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Court of Criminal Appeals of Texas.


NOS. WR-27,328-03

Decided: November 09, 2016


Because this Court's majority opinion does through the back door what it should be considering from the front door, I respectfully dissent. Today, this Court's majority opinion dismisses this application filed by Rolando Ruiz, applicant, on the procedural basis that it is a subsequent habeas application. Despite its length, this Court's majority opinion is not an actual analysis of the substantive merits of applicant's arguments, but it is instead an explanation for its decision to place a barrier to prevent this application from even entering the front door of the courthouse for consideration of its merits. Oddly, this Court's majority opinion appears to substantively analyze the merits of applicant's arguments to explain why this Court will not permit applicant through the front door when instead it would be more appropriate to let this applicant into the courthouse through the front door and consider his arguments on the merits after he has been permitted entry. This Court's rationale for dismissing this application on this procedural basis appears to be that the applicant's arguments were considered and rejected by a federal district court judge. But I cannot agree with this Court's majority opinion that the judgment of a single federal district court judge should replace the judgment of the state trial-court judge who sentenced applicant to death or of this Court that is the entity ultimately responsible for state habeas litigation of death-penalty cases under the Texas Constitution. Because no state court has ever addressed the actual merits of applicant's complaints, I would file and set this case so that the state trial-court judge who sentenced applicant to death and this Court may fully address the substantive legal questions raised by this application. I, therefore, respectfully dissent from this Court's judgment that dismisses this habeas application, declines to reopen applicant's previous application, and lifts the stay of applicant's execution.

I. Analysis

Applicant has presented compelling issues in the instant pleadings that have never been addressed in state court, and I would accordingly file and set this case to decide those matters. In this case, although I recognize that a substantial amount of federal habeas litigation was conducted, I cannot agree that the federal proceedings are an adequate substitute for the state proceedings that should have been conducted to address the merits of these complaints in the first instance. Furthermore, I would file and set this case to examine the merits of applicant's complaints that his lengthy solitary confinement is cruel and unusual punishment.

A. This Court Has Never Decided the Substantive Merits of Applicant's Complaint

Today, rather than decide the substantive merits of applicant's complaint, this Court's majority opinion dismisses it on procedural grounds, and it then attempts to justify that dismissal by discussing the equity of the situation through an explanation that the essence of applicant's claim has been reviewed by the federal courts. I disagree with this Court's majority opinion's analysis because its dismissal disallows applicant from mere entry into the courthouse by substantively analyzing the merits of his complaints as if he had been permitted entry, and then using that analysis to justify this Court's refusal to permit his mere entry.

Applicant contends that he is “entitled to further review and relief on his Wiggins [v. Smith] claim that, under the Sixth and Fourteenth Amendments, trial counsel unreasonably narrowed the sentencing-phase investigation.” See Wiggins v. Smith, 539 U.S. 510 (2003) (holding that attorney's failure to adequately investigate capital defendant's background and present mitigating evidence at punishment phase constituted ineffective assistance in violation of the Sixth Amendment). Specifically, applicant contends that his trial counsel were ineffective for failing to investigate and present evidence of his troubled childhood that was plagued by abuse and neglect, which, he contends, might have persuaded the jury to sentence him to life rather than death had it been discovered and admitted at his trial. Applicant asserts that his evidence shows that his childhood and adolescence were “marred by some of the most profound hardship imaginable” and that this evidence was never heard by the jury that sentenced him to death. Applicant contends that the “jury never heard that [applicant] twice saw his mother try to kill herself, that he was forced to stay in the room while his mother [who was a prostitute] had sex with clients, that his school records reflect nineteen different home addresses, that he grew up without a father, that he was repeatedly abandoned by his mother, that he grew up watching men beat women, that he was himself subject to repeated physical abuse and malnourishment, that his second stepfather was a gang lord, and that his family constantly exposed him to the drugs and alcohol upon which he eventually became dependent.”

Applicant acknowledges that this Court has previously held that his Wiggins claim is procedurally barred due to his failure to raise it in his initial habeas proceeding. Nevertheless, applicant urges this Court to excuse his procedural default and adjudicate his claim on the merits, given that this claim was forfeited as a result of incompetence by his appointed counsel in that prior proceeding. I note that the parties appear to agree that this Court has never conducted a full review of applicant's Wiggins claim on the merits. The underlying issue presently before this Court is whether, even though state courts have not adjudicated applicant's Wiggins claim on the merits, any equitable concerns in that regard may be alleviated by the fact that this claim was heard and resolved by federal courts. The parties strenuously disagree about whether federal courts have ever fully and fairly considered the merits of applicant's claim. As to this matter, I agree in part with each of the parties.

I agree with the State that the federal district court conducted a de novo review of most of the evidence presented in the instant habeas application with respect to the merits of applicant's Wiggins claim. The federal district court specifically observed that it was conducting a “de novo review” of applicant's claims asserting ineffective assistance of counsel without any deference to the state courts, which it concluded had never addressed the substance of applicant's complaints. Ruiz v. Thaler, 783 F.Supp.2d 905, 913 (W.D. Tex. 2011). Unpersuaded by many of the assertions that had been pleaded by applicant, the federal district court ultimately held against applicant on his ineffective-assistance claims by determining that applicant was not prejudiced by his trial attorney's deficient performance. Id. at 940-47. The federal district court also denied a certificate of appealability.

Although I agree with the State that the federal district court conducted a de novo review of the evidence and legal arguments relevant to applicant's Wiggins claim, it should be noted that the reason that this federal hearing had to occur at all is because this Court had abdicated its responsibility to permit a substantive habeas review of applicant's claim. Had it employed proper procedures, this Court should have decided that initial state habeas counsel was ineffective for failing to provide evidence about applicant's Wiggins claim, and this Court should have permitted that litigation on the merits in state court. Had that occurred, then the federal district court would not have had to conduct a de novo review of applicant's Wiggins claim. It appears that the only reason that the federal district court had the evidentiary hearing of applicant's Wiggins claim is because this Court had refused to permit litigation on that claim on procedural grounds. Again, even today, there is no actual substantive consideration of applicant's claims and instead this Court repeats what it did before, albeit with more discussion: Today, it again dismisses applicant's habeas application on procedural grounds.

As I have explained above, I agree in part with the State, but I also agree in part with applicant that the federal appellate court's review was tilted in favor of the State due (1) to the standard of review that defers to a state court's resolution of a state matter, and (2) to the fact that the federal appellate court was reviewing only whether the federal district court had properly denied a certificate of appealability. Applicant, therefore, appears to be correct that the Fifth Circuit Court of Appeals did not neutrally review the federal district court's substantive assessment of his Wiggins claim. See Ruiz v. Stephens, 728 F.3d 416, 429 (5th Cir. 2013).

The Fifth Circuit weighed its review in favor of the State due to its deferential standard of review. As to this matter, applicant argues that “the Fifth Circuit imposed the federal relitigation bar, incorrectly treating the [Court of Criminal Appeals's] 2007 order [rejecting his claim as procedurally barred] as a disposition on the merits of the Wiggins claim.” In footnote six of his application, applicant further explains that “28 U.S.C. 2254(d) bars merits consideration of any claim decided on the merits in state court, unless the inmate can show that the state court's assessment of the merits was ‘unreasonable.’ ” See 28 U.S.C. § 2254(d)(1)-(2). He asserts that, to be “ ‘unreasonable,’ the state court's merits determination must be so lacking in support that no ‘fair-minded jurist’ could deny the claim.” Thus, applicant argues that, although it may appear as if the federal appellate court neutrally reviewed the federal district court's analysis of his mitigation argument, in fact the federal appellate court's evaluation of his arguments was colored by the deferential standard of review under which the federal courts operated. In short, the federal courts, he suggests, have never decided the merits of his argument on a clean slate. Applicant's contention here is supported by the Fifth Circuit's explanation of the applicable law, which it described as being highly deferential to this Court's summary denial of relief. See Ruiz, 728 F.3d at 424 (explaining that the question presented by applicant's request for a certificate of appealability was “whether it [was] debatable that [this Court's] order was ‘contrary to, or involved an unreasonable application of clearly established Federal law”; under this standard, “even a strong case for relief does not mean that a state court's contrary conclusion was unreasonable”). Therefore, even though the district court conducted a de novo review of applicant's claims, it appears that, in affirming the denial of the certificate of appealability, the Fifth Circuit applied a standard of review that was deferential to this Court's resolution of applicant's habeas claim against him. That deference to this Court may have colored the federal appellate court's analysis of the federal district court's decision. I note here that, although the Fifth Circuit treated this Court's dismissal of applicant's Wiggins claim as being a disposition on the merits, this Court had in fact rejected applicant's claim by applying the procedural bar on subsequent writs, and to this day this Court has never addressed the substantive arguments or evidence on the merits. Even accepting that applicant's claim received a de novo review by the federal district court that heard most of the evidence he presents in his instant habeas application, it appears that he has never had a neutral appellate review of the federal district court's decision. Thus, this Court should file and set this matter to ensure that applicant's extensive habeas evidence in support of his Wiggins claim is decided on the merits by this Court rather than rejected on the basis of a procedural bar.

B. This Court Should Overrule Graves and Resolve Cases Like This One On Its Merits

It is undisputed that applicant's claim was forfeited due to the failure of his initial habeas counsel to raise it in the initial habeas proceeding. In the past, I have expressed my view that, when a death-sentenced individual can show that he received incompetent representation during the initial state habeas proceeding, and when that incompetent representation has resulted in the forfeiture of one or more substantial claims for relief, then the applicant is entitled to merits review of those claims. See Ex parte Buck, 418 S.W.3d 98, 99 (Tex. Crim. App. 2013) (Alcala, J., dissenting) (suggesting 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”). In Buck, I based my view on the statutory language in Article 11.071 that guarantees capital habeas applicants representation by “competent” appointed counsel and that requires such counsel to “investigate expeditiously” all possible grounds for relief. See id. at 106-07 (citing TEX. CODE CRIM. PROC. art. 11.071, __ 2(a), 3(a)). I opined that, in situations in which these statutory requirements had not been met by appointed habeas counsel, this Court should hold that the initial application was improperly filed and decline to apply the procedural bar in Article 11.071, Section 5. Id. at 107. In the absence of such an approach, I observed that, as a result of incompetent representation in the initial habeas proceeding, capital habeas applicants may be unjustly denied merits review of their substantial claims for relief in any court. Id. at 105-06 (observing that, when initial habeas counsel fails to raise a substantial claim, the applicant will likely be “prevented, through an array of state and federal procedural-default rules and bars on successive writs, from receiving a merits adjudication of any legitimate claims for relief”). I noted that such an outcome would be “inconsistent with both the capital habeas statute's plain terms and this Court's previous statements regarding its underlying purpose” of affording death-row inmates a full and fair opportunity to litigate their post-conviction claims. Id. at 106.1

Here, it is plainly apparent that the representation by applicant's initial habeas counsel was woefully inadequate. Not only did applicant's appointed habeas counsel fail to properly raise applicant's Wiggins claim—he failed to raise any ineffective-assistance claims at all, and instead appears to have asserted only record-based claims that would have required no factual development and, under this Court's longstanding precedent, were barred on habeas because they could have been litigated on direct appeal. The poor performance by habeas counsel in the initial 11.071 proceeding was noted by the federal district court, which stated that “the quality of representation petitioner received during his state habeas corpus proceeding was appallingly inept.” Ruiz v. Dretke, No. Civ. SA-03-CA-303-OG, 2005 WL 2620193, at *2 (W.D. Tex. Oct. 13, 2005) (observing that “[p]etitioner's state habeas counsel made no apparent effort to investigate and present a host of potentially meritorious and readily available claims for state habeas relief,” and describing the initial state habeas application as “frivolous”). For the same reasons as those I expressed in Buck, I would hold that applicant is statutorily entitled to something more than “appallingly inept” representation by his appointed counsel in the initial 11.071 proceeding. In my view, under these circumstances, in which the performance by initial habeas counsel was apparently so poor as to render the initial habeas application a nullity, applicant is entitled to review of his substantial Wiggins claim on the merits. This Court should take this opportunity to revisit its precedent barring such an approach, Ex parte Graves, and this is particularly true given that this precedent is nearly fifteen years old. See Ex parte Graves, 70 S.W.3d 103, 117 (Tex. Crim. App. 2002) (holding that Article 11.071 “grants a statutory right to the appointment of competent counsel, but it does not give a habeas applicant a constitutional or statutory right to effective assistance of that counsel in the particular case that can form the basis of a subsequent writ”). As I explained in Buck, in the intervening period since Graves was decided, the Supreme Court has suggested that equity and fairness require that substantial ineffective-assistance claims forfeited as a result of ineffectiveness by habeas counsel in the initial state habeas proceeding be adjudicated on the merits without regard to ordinary procedural-default principles. See Martinez v. Ryan, 132 S. Ct. 1309, 1318 (2012) (explaining that, “as an equitable matter, [ ] the initial-review collateral proceeding, if undertaken without counsel or with ineffective counsel, may not have been sufficient to ensure that proper consideration was given to a substantial claim,” and creating exception to ordinary procedural-default rules in light of that equitable consideration); Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013) (applying equitable rule of Martinez in context of Texas capital-murder case, and explaining that, in the absence of such a rule, “the Texas procedural system would create significant unfairness”). And, although I recognize that the holdings of those cases are directly applicable only in federal court, the reasoning underlying those decisions applies with equal force to state habeas proceedings, and thus those cases provide an additional justification for this Court to revisit its holding in Graves. Given the incompetent performance by initial state habeas counsel in this case, and because counsel's incompetence has resulted in the forfeiture of a substantial claim for relief, I would hold that applicant is entitled to merits review of that claim in this Court, both as a matter of his statutory entitlement to competent counsel under Article 11.071 and in the interests of equity and fairness.2

This case is much like many of the other cases that have recently been stayed by this Court. There are problems in this case that give me great pause, such as the facts that (1) applicant's trial attorney did not adequately investigate for mitigation evidence, nor did he adequately present the mitigation evidence of which he was aware, which is contrary to today's standards for attorneys in capital-murder trials, (2) applicant's trial attorney was the same attorney who represented applicant on appeal, which is contrary to today's standards for attorneys in capital-murder trials, and (3) applicant's state habeas counsel failed to present any arguments that could reasonably lead to relief from this conviction, such as the instant claims about the failure to investigate and present mitigation evidence, which is contrary to today's standards for attorneys in capital post-conviction proceedings. That the procedures that were then employed are certainly unacceptable today is problematic, to say the least.

Here, no one appears to dispute that the state criminal-justice system has failed to review the substantive merits of applicant's complaint that trial counsel was ineffective in the punishment phase of his trial. Although the federal district court conducted a de novo review and determined that applicant had not proven his claim that trial counsel was ineffective, the federal appellate court reviewed that decision under a deferential standard that would favor the State in this case. Thus, I conclude that the federal appellate review of applicant's Wiggins claim cannot be fairly characterized as an adequate substitute for the absence of state court review of that claim on its merits. Given all of these considerations, I would file and set this habeas application and address the substantive merits of applicant's complaints about whether his trial attorney was ineffective in the punishment phase of trial.

C. This Court Should Address Whether Solitary Confinement As a Result of a Death Sentence Constitutes Cruel and Unusual Punishment

Applicant argues that the length of his sentence in solitary confinement on death row violates the federal Constitution's guarantee against cruel and unusual punishment. Noting that he has been in solitary confinement for most of over two decades, applicant contends that carrying out his death sentence after such a lengthy delay would violate the constitutional prohibition against cruel and unusual punishment in light of evolving standards of decency. Applicant cites to Justice Breyer's recent dissent in Glossip v. Gross, which states that “the circumstances and the evidence of the death penalty's application have changed radically” so as to warrant a reexamination of whether the penalty remains constitutionally permissible in light of prevailing social norms. See Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015) (Breyer, J., dissenting). Of particular relevance to his case, applicant cites Justice Breyer's statements addressing the “excessively long periods of time that individuals typically spend on death row, alive but under a sentence of death.” Id. at 2764. In keeping with the views I expressed in my recent opinion in Ex parte Murphy, I would additionally permit applicant the opportunity to litigate this claim on the merits. See Ex parte Murphy, 495 S.W.3d 282, 290 (Tex. Crim. App. 2016) (Alcala, J., concurring and dissenting) (urging Court to consider whether capital murderer's “decades-long confinement in a small individual cell with little human contact” constituted cruel and unusual punishment under the facts of that case). Given that applicant's over two-decade-long confinement had not occurred when he last filed a post-conviction habeas application, he cannot be faulted for not having raised this complaint earlier.

I acknowledge that there appears to be a strong argument that complaints about prison conditions should be considered separately from the constitutionality of a death sentence. But rather than dismiss applicant's complaint on the grounds that it is procedurally barred, I would file and set his case for resolution of this complaint on the merits.

II. Conclusion

The Court today dismisses applicant's claims by applying the bar on subsequent writs and by declining to reconsider its prior resolution of his ineffective-assistance claim. For all of the foregoing reasons, I would not dismiss this application but would instead file and set this case in order to give full consideration on the merits to these claims. With these comments, I respectfully dissent.


1.   In Buck, I recognized that my position was inconsistent with certain aspects of this Court's opinion in Ex parte Graves, in which it held that Article 11.071 does not guarantee a capital habeas applicant effective representation by appointed habeas counsel in an 11.071 proceeding and that claims surrounding ineffective representation by capital habeas counsel were not cognizable on post-conviction review. See Ex parte Graves, 70 S.W.3d 103, 117-18 (Tex. Crim. App. 2002). I disagreed with that opinion's analysis and indicated that I would overrule Graves “to the extent that it precludes consideration of a statutory claim [under Article 11.071] that initial habeas counsel's performance was so incompetent as to render the initial application frivolous and, therefore, void.” Ex parte Buck, 418 S.W.3d 103, 107 (Tex. Crim. App. 2013) (Alcala, J., dissenting). I further observed that, in light of the Supreme Court's reasoning in its recent opinions in Martinez v. Ryan and Trevino v. Thaler, the issue of habeas counsel's performance should be considered “relevant in a post-conviction proceeding when it answers the preliminary question of whether an underlying claim should be procedurally barred,” even if that issue could not serve as a stand-alone basis for post-conviction relief. Id. at 109; see also Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012) (permitting merits adjudication of otherwise procedurally barred substantial ineffective-assistance claim when that claim was forfeited as a result of errors by counsel in the initial state habeas proceeding); Trevino v. Thaler, 133 S. Ct. 1911, 1919-20 (2013) (applying rule of Martinez to federal habeas proceedings stemming from Texas state-court convictions).

2.   This Court's majority opinion concludes that it is unnecessary to revisit its precedent in Graves in this case because, even were this Court to overrule Graves, it “would not help” applicant and is a “moot issue,” in light of the federal district court's denial of federal habeas relief. For all of the reasons I have already explained, I disagree that the federal district court's denial of relief makes it unnecessary for this Court to evaluate applicant's Wiggins claim on its merits. Furthermore, to the extent that the majority opinion suggests that the doctrine of res judicata precludes this Court from evaluating applicant's Wiggins claim, I disagree with that assessment. At least with respect to federal-court review of state-court holdings in the habeas corpus context, it is well-established that the doctrine of res judicata is inapplicable. See Lehman v. Lycoming County Children's Servs Agency, 458 U.S. 502, 512 (1982) (explaining that the interplay between state and federal habeas proceedings constitutes “a major exception to the doctrine of res judicata”); see also McCleskey v. Zant, 499 U.S. 467, 478-79 (1991). In my view, the doctrine would also not apply to state-court habeas proceedings conducted after federal review of a claim.

ALCALA, J., filed a dissenting opinion.

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