EX PARTE MUHAMMAD v. << (2024)

This is a subsequent post-conviction application for writ of habeas corpus, brought under Article 11.071, Section 5, of the Texas Code of Criminal Procedure, challenging Applicant's death sentence as unconstitutional because he was allegedly intellectually disabled at the time of the commission of his offense. Tex. Code Crim. Proc. art. 11.071 § 5; Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The clerk of the convicting court duly forwarded the subsequent writ application to this Court, as required by Section 5(b) of the statute. The convicting court is expressly forbidden to take any action on the subsequent writ application unless and until this Court—itself—“issues an order finding that the requirements” of Article 11.071, Section 5(a), “have been satisfied.” Tex. Code Crim. Proc. Art. 11.071 § 5(c).

By unpublished order today, however, the Court nevertheless purports to remand the application to the convicting court to develop a record and make a recommendation whether this Court should conclude that Applicant has satisfied the gateway criteria for pursuing a subsequent capital writ application, under Section 5(a) of Article 11.071. Court's Order at 3. It is—at the very least—highly questionable that this Court is authorized to remand a subsequent capital writ application for fact development in the trial court, given the unambiguous, unequivocal dictate of Section 5(c). And then, it might also signal a devil-may-care attitude with respect to the requirements of the law that we should never abide.

The statute seems to contemplate that a subsequent capital writ applicant must allege facts sufficient to satisfy the threshold criteria to proceed, under Section 5(a) of the statute. One would think that if fact development were necessary, then that means the pleading is, on its face, deficient. And, in that event, the subsequent writ application should simply be dismissed as abusive, under Section 5(c).

Indeed, that is how I would now dispose of this subsequent writ application. As far as I am concerned—though I will elaborate on my reasoning only if and when the Court should ultimately grant Applicant Atkins relief after remand—Applicant has stated facts that satisfy neither Section 5(a)(1), nor Section 5(a)(3), of Article 11.071. There is no reason he could not have raised Atkins in his initial writ application (if not at trial and on appeal) (Section 5(a)(1)), and he does not now allege facts sufficient to satisfy the threshold showing, by clear and convincing evidence, that no jury would fail to find he was intellectually disabled at the time of his offense (Section 5(a)(3)), under Ex parte Blue, 230 S.W.3d 151, 163 (Tex. Crim. App. 2007).

But that is not all. In its remand order today, the Court also directs the convicting court, should it happen to recommend that we find that Applicant has satisfied the Section 5(a) criteria, to “additionally make findings of fact, conclusions of law, and a recommendation as to the merits of the [Atkins] claim.” Court's Order at 3. This directive blatantly ignores the plain, unequivocal legislative mandate of Section 5(c), that convicting courts “may not take further action on the application before the court of criminal appeals issues an order finding that the requirements [of Section 5(a)] have been satisfied.” Tex. Code Crim. Proc. art. 11.071 § 5(c) (emphasis added). Rather than issue the required order, the Court today abdicates its legislatively assigned responsibility of determining whether the threshold criteria have been met to the convicting court, contrary to the plain prohibition embodied in the statute.

It is true that the Court has done this before. E.g., Ex parte Lave, Nos. WR-44,564-03, WR-44,564-04, 2013 WL 1449749, at *1 (Tex. Crim. App. 2013) (order, not designated for publication). But having now observed how this procedure is in clear conflict with the plain language of the statute, I dissent to the Court's continued disregard for its mandate.