Ex Parte Graham

MALONEY, Judge,

concurring and dissenting.

This case is before us on a motion to stay issuance of the death mandate and to reconsider on our own motion our order of April 27, 1993, denying relief on applicant’s postconviction writ of habeas corpus under Tex.Code Crim.Proc.Ann. art. 11.07. At the outset it should be noted that the trial judge in making findings did not conduct an evidentiary hearing, but alternatively rendered his findings on the basis of affidavits as he was authorized to do under Tex. Code Crim.Proc.Ann. art. 11.07. By order entered today, this Court has granted a stay of the mandate pending further orders of this Court to which action I concur; but has refused to grant further relief to which refusal I dissent.

In Herrera v. Collins, — U.S. -, -, 113 S.Ct. 853, 869, 122 L.Ed.2d 203 (1993), the United States Supreme Court recognized, albeit arguendo, that there may be cases in which the applicant’s showing of actual innocence is sufficiently high to entitle him to relief under the Eighth Amendment:

We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of “actual innocence" made after trial would render execution of a defendant unconstitutional, and warrant federal ha-beas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high.[1]

Id (emphasis added).

As to capital cases where newly discovered evidence is presented in support of a claim of actual innocence, this Court should establish a threshold standard to be applied by us in reviewing such a claim. In my opinion, the threshold question should be whether the newly discovered evidence, if true, would create a doubt as to the efficacy of the verdict to the extent that it undermines our confidence in the verdict and that it is probable that the verdict would be different. Once this threshold question of actual innocence is satisfactorily answered, due process demands the attention of a forum for further consideration of the evidence.

As applicant points out, the three mechanisms conceivably available under Texas law for addressing such a claim fail. A motion for new trial based upon newly discovered evidence is not available more than thirty days after conviction. See Tex. R.App.P. 31. Further, this Court has previously held that newly discovered evidence is not cognizable in an application for post-conviction writ of habeas corpus. Ex parte Binder, 660 S.W.2d 103, 105-106 (Tex.Crim.App.1983).2 Finally, the process of *568seeking executive clemency is inadequate for testing the credibility of newly discovered evidence of innocence due to the lack of formal procedures controlling its use. See Tex. Const, art. IV, § 11; 37 Tex.Admin.Code §§ 143.41, 143.43, 143.51, 143.57 et seq.

Although the United States Supreme Court has suggested that executive clemency provides an adequate forum for claims of actual innocence, Justice Blackmun, joined by Justices Stevens and Souter, have recognized the fallacies in that contention:

III
The Eighth and Fourteenth Amendments, of course, are binding on the States, and one would normally expect the States to adopt procedures to consider claims of actual innocence based on newly discovered evidence. See Ford v. Wainwright, 477 U.S. [399] at 411-417 [106 S.Ct. 2595, 2602-06, 91 L.Ed.2d 335 (1986)] (plurality opinion) (minimum requirements for state-court proceeding to determine competency to be executed). The majority’s disposition of this case, however, leaves the States uncertain of their constitutional obligations.
A
Whatever procedures a State might adopt to hear actual innocence claims, one thing is certain: The possibility of executive clemency is not sufficient to satisfy the requirements of the Eighth and Fourteenth Amendments. The majority correctly points out: “A pardon is an act of grace.” Ante, at 22 [113 S.Ct., at 867]. The vindication of rights guaranteed by the Constitution has never been made to turn on the unreviewable discretion of an executive official or administrative tribunal. Indeed, in Ford v. Wainwright, we explicitly rejected the argument that executive clemency was adequate to vindicate the Eighth Amendment right not be executed if one is insane. 477 U.S., at 416 [106 S.Ct. at 2605]. The possibility of executive clemency “exists in every case in which a defendant challenges his sentence under the Eighth Amendment. Recognition of such a bare possibility would make judicial review under the Eighth Amendment meaningless.” Solem v. Helm, 463 U.S. 277, 303 [103 S.Ct. 3001, 3016, 77 L.Ed.2d 637] (1983).
“The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Marbury v. Madison, 1 Cranch 137, 163 [2 L.Ed. 60] (1803). If the exercise of a legal right turns on “an act of grace,” then we no longer live under a government of laws. “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638 [63 S.Ct. 1178, 1185, 87 L.Ed. 1628] (1943). It is understandable, therefore, that the majority does not say that the vindication of petitioner’s constitutional rights may be left to executive clemency.
B
Like other constitutional claims, Eighth and Fourteenth Amendment claims of actual innocence advanced on behalf of a state prisoner can and should be heard in state court. If a State provides a judicial procedure for raising such claims the prisoner may be required to exhaust that procedure before taking his claim of actual innocence to federal court. See 28 U.S.C. 2254(b) and (c). Furthermore, state-court determinations of factual issues relating to the claim would be entitled to a presumption of correctness in any subsequent federal habeas proceedings. See 28 U.S.C. § 2254(d).
Texas provides no judicial procedure for hearing petitioner’s claim of actual innocence and his habeas petition was properly filed in district court under 28 U.S.C. § 2254. The district court is enti-*569tied to dismiss the petition summarily only if “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief.” 28 U.S.C. § 2254 Rule 4. If, as is the case here, the petition raises factual questions and the State has failed to provide a full and fair hearing, the district court is required to hold an eviden-tiary hearing. Townsend v. Sain, 372 U.S. [293] at 313 [83 S.Ct. 745, 757, 9 L.Ed.2d 770] [(1963)].

As stated in the above dissent, Texas does not utilize a judicial forum for addressing claims of actual innocence based upon newly discovered evidence. However, because such a claim ultimately turns upon the credibility of witnesses and further development of the facts, it needs to be evaluated in an adversary setting before a judicial trier of fact and law. It is only in this setting that credibility can be determined.

In Herrera, the Supreme Court stated that Herrera’s newly discovered evidence was insufficient to meet the “extraordinarily high” threshold showing required to entitle him to relief. The Supreme Court criticized Herrera’s evidence because, presented in the form of affidavits, all but one of the affidavits attested to Herrera’s innocence on the basis of hearsay, which the Supreme Court noted rendered them “particularly suspect”; “[n]o satisfactory answer had been given as to why the affiants waited until the 11th hour — and, indeed, until after the alleged perpetrator of the murders himself was dead — to make their statements”; Herrera had not given an explanation as to why he, as an innocent man, plead guilty; the affidavits gave inconsistent factual accounts, and the evidence at trial included two eye witness identifications, numerous pieces of circumstantial evidence, and a handwritten letter in which Herrera apologized for committing the offense and offered to turn himself in.

In his writ application, applicant here presents the sworn affidavits of four persons, attesting that they were with applicant at a gathering of family and neighbors on the night of the offense, and at the hour at which the offense was committed. None of the affidavits presented by applicant are based upon hearsay evidence. The affidavits are factually consistent with one another. Applicant also presented the sworn statement of Merv West, the trial investigator for the defense in applicant’s case, who admitted that applicant had given his defense attorney the names of alibi witnesses, but that he did not talk to any of them in his investigation. West explained that “[s]ince we both [West and applicant’s defense attorney] assumed [applicant] was guilty, I decided not to waste time trying to substantiate his alibi.” West’s account explains the absence of the alibi witnesses from the trial. In addition there are affidavits from people who were at the scene and who state that applicant is not the assailant. Applicant plead not guilty to the offense and he has not made incriminating statements. Applicant’s conviction turned upon his identification by a single witness. There was no physical evidence linking applicant to the scene. The strength and consistency of the affidavits, if true, in light of the State’s evidence at trial, amount to a sufficiently high threshold showing of actual innocence to entitle applicant to a hearing to determine the credibility of the newly discovered evidence. See Herrera.

Where an arguably innocent person, wrongly convicted and sentenced to death, is wholly without a meaningful forum in which to present newly discovered evidence in support of his claims of actual innocence, this Court should be compelled, as a matter of public policy, to provide sufficient safeguards to ensure that state and federal constitutional protections are given effect. See Gonzales v. State, 818 S.W.2d 756, 765 (Tex.Crim.App.1991).

I would hold that in a case where the death penalty has been assessed and the “threshold question” stated in Herrera has been met by an applicant presenting affidavits to this Court, we should order the trial court to conduct a hearing to determine the credibility of such newly discovered evidence, considering any other evidence the trial court might deem helpful in its determination of credibility, including that evidence offered during the trial. The trial court should render findings of fact to be forwarded to this Court for a determination as to whether we should order a new trial. *570Such action is authorized under our constitutional authority to issue such writs as we deem necessary. Tex.Const. art. V, § 5; Tex.Code Crim.PROC.Ann. art. 11.02.

I concur in the granting of the stay of execution; but I dissent to the majority’s failure to remand this cause to the trial court with instructions to conduct an evi-dentiary. hearing to determine the credibility of the newly discovered evidence contained in the affidavits and to forward its findings of fact to this Court for final determination.3

BAIRD and OVERSTREET, JJ., join.

. As pointed out by applicant, six members of the Supreme Court recognized in their various opinions in Herrera that execution of an innocent person would violate the federal constitution. Herrera, — U.S. at -, 113 S.Ct. at 853; id. at -, 113 S.Ct. at 869 (O’Connor and Kennedy, JJ., concurring); id. at -, 113 S.Ct. at 875 (White, J., concurring); id. at -, 113 S.Ct. at 876 (Blackmun, J., joined by Stevens and Souter, JJ., dissenting).

. I note that Binder is not a capital case and that we are here today concerned only with capital cases where the death penalty has been assessed.

. I also dissent to the Court's failure to disavow, as applicant urges, any implication in our Order, dated April 27, 1993, that we are bound by Teague v. Lane, 489 US. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). In making its findings of fact and conclusions of law on applicant’s writ, the trial court asserted that applicant sought "the announcement and application of a new rule", citing Teague, and the court declined to apply such a new rule. The rule announced in Teague regarding the retrospective application of new laws is only applicable to federal writs of habeas corpus and this Court should clarify any misconception to the contrary.