Ex Parte Blue

Decision Date07 March 2007
Docket NumberNo. AP-75254.,AP-75254.
Citation230 S.W.3d 151
PartiesEx Parte Carl Henry BLUE, Applicant.
CourtTexas Court of Criminal Appeals

Michael B. Charlton, El Prado, N.M., John E. Wright, Huntsville, TX, for Appellant.

Douglas Howell, III, Asst. D.A., Bryan, Matthews Paul, State's Attorney, Austin, for State.


PRICE, J., delivered the opinion of the Court in which MEYERS, JOHNSON, KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

This is a subsequent application for writ of habeas corpus in a capital case, in which the applicant claims that he cannot be subjected to the death penalty, consistent with Atkins v. Virginia,1 because he is mentally retarded. Although the applicant filed his initial post-conviction application for writ of habeas corpus almost a year after the Supreme Court decided Atkins, the applicant failed to raise the issue of mental retardation in that initial writ application. He therefore makes no attempt to argue that we have authority to review his claim under Article 11.071, Section 5(a)(1) of the Code of Criminal Procedure.2

Instead, the applicant makes two alternative arguments. First, he asserts that we may reach the merits of his claim of mental retardation under Article 11.071, Section (5)(a)(3).3 Under this provision, a subsequent capital habeas applicant is entitled to a merits-review of a claim if he can show by clear and convincing evidence that, but for a violation of the United States Constitution, "no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial under Article 37.071[.]"4 Alternatively, the applicant asserts that, because the Eighth Amendment prohibition against executing the mentally retarded is absolute, we should suspend all notions of waiver, forfeiture, procedural default, and abuse of the writ, and abandon any otherwise-valid interest the State may have in the finality of the judgment, and permit him to proceed with his claim, notwithstanding whatever statutory impediments exist to his raising the claim in a subsequent writ application. We filed and set this subsequent application to consider whether the applicant should be allowed to proceed on either of these bases.

We hold that, having afforded the applicant one opportunity to raise his Atkins claim in a post-conviction setting, the Texas Legislature may legitimately limit any second chance it may afford him to raise it again, notwithstanding the absolute nature of the prohibition against executing the mentally retarded. We conclude that through Article 11.071, Section 5(a)(3), the Legislature has provided a mechanism whereby a subsequent habeas applicant may proceed with an Atkins claim if he is able to demonstrate to this Court that there is evidence that could reasonably show, to a level of confidence by clear and convincing evidence, that no rational finder of fact would fail to find he is mentally retarded. However, because we find that the applicant in this case has failed to satisfy this heightened-threshold burden, we deny him leave to proceed.


The applicant argues that the Eighth Amendment prohibition against executing the mentally retarded is absolute, and for that reason can be raised "at any time." He argues that the Atkins bar against executing the mentally retarded amounts to what, in Marin v. State,5 we characterized as an "absolute systemic . . . prohibition."6 In a different procedural context, the Supreme Court has identified a rule barring execution of the mentally retarded as one "prohibiting a certain category of punishment for a class of defendants because of their status or offense."7 To permit the execution of a mentally retarded offender is thus, the applicant argues, "beyond the power of the criminal law-making authority[.]"8 But we need not reach the question whether Atkins has identified a systemic prohibition under Marin. For even if we were to agree that "implementation" of such a prohibition "is not optional and cannot, therefore, be waived or forfeited by the parties[,]"9 this does not necessarily mean, as the applicant contends, that an allegation that the constitutional prohibition applies can be made, literally, "at any time" or that otherwise-legitimate state limitations on post-conviction proceedings must give way to any allegation, however well substantiated, of mental retardation.

We did not say in Marin that even an absolute requirement or prohibition could necessarily be raised at any time. The question in Marin was whether a particular claim, not brought to the trial court's attention, could be raised for the first time on appeal. We observed during the course of our analysis that:

the right to appeal is not of constitutional magnitude, but is conferred by the Legislature. * * * And that which the Legislature may withhold altogether, it may withhold in part. Thus, our lawmakers may deny the right to appeal entirely or the right to appeal only some things or the right to appeal all things only under some circumstances.10

Accordingly, when we came later to describe the nature of absolute requirements and prohibitions, we observed:

Finally, absolute requirements and prohibitions, like rights which are waivable only, are to be observed even without partisan request. But unlike waivable rights, they can't lawfully be avoided even with partisan consent. Accordingly, any party entitled to appeal is authorized to complain that an absolute requirement or prohibition is violated, and the merits of his complaint on appeal are not affected by the existence of a waiver or a forfeiture at trial.11

Thus, the proposition that an absolute prohibition may be raised for the first time on appeal is subject to the predicate right to appeal in the first place. The existence of an absolute prohibition, even one that derives from the federal constitution, does not mandate that states create a right to an appellate forum in which to vindicate it.

As is the case with direct appeal, "[s]tates have no obligation to provide" the post-conviction writ of habeas corpus.12 Of course, Texas law does provide for such writs. But what state law may withhold altogether, it may withhold in part.

Article V, Section 5 of the Texas Constitution provides this Court with authority to entertain post-conviction writs of habeas corpus.13 Since amendment to this provision in 1977, however, that constitutional authority has been expressly made "[s]ubject to such regulations as may be prescribed by law," which is to say, the Legislature. In 1995, the Legislature exercised that constitutional regulatory authority to promulgate Article 11.071, including the abuse-of-the-writ provisions found in Section 5 of that statute.14 More than a year later, in Ex parte Davis,15 this Court upheld the validity of the Legislature's exercise of this regulatory authority, and specifically its authority to impose limitations on successive and abusive state post-conviction writs,16 against an array of constitutional challenges. Thus, subject only to the state constitutional mandate that the writ of habeas corpus "shall never be suspended[,]"17 it is by now well established that the Legislature may regulate the right to the writ of habeas corpus, and that such regulation legitimately may include imposing limitations on the ability of a post-conviction habeas applicant to file multiple writ applications challenging the same capital murder conviction.18

Accordingly, whether an Atkins claim can be recognized for the first time in a second post-conviction writ application will depend exclusively upon whether it fits the criteria of Article 11.071, Section 5.19 For those habeas applicants who filed their initial writs before Atkins was decided, this has not been an impediment, so long as they can establish a prima facie case for mental retardation.20 But for an applicant such as Blue, who filed his initial writ application after Atkins and nevertheless failed to invoke the absolute constitutional prohibition against executing the mentally retarded in that initial writ, the decision whether to permit him to proceed will be purely a function of whether he can meet one of the other criteria of Article 11.071, Section 5.21

Contrary to the applicant's assertion, application of Section 5 does not violate the federal constitution just because it might deny a particular applicant review of an allegation of facts that, if true, might impose a fundamental bar to execution. Indeed, current federal law would deny review on the merits to a similarly situated federal habeas petitioner. The Antiterrorism and Effective Death Penalty Act (AEDPA),22 does not, at least on its face, permit such a claim to be raised in "a second or successive" federal habeas corpus petition.23 It is unlikely the Supreme Court would ever hold the federal regime unconstitutional, given its own development, in extensive case law prior to the AEDPA, of rules governing the cognizability in federal habeas corpus of successive, abusive, and defaulted claims.24 In that case law, the Supreme Court has never identified a constitutional prohibition it regarded as so absolute that it would wholly nullify the State's otherwise legitimate interest in finality of its judgments upon the mere allegation that the prohibition applies.

Before the advent of the AEDPA, the federal doctrine of abuse of the writ was "a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions."25 The doctrine ultimately evolved into a rule that defined whether a federal habeas petitioner could proceed with a successive or abusive petition along the same lines that the Supreme Court had earlier defined whether a federal court could entertain a claim that had been procedurally defaulted during state proceedings.26 That is to say, in the federal system, a petitioner would be...

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