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Ex parte Preyor

Court of Criminal Appeals of Texas

July 24, 2017

EX PARTE TAICHIN PREYOR, Applicant

         ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS AND MOTION TO STAY THE EXECUTION IN CAUSE NO. 2004CR3602-W4 IN THE 290TH JUDICIAL DISTRICT COURT BEXAR COUNTY

          Newell, J., filed a concurring opinion in which Hervey and Richardson, JJ., joined. Alcala, J., filed a dissenting opinion. Yeary, J., not participating.

          ORDER

          Per curiam

         We have before us a post-conviction application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5 and a motion to stay applicant's execution.

         In March 2005, a jury convicted applicant of the offense of capital murder for murdering a person in the course of committing or attempting to commit burglary. Tex. Penal Code § 19.03(a)(2). The offense was committed in February 2004. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Preyor v. State, No. AP-75, 119 (Tex. Crim. App. Jan. 23, 2008)(not designated for publication). On November 29, 2007, applicant filed in the trial court his initial post-conviction application for a writ of habeas corpus in which he raised eleven claims. His first subsequent writ application was filed in the trial court December 1, 2008. This Court denied applicant relief on the claims raised in his initial writ application and dismissed his first subsequent application. Ex parte Preyor, Nos. WR-72, 660-01 and WR-72, 660-02 (Tex. Crim. App. Oct. 28, 2009)(not designated for publication). On December 21, 2009, applicant filed in the convicting court his second subsequent application. This Court also dismissed that application. Ex parte Preyor, No. WR-72, 660-03 (Tex. Crim. App. Nov. 9, 2011)(not designated for publication).

         On July 18, 2017, applicant filed in the trial court his third subsequent application. In this application, applicant asserts that his trial counsel provided ineffective assistance of counsel because they failed to provide the robust mitigation investigation required by Wiggins v. Smith, 539 U.S. 510 (2003).

         After reviewing applicant's writ application, we find that he has failed to satisfy the requirements of Article 11.071 § 5. Accordingly, we dismiss his writ application without reviewing the merits of his claims, and we deny his motion to stay his execution.

         IT IS SO ORDERED.

          Newell, J., filed a concurring opinion in which Hervey and Richardson, JJ., joined.

         I join the Court's order dismissing Applicant's third subsequent writ. I write separately to note that Applicant is not arguing that this is actually his first state-court writ because his initial state-court writ counsel did not file a proper "application." See Ex parte Medina, 361 S.W.3d 633, 641 (Tex. Crim. App. 2011). State habeas counsel filed a proper application that alleged specific facts supporting that application. At the evidentiary hearing, it was Applicant who instructed writ counsel not to present any testimony. See Preyor v. Stephens, 537 Fed.Appx. 412, 418 (5th Cir. July 25, 2013) (not designated for publication)(noting that Applicant testified under oath that he no longer wished to pursue his initial writ and wanted instead to pursue the writ prepared by retained writ counsel). This was not a "Machiavellian strategy" designed by habeas counsel to thwart the proper statutory procedure for filing a death penalty writ. Medina, 361 S.W.3d at 643. This was Applicant's choice. Even if Applicant had made the argument that he is entitled to file this third subsequent writ application as his first, Ex parte Medina would not justify that holding.

         Instead, Applicant argues that this application is a subsequent writ application but it should not be dismissed as subsequent because state habeas counsel's failure to raise his current claim in the initial writ amounted to ineffective assistance of habeas counsel. Applicant acknowledges that this Court's decision in Ex parte Graves would preclude such a holding. See Ex parte Graves, 70 S.W.3d 103, 111 (Tex. Crim. App. 2002)(holding that a habeas applicant cannot claim constitutionally ineffective assistance of counsel in a post-conviction habeas corpus proceeding because there is no constitutional right to appointment of counsel in a post-conviction habeas corpus proceeding). Nevertheless, Applicant argues that we should overrule Graves in light of the United States Supreme Court holdings in Martinez v. Ryan and Trevino v. Thaler.

         Recently, the United States Supreme Court made clear that the Martinez-Trevino exception to state procedural default in federal habeas corpus cases is a federal equitable exception not a constitutional mandate applied to the states. Davila v. Davis, __U.S.__, 137 S.Ct. 2058 (June 26, 2017). There, the United States Supreme Court reiterated not only that there is no constitutional right to counsel in state post-conviction proceedings, but also that Martinez v. Ryan did not recognize one. Id. at 2065 ("It follows, then, that in proceedings for which the Constitution does not guarantee the existence of counsel at all, attorney error cannot provide cause to excuse a default."). Faced with the opportunity to expand the Martinez-Trevino exception to claims beyond those involving ineffective assistance of trial counsel, the Court declined the invitation. Id. at 2066.

         Indeed, courts have uniformly recognized that the Martinez-Trevino rule is a federal exception not a constitutional command to correct state court habeas proceedings. More specifically, courts have held that Martinez does not provide a basis for state courts to excuse petitioners from compliance with state procedural rules. See e.g., State v. Sabin, No. 2 CA-CR 2014-0014-PR, 2014 WL 2657526, at *2 (Ariz.Ct.App. June 12, 2014) (not designated for publication); Adkins v. State, 469 S.W.3d 790, 795 (Ark. 2015); Bunting v. State, 113 A.3d 1080 (Del. 2015); Kormondy v. State, 154 So.3d 341, 354 (Fla. 2015); Ah Sing v. State, 318 P.3d 621 (Haw. Ct. App. 2014) (unpublished table decision); Schultz v. State, 362 P.3d 561, 565 (Idaho Ct. App. 2015); People v. Sutherland, 994 N.E.2d 185, 191-92 (Ill.App.Ct. 2013); Holt v. State, 364 P.3d 579 (Kan.Ct.App. 2016); Shane v. Commonwealth, No. 2012-CA-000914-MR, 2013 WL 6198353, at *5 (Ky. Ct. App. Nov. 27, 2013) (not designated for publication); State v. McBroom, 142 So.3d 59, 60 (La. Ct. App. 2014); Evans v. State, 868 N.W.2d 227, 230 (Minn. 2015); Salter v. State, 184 So.3d 944, 950 (Miss. Ct. App. 2015); Mason v. State, 488 S.W.3d 135, 142 (Mo.Ct.App. 2016); Sanchez v. State, 285 P.3d 540, 544 (Mont. 2012); State v. Hessler, 850 N.W.2d 777, 786 (Neb. 2014); Brown v. McDaniel, 331 P.3d 867, 871 (Nev. 2014); Lehman v. State, 847 N.W.2d 119, 125-26 (N.D. 2014); State v. Taylor, No. 102020, 2015 WL 1511036, at *3 (Ohio Ct. App. April 2, 2015) (not designated for publication); Cunningham v. Premo, 373 P.3d 1167, 1177-78 (Or. Ct. App. 2016); Commonwealth v. Merritt, No. 2085 EDA 2014, 2015 WL 7194410, at *2 (Pa. Super. Ct. May 28, 2015) (not designated for publication); Kelly v. State, 745 S.E.2d 377, 377-78 (S.C. 2013); Niles v. State, No. M2014-00147-CCA-R3-PC, 2015 WL 3453946, at *7 (Tenn. Crim. App. June 1, 2015) (not designated for publication). If Martinez had been intended to correct state procedures, the United States Supreme Court would not have allowed Arizona to continue following the very state court procedures at issue in Martinez. See Arizona v. Escareno-Meraz, 307 P.3d 1013, 1014 (Ariz.Ct.App. 2013) ("Thus, Martinez does not alter established Arizona law."), cert. denied, 134 S.Ct. 1943 (2014).

         Applicant makes a number of claims regarding the representation by his retained federal writ counsel, particularly regarding her involvement in the state habeas proceedings. Yet, for Applicant to prevail, he must not only show the deficient conduct of writ counsel, he must also demonstrate prejudice by showing a reasonable probability that his claim regarding trial counsel would be meritorious. Strickland v. Washington, 466 U.S. 668, 694 (1984) (noting that the test for prejudice requires a showing that there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different); see also Martinez, 566 U.S. at 14 (holding that a prisoner may establish cause for a default for an ineffective assistance claim when the prisoner can establish that appointed counsel on the initial-review collateral proceeding was ineffective under the standards of Strickland v. Washington). Trial counsel in this case filed a credible affidavit not only disputing claims that he conducted a cursory investigation, but also explaining that he repeatedly sought information regarding physical and sexual abuse of the Applicant. Neither Applicant nor his family or friends indicated such evidence existed. See Ex parte Martinez, 195 S.W.3d 713, 729 (Tex. Crim. App. 2006) (holding that trial counsel's decision not to further pursue an investigation into the defendant's background was reasonable given the lack of cooperation he received from the defendant and the defendant's family). Even applying the Martinez-Trevino exception here, Applicant has not shown a reasonable probability that he would have been entitled to relief.

         Nevertheless, the United States Supreme Court has indicated that these types claims can be litigated in federal court. The Court may, at some future date, constitutionalize the holdings of Martinez and Trevino and proclaim that the Sixth Amendment requires the appointment of counsel in a post-conviction habeas proceeding. Perhaps this is the case where they will do so given the involvement of federal writ counsel in the state habeas proceedings. But it is up to the United States Supreme Court to overrule its precedent, not this Court. Bosse v. Oklahoma, __U.S.__, 137 S.Ct. 1, 2 (2016) (holding that it is the United States Supreme Court's prerogative alone to overrule one of its precedents). Consequently, I agree with the Court's application of current law to the facts of this case, and I join the Court's order dismissing Applicant's subsequent writ application and denying his motion to stay the execution.

         DISSENTING OPINION

          Alcala, J.

         Taichin Preyor, applicant, is scheduled to be executed for capital murder later this week, and he has filed a motion to stay his execution. I would grant his motion for two reasons. First, I would file and set this case to determine whether this Court should overrule the portion of Ex parte Graves that disallows review of claims of ineffective assistance of trial counsel that are raised in a subsequent writ application, including when those claims were not presented due to ineffective assistance of the initial habeas counsel. See 70 S.W.3d 103, 117 (Tex. Crim. App. 2002). Second, assuming that this Court would overrule Graves, I would then remand this case to the habeas court for it to assess the credibility of applicant's newly raised mitigation evidence that asserts that he was the victim of extreme physical and sexual abuse as a child-evidence that was never heard by the jury during the punishment phase of his trial. Although the instant habeas application has been designated by this Court as the fourth habeas application ("-04") filed by applicant, it is actually the first one effectively challenging his death sentence for capital murder under Article 11.071. See Tex. Code Crim. Proc. art. 11.071. Due to procedural anomalies in this case, none of applicant's three prior habeas applications identified as the -01, -02 and -03 applications, which this Court either denied on the merits or dismissed as procedurally barred subsequent habeas applications, effectively challenged his death sentence for capital murder. See Ex parte Preyor, No. WR-72, 660-01 & WR-72, 660-02, 2009 WL 3474097, at *1 (Tex. Crim. App. Oct. 28, 2009) (per curiam); Ex parte Preyor, No. WR-72, 660-03, 2011 WL 5438390, at *1 (Tex. Crim. App. Nov. 9, 2011) (per curiam). The instant -04 habeas application presents the first and only real opportunity for this Court to address applicant's substantial claim for which he has made a prima facie case that trial counsel was ineffective by failing to investigate and present mitigation evidence that would have significantly altered the sentencing profile before the jury. Thus, I would remand this case to the habeas court for an evidentiary hearing and for findings of fact and conclusions of law on the merits of the allegations of ineffective assistance of counsel as to the failure to conduct an adequate investigation for mitigation evidence. I, therefore, respectfully dissent from this Court's order denying applicant's motion to stay his execution and dismissing the instant habeas application.

         I. This Court Should Not Dismiss Applicant's Instant Habeas Application but Should Instead Consider Its Substance

         This Court's order holds that the instant -04 habeas application is procedurally barred because it is a subsequent application under Section Five of Article 11.071. See Tex. Code Crim. Proc. art. 11.071, § 5. The instant application asserts that trial counsel was ineffective for failing to conduct a reasonable investigation for mitigating evidence that would have significantly changed the sentencing profile shown to the jury and that applicant is accordingly entitled to a new trial on punishment. See Wiggins v. Smith, 539 U.S. 510, 533 (2003). The application further asserts that, although this claim is raised in a subsequent habeas application, the claim is nevertheless entitled to consideration on its merits because it was forfeited as a result of ineffective assistance by initial habeas counsel, who failed to timely present the claim to this Court in the -01 application. This Court, however, has held in Ex parte Graves that a claim of ineffective assistance of habeas counsel cannot serve to overcome the bar on subsequent writs in Section Five of Article 11.071. See Graves, 70 S.W.3d at 117. For the four reasons discussed below, I conclude that applicant should be permitted to have an evidentiary hearing on remand to address the merits of his complaint that substantial mitigating evidence warranting a sentence of life rather than death exists and that his trial attorney was ineffective for failing to discover and present that evidence. First, a portion of Graves was wrongly decided, and it should be overruled to permit litigation of a claim that trial counsel rendered ineffective assistance of counsel and that habeas counsel was ineffective in failing to present that claim in the initial habeas application. Second, this record plainly shows that initial habeas counsel performed ineffectively during applicant's -01 writ proceeding by abandoning applicant at the live hearing on the initial habeas application. Third, the subsequent -02 and -03 habeas applications are inconsequential in this case because they cannot be a proper basis for applying a procedural bar against a properly filed subsequent habeas application due to the fact that they were filed by a foreign attorney, who had no permission to practice law before this Court and who had not obtained applicant's informed consent to file on his behalf as a non-lawyer. Fourth, applicant has now made a prima facie case of ineffective assistance of trial counsel in the punishment phase of trial due to counsel's failure to investigate and present evidence of severe physical and sexual abuse of applicant by his relatives during his childhood. Given these four circumstances, I would remand this case to the habeas court for a live hearing to fully test the quality of the evidence presented in the instant habeas application.

         A. Graves Was Wrongly Decided and Should Be Overruled

         The time is overdue for this Court to overrule Graves, in which this Court held that a claim of ineffective assistance of prior habeas counsel is not cognizable in a capital habeas proceeding and may not serve as a basis to overcome procedural default so as to permit consideration of a claim raised in a subsequent writ. See Graves, 70 S.W.3d at 117-18. I would instead hold that, when an applicant can demonstrate that initial habeas counsel's performance fell below the minimum standards for representation set forth in Article 11.071, and when an applicant can demonstrate that, as a result of counsel's incompetence, a substantial claim for relief was forfeited, this Court may properly exercise its habeas jurisdiction to consider the merits of the underlying claim.

         The pertinent statutory language set forth by the Legislature supports my view that this Court must overrule a portion of Graves. Reading Sections 2(a) and 3(a) of Article 11.071 of the Code of Criminal Procedure in conjunction, those sections suggest that appointed counsel in an Article 11.071 proceeding must demonstrate a minimum level of competence in his representation of an applicant and in his investigation of any factual or legal bases for relief. See Tex. Code Crim. Proc. art. 11.071, §§ 2(a), 3(a). Section 2(a) provides that "[a]n applicant shall be represented by competent counsel unless the applicant has elected to proceed pro se and the convicting trial court finds, after a hearing on the record, that the applicant's election is intelligent and voluntary." Id. § 2(a). Section 3(a) provides that, "On appointment, counsel shall investigate expeditiously, before and after the appellate record is filed in the court of criminal appeals, the factual and legal grounds for the filing of an application for a writ of habeas corpus." See id. § 3(a). Thus, the statute's phrasing that an applicant be "represented" by competent counsel who "shall investigate expeditiously" the factual and legal grounds for habeas relief suggests that an applicant's entitlement to competent counsel extends throughout the course of representation rather than merely providing for appointment of counsel who is "competent" at the time of appointment, as this Court held in Graves, 70 S.W.3d at 114. Graves's determination that Article 11.071's reference to "competent" counsel "concern[s] the initial appointment of counsel and continuity of representation rather than the final product of representation" mistakenly ignores the statutory language that refers to counsel's competence during the totality of his representation of a habeas applicant. Id. In light of these two statutory requirements in Article 11.071, I would hold that an applicant for habeas corpus relief under Article 11.071 is statutorily entitled to, at a minimum, competent representation by appointed habeas counsel throughout the duration of the initial writ proceeding. See Tex. Code Crim. Proc. art. 11.071, §§ 2(a), 3(a).

         Not only does the language in Article 11.071 plainly require competent representation by appointed habeas counsel, but this Court has observed that the statute's legislative purpose was to provide capital habeas litigants "one full and fair opportunity to present all [] claims in a single, comprehensive post-conviction writ of habeas corpus[.]" Graves, 70 S.W.3d at 117. An applicant whose initial habeas counsel rendered ineffective assistance by failing to present a substantial claim for relief that could affect either the guilt or punishment outcome in a death penalty case has been deprived of his one full and fair opportunity to present all of his constitutional claims. This Court's holding in Graves precluding consideration of claims forfeited due to ineffective habeas counsel conflicts with the underlying purpose of Article 11.071 to ensure competent representation for capital habeas litigants so that all of their claims may be fully and fairly litigated in a single habeas proceeding.

         Despite the plain statutory language and consideration of the purpose of the statute in favor of requiring competent representation by initial habeas counsel, this Court in Graves mistakenly concluded that a capital habeas applicant was not entitled to competent representation by relying on the general principle that a habeas applicant has no broad federal constitutional right to effective assistance of habeas counsel. See Graves, 70 S.W.3d at 116. In Graves, this Court stated, "If the federal constitution and federal statutes bar any claim of ineffective assistance of counsel on a writ of habeas corpus in federal courts, we cannot conclude that this same federal constitution requires Texas courts to recognize such a claim under state law." Id. This Court's analysis, however, mistakenly overlooked the fact that, although the federal Constitution may not compel competent representation, Article 11.071 might do so. And so, while it is true that the Supreme Court has never held that a habeas applicant is constitutionally entitled to competent representation in a post-conviction proceeding, [1] the lack of a federal constitutional right is immaterial in light of the fact that the Texas Legislature has expressly created a statutory right to competent representation by habeas counsel in death penalty cases under Article 11.071. See Tex. Code Crim. Proc. art. 11.071, §§ 2(a), 3(a). The absence of a federal constitutional right to effective habeas counsel cannot be a rational basis for deciding that the Texas Legislature has not created that state right in Article 11.071 to ensure competent representation on habeas review for capital murder defendants who are sentenced to death.

         I further conclude that this Court's analysis in Graves was flawed in that it improperly conflated procedure with substance by holding that a violation of Article 11.071 was not cognizable in a capital habeas proceeding because it was a mere statutory violation rather than a violation of a constitutional right. See Graves, 70 S.W.3d at 116-17. While it is true that an Article 11.071 violation is statutory and may not itself be a proper basis for habeas relief from a conviction or sentence, it is not true that such a violation is inconsequential for purposes of deciding whether a procedural bar will be erected to preclude review of a substantive constitutional violation that is a proper basis for habeas relief, such as ineffective assistance of trial counsel, as here. In Graves, this Court held that statutory violations of Article 11.071 "simply are not cognizable" because habeas is reserved for constitutional or jurisdictional claims. See id. (holding that claim of violation of Article 11.071 was "not [ ] constitutional, " but rather was "based solely upon an alleged violation of the habeas statute itself, " and thus it was not cognizable). I disagree with that analysis because the substantive relief comes from the federal constitutional violation premised on ineffective assistance of trial counsel, and the Article 11.071 violation is merely the procedural vehicle by which to reach the ...


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