EX PARTE CLEVE FOSTER (dissenting)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-65,799-02
EX PARTE CLEVE FOSTER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. C-1-007519-0839040 FROM THE 
CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY 
Price, J., filed a dissenting statement in which Holcomb, J., joined.
DISSENTING STATEMENT

In this subsequent application for a writ of habeas corpus in a capital case, the applicant alleges that his trial counsel provided ineffective assistance of counsel in failing to obtain the assistance of a blood spatter expert to refute a critical component of the State's case against him. (1) Counsel representing the applicant in the current writ application (who is different than counsel who represented the applicant in his original writ application) have provided an affidavit from such an expert, and they argue that this affidavit constitutes newly available evidence that permits the applicant to raise this claim for the first time in a subsequent writ application under Article 11.071, Section 5(a)(1). (2) Alternatively, they argue that the blood spatter expert's affidavit should satisfy Section 5(a)(2) of Article 11.071, because no rational jury could have found the applicant guilty beyond a reasonable doubt had trial counsel presented evidence comparable to the current expert's affidavit. (3)

As for his claim under Section 5(a)(1), the applicant has failed to allege that his original writ counsel exercised reasonable diligence in failing to obtain a blood spatter expert for purposes of alleging ineffective assistance of trial counsel in the original writ application. With respect to his claim under Section 5(a)(2), while the applicant now alleges facts that might well have justified a rational jury in acquitting him, those facts do not establish that no rational jury could have convicted him. In short, he does not satisfy the statutory criteria for a subsequent writ application--at least as those provisions are currently construed by this Court.

On the contingency that we should find his allegations insufficient to satisfy the statutory criteria, the applicant also alleges that his original state habeas counsel was ineffective in failing himself to obtain a blood spatter expert to raise and substantiate a claim of ineffective assistance of trial counsel, just as subsequent writ counsel has now done. He acknowledges that in order to grant him any kind of relief on that basis in a subsequent writ application, this Court would have to overrule its prior opinion in Ex parte Graves. (4) I dissented in Graves. (5) Since it was decided, I have generally bowed to its holding under stare decisis. In light of the recent dismissal of all charges against--in essence, the exoneration of--Anthony Graves, (6) however, I am no longer content to do so. It is simply intolerable to refuse to entertain a claim from an arguably innocent applicant, raised in a subsequent writ application, simply because he was unlucky enough to draw initial writ counsel of questionable competence. I remain unpersuaded by the argument that to recognize ineffectiveness of original habeas counsel would open the floodgates to an endless flow of subsequent writ applications, since "once competent counsel is appointed to competently investigate and present the factual and legal claims available to the applicant, no subsequent application could or would be reviewed for ineffective assistance of habeas counsel." (7) I would stay the applicant's execution in this cause and file and set it to examine two questions: First, whether we should regard a colorable claim of ineffective assistance of original habeas counsel as a newly available fact for purposes of Section 5(a)(1) and (e); (8) or, failing that, whether we should recognize a claim of ineffective assistance of original habeas counsel as, at least, a non-statutory gateway for raising discrete constitutional claims that would otherwise be barred under Article 11.071, Section 5. Because the Court refuses to entertain this option, I respectfully dissent.

Delivered: December 30, 2010

Do Not Publish

1. I am inclined to agree with the applicant, at least on the basis of his pleading, that his trial counsel provided ineffective assistance of counsel in this regard.

2. Tex. Code Crim. Proc. art. 11.071, 5(a)(1).

3. Id. 5(a)(2).

4. 70 S.W.3d 103 (Tex. Crim. App. 2002).

5. Id. at 118-25.

6. See Pamela Colloff, Free at Last, Texas Monthly November 2010 ("At the recommendation of the Burleson County district attorney's office, state district judge Reva Towslee-Corbett signed a motion that stated, simply, 'We have found no credible evidence which inculpates [Graves].' In other words, all capital murder charges were dropped. * * * Burleson County district attorney Bill Parham . . . was clear that this was not a matter of having insufficient evidence to take to trial; charges were not dropped because too many witnesses had died over the years or because the evidence had become degraded. 'There's not a single thing that says Anthony Graves was involved in this case,' he said. 'There is nothing.'"); Pamela Colloff, Innocence Found, Texas Monthly January 2011 ("Burleson County district attorney Bill Parham told reporters at a hastily organized press conference that he was 'absolutely convinced' of Graves's innocence. * * * When [special prosecutor Kelly] Siegler's turn came to address reporters, she placed the blame for Graves's wrongful conviction squarely on former DA Charles Sebasta. 'It's a prosecutor's responsibility to never fabricate evidence or manipulate witnesses or take advantage of victims,' she said. 'And unfortunately, what happened in this case is all of those things.' Graves's trial, she said, had been 'a travesty.'").

7. Ex parte Graves, supra, at 121 (Price, J., dissenting).

8. See Id. at 121 (Price, J., dissenting) ("The majority also claims that if the legislature had intended ineffective assistance of writ counsel to be an exception to the section five bar on subsequent applications, it could have said so. It did. Section five includes an exception to the bar if the factual basis of the claim was not available when the initial application was due. A factual claim was not available if it was not ascertainable through the reasonable exercise of diligence on or before the date the initial application was due. Article 11.071, 5(a)(1) & (e).").