Ex Parte Graves

Decision Date02 January 2002
Docket NumberNo. 73,927.,73,927.
Citation70 S.W.3d 103
PartiesEx parte Anthony Charles GRAVES, Applicant.
CourtTexas Court of Criminal Appeals

Roy E. Greenwood, Austin, for appellant.

Charles M. Mallin, Assist. DA, Fort Worth, for state.

OPINION

COCHRAN, J., delivered the opinion of the Court, in which KELLER, P.J., MEYERS, WOMACK, KEASLER, and HERVEY, J.J., joined.

In his third post-conviction death penalty writ, applicant asks us to consider the following issue: does an allegation in a subsequent writ application that prior habeas corpus counsel was not "competent" under article 11.071, section 2(a) of the Texas Code of Criminal Procedure:1 1) give rise to a cognizable habeas corpus claim; and 2) fulfill the requirements under article 11.071, section 5 for having this Court consider the merits of a subsequent writ? Because we find that competency of prior habeas counsel is not a cognizable issue on habeas corpus review, applicant's allegation cannot fulfill the requirements of article 11.071 section 5 for a subsequent writ. Therefore, we dismiss applicant's writ under article 11.071 section 5(c) as an abuse of the writ.

I.

A Burleson County, Texas grand jury indicted applicant in May 1994 for intentionally and knowingly causing the stabbing and shooting deaths of one adult and five children. The evidence at trial showed that in the early morning hours of August 18, 1992, applicant and an accomplice, Robert Carter, killed all six victims in a home belonging to the adult victim. Applicant's motive was anger at the female homeowner for receiving a job promotion he thought his mother should have received. The five slain children just happened to be in the house at the time. After stabbing and shooting the victims, applicant and Carter used gasoline to burn the house. When police officers first questioned the accomplice, he implicated himself and applicant in the murders and arson. Both applicant and Carter later testified before the grand jury and denied any involvement. While applicant and Carter were both in county jail awaiting trial, however, several witnesses overheard them make incriminating statements to each other.2

The State tried Robert Carter first. A jury convicted Carter of capital murder and sentenced him to death. He then testified against applicant at applicant's trial in exchange for the State's promise not to prosecute Carter's wife, who had also been indicted for this capital murder.3 Applicant presented an alibi defense, offering evidence that he had spent the evening of the murders with his girlfriend, Yolanda Mathis. He claimed that the accomplice "framed" him.

After a twelve day trial, the jury convicted applicant of capital murder. The jury answered `yes' to article 37.0714 special issues 1 and 2 and `no' to special issue 3. Accordingly, on November 3, 1994, the trial court assessed the death penalty against applicant.

Applicant filed a motion for new trial and an amended motion for new trial, raising twenty-six separate grounds. The trial court heard applicant's original and amended motions for new trial on January 13, 1995, and denied both in an order dated January 24, 1995. Applicant appealed directly to this Court and raised thirty-six points of error, complaining of legal sufficiency, the accomplice witness testimony prosecutorial misconduct, the admission of evidence, and irregularities during voir dire. This Court overruled each point of error and affirmed the trial court's judgment. Graves v. State, 950 S.W.2d 374 (Tex.Crim.App.1997) (not designated for publication). We denied applicant's May 12, 1997 motion for rehearing. Applicant did not seek certiorari review.

Applicant filed his first application for writ of habeas corpus on June 29, 1998, pursuant to article 11.071 of the Code of Criminal Procedure. The convicting court held evidentiary hearings regarding applicant's seven claims5 and entered its findings of fact and conclusions of law on February 24, 1999, recommending that this Court deny relief. On June 9, 1999, this Court ordered applicant's writ filed and set for submission on two claims regarding an alibi witness (applicant's girlfriend, Yolanda Mathis) who was subpoenaed for trial by the defense but never testified. This Court heard oral argument on applicant's claims, but denied relief on applicant's original writ. Ex parte Graves, No. 73,424 (Tex.Crim.App. February 9, 2000) (not designated for publication).

On June 9, 1999 (the same day that this Court ordered claims from applicant's application for a writ of habeas corpus filed and set), applicant attempted to supplement 6

his application. We concluded that applicant's filing was an "untimely supplement" to the initial application, which did not comply with article 11.071, section 5(a) requirements regarding subsequent applications for a writ of habeas corpus. Accordingly, this Court dismissed applicant's filing as an "abuse of writ" under article 11.071, section 5(c). Ex Parte Graves, No. 40,812-02 (Tex.Crim.App. February 16, 2000) (not designated for publication).

Applicant filed a third writ on March 27, 2000, raising two new issues.7 Then, on July 19, 2000, applicant filed an amendment and supplement to that third petition. In his latest petition, applicant claims, inter alia,8 that his original habeas counsel was constitutionally ineffective because the latter failed to include four claims (the four additional claims contained in applicant's first "supplement") in applicant's original writ. The issue before us is whether applicant is entitled to have the merits of this ineffective assistance of prior habeas corpus counsel claim heard on a subsequent writ.9

II.

The availability of habeas review for purely constitutional claims is a relatively recent development in American jurisprudence. For more than seven hundred years, the Great Writ served almost exclusively to contest a court's jurisdiction.10 Early post-colonial American jurists did not consider the common law writ of habeas corpus a mechanism to ensure accuracy or fairness in trial proceedings; these were matters for direct appeal.11

Restricting habeas review to claims of jurisdictional defects permitted unconstitutional imprisonment if the confining court had proper jurisdiction over the person and subject matter. The Supreme Court developed a theory of "lost jurisdiction"12 to address the resulting unfairness, only to abandon the jurisdictional limitation four years later in Waley v. Johnston.13 In Waley, the Supreme Court lifted the jurisdictional limitation and acknowledged that the writ was available in federal courts to consider constitutional claims, even when the confining court had proper jurisdiction.14

The Supreme Court greatly expanded the scope of federal habeas corpus review in Brown v. Allen,15 holding that all federal constitutional questions raised by state petitioners were cognizable on federal habeas review, even if the state had fully and fairly adjudicated them. Justice Jackson concurred in the Brown opinion, but warned that the Court had "sanctioned progressive trivialization of the writ until floods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own."16

The inevitable tension that arises when a society attempts to balance important, interrelated, and often competing goals marks the last fifty years of habeas corpus jurisprudence. Courts seek to ensure fundamental fairness to all criminal defendants while simultaneously providing finality of judgments, enhancing deterrence, and maintaining an administratively viable judicial system.

Reasonable minds have disagreed regarding the proper balancing of these interests.17 Even under the most expansive understanding of the writ's post-conviction availability, however, claimants have had to allege and prove, by preponderance of the evidence, the violation of a specific constitutional provision.18

Thus, both federal and Texas courts have confined the scope of post-conviction writs of habeas corpus to jurisdictional or fundamental defects and constitutional claims.19 Violations of statutes, rules, or other non-constitutional doctrines are not recognized.20 Thus, for example, a trial court's failure to adhere to statutory procedures serving to protect a constitutional provision violates the statute, not the constitutional provision itself.21 It is true that this Court has not always adhered to its own clear statements of its habeas corpus jurisdiction.22 We are mindful of the fact that we have not always addressed the threshold issue of our habeas corpus jurisdiction before addressing the merits of a given claim. We should.

III.

Applicant contends that he was denied effective assistance of counsel during his initial habeas proceedings because his first habeas counsel failed to include claims in applicant's original habeas petition (namely, the claims that first habeas counsel raised in his second or "supplemental" habeas petition, which we dismissed).23 Applicant further contends that he is entitled to bring a third24 habeas petition to assert a claim of ineffective assistance by his first habeas counsel, which deprived him of his due process rights under both the United States and Texas constitutions. We reject his contention for a number of reasons.

A. There is no constitutional right to effective assistance of counsel on a writ of habeas corpus.

It is a well established principle of federal and state law that no constitutional right to effective assistance of counsel exists on a writ of habeas corpus.25 The Supreme Court explained in Pennsylvania v. Finley26 that because a defendant "has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction," then clearly, "he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process."27 Moreover, the Court explained, a convicted person has no...

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11 books & journal articles
  • Right to Counsel and Effective Assistance of Counsel
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    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2021 Contents
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    ...counsel on habeas corpus matters, and therefore, this is not a valid issue for a subsequent writ under CCP Art. 11.071. Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002). In some instances, counsel will not be ineffective for a failure to raise sufficiency of evidence on appeal. Ex part......
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