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Court of Criminal Appeals of Texas.

Ex parte MABRY J. LANDOR, III Applicant

NO. WR-81,579-01

Decided: November 02, 2016

KELLER, P.J., filed a concurring opinion in which KEASLER and HERVEY, JJ., joined.

I write separately to explain why I agree with denying applicant's ineffective assistance claims on the ground that they were raised and rejected on direct appeal. Relying upon Ex parte Torres,1 Judge Alcala's concurrence says that applicant's ineffective assistance claims should be resolved on the merits in this habeas proceeding because applicant has presented new evidence of counsel's deficient performance that was not available on direct appeal.

Since Ex parte Torres, this Court has, a number of times, entertained ineffective assistance claims on habeas that were previously raised on direct appeal when new evidence material to resolving the claims has been offered.2 Although applicant in the present case has offered new evidence on whether counsel was deficient, he has not offered new evidence regarding the issue of prejudice, and on direct appeal, this Court resolved the issue of prejudice against him.3

Moreover, the bar against litigating claims that were raised and rejected on direct appeal is not so much a procedural barrier as it is simply an application of the rule of “law of the case.” Issues that have previously been litigated on appeal generally need not be litigated again in the habeas forum absent new law or new facts.4 The issue of prejudice was resolved against applicant on direct appeal, and no new law or facts relevant to that issue are before the Court. The issue need not be litigated again.

With these comments, I join the Court's opinion.


1.   943 S.W.2d 469 (Tex. Crim. App. 1997).

2.   See e.g., Ex parte Bryant, 448 S.W.3d 29, 34-35 & n.7 (Tex. Crim. App. 2014); Ex parte Ramirez, No. WR-78,289-01, 2012 Tex. Crim. App. Unpub. LEXIS 865, *1-2 (Tex. Crim. App. September 12, 2012) (not designated for publication); Ex parte Peace, Nos. WR-73,808-01 and WR-73,808-02, 2010 Tex. Crim. App. Unpub. LEXIS 593, *2 (Tex. Crim. App. October 6, 2010) (not designated for publication).

3.   See Landor v. State, No. AP-76,328, 2011 Tex. Crim. App. Unpub. LEXIS 492, *61 (Tex. Crim. App. June 29, 2011) (not designated for publication).

4.   See Ex parte Acosta, 672 S.W.2d 470, 472 (Tex. Crim. App. 1984) (“We need not address applicant's second contention inasmuch as the same issue was raised and addressed by the Fourth Court of Appeals on applicant's direct appeal.”); Ex parte Drake, 883 S.W.2d 213, (Tex. Crim. App. 1994) (“Although habeas corpus should generally not be used to re-litigate matters which were addressed on appeal, a previously litigated issue is subject to collateral attack where our prior judgment is subsequently rendered void or where we have decided to apply relief retroactively after a subsequent change in the law.”) (citation omitted); Torres, 943 S.W.2d at 475 (“Generally, a claim which was previously raised and rejected on direct appeal is not cognizable on habeas corpus. However, this doctrine should not be applied where direct appeal cannot be expected to provide an adequate record to evaluate the claim in question, and the claim might be substantiated through additional evidence gathering in a habeas corpus proceeding.”).

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