Medina, Hector Rolando

jury only demand. A writ will issue if the comply.

trial court fails to

Ex Parte Hector Rolando

MEDINA, Applicant.

No. WR-75835-01. Appeals Criminal of Texas.

Oct. Writs, Levenson, Capital

Brad Office Austin, Appellant. Smith, Dallas, D.A.,

Lisа Asst. Lisa C. McMinn, Austin, Atty., State’s for State. ORDER PER CURIAM. have received a document entitled

We Habeas Corpus” “Application Writ We death-penalty in this case. conclude not, fact, “ap- that this document is corpus” for writ under plication 11.071 of the Texas judge timely Article Code Crimi- appointed present counsel, Norris, Mr. Robin appoint nal Procedure. We therefore who filed the counsel, document that is pending before pursuant and set a new date 4A(b)(8).1 us. That document 11.071, asserts that “Appli- § to Article illegal”

cant’s restraint for ten listed reasons. Each of these listed reasons al- I. lege ineffective assistance of either trial or jury In October appli- convicted appellate counsel. The entire “applica- capital cant of the offense of murder. The only tion” is pages long four merely jury special answered the issues submitted states factual and conclusions.2 That pursuant to Texas Code of Criminal Proce- conclusory list does not satisfy our state court, dure Artiсle and the trial pleading requirements,3 and counsel knew accordingly, punishment set at death. it. apparently Mr. Norris intended to This Court affirmed conviction force this Court to readdress appeal. and sentence on direct requirements, Medina v. as thorough filed a he brief State, AP-76,036, very No. on that opposition WL 378785 issue in to the 2011) (not Jan.12, State’s motion desig- to dismiss the (Tex.Crim.App. “applica- tion.” publication). nated for On appeal, direct alia, claimed, he inter that he received case, In this both the State and the during ineffective assistance of counsel judge of the convicting recognized court punishment phase of trial. Id. at 26-31. that the document that habeas counsel rejected We that claim because it was not filed was a proper application not itas factually developed in the record. Id. at did not specific set out facts or any contain (“By not specifying what evidence his exhibits, affidavits, or a memorandum of counsel should have prеsented, appel- law that alleged any specific facts. The present lant has failed to a basis to con- State even offered “to forfeit applicant clude that defense counsel’s decision not to portion of statutorily the time allotted to unreasonable, present evidence was or that preparing State for its response”5 to probability there is a reasonable that the applicant ensure that could have his claims different.”). result would have been addressed on the According merits. to the 11.071, 4A(b)(3) [application Crim. Proc. sufficient that the for a writ of 1. Tex Code (if timely counsel does not file a corpus] allege ... mere conclusions tion, may appoint law”). "the court ... new counsel represent and establish a new application"). date for the judge 4. The trial found that some of sufficiently grounds upon cant’s claims "state claim, example, 2. Counsel’s tenth asserts which, proven to be relief could be simply "Applicant deprived of the However, granted.” application also con- guilt effective assistance of counsel at the sufficiently tained "assertions that do not stage attorney of trial in that his defense specific, particularized state facts on the face insanity.” failed to raise the defensive issue of application that enable the court to every Is trial counsel who does not raise the determine whether the merits fur- insanity every purportedly issue of in trial inquiry.” ther Rather than address the few constitutionally ineffective? Or are there discernible claims that the document con- specific why some facts and reasons tained, judge the trial "the recommended that particular counsel in this case should have prudent grant more action” was to the State’s insanity? raised the issue of Who knows? problem. motion and let this Court resolve the Maldonado, 3. Ex (Tex.Crim.App.1985) (holding that "it 5. State’s Motion to Dismiss at 5. Medina, and State, similarly “informed the State situated death-row habeas counsel will not [conviсting] that he plead briefing inmates not evidence specifici- with any greater promotes claims because it allege his the initial case- only provide ‘boilerplate’ ty evidentiary will disposition hearings.” without replead.”6 law if ordered agreed that he did not want to largely He his plead might support allega- until the last counsel waited Because he not want the tions because did State document, file a dis- possible day to what his was. know evidence merits, missal, though not on the even to file a opportunity foreclose Mr. Norris that he had been a stated bringing same claims. new those pleading, lawyer for some practicing thirty- in Texas on the merits of Similarly, a denial had for a years, five worked number of any conclusory allegations would foreclose Court, represented at this and had years claims to raise those same opportunity twenty ten and somewhere between death- counsel has appearances, all again. By on post-conviction row inmatеs their habe- There- client under the bus. his thrown that, as-corpus applications. He admitted fore, to an order to counsel we issued case, always to this he prior had included Wednesday, the Court on appear before sup- exhibits and stated facts that would 2011, 15, explain to his conduct. June contentions, legal but he port his did not not do so in this case because he did think II. law was settled that a habeas his duly appeared began and Mr. Norris tion must contain facts. He stated that he pleading I file a explanation: “Since did thoroughly investigated had facts un- as a writ of habeas on designated claims, derlying his but that he intentional- re- perhaps think that the Court time—I ly not in his did include them client’s garded being it as not a writ of habeas intentionally and pleading, that he filed his Indeed, However, is so. corpus.” day on the re- possible last and “good maintained he had a Mr. Norris him give to fused State’s offer more “sufficiently his faith” belief that document replead to those crucial time and add facts. pleads grounds fоr habeas cor- cognizable abundantly It is clear that counsel’s ac- though not set out pus relief’ even he did mistake, not tions were the result of inad- allega- specific support facts to his vertence, negligence, or a lack of legal agreed suggestion tions. He that “[t]he abundantly It expertise. is also clear that change the law is close to that I want jeopardizing is intentionally counsel my at least in view. But not being right, very represented cant’s “one run at a well trying change I’m exactly right. corpus proceeding.”7 trying to law.” He get the law. I’m some 2011, 1, July On this Court is “frequently” that he dis- admitted had inviting judge, sued an order the trial the situation with his client “[a]nd cussed State, lay about and Mr. to brief five happy it. But he’s Norris issues he’s not early concerning August, Norris that it this matter.8 In person.” Mr. maintained client, pro interests Mr. counsel for applicant’s purposes “in the best of bono [his] 6. Id. any allegations applicant's Do suffi- facts, ciently allege specific proven which Kerr, 418-19 See Ex relief, him to habeas entitle (Tex.Crim.App.2002) (quoting Representative requiring proceeding thus further in the Gallego). Pete court? were: Those issues in the petition for certiorari tion 4A of Article appoint filed a Supreme any States Court9 to ensure that United claims that Appointment applicant have are may fully fairly “Motion for Conflict-Free respond litigated on behalf court. Mr. state Norris Counsel” contin- appointed questions. to the Court’s We ues to assert that Texas law does not Capital represent require plead him specific the Office Writs to allega- factual for that on Au- purpose limited tions. He that if this applicant adds Court decides otherwise, have re- gust given We now received he should be an opportu- State, Capital nity from the plies pleadings, though Office of amend even Writs, rejected Mr. also re- he previously Norris. We have that opportunity pro two se documents submitted to when it ceived was offered State. purport court applicant the trial which agreе We State and the Office peti- original to be motions to amend the Capital in their analysis Writs of the law corpus. tion We dismiss these applicable particular to this case. se filings not enti-

pro because hybrid representation Article tled to under III. 11.071 and because his is a motion to law has long required Texas all original the but an “application,” amend post-conviction applicants for writs of ha-

untimely amendment claims is adding new which, plead specific beas to facts under not allowed Article 11.071. true, if proven might to be call for relief.10 State Capital The and the Office of Counsel not cited a single has case agree granted Writs both that the document filed which this a appli writ appli- Norris was not a by proper only Mr. writ cation that contained conclusory alle it gations cation under Article 11.071 because does appli or even remanded such an facts, which, allege specific proven if cation for further consideration the true, relief. applicant convicting would entitle to A Texas writ applica court. agree put complete tion It Both this Court should must be on its face. document, Sec- proceed allege specific anyone aside that under must facts so that legal authority sup- petition Supreme statute 2. What or other 9. That was filed in the 27, 2011, ports May pending. the and the State's motion to dismiss Court on and is still court’s the recommendation to dismiss application? writ legion 10. The cases are in which we remand aIs dismissal consistent current with applications convicting habeas-corpus to the type caselaw this of situation? development appli court for further when the consequences that, true, 4. What are the the defen- alleged might cant facts if "has past, present, and to 11.071 dant and future entitle him to relief.” Some remand cases applications ap- include, Lahood, and writ Article 11.07 single parte from a week Ex (1) plications WR-72,580-01, if appoints (Tex. this Court: No. 2011 WL 2369392 4A, Edwards, 8, 2011); under Article and al- Crim.App. parte June Ex (2) applicant application: WR-75,213-02, to file a new (Tex. lows No. 2011 WL 2378180 application 8, the 2011); dismisses in accord Griffin, Crim.App. parte June Ex (3) WR-75,528, or on the (Tex. State’s denies relief 2011 ‍‌‌‌​‌‌‌​‌​​‌‌​​​‌‌‌‌​‌‌​‌​‌‌​​​‌‌​‌​​‌‌‌​‌‌​‌​​​‍WL motion: No. 2382917 8, 2011); Haas, application? Crim.App. parte June Ex No. case, WR-75,757, (Tex.Crim. this 5. Under circumstances of 2011 WL 2383225 8, 2011); Foster, parte other alternative are under App. what available Ex WR- June No. 75,856-01, application (Tex.Crim.App. Article 11.071 to ensure that an WL 2383996 2011 8, 2011). opportunity” a "full and fair All of these remand obtains June orders applicant "alleged have his claims reviewed had facts state that that, true, might entitle him to relief.” Court? 638 and the files the applicant under-

reading the writ answer, convicting court an State files basis for the factual precisely stand (within whether days) “shall determine form, required official Our legal claim.11 controverted, factual unresolved previously appli- non-death-penalty in all be used legality of the material explic- issues corpus, of habeas for a writ cations a and shall issue confinement exist “briеfly cant’s must applicant itly states that order of the determination.”14 each written supporting facts summarize relief.12 for habeas ground” facts, alleged has not applicant If the does, also con- may, frequently tion made. not be could this determination exhibits, affidavits, associated tain would be and the court parties And specific law to establish memorandum hearing that for the prepare unable to entitle might “controverted, when there are required relief.13 issues mate- factual previously unresolved con- of the legality rial to the Furthermore, Article 11.071 Code that, finement.” after requires Procedure of Criminal Maldonado, charge application for to the S.W.2d See Ex ("In postconvic here. corpus, as was done (Tex.Crim.App.1985) attack, is on the the burden at collateral tion which, if allege prove facts applicant to relief.”); Corpus Habeas Application see also for a Writ of entitle him to (Tex.Crim. Tovar, Felony 485-86 Conviction Seeking S.W.2d From Final Reliеf ("In Procedure, post entitled to App.1995) order to be Article Criminal Under Code of applicant must concisely relief the collateral (“Beginning page conviction state 11.07 on magnitude, question a of constitutional you raise are every legal ground your claim that for establishing vio the constitutional allege restrained, briefly facts being unlawfully and then and, prove that he was appropriate, if lation harmed.”); ground. supporting each the facts summarize Akhtab, S.W.2d ground form present on the must each You ("Because applicant (Tex.Crim.App.1995) summary of the facts. a and brief which, true, allege if prove or facts does not summary grounds your of facts brief If relief, requested relief all entitle him to presented on the have not been tion, form denied.”). is your consider the Court will not Maldonado, Court ex- this In Ex http;//www.cca.courts. grounds."), available at necessary why to dismiss plained it was 11.07%20Writ state.tx.us/forms/AMENDED application in that case. %20App%20Form.wpd. egre- allegation an the context of an In charge, one which rises giously erroneous Guidelines and See State Bar of Texas applicant having a denied to the level Counsel, Capital Guide- for Texas Standards trial, impartial requirement of fair and (Duties 12.1(B)(7)(d) Coun- of Post-Trial line strictly pursued. In other will be sel) (2006). guidelines recommend the These words, petition it not sufficient that is following: impartial trial allege a fair and the denial of all available law, should attach Habeas counsel are mere process of which or due (affidavits, law; docu- proof to the adequate it to neither is conclusions of evidence, etc.) doing though mentary even charge allege bare fact that the court’s technically required law. state so is was somehow erroneous. proof court will Rather, Failing attach in state applicant allege the rea- must ability present it light likely waive the client’s charge, in given error in the sons a whole, proof When is unavail- proce- in federal court. infected the the trial as a so able, plead all factu- denied a fair habeas counsel should that the dure greatest possible alleged, allegations with the the bur- al impartial trial. Once prove specificity. a denial applicant to such den on the by merely heavy be carried and cannot 11.071, § 8. attaching copy of the court's a certified Proc. art. 14. Tex.Code Crim. ap us that Applicant’s Governing § counsel told the Rules Cases Courts, United States District petitioner a required not be plicants plead should in federal court must both “specify all the agree. “evidence.” There is no re We grounds for relief available to the petition- so, quirement they the statute that do er” and “state the facts supporting each just requirement as there is no that the ground.”18 Advisory Committee’s allege State evidence in an indictment. Notes to Rule 2 state that the petition But there are statutory requirements clear generally must be on the designated form for indictments and for these habeas-cor- because the past, petitions “[i]n have fre- pus applications allege the facts which quently law, contained mere conclusions of proved by must be evidence. unsupported by any facts. Since it is the relationship of the facts to the claim as- The predecessor statute to Article serted important, petitions these governed capital 11.07—a statute that both obviously were deficient.”19 non-capital proceedings habeas —ex- Indeed, plicitly required specific pleadings: factual Supreme United States has recognized petition importance writ of “When pleading specific facts in federal habeas fact, which, allegations contains sworn applications because that requirement petitioner’s would render confine- helps sort out the obviously unmeritori- ment under the felony conviction ille- ” 16 ous claims from those that deserve more gal.... rules, attention.20 Under the federal pleading requirement This is similar to petition that does not plead sufficiеnt “par- that set out for use of federal courts ticularity” of may be dismissed considering applications post-conviction the district court without even ordering a writs of corpus.17 responsive courts, Under Rule of pleading.21 In federal Felix, 644, 655, Mayle Id. v. 545 U.S. 125 S.Ct. 2562, (2005) (noting 162 L.Ed.2d 582 heightened pleading requirements post- in 11.07, 2(b) (Act § Crim. Proc. 16. Tex.Code corpus conviction writs of habeas and distin- 1, 1967, R.S., 659, 7, May Leg., § of 60th ch. guishing requirements those from the "no- 1967) (amended 1977). pleadings applicable "ordinary” tice” to civil lawsuits). quoted Advisory The Court Wright 17. See 19A Charles Alan & Arthur R. " Committee’s Note to Rule 4 that ‘notice’ Miller, Procedure, Federal Practice and Juris- sufficient, pleading petition is not for the is Appendix of Matters, diction and Related expected point to state facts that to a real Forms, (Petition at 372 Under 28 U.S.C. possibility of constitutional error.” See also § Corpus.) 2254 for a Writ of Habeas In that 669-70, (Souter, J., id. at 125 S.Ct. 2562 form, petitioner "supporting a must set out ("the dissenting) purpose heightened of the ground facts” for each asserted for relief. help stаndard in habeas is a cases to state, argue The instructions "Do not or cite petitions district court weed out frivolous be- specific support law. Just state the facts that answer”). calling fore on the State to your claim.” 656, Id. at 125 S.Ct. 2562. See also id. at Id.., Governing § Rules 2254 Cases in the 670, (Souter, J., dissenting), 125 S.Ct. 2562 Courts, United 2 States District Rule at 337- citing 1 R. Hertz &J. Liebman, Federal Habeas 11.6, § at 573 Corpus Practice and Procedure (4th ed.2001) (“[FJact pleading, n.3 like other Id., Governing § Rules 2254 Cases in the corpus practices, habeas rules and enables Courts, 2, United States District Rule Adviso- separate petitions ... courts substantial ry Adoption, Committee Notes to 1976 Subdi- quickly from insubstantial ones and without (c) Note, adversary proceedings”); vision at 339. need of Devel- sum, today In reiterate a hear- we what we to determine whether standard a long of have an for findings of fact conclusions held: ing and petitioner is whether the habeas whether filed under Article required, corpus, law are that, factual specific allegations 11.07 or must contain sufficiеnt “has made that, true, on which can be specific proven a claim relief facts if be state might to relief. granted.”22 entitle the Circuit, by the Seventh a As was stated IV. assistance of counsel is claim of ineffective filed in The document this case specific allegations factual one in which specific not facts does contain such specific verification of and a sworn those a for a “application” proper important: particularly facts is in example, For his sec corpus. proven, petition- allegation If the [the .is claim, states, ond counsel deprived has been an essential er] Applicant’s sentence death violates guarantee. allega- If the constitutional ‍‌‌‌​‌‌‌​‌​​‌‌​​​‌‌‌‌​‌‌​‌​‌‌​​​‌‌​‌​​‌‌‌​‌‌​‌​​​‍Sixth to the Amendment United States false, damage seriously it could tion is Applicant Constitution because was de- reputation professional prived of the effective assistance of finality of a most serious disrupt punishment phase counsel at the of his public vindicаtion of the undertaking: attorney that his defense failed justice a through criminal conviction. available avenues pro- exhaust all very important at Given the concerns cure of necessary the attendance wit- some stake, sensibly require rules nesses the defense time to meet minimal, showing, however threshold settings reasonable trial court.24 evidentiary basis requiring an before claim, appropriate court to undertake the task of That is perfectly district allegations provide but fails to evaluating any and determin- habeas counsel facts ing support whether relief is warranted.23 that would claim:25 opments Corpus, asserting others in the Law—Federal Habeas relevant within their ("The (1970) justi- personal knowledge identifying other and/or Harv.L.Rev. evidence.”); stringent pleading requirements fication sources of relevant Galbraith v. States, (7th thought to lie in the need in habeas United 313 F.3d Cir. ("While 2002) protect courts from the en- petitioner] burden of is correct that [the applications"). grant tertaining requires frivolous a district court to court evidentiary hearing petitioner if a 'al 22.See, Withers, e.g., United States v. 638 F.3d that, leges proven entitle him to Puckett, 1055, (9th Cir.2011); 1062 v. relief,' Koch determination that the threshold 524, (5th 1990) (habeas peti F.2d Cir. petitioner sufficiently alleged such facts conclusory allegations tioner's failed to estab requires petitioner to submit a affi sworn lish valid ineffective-assistance-of-counsel showing specific davit facts support what claim, evidentiary hearing necessary); Pu no assertions.”). petitioner's States, 209, (2d glisi v. United 586 F.3d Cir.2009) (setting requirements States, 1063, out 467 F.3d v. United Kafo (7th prisoner Cir.2006). a federal a claim would entitle § evidentiary 2255 to under 28 U.S.C. an hearing; procedure determining "The Application 24. Writ 2.at hearing necessary part whether a is is in to, from, Indeed, very analogous part but in a this is the same ineffective- different summary judgment proceeding. petition appli- that was included in assistance claim rejected appeal, we legal er’s sets forth his or cant's direct but it be- motion her claims, aсcompanied ex cause no factual basis the record factual relevant there was e.g., support There is still no petitioner hibits: an affidavit from the or the claim. factual necessary What witnesses? What would another.27 That is always not possible un- they 11.071, have testified to? What means did der Article which contains strict procure counsel use to their time limits for filing attend- a writ application.28 Why case, ance? were these means constitu- Habeas counsel in this acting with tionally design, insufficient? What other intentional means ensured that he could required were available? not be Why replead were those means because he filed constitutionally necessary “non-application” on possible under the cir- the last How, day. all, He intentionally cumstances? if at filed an improper was application despite A his objections. harmed? client’s must be com- plete on its face. It must allege specific Kerr,29 In Ex we held that a anyone reading facts so that the writ deаth-penalty “writ application” that did cation would understand precisely the fac- not “challenge the validity of the underly And, tual basis legal for the claim.26 in- ing judgment” was no writ application at deed, habeas fully counsel was aware of all.30 The rule in Kerr is as follows: “To this rule as he expounded upon it in his constitute á document worthy of the title opposition brief in to the State’s mo- ‘writ application’ pursuant filed to article tion to dismiss. 11.071, the writ must seek ‘relief from a

Under Article 11.07—the statute for judgment imposing penalty of death.’ A non-capital applications document death penalty ‘writ’ that does not challenge —a that does specific not contain factual con- validity of the underlying judgment tentions is not a true writ application and which, meritorious, even if would not is prejudice dismissed without to refile. result in immediate relief from his capital- appropriate Dismissal is because such an murder sentence, conviction or death is not inmate has no time limits within which to an application’ ‘initial purposes of art. file an application. If comply 11.071, he fails to § 5....”31 As Judge Overstreet with the pleading requirements Ar- under stated in his dissent to the dismissal of a 11.07, ticle his first “non-application” is stay Kerr, Ricky execution for such a leisure, dismissed may, and he at his “non-application” file present facts, support grounds basis document to supporting for relief and the claim. applicant’s application we dismiss for writ of non-compliant.”). as Allison, Compare Blackledge v. 431 U.S. 75-76, (1977) 97 S.Ct. 52 L.Ed.2d 136 4(a) Tex.Code Crim. Proc. (habeas petitioner’s sufficiently claims were ("An application corpus, for writ of habeas supported by specific allegations factual appeals, returnable to the court of criminal dismissal; summary survive petitioner "al- convicting must be filed in the court not later leged ground as a plea for relief that his day than the 180th after the date the convict- unkept promise. induced But he did ing appoints court counsel under Section 2 or stop proceeded therе. He to elaborate day not later than the 45th after the date the upon specific allega- this claim with factual original appeal state’s brief filed on direct petition exactly tions. The indicated what appeals, the court of criminal whichever were; when, where, promise terms of the and later.”). date is made; by promise whom the had been and identity the of one witness to its communica- 29. 64 (Tex.Crim.App.2002). S.W.3d 414 tion.”). Id. at 419. Blacklock, 718, parte Ex See 191 S.W.3d ("Because (Tex.Crim.App.2006) 719 complete portions did not (emphasis original) (quoting Id. in Tex. 11.071, 1). require tion form which § a list of the claimed Code Crim. Proc. art. 642 process for travesty possible.”35 of as The applicant’s peditiously

a farce and ap- It for habeas relief. factual contentions is found right apply deciding to those Court, 9, states, 11.071, § in such “If the approving in Article which pears that this re- charade, applicant, punishing convicting a that contro- court determines State, even perhaps and warding verted, is- previously unresolved factual per- file attorneys to other encouraging legality sues material to the of functory “non-applications.” Such a exist, the court shall cant’s confinement it eas- certainly makes “non-application” designating ... the issues enter order for the attor- everyone—no ier on need But the fact of fact to be resolved[.]”36 State, this to consider ney, the or that be are those issues must resolved challenges anything that any potential and application within the writ contained Nevertheless, trial. happened at controverting the State’s answer. Without capi- Legislature provided has convicted contentions, facts, fac- factual and specific right tal with the make defendants application, issues out in the tual set corpus appli- challenges such habeas convicting nothing court has to resolve. cation.32 Applicant, because of his counsel’s Indeed, why this Court precisely that is plead specific intentional refusаl to held, involving Ricky in its later decision relief, might support habeas-corpus that Kerr, “non-application” initial filed opportu not had full fair his “one qualify did as by his a habeas present juris or nity to his constitutional application purposes Article in with the dictional claims accordance Therefore, Kerr was entitled 11.071. full Not procedures [Article 11.071].”37 filed after the application, have a true writ he bite at the because is entitled one “non-application,” denial of considered i.e., apple, application, one and the docu its Kerr called a “sub- on merits.33 What proper applica filed a ment was not actually was his initial sequent application” applicant’s Not opportu tion. fair because it was first docu- application because “the own, nity, through no fault of his in claims and con- ment which intentionally subverted his tentions, true, might ‘relief from merit ”34 counsel. judgment penalty imposing of death.’ is, contain application That must both suggested It hаs been legal claims and factual contentions. in reasoning result case could proverbial floodgates open protract protects a “proper Great Writ repetitious who litigation by ed and those respect concept justice” for the file) (or filed might have the future require petitions therefore courts “that be ap But pleadings. and that all contentions of defective as the State filed earnest notes, presented and as ex- this is those ex- upon propriately merit be ruled one of 585, (Tex. Kerr, parte Id. at added) 32. Ex 977 S.W.2d (emphasis (quoting Tex 11.071, J., 1). (Overstreet, dissenting). § Crim.App.1998) Code Crim. Proc. art. Cair, 523, (Tex. Kerr, 414, (Tex. 35. Ex 33. S.W.3d Kerr, Crim.App.1974), quoted in 64 S.W.3d at (“We Crim.App.2002) appli conclude that 418 n. 11. original filing cant's was not an for a writ as defined under 11.071, 9(a). article and therefore his 36. Tex Code Crim. Proc. August is his initial writ. We Kerr, date.”). timely today’s consider filed as at 419. it S.W.3d Kerr, in tremely rare situations envisioned court as being days from the date of in which habeas counsel has “ employed this order.42 applicant’s pro We dismiss se strategy designed

‘Machiavellian to Motion to Amend the Petition for State proper statutory procedure thwart the for Habeas Corpus. We hold original habeas ”38 filing penalty a death writ.’ not We do counsel, Norris, Mr. Robin in contempt of foresee that other counsel will emulate court and enter an denying order him com- notes, such conduct.39 As the State pensation under Section 2A of Article no similarly should be landslide of “[t]here 11.071.43 deficient If applications. expli- the court Copies of this Order shall be sent to cates the in requirements death- counsel, applicant, convicting court, penalty applications, the outcome in and the Office of Capital Writs. prevent this case could other coun- using any ambiguity sel from in the law as It is so ordered this the day 12th similarly an excuse to file a deficient appli- October, 2011. Furthermore,

cation.”40 this case is dou- bly generis agrees sui because the State PRICE, J., filed a concurring in opinion filing that counsel’s a proper was not habe- COCHRAN, JJ., which JOHNSON and as-corpus application, it recommends joined. this proceed under Article KELLER, P.J., filed a dissenting 11.071, § 4A. We commend the State for opinion HERVEY, J., in which joined. its position and note its statement posture is an unusual for the State “[t]his KEASLER, J.-,filed a dissenting opinion to take and will likely one that it HERVEY, J., in which joined. assume with regularity the future.” MEYERS, J., dissented. unique Under these and extraor circumstances, dinary involving not habeas PRICE, J., concurring statement in counsel’s lack of competence but his mis COCHRAN, JJ., which JOHNSON and placed challenge desire to the established joined. client, peril law at the of his we conclude client, At considerable risk to his 11.071, 4A(a), § that under Article apparently against his client’s avowed cognizable failed to file a application. wishes, counsel who Thus, appointed rep- proceed we shall pursuant to Section 4A(b)(S). post-conviction resent the ap Under that section we shall counsel, corpus pro- for writ of habeas point specifically the Office of Writs, ceeding capital from a Capital represent conviction and death applicant.41 We establish a new sentence waited until possible date for the the last date application to be filed in the convicting essentially to file what amounts to a so- Response (quoting 38. State’s at 23 Ex Id. at 24-25. Kerr, (Tex.Crim.App. 2002)). 11.071, 4A(b)(3), § 41. Tex.Code Crim. Proc. (e). 39. While not entitled to relief on a claim of ineffective assistance of habeas counsel under 4A(b)(3),(d). § Id. Graves, (Tex.Crim. 70 S.W.3d 103 App.2002), progeny, and its a defendant 4A(c). Id. right entitled to not have ‍‌‌‌​‌‌‌​‌​​‌‌​​​‌‌‌‌​‌‌​‌​‌‌​​​‌‌​‌​​‌‌‌​‌‌​‌​​​‍his to habeas review deliberately by highly competent sacrificed counsel. initial for application constitute an He did does not application. writ “skeletal” called contemplation in habeas was to writ of purpose admitted advisedly. His so application no court Ex Kerr.4 Because convicting in the dispute provoke filed, that is authorized specificity timely Court to the level respect with 4A(b)(3) that a Article 11.071 to may it be said Section bеfore required writ of ha- the timeta- application for new counsel and start appoint post-conviction which, allege to facts what the Court does corpus suffices ble anew.5 That is beas true, applicant to relief. entitle the its order. today, join if would and I for hav- today maligns counsel The Court the worries that for Judge Keasler under the his client thus “thrown ing to this solution order adopt accuses Keasler further Judge bus.”1 open will present dilemma resolve “arro- “gamesmanship” equal protection princi- floodgates—that of the risk magnitude Given gance.” permit appoint- us to ples compel will subjected knowingly counsel has to which and new timetables ment of new counsel client, quibble his it is difficult that fails every capital for harsh characterizations. these particularity, with sufficient to state facts that the lack Keasler believes Judge conclusorily, pres- or only claims alleges deny appli- dictates we specificity I non-cognizable claims.6 nothing but ents fаiling allege cant’s 4A(b) concern. Section do not share this which, would entitle grants 11.071 this Court of Article effectively leaves the This cant to relief.3 filing to extend the deadline for discretion nothing more raise applicant with appoint and to untimely pleading, initial than corpus proceedings federal habeas counsel, require us to new but it does issues were whatever federal constitutional capital applicants all habeas do so. Not only by appeal, supported raised on direct inadequate plead- initial patently who file memorialized in already are whatever facts filing let the deadline for run ings and then words, pre- other record—in appellate Here, similarly situated. we out will be pay dear- applicant cious little. The believe, from our good have reason I gambit. counsel’s find ly for his habeas appeal,7 of this case on direct knowledge should be it intolerable that when presentation and from counsel’s oral miscalculation of suffer for the made to Court, before this that there called to task entirely by forfeiting his habeas counsel the deliberate is definite substance behind ulti- perhaps, forum—and state habeas That is present pleading. of his opacity mately, his life. general for the run of simply not the case Instead, inadequate capital pleadings today sensibly de- the Court us. And it is worth remem- filed in this case come before that what counsel clares Order, "may appoint corpus, this Court ... at 636. 1. Court’s represent applicant and new counsel to Keasler, J., Dissenting Statement of at 647 application, a new date for the establish 648, respectively. & may days after which be not more than 270 counsel”). appoints the court the date 3. Id. at 648-49. Keasler, J., Dissenting at 649. Statement of (Tex.Crim.App.2002). 4. 64 S.W.3d State, (Tex. WL 378785 11.071, 7. Medina v. 5. See Tex.Code Proc. Crim. AP-76,036, January (when Crim.App., delivered 4A(b)(3) No. capital habeas counsel fails 2011) (not designated publication). timely application for writ of to file initial bering juncture at this that the сonvicting says that “dismissal appro- court, least, priate” regarded at for such unspecified applications some because Arti- cle 11.07 has no time portions application of counsel’s writ limits. But it to be does explain why presence or lack sufficiently cognizable detailed to state time limits would any have bearing on the may very claims-claims that well require correct disposition of a habeas application, development. further factual Under these it apparent is not why to me it would. circumstances, the Court would be derelict If the saying Court is that such applica- not to exercise its appoint discretion to have, now, tions dismissed, until been it is to represent the applicant. patently incorrect. If it is saying that they reasons, For join these I the Court’s will dismissed, henceforth be then it has order. already begun the process of torturing disposition law to fit its of this case. KELLER, P.J., dissenting in which Most applications are written pro se HERVEY, J., joined. inmates. Some of the applications best are inmates, written pro se but it fre- For the reasons discussed in Judge quently happens that we receive an appli- statement, Keasler’s dissenting I agree pro cation from a se inmate that fails to that we treat application cannot in this adequately plead facts. No doubt we have case as a “non-application.”1 To those received thousands of them years. over the reasons, I would add another consider- Now the Court opened the floodgates ation: The holding Court’s will wreak hav- for all of those applicants to claim that non-capital oc with applications habeas un- their applications earlier were non-applica- der Article 11.07.2 they tions because were insufficiently pled, Now that we have a form that must be the result being that they get to file new out, filled a non-capital applicant habeas applications. And, unless the or- Court’s specify must at least ground one for relief der means that all inadequate 11.07 appli- and, ground, for each fill portion out a dismissed, cations are now to be then for the form that asks for supporting facts.3 current non-capital and future ap- non-capital If a applicant fails to fill plicants, we grade will have to unmeritori- section, supporting-fact out the then his applications ous to decide whether application will be dismissed. But if the claim is invalid because of a pleading de- applicant does fill out the portion of the or, instead, fect pled because the facts facts, form that supporting asks for but simply give do not rise to a valid claim only conclusory statements, makes or in relief.4 Deciding application whether an way some other to adequately plead fails substantively simply unmeritorious or in- facts, then we routinely deny the applica- adequately pled will not always easy, be is, tion. That a non-capital habeas applica- may sometimes lead hair-splitting tion under Articlе 11.07 that looks like the Moreover, distinctions. important it is application in this case results in a denial recognize that sometimes an fails of relief rather than a dismissal. to plead sufficient facts because the facts dissent, Judge post. See required by Keasler's tion the form. The relief, specify grounds must all and must summary sup- set forth in fashion the Tex.Code Crim. Proc. 11.07. porting ground.”). each 73.1(c) ("The person 3. See P. mak- Tex.R.App. ing provide Judge must all informa- 4. See Keasler's dissent at 647. Mr. that he says bus.”8 Norris acted It should not on his side. simply not

are who has no thought that an in he was his surprise good in faith what be a it difficult to may for relief find basis give valid best I would him the client’s interest. plead one. years Based on his benefit doubt.9 penalty death experience of with numerous case, judge the trial has present the

In believed that his applications,10 claims suffi- habeas he applicant’s of found that some which, prov- if grounds “upon probability” would “maximize the ciently approach state granted.” relief could be be heаring en to He further a live for his client. of apparently believed the judge trial The hearing that a live obtaining believed was the prudent course to dismiss obtaining would increase the likelihood however, tion, because most of claims Mr. that he is famil relief. Norris tells us adequately pled. were not evidence, he with the and calls his iar legitimate have recom- “a tactical decision.” judge approach should not The trial In- application. a dismissal of the line that he mended bottom seems to be thinks stead, any claims were if get if not a live his client will lose he does allega- pled and involved fact adequately so Mr. has done what he hearing, Norris State, disputed by were tions that his plan The fact that can to obtain one. designated the is- judge should have hearing to result in a live does not failed to be resolved and the manner sues of fact it was for his own benefit mean conceived If they would resolved.5 no in which be of his instead client’s. the trial adequately pled, then claims wеre Finally, Legislature could enact a determined, request- have so judge should upon law that confers this Court the dis- findings par- from the of fact proposed ed to order of the remedies under cretion one ties, conclu- findings filed of fact and 11.071, 4A, an attorney § Article when judge law.6 the trial sions of Because things, death-penalty ap- either of we should files a timely not done these “skeletal” dispo- further this case to him for any remand not contain ade- plication does sition. One reason quately pled claims. place § in first 4A was enacted disagree take a moment to with

I must leeway dealing the courts in give some conduct the assessments of Mr. Norris’s as untimely applications after a own interests above his “plac[ing] his arose in a case. As “throwing problem particular his client client’s”7 and under Also, "Denying opportunity [applicant] § Crim. Proc. art. 9. 5. Tex.Code hearing goal plainly everyone such a Id., (c). 8(b), § argues that he must include affidavits who legal briefing part as a initial Judge Keasler’s dissent at 647. See says we application ...” He also that habeas "living in a world” if we think are dream at Court’s order See hearings adequate. paper are give Norris does this Court the 9. Mr. not the Court’s 10.Mr. Norris is listed in case says, doubt. "All of the benefit of the He system attorney management of record as an arguments, say the obvious atti- state's at least two cases in which relief was on such judges in in trial courts and tudes Varelas, granted. Ex 45 S.W.3d 627 Court, manifestly designed preserve are Lim, (Tex.Crim.App.2001); AP- No. adjudicating corpus applica- system of 76,593, (Tex.Crim.App. 2011 WL 2581924 summary arguments Those tions fashion. 29, 2011)(not publica- designated for prefer- June disclose unmistakable attitudes tion). hearing denying a ...” ence for full and fair 4A, original with the enactment of such numerous past, times and we did not But, applications a statute could be made retroactive. dismiss those as “non-applica- (and view), my view tions.” Judge under Keasler’s currently powerless

this Court to do That deliberately counsel failed to ade- timely anything files a deаth- quately plead facts does not justify the penalty application ‍‌‌‌​‌‌‌​‌​​‌‌​​​‌‌‌‌​‌‌​‌​‌‌​​​‌‌​‌​​‌‌‌​‌‌​‌​​​‍attacking his Court’s decision to rescue this applicant. conviction or death sentence but fails to Let me be my clear that complaint has adequately plead any of the claims.11 nothing to do with applicant. this Over past the years thirteen that I have been on respectfully

I dissent. Court, this I have reviewed numerous KEASLER, J., dissenting in which applications. 11.071 Some of them have HERVEY, J., joins. just been poorly pled as as application. this Yet, cases, relief, in those we denied de- alarming say This case is the least. deficiencies, spite appalling which, the un- Counsel, gamesmanship, in the name of decision, today’s der should have been placed has his own interests above his non-cognizable characterized as client’s, capital who has been convicted of applicants tions. The in those cases were murder sentenced to death. The victims of deficient and inadequate lawyer- cliеnt, counsel, a “layman” according to is ing that was a ignorance result of but not pleased performance. with counsel’s necessarily Here, incompetent.2 the defi- worse, to make majori- And matters the cient lawyering is deliberate. It inap- is ty proceeding under fiction. The propriate any to draw distinction between majority application treats the as a “non- the two. The outcome in the past has application” purposes of Section 11.071. been the same—the death-row client’s one Kerr, parte In Ex application the chal- opportunity to seek habeas relief is lost. lenged only the validity death-penal- This will carry over into the applicant’s ty statutory scheme.1 We held that Kerr’s federal court proceedings, render- application challenge did not validity ing those proceedings meaningless. judgment. application This nothing A proper application consistent and Kerr; parte like that in Ex it does chal- following the law leads to the conclusions: lenge validity judgment sentence. Ex Kerfs holding was Counsel has filed an Article 11.071 limited, extremely and we must remain cation on behalf client of his that resem- precedent. By true to that adopting the bles what have referred to as a we skeletal view, majority’s required we are now application. qualify This does as a writ 11.071, 11.07, result, grade applications as well as application under il.071. As a and decide which allegations application are sufficient does not fall under Article 4A, enough pass muster and which are timely not. Section because it was however, if an application presents What all non- filed. The application, fails to cognizable basic, comply habeas claims? Does this mean with pleading minimum that we should treat it as a “non-applica- requirements well known to the bench bar, very tion?” This situation has occurred including particular attorney, who Graves, (Tex. See, e.g., parte Reynoso, See Ex 70 S.W.3d 103 257 S.W.3d Crim.App.2002). (Tex.Crim.App.2008) (denying appli сlaim). non-cognizable cant’s sole (Tex.Crim.App. 416-18 2002). in the absence in- would have differed ings numerous death-row represented alleged performance.5 before deficient counsel’s on habeas. mates re- grounds for only succinct a fact-intensive and exhaus- mandates provides us This pro- grounds do not bare-bones lief. The as a whole. proceedings review of the tive any finding that there are a basis for vide applicant, the the burden is on the Because controverted, unresolved fact is- previously delving into responsible are not courts confine- applicant’s to the sues material case, record, and then investigating the 8(a) and of Sections purposes ment for claims. a habeas formulating 9(a). Counsel, recognition of express originally moved to dismiss The State arrogance, has an air of law and our case the failure to com- based on requirements. pleading violated the requirements, and with the ply plead must A habeas that we has recommended judge the trial prove and must him or her to relief entitle Our writ motion to dismiss. grant the preponderance a of by claim his or her a distinction recognized jurisprudence especially relevant This is evidence.3 A deni- a and a dismissal. between denial allegations of ineffective it relates to when merits.6 related to the disposition al is a counsel under the Sixth of assistance the merits if it is related to disposition “A Amendment, requires showing a which or makes a determina- the merits decides resulting preju- and performance deficient of the that the merits tion conelusory ineffective-assis- dice.4 A dismiss- can never be decided.”7 claims presented here do not allegations tance the merits.8 unrelated to disposition al is a requirement prejudice the essential meet grounds alleged the fail when practice Our there is a reasonable showing that requirements is to meet the proceed- that the result probability 478, Rains, (Tex. testimony of uncalled wit failed to show that parte 481 555 S.W.2d 3.Ex State, favorable and that nesses would have been King 649 S.W.2d Crim.App.1977); v. recording 42, (“Counsel's to review video counsel’s failure fail (Tex.Crim.App.1983) 44 Imoudu, parte prejudicial); Ex the crime was guilt-innocence at the to call witnesses ure 866, (Tex.Crim.App.2009) 868 284 S.W.3d stages a punishment is irrelevant absent concluding appli report that the (psychiatric showing witnesses were available that such at the time of the offense cant was insane benefit from their testi appellant support claim that trial coun Thomas, 22, submitted 24 parte 906 S.W.2d mony.”); Ex failing investigate was ineffective in sel McPherson, (Tex.Crim.App.1995); parte 32 Ex defense). insanity 860, (Tex.Crim.App.2000); see 861 S.W.3d State, 542, v. 726 S.W.2d 550 also Wilkerson 668, Washington, U.S. v. 466 4. Strickland (finding “there noth (Tex.Crim.App.1986) 2052, 686-94, 80 L.Ed.2d 674 104 S.Ct. potential ing that de in the record to show Robbins, (1984); U.S. Smith v. 528 see also precluded or that a visit to the were fenses 285-86, 746, 259, 145 L.Ed.2d 756 120 S.Ct. any difference in the would have made scene case[;] attorneys failure of the defense’s (2000). against not militate a visit the scene does Chandler, 350, parte 182 S.W.3d 5. Ex representation.”); Ex finding of reasonable Strickland, (citing (Tex.Crim.App.2005) Chandler, 350, n. 2 parte 182 S.W.3d 694, 2052). at 104 S.Ct. U.S. (noting appli (Tex.Crim.App.2005) that proof the burden of and that cant bears 469, Torres, (Tex. Ex 943 S.W.2d verify "independently was unable to Court Crim.App.1997). accuracy the facts set out in the findings” failed because court’s Id. testimony copy of the trial to include Ramirez, record.); (Tex.Crim.App.2007) (applicant Id. 853-54 deny relief based on fact Ray

grounds MORRIS, have been reviewed and we have Daniel Appellant, made determination that no relief is v. the allegations warranted because are con- Thus, clusory. dismissal this case is The STATE of Texas. contrary practice. to our And for the rea- stated, already sons proceeding under Sec- No. PD-0796-10.

tion 4A is incorrect. Appeals of Criminal of Texas. In filing, its most recent the State as- willing serts that it is proce- waive the Dec. dural bar requests the Court proceed under Section 4A and appoint I appreciate

counsel. can posi- State’s

tion; we are all troubled this situation. Legislature

But the provision has made no

for such a waiver.9 again, And to permit

anything other than a give denial would

this applicant opportunity that other

similarly situated applicants have been de-

nied. my dismay,

Much to counsel has inten-

tionally failed his client. And because of

that, formally I refer him to the State

Bar’s grievance committee. just But as

disturbing is the majority’s decision to de-

stroy what was once a level playing field

for 11.071 applicants. Now that ‍‌‌‌​‌‌‌​‌​​‌‌​​​‌‌‌‌​‌‌​‌​‌‌​​​‌‌​‌​​‌‌‌​‌‌​‌​​​‍it has tied knots, majority

itself should stand

behind its drastic reversal course and prior deficiently

review pled applications

(assuming applicants that those have not executed)

already been to determine

whether any of them should now be char- as a non-application

acterized under this precedent. comments,

With these I A copy dissent.

of this statement shall be sent to the Texas

State Disciplinary Bar’s Chief Counsel’s

Office. Compare Day McDonough, v. 547 U.S. limitations is affirmative defense that is 198, 201-02, State). 126 S.Ct. 164 L.Ed.2d 376 subject waiver (2006) (recognizing that the AEDPA’sstatute

Case Details

Case Name: Medina, Hector Rolando

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 12, 2011

Citation: 361 S.W.3d 633

Docket Number: WR-75,835-01

Court Abbreviation: Tex. Crim. App.