Manego v. Orleans Board of Trade Brief for Plaintiff-Appellant

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 93-9006

FLETCHER THOMAS MANN, 
Petitioner-Appellant,

v.
JAMES A. COLLINS, DIRECTOR 

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 
INSTITUTIONAL DIVISION, Respondent-Appellee.

Appeal from the United States District Court 
for the Northern District of Texas

UNOPPOSED MOTION FOR LEAVE TO FILE 
BRIEF OF AMICUS CURIAE, 
RICHARD GERRY DRINKARD

Douglas M. O'Brien 
Moen, Cain, Royce & O'Brien 
1800 Texas Commerce Bank Bldg. 707 Travis
Houston, Texas 77002
(713) 222-9955
fax (713) 222-6515
Counsel for Amicus Curiae



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 93-9006

FLETCHER THOMAS MANN, 
Petitioner-Appellant,

v.
JAMES A. COLLINS, DIRECTOR 

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 
INSTITUTIONAL DIVISION, Respondent-Appellee.

Appeal from the United States District Court 
for the Northern District of Texas

UNOPPOSED MOTION FOR LEAVE TO FILE 
BRIEF OF AMICUS CURIAE, 
RICHARD GERRY DRINKARD

Douglas M. O'Brien 
Moen, Cain, Royce & O'Brien 
1800 Texas Commerce Bank Bldg. 
707 Travis
Houston, Texas 77002(713) 222-9955
fax (713) 222-6515
Counsel for Amicus Curiae



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 93-9006

FLETCHER THOMAS MANN, 
Petitioner-Appellant,

v.
JAMES A. COLLINS, DIRECTOR TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 
INSTITUTIONAL DIVISION, 
Respondent-Appellee.

Appeal from the United States District Court 
for the Northern District of Texas

Pursuant to Fed. R. App. Pro. 29, Amicus Curiae, Richard 
Gerry Drinkard, moves this Court to grant him leave to file the 
appended amicus curiae brief addressing an important issue raised 
in the pending appeal of Petitioner-Appellant, Fletcher Thomas 
Mann.

INTEREST OF AMICUS CURIAE
Like Mr. Mann, Mr. Drinkard is a Texas death row inmate 

whose case is pending on federal habeas corpus review.1 Also

1 Mr. Drinkard filed his first petition for writ of habeas 
corpus in the Southern District of Texas, Houston Division, on 
January 6, 1994. An amended petition was filed on January 20, 
1994. See Drinkard v. Collins. No. H-94-0059 (S.D. Tex.). Mr. 
Drinkard's petition is still pending in the district court.

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like Mr. Mann, Mr. Drinkard's amended federal habeas corpus 
petition contains certain claims for relief which were not raised 
at trial and, instead, were raised for the first time in state 
habeas corpus proceedings. Thus, like Mr. Mann, Mr. Drinkard may 
be subject to the State's attempted application of Texas' 
"contemporaneous objection rule" as a bar to federal habeas 
review. See Wainwriaht v. Svkes. 433 U.S.,72 (1977).

It is Mr. Drinkard's understanding that the State of Texas, 
Respondent-Appellee in the instant case, has in fact invoked the 
contemporaneous objection rule with respect to at least one of 
Mr. Mann's claims at issue on this appeal. It is further Mr. 
Drinkard's understanding that Mr. Mann has argued in response 
that the Texas contemporaneous objection rule is not an 
"independent and adequate state law ground" and, thus, does not 
require federal court deference. See Wheat v. Thigpen. 793 F.2d 
621, 626 (5th Cir. 1986).

Counsel for Mr. Drinkard has reviewed Mr. Mann's briefs 
filed to date in this case and notes that Mr. Mann has addressed 
the important issue of whether Texas' contemporaneous objection 
rule is an independent and adequate state law ground. However, 
Mr. Mann has failed to present several substantial arguments in 
support of his contention that the Texas rule is not an 
independent and adequate state procedural ground. Mr. Drinkard, 
like the remainder of Texas' death row population, has an obvious 
interest in seeing that this Court address that issue on the 
basis of full and adequate briefing. As the Court is well aware,

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once a panel of this Court addresses an issue, subsequent panels 
are bound by the decision, and only the en banc court or the 
United States Supreme Court can overrule a panel decision. 
Accordingly, if the Court were to reject Mr. Mann's argument that 
Texas' contemporaneous objection rule is not an independent and 
adequate state law ground, that holding would likely preclude 
other Texas death row inmates, including Mr. Drinkard, from 
successfully making that argument in the future. As a matter of 
fairness, then, the Court should grant Mr. Drinkard's motion for 
leave to file an amicus brief limited to the issue of whether 
Texas' contemporaneous objection rule is an independent and 
adequate state law ground.2

Finally, this Court should note that the Supreme Court has 
recognized that federal habeas corpus review is often 
indispensible in assuring that states do not deprive criminal 
defendants —  particularly capital defendants —  of their 
constitutional rights. See, e.g. , Wright v. West. 112 S. Ct.
2482 (1992). To foreclose federal habeas review because of a 
procedural default is, thus, a very serious matter, particularly 
in a death penalty case. Because the adequacy of Texas' oft- 
invoked contemporaneous objection rule is at issue in this case,

2 Mr. Drinkard's failure to file an amicus brief at an 
earlier juncture in this appeal was the result of his lack of 
knowledge that Mr. Mann had raised the issue of the adequacy of 
Texas' contemporaneous objection rule. Only recently was that 
fact brought to undersigned counsel's attention. In his own 
amended petition for writ of habeas corpus, Mr. Drinkard has 
argued that Texas' contemporaneous objection rule is not an 
independent and adequate state law ground.

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this Court should have complete and adequate briefing on this 
important question.

PRAYER AND CONCLUSION
Accordingly, this Court should grant Mr. Drinkard's motion 

for leave to file the attached amicus curiae brief. Counsel for 
Mr. Drinkard has contacted counsel for both parties, and neither 
counsel objects to the filing of the amicus brief.

Respectfully submitted,

Douglas M. O'Brien 
Moen, Cain, Royce & O'Brien 
1800 Texas Commerce Bank Bldg. 
707 Travis
Houston, Texas 77002 
(713) 222-9955 
fax (713) 222-6515

Counsel for Amicus Curiae

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CERTIFICATE OF SERVICE
I hereby certify that on this cjj^day of 1994, I

have caused a true and correct copy of this MOTION FOR LEAVE TO
FILE BRIEF FOR AMICUS CURIAE, to be served by U.S. mail on:

Dean S. Neuwirth 
Martin D. Beier 
COGHILL & GOODSPEED, P.C.
1675 Broadway 
Suite 2800
Denver, Colorado 80202
Eden Harrington 
Texas Resource Center 
1206 San Antonio 
Austin, Texas 78701
William Zapalac 
Enforcement Division 
Office of the Attorney General 
209 West 14th
Price Daniel Sr. Bldg., 8th Floor 
Austin, TX 78701

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