626 F.3d 815 | 5th Cir. | 2010
Lead Opinion
We treat Petitioner-Appellant Felix Rocha’s petition for rehearing en banc as a petition for panel rehearing pursuant to Fifth Circuit Internal Operating Procedures under Federal Rule of Appellate Procedure 35. We deny Rocha’s petition for rehearing for the same reasons we held he is not entitled to have a federal court review the merits of his federal constitutional claim for habeas relief, reasons which this opinion clarifies and elaborates.
The Texas Court of Criminal Appeals (“the CCA”) determined that Rocha’s state habeas application could not satisfy the requirements of Texas Code of Criminal Procedure art. 11.071 § 5(a)(3) and dismissed it as an abuse of the writ under art. 11.071 § 5(c). Rocha’s petition for rehearing contends that we erred by holding that the CCA’s dismissal of his state habeas application rested on an independent and adequate state-law ground. As we explain in Part I, Rocha’s contention is without merit. It is true that § 5(a)(3) incorporates a federal standard — specifically, the actual-innocence-of-the-death-penalty standard articulated by Sawyer v. Whitley.
Rocha contends that our decision cannot be reconciled with this Court’s prior decisions in Rivera v. Quarterman,
I.
A full summary of the facts is provided in our opinion; only those most pertinent are included here. A jury convicted Rocha
A.
A federal court generally cannot review the merits of a state prisoner’s habeas petition if the claims in the petition are procedurally defaulted.
“If a state court clearly and expressly bases its dismissal of a prisoner’s claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for dismissal, the prisoner has procedurally defaulted his federal habeas claim.”
Before turning to our discussion of § 5(a)(3), we pause for a precise explanation of how Texas’s abuse-of-the-writ statute operates. Texas Code of Criminal Procedure art. 11.071 § 5(c) requires a successive state habeas application to be dismissed as an abuse of the writ unless it can satisfy the requirements of one of the three subsections of art. 11.071 § 5(a). The rule codified in § 5(c) — that a Texas habeas applicant must bring all of his claims in his first application — is grounded in state law and is procedural in nature. Standing alone, § 5(c) inarguably would be an independent state-law ground for decision.
a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that: ... (3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury in the applicant’s trial under Article 37.071, 37.0711, or 37.072.20
We are obliged to construe and apply § 5(a)(3) as the CCA construes and applies it.
In Blue, the CCA held that § 5(a)(3) necessitates “a threshold showing of evidence that would be at least sufficient to support an ultimate conclusion, by clear and convincing evidence, that no rational factfinder would fail to find” that “the applicant is ineligible for the death penalty.”
Sawyer embodies a federal standard. Under the federal common law of procedural default, the general rule that a federal court cannot review the merits of a state prisoner’s habeas claim if the claim is procedurally defaulted is subject to two exceptions.
The precise meaning of the phrase “actually innocent of the death penalty,” as defined by the Supreme Court in Samyer, is important to our disposition of Rocha’s petition. Acknowledging that the concept of “actual innocence ‘does not translate easily into the context of an alleged error at the sentencing phase of a trial on a capital offense,’ ”
B.
Rocha argues that when the CCA concluded that his successive state habeas application did not satisfy the requirements of § 5(a)(3), it necessarily also concluded that his Wiggins claim is without merit. Rocha effectively invites us to treat an actual-innocence claim under Sawyer as synonymous with an ineffective-assistance claim under Wiggins. Our panel opinion declined his invitation, and we decline it again here. The CCA did not have to reach the merits of Rocha’s Wiggins claim to conclude that he is not actually innocent of the death penalty.
A claim of actual innocence is “ ‘not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.’ ”
The eleven federal courts of appeals that regularly entertain habeas petitions under 28 U.S.C. § 2254 have unanimously held that a federal court’s determination that a petitioner cannot prove his actual innocence does not constitute a decision on the merits of the petitioner’s constitutional claim for habeas relief.
The Supreme Court’s decision in House v. Bell
The distinction between a gateway innocence claim and an underlying constitutional claim is perhaps nowhere more clear than in the context of a Wiggins claim of ineffective assistance of counsel at sentencing. When we consider a properly presented Wiggins claim, we determine whether the petitioner was prejudiced by counsel’s deficient performance by reweighing “ ‘the evidence in aggravation against the totality of the available mitigating evidence’ ” and asking whether the petitioner “has shown that, had counsel presented all the available mitigating evidence, there is a reasonable probability that a juror would have found that the mitigating evidence outweighed the aggravating evidence.”
There may well be some exceptions to the rule that a decision on the gateway innocence claim does not constitute a decision on the underlying constitutional claim. As Judge Dennis has previously recognized, an Atkins claim
Finally, it follows that this Court reviews de novo the CCA’s determination that Rocha cannot establish that he is actually innocent of the death penalty. A gateway claim of actual innocence is not a basis for relief under AEDPA.
c.
Rocha raises three challenges to our conclusion that the CCA’s dismissal of his state habeas application rested on an independent and adequate state-law ground. First, he contends our conclusion is in conflict with the rule announced in Ake v. Oklahoma.
[T]he State has made application of the procedural bar depend on an antecedent*828 ruling on federal law, that is, on the determination of whether federal constitutional error has been committed. Before applying the waiver doctrine to a constitutional question, the state court must rule, either explicitly or implicitly, on the merits of the constitutional question .... [Wjhen resolution of the state procedural law question depends on a federal constitutional ruling, the state-law prong of the court’s holding is not independent of federal law.57
Ake stands for the proposition that when a state court’s application of a procedural rule rests on an antecedent decision of an issue of federal law, a federal court can review or decide the same federal issue that the state court decided.
The difference between Ake and this case is that the federal-law issue the CCA decided when it applied § 5(a)(3) is not the same federal-law issue on which Rocha seeks habeas relief. By applying the waiver rule to Ake, the Oklahoma courts concluded that the federal constitutional claim that was the basis of Ake’s habeas petition was meritless. By dismissing Rocha’s state habeas application as an abuse of the writ, the CCA formed no conclusion about Rocha’s Wiggins claim. Rather, it determined that (1) Rocha’s Wiggins claim should be dismissed on an independent and adequate state-law ground unless Rocha could satisfy Sawyers actual-innocence-of-the-death-penalty standard; and (2) Rocha could not satisfy Sawyer. State law — -specifically, § 5(c) — was the basis for the CCA’s dismissal. Unlike the Oklahoma courts in Ake, the CCA applies §§ 5(c) & 5(a)(3) to all successive state habeas applications that cannot demonstrate actual innocence of the death penalty, regardless of the merits of the federal constitutional claims contained in those applications. Nothing in Ake suggests that a state court’s resolution of a single issue of federal law allows a federal habeas court to decide any and all issues of federal law that the state court might have, but did not, reach.
Second, Rocha contends that we are wrong to conclude that § 5(a)(3) adopts a definition of actual innocence of the death penalty that is coextensive with the definition announced in Sawyer. We disagree for two reasons. First, in Haynes v. Quarterman a panel of this Court held that § 5(a)(3) codifies Sawyer’s requirement that the petitioner must present evidence that he is ineligible for the death penalty.
Third, Rocha argues that our decision conflicts with this Court’s previous decisions in Rivera, Ruiz, and Balentine. In effect, Rocha contends that prior decisions of both the CCA and this Court have robbed Texas’s abuse-of-the-writ statute of its independent state-law character. We conclude otherwise. A full explanation of the reasons for our contrary conclusion requires us to trace the history of Texas’s abuse-of-the-writ doctrine in some detail. We turn to that history now.
II.
A.
We have long acknowledged that a state’s abuse-of-the-write doctrine can sometimes qualify as an independent and adequate state-law ground that functions as a procedural bar to federal-court merits review of habeas claims.
Just one year later the Texas legislature codified the CCA’s abuse-of-the-writ doctrine in Article 11.07 § 4(a) — which applies to non-capital felonies — and Article 11.071 § 5(a), which applies to capital cases such as Rocha’s. Initially, we were uncertain whether § 5(a) supplanted or merely supplemented the CCA’s abuse-of-the-writ doctrine.
Then, in 2002, the Supreme Court held in Atkins v. Virginia that the Eighth Amendment prohibits the execution of mentally retarded persons.
Confronted with the specter of state district courts being forced to consider large numbers of successive habeas applications raising meritless Atkins claims,
A second or subsequent writ must contain “sufficient specific facts” to support an applicant’s Atkins claim .... The mere assertion of a valid legal claim, unsupported by sufficient specific factual allegations which, if true, would entitle the applicant to relief, is not enough to overcome a Section 5 bar .... [The applicant] must provide evidence of a prima facie case, sufficient evidence to withstand a directed verdict or a “no evidence” summary judgment motion that he has a factual basis for his claim under newly-established law.76
With this preliminary screening, the Court responded to an anticipated flood of merit-less Atkins claims.
This choice came with costs. The CCA’s screening function entailed a prima facie review of the substantive merits of each applicant’s Atkins claim.
Change was afoot. Over the next several years we reached the merits of at least four Atkins claims notwithstanding the fact that the CCA had determined that they failed to satisfy § 5(a)(1) and dismissed them as abuses of the writ.
[T]o decide whether an Atkins claim is an abuse of the writ, the CCA examines the substance of the claim to see if it establishes a prima facie case of retardation .... Thus, a decision that an Atkins petition does not make a prima facie showing — and is, therefore, an abuse of the writ — is not an independent state law ground .... Although Texas’ abuse of the writ doctrine is superficially procedural ..., it steps beyond a procedural determination to examine the merits of an Atkins claim. For an Atkins claim, the merits determination is at a minimum “interwoven” with the constitutional prohibition against executing the mentally retarded.82
But even as we announced this holding we took care to limit its reach: “Of course, this court has held in other circumstances that Texas’ abuse of the writ doctrine is an adequate and independent state law ground, but the merits showing now incorporated for Atkins claims changes the character of the doctrine.”
Rivera did not overrule our numerous previous holdings that successive state habeas applications that were dismissed because they could not satisfy § 5(a) were dismissed on an independent and adequate state-law ground.
That began to change in April 2005 when the CCA decided Ex parte Staley.
Two years later, § 5(a)(l)’s transformation was complete. In Ex parte Campbell
To satisfy section 5(a)(1), ... 1) the factual or legal basis for an applicant’s current claims must have been unavailable as to all of his previous applications; and 2) the specific facts alleged, if established, would constitute a constitutional violation that would likely require relief from either the conviction or sentence.94
Post-Campbell, a two-step inquiry — unavailability, then merits — is required before any successive habeas application can be permitted to proceed under § 5(a)(1).
It did not take us long to register the significance of the change announced in Campbell. A few months later, in Ruiz v. Quarterman>
The Texas Code of Criminal Procedure, as interpreted by the CCA, provides for subsequent applications where (1) the factual or legal basis for the subsequent claim was previously unavailable and (2) where the facts alleged would constitute a federal constitutional violation that would likely require relief from either the conviction or sentence. The boilerplate dismissal by the CCA of an application for abuse of the writ is itself uncertain on this point, being unclear whether the CCA decision was based on the first element, a state-law question, or on the second element, a question of federal constitutional law.99
In his petition for rehearing, Rocha misreads this passage from Ruiz in three ways. First, he reads it to be binding precedent that controls our interpretation of all three subsections of § 5(a), including § 5(a)(3). That reading is more than Ruiz will bear. As its citation to Campbell made clear,
Second, Rocha ignores the fact that our decision in Ruiz was a product of the unique procedural posture in which the case arrived at our court. Ruiz emerged from a fractured CCA that produced three separate opinions,
Third, Rocha argues that Ruiz obliges us to conclude that § 5(a)(1) is dependent on federal law in all cases. Not so. It is true that prior to Campbell, our decisions had assumed that a dismissal under § 5(a)(1) always rested on an independent and adequate state-law ground. That assumption cannot survive Campbell. At the same time, it is not the case that a post-Campbell dismissal under § 5(a)(1) never rests on an independent and adequate state-law ground. Whether a § 5(a)(1) dismissal is independent of federal law turns on case-specific factors. If the CCA’s decision rests on availability, the procedural bar is intact. If the CCA determines that the claim was unavailable but that the application does not make a prima facie showing of merit, a federal court can review that determination under the deferential standards of AEDPA.
We correctly interpreted the CCA’s application of its “unavailability, then merits” approach to § 5(a)(1) in Hughes v. Quarterman.
Hughes illustrates the proper application of Coleman v. Thompson
Coleman does not require us to check our common sense at the door when we read an opinion of the CCA with an eye toward ascertaining its decisional basis. The Supreme Court’s overarching aim in Coleman was to reduce the number of habeas cases in which the lower federal courts applied the Hams presumption.
The opinion on rehearing in Balentine v. Thaler (hereinafter, “Balentine 17”)
As to § 5(a)(1), Balentine II acknowledged that the two-part unavailability-merits inquiry announced in Campbell introduces some uncertainty into dismissals under § 5(a)(1), but it rejected the position that this “uncertainty should be transformed into a presumption that the state court reached the merits.”
As to § 5(a)(3), Balentine II noted that Balentine did not argue in his successive state habeas application that he could satisfy § 5(a)(3) and that, in any event, Balentine’s Wiggins claim was not a claim of ineligibility for the death penalty.
In sum, Rivera holds that the CCA reaches the merits of an Atkins claim when it determines that the Atkins claim is prima facie without merit and dismisses the claim for failure to satisfy § 5(a)(1). Ruiz holds that we can reach the merits of a successive habeas claim that the CCA
B.
There is no dissonance between any of those cases and our holding that we cannot reach the merits of Rocha’s Wiggins claim, which the CCA determined did not satisfy § 5(a)(3) and dismissed as an abuse of the writ. The CCA’s conclusion that Rocha’s successive habeas application did not satisfy § 5(a)(3) encompassed two separate determinations: (1) because Rocha did not raise his Wiggins claim in his initial state habeas application, the claim was procedurally defaulted; and (2) because Rocha could not establish that he is actually innocent of the death penalty, his procedural default should not be excused. The first of those determinations is based on a § 5(c), state procedural rule that is independent of federal law. Indeed, the rule that a prisoner waives any claim he does not present in his first state habeas application is the quintessential example of a state-law procedural rule that, when strictly and regularly applied, bars the federal courts from reaching the merits of a habeas claim.
The second of those determinations is based on the federal actual-innocence-of-the-death-penalty standard announced in Sawyer. But the fact that § 5(a)(3) incorporates a federal standard for determining when a procedural default should be excused did not empower the district court— and does not empower this Court — to review the merits of the federal constitutional claim that has been proeedurally defaulted. A claim that a prisoner is actually innocent of the death penalty is legally distinct from a claim that a prisoner’s trial counsel was constitutionally ineffective at sentencing. When the CCA rejects the former, it does not simultaneously decide the merits of the latter. As a result, the CCA’s determination that Rocha is not actually innocent of the death penalty did not open up Rocha’s Wiggins claim for merits review under AEDPA.
Rivera and Ruiz do not compel a contrary conclusion. When the CCA dismisses a successive habeas application because it cannot satisfy the “merits” prong of § 5(a)(1),
By enacting § 5(a)(3), the Texas Legislature ceded nothing to the federal courts that they did not already possess. Sawyer is a federally mandated escape valve from the doctrine of procedural bar. Sawyer obligates the federal courts to decide the merits of any claim presented in the first federal habeas petition
The district court denied Rocha’s Rule 60(b) motion on the ground that his Wiggins claim remains procedurally defaulted. We granted a certificate of appealability because jurists of reason could have debated the correctness of the district court’s decision in light of the uncertainty in this area of our jurisprudence.
In the end, Rocha finds himself in the same position he was in when he first filed this federal habeas petition in 2003. At that time, his Wiggins claim was unexhausted and thus procedurally defaulted; he could have overcome that procedural default by showing that he is actually innocent of the death penalty. Rocha did not cure his procedural default by obtaining a ruling from the CCA that his successive state habeas application was subject to dismissal as an abuse of the writ under § 5(c) because it did not satisfy § 5(a)(3). That § 5(a)(3) employs a federal standard to determine when a procedural default should be excused does not change the fact that the CCA dismissed Rocha’s Wiggins claim on an independent and adequate
. 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).
. See generally 28 U.S.C.A. § 2254 (West 2006).
. An actual-innocence claim is not a claim of constitutional error. It is a procedural device that authorizes the adjudication of a federal constitutional claim that would otherwise be procedurally defaulted. However, the federal constitutional claim of a habeas petitioner who argues that the Constitution renders him ineligible for the death penalty is, in substance, a claim that the petitioner is actually innocent of the death penalty. In cases presenting such claims, the gateway issue and the underlying constitutional issue largely merge into a single inquiry. See infra notes 46-51 and accompanying text.
. 505 F.3d 349 (5th Cir.2007), cert. denied, - U.S. -•, 129 S.Ct. 176, 172 L.Ed.2d 44 (2008).
. 504 F.3d 523 (5th Cir.2007).
. 609 F.3d 729 (5th Cir.2010), vacated on rehearing, No. 09-70026, 626 F.3d 842, 2010 WL 4630829 (5th Cir. Nov. 17, 2010).
. 530 F.3d 336 (5th Cir.2008), cert. denied, - U.S. -, 129 S.Ct. 2378, 173 L.Ed.2d 1299 (2009).
. Again, subject to the possible exception of cases in which the applicant’s federal constitutional claim is itself a claim that the applicant is ineligible to receive, and therefore actually innocent of, the death penalty. See infra notes 46-51 and accompanying text.
. See generally Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
. Ex parte Rocha, No. WR-52,515-04, 2008 WL 5245553, at *1 (Tex.Crim.App. Dec. 17, 2008) (unpublished).
. See, e.g., Magwood v. Patterson, - U.S. -, 130 S.Ct. 2788, 2801, 177 L.Ed.2d 592 (2010) ("If a petitioner does not satisfy the procedural requirements for bringing an error to the state court's attention — whether in trial, appellate, or habeas proceedings, as state law may require — procedural default will bar federal review.”). This rule is subject to two exceptions, which are discussed infra at notes 26-30 and in the accompanying text. In addition, AEDPA allows a federal court to deny a habeas petition on its merits even if the claims it contains are unexhausted. See 28 U.S.C. § 2254(b)(2).
. Coleman v. Dretke, 395 F.3d 216, 220 (5th Cir.2004), cert. denied, 546 U.S. 938, 126 S.Ct. 427, 163 L.Ed.2d 325 (2005). See generally O’Sullivan v. Boerckel, 526 U.S. 838, 850-56, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (Stevens, J., dissenting) (explaining the differences between the two varieties of procedural default).
. See, e.g., Kittelson v. Dretke, 426 F.3d 306, 315-16 (5th Cir.2005)
. See, e.g., Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).
. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir.1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998).
. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir.2001).
. Amos v. Scott, 61 F.3d 333, 339 (5th Cir.) (emphasis omitted), cert. denied, 516 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995).
. See Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, 16B Fed. Prac. & Proc. Juris. § 4019 (2d ed. Westlaw current through the 2010 update) (“Review is ... precluded if state substantive law is sufficient to support the judgment no matter how the federal question is resolved For example, the Supreme Court would lack jurisdiction to review a state-high-court decision invalidating a state statute on both state and federal constitutional grounds. Even if the Court reversed the federal constitutional decision, the statute would remain invalid under the state constitution. See Richard H. Fallon, Jr. et al , Hart & Weschler’s the Federal Courts and the Federal System 463-64 (6th ed. 2009). Similarly, a federal court sitting in habeas will decline to decide a federal constitutional claim that the state court rejected on procedural grounds because even if the federal claim is meritorious, the federal court will decline to grant relief on it out of deference to the state court’s procedural ruling.
. See, e.g., Murch v. Mottram, 409 U.S. 41, 45-46, 93 S.Ct. 71, 34 L.Ed.2d 194 (1972) (per curiam) ("In Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), this Court said, in speaking of habeas corpus for federal prisoners: 'Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application ..., he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground.’ ... There can be no doubt that States may likewise provide ... that a prisoner seeking post-conviction relief must assert all known constitutional claims in a single proceeding.”); see also Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.) (explaining that Texas's rule requiring a habeas applicant to present all of his claims in his initial habeas application is state procedural requirement that functions as an independent and adequate state-law ground), cert. denied, 515 U.S. 1153, 115 S.Ct. 2603, 132 L.Ed.2d 847 (1995).
. Tex.Code Crim. Proc. Ann. art. 11.071 § 5(a)(3) (Vernon's 2005).
. See, e.g., Price v. City of San Antonio, 431 F.3d 890, 892 (5th Cir.2005); F.D.I.C. v. Abraham, 137 F.3d 264, 267-68 (5th Cir.1998). "As we have stated, '[i]t is not our function as a federal appellate court in a habeas proceeding to review a state's interpretation of its own law’, and ‘we defer lo tire state courts’ interpretation' of its statute.” Arnold v. Cockrell, 306 F.3d 277, 279 (5th Cir.2002) (quoting Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir.1995)).
. 230 S.W.3d 151 (Tex.Crim.App.2007)
. Id. at 163 (emphasis omitted).
. Id.
. Id. at 160; see also id. ("Section 5(a)(3) of Article 11.071 represents the Legislature's attempt to codify something very much like this federal doctrine of 'actual innocence of the death penalty' for purposes of subsequent state writs.”).
. See, e.g., Dretke v. Haley, 541 U.S. 386, 388, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004).
. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
. Murray v. Cariier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
. See Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ("To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”); In re Briscoe Enterprises, Ltd.., II, 994 F.2d 1160, 1164 (5th Cir.1993) (“ ‘Preponderance’ means that it is more likely than not.”).
. 505 U.S. at 350, 112 S.Ct. 2514.
. See Ex parte Blue, 230 S.W.3d at 159 ("The Legislature quite obviously intended [§ 5(a)(3)], at least in some measure, to mimic the federal doctrine of 'fundamental miscarriage of justice.' ”).
. See Tex.Code Crim. Proc. art. 11.071 § 5(a)(3).
. Sawyer, 505 U.S. at 340, 112 S.Ct. 2514 (quoting Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986)).
. Id. at 350, 112 S.Ct. 2514.
. Haynes v. Quarterman, 526 F.3d 189, 197 (5th Cir.2008) (granting a certificate of appealability) (quoting Ex parte Blue, 230 S.W.3d at 160), habeas relief conditionally granted by 561 F.3d 535 (5th Cir.2009), conditional grant of habeas relief reversed sub nom. Thaler v. Haynes, —• U.S. -, 130 S.Ct. 1171, -L.Ed.2d-(2010).
. Accord Williams v. Thaler, 602 F.3d 291, 305-07 (5th Cir.2010) (concluding that an unexhausted successive habeas petition the merits of which the CCA would refuse to consider on the ground that it did not satisfy the requirements of § 5(a)(3) was procedurally defaulted and precluded from merits review in federal court), cert. denied, - U.S. -, 131 S.Ct. 506, 178 L.Ed.2d 376, 2010 WL 2917636 (Nov. 1, 2010); Nobles, 127 F.3d at 422 (same); see also Busby v. Dretke, 359 F.3d 708, 724 (5th Cir.) (treating a petition that could not satisfy any of the three subsections of § 5(a) as procedurally barred), cert. denied, 541 U.S. 1087, 124 S.Ct. 2812, 159 L.Ed.2d 249 (2004).
. Schlup, 513 U.S. at 315, 115 S.Ct. 851 (quoting Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)).
. See, e.g., Simpson v. Matesanz, 175 F.3d 200, 215 (1st Cir.1999) ("Because there is neither 'cause’ nor 'actual innocence,’ ... the federal court sitting in habeas is precluded from hearing the merits of Simpson’s challenge.”), cert. denied, 528 U.S. 1082, 120 S.Ct. 803, 145 L.Ed.2d 677 (2000); Jones v. Keane, 329 F.3d 290, (2d Cir.) ("In the case of procedural default, we may reach the merits of the claim only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent. Since Jones has not attempted to meet this standard, we do not reach the merits of his claim.” (internal citation and quotation marks omitted)), cert. denied, 540 U.S. 1046, 124 S.Ct. 804, 157 L.Ed.2d 693 (2003); Tice v. Wilson, 276 Fed.Appx. 125, 126 (3d Cir.) ("[The petitioner] failed to establish his actual innocence for purposes of the fundamental miscarriage of justice standard, and we cannot overlook his procedural default and reach the merits of his ineffective assistance of justice claim.”), cert. denied, - U.S. -, 129 S.Ct. 402, 172 L.Ed.2d 294 (2008); Watkins v. Murray, 998 F.2d 1011, 1993 WL 243692, at *5 (4th Cir. 1993) (per curiam) (unpublished table decision) ("Because Watkins has demonstrated neither cause and prejudice nor actual innocence, we cannot reach the merits of his defaulted Edwards[ v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)] claim.”), cert. denied, 510 U.S. 1056, 114 S.Ct. 718, 126 L.Ed.2d 683 (1994); Montoya v. Collins, 988 F.2d 11, 13 (5th Cir.) ("Montoya ... has not even alleged, much less demonstrated, that a 'miscarriage of justice’ regarding actual innocence or 'actual innocence of the death penalty' could be established in his case. This petition ... may not be considered on its merits.”), cert. denied, 507 U.S. 1002, 113 S.Ct. 1630, 123 L.Ed.2d 263 (1993); Harris v. Lindamood, 355 Fed.Appx. 940, 943 (6th Cir.2009) ("Because Harris has failed to demonstrate her actual innocence for first degree felony murder, her procedurally barred ineffective assistance of counsel claim cannot be considered on the merits.”); Balsewicz v. Kingston, 425 F.3d 1029, 1035 (7th Cir.2005) ("Because Balsewicz cannot demonstrate the actual innocence necessary to pass through this 'gateway,' we will not reach the merits of his ineffective assistance of counsel claims.”), cert. denied, 546 U.S. 1144, 126 S.Ct. 1160, 163 L.Ed.2d 1011 (2006); McCoy v. Norris, 125 F.3d 1186, 1192 (8th Cir.1997) ("McCoy cannot make his way through the actual innocence gateway, so we will not consider his constitutional claims on the merits.”), cert. denied, 523 U.S. 1008, 118 S.Ct. 1195, 140 L.Ed.2d 324 (1998); Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir.2007) (en banc) ("Because we conclude that Smith has demonstrated neither actual innocence nor cause and prejudice, we cannot consider the merits of Smith's procedurally defaulted federal habeas petition.”), cert. denied sub nom. Smith v. Mills, - U.S. -, 129 S.Ct. 37, 172 L.Ed.2d 49 (2008); Richardson v. Dept. of
. 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006).
. Id. at 522 & 553-54, 126 S.Ct. 2064. House contended that he was actually innocent of the crime for which he had been convicted, not that he was actually innocent of the death penalty, but the procedural steps are the same for both types of claims.
. Id. at 555, 126 S.Ct. 2064
. See House v. Bell, No. 3:96-cv-883, 2007 WL 4568444, at *1 (E.D.Ten. Dec. 20, 2007) (unpublished) (conditionally granting habeas relief).
. Gray v. Epps, 616 F.3d 436, 442 (5th Cir.2010) (quoting Wiggins, 539 U.S. at 534, 123 S.Ct. 2527).
. Our view that the actual-innocence-of-the-death-penalty review that the CCA conducts under § 5(a)(3) does not undermine the independent, state-law character of the Texas's abuse-of-the-writ statute is in accord with the views of seven of our sister circuits. See Rocha v. Thaler, 619 F.3d 387, 403 nn. 52-58 (5th Cir.2010) (slip op. at 21 nn. 52-58) (compiling cases). Many state high courts review otherwise procedurally defaulted habeas claims for plain error, fundamental error, a fundamental miscarriage of justice, or manifest injustice. Id. Those standards of review are largely one and the same, and they entail a level of review that is substantially similar to actual-innocence review. See Thirty-Ninth Annual Review of Criminal Procedure: Appeals, 39 Geo. L.J. Ann. Rev.Crim. Proc. 856, 887 n. 2630 (2010) (collecting cases from the federal courts of appeals using the terms "plain error,” "miscarriage of justice,” and "actually innocent” to define one another).
This kind of review does not constitute a decision on the merits of the underlying constitutional claim. A state high court can conclude that there was no plain error or miscarriage of justice without concluding that the underlying claim for habeas relief is without merit. Such review "may require a glance at the merits,” but "it does not open up the merits to plenary consideration by the federal court.” See Neal v. Gramley, 99 F.3d 841, 844 (7th Cir.1996) (Posner, C.J.), cert. denied, 522 U.S. 834, 118 S.Ct. 104, 139 L.Ed.2d 58 (1997). Plain-error-style review allows state high courts to avoid deciding the merits of a habeas claim by concluding that, even if meritorious, the claim does not establish an error so fundamental that it seriously affects the fairness and integrity of the judicial proceedings in which the defendant was convicted. Actual-innocence review under § 5(a)(3) allows the CCA to do the same.
. See Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that the Eighth Amendment prohibits the execution of the mentally retarded).
. See Moore v. Quarterman, 491 F.3d 213, 230 (5th Cir.2007) (Dennis, J., dissenting) (“[A] petitioner can invoke the 'miscarriage of justice' exception if, but for the failure to exhaust, the petitioner would have not been eligible for the death penalty because some constitutional or state statutory prerequisite for the imposition of a death sentence could not have been satisfied. Moore easily satisfies this exception because ... the district court properly found that Moore is mentally retarded.” (internal citations and quotation marks omitted)), rev’d en banc, 533 F.3d 338 (5th Cir.2008).
. See Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).
. See Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).
. See generally Nelson v. Quarterman, 472 F.3d 287, 318-19 (5th Cir.2006) (en banc) (Dennis, J., concurring in the judgment) (cataloguing the various categorical exemptions from death-penalty eligibility recognized by the Supreme Court), cert. denied, 551 U.S. 1141, 127 S.Ct. 2974, 168 L.Ed.2d 719 (2007).
. This is not to say that the two inquires become entirely identical. Compare Ex parte
. See, e.g., Wilkerson v. Cain, 233 F.3d 886, 893 (5th Cir.2000) (Garza, J., specially concurring) ("The claim of actual innocence does not itself provide a basis for relief.”). Nothing we say today pertains to a freestanding, Herra-style claim of actual innocence that is not tethered to a claim of constitutional error at trial.
. See, e.g., Sigala v. Quarterman, 338 Fed.Appx. 388, 393 (5th Cir.2009) (per curiam) ("Because procedural default does not constitute an ‘adjudication on the merits' for AED-PA purposes, the state court’s finding of procedural default itself is reviewed de novo. ...” (citing Valdez v. Cockrell, 274 F.3d 941, 946-47 (5th Cir.2001))), cert. denied sub nom. Sígala v. Thaler, — U.S. -, 130 S.Ct. 1506, 176 L.Ed.2d 119 (2010).
. See, e.g., Wright v. Quarterman, 470 F.3d 581, 586 (5th Cir.2006), cert. denied, 551 U.S. 1134, 127 S.Ct. 2996, 168 L.Ed.2d 707 (2007).
. 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Although the Supreme Court has declined to decide that Ake applies in the habeas context, see Coleman, 501 U.S. at 741, 111 S.Ct. 2546, we have held that it does, see Rivera, 505 F.3d at 359. See also Stewart v. Smith, 536 U.S. 856, 860, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002) (per curiam) (assuming without deciding that the rule announced in Ake, a direct-review case, also applies in habeas cases).
. Ake, 470 U.S. at 74, 105 S.Ct. 1087.
. Id. at 74-75, 105 S.Ct. 1087.
. Id. at 75, 105 S.Ct. 1087.
. Cf. Romualdo P. Eclavea, et al., 4 Am.Jur.2d App. Rev. § 46 (Westlaw current through July 2010) ("An adequate state ground may preclude Supreme Court review of some federal issues which the state court refused to reach on state procedural grounds, while not precluding review of other federal issues which the state supreme court did decide, finding that there was no procedural bar to deciding those issues.” (citing Cramp v. Bd. of Pub. Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961))).
. See 526 F.3d at 197 ("Haynes alleges that mitigating evidence could have influenced the jury's discretion but does not argue that evidence not presented due to alleged ineffective assistance of counsel would render him ineligible for the death penalty. Therefore, he has no meritorious argument that the Texas Court of Criminal Appeals would allow him to file a successive application for post-conviction relief....").
. See Rocha, 619 F.3d at 406.
. See Ex parte Blue, 230 S.W.3d at 160 n. 42 ("[I]t is arguable that, in theory at least, ... [§ 5(a)(3)] would also permit a subsequent state habeas applicant to proceed under circumstances that would not excuse a federal petitioner under Sawyer v. Whitley. We need express no ultimate opinion on this question here.”).
. See, e.g., Emery v. Johnson, 139 F.3d 191, 195 (5th Cir.1997), cert. denied, 525 U.S. 969, 119 S.Ct. 418, 142 L.Ed.2d 339 (1998).
. See Ex parte Carr, 511 S.W.2d 523 (Tex. Crim.App.1974). See generally Charles M. Mallín, Death Penalty: Texas Law — Subsequent Writs and Abuse of the Writ Doctrine in Texas, 6 Tex Wesleyan L.Rev. 151, 163-67 (2000) (tracing the origins and history of Texas’s abuse-of-the-writ doctrine).
. See Emery, 139 F.3d at 195.
. Id. (citing Lowe v. Scott, 48 F.3d 873, 876 (5th Cir.1995)).
. Id. (citing Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App.1994) (en banc)).
. Emery, 139 F.3d at 196; see also Fearance, 56 F.3d at 642 ("After Barber, dismissals of Texas habeas petitions as an abuse of the writ should create a procedural bar under the Coleman standard.”).
. See, e.g., Nobles, 127 F.3d at 423 n. 32 ("In view of the dearth of judicial interpretation of Article 11.071 § 5(a), however, we cannot definitively say, and therefore do not venture to guess, whether that section was intended to codify the preexisting abuse-of-writ doctrine.”).
. See Barrientes v. Johnson, 221 F.3d 741, 759 n. 10 (5th Cir.2000) ("We treat article
. See, e.g., Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir.2005) ("This court has consistently held that Texas’ abuse-of-writ rule is ordinarily an 'adequate and independent' procedural ground on which to base a procedural default ruling.” (citing Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir.2004), Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir.2003), and Horsley v. Johnson, 197 F.3d 134, 137 (5th Cir.1999))), cert. denied, 547 U.S. 1136, 126 S.Ct. 2059, 164 L.Ed.2d 793 (2006).
. 536 U.S. at 321, 122 S.Ct. 2242.
. Bell v. Cockrell, 310 F.3d 330, 332 (5th Cir.2002).
. Tex.Code Crim. Proc. art. 11.071 § 5(a)(1).
. See Ex parte Williams, No. 43,907-02, 2003 WL 1787634, at *3 (Tex.Crim.App. Feb. 26, 2003) (unpublished) (Price, J., dissenting) ("The applicant filed this subsequent application for writ of habeas corpus under Texas Code of Criminal Procedure Article 11.071. He alleges that he is mentally retarded, that the United States Constitution prohibits execution of the mentally retarded, and that the legal basis for this claim, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335, (2002), was not available when his initial application was filed. According to the plain meaning of Article 11.071, the applicant's case should be remanded for the convicting court to determine the merits of his claim.”).
. See id. at *1 (Cochran, J., concurring) ("A second or subsequent ... which makes the naked assertion, 1 am mentally retarded,’ obviously does not suffice [under § 5(a)(1)], If it did, every inmate on death row would be equally entitled to file a subsequent writ in the hope that something, somewhere might turn up to support this bare assertion.”); see also Ex Parte Brooks, 219 S.W.3d 396, 400 (Tex.Crim.App.2007) ("While Article 11.071, section 5(a)(1) does not state that the application must include facts establishing that the applicant has a prima facie Atkins claim, it would be absurd to consider applications in which the applicant does not show that the previously unavailable legal basis applies to his claim. To read the statute otherwise would mean that every time a new law is passed or precedent is set, every inmate could file a subsequent application for writ of habeas corpus, regardless of whether the newly
. See Ex parte Williams, 2003 WL 1787634, at *1 (Cochran, J., concurring) (footnote omitted).
. See, e.g., Ex parte Johnson, No. 36,139-04, 2003 WL 21715265, at *2 (Tex.Crim.App. June 6, 2003) (unpublished) (Johnson, J., concurring) (detailing what kind of evidence is necessary "[t]o fulfill the prima facie requirement for an Atkins claim” and concurring in the dismissal because of the "applicant’s failure to produce 'sufficient specific facts' to support an Atkins claim”).
. This new requirement that Atkins claims make a prima facie showing of merit was, as the CCA itself recognized, judicial gloss on § 5(a)(1) not mandated by the text of the statute. See Williams, 2003 WL 1787634, at *3-*6 (Price, J., dissenting) (criticizing the majority for departing from the text of the statute). But its judge-made character did not, and does not, make it any less binding on the federal courts. See supra note 21 and cases cited therein.
. See 413 F.3d 484, 500 n. 4 (5th Cir.2005) (Higginbotham, J., concurring) ("A dismissal under article 11.071(5)(a) normally constitutes an adequate and independent procedural bar to federal review. However, in the Atkins context, Texas courts have imported an antecedent showing of 'sufficient specific facts’ to merit further review, rendering dismissal of such claims under article 11.071(5)(a) a decision on the merits.” (internal citations omitted)).
. See Eldridge v. Quarterman, 325 Fed.Appx. 322, 324 (5th Cir.), cert. denied sub nom. Eldridge v. Thaler, - U.S. -, 130 S.Ct. 536, 175 L.Ed.2d 352 (2009); Williams v.
. Although it does not say so explicitly, Rivera dealt specifically with dismissals under § 5(a)(1). See Ex parte Rivera, No. 27,065-02, 2003 WL 21752841, at *1 (Tex.Crim.App. July 25, 2003) (en banc) (per curiam) (unpublished) ("Our habeas corpus statute, Article 11.071, Section 5(a), states that: a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that ... the current claims and issues have not been and could not have been presented previously ... because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application." (quoting Tex Code Crim. Proc. Art. 11.071 § 5(a)(1))).
. 505 F.3d at 359-60 (footnotes omitted).
. Id. at 359 n. 37 (citations omitted).
. See supra note 70 and cases cited therein.
. See, e.g., Response in Opposition to Request for Certificate of Appealability at 12, Eldridge v. Quarteman, 325 Fed.Appx. 322 (5th Cir.2009) (No. 08-70012) ("The Court of Criminal Appeals denied Eldridge’s subsequent state petition finding that he failed to establish 'a prima facie claim’.... Accordingly, the Texas court’s dismissal of Eldridge’s successive application was an adjudication on the merits entitled to deference by this Court.”); Brief of Respondent-Appellant at 33-35, Moore v. Quartennan, 491 F.3d 213, 219 (5th Cir.2007), rev'd en banc, 533 F.3d 338 (5th Cir.2008) (No. 05-70038) (“[A] review of the state court’s treatment of subsequent Atkins claims indicates a significant reliance on the underlying merits of the claim. The cases reveal that the state court is actively reviewing the quantity and the quality of the
. See, e.g., Moore v. Quarterman, 534 F.3d 454, 463 (5th Cir.2008) ("Here, the CCA explicitly dismissed Moore’s successive application (where he first raised Brady) as an abuse of the writ, and 'Texas’s abuse of the writ doctrine is a valid state procedural bar foreclosing federal habeas review.' ”) (quoting Coleman v. Quarterman, 456 F.3d 537, 542 (5th Cir.2006), cert. denied, 549 U.S. 1343, 127 S.Ct. 2030, 167 L.Ed.2d 772 (2007)).
. 160 S.W.3d 56 (Tex.Crim.App.2005) (per curiam).
. Id. at 62. See generally Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (holding that Texas’s nullification jury instruction at the sentencing phase of capital-punishment cases violated the Eighth Amendment by failing to give juries adequate opportunity to give effect to mitigating circumstances).
. Ex parte Staley, 160 S.W.3d at 63 (quoting Tex.Code Crim. Proc. Art. 11.071 § 5(a)).
. Id.
. 226 S.W.3d 418 (Tex.Crim.App.2007).
. Id. at 422 (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).
. Id. at 421-22.
. Id. at 421 (footnote omitted).
. See, e.g., Ex parte Alba, 256 S.W.3d 682, 691 n. 28 (Tex.Crim.App.2008) (applying the two-part unavailability-merits test under § 5(a)(1) to an Eighth Amendment challenge
. See Ex parte Campbell, 226 S.W.3d at 422 ("Applicant also must jump over the rest of the section 5(a)(1) bar. That is, his application must allege sufficient specific facts that, if proven, establish a federal constitutional violation sufficiently serious as to likely require relief from his conviction or sentence.” (emphasis added))
. See, e.g., Ex parte Hood, 211 S.W.3d 767, 770 (Tex.Crim.App.) (concluding that § 5(a)(1) did not authorize the CCA to consider the merits of a claim presented in a successive habeas application "because the legal bases upon which applicant relies were available at the time he filed his second application” and undertaking no discussion of the prima facie merits of the applicant’s claim), cert. denied, 552 U.S. 829, 128 S.Ct. 48, 169 L.Ed.2d 43 (2007), reconsideration granted on other grounds, No. WR-41,168-11, 2008 WL 4946276 (Tex.Crim.App. Nov. 19, 2008) (per curiam).
. 504 F.3d 523 (5th Cir.2007).
. Id. at 527 (footnote omitted).
. See id. at 527 n. 11.
. See Ex parte Blue, 230 S.W.3d at 159-63.
. See Ex parte Ruiz, No. WR-27,328-03, 2007 WL 2011023, at *1 (Tex.Crim.App. July 6, 2007) (per curiam) (unpublished).
. See Ex parte Ruiz, No. WR-27,328-03 (Tex.Crim.App. July 6, 2007) (per curiam) (unpublished) (Womack, J., statement respecting dismissal) ("Ruiz ... alleges that he was denied effective assistance of counsel when his trial attorneys failed to present certain evidence at the punishment hearing .... The evidence in question was of two kinds: certain facts about the applicant’s experiences during childhood and the opinion of a psychologist. Trial counsel hired the psychologist, considered his report, and chose not to call him at trial because his findings about the applicant would do more harm than good. This was not an unreasonable decision.”), available at http://www.cca.courts.state.tx.us/ opinions/HTMLOpinionlnfo. asp ? OpinionID= 15705; id. (Holcomb, J., dissenting) ("[T]he applicant in this case has suffered a violation of his Sixth Amendment right to counsel .... ”), available at http://www.cca.courts. state.tx.us/opinions/HTMLOpinionlnfo.asp? OpinionID=15706.
. When the CCA is convened en banc, " 'the concurrence of five Judges shall be necessary for a decision.' " Ruiz, 504 F.3d at 527 n. 12 (quoting Tex. Const. art. 5, § 4(b)).
. See supra note 103. Under binding CCA precedent, “the rule for determining a majority holding in a case decided by a fragmented court” in which " 'no single rationale explaining the result enjoys the assents of five Justices' " is that " 'the holding of the Court may be viewed as the position taken by those Members who concurred in the judgment on the narrowest grounds.' ” Haynes v. State, 273 S.W.3d 183, 188-89 (Tex.Crim.App.2008) (emphasis omitted) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)).
. Ruiz, 504 F.3d at 528.
. 530 F.3d 336 (5th Cir.2008), cert. denied, - U.S. -, 129 S.Ct. 2378, 173 L.Ed.2d 1299 (2009).
. Id., at 340.
. Id. at 342.
. Id.
. See Ex parte Hood, 211 S.W.3d at 778 ("Penry I stood as a Supreme Court decision from which an applicant could 'reasonably formulate’ the contention that he was entitled to jury consideration of any type of mitigating evidence.” (citing Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), rev’d in part on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002))); id. at 779 ("Penry I afforded a legal basis for contending that the defendant’s mitigating evidence was constitutionally relevant to determining whether he should receive the death penalty.”).
. 501 U.S. 722, 735, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ("In habeas, if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those claims, or to be interwoven with those claims, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition.”); see also Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (holding that a state-court decision that fairly appears to rest on or be interwoven with federal law will be presumed to be based on federal law unless the state high court whose judgment the Supreme Court is reviewing makes a clear and express statement to the contrary); Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (extending the Long presumption to the federal-habeas context).
. Coleman, 501 U.S. at 735, 111 S.Ct. 2546 (quoting Long, 463 U.S. at 1040-41, 103 S.Ct. 3469); see also Young v. Herting, 938 F.2d 543, 553 (5th Cir.1991) (en banc) (" 'A predicate to the application of the Harris presumption ... is that the decision of the last state court to which the petitioner presented his federal claims must fairly appear to rest primarily on federal law or to be interwoven with federal law.’ ” (quoting Coleman, 501 U.S. at 735, 111 S.Ct. 2546)), cert. denied, 503 U.S. 940, 112 S.Ct. 1485, 117 L.Ed.2d 627 (1992).
. Ruiz, 504 F.3d at 527.
. See, e.g., Maldonado v. Thaler, No. 10-70003, 2010 WL 3155236, at *6-*7 (5th Cir. Aug. 10, 2010) (per curiam) (unpublished) ("Maldonado has never, in this court or before the district court, contended that the factual or legal bases for these Fifth and Sixth Amendment claims were unavailable when he filed his initial habeas petition, and there is no basis in the record to conclude that they were.... Accordingly, we conclude that the dismissal of Maldonado’s subsequent habeas application was premised on an adequate and independent state procedural ground.”).
. See, e.g., Coleman, 501 U.S. at 740, 111 S.Ct. 2546 ("There is ... little that the federal courts will gain by applying a presumption of federal review in those cases where the relevant state court decision does not fairly appear to rest primarily on federal law or to be interwoven with such law, and much that the States and state courts will lose. We decline to so expand the Harris presumption.”); id. at 736, 111 S.Ct. 2546 ("Coleman urges a broader rule: that the presumption applies in all cases in which a habeas petitioner presented his federal claims to the state court. This rule makes little sense.”); id. at 739-40, 111 S.Ct. 2546 ("In the absence of a clear indication that a state court rested its decision on federal law, a federal court's task will not be difficult.”).
. See id. at 739, 111 S.Ct. 2546.
. See Ex parte Brooks, 219 S.W.3d at 399 ("The purpose of the Habeas Corpus Reform Act of 1995 was to ... limit[] the availability of subsequent applications....”).
. See Balentine v. Thaler, No. 09-70026, 626 F.3d 842, 2010 WL 4630829 (5th Cir. Nov. 17, 2010) ("Balentine II”). Balentine II withdraws Balentine I, see Balentine v. Thaler, 609 F.3d 729 (5th Cir.2010), thereby mooting Rocha's objection that our panel opinion conflicts with Balentine I.
. See id., 626 F.3d at 854-55, 2010 WL 4630829 at *13. Balentine's successive state habeas application also raised a Batson claim, but Balentine did not continue to pursue that claim in federal court. Id.
. Ex parte Balentine, No. WR-54,071-01, 2009 WL 3042425, at *1 (Tex.Crim.App. Sept. 22, 2009) (per curiam) (unpublished).
. Balentine II, No. 09-70026, 626 F.3d at 854-55, 2010 WL 4630829, at *13.
. Id. at 854, 2010 WL 4630829 at *11.
. Id. at 854, 2010 WL 4630829 at *12.
. The Supreme Court first "established the legal principles that govern claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Wiggins, 539 U.S. at 521, 123 S.Ct. 2527.
. See generally Tex.Code Crim. Proc. art. 11.071 § 5(e) ("For purposes of Subsection (a)(1), a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.”).
. See Balentine II, No. 09-70026, 626 F.3d at 855, 2010 WL 4630829, at *14 ("Balentine’s subsequent application made no effort to show that the facts or law underlying his Wiggins claim were unavailable to him at the time of his first state application .... Therefore, Section 5(a)(1) was not satisfied.”).
. See id. at 855-57, 2010 WL 4630829 at *14 — *15.
. See supra notes 94-97 and accompanying text.
. See supra notes 54-58 and accompanying text.
. See Coleman, 501 U.S. at 734-35, 111 S.Ct. 2546 (citing Harris, 489 U.S. at 266, 109 S.Ct. 1038).
. See id. at 736, 111 S.Ct. 2546 ("Harris ... [applies] only in those cases in which 'it fairly appears that the state court rested its decision
. Contra 28 U.S.C. § 2244(b)(2) (barring consideration of a successive federal habeas petition unless the petitioner can show either legal unavailability or newly discovered evidence plus actual innocence of the underlying offense); In re Webster, 605 F.3d 256, 258-59 (5th Cir.2010) (concluding in a § 2255(h) case that the use of the phrase “guilt of the offense" in 28 U.S.C. § 2255(h)(1) and § 2244(b)(l)(B)(ii) bars a federal habeas petitioner from bringing a successive petition based only on a claim of actual innocence of the death penalty), cert. filed, No. 10-150,-U.S.-,-S.Ct.-,-L.Ed.2d-, 79 USLW 3077 (July 27, 2010).
. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (“When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows ... that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.”).
. This section is the operative one for Rocha and provides for certain aggravating circumstances to be presented to the jury in a sentencing hearing following a guilty verdict in a capital case where the death penalty is sought. After the jury in Rocha’s case unanimously answered "yes” to the aggravating circumstances questions, the following question, known as the “mitigating circumstances” question was asked: "Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.” Tex.Code Crim. Proc. Ann. art. 37.071, § 2(e) (West 1998). The current version of the mitigating circumstances question is identical except in that it now provides for life imprisonment "without parole.” See Tex.Code Crim. Proc. Ann. art. 37.071, § 2(e)(1) (West 2010).
Concurrence Opinion
concurring:
I concur in the actual denial of panel rehearing, while noting that the petition for rehearing en banc remains pending. I respectfully do not join in the lengthy opinion accompanying the order denying panel rehearing because, I submit, it is largely unnecessary. The concern that animated my original dissent to the portion at issue came to pass: Balentine I has now been transmuted into Balentine II with a different result and rationale that, somewhat ironically, encompasses some of the original reasoning of the original opinion in this case. Rather than adding to this volley of opinions, I conclude that we are required to follow the decision of Balentine II, specifically, the last few pages addressing § 5(a)(3), the only subsection at issue in our case, given the CCA’s wording.
Under Balentine II’s reading of prior precedent (including our original opinion in Rocha), the CCA’s perfunctory dismissal of an application raising only mitigation issues is to be read as a conclusion that Rocha’s state writ application did not raise issues “sufficiently fundamental as to excuse the failure to raise it timely in prior state and federal proceedings.” Balentine II, 626 F.3d at 856, 2010 WL 4630829 at *14 (internal citations and quotation marks omitted). Unfortunately, this leads to the anomalous result that denial of a writ expressly referencing a statute that actually mentions the federal constitution- — “by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury in the applicant’s trial under Article 37.071,
. Tex.Code Crim. Proc. Ann. art. 11.071, § 5(a)(3) (West 2010)(emphasis added).
. The statute itself intertwines the question of a federal constitutional violation with the answer to special issues, including the mitigation issue. This circumstance is thus different from Sawyer, a case which, of course, predates Wiggins. Wiggins, though not a subsequent habeas case, was, of course, a habeas case about an attorney’s failure to investigate and present mitigating evidence in a death penalty case.
. Balentine II necessarily concludes that the CCA has closed the door that footnote 42 left open. Blue declined to address the issue because it was an Atkins case that did not raise a mitigation issue. See 230 S.W.3d at 159, 160 n. 42. Presented squarely with a § 5(a)(3) mitigation claim here and in Balentine II, the CCA dismissed the applications. In order to declare § 5(a)(3) inapplicable, the CCA must either have concluded (1) that the statute prohibited consideration of the mitigation question or (2) that the statute required assessment of the merits of the petitioners' mitigation claims and found them lacking; § 5(a)(3) is not discretionary in nature. I acknowledge that Balentine II views the former possibility as more likely and binds us here, but I note that in doing so we have implicitly held that the CCA has, without comment, rejected the grounds for review suggested by footnote 42.