IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
IN CAUSE NO. 39,532-D FROM THE
320TH DISTRICT COURT OF POTTER COUNTY
DISSENTING STATEMENT
This is a second subsequent application for writ of habeas corpus, brought under the auspices of Article 11.071 of the Texas Code of Criminal Procedure. (1) In it, the applicant alleges, just as he did in his first subsequent writ application, that his death sentence is constitutionally tainted by the ineffectiveness of his trial counsel at the punishment phase of his trial. Now, as then, he alleges that trial counsel failed to investigate the existence of fairly substantial mitigation evidence--as he was constitutionally obligated to do under Wiggins v. Smith. (2) Out of deference to this Court's opinion in Ex parte Graves, (3) I voted to dismiss the applicant's first subsequent writ application. (4)
Just this past Monday, however, the United States Supreme Court granted certiorari review of an Arizona case that significantly calls into question the premise of Graves that post-conviction habeas applicants have no constitutional right to the effective assistance of counsel, at least for claims that can be raised for the first time only on collateral attack. (5) The applicant has filed a motion to stay his execution pending the Supreme Court's resolution of that question. Without comment or elaboration, the Court today nevertheless simply dismisses the applicant's second subsequent writ application as an abuse of the writ under Article 11.071, Section 5. As I did recently in Cleve Foster's and Cary Kerr's subsequent state applications for writ of habeas corpus, (6) I dissent in this case to the Court's refusal to take up the issue squarely presented here. I would either file and set the applicant's subsequent writ application to decide the continuing vitality of Graves, as framed in my dissenting statement in Foster, (7) or I would stay the applicant's execution so that we may at least preserve the status quo, possibly to revisit the issue in light of whatever disposition the Supreme Court may make of Martinez.
Because the Court will not, I once again dissent.
FILED: June 14, 2011
DO NOT PUBLISH
1. Tex. Code Crim. Proc. art. 11.071.
2. 539 U.S. 510 (2003).
3. 70 S.W.3d 103 (Tex. Crim. App. 2002).
4. Ex parte Balentine, 2009 WL 3042425 (Tex. Crim. App., Nos. WR-54071-01 & WR-54071-02, decided Sept. 22, 2009) (not designated for publication).
5. Martinez v. Ryan, __ S.Ct. __, 2011 WL 380903, No. 10-1001 (June 6, 2011). The question
presented in Martinez is: "Whether a defendant in a state criminal case who is prohibited by state
law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a
state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional
right to effective assistance of first post-conviction counsel specifically with respect to his
ineffective-assistance-of-trial-counsel claim." While defendants in criminal cases in Texas are not
legally prohibited from challenging the effectiveness of their trial counsel on direct appeal, such
claims typically call for extensive factual development beyond what is disclosed in the appellate
record, and thus, as a practical matter, post-conviction habeas corpus is the first opportunity to raise
them. Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).
6. Ex parte Foster, 2010 WL 5600129 (Tex. Crim. App., No. WR-65,799-02, decided Dec. 30,
2010) (not designated for publication) (Dissenting Statement of Price, J.); Ex parte Kerr, __ S.W.3d
__, 2011 WL 1644141 (Tex. Crim. App. 2011) (Dissenting Statement of Price, J.).
7. See Ex parte Foster, supra, at *2 ("I would stay the applicant's execution in this cause and
file and set it to examine two questions: First, whether we should regard a colorable claim of
ineffective assistance of original habeas counsel as a newly available fact for purposes of [Article
11.071,] Section 5(a)(1) and (e); or, failing that, whether we should recognize a claim of ineffective
assistance of original habeas counsel as, at least, a non-statutory gateway for raising discrete
constitutional claims that would otherwise be barred under Article 11.071, Section 5.").