McCarthy, Kimberly LaGayle

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-50,360-04 EX PARTE KIMBERLY LAGAYLE MCCARTHY, Applicant ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS AND MOTION TO STAY THE EXECUTION IN CAUSE NO. F97-34795-V IN THE 292ND DISTRICT COURT OF DALLAS COUNTY Alcala, J., filed a dissenting statement, in which Johnson, J., joins. DISSENTING STATEMENT The sound of crickets. Silence. That is this Court's response to the Supreme Court's recent decision in Trevino v. Thaler, 569 U.S. ___, 133 S. Ct. 1911 (2013), a case that ultimately may prove to expand a defendant's right to counsel in the same way that the right was established in the landmark decision of Gideon v. Wainwright, 372 U.S. 335 (1963). (1) Rather than address the implications of this important decision, this Court, by order and without opinion, cites Kimberly McCarthy, applicant, for abuse of the writ and dismisses her subsequent application for a writ of habeas corpus. See Tex. Code Crim. Proc. art. 11.071, § 5(a). In this application, applicant contends that her trial counsel was ineffective for failing to object to the State's allegedly discriminatory use of peremptory challenges during jury selection in her capital-murder trial, and that her initial habeas attorney was also ineffective for failing to raise the issue of trial counsel's deficient performance in her initial application for a writ of habeas corpus. (2) Because I disagree with the Court's cursory dismissal of this application, I respectfully dissent. I conclude that this Court should: (1) grant applicant's motion, which asks this Court to stay her execution in order to reconsider applicant's claim "in the wake and context of Trevino"; and (2) write a detailed opinion addressing the implications of Trevino on applicant's subsequent writ application. I would hold that this Court has jurisdiction to address her current application under the procedural rules for subsequent writs and resolve her claims on the merits. I. This Court's Decisions for Subsequent Writs Should Be Reconsidered In light of Trevino, this Court should reconsider its holding in Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002). Prior to Trevino, this Court held in Graves that a claim of ineffective assistance of prior habeas counsel was not cognizable on habeas corpus. Id. at 105. We concluded that such a claim could not, therefore, form the basis for consideration of a subsequent writ under Code of Criminal Procedure article 11.071, nor could it serve as a gateway to consideration of otherwise procedurally barred claims. See Tex. Code Crim. Proc. art. 11.071, § 5; Graves, 70 S.W.3d at 117-18. Four of the underlying concepts for the decision in Graves, however, no longer apply after Trevino. Graves, 70 S.W.3d at 117-18. First, in light of the Supreme Court's decision to permit federal courts to consider the effectiveness of habeas counsel despite its holding that there is no constitutional right to counsel in a habeas proceeding, this Court should reconsider Graves's underlying premise that the absence of a constitutional right to counsel necessarily means that an applicant may not challenge the effectiveness of habeas counsel's representation. Id. In Graves, relying on the principle that a convicted individual has no federal or state constitutional right to habeas counsel, this Court held that a habeas applicant may not challenge the effectiveness of her habeas counsel in a post-conviction proceeding. Id. at 116. This Court summarized that, neither the United States Supreme Court nor this Court has ever held that a habeas petitioner has a federal or state constitutional right to counsel in a habeas proceeding. Absent such a constitutional right to counsel, there can be no constitutional right to effective assistance of counsel in a habeas proceeding. Id. But Martinez v. Ryan, which became applicable to Texas through Trevino, permits a federal court to consider the ineffectiveness of habeas counsel when deciding whether to excuse a federal habeas petitioner's procedural default of a substantial claim of ineffective assistance of trial counsel. See Trevino, 133 S. Ct. at 1921 (citing Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309, 1320 (2012)). Understanding that the Supreme Court did not change its position that there is no federal constitutional right to habeas counsel, it appears that Trevino did carve out a procedural exception for federal courts that will, in effect, permit consideration of what would otherwise be procedurally defaulted claims of ineffective assistance of trial counsel. Id. That exception will be triggered whenever a federal court determines that the claim is "substantial" and was procedurally defaulted as a result of ineffective assistance of habeas counsel. Id. This Court's holding in Graves must be reexamined in light of the change in the law brought about by Trevino. See Graves, 70 S.W.3d at 117-18; Trevino, 133 S. Ct. at 1920-21. Second, in light of the Supreme Court's decision to permit federal courts to consider the effectiveness of habeas counsel as a means of overcoming procedural default, this Court should reconsider Graves's underlying principle that an applicant may never challenge the effectiveness of habeas counsel because habeas proceedings are limited to complaints about the trial proceedings. Id. In Graves, this Court explained that, an allegation of ineffective assistance of counsel in a habeas proceeding is entirely derivative; it does not attack the validity, fairness, or constitutionality of the original trial proceeding. It is merely a 'gateway' device used to allow an inmate to resurrect a procedurally defaulted claim which he failed to bring at the proper time. Id. This principle has also been undermined by Trevino. See Trevino, 133 S. Ct. at 1919. The Supreme Court has now determined that, in Texas, the proper time to challenge the ineffectiveness of trial counsel is in an application for a writ of habeas corpus. Id. at 1920-21. On this basis, the Supreme Court concluded that federal courts may now consider, as an exception to the normal federal procedural-default rules, any substantial claim of ineffective assistance of trial counsel "if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Id. at 1921 (citing Martinez, 132 S. Ct. at 1320). See id. The fact that a claim of ineffective assistance of habeas counsel is a mere "gateway device" to consideration of other claims is no longer a sound reason to decline to consider it. Third, this Court should reconsider Graves's underlying rationale that the State's interest in the finality of convictions weighs against permitting consideration of subsequent writs. Graves, 70 S.W.3d at 117. Unless this Court revises its current approach, federal courts will now have the opportunity to decide a vast number of ineffective-assistance claims de novo, without any prior consideration of those claims in state court. The State's interest in the finality of convictions would be better served by permitting state courts to address these ineffective-assistance claims on the merits. (3) This would restore normal procedural-default rules in federal court, as well as reinstate the normally deferential standard of review that federal courts apply to post-conviction claims previously adjudicated on the merits in state court. Fourth, Graves relied on Coleman v. Thompson as a basis to limit this Court's consideration of subsequent writs, but that decision has now been modified by the Supreme Court. See Coleman v. Thompson, 501 U.S. 722 (1991). Since Coleman was decided, the Supreme Court has held that a "'narrow exception' should 'modify the unqualified statement in Coleman that an attorney's ignorance or inadvertence in a post-conviction proceeding does not qualify as cause to excuse a procedural default.'" Trevino, 133 S. Ct. at 1917 (quoting Martinez, 132 S. Ct. at 1315). Because Graves relied on Coleman as a concept underlying its holding, this Court should reconsider Graves in light of the Supreme Court's modification of Coleman. Because part of its foundation has been weakened in light of Trevino, Graves should be reconsidered and modified. Graves could be left largely intact to the extent that it holds that, ordinarily, an applicant in a subsequent writ may not raise, as a stand-alone claim, a complaint about the effectiveness of initial habeas counsel. This Court, however, could permit an equitable exception that would mirror the federal exception recognized in Trevino. Such an exception would permit this Court to consider a claim of ineffective assistance of habeas counsel as a gateway to considering an otherwise-forfeited claim of ineffective assistance of trial counsel. At the very least, this Court should address applicant's arguments regarding the implications of Trevino and write an opinion explaining what approach we will take going forward. Instead, there is only the sound of crickets. II. Trevino May Be the Sequel to Gideon To better understand the potentially expansive application of the Trevino decision to ineffective-assistance claims arising from actions in Texas state courts, a brief analysis of Trevino and its predecessor, Martinez v. Ryan, is essential. See Trevino, 133 S. Ct. at 1921-22; Martinez, 132 S. Ct. at 1318. In Martinez, the Supreme Court, for the first time, recognized that a federal habeas court could consider a procedurally defaulted claim of ineffective assistance of trial counsel if the procedural default was caused by the ineffectiveness of initial habeas counsel in state post-conviction proceedings. Martinez, 132 S. Ct. at 1320 (holding that "procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective"). Citing to Gideon, the Supreme Court in Martinez determined that a "prisoner's inability to present a claim of trial error is of particular concern when the claim is one of ineffective assistance of counsel," a right that is "a bedrock principle in our justice system." Id. at 1317 (citing Gideon, 372 U.S. at 344). At the time it was decided, Martinez did not appear to affect Texas because it was limited to situations in which a state required ineffective-assistance-of-trial-counsel claims to be raised during habeas proceedings, and Texas permitted those claims to be asserted either on direct appeal or on habeas. Id. Last month, things changed. Martinez now expressly applies to Texas. Trevino, 133 S. Ct. at 1921. The Supreme Court decided that, although Texas has a mechanism for challenging the effectiveness of a trial attorney on direct appeal, this Court has (1) discouraged use of that procedure because the record is ordinarily undeveloped within the 30-day period during which the motion for new trial and appeal must be filed, and (2) rarely granted relief on those claims through direct appeal. Id. at 1918-20. Texas, said the Supreme Court, effectively has a procedure that requires that habeas counsel raise ineffective-assistance-of-trial-counsel claims in the initial state habeas application. Id. And Texas does not ordinarily permit an applicant to raise, in a state habeas proceeding, a claim of ineffective assistance of habeas counsel. Id. at 1921. This makes the Texas procedure indistinguishable from the procedure found to be unacceptable in Martinez. (4) Id. After Trevino, in a subsequent application for a writ of habeas corpus, as here, an applicant has the opportunity to have a federal court decide on the merits whether the initial habeas counsel was ineffective in the way that he handled a claim of ineffective assistance of trial counsel. Id. If the federal court determines that ineffective assistance of habeas counsel constitutes adequate cause for a procedural default of the underlying ineffective-assistance-of-trial-counsel claim, then the federal court may go on to consider the merits of that otherwise forfeited ineffective-assistance claim. Id. at 1917-18 (citing Coleman, 501 U.S. at 732). Because Texas state courts decline to hear these complaints, the federal courts will decide these ineffective-assistance claims in the first instance without state courts ever having had the opportunity to review them. See id. at 1919-20. Only time will tell whether Trevino is a landmark decision in Texas similar to Gideon's requirement that indigent defendants be appointed competent counsel. Gideon, 372 U.S. at 335. For now, Trevino's holding suggests that it will. It, for the first time, tells Texas inmates that they have the opportunity to challenge the effectiveness of habeas counsel with respect to the handling of an ineffective-assistance-of-trial-counsel claim. Trevino, 133 S. Ct. at 1921. That concept, until last month, was foreign to Texas. Trevino changes the landscape in Texas for all "substantial" claims that trial counsel was ineffective, whether a defendant was sentenced to probation, imprisonment, or death. Id. at 1920-21. Texas has now, in a significant number of cases, lost the ability to decide the important matter of the effectiveness of trial counsel in our state courts. That claim will now be addressed in large part by federal courts if Texas does not reassess its current procedures. At the very least, we should write an opinion explaining why the rules for subsequent applications must stay the same or change. But instead there is only the sound of crickets. III. The Future for Texas State Court Claims on Ineffective Assistance Option One: Do Nothing One option for this Court is to do nothing. This Court can leave Graves alone, even though current law makes its rationale seriously flawed. See Graves, 70 S.W.3d at 117-18. This Court can watch the federal courts decide ineffective-assistance-of-trial-counsel claims for all of Texas's state courts. This is a "You want it, you got it" point of view. For me, picking up my toys and going home has never been a good solution to a problem. I believe we should address this challenge head-on. At the very least, if this is the approach that this Court intends to take, then the litigants in Texas state courts should be able to cite to an opinion that explains that this is our approach so that they can plan accordingly. Option Two: Re-write the Texas Rules of Appellate Procedure Another option may be to reconsider the Texas Rules of Appellate Procedure to make litigation of ineffective-assistance claims a realistic option on direct appeal. Part of the rationale in Trevino was that "Texas procedure makes it 'virtually impossible for appellate counsel to adequately present an ineffective assistance [of trial counsel] claim' on direct review." Trevino, 133 S. Ct. at 1918. The Supreme Court observed that the time limits for motions for new trial make a transcript of the trial unavailable at the time when the motion must be filed, which makes it difficult, if not impossible, to review a transcript to determine whether trial counsel was ineffective. Id. Texas may be able to solve this issue with only a slight modification to our rules of appellate procedure. Rather than requiring a motion for new trial and notice of appeal within 30 days, perhaps these could be due in 90 days instead. The Texas rules of appellate procedure could require transcripts to be prepared within 60 days. This may not be as difficult as it might first appear in light of the computer age and real-time court reporting. The attorney appointed to represent a defendant in a direct appeal would have the benefit of the entire transcript in mounting his challenge to the effectiveness of trial counsel. This would make the Texas situation unlike the one in Martinez and, I believe, would restore the federal procedural-default rules that normally apply to state prisoners' habeas claims in federal court. Our Texas rules of appellate procedure are decades old and a re-examination of the time requirements may be in order. At the very least, this Court should form a committee to examine whether a revision of the Texas rules of appellate procedure would be appropriate and feasible to address the concerns of the Supreme Court outlined in Trevino. (5) Option Three: Permit Subsequent Writ on Ineffectiveness of Habeas Counsel Another possible option for Texas could be to modify Graves so that this Court may address the merits of a prisoner's challenge to the effectiveness of the initial habeas counsel as a means of excusing procedural default of ineffective-assistance-of-trial-counsel claims. In her motion for stay of execution and subsequent writ application, applicant contends that the Solicitor General of Texas, representing the State of Texas before the Supreme Court in Trevino, argued that this Court should have the opportunity to reevaluate its decisions disallowing subsequent applications for writs of habeas corpus like the one presented here. The Solicitor General has suggested that this Court could carve out its own equitable exception to the state-law bar on subsequent writs, as we have done in several previous cases, to permit consideration of these defaulted claims. See, e.g., Ex parte Medina, 361 S.W.3d 633, 642-43 (Tex. Crim. App. 2011) (per curiam) (holding that prior application was so defective that it did not constitute an application for Section 5 purposes); Ex parte Matamoros, No. WR-50,791-02, 2011 WL 6241295, 2011 Tex. Crim. App. Unpub. LEXIS 931 (Tex. Crim. App. Dec. 14, 2011) (per curiam) (permitting applicant to reopen defaulted claim); Ex parte Moreno, 245 S.W.3d 419, 420 (Tex. Crim. App. 2008) (same). Applicant quotes the Solicitor General's brief to the Supreme Court as stating, When the CCA issued its procedural-default ruling [in Trevino's case] in 2005, it had no reason to doubt the adequacy of the state-law ground supporting its denial of Trevino's habeas application. If this Court changes the rule now, equity demands at a minimum that the CCA have an opportunity to reevaluate its procedural ruling and adjudicate Trevino's Wiggins [v. Smith, 539 U.S. 510 (2003)] claim on the merits. Perhaps open to this invitation, the Supreme Court's opinion in Trevino states, "Given this holding, Texas submits that its courts should be permitted, in the first instance, to decide the merits of Trevino's ineffective-assistance-of-trial-counsel claim. We leave that matter to be determined on remand." Trevino, 133 S. Ct. at 1921. At the very least, we should address the concerns of the Texas Solicitor General that he argued to the Supreme Court. We should address whether Texas should create an equitable exception to the state-law bar on successive applications based on an allegation of ineffective assistance of state-habeas counsel, if that ineffectiveness resulted in procedural default of a substantial ineffective-assistance-of-trial-counsel claim. IV. Conclusion Texas has many choices. We can do nothing, alter the rules of appellate procedure, modify Graves and consider the merits of these types of claims in a subsequent writ, or take some other action that we determine to be appropriate under the circumstances. If we do not take action to address an inmate's right to have her ineffective-assistance-of-trial-counsel claim fully heard, Texas will relegate a substantial number of these claims to be decided by the federal courts rather than by our state courts. It will be a federal take-over. And this Court will stand by watching as it happens, doing nothing, and saying nothing. All that will be heard is the sound of crickets. For that reason, I must, most respectfully, very strongly dissent. Filed: June 24, 2013 Do Not Publish 1. In Trevino, the Supreme Court concluded that when a state's procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal, then the holding in Martinez v. Ryan applies. See Trevino v. Thaler, 569 U.S. ___, 133 S. Ct. 1911, 1921 (2013) (citing Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309, 1316 (2012) (holding that ineffective assistance of habeas counsel may serve to excuse procedural default of substantial claim of ineffective assistance of trial counsel)). 2. Applicant claims that the State violated her equal-protection rights by its use of peremptory strikes to exclude three of the four qualified non-white venire members. Applicant further asserts that trial counsel was ineffective for failure to object to the State's discriminatory use of peremptory strikes at trial, and that habeas counsel was ineffective for failure to raise this claim in her initial writ application. 3. As applicant notes in her application, the State of Texas's briefing in Trevino reflects that, when "faced with the choice of giving the federal courts sole jurisdiction to review the effectiveness of state habeas counsel--and de novo federal review of trial ineffectiveness claims when state habeas counsel was ineffective--the State of Texas has prioritized its interest in state court review ahead of its finality interest." Applicant further contends that, in the wake of Trevino, the State of Texas has filed a brief asking the federal district court to permit this Court to consider Trevino's ineffective-assistance claim in the first instance so that normal procedural-default rules would apply in federal court. On these bases, applicant concludes that "the State of Texas and the applicant agree that this Court can and should fashion a response to Trevino" that "reassesses whether the State's comity and federalism interests now outweigh a necessarily limited intrusion on the State's interest in finality." 4. In Martinez, the Supreme Court determined that a federal habeas court could find "cause" to excuse a defendant's procedural default in a federal petition for a writ of habeas corpus if (1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective counsel during the state collateral review proceeding"; (3) the state collateral review proceeding was the "initial" review proceeding with respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective-assistance-of-trial-counsel [claim] . . . be raised in an initial-review collateral proceeding." Trevino, 133 S. Ct. at 1917-18 (citing Martinez, 132 S. Ct. at 1316-18). Trevino pointed out that the first three circumstances in Martinez applied to Texas, and the fourth circumstance, which "on its face" did not seem to apply, also applied "as a matter of course." Trevino, 133 S. Ct. at 1921. 5. A revision of the Texas rules of appellate procedure would affect only future cases in which an appeal has not been filed and, therefore, would not be a solution for all cases. Also, I recognize that non-record-based complaints about trial counsel may be more difficult to ascertain within 60 days, and that extending the period of time may initially lengthen the appeals process. It may be, however, that even though the initial direct appeal may take longer, the case would become final sooner because the state and federal post-conviction processes would run more smoothly under operation of normal procedural-default rules. The viability of this option would require close examination and input from a group of stakeholders including trial judges, prosecutors, defense attorneys, court reporters, court clerks, and appellate judges.