IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM WILLIAMSON COUNTY
C O N C U R R I N G S T A T E M E N T
I concur in the denial of relief. The circumstances of this case echo the circumstances-ineffective assistance of appellate counsel-in Ex parte Kerr, 64 S.W.3d 414 (Tex.Crim.App. 2002). Appellate counsel in this case filed a two-page habeas corpus application that raised a single record-based claim, a claim that should have been raised on direct appeal and is therefore not cognizable in habeas corpus. If a claim is not cognizable, this Court may not, and will not, consider the merits of the claim. The claim should not, therefore, be said to "challenge the conviction."
To constitute a document worthy of the title"writ application" filed pursuant to article 11.071, the writ must seek "relief from a judgment imposing a sentence of death." (Footnote omitted.) A death penalty "writ" that does not challenge the validity of the underlying judgment and which, even if meritorious, would not result in immediate relief from his capital murder conviction or death sentence, is not an "initial application" for purposes of art. 11.071, §5 . . ..
Id. at 419 (emphasis in original).
If the document does not challenge the conviction, it is not a writ. The pleading at issue here, styled an application for writ of habeas corpus and filed by previous habeas counsel, stated only one claim, a claim that is not cognizable on habeas. Arguably then, the prior pleading was not a writ application.
However, even that very brief pleading suggests a colorable claim of ineffective assistance of counsel at trial; during the punishment hearing, defense counsel elicited from Dr. Quijano testimony that asserted that race and ethnicity were among a number of factors that juries could consider in deciding the special issue on future dangerousness. (1) Still, the only complaint raised in the prior pleading was that "imposition of the death penalty in this case violates the due process clause of the Fourteenth Amendment to the United States Constitution." There was no ground based on ineffective assistance of counsel. While there is passing mention in the argument section of "inadvertent conduct" or "carelessness" by defense counsel, the focus was clearly on the introduction of race and ethnicity into the punishment hearing. (2)
Recently, albeit earlier in the appeal process, we remanded a capital case to the trial court to "investigate and evaluate the accuracy of the assertions" of ineffective assistance of appellate counsel. Ex parte Juan Jose Reynoso, WR-66,260-01, Tex.Crim.App., filed December 20, 2006 (not designated for publication). Applicant's complaints about habeas counsel are similar to Reynoso's-failure to have any contact with the applicant or to file an adequate writ application. The issues in the present filings, it could be argued, do not invoke the jurisdiction of this court; we have before us no "initial" or subsequent writ application, only a motion for stay of execution and a motion to vacate judgment ("Alternatively [A] Suggestion for Rehearing on the Court's Own Motion").
Unlike the applicant in Reynoso, Granados has had the benefit of federal habeas counsel. Those attorneys have presumably been able to review the record and make some preliminary judgment about the kind of avenues of extra-record investigation and expert assistance that might be fruitful in developing cognizable habeas claims. They were presumably in the same posture as an attorney conducting a preliminary investigation for purposes of an initial habeas application under Article 11.071. Such an attorney is authorized to file a motion in the convicting court for prepayment of investigative and expert expenses based upon what his preliminary investigation has suggested might be viable issues to raise in a writ application. See Tex. Code Crim. Proc. article 11.071, § 3(b). Although Granados's federal habeas counsel presumably have been provided with sufficient resources to make at least this preliminary assessment of the potential extra-record claims, they have suggested no such claims in the pleadings before us now. Either their preliminary investigation suggested such avenues of investigation, or it did not. If it did, I am at a loss to explain why no such avenue has been suggested to us in order to justify a last-minute stay and a second "initial" writ application. The colorable claim for relief-ineffective assistance of counsel- remains unraised in state court.
Applicant was found guilty of a brutal crime and may well deserve his sentence of death. The testimony of Dr. Quijano may or may not have improperly influenced the punishment assessed by the jury. Regardless, the justice system must still perform its constitutional and statutory duties to provide a full and fair opportunity to have relevant issues addressed and resolved. While to do less may not result in an injustice to a particular applicant, it has the potential to erode confidence in the justice system itself. Still, the pleadings before us do not provide a basis for granting relief.
Filed: January 10, 2007
Do not publish
1. 2.