EX PARTE PETER JOHN BERNAL v. <<

Reset A A Font size: Print

Court of Criminal Appeals of Texas.

EX PARTE PETER JOHN BERNAL, Applicant

NO. WR-84,895-02

Decided: December 14, 2016

CONCURRING OPINION

In the movie “My Cousin Vinny,” the menu choices at a restaurant were breakfast, lunch, and dinner, without any further detail. Similarly, this Court's approach to habeas relief broadly gives staff attorneys categories of cases that may be presented to a single judge for denial of relief without a quorum of this Court ever seeing the application or participating in a vote. For Vinny, the only consequence of the broad category was the potential of a bad meal. But for hundreds and possibly thousands of habeas applicants challenging their final felony convictions based on claimed constitutional violations, the consequence of the broad category is the denial of habeas relief by a single judge on this Court who alone acts as a proxy for the other eight judges, none of whom have actually seen or voted on the cases. The other concurring opinions filed in this case and in Ex parte Dawson have essentially admitted that hundreds, if not thousands, of habeas writs are being seen and denied on their merits by only a single judge on this Court rather than decided by the actual review and vote as to each case by a quorum of this Court's judges. See Ex parte Dawson, No. WR-85,612-02, 2016 WL 6938815 (Tex. Crim. App. Nov. 23, 2016) (Keasler, J., concurring). If, as a citizen of the State of Texas, you elected the judges to this Court so that they would delegate their discretionary decision-making to other judges on this Court or to staff members, then you will be satisfied with this Court's current system for the ultimate resolution of habeas writs. Stop reading here if that applies to you. For everyone else, the current system is a failure. It violates at least three established principles that ordinarily guide the judiciary. First, judges should abide by the terms of the constitutions and law as written, but the current system does not do that.1 Second, judges should not delegate judicial discretionary decisions to staff members, no matter how talented they may be, but that is precisely what is occurring now in this type of case. Third, each judge must individually decide each case that results in a final decision so that denial of habeas relief stems from a determination by a quorum of judges on this Court. That does not occur in these cases. In light of the violations of these three principles, it is wholly inaccurate to suggest that all cases in which habeas relief is denied by this Court have received a full review because it is undisputed that hundreds, if not thousands, of cases are being denied by a single judge on this Court rather than by a quorum of the en banc Court. Because this particular case was assigned to me, a judge who believes that all denials of habeas relief must be determined by a quorum of judges on this Court, this Court's decision denying this post-conviction habeas application filed by Peter John Bernal, applicant, has been decided by the en banc Court. I write separately to show how the broad areas of law and particular fact patterns presented by Article 11.07 habeas applications do not generally lend themselves to a proxy vote, even if the Texas Constitution and the Code of Criminal Procedure permitted that, which they do not.

In my recent concurring opinion in Ex parte Dawson, I voiced my concerns that this Court's internal procedures for resolving some Article 11.07 habeas applications do not comply with the Texas Constitution and Code of Criminal Procedure because, in many instances, only a single judge reads the application, and he alone decides the ultimate merits of the application by denying relief without participation by a quorum of judges. Ex parte Dawson, No. WR-85,612-02, 2016 WL 6938815 (Tex. Crim. App. Nov. 23, 2016) (Alcala, J., concurring). I explained that the Texas Constitution and Code of Criminal Procedure require a decision by a quorum of five judges of the en banc Court or by two judges of a three-judge panel that has been assigned to the case. Id., slip op. at 5-6 (citing TEX. CONST. Art. V, § 4(b); TEX. CODE CRIM. PROC. Art. 11.07). I noted that, in contrast to the proper use of standing orders for the administrative resolution of various motions that do not result in an ultimate denial of habeas relief, this Court's permissive use of a standing order or vote by proxy in this type of situation is inappropriate because the single judge's ruling constitutes a final judgment denying relief to habeas applicants on the merits of their complaints. Id., slip op. at 12-14.

Importantly, in Dawson, a majority of the judges on this Court appeared to agree that, in the absence of a standing order or proxy vote, a single judge would lack the authority to deny relief to an Article 11.07 habeas applicant in the absence of a quorum of judges. The central dispute between a majority of the judges on this Court and myself was as to whether a standing order or proxy vote could be properly used for designated categories of habeas applications so that a single judge would, by proxy vote, establish a quorum of judges, even though only one judge saw, voted, and participated in the actual decision to deny habeas relief in the particular case. A further dispute centered on whether the designated categories of habeas applications that are presently being resolved through assignment to a single judge involve narrow, specifically delineated circumstances, which was the view held by a majority of the members of this Court, or whether these involve broad discretionary application of the law to the facts on a wide variety of legal issues, which was my position. As I will explain further below, in my view, the types of legal issues currently being resolved pursuant to this Court's internal operating procedures that permit a single judge to deny relief on an Article 11.07 habeas application are not conducive to resolution by a single judge based on a standing order or proxy vote.

By way of example, I note that the underlying facts in Dawson showed that Dawson was convicted of forgery of a financial instrument and sentenced to ten years' imprisonment. In his pro se Article 11.07 habeas application, Dawson contended that his sentence was illegal and that his trial counsel was ineffective for failing to research the facts and law relevant to his case. In particular, he alleged that counsel was ineffective for failing to investigate whether applicant's prior convictions were properly used to enhance the punishment range for the instant offense. The habeas court received an affidavit from trial counsel responding to applicant's allegations, but it did not make findings of facts or conclusions of law addressing applicant's claims, nor did it make any recommendation to this Court as to whether relief should be granted or denied. Despite the fact that the legal issues were complicated, in the sense that they involved claims about an illegal sentence and ineffective assistance of counsel, and even though there were no fact findings by the habeas court so that original factual determinations would have to be made by this Court, a majority of this Court determined that it would have been permissible for a single judge to deny habeas relief to Dawson without any other judge on this Court ever seeing or voting on his application. Id.

As in Dawson, here I will attempt to show that this Court has painted with a broad brush the categories of claims that may be resolved by the vote of a single judge and, therefore, that, as a practical matter, a standing order or proxy vote for these cases is inappropriate. In this case, as in Dawson, Bernal is complaining about significant legal issues that require a critical application of the law to the facts appearing in the record. Bernal alleges in his application that (1) trial counsel was ineffective for failing to investigate the evidence against him, (2) he was denied appellate review by relying on counsel's advice to plead guilty, and (3) the State failed to prove or introduce any evidence to support the allegations in the indictment. Like Dawson, this case that was designated by a staff member as one that should be denied by a single judge presents claims that require careful analysis and facts that might reasonably lead two different judges to reach different conclusions as to how the case should be resolved. But unlike Dawson, in which the habeas court did not make any findings of fact or conclusions of law, the habeas judge in this case did make findings and conclusions, and he recommended to this Court that relief be denied. Although the existence of findings and conclusions supporting a habeas court's recommendation that relief be denied may make it more likely that this Court will ultimately deny relief, the decision of whether to grant or deny relief or whether to remand the case to the habeas court for additional factual determinations necessarily involves a discretionary review of facts that could result in this Court's disagreement with the habeas court's findings and conclusions. The purported standing order employed by this Court permits a single judge to deny habeas relief despite the fact that the areas of law are complicated and that the fact patterns require judicial scrutiny and discretion before a proper decision may be reached in each case. Because discretionary decision-making must occur in this Court's review of a habeas court's findings and conclusions, a standing order or proxy vote may not properly replace a decision on the ultimate merits by a quorum of judges.

As I explained in my concurring opinion in Dawson, reasonable minds can disagree as to the correct legal analysis of many of the issues raised in a habeas application, particularly when presented in a myriad of different factual contexts. Dawson, No. WR-85,612-02, 2016 WL 6938815, slip op. at 15. For example, ineffective assistance of counsel is a common habeas claim and was alleged in both Dawson and the instant case. Resolving this type of claim requires deciding whether counsel's acts or omissions fell below an objective standard of reasonableness based on prevailing professional norms and whether there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 688, 688-90, 694 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). Further, the representation must be viewed in its totality and assessed according to the “facts of each case.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Without examining the particular facts of the case, including the evidence and testimony in the record, it is impossible to determine whether, under the totality of the representation, counsel's performance was deficient or if an applicant was prejudiced. Just as this Court as a whole may disagree with the habeas court's findings of fact and conclusions of law, individual judges on this Court may come to different conclusions regarding the proper resolution of an applicant's ineffective assistance claim based on an examination of the pleadings and the record.

Bernal's application presents a compelling illustration that the types of decisions involved in resolving these applications are highly discretionary. With respect to Bernal's contention that the State failed to prove or introduce any evidence to support the allegations in the indictment, one judge might examine that claim and decide that this was merely a challenge to the sufficiency of the evidence, which would make habeas relief inappropriate, while another judge might conclude that this was a challenge to the absence of any evidence of the offense, which would make habeas relief appropriate. See Ex parte Knight, 401 S.W.3d 60, 64 (Tex. Crim. App. 2013). It is precisely this type of discretionary evaluation of pleadings and facts that make a standing order or proxy vote inappropriate for ultimate decisions that result in a denial of habeas relief to applicants when their pleadings have not been reviewed by a quorum of judges on this Court.

Involuntary pleas resulting from the erroneous advice of counsel are another common habeas claim, and judges must undertake the same type of fact-intensive analysis in that context. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (to establish a claim of involuntary plea based on ineffective assistance of counsel, an applicant must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's errors, the applicant would not have pleaded guilty and would have insisted on going to trial); see also Padilla v. Kentucky 559 U.S. 356, 372 (2010) (noting that, to be entitled to relief in this context, applicants must show that the decision to reject a plea bargain would have been rational under the circumstances). Challenges to the State's failure to disclose Brady material are also cognizable on habeas review. Analyzing Brady claims requires that judges assess the materiality of the inadvertent or willful suppression of exculpatory evidence. See Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). To properly analyze these claims, judges must examine whether the failure to disclose the evidence created a reasonable probability that the outcome of the proceeding would have been different. Id. at 727. Thus, in many instances, determining whether an applicant has a viable Brady claim also requires looking at the totality of the record. Even if the habeas court has made findings of fact and conclusions of law, judges of this Court must still ensure that those findings and conclusions are supported by the record prior to relying on those findings and conclusions as a basis for granting or denying relief. See id. at 727-29. A single judge acting as a proxy for other judges who have reviewed neither the pleadings nor the record cannot assume that the other judges of this Court would view the record or pleadings in a manner identical to his own view. Nor can he realistically assume that the other judges would make the same decision regarding whether counsel's performance was objectively reasonable, for example, or whether there is a reasonable probability that the result of the proceeding would be different in the absence of any error, or whether there is a reasonable probability that an applicant would have rationally rejected a plea agreement and insisted on going to trial. Both Dawson and the instant case illustrate why the unique facts and circumstances of each case that necessitate conducting a careful legal analysis prohibit accurately classifying these claims into consistent categories that would allow them to be properly disposed of with a formulaic standing order.

Rather than attempt to provide any legal authority to support the suggestion that a single judge on this Court has the authority to alone deny relief on an Article 11.07 habeas application, the concurring opinion by Presiding Judge Keller resorts to using disparaging remarks about me, such as suggesting that I may be confused, that I am making things up, and that I am bad at math. I will refrain from that type of discourse. In the interest of accuracy, I make three responses to her concurring opinion. First, even accepting that this Court decided 7,223 cases in 2015, as opposed to 9,823 total matters, that means that the judges of this Court would have had, on average, about fifteen minutes to spend on each case.2 This is only true, of course, if one assumes that all such cases were decided by the en banc Court with each judge actually reviewing and voting on each case, which, I recognize, is not presently the situation under the current system that permits many habeas applications to be resolved by a single judge alone. In any event, if this Court were to decide habeas writs in panels of three, as I have suggested, rather than en banc with each judge actually participating in each decision, then it is undisputed that this Court's judges would have more time, on average, to decide each case and would likely reach better decisions in all of our cases. That was the point of my analysis, and that is an undisputed fact at this juncture.

Second, the concurring opinion by Presiding Judge Keller obfuscates the difference between a single judge's ruling on certain procedural motions and a single judge's ruling denying habeas relief. She equates, for example, a dismissal of an appellate brief for exceeding the permitted word count with a final judgment denying habeas relief on the ultimate merits of a habeas application. Unless a dismissal is with prejudice or pertains to a subsequent habeas application, ordinarily a litigant can refile a dismissed matter, so a single judge's ruling of that type is not a disposition on its ultimate merits. In contrast, a denial of habeas relief such as the type at issue here is a ruling on the ultimate merits of a habeas application. The consequences of a denial of habeas relief are dire for a habeas applicant. The denial of habeas relief by a single judge means that an applicant has exhausted his one opportunity to have a single bite at the habeas apple for obtaining relief. Unless he can produce new law or new facts, an applicant gets only one chance to demonstrate that he is entitled to habeas relief, and, under the practices defended by the other concurring opinions in this case and in Dawson, a single judge is permitted to deny that habeas relief without any other judge even seeing or voting on that application. But if Presiding Judge Keller is correct that procedural dismissals on motions are the equivalent of denials of habeas relief on the ultimate merits of cases, then, because the Texas Constitution and Code of Criminal Procedure require a quorum of judges to decide cases, the answer is to discontinue standing orders for procedural dismissals. The answer is not that a single judge may deny habeas relief.

Third, the other concurring opinions have suggested that I could read any habeas application that I want to read that has been filed in this Court, and that I could ask that any or all of these cases be discussed at this Court's conferences so as to require a quorum of five judges in order to resolve the case. But this suggestion ignores that I have already asked to be permitted to vote on all of these habeas applications and that I have requested that all of them be brought for a vote by the en banc Court, to no avail.

This is the bottom line. None of the concurring opinions have provided any authority that would permit a single judge on this Court to deny habeas relief on the ultimate merits of an Article 11.07 habeas application. Also, all of the concurring opinions admit that they approve of the practice of a single judge on this Court denying habeas relief on the ultimate merits of habeas applications without the participation and vote of a quorum of judges. Furthermore, all of the concurring opinions do not dispute that the habeas applications on which relief is being denied by a single judge involve a wide variety of issues, including claims of ineffective assistance of counsel, Brady violations, involuntary pleas, and other constitutional violations. On some occasions when I have been permitted to see the habeas applications that were designated for a single judge's decision, I have written dissenting opinions suggesting that I would either grant relief or remand the cases to the habeas court for factual development.

In sum, in spite of the strong opinions held by several members of this Court indicating that the Court's current practices are both permissible and desirable, I maintain my view that Article 11.07 habeas applications must be decided by a quorum of this Court and not by a single judge who alone renders a final decision on the merits denying relief. This result follows from the plain language of both the Texas Constitution and the Code of Criminal Procedure. Furthermore, as explained above, the resolution of Article 11.07 habeas applications frequently requires discretionary application of legal reasoning to unique factual circumstances. Even assuming that a standing order or proxy vote method satisfies the Texas Constitution's and Code's quorum mandate, such a system is wholly unfit to ensure that this Court denies relief accurately and consistently.

“My Cousin Vinny” was a fictional movie showing the wrongful arrest and accusation of innocent people, but that is a real occurrence in our criminal justice system as shown by the case of Michael Morton, who was released from prison on precisely the same type of habeas writ that was filed in this and similar cases that this Court has allowed a single judge to decide. This is wrong. With these comments, I respectfully concur in the judgment of the Court.

FOOTNOTES

1.   In my recent concurring opinion in Ex parte Dawson, I explained why this Court's practice of permitting only a single judge to deny habeas relief without participation by a quorum of judges conflicts with the terms of the Texas Constitution and Code of Criminal Procedure. Ex parte Dawson, No. WR-85,612-02, 2016 WL 6938815 (Tex. Crim. App. Nov. 23, 2016) (Alcala, J., concurring). I explained that the Texas Constitution and Code of Criminal Procedure require a decision by a quorum of five judges of the en banc Court or by two judges of a three-judge panel that has been assigned to the case. Id., slip op. at 5-6. In apparent response, without citation to any authority, explanation, or analysis, the author of another concurring opinion in this case declares that she does “not read the much cited Texas Constitution to prevent an individual judge from taking action on an individual writ.” Judges must be guided by the plain language in the Texas Constitution rather than interpreting it in a matter that is most convenient for this Court's formulaic denial of relief to habeas applicants based on a blind assessment of categories of cases. Because I believe in applying the constitutions and law as written, I have detailed, analyzed, and explained why the plain language of the Texas Constitution and Code requires a decision by a quorum of judges before habeas relief may be denied.

2.   If he worked fifty weeks per year at forty hours per week, a judge would work 2,000 hours a year. At that rate, he would have about fifteen minutes, on average, to decide the 7,223 cases that the concurring opinion by Presiding Judge Keller suggests is the accurate number by which to measure a judge's time on this Court. I do not concede that all motions may be decided by a single judge on this Court—some are and some are not—but, because, even excluding motions from my calculations, the numbers support my analysis, I leave that discussion for another day.

ALCALA, J., filed a concurring opinion.