IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. AP-75,930 & AP-75,931
EX PARTE HELIBERTO CHI, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
AND PETITION FOR WRIT OF PROHIBITION
IN CAUSE NO. 0805594A FROM THE
CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
Price, J., filed a dissenting opinion.
DISSENTING OPINION
Eight months ago, the momentum of the death machine in Texas propelled us to an unseemly execution. On the same day that the United States Supreme Court agreed to examine the constitutionality of the Kentucky protocol for lethal injection, Michael Richard died on the gurney before the mechanism could grind to a halt. The Supreme Court has since spoken, and a plurality has provided us with a standard for measuring the constitutionality of our own execution protocol. The question for our consideration is whether our own lethal-injection protocol, particularly the protocol for assuring that the first anesthetic drug is properly administered, is “substantially similar” to that in Kentucky which the plurality upheld. Today, a plurality of this Court dismisses two habeas corpus applications raising such a claim, holding that the claim is not cognizable under Article 11.071of the Texas Code of Criminal Procedure, our capital habeas corpus statute. In my view, the claim falls comfortably within the ambit of the statute. Nevertheless, the Court insists on withholding the rudiments of due process and due course of law in its equally unseemly haste to crank the machine back up. I cannot go along with this.
COGNIZABILITY UNDER ARTICLE 11.071
I have argued in the past that a challenge to our lethal-injection protocol ought to be entertained in a subsequent application for writ of habeas corpus under Section 5 of Article 11.071. I have also dissented to the Court’s unwillingness in the past even to consider “whether a challenge to the lethal-injection protocol actually constitutes a post-conviction application for writ of habeas corpus at all, under Article 11.071, since it may not constitute a challenge to ‘a judgment imposing a penalty of death.’” Today the Court finally reaches the question of cognizability of such a claim and concludes that it is not cognizable. I disagree.
“The writ of habeas corpus is a procedural device for subjecting executive, judicial, or private restraints on liberty to judicial scrutiny.” Even a death-row inmate retains certain residual—albeit necessarily limited, but nevertheless constitutionally protected—liberty interests. Among those is the interest in not having the executive branch of government, in the form of the Texas Department of Criminal Justice, Correctional Institutions Division, which is tasked with carrying out his lawful execution, do so in a manner that would constitute “cruel and unusual punishment[ ]” as prohibited by the Eighth Amendment to the United States Constitution, or “cruel or unusual punishment” as prohibited by Article I, § 13 of the Texas Constitution. Surely we would not sit idly by and allow the applicant to be drawn and quartered, if that were the method that the Director of TDCJ-CID [the Director] chose to carry out his execution, since such a method would unquestionably constitute cruel and unusual punishment. Yet today the Court declares that we are powerless to invoke our habeas corpus authority to halt such an unconstitutional implementation of an otherwise lawful warrant of execution because the method of execution, unconstitutional though it may be, does not effect the “fact or the length of confinement.” I find this holding intolerable.
A death-row inmate does not serve a specific length of sentence; he is confined until he is either executed, commuted, or exonerated. It makes little sense in this context to analyze habeas corpus cognizability in terms of the “fact or length” of confinement. The convicted capital murderer who has been legitimately sentenced to death has no liberty interest in the sense that he can ever expect to be free from confinement, so long as he lives. Indeed, he does not even retain a “life” interest that is sufficient to overcome the State’s legitimate interest in extinguishing it, consonant with due process. The one substantive constitutional right he unquestionably retains, however, is the right, when the time comes, to be executed in a humane manner. I cannot accept that the Great Writ should not be an available remedy for the applicant to raise an Eighth Amendment challenge to the manner of his execution on the ground that it does not impact the “fact or length” of his confinement, which is incidental, but only the manner of his execution.
Article 11.071 of the Code of Criminal Procedure “establishes the procedures for an application for a writ of habeas corpus in which the applicant seeks relief from a judgment imposing a penalty of death.” If the Director’s purported authority for subjecting a death-row inmate to a lingering and torturous death is the warrant of execution, which in turn is authorized by the mandate of this Court following affirmance of a trial court’s judgment imposing the death penalty, then any “relief” the inmate seeks on account of the obvious Eighth Amendment violation would be relief from that judgment. It may not constitute absolute relief in the sense that it would absolve the inmate from imposition of the ultimate penalty of death. But it would constitute relief from the unlawful implementation of an otherwise lawful penalty and release the inmate from the incremental encroachment upon his liberty interest in not being put to death in an inhumane manner. A valid judgment and sentence of death authorizes an execution, but it does not (and could not under any circumstances) authorize a cruel and unusual execution. For this reason I would hold that the applicant’s claim is cognizable under Article 11.071.
For the proposition that to be cognizable a post-conviction habeas claim must challenge the “fact or the length or confinement,” the plurality cites Ex parte Lockett. Lockett, in turn, cites only a habeas corpus practice manual. The manual cites nothing at all for this proposition. It does go on to say: “The Court of Criminal Appeals has held that without some form of confinement, you can’t invoke Art. 11.07.” And it is true that in 1987, in Ex parte Renier, the Court held that some form of “confinement” was a necessary prerequisite to obtaining relief under Article 11.07. However, as the practice manual also points out, the Legislature amended Article 11.07 in 1995. In that amendment the Legislature explicitly defined “confinement” to mean “confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.” It is doubtful, therefore, that literal confinement is even a prerequisite to post-conviction habeas relief under Article 11.07 anymore, much less a showing that a claim effects the “fact or length” of confinement. And in any event, the Court made it clear in Renier that, but for another available post-conviction habeas forum to challenge a “restraint” less than confinement, the legislative limitation on post-conviction habeas corpus that was then found to be embodied in Article 11.07 would have constituted an unconstitutional suspension of the writ. For these reasons, the Court today would do well to abjure any literal application of the “fact and length of confinement” language of Lockett to reject habeas cognizability to a claim that challenges a restraint upon a liberty interest, but has nothing to do with literal “confinement.”
There are other cases in which the Court has held that a purported habeas corpus application that does not challenge “confinement” does not state a cognizable claim. The plurality cites one —Ex parte Kerr. In Kerr, the purported writ did not challenge the conviction or death sentence of the applicant, but instead raised claims about the constitutionality of the procedures prescribed by Article 11.071 itself. Had we agreed with all of Kerr’s arguments, we still would have had no basis to grant him habeas corpus relief, either from his conviction or his death sentence. In fact, Kerr alleged no unconstitutional restraint whatsoever that could be said to be a product of his capital conviction, never mind restraint that would rise to the level of “confinement.” The same could be said about Ex parte Baker. There we held that claims challenging the adequacy of counsel in Chapter 64 hearings for post-conviction DNA testing are not cognizable under Article 11.07 because such proceedings do not result in additional or independent “confinement” beyond that which flows from the initial conviction, which was not challenged. As in Kerr, the purported habeas corpus application identified no “restraint” of any degree, much less confinement, that resulted on account of Baker’s Chapter 64 attorney’s alleged ineffectiveness and therefore stated no cognizable claim. By contrast, as I have already shown, each of the instant applicants has alleged a definite restraint upon his liberty interest in avoiding a cruel and unusual punishment. We cannot deny them some habeas corpus forum without effectively suspending the writ.
The plurality also seems to rely, by analogy, upon the opinion of the Supreme Court in Hill v. McDonough for the proposition that claims that do not implicate the “fact or the length” of confinement are not cognizable in habeas corpus. Even the plurality concedes, however, that Hill was not concerned with whether claims challenging the method of execution are cognizable in a federal habeas corpus petition. The question in Hill was whether a challenge to the method of execution goes to the “core” concerns of federal habeas corpus—“the lawfulness of confinement or . . . particulars affecting duration”—such that it must be raised, if at all, in habeas corpus proceedings and may not be brought in a civil-rights lawsuit under 42 U.S.C. § 1983. This distinction between “core” claims that go to the “fact or duration of the confinement” and mere “conditions” or circumstances of confinement had its genesis in Preiser v. Rodriguez. The ratio decidendi of that opinion was comity. An inmate should not be allowed to bypass the state-court exhaustion requirement inherent in federal habeas corpus proceedings by raising challenges to the fact or duration of his confinement in a civil-rights lawsuit. Such claims, the Supreme Court held, although they fall within the ambit of the broad language of Section 1983, must nevertheless be brought under the more specific provisions of the federal habeas corpus statute, 28 U.S.C. § 2254. Otherwise, an inmate could forego bringing his challenge in state court altogether by couching it in terms of a federal Section 1983 civil-rights lawsuit and moving straight into federal court, thereby defeating the manifest intent of Congress.
But this does not amount to a holding that challenges to the conditions or circumstances of confinement are not cognizable in a federal habeas corpus proceeding. To the contrary, the Supreme Court observed in Preiser v. Rodriguez:
This is not to say that habeas corpus may not also be available to challenge such prison conditions. When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.
Thus, Supreme Court recognized that unlawful restraint can occur even in the context of otherwise lawful custody, and such restraint may be subject to an equitable remedy via habeas corpus. The fact that Hill’s particular challenge to the method of his execution did not go to the “core” concerns of habeas corpus only meant that he could proceed with his civil-rights lawsuit under Section 1983. It did not mean that such a challenge was not also cognizable in a federal habeas corpus proceeding.
At the state level, there is no reason to defer to the interests of comity, federalism, or exhaustion of state remedies in deciding what should be cognizable under the Great Writ. There is no particular need, as there was in Preiser v. Rodriguez, to distinguish habeas corpus claims that challenge the fact or duration of confinement from those that challenge only conditions or circumstances of confinement in order to protect the right of the states to be the first to litigate the constitutionality of restraint of liberty. If a condition or circumstance of an inmate’s confinement amounts to an incremental restraint upon his residual liberty interest that is unconstitutional, then, as I have already suggested, it would amount to a suspension of the writ to provide the inmate no habeas corpus forum to ventilate his claim. The plurality errs in relying upon Hill to hold otherwise.
The plurality also reasons that Article 11.071 is not available to remedy some potential future constitutional violation. “Habeas corpus serves to remedy existing constitutional violations; it is not for claims that a statute may potentially be applied in a way that may possibly be determined to be unconstitutional in the future.” Apparently there has been no constitutional violation in the applicant’s case because he has not yet been executed; the likelihood that he might actually be executed by lethal injection remains wholly speculative, the judgment of the trial court and this Court’s mandate on appeal notwithstanding. Each of these applicants will be heartened to learn, I suppose, that as soon as the lethal drugs do begin to flow through his veins, his claim that the drugs will cause him such reasonably avoidable pain as to violate the Eighth Amendment and Article I, § 13 of the Texas Constitution will become cognizable. Although I imagine he will be somewhat disappointed to learn that we have declared his claim to be mooted by his untimely death.
Article 11.071 presently provides the exclusive procedure for the exercise of this Court’s original habeas corpus jurisdiction when “the applicant seeks relief from a judgment imposing a penalty of death.” The Legislature is empowered by Article V, § 5(c) of the Texas Constitution to regulate the procedure by which we entertain post-conviction applications for writ of habeas corpus. But in neither Article 11.071 nor Article 11.07 does the Legislature presently require a showing of restraint rising to the level of “confinement” before this Court may exercise its habeas corpus jurisdiction. Even if the Legislature did, such a substantive limitation on our original habeas corpus jurisdiction would likely constitute a suspension of the writ in violation of Article I, § 12. The Legislature is free to regulate the how, when, and where of our original post-conviction habeas jurisdiction. But I do not think that, even under Article V, § 5(c), the Legislature would ever be free to circumscribe what is cognizable in the Great Writ without violating Article I, § 12.
An inmate who alleges that the proposed method of his execution would be cruel and unusual has stated a claim of unconstitutional “restraint” that emanates directly from “a judgment imposing a penalty of death.” His claim falls comfortably within the ambit of the statute. It makes no sense for the Court, especially at the present time, to impose a “fact or length of confinement” limitation upon the applicant’s cruel and unusual punishment claim.
DUE PROCESS AND DUE COURSE OF LAW
No fair-minded citizen approves of the execution of an innocent man. As judges, we are only a little less appalled at the prospect of executing a man without due process of law. We should be equally hesitant to execute a man in a manner that would violate his Eighth Amendment guarantee against cruel and unusual punishment. We are expected to insist upon all ordinary process to protect against such an unpalatable result.
As the Court acknowledges, the applicant has alleged, inter alia, that the first, anesthetic drug is not adequately administered under our lethal-injection protocol. He has thus stated a claim that, if true, would seem to entitle him to relief under Baze. Moreover, because a challenge to the particular method of execution was not yet ripe at the time these applicants filed their initial applications for writ of habeas corpus, those claims were factually unavailable at that time and may be brought in a subsequent writ application. When a claim in a subsequent writ application states facts which, if true, would entitle the applicant to relief, and also includes a pleading of facts sufficient to establish that the subsequent writ application is not abusive, Article 11.071 contemplates that it be returned to the convicting court where the writ issues as a matter of law, and the convicting court can proceed with whatever factual development it deems appropriate, at its discretion.
Now that the Supreme Court has provided the applicable standard, we should allow the litigation to proceed in accordance with the statutory scheme. It should be easy enough to litigate whether the Texas protocol for lethal injection, as actually implemented by the Director of the Texas Department of Criminal Justice, Correctional Institutions Division, passes Eighth Amendment muster. There can be only two outcomes to such litigation, if it is allowed to proceed on the merits. Either (after adequate discovery and factual development below) our protocol (as implemented) will be deemed substantially similar to Kentucky’s, and hence, constitutional, or it will be found lacking in some respect (probably involving the procedures for assuring that the first drug is adequately administered). If we find substantial similarity, that will end the litigation—in this and, presumably, every other capital writ that raises the issue, so long as the protocol is maintained and followed. If not, then the Director should know how to modify the protocol to achieve a constitutionally acceptable method of lethal injection, and the matter will be put to rest soon enough. It is only a matter of time. Still, the plurality denies the applicant a state forum to develop the issue, though his pleading is sufficient. I am at a loss to understand why.
Apparently the Court will not tolerate actual litigation of the issue if that means the death machine meanwhile must stand idle. But we cannot fix the machine while the cogs are turning. I would maintain the stays of execution in these causes and return them to their respective district courts for ordinary factual development. Because the Court does not, I am compelled to dissent.
Filed: June 9, 2008
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