EX PARTE HECTOR ROLANDO MEDINA, Applicant (Concurring)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS


NO. WR-75,835-01
EX PARTE HECTOR ROLANDO MEDINA, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE

NO. W07-32923-S(A) IN THE 282ND JUDICIAL DISTRICT COURT

OF DALLAS COUNTY

Price, J., filed a concurring statement in which Johnson and Cochran, JJ., joined.

CONCURRING OPINION

At considerable risk to his client, and apparently against his client's avowed wishes, counsel who was appointed to represent the applicant in this post-conviction application for writ of habeas corpus proceeding from a capital conviction and death sentence waited until the last possible date to file what essentially amounts to a so-called "skeletal" writ application. He did so advisedly. His admitted purpose was to provoke a dispute in the convicting court with respect to the level of specificity that is required before it may be said that a post-conviction application for writ of habeas corpus suffices to allege facts which, if true, would entitle the applicant to relief. The Court today maligns counsel for having thus "thrown his client under the bus." (1) Judge Keasler further accuses counsel of "gamesmanship" and "arrogance." (2) Given the magnitude of the risk to which counsel has knowingly subjected his client, it is difficult to quibble with these harsh characterizations.

Judge Keasler believes that the lack of specificity dictates that we deny the applicant's writ application for failing to allege facts which, if true, would entitle the applicant to relief. (3) This effectively leaves the applicant with nothing more to raise in federal habeas corpus proceedings than whatever federal constitutional issues were raised on direct appeal, supported only by whatever facts are already memorialized in the appellate record--in other words, precious little. The applicant would pay dearly for his habeas counsel's gambit. I find it intolerable that the applicant should be made to suffer for the miscalculation of habeas counsel by forfeiting entirely his state habeas forum--and perhaps, ultimately, his life.

Instead, the Court today sensibly declares that what counsel filed in this case does not constitute an initial application for writ of habeas corpus in contemplation of Ex parte Kerr. (4) Because no application was timely filed, this Court is authorized by Section 4A(b)(3) of Article 11.071 to appoint new counsel and start the timetable anew. (5) That is what the Court does today, and I join its order.

Judge Keasler worries that for the Court to adopt this solution in order to resolve the present dilemma will open the floodgates--that equal protection principles will compel us to permit the appointment of new counsel and new timetables for every capital writ application that fails to state facts with sufficient particularity, alleges claims only conclusorily, or presents nothing but non-cognizable claims. (6) I do not share this concern. Section 4A(b) of Article 11.071 grants this Court the discretion to extend the deadline for filing an untimely initial pleading, and to appoint new counsel, but it does not require us to do so. Not all capital habeas applicants who file patently inadequate initial pleadings and then let the deadline for filing run out will be similarly situated. Here, we have good reason to believe, from our knowledge of this case on direct appeal, (7) and from counsel's oral presentation when called to task before this Court, that there is definite substance behind the deliberate opacity of his present pleading. That is simply not the case for the general run of inadequate capital habeas pleadings that come before us. And it is worth remembering at this juncture that the convicting court, at least, regarded some unspecified portions of counsel's writ application to be sufficiently detailed to state cognizable claims-claims that may very well require further factual development. Under these circumstances, the Court would be derelict not to exercise its discretion to appoint new counsel to represent the applicant.

For these reasons, I join the Court's order.

 

FILED: October 12, 2011

PUBLISH

1. Court's Order, at 4.

2. Dissenting Statement of Keasler, J., at 1 & 3, respectively.

3. Id. at 4-5.

4. 64 S.W.3d 414 (Tex. Crim. App. 2002).

5. See Tex. Code Crim. Proc. art. 11.071, § 4A(b)(3) (when capital habeas counsel fails to file timely initial application for writ of habeas corpus, this Court "may . . . appoint new counsel to represent the applicant and establish a new filing date for the application, which may be not more than 270 days after the date the court appoints new counsel").

6. Dissenting Statement of Keasler, J., at 6.

7. Medina v. State, 2011 WL 378785 (Tex. Crim. App., No. AP-76,036, delivered January 12, 2011) (not designated for publication).