EX PARTE DANIEL VILLEGAS, Applicant (Concurring)
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-78,260-01 EX PARTE DANIEL VILLEGAS, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. 76187 FROM THE 41ST DISTRICT COURT OF EL PASO COUNTY P RICE, J., filed a concurring opinion. CONCURRING OPINION It has sometimes been said that we recognize[] two types of innocence claims. 1 One is the bare claim of innocence, which we recognized to be a due-process-based claim in Elizondo.2 The other is the so-called Schlup actual innocence claim, which we have identified as being based upon the opinion of the United States Supreme Court in Schlup v. 1 Ex parte Brown, 205 S.W.3d 538, 544 (Tex. Crim. App. 2006). 2 Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). VILLEGAS 2 Delo3 a decision with respect to federal procedure that has no bearing on state habeas proceedings, except to the extent that our statutory abuse-of-the-writ provisions were patterned after it.4 The United States Supreme Court does not (at least not yet, assuming it ever will) recognize that bare-innocence claims implicate due process,5 and so there is no federal analog to our holding in Elizondo. But in Schlup the Supreme Court declared that a showing of actual innocence may operate as a gateway to federal review of the merits of other federal constitutional claims under circumstances in which those constitutional claims would otherwise be procedurally barred.6 Our analog gateways are contained in Article 11.07, Section 4(a)(2), and Article 11.071, Section 5(a)(2).7 They are creatures of statute, not binding Supreme Court case law. For this Court to continue to recognize so-called Schlup innocence claims does a disservice to the bench and bar and engenders the kind of misunderstanding that the convicting court exhibited in this case. The truth of the matter is that there is really no such thing as a Schlup actual innocence claim in Texas. We have a statutory gateway 3 513 U.S. 298 (1995). 4 See Ex parte Blue, 230 S.W.3d 151, 158, 160 (Tex. Crim. App. 2007). 5 Id. at 158 (citing, e.g., Herrera v. Collins, 506 U.S. 390, 417-19 (1993)). 6 Schlup, 513 U.S. at 326-27. 7 TEX . CODE CRIM . PROC. arts. 11.07 § 4(a)(2), 11.071 § 5(a)(2). VILLEGAS 3 mechanism that works much like the court-made federal gateway. But it is just that a statutory gateway to reaching other federal constitutional claims (including, ironically, a bare actual-innocence claim under Elizondo) that would otherwise be unavailable to a habeas applicant under our now-codified abuse-of-the-writ provisions. It is not required by Schlup. It is not even an actual-innocence claim in its own right. It merely operates as a mechanism to permit consideration of other constitutional claims that would otherwise be procedurally barred because raised for the first time in a subsequent writ application. Here the applicant raised both his claim of ineffective assistance of counsel and his Elizondo actual-innocence claim in this initial writ application. There is no procedural bar to our proceeding directly to the merits of both claims. The abuse-of-the-writ provision in Article 11.07, Section 4, is not triggered, so there is no reason for anyone to invoke the exception that is embodied in the gateway provision in Section 4(a)(2). And there is certainly no occasion to mention Schlup.8 We should quit doing so. With these remarks, I concur in the Court s judgment. Delivered: Publish December 18, 2013 8 In its opinion today, the Court says that [b]ecause Applicant s ineffective assistance of counsel claims are not procedurally barred as subsequent, a Schlup innocence claim dependent on them is improper. Majority Opinion at 2. This sentence implies that there would ever be a proper context in which to assert a Schlup innocence claim. Better to say that there is no such thing as a Schlup innocence claim in Texas, and that our own statutory gateway provision is not triggered in this case, the applicant having raised his constitutional claims (including his Elizondo actualinnocence claim) in an initial writ application.
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