Ex parte HECTOR ROLANDO MEDINA, Applicant (Dissenting)

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-75,835

Ex parte HECTOR ROLANDO MEDINA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

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

DALLAS COUNTY

Keller, P.J., filed a dissenting opinion in which Hervey, J., joined.

For the reasons discussed in Judge Keasler's dissenting statement, I agree that we cannot treat the application in this case as a "non-application." (1) To those reasons, I would add another consideration: The Court's holding will wreak havoc with non-capital habeas applications under Article 11.07. (2)

Now that we have a form that must be filled out, a non-capital habeas applicant must specify at least one ground for relief and, for each ground, fill out a portion of the form that asks for supporting facts. (3) If a non-capital habeas applicant fails to fill out the supporting-fact section, then his application will be dismissed. But if the applicant does fill out the portion of the form that asks for supporting facts, but makes only conclusory statements, or in some other way fails to adequately plead facts, then we routinely deny the application. That is, a non-capital habeas application under Article 11.07 that looks like the application in this case results in a denial of relief rather than a dismissal.

The Court says that "dismissal is appropriate" for such applications because Article 11.07 has no time limits. But it does not explain why the presence or lack of time limits would have any bearing on the correct disposition of a habeas application, and it is not apparent to me why it would. If the Court is saying that such applications have, until now, been dismissed, it is patently incorrect. If it is saying that they will henceforth be dismissed, then it has already begun the process of torturing the law to fit its disposition of this case.

Most applications are written by pro se inmates. Some of the best applications are written by pro se inmates, but it frequently happens that we receive an application from a pro se inmate that fails to adequately plead facts. No doubt we have received thousands of them over the years. Now the Court has opened the floodgates for all of those applicants to claim that their earlier applications were non-applications because they were insufficiently pled, the result being that they get to file new applications. And, unless the Court's order means that all inadequate 11.07 applications are now to be dismissed, then for current and future non-capital habeas applicants, we will have to grade unmeritorious applications to decide whether the claim is invalid because of a pleading defect or, instead, because the facts pled simply do not give rise to a valid claim for relief. (4) Deciding whether an application is substantively unmeritorious or simply inadequately pled will not always be easy, and may sometimes lead to hair-splitting distinctions. Moreover, it is important to recognize that sometimes an applicant fails to plead sufficient facts because the facts are simply not on his side. It should not be a surprise that an applicant who has no valid basis for relief may find it difficult to plead one.

In the present case, the trial judge has found that some of applicant's claims sufficiently state grounds "upon which, if proven to be true, relief could be granted." The trial judge apparently believed the prudent course was to dismiss the application, however, because most of the claims were not adequately pled.

The trial judge should not have recommended a dismissal of the application. Instead, if any of applicant's claims were adequately pled and involved fact allegations that were disputed by the State, the trial judge should have designated the issues of fact to be resolved and the manner in which they would be resolved. (5) If no claims were adequately pled, then the trial judge should have so determined, requested proposed findings of fact from the parties, and filed findings of fact and conclusions of law. (6) Because the trial judge has not done either of these things, we should remand this case to him for further disposition.

I must take a moment to disagree with the assessments of Mr. Norris's conduct as "plac[ing] his own interests above his client's" (7) and "throwing his client under the bus." (8) Mr. Norris says that he acted in good faith in what he thought was his client's best interest. I would give him the benefit of the doubt. (9) Based on his years of experience with numerous death penalty habeas applications, (10) he believed that his approach would "maximize the probability" of a live hearing for his client. He further believed that obtaining a live hearing would increase the likelihood of obtaining relief. Mr. Norris tells us that he is familiar with the evidence, and he calls his approach "a legitimate tactical decision." The bottom line seems to be that he thinks his client will lose if he does not get a live hearing, so Mr. Norris has done what he can to obtain one. The fact that his plan failed to result in a live hearing does not mean it was conceived for his own benefit instead of his client's.

Finally, the Legislature could enact a law that confers upon this Court the discretion to order one of the remedies under Article 11.071, § 4A, when an attorney timely files a "skeletal" death-penalty application that does not contain any adequately pled claims. One reason that § 4A was enacted in the first place was to give the courts some leeway in dealing with untimely writ applications after a problem arose in a particular case. As with the original enactment of § 4A, such a statute could be made retroactive. But, under my view (and Judge Keasler's view), this Court is currently powerless to do anything if counsel timely files a death-penalty habeas application attacking his conviction or death sentence but fails to adequately plead any of the claims. (11)

I respectfully dissent.

Filed: October 12, 2011

Publish

1. See Judge Keasler's dissent, post.

2. Tex. Code Crim. Proc. art. 11.07.

3. See Tex. R. App. P. 73.1(c) ("The person making the application must provide all information required by the form. The application must specify all grounds for relief, and must set forth in summary fashion the facts supporting each ground.").

4. See Judge Keasler's dissent at 2.

5. Tex. Code Crim. Proc. art. 11.071, § 9.

6. Id., § 8(b), (c).

7. See Judge Keasler's dissent at 1.

8. See Court's order at 4.

9. Mr. Norris does not give this Court the benefit of the doubt. He says, "All of the state's arguments, not to say the obvious attitudes of judges in the trial courts and in this Court, are manifestly designed to preserve a system of adjudicating habeas corpus applications in summary fashion. Those arguments and attitudes disclose an unmistakable preference for denying a full and fair hearing..." Also, "Denying [applicant] the opportunity for such a hearing is plainly the goal of everyone who argues that he must include affidavits and legal briefing as a part of the initial habeas application..." He says also that we are "living in a dream world" if we think paper hearings are adequate.

10. Mr. Norris is listed in the Court's case management system as an attorney of record on at least two such cases in which relief was granted. Ex parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001); Ex parte Lim, No. AP-76,593 (Tex. Crim. App. June 29, 2011)(not designated for publication).

11. See Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002).