Ex Parte Lave
Decision Date | 25 June 2008 |
Docket Number | No. AP-75,912.,AP-75,912. |
Parties | Ex parte Joseph Roland LAVE, Jr., Applicant. |
Court | Texas Court of Criminal Appeals |
Walter C. Long, Austin, for Appellant.
Shelly O'Brien Yeatts, Asst. District Atty., Dallas, Jeffrey L. Van Horn, State's Atty., Austin, for State.
This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5, on remand from the United States Supreme Court.
Applicant was convicted of capital murder on March 29, 1994. We affirmed the conviction and sentence on direct appeal.1 On January 26, 1998, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief.2
In his subsequent application (the one now on remand), applicant alleged that he was denied the right to confront witnesses against him in trial.3 He admitted that the legal basis for his claim depended on this Court overruling its previous opinion in Ex parte Keith,4 in which we held that Crawford v. Washington5 would not be applied retroactively in a Texas state-court collateral proceeding. Because applicant had not asserted that a new, previously unavailable, legal basis existed when he filed his subsequent application, this Court held that he had failed to show that he was entitled to review of his subsequent claim under Article 11.071, Section 5(a)(1). We dismissed the application as an abuse of the writ and denied his motion for stay of execution.6
Applicant then filed a petition for a writ of certiorari and an application for stay of execution in the United States Supreme Court.7 The district court in Dallas County withdrew the order setting an execution date. On February 25, 2008, the Supreme Court granted applicant's petition for a writ of certiorari, vacated this Court's judgment, and remanded the case to this Court8 for further consideration in light of Danforth v. Minnesota.9
In Whorton v. Bockting,10 the Supreme Court made clear that federal law does not require state courts to apply the holding in Crawford to cases that were final when Crawford was decided. In Danforth, the Supreme Court granted certiorari to consider whether Teague or any other federal rule of law prohibits them from doing so. The answer was no:
New constitutional rules announced by this Court that place certain kinds of primary individual conduct beyond the power of the States to proscribe, as well as "watershed" rules of criminal procedure, must be applied in all future trials, all cases pending on direct review, and all federal habeas corpus proceedings. All other new rules of criminal procedure must be applied in future trials and in cases pending on direct review, but may not provide the basis for a federal collateral attack on a state-court conviction. This is the substance of the "Teague rule" described by Justice O'Connor in her plurality opinion in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The question in this case is whether Teague constrains the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion. We have never suggested that it does, and now hold that it does not.11
That is, federal law neither requires state courts to apply the holding in Crawford to cases that were final when that case was decided, nor prohibits them from doing so.
In Taylor v. State,12 which predated both Bockting and Danforth, we had held that 13 Thus, in Ex parte Keith — which this Court decided before either Bockting or Danforth were decided — we applied Teague and held that because the Crawford rule does not necessarily improve the trial court's truth-finding capabilities, nor seriously diminish the likelihood of an accurate conviction, it is not subject to the Teague exception and does not apply retroactively to cases on collateral review.14 In Bockting, the Supreme Court held, as we had already held in Keith, that the Crawford rule did not meet the Teague exception. And in Danforth, the Supreme Court held that state courts are not required to follow the federal retroactivity principles expressed in Teague.
Although not required by the United States Supreme Court to do so, we adhere to our retroactivity analysis in Keith and its holding that Crawford does not apply retroactively to cases on collateral review in Texas state courts.15 We again dismiss this subsequent application for writ of habeas corpus under Texas Code of Criminal Procedure, Article 11.071, Section 5.16
3. See Lave v. Dretke, 444 F.3d 333, 334 (5th Cir.2006) () , cert. denied sub nom. Lave v. Quarterman, ___ U.S. ___, 127 S.Ct. 1482, 167 L.Ed.2d 227 (2007).
7. Petition for Writ of Certiorari, Lave v. Texas, No. 07-6393 (U.S. Sept. 10, 2007).
11. Danforth, 128 S.Ct. at 1032-33 (footnote omitted).
13. Id. at 679.
14. 202 S.W.3d at 771.
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