Ex Parte Chi

CHI, Ex Applicant. Parte Heliberto AP-75930,

Nos. AP-75931.

Court of Appeals Criminal of Texas.

June Ball, Arlington, Dow,

Wes David R. Houston, for Appellant. Conder,

Steven W. Crim. Dist. Asst. Worth, Atty., Horn, Jeffrey Fort L. Van Austin, Attorney, State’s for the State. OPINION HERVEY, J., announced the judgment opinion the Court and delivered an KELLER, P.J., which MEYERS KEASLER, JJ., joined.

Chi is a death-row inmate who had an execution date set when filed a he subse- (second) quent habeas corpus 11.071, under Article Tex.Code Crim. Proe., and a motion leave file petition for prohibition. a writ of These pleadings contain a claim that Texas’ le- thal-injection protocol violates the Amendment’s prohibition against cruel punishments unusual request and a prohibited Chi’s execution be under Texas’ lethal-injection current protocol. Alba, the applicant challenged lethal-injection Texas’ in a subsequent habeas corpus application. Alba, See Ex 683-84 (Tex.Cr.App.2008). We this is held cognizable not a un claim 11.071, der Article Alba’s we dismissed subsequent corpus application. See 687. Pursuant Alba, we also subsequent dismiss Chi’s 703 must be Chi, of prohibition to writ in Ex tlement corpus application or indisputable,” be “clear and to shown WR-61,600-02. No. clear”) “abundantly and “unequivocal,” petition to for a respect Chi’s With seeking prohibi- writ of at n. 11 (party 898 required to of Chi is show prohibition, writ that un- showing a clear tion “must make legal right the relief that he has clear to facts, subject to but the law is der certain (in the prohibition that seeks this case he show interpretation; he then must one by he is an of his execution what claims entitle undisputed facts exist which lethal-injection protocol) unconstitutional flowing from unequivocally right him to a remedy at adequate and he has no single interpretation”).1 Mays, rel. v. law. See State ex Wade prohibition is petition for writ Chi’s (Tex.Cr.App.1985). 897-900 S.W.2d Supreme States predicated on the United obviously require meets this latter Chi Rees, in v. 553 U.S. decision Baze Court’s ment, he no to his right present since -, 170 L.Ed.2d 420 by appeal Eighth way Amendment claim (2008).2 Baze, Su- In the United States corpus application Article or habeas under by upheld a 7-2 vote Ken- preme Court therefore, issue, is whether lethal-injection protocol, 11.071. which is tucky’s right indistinguishable that he from Texas’ materially Chi has a clear to relief addition, (enti- Wade, like lethal-injection protocol.3 at seeks. See S.W.2d currently right until intended 1. We need not decide whether the “clear him in manner dispute have prong has a broader time the merits of to relief” different or resolved”) (stating prohibition that the meaning in context than for and at 15 been "agreed review the possible Supreme mandamus. Under view of that Court Baze the Re- prong, constitutionality in this case has failed to of the manner that spondents that he entitled relief. Mr. show to use to administer intend injection”); Chi’s motion for Chi’s lethal petition prohibition his writ 2. Chi filed for prohibition petition file leave to Supreme States Court had after United pleadings (stating at that Chi "has filed in, decided, granted certiorari but before it granted certiorari raising the issue identical leave Chi asserted his motion for Baze. ”). We note that Chi’s subse- review Baze raising pleadings file that he filed "has corpus application states quent also granted identical issue certiorari review in Supreme granted certiorari in that the -Baze[.]” whether the administration to decide Baze "materially indistinguish- injection a lethal Baze, (de- Compare 128 S.Ct. at 1527-1528 Eighth from Texas' violates able” lethal-injection protocol) scribing Kentucky’s Fourteenth Amendments. Justice, Department with Texas of Criminal week, Supreme Court decided Last Division, Execution Correctional Institutions weigh in issue of the constitutionali- on the 2005) (Exhibit (April Procedure 1 to State's injection States like Texas. ty of lethal petition prohibition reply to for writ of Rees, The Court No. 07-5439. See v. Baze part petition 1 to for writ of of Exhibit Chi’s whether the administration O’Brien, will now decide prohibition); see also Ex materially injection indistin- a lethal (Coch- (Tex.Cr.App.2006) 678-83 violates the guishable from Texas’s ran, J., concurring); petition Chi's Mr. Chi Fourteenth Amendments. prohibition (stating 1-2 that because "the free from his to remain herein asserts currently intended to administer manner punishment, and asks and unusual cruel injection to Chi has not been lethal Mr. stay pending the this Court to by the United States deemed constitutional impor- Supreme of this Court, Court's resolution the U.S. Su- because definitively question, will deter- which tant preme recently granted writ Court has the relief he is entitled to mine whether very question, see certiorari Rees, sought. grant requests herein that this Court Mr. Chi (empha- corpus application at 2 prohibiting Chi’s habeas prohibition defen- him a writ of supplied). administering lethal sis from dants Baze, petitioners principal Chi’s Diaz Florida. See Chi’s Petition for proceeding pain This, claim this is “the risk of Writ of Prohibition 11-14. howev- concededly er, from maladministration of insufficient establish And, injection protocol.”4 humane lethal Baze, Amendment violation. See Baze, like petitioners Chi’s malad- (“an at 1531 isolated alone mishap ministration claim the possibili- focuses on to an give Eighth rise Amendment viola- ty drug that the first lethal-injection tion”); O’Brien, (Coch- (also thiopental protocol, sodium as known (“Courts ran, J., concurring) judge cannot Pentathol), properly will not be adminis- injection solely the lethal protocol based Supreme tered.5 The United States Court problems as to speculation mistakes clearly in Baze unambiguously upheld occur”) might (emphasis that in original). lethal-injection Kentucky’s See protocol. Concluding Eighth that Chi’s Amend- Baze, (Kentucky’s 128 S.Ct. at 1533-1534 merit, ment claim has no we that decide lethal-injection protocol does not create cannot establish that he has a clear Chi drug pro- substantial risk that first requests. to the relief that he Chi’s administered), improperly tocol will be prohibition writ petition for is denied (“Kentucky at 23 adopted has method stay and his of execution is lifted. to believed be the most humane available, one shares with 35 other COCHRAN, a concurring J. filed agree States. if Petitioners adminis- J., WOMACK, joined. in which opinion intended, procedure tered as will result J., PRICE, dissenting opinion. filed a painless death. The risks of malad- they ministration have suggested —such JOHNSON, J., dissenting opinion filed a improper mixing of chemicals and improp- HOLCOMB, J., joined. in which by experi- er setting IVs trained and COCHRAN, J., concurring filed a personnel remotely enced —cannot J., WOMACK, joined. in which opinion characterized ‘objectively intolerable.’ Kentucky’s proto- decision adhere to its I that agree applicant is not entitled to risks, despite col these asserted while relief on either his for a writ of adopting safeguards protect against petition or his for a them, probative cannot be viewed as he prohibition because made pain infliction wanton under the prima facie of a vio showing constitutional Amendment.”).6 lation. that applicant’s ap believe points possible

Chi also plication by maladminis- could be recharacterized this lethal-injection protocol during original tration of a as an writ under the Texas person Angel an execution of a named further Regardless, Constitution.1 factual Baze, Compare Supreme 128 S.Ct. at 1526-1527 with 6.Had Court decided Ken- petition prohibition tucky’s lethal-injection protocol Chi's for writ of at 6-11. violated applicable Amendment reasons Compare lethal-injection protocol, Chi’s Petition for Writ of Prohibi- Texas’ be- then we ("Generally, successfully tion at 8 delivered lieve that Chi have entitled to the would been quantities, into the circulation in sufficient prohibition, undisputed writ of since the facts grams three the first in the lethal undisputed unequivocally [of law would depres- protocol] causes sufficient required Mays, have it. See system permit sion of the nervous other- 897-900. excruciatingly painful procedures wise to be (Tex. performed causing See without discomfort or dis- Ex 256 S.W.3d 682 tress.”). (Cochran, J., Crim.App.2008) concurring). Justice of Criminal Department under this development (TDCJ) demonstrates any graphically not result pleading could particular lethal-injec the Texas between not made a sufficient similarities relief he has because Kentucky which tion constitutional violation. showing facts, by the States upheld of was United pled He has and offered evidence Baze4 facts, comparison TDCJ’s bring him within Court pleaded those in the TDCJ decision primarily upon data majority based the ambit of in Rees,2 Procedural Manual which prior Execution and our decision Furthermore, for Writ of Petition have received attached O’Brien.3 Thus, underlying the data from Prohibition.5 post-Raze supplemental response Texas, 1520, primary backup IV and lines. there are S.Ct. 1529 128 states, proce- personnel the observe In both 3. 190 S.W.3d 677 IV malfunction to ensure that there is no dure provide or infiltration. Both states also tissue Depart- Supplemental Brief of the Texas backup chemicals to a IV for a redirection of Justice, ment of Criminal Correctional Institu- not lose consciousness site if the inmate does Department, May tions filed states, Finally, in both within 60 seconds. the injected in the IV line between saline is Department of Justice Exe- 5. Texas Criminal administration of chemicals. Manual, April Procedure Rev. cution Furthermore, applicant in a related the (Exhibit pp. 8-9 1 to Petition for Writ of WR-57,256-02, Sonnier, case, Prohibition). Some of the data in the TDCJ (Tex.Crim.App.2008), filed a re- WL 2390993 chart comes from Exhibits and granted stay quest execution that we implied and some is from the TDCJ manu- contains, exhibit, an on June as and al. TDCJ’s chart shows that both Texas copy most recent TDCJ Execution the grams thiopental; Kentucky use of sodium amended, it was effec- Procedure manual as milligrams (mg), pancuroni- Texas uses 100 May protocol, tive In that TDCJ mg; Kentucky um while uses Tex- bromide couple procedures of its Texas modified milliequivalents (mEq) potassi- as uses 140 Presumably Kentucky. to mirror those of chloride, mEq. Kentucky um while uses more close- changes were made to even these person preparing Kentucky In the the sodium upheld by protocol the ly to the conform Warden, thiopental the it is is while in Texas Supreme For exam- Court decision in Baze. injectors.” Kentucky, medically "drug In the states, drug ple, protocol "The team the new personnel up trained have to one hour to medically trained indi- shall have at least one lines, insert the I.V. catheter while Texas or shall at least be certified vidual ... [who] specific that time. there no limitation on assistant, phle- as a certified medical licensed inserted, Kentucky, In the IV are lines botomist, technician, par- emergency medical order, arm, hands, preference an- amedic, corpsman. military Each medi- or neck; kles/feet, Texas, they are inserted year of cally shall have one trained individual Kentucky In the left and arms. both professional experience participating before present and Texas a medical doctor team, drug part retain current of a shall the enters execution chamber examine licensure, continuing edu- and shall fulfill death, inmate, pronounce designate li- requirements with commensurate cation Kentucky, death. In official time of IV(A). TDCJ Execution Procedure censure.” year of IV team must have a minimum of one requires, new member of the "Each further experience professional a certified medical partic- training drug before team shall receive assistant, EMT, paramedic or phlebotomist, super- ipating in execution without direct Texas, military corpsman. an IV team following training shall consist of vision. "medically be a trained individ- member must through least two execu- team per- tions, ual” who has “certification sufficient to receiving step-by-step instruction from Kentucky procedures.” conducts form these existing members. The new team mem- team practice sessions ensure that participate ten annual two execu- ber will then least followed, existing supervision will be while Texas under the direct tions Thereafter, procedure Kentucky has the new team not. But used its team members. once, may participate with- over 400 in executions while Texas has executed member existing supervision of team Kentucky and out the direct death-row inmates. In both negates applicant’s claim of a gives constitu- issue rise to ‘substantial risk ”7 tional violation supplied applicant serious harm.’ Furthermore, himself. applicant, like Therefore, I agree that must dismiss Baze, petitioner fails to articulate a present application for a readily implemented and feasible alterna- petition prohibi- tive to the lethal-injection protocol Texas tion because one neither sets out a prima such that implement failure to showing facie of a constitutional violation. new, significantly superior procedure might constitute cruel and unusual punish- ment.6 Finally, applicant discusses PRICE, J., dissenting opinion. filed a “botched” of Angel Diaz in Flori- Eight ago, months the momentum of the da as some evidence that the same could death machine in propelled us to an

happen Florida, to him. But Texas is not unseemly execution. On day the same has failed to show that United States lethal-injection execution in pre- Texas has agreed to examine the of constitutionality problems sented the same as that in the Kentucky protocol the injection,1 for lethal rate, Diaz case. At “an isolated mis- Michael on gurney Richard died the hap before give alone does not rise to an Eighth the violation, grind mechanism a Amendment could to halt. The precisely because event, an regrettable, such while not Court has since and a spoken, suggest cruelty, procedure or that the provided us with a standard IV(B). observers, members.” Id. at The Huntsville Unit desig- the Cl Division Director or annually training Warden shall review the drug proceed nee instruct shall the team to and current of licensure each team member step. with the the next If condemned individ- compliance required quali- ensure with the awake, signs being ual does exhibit visible of IV(C). training. fications and Id. at the Cl designee Division Director or shall states, procedure The revised also "The drug instruct backup the team to to the switch drug prepare back-up team shall a set of IV to administer another lethal dose of syringes normal saline and the lethal Pentothal, Sodium followed with a saline drugs in case unforseen events make their use flush, proceeding step.” before to the next VI(C). necessary.” Id. at Intravenous cathe- VII(J). Id. at arm; ters are to be inserted in each if a arm, suitable vein cannot be found in an a Baze, (stating 128 S.Ct. at 1532 that “the substitute suitable vein bewill found in anoth- procedure [proposed by alternative the in- part VII(C). body. er of the Id. at "The feasible, readily implemented, mate] must medically trained individual shall take significantly and in fact a reduce substantial properly much time as is needed to insert pain. of risk severe If a State refuses Id. IV lines.” A normal saline flow is then adopt such alternative in the face of these started in the first line. Id. "The line second advantages, legitimate documented a without precaution a is started as and is used if a penological justification adhering for to its

potential problem pri- is identified with the execution, current method of then a State’s mary Id. line.” The Cl Division Director or change refusal to its method can viewed as designee, the Huntsville Unit Warden or des- 'cruel and unusual’ under the Amend- ignee, medically and the trained individual ment.”). observe the IV to ensure that the flow is uninterrupted. Id. Baze, (quoting S.Ct. v. 128 at 1531 Farmer directs, procedure The new also Cl "The Brennan, U.S. 114 S.Ct. designee Division Director or Hunts- (1994)). 128 L.Ed.2d 811 designee ville Unit Warden or shall observe appearance of the condemned individual - Rees, -, during application of the U.S. Sodium Pentothal. - U.S. -, If condemned individual visi- 168 L.Ed.2d exhibits no amended signs being designated ble awake to the S.Ct. L.Ed.2d UNDER our COGNIZABILITY constitutionality measuring for ARTICLE 11.071 for protocol.2 question own execution a chal past I in the argued have le- our own our consideration is whether lethal-injection protocol ought lenge to our protocol, thal-injection particularly subsequent applica to be entertained the first anes- protocol assuring for corpus under Sec of habeas tion for writ administered, properly thetic I have also dis 11.071.6 tion of Article Kentucky to that in “substantially similar” unwillingness to the Court’s sented Today, plurality upheld.3 plu- which the to consider “whether a past even habeas rality of this Court dismisses two lethal-injection actually to the claim,4 post-conviction such a constitutes corpus applications raising all, under Article corpus writ of cognizable the claim is holding chal 11.071, constitute since Texas Code under Article 11.071 imposing penalty lenge judgment ‘a Procedure, capital our Criminal ”7 Today finally reaches the Court death.’ my view, the claim statute.5 cognizability question of the comfortably falls within the ambit cogniza that it is not claim and concludes Nevertheless, statute. the Court insists disagree. ble. withholding pro- rudiments of due on proce- corpus is a “The writ of habeas equally cess and due course law its executive, judi- subjecting dural device unseemly haste crank the machine back cial, private restraints in- scrutiny.”8 Even death-row go along judicial with this. up. I cannot - Rees, -, safeguards Kentucky’s as- drugs, two 128 S.Ct. 2.In v. U.S. Baze (2008), plurality properly articulated a stan- admin- suring 1520 that the first deciding particular istered, whether a meth- dard necessarily optimal, were while Eighth od violates the Amend- of execution adequate. Id. 1532-38. While at deemed prohibition against cruel and unusual ment lethal-injection protocol, from what Texas’s availability punishments light al- of the it, drugs, we three know of utilizes the same arguably ternatives that are more humane. yet litigate whether the safe- in Texas have claim, will not suffice establish such a are) (whatever they guards place for assur- reasoned, merely plurality to show Baze first, ing of the anes- proper administration slightly "a marginally safer alternative” comprehensive thetizing drug are as at least regime. to the current execution 128 exists Kentucky’s. S.Ct. 1531. Instead, proffered ef- alternative must 1537. 3. Mat fectively risk of seri- address substantial * * * Alba, (Tex.Crim. 682 qualify, parte 4. Ex 256 S.W.3d ous harm. To the alternative feasible, Chi, readily imple- parte 702 procedure App.2008); 256 S.W.3d must Ex mented, significantly and in fact reduce (Tex.Crim.App.2008). pain. risk of severe If State substantial adopt art. 11.071. alternative in the 5. Tex.Code Crim. Proc. refuses to such an advantages, with- of these documented face 11.071, § 5. See Ex Crim. Proc. art. 6. Tex.Code justification for legitimate penological out a execution, (Tex.Crim.App. parte Hopkins, 9 160 S.W.3d adhering to its current method of J., 2004) (Price, stay dissenting to denial change its method then State’s refusal execution). un- can be viewed as "cruel unusual” Eighth Amendment. der 677, O’Brien, (Tex. parte 684 190 S.W.3d Ex Id. Kentucky’s Measuring lethal- at 1532. J., (Price, lifting standard, dissenting Crim.App.2006) against Kerr, execution), parte citing 64 passed Eighth stay of Ex that it concluded muster, 414, essentially (Tex.Crim.App.2002). because the Amendment S.W.3d 418 drugs con- three administered was first of the Rowe, 54, 58, 88 Peyton U.S. S.Ct. v. 391 to anaesthetize the con- ceded to be sufficient 1549, 426 prior the other 20 L.Ed.2d to administration of demned mate by retains certain idly residual —albeit nec- and allow the to be drawn limited, essarily but quartered, nevertheless constitu- if that were the method tionally protected interests.9 the Director of TDCJ-CID Di- [the — Among execution, having carry those the interest rector] chose to out his of government, executive branch since such a method would unquestionably form Department of the Texas of Criminal cruel punishment.12 constitute and unusual Justice, Division, Correctional Institutions today Yet the Court declares that we are which is carrying tasked with powerless out his law- to invoke our habeas au- execution, ful thority do so in a manner that would to halt such an unconstitutional constitute “cruel and unusual punish- implementation of an otherwise lawful prohibited ]” as ment[ warrant of execution because the method execution, Amendment United States Constitu- though unconstitutional it tion,10 or be, “cruel or punishment” unusual does not effect the “fact or the I, prohibited by Article length the Texas of confinement.” I find this hold- Surely Constitution.11 ing would not sit intolerable.14 Patterson, Rees, 766, J., (Thomas, supra, 770-73 128 S.Ct. at 1556-59 concurring). See also Sandin Con ner, 485, 515 U.S. S.Ct. 13. Ex (1995) ("Admittedly, prisoners L.Ed.2d 418 do rights not shed all constitutional at the carry 14. Should the Director choose to out an prison gate, but brings lawful incarceration patently ain manner that violates necessary about the withdrawal or limitation I, Amendment or Article many privileges rights, a retraction Kemmler, supra, such as those mentioned in justified by underlying the considerations our likely subject he would writ of man- (internal penal system.”) quota citations and prohibition. damus or But with new technol- omitted); Brennan, tions Farmer v. 511 U.S. methods, ogy comes new such as electrocu- 128 L.Ed.2d 811 tion, gas, injection, lethal or lethal and it will (1994) ("The Constitution does not mandate not be so obvious whether these new methods prisons, per comfortable but neither unduly prolong the execution or inflict rea- ones[.]”) (internal mit inhumane citation and sonably pain. avoidable New methods are omitted). quotation susceptible pro- not to relief in mandamus or proceedings they hibition unless and until are Rees, 10. U.S. amend. VIII. v. Const, In Baze definitively declared unconstitutional. For supra, plurality 128 S.Ct. at the ac- reason, agree plurality I this with the in Chi knowledged "failing proper a dose of applicant’s application that the for writ of thiopental pris- sodium that would render the prohibition should be denied. unconscious, substantial, oner there is a con- however, (I stitutionally unacceptable disagree, of the risk suffocation reason it pancuronium "Eighth from the administration of should denied is that his Amend- bro- Chi, pain injection potassi- mide and from the ment claim has no merit[.]” of um 256 S.W.3d at I chloride.” 704. do not know whether not, claim his has merit or and neither can I, § litigating the without first it. The Const, 11. Tex. art. protocol Court declares that our for lethal Kemmler, re "materially 136 U.S. indistinguishable” is (1890) ("if punishment Kentucky’s, citing application 34 L.Ed. from Chi’s own Id., prescribed against an prohibition. for offense the laws of & for of at 703 n. 2. unusual, manifestly disingenuous reading pre- the State were cruel and This is a of Chi’s stake, crucifixion, burning breaking pleading. pleading, In that filed at the Baze wheel, like, execution, duty impending on the or the it alleged would be the time of his Chi adjudge penalties the courts to be injection protocol Texas lethal is prohibition.”). indistinguishable” within the "materially constitutional Such from that "superadded” Supreme unquestion- just agreed forms of execution which the Court had ably violate the Amendment. review. The Court now treats this statement of Criminal Article 11.071 the Code inmate does not serve A death-row procedures “establishes the Procedure sentence; is confined specific length of he an for writ of habeas commuted, executed, or until he is either from a in seeks relief applicant which the in It makes little sense this exonerated. death.”15 judgment imposing penalty analyze corpus cogniza- context to authority for purported If Director’s length” “fact bility terms of the finger- subjecting death-row inmate to capital mur- confinement. convicted warrant of death is the ing and torturous legitimately derer who has been sentenced execution, which turn is authorized has no interest to death following affir- the mandate of expect can to be free sense that he ever judgment imposing court’s mance of a trial confinement, In- long from so he fives. any penalty, then “relief’ death deed, he does not even a “fife” inter- retain account of the obvious inmate seeks on re- Eighth Amendment violation would be est is sufficient to overcome the con- judgment. lief from that legitimate extinguishing State’s interest that it stitute absolute relief sense it, The one process. consonant with due imposition the inmate from would absolve unques- he constitutional substantive But it death. penalty of the ultimate retains, however, tionably the right, the unlawful would constitute relief from comes, when the time to be executed pen- implementation of an otherwise lawful accept humane manner. I cannot that the alty the inmate from the incre- and release Great Writ should not be an available rem- upon liberty in- mental encroachment edy applicant for the an to raise put in not to death being terest Amendment to the of his manner judgment and inhumane manner. A valid on the ground execution, of death authorizes an sentence length” the “fact or his confine- impact (and could not under but it does not ment, incidental, circumstances) which is but authorize a cruel and un- For this reason would manner of his execution. usual execution.16 writ, view, my post-Baze suspend would violation as a kind of concession that the I, I, particular administering § art. 12. Tex Const, Article "substantially ("The the first simi- right, anesthetic corpus is writ of habeas approved by lar” to one suspended.”); shall never be TexCode Court. But that was not the asser- (same). Crim. Proc. art. 1.08 tion at all! The claimed that the 11.071, art. Crim. TexCode Proc. injection protocols overall "mate- lethal were rially indistinguishable.” hardly One can comparison, suppose By an inmate were making general blame him for claim pun- unlawfully beyond the term of confined simply the time. He meant that he should not imposed judgment au- ishment the lawful long three-drug be executed so as the overall Suppose thorizing his incarceration. further scrutiny. was under the for his unlawful continued that reason grievously interpret The Court errs to the Director had mis- confinement was that the way, pleading in this initial the amount of time he had served. calculated then, misinterpretation, to on the basis of that say applica- corpus Would we that a habeas simply declare that his Amendment by this inmate to secure his release tion filed merit.”) no claim is "has him contin- not available to because his was But a death-row inmate should still have unlawful, confinement, although was no ued extraordinary to test the consti- some avenue original judgment, but to longer to the due validity execu- tutional of a novel method of mistake, he and that therefore the Director’s liberty he a residual tion. Because retains felony judg- seeking “relief from a was being interest in not executed a manner penalty imposing a than death” ment other Amendment or Article that violates 11.07, 1, 13, 1? It purposes Article Section ought corpus § to be writ of habeas long as the Director Any holding, seems to me that as made available him. other hold that the applicant’s cogniza- post-conviction claim is habeas relief under Arti- ble under anymore, Article 11.071. cle 11.07 showing much less a length” that claim effects the “fact or proposition cogniza For the that to be event, any And in confinement. the Court post-conviction ble claim habeas must that, made it clear in Renter but for an- challenge length the “fact or the or con post-conviction other available habeas fo- finement,” plurality parte cites Ex rum to challenge “restraint” less than 8Lockett, turn, Lockett.1 cites confinement, legislative limitation on practice corpus habeas manual.19 The post-conviction corpus habeas that was manual cites all nothing propo for this then found to be embodied in Article 11.07 sition. go say: “The Court would have constituted unconstitutional Appeals Criminal has held that without suspension of the writ.24 For these rea- confinement, some form of you can’t in sons, the Court today would do well to voke Art. 11.07.”20 And it is true that in abjure any literal of the “fact Renter,21 parte the Court held length language of confinement” form of some “confinement” was a reject cognizability Lockett to to a necessary prerequisite obtaining relief challenges upon claim that a restraint However, 11.07.22 under Article as the interest, nothing but has to do with out, practice points Legis manual also literal “confinement.” lature amended Article 11.07 1995. In Legislature amendment the explicitly There are other cases in which the defined “confinement” mean “confine Court has held that a purported habeas any ment for offense or collateral con corpus application that does not challenge sequence resulting from the conviction “confinement” does not a cognizable state is the basis of the claim. instant habeas The cites one25—Ex doubtful, therefore, corpus.”23 Kerr, It is purported Kerr.26 In writ did not prerequisite literal challenge confinement is even a conviction death sentence justified incarcerating quences believed he will not another conviction lie 11.07.”) authority judgment, inmate on under Article would afford relief under Article 11.07. Should we not likewise make Jasuta, "relief" avail- al., 11.07, supra, citing et Article able Article 11.071 under should Director Leg., p. 3. See Acts 74th ch. mistakenly judgment believe that of con- Sept. eff. 1995. This was the same viction and sentence of death authorized him legislative act that introduced Article 11.071. quarter to draw and a death-row inmate? Nothing predicates in Article 11.071 the avail- ability expressly of relief on "confinement.” 17. Ex 256 S.W.3d at 685. 24. 734 S.W.2d at 353. Court held apply because Renier could still for a writ of his restraint-less- Jasuta, al., citing 19. Id. at J. et Texas than-confinement the district court under (1997). Criminal Writ Practice 88 V, Constitution, § Article 8 Legislature unconstitutionally suspend did not Jasuta, supra. I, prohibiting the writ under Article applying corpus him from for writ of habeas (Tex.Crim.App.1987). 21. 734 S.W.2d 349 under Article 11.07. Id. ("[Ujnless Id. at an 353 is con- Alba, parte 25. Ex 256 S.W.3d at 685. pursuant felony fined to a for a commitment conviction, postconviction application for corpus 64 (Tex.Crim.App.2002). habeas relief from collateral conse- S.W.3d 414

711 in habeas cognizable are not claims finement but instead raised applicant, of the concedes, plurality corpus.29 Even constitutionality proce of the about the not concerned however, Hill was Article 11.071 itself. prescribed by dures challenging argu claims with all of Kerr’s with whether agreed Had we in a cognizable are ments, had no basis of execution still would have method relief, The corpus petition.30 either from corpus him habeas habeas grant federal his conviction or his death sentence. in Hill was whether question fact, re alleged goes Kerr no unconstitutional of execution to the method said to be cor- whatsoever that could be of federal habeas straint concerns “core” conviction, never product capital of his of confinement or lawfulness pus—“the rise to the level affecting mind restraint would duration” —such particulars ... all, The same could be said raised, “confinement.” in habeas be that it must Baker.27 There we held parte about Ex not corpus proceedings adequacy of challenging the that claims 42 under civil-rights lawsuit brought hearings post- 64 Chapter counsel in between This distinction 1983.31 U.S.C. testing cognizable DNA are not conviction du- to the “fact or go claims that “core” proceed 11.07 because such under Article and mere the confinement” ration indepen ings in additional or do not result circumstances of confine- “conditions” beyond “confinement” that which dent v. Rodri- genesis had its Preiser ment conviction, from the which was flows initial opin- of that The ratio decidendi guez.32 Kerr, purported As in challenged. An inmate should not comity. ion was corpus no habeas identified ex- bypass the state-court be allowed any degree, “restraint” of much less con in federal requirement inherent haustion finement, that resulted on account of Bak by raising proceedings corpus attorney’s alleged ineffec Chapter er’s 64 his or duration of challenges to the fact cognizable therefore stated no tiveness and Such civil-rights lawsuit. confinement contrast, By already I have claim. held, claims, although Supreme Court shown, applicants each of instant broad they fall within the ambit upon a definite restraint his alleged 1983, must neverthe- language of Section avoiding interest a cruel and unusual specific brought under the more less be some punishment. deny cannot them We the federal habeas provisions of effectively corpus forum without Otherwise, statute, § 2254. 28 U.S.C. suspending the writ. chal- forego bringing inmate could by couch- lenge altogether court state rely, by also seems of a federal Section ing it terms opinion of the Su- analogy, upon straight moving civil-rights lawsuit McDonough28 in Hill v. preme Court court, defeating the thereby into federal that claims do proposition Congress. manifest intent length” “fact or the of con- implicate the that it could not habeas rather than (Tex.Crim.App.2006). raised on See 27. 185 S.W.3d (Tex. Suhre, habeas, reasoning parte S.W.3d 898 the Court's also raised on Reyes, S.W.3d Crim.App.2006); Ex instructive.”). supra, McDonough, 126 S.Ct. 31. Hill v. 165 L.Ed.2d 28. 547 U.S. 685-86. 29. Ex at 475, 499, 93 S.Ct. 32. 411 U.S. (1973). L.Ed.2d 439 Id., ("While 30. Hill determined to type of did not have be that this claim But this does not amount to a holding tions or circumstances of in confinement that challenges to the conditions or circum- protect order to the states to cognizable stances of confinement are not litigate constitutionality be the first to proceeding. in a corpus federal habeas To liberty. of restraint of If a condition or contrary, Court observed of an circumstance inmate’s confinement in v. Rodriguez: Preiser to upon amounts an incremental restraint

This say is not to corpus habeas his residual interest that is uncon- may not stitutional, then, also be available to challenge Ias have already sug- prison such conditions. a prison- gested, When it suspension would amount to a put er is under additional and unconsti- the writ to provide the inmate no habeas tutional during restraints his lawful cus- corpus forum to ventilate his claim. The tody, arguable it corpus is that habeas plurality relying upon errs Hill to hold will lie to remove the restraints making otherwise. the custody illegal.33 The also reasons that Article

Thus, Supreme recognized that un- remedy 11.071 available to some lawful restraint can occur even the con- potential constitutional violation.34 future custody, text of lawful otherwise and such corpus remedy existing “Habeas serves to may subject restraint equitable be to an violations; constitutional is not remedy corpus. via habeas fact that may potentially claims that a statute be particular Hill’s challenge to the method of way applied possibly be his execution not go did to the “core” determined unconstitutional concerns of corpus only habeas meant that Apparently future.”35 there has been no proceed he could with his civil-rights law- constitutional violation in suit under Section did not mean yet executed; case because he has not been a challenge cogniza- such not also might actually the likelihood that he ble a federal corpus proceeding. habeas executed lethal wholly remains level,

At the speculative, state no judgment there is reason to the trial court comity, defer appeal interests of federal- and this Court’s mandate not- ism, or exhaustion of withstanding. applicants state remedies in Each of these learn, deciding cognizable what should be under will be heartened I suppose, particular drugs Great Writ. There is soon as the begin no lethal do need, veins, Rodriguez, through as there was in Preiser v. his claim flow that the distinguish corpus drugs habeas him reasonably claims that will cause challenge fact or pain duration of confine- avoidable violate the I, ment from those that only condi- Amendment and Article 13 of the (citations Teague Id. 93 S.Ct. 1827 omit- L.Ed.2d 334 But the rule is ted). grounded principles comity also courts, ap- deference to which state have no Exporte 256 S.W.3d at 686. plication corpus jurispru- in state habeas Minnesota, dence. v. 552 U.S. Id. To the Cf. Danforth extent that this em- assertion -, 169 L.Ed.2d braces notion that constitutional violations 859(2008) (“If anything, considerations of already that have firmly been established comity allowing militate in favor of state cognizable in case law are not in habeas grant corpus to a courts to relief corpus, pronouncement, for which no cited, required authority broader class of than is vaguely individuals sounds like the by Teague."). I cognizability am not aware that we have federal restriction on the newof adopted Teague cognizability claims embodied in ever such a rule of Lane, 489 U.S. S.Ct. Texas. unconstitu- a claim of unusual has stated cognizable. will become Texas Constitution directly emanates imagine Although I he will be somewhat tional “restraint” penalty a imposing de- judgment to learn that we have from “a disappointed comfortably un- by His claim falls clared his claim to mooted death.”38 It makes timely of the statute. death. within the ambit Court, at the especially no sense for the provides the ex- presently Article 11.071 length of time, a “fact or present impose to of this procedure clusive for the exercise appli- upon limitation confinement” jurisdiction original corpus Court’s claim. punishment cant’s cruel and unusual relief from a when “the seeks of death.”36 judgment imposing penalty by Article Legislature empowered The AND DUE DUE PROCESS 5(c)

V, reg- § of the Texas Constitution to COURSE OF LAW by procedure ulate which we entertain of the approves citizen No fair-minded of ha- post-conviction applications judges, As of an innocent man. execution corpus.37 But in neither Article beas appalled less at the are little Legisla- 11.07 does the 11.071 nor Article due executing a man without prospect of presently require showing of re- ture equally process of law. We should be “confinement” rising straint to the level of a manner that man in hesitant execute may before this exercise its habeas Court guar- Eighth Amendment violate his would corpus jurisdiction. Legisla- Even if the against punish- and unusual antee cruel did, ture such substantive limitation upon all expected are to insist ment. We original corpus jurisdiction our against such ordinary process protect likely suspension constitute a of the would unpalatable result. I, § 12. violation of Article how, Legislature regulate is free to acknowledges,39 appli As the Court when, original post-con- and where of our alia, first, alleged, inter that the cant has jurisdiction. viction habeas But do adequately adminis anesthetic is not that, V, 5(c), § think even under Article lethal-injection protocol. tered under our Legislature would ever be free to cir- true, a claim He has thus stated in the Great cognizable cumscribe what him to relief under seem entitle would I, violating § Writ without Article Moreover, Baze.40 because was not particular method alleges proposed An inmate who that the yet applicants filed ripe cruel and at the time these method of his execution would be 11.071, Smith, (Tex. art. parte S.W.2d 38. TexCode 36. Ex Crim. Proc. Davis, Crim.App.1998), citing parte Ex (“Chi’s Chi, parte 703-04 1996) (Tex.Crim.App. possi- focuses on the maladministration claim McCormick, PJ.) ("the Legisla (Opinion of drug in bility that the first the lethal clearly has Article 11.071 to ture intended for (also thiopental protocol, known as sodium by provide means which this the exclusive Pentathol), properly adminis- will not be original habeas exercise its tered.”). cases.”). penalty jurisdiction in death Thus, ap subsequent writ V, 11.071, Const, 5(c) ("Subject satisfy plication 37. See Tex. art. not fail to Article does law, suffi regulations may prescribed not state facts Section because Judges Appeals prima case of a and the out a facie the Court of Criminal cient make claim, power as was the case shall have the to issue the writ federal thereof constitutional (Tex.Crim. Staley, corpus[J”). 160 S.W.3d 56 See also Ex in Ex of habeas Davis, App.2005). supra, at 223. applications their initial writ of habeas Amendment muster. There can corpus, factually those claims were un- only litigation, be two outcomes to such if may available at brought that time and be proceed it on is allowed to the merits. (after in a subsequent writ a application.41 When adequate discovery Either fac- and subsequent below) claim in a application (as writ development tual protocol our true, which, states if facts would entitle the implemented) substantially will deemed relief, applicant and also a includes Kentucky’s, hence, similar constitu- pleading facts sufficient to establish that tional, or it will be found lacking some subsequent the application writ is not abu- respect (probably the involving procedures sive, contemplates Article 11.071 that it be assuring the first is ade- convicting returned to the court where the administered). quately If we find sub- law, a issues as matter of and the similarity, litiga- stantial that will end the convicting proceed court can with whatev- and, tion-in presumably, every this other er factual development deems appropri- issue, capital writ that raises long the so ate, at its discretion.42 protocol as the is maintained and followed. not, If then the Director should know how

Now that pro- the modify standard, protocol to achieve a consti- applicable vided the we should tutionally acceptable in- litigation allow the method of lethal proceed in accor- jection, dance and the will be statutory put with the scheme. It matter to rest easy enough enough. should be soon It is a matter of time. litigate whether Still, protocol injection, the Texas for lethal the plurality applicant denies the actually issue, implemented by forum develop though the Director state Justice, Department the Texas of Criminal pleading is sufficient.43 am at a loss Division, passes Correctional why. Institutions to understand 11.071, 5(a)(1) 41. TexCode diligence” § Crim. Proc. art. reasonable at the time their initial (e) (subsequent filed, application applications must were since execu- specific contain facts sufficient to establish likely tion years would still a number of that "the current claims and issues have not away, protocol change and the during could been presented pre- Indeed, and could not have been filings the interim. in more recent viously timely application initial or in a challenging lethal-injection protocol, previously application considered filed under protocol have been advised that was this article or Article 11.07 because the factu- recently May year! amended as 30th of al ... basis for the claim was unavailable on 11.071, 6(b) ("If previous appli- the date the filed the Tex.Code Crim. Pro. art. * * * cation))] convicting [A] factual basis of a claim notice court receives by unavailable requirements before date described of Section 5 for consideration of (a)(1) met, subsequent Subsection of the factual basis was have been through corpus, ascertainable the exercise of reason- writ of habeas returnable to court date.”). diligence on appeals, by operation able or before that of criminal shall issue law.”); 9(a) ("To issues, held, resolve recently We in a near-unanimous affidavits, may require depositions, court in- opinion, lethal-injection challenge terrogatories, hearings evidentiary "ripe” appeal, on direct since there was recollections.”). may personal use no execution date and the "method in which injection currently lethal administered is way not determinative facing it will be admin- be that inmates imminent appellant's istered the moment of execu- can lethal State, bring tion.” Gallo claim in our state civil courts that our reasoning, By this violates the Amendment un applicants’ challenges factual basis for these der the standard —I do not know. But lethal-injection protocol to the could not have even such a civil forum is available to through theory, been "ascertainable the exercise of death-row inmates in that forum will corpus; of habeas cess to some form not tolerate the Court will Apparently to be the is unsuited prohibition of if that means of the issue litigation actual mechanism of choice. must stand machine meanwhile the death while fix the machine idle. But we cannot of prohibi- of a writ requirements maintain cogs turning. are I would mandamus, tion, are a writ of as for causes and stays of execution in these remedy at law and adequate there be no respective return them to their district do is duty to do or not either ordinary development. factual courts for a clear applicant or that the has ministerial not, I am com- Because the Court does Many times he wants. right to the relief pelled dissent.44 remand orders year we issue each has stated facts recite that the JOHNSON, J., opinion a dissenting filed true, relief. that, entitle him to would if HOLCOMB, joined. J. in which course, is, “if true.” of The critical issue because, at the hearing remand for We claim of constitutional dimension aWhen order, we do not the remand time we issue raised, must be a mecha- simply is there are, in allegations if know the merits. Be- considering nism for on its fact, process demands that Due true. case, our current this is death cause truth where an effort determine make statutory options include the writ of habe- lies. to Article 11.071 of the corpus pursuant Procedure, Criminal Texas Code of Chi, being all the other cases corpus pursu- writ of habeas constitutional them, hang single for on a issue—the held V, 5,§ prohibi- or a writ of ant to Article lethal-injec- of the Texas constitutionality Price has out the case for Judge tion. set subject has never been tion protocol—that writ, has set statutory Judge Cochran Certainly the any kind. hearing to a writ, Kentucky out the ease for the constitutional protocol similar for Hervey drugs has set out the case administered Judge kind of protocol options training standards writ of None of the and some of the prohibition. context, ways, dissimilar other executioners and suit this situation well. each used. amount of however, ae- such as the process requires due of law adjudication, has “unripe” as this Court prove quite impractical Few such for most. done, 41, ante), protocol is that our see note brought civil court will be amena lawsuits Kentucky’s to sur sufficiently similar to prior to the scheduled not ble to final resolution scrutiny, we will have vive constitutional dates. This Court has held that in many death-row executed that meanwhile courts nor the courts neither the district manner. mates in a cruel and unusual jurisdiction a civil appeals in Texas have enjoining an execution. case enter order Appeals, knee-jerk State ex rel. Holmes v. Third are not the sentiments These judge for bleeding heart. As district-court capital murder tri- years, presided over Because this Court refuses exercise ten imposed penalty without jurisdiction, the civil the death and because als and required But enjoin they law it. even when the cannot executions reservation courts applicants are to due challenges lethal-injection capital entitled can entertain Ramos, dozens, scores, of the law. Ex protocol, perhaps even course it is (Tex.Crim.App.1998). And may eventually execut inmates death-row is a different kind that death on the almost axiomatic the matter could resolved ed before degree higher punishment, requiring a docket. And in the event side of the civil conclude, penalty reliability, where the death eventually civil courts should due, involved, less. process is years more advance that is commenced a lawsuit 637-38, Alabama, (and 447 U.S. E.g., Beck assum execution date scheduled 65 L.Ed.2d ing do declare such suit the civil courts Remaining at issue is whether the Texas safeguards that are at least Kentucky’s

the level of practices ap-—

proved by Chief Justice Roberts and exco-

riated process Justice Ginsberg. Due be,

requires case, that there in at least one

a hearing that considers the Texas safe-

guards they to determine whether pass

muster. a hearing, say Without we cannot

whether does or does not have

clear to relief. point,

At say we cannot whether true,

applicant’s allegations, entitle him

to relief. To dismiss them without a hear

ing by saying kind that his claims

have no merit turns the of prohibition

into door to brick wall. Given the

recent decision of the United States Su -

preme Rees, in Baze v. U.S.

-, (2008), 128 S.Ct. 1520 applicant is

unlikely prevail merits, on the but the

likelihood of prevailing on the merits

should not determine how we deal with the likely

claims. It is some time in the

future, again we will be faced with claims

that do fit neatly into one of the usual

boxes. Discerning now how this claim can

be heard on the will merits be of value to

this Court when that day comes. I re

spectfully dissent. MASON, Appellant

John S. MASON, Appellee.

Patricia A.

No. 14-07-00991-CV. Appeals Texas,

Court of (14th Dist.).

Houston

May 15, 2008.

Case Details

Case Name: Ex Parte Chi

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 9, 2008

Citation: 256 S.W.3d 702

Docket Number: AP-75930, AP-75931

Court Abbreviation: Tex. Crim. App.