Ex parte Alvarez
468 S.W.3d 543
Tex. Crim. App.2015Background
- Applicant filed a second (actually later) state habeas application under Tex. Code Crim. Proc. art. 11.071 § 5 challenging his death sentence; he alleges trial counsel was ineffective for failing to investigate mitigation (Wiggins claim) and initial state habeas counsel was ineffective for failing to investigate and present that claim.
- The Court dismissed the subsequent application as abusive under Article 11.071 § 5, implicitly rejecting the request to revisit Ex parte Graves.
- Applicant argues Graves should be reconsidered in light of federal Supreme Court decisions in Martinez v. Ryan and Trevino v. Thaler, which permit excuse of procedural default where initial-review state habeas counsel was ineffective and the underlying trial-ineffectiveness claim is substantial.
- The concurrence (Yeary, J., joined by Johnson and Newell, JJ.) agrees Graves merits reexamination but concurs in dismissal because Applicant could and should have raised the claim earlier (he had a prior subsequent application in 2010) and thus has procedurally defaulted it.
- The concurrence discusses statutory construction and due-process concerns: Article 11.071 grants death-row inmates a statutory right to be "represented by competent counsel," and the concurrence argues that provision plausibly includes a right to effective representation (or at least to relief when statutorily appointed counsel performs so poorly that the inmate was denied a full and fair opportunity).
- The concurrence distinguishes Medina (permitting a new initial writ when counsel deliberately sabotaged the application) but questions limiting relief to only deliberate misconduct; nonetheless, because Applicant failed to raise the argument in his earlier subsequent writ, dismissal is appropriate here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ineffective assistance of initial state habeas counsel can justify a subsequent state habeas application under Art. 11.071 § 5 | Applicant: Graves should be revisited; Martinez/Trevino allow excuse of procedural default where initial-review counsel was ineffective, so Applicant may raise trial-ineffectiveness now | State/Graves: Graves bars using ineffective state habeas counsel as a gateway for subsequent writs; Article 11.071 limits subsequent writs to narrow categories | Court dismissed as abusive under § 5; concurrence sympathetic to revisiting Graves but concurs in dismissal on procedural grounds |
| Whether Article 11.071’s guarantee that capital inmates "shall be represented by competent counsel" requires effective assistance or permits relief when counsel is ineffective | Applicant: "represented by competent counsel" implies ongoing, effective representation; due process may forbid arbitrary deprivation of that statutory right | Graves: "competent counsel" refers only to qualifications at appointment, not performance; allowing otherwise would eviscerate § 5 | Concurrence: statutory and due-process arguments are persuasive enough to warrant reconsidering Graves in future, but not dispositive here because of procedural default |
| Whether Martinez/Trevino require Texas courts to treat ineffective initial state habeas counsel as a basis for state-level relief | Applicant: Martinez/Trevino justify treating ineffective initial-review counsel as cause to excuse default and to allow merits review in state court first (federalism interests) | State: Martinez/Trevino are federal habeas doctrines and Graves remains binding on state collateral procedure | Concurrence: Martinez/Trevino counsel reconsideration of Graves to preserve federalism, but they do not automatically entitle Applicant to relief here |
| Whether Medina (allowing new initial application when counsel intentionally sabotaged the application) controls analogous situations of ineffective counsel | Applicant: Medina suggests relief when initial counsel prevented a full and fair opportunity; ineffective counsel should be comparable to intentional sabotage | State: Medina was limited to unique, deliberate misconduct; it should not be extended to ordinary incompetence | Concurrence: Medina supports relief in extreme cases; but here Applicant failed to raise the issue in his earlier subsequent writ, so Medina does not save him |
Key Cases Cited
- Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002) (held ineffective assistance of initial state habeas counsel is not a basis for a subsequent writ under Art. 11.071)
- Martinez v. Ryan, 566 U.S. 1 (2012) (federal habeas: inadequate assistance at initial-review collateral proceedings may establish cause to excuse procedural default of ineffective-trial-counsel claims)
- Trevino v. Thaler, 569 U.S. 413 (2013) (applies Martinez to Texas and sets conditions for excusing procedural default when initial-review counsel was ineffective)
- Ex parte Medina, 361 S.W.3d 633 (Tex. Crim. App. 2011) (permitted treating a later filing as first application where initial habeas counsel intentionally sabotaged the application)
- Wiggins v. Smith, 539 U.S. 510 (2003) (ineffective-assistance of trial counsel due to failure to investigate and present mitigating evidence)
- Evitts v. Lucey, 469 U.S. 387 (1985) (due-process entitlement: when state grants appeal right, it must include effective assistance of counsel)