Ex parte Gary GRAHAM
No. 17568-03
Court of Criminal Appeals of Texas, En Banc.
June 2, 1993
853 S.W.2d 565
Order July 5, 1993.
In the instant cause, applicant presents four allegations in which he challenges the validity of his conviction or resulting sentence. The trial court has entered findings of fact and conclusions of law and recommended the relief sought be denied.
This Court has reviewed the record. The findings and conclusions entered by the trial court are supported by the record and upon such basis the relief is denied.
IT IS SO ORDERED.
CLINTON, J., would grant the stay.
MILLER, J., not participating.
MALONEY, Judge, dissenting.
This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of
On October 28, 1981, applicant was convicted of the offense of capital murder. After the jury returned affirmative answers to the special issues submitted under
Applicant presents four allegations in which he challenges the validity of his conviction or resulting sentence. In his first allegation applicant claims that he was denied effective assistance of counsel and in his fourth allegation applicant claims that on the basis of new evidence it is clear that he is innocent of the crime for which he was convicted. Upon review of the record, I find that there are additional facts that need to be developed regarding the investigation of applicant‘s case in light of his ineffective assistance claim. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). I further find, based upon applicant‘s application and the attached affidavits, that there are additional facts that need to be developed regarding applicant‘s claim of actual innocence. Herrera v. Collins, — U.S. —, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). I would therefore grant a stay of execution and abate this post conviction writ of habeas corpus pending an evidentiary hearing in the trial court.
BAIRD, J., joins this opinion and further believes the application should be filed and set for submission to consider the continued viability of Ex parte Binder, 660 S.W.2d 103, 106 (Tex.Cr.App.1983) (Newly discovered evidence “not a fit subject for the exercise of habeas corpus powers.“) in light of Gonzales v. State, 818 S.W.2d 756, 765 (Tex. Crim. App. 1991) (Court of Criminal Appeals permitted to make “public policy” determinations on behalf of the State.).
John B. Holmes, Jr., Dist. Atty., Roe Wilson, Asst. Dist. Atty., Houston, Robert S. Walt, Asst. Atty. Gen. and Robert Huttash, State‘s Atty., Austin, for the State.
ORDER
MEYERS, Judge.
On our own motion and pursuant to
On October 28, 1981, applicant was convicted of the offense of capital murder. After the jury returned affirmative answers to the special issues submitted under
In the instant cause, applicant filed a motion requesting this Court reconsider our initial denial of relief. See
This petition represents the worst-case scenario—the possibility that a person might be unconstitutionally punished by the legal system. That is, applicant could be put to death tomorrow for something which is, within thirty days, determined to be unconstitutional. With this much at stake, the State will wait thirty days.
In Graham v. Collins, the Supreme Court refused to decide the question of youth as a mitigating factor because, to do so would necessarily create a new rule which is not cognizable under federal habeas law. Graham, — U.S. —, —, 113 S.Ct. 892, 903, 122 L.Ed.2d 260 (1993). Soon, the Supreme Court will squarely decide this question in Johnson v. Texas, but any relief accorded to Johnson will be provided only for litigants on direct review to the Supreme Court and not the applicants in federal habeas corpus petitions. Our position on the constitutionality of this issue has been clear. The question of youth as a mitigating factor can be considered in a constitutional manner within the scope of our special issues. Delk v. State, 855 S.W.2d 700 (Tex.Crim.App.1993); Ex parte Kunkle, 852 S.W.2d 499 (Tex.Crim.App. Feb. 3, 1993); Nelson v. State, 848 S.W.2d 126 (Tex.Crim. App.1992). However, if the Supreme Court finds we have erred in our constitutional analysis, and Johnson was unconstitutionally sentenced due to the Texas system‘s failure to allow juries to consider youth as a mitigating factor, then not only will Johnson be entitled to relief but, possibly, so too will Graham. The question of Graham‘s youth might be cognizable under our State habeas corpus jurisprudence as a right not previously recognized under Ex parte Chambers, 688 S.W.2d 483 (Tex. Crim.App.1984) (Campbell, J. concurring, joined by PJ. McCormick, and JJ. Davis, Clinton, Teague and Miller). Accordingly, applicant‘s execution is stayed for 30 days pending the resolution of Johnson v. Texas by the United States Supreme Court.
IT IS SO ORDERED.
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
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:1
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 habeas 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
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
Texas provides no judicial procedure for hearing petitioner‘s claim of actual innocence and his habeas petition was properly filed in district court under
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.
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 evidentiary 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.
CLINTON, Judge, concurring.
Recognizing and acknowledging that the Court is being prudently cautious in granting a stay of execution, albeit for the limited purpose of awaiting the resolution of Johnson v. Texas, I would extend the stay to reconsider our prior disposition of two grounds previously advanced by applicant, viz: ground 1 in his “02” application alleging ineffective assistance of counsel by failing to develop or present evidence in his defense, or to submit the prosecution‘s evidence to any meaningful adversarial testing at trial, in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States, and in violation of Article I, § 10 of the Constitution of the State of Texas; ground 3 in his “03” application to the effect that this Court should decide “what procedures are necessary to enforce the existing Federal constitutional prohibition on executing the innocent.” Neither ground was presented on direct appeal, and manifestly each is of serious significant import—certainly to this applicant as well as others similarly situated.
Judge Maloney considers one aspect of the latter ground in his separate opinion only to find “the process of seeking executive clemency is inadequate for testing the credibility of newly discovered evidence of innocence due to the lack of formal procedures controlling its use.” Opinion, at 568, and see at 569. In my judgment, such a conclusion is not yet clearly supported by the record before us or by “legislative facts” and matters which we may judicially notice.
Moreover, the Board of Pardons and Paroles is a creature of the Constitution, empowered to recommend and advise the Governor as to granting commutations of punishment and pardons, Article IV, § 11, and has itself adopted and promulgated rules of administrative procedure to those same ends. See
The Executive Department is constitutionally required to adopt and follow rules that comport with due process and due course of law. Now that the Supreme Court of the United States has spoken in Herrera v. Collins, — U.S. —, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), concerning the role of the executive clemency in providing a forum for testing claims of “actual innocence,” this Court has the power, duty and responsibility to assure that due process and due course requirements are met.
Although I agree with the stated reason for granting a stay of execution, we should enlarge the grant to encompass those grounds identified above. Because the Court does not act to insist that an agency of our government comport with fundamental constitutional expectations, I respectfully concur only with result.
Before the court en banc.
ORDER
PER CURIAM.
This is an application for a writ of habeas corpus transmitted to this Court pursuant to
The State has now filed a Motion for Dissolution of the Stay. However, it should be noted that our stay of execution dated June 2, 1993 has expired by its own terms. Thus, the State‘s motion is dismissed as moot due to the expiration of our earlier order of June 2, 1993.
Applicant has filed a Motion to Continue the Stay of Execution and for Remand for Evidentiary Hearing on Claim of Ineffective Assistance of Counsel in which claims of ineffectiveness of counsel are made.1
With regard to Applicant‘s motion it is noted that we have no allegation of ineffectiveness of counsel properly pending before us. Such must be presented to the trial court first and transmitted to this Court pursuant to
Applicant‘s Motion is, therefore, dismissed without prejudice to file his application in the trial court pursuant to