessarily casts doubt on his conviction, which may only be challenged through habeas corpus proceedings. For that reason, Merillat argues, the Amarillo Court of Appeals affirmed the dismissal of a Rule 202 petition that had been filed by an inmate who sought to obtain evidence to use in a potential habeas corpus proceeding. See In re Reger, 193 S.W.3d 922 (Tex. App.-Amarillo 2006, pet. denied). Speer argues Reger is distinguishable because his goal is to hold individual state officers to account for unconstitutional acts done under color a state law, which is a core function of section 1983. Additionally, Speer argues that he presented to the trial court evidence that another state trial court had granted a Rule 202 petition filed by Charles Dean Hood, a person who faced an execution date. See Ex parte Hood, No. WR-41,168-11, 2009 WL 2963854 (Tex. Crim. App. Sept. 16, 2009) (order, not designated for publication). Speer's reliance on Hood is misplaced. Hood provides no support for Speer to use a Rule 202 proceeding in this case.
A section 1983 claim asserting a constitutional violation that affects the validity of a conviction accrues when the conviction is set aside. Heck v. Humphrey, 512 U.S. 477, 489-90 (1994). Counsel's statement that Speer might someday pursue litigation after his conviction has been set aside demonstrates that such a claim would be covered by the Heck bar and is not ripe. See In re DePinho, 505 S.W.3d at 624. A trial court cannot order a Rule 202 deposition to investigate an unripe claim. Id.
Conclusion
On this record, we conclude the trial court abused its discretion in granting Speer's petition to require Merillat to appear for a deposition under Rule 202. We further conclude the trial court abused its discretion in requiring Merillat to produce documents in connection with his Rule 202 request. We conditionally grant Merillat's petition for a writ of mandamus. The trial court is directed to vacate its order. The writ will issue only if the trial court fails to comply within ten days.
PETITION CONDITIONALLY GRANTED.