EX PARTE TAICHIN PREYOR v. << (2017)

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.