Ex parte Preyor

• Decision Date: 24 July 2017
• Docket Number: NO. WR-72,660-04,WR-72,660-04
• Citation: 537 S.W.3d 1 (Mem)
• Parties: EX PARTE Taichin PREYOR, Applicant
• Court: Texas Court of Criminal Appeals

537 S.W.3d 1 (Mem)

EX PARTE Taichin PREYOR, Applicant

NO. WR-72,660-04

Court of Criminal Appeals of Texas.

JULY 24, 2017

Hilary Sheard, Texas Bar #50511187, 7421 Burnet Road, #300–512, Austin, TX 78757, Tel: 512.524.1371, for Applicant.

Nicholas "Nico" Lahood, Criminal District Attorney, Bexar County, Texas, 300 Dolorosa St. No 5072, San Antonio, TX 78025, Stacey Soule, State's Attorney, Austin, TX, for the State.

ORDER

Per curiam.

We have before us a post-conviction application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5 and a motion to stay applicant's execution.

In March 2005, a jury convicted applicant of the offense of capital murder for murdering a person in the course of committing or attempting to commit burglary. TEX. PENAL CODE § 19.03(a)(2). The offense was committed in February 2004. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Preyor v. State , No. AP-75,119, 2008 WL 217974 (Tex. Crim. App. Jan. 23, 2008) (not designated for publication). On November 29, 2007, applicant filed in the trial court his initial post-conviction application for a writ of habeas corpus in which he raised eleven claims. His first subsequent writ application was filed in the trial court December 1, 2008. This Court denied applicant relief on the claims raised in his initial writ application and dismissed his first subsequent application. Ex parte Preyor , Nos. WR-72,660-01 and WR-72,660-02, 2009 WL 3474097 (Tex. Crim. App. Oct. 28, 2009) (not designated for publication). On December 21, 2009, applicant filed in the convicting court his second subsequent application. This Court also dismissed that application. Ex parte Preyor , No. WR-72,660-03, 2011 WL 5438390 (Tex. Crim. App. Nov. 9, 2011) (not designated for publication).

On July 18, 2017, applicant filed in the trial court his third subsequent application. In this application, applicant asserts that his trial counsel provided ineffective assistance of counsel because they failed to provide the robust mitigation investigation required by Wiggins v. Smith , 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

After reviewing applicant's writ application, we find that he has failed to satisfy the requirements of Article 11.071 § 5. Accordingly, we dismiss his writ application without reviewing the merits of his claims, and we deny his motion to stay his execution.

IT IS SO ORDERED THIS THE 24^th DAY OF JULY, 2017.

Newell, J., filed a concurring opinion in which Hervey and Richardson, JJ., joined.

Alcala, J., filed a dissenting opinion.

Yeary, J., not participating.

Newell, J., filed a concurring opinion in which Hervey and Richardson, JJ., joined.

I join the Court's order dismissing Applicant's third subsequent writ. I write separately to note that Applicant is not arguing that this is actually his first state-court writ because his initial state-court writ counsel did not file a proper "application." See Ex parte Medina , 361 S.W.3d 633, 641 (Tex. Crim. App. 2011). State habeas counsel filed a proper application that alleged specific facts supporting that application. At the evidentiary hearing, it was Applicant who instructed writ counsel not to present any testimony. See Preyor v. Stephens , 537 Fed.Appx. 412, 418 (5th Cir. July 25, 2013) (not designated for publication)(noting that Applicant testified under oath that he no longer wished to pursue his initial writ and wanted instead to pursue the writ prepared by retained writ counsel). This was not a "Machiavellian strategy" designed by habeas counsel to thwart the proper statutory procedure for filing a death penalty writ. Medina , 361 S.W.3d at 643. This was Applicant's choice. Even if Applicant had made the argument that he is entitled to file this third subsequent writ application as his first, Ex parte Medina would not justify that holding.

Instead, Applicant argues that this application is a subsequent writ application but it should not be dismissed as subsequent because state habeas counsel's failure to raise his current claim in the initial writ amounted to ineffective assistance of habeas counsel. Applicant acknowledges that this Court's decision in Ex parte Graves would preclude such a holding. See Ex parte Graves , 70 S.W.3d 103, 111 (Tex. Crim. App. 2002) (holding that a habeas applicant cannot claim constitutionally ineffective assistance of counsel in a post-conviction habeas corpus proceeding because there is no constitutional right to appointment of counsel in a post-conviction habeas corpus proceeding). Nevertheless, Applicant argues that we should overrule Graves in light of the United States Supreme Court holdings in Martinez v. Ryan and Trevino v. Thaler.

Recently, the United States Supreme Court made clear that the Martinez - Trevino exception to state procedural default in federal habeas corpus cases is a federal equitable exception not a constitutional mandate applied to the states. Davila v. Davis , ––– U.S. ––––, 137 S.Ct. 2058, 198 L.Ed.2d 603 (June 26, 2017). There, the United States Supreme Court reiterated not only that there is no constitutional right to counsel in state post-conviction proceedings, but also that Martinez v. Ryan did not recognize one. Id. at 2065 ("It follows, then, that in proceedings for which the Constitution does not guarantee the existence of counsel at all, attorney error cannot provide cause to excuse a default."). Faced with the opportunity to expand the Martinez - Trevino exception to claims beyond those involving ineffective assistance of trial counsel, the Court declined the invitation. Id. at 2066.

Indeed, courts have uniformly recognized that the Martinez - Trevino rule is a federal exception not a constitutional command to correct state court habeas proceedings. More specifically, courts have held that Martinez does not provide a basis for state courts to excuse petitioners from compliance with state procedural rules. See e.g., State v. Sabin , No. 2 CA-CR 2014-0014-PR, 2014 WL 2657526, at *2 (Ariz. Ct. App. June 12, 2014) (not designated for publication); Adkins v. State , 2015 Ark. 336, 469 S.W.3d 790, 795 (2015) ; Bunting v. State , 113 A.3d 1080 (Del. 2015) ; Kormondy v. State , 154 So.3d 341, 354 (Fla. 2015) ; Ah Sing v. State , 131 Hawai'i 331, 318 P.3d 621 (2014) (unpublished table decision); Schultz v. State , 159 Idaho 486, 362 P.3d 561, 565 (2015) ; People v. Sutherland , 373 Ill.Dec. 700, 994 N.E.2d 185, 191-92 (2013) ; Holt v. State , 364 P.3d 579 (Kan. Ct. App. 2016) ; Shane v. Commonwealth , No. 2012-CA-000914-MR, 2013 WL 6198353, at *5 (Ky. Ct. App. Nov. 27, 2013) (not designated for publication); State v. McBroom , 142 So.3d 59, 60 (La. Ct. App. 2014) ; Evans v. State , 868 N.W.2d 227, 230 (Minn. 2015) ; Salter v. State , 184 So.3d 944, 950 (Miss. Ct. App. 2015) ; Mason v. State , 488 S.W.3d 135, 142 (Mo. Ct. App. 2016) ; Sanchez v. State , 366 Mont. 132, 285 P.3d 540, 544 (2012) ; State v. Hessler , 288 Neb. 670, 850 N.W.2d 777, 786 (2014) ; Brown v. McDaniel , 331 P.3d 867, 871 (Nev. 2014) ; Lehman v. State , 847 N.W.2d 119, 125-26 (N.D. 2014) ; State v. Taylor , No. 102020, 2015 WL 1511036, at *3 (Ohio Ct. App. April 2, 2015) (not designated for publication); Cunningham v. Premo , 278 Or.App. 106, 373 P.3d 1167, 1177-78 (2016) ; Commonwealth v. Merritt , No. 2085 EDA 2014, 2015 WL 7194410, at *2 (Pa. Super. Ct. May 28, 2015) (not designated for publication); Kelly v. State , 404 S.C. 365, 745 S.E.2d 377, 377-78 (2013) ; Niles v. State , No. M2014-00147-CCA-R3-PC, 2015 WL 3453946, at *7 (Tenn. Crim. App. June 1, 2015) (not designated for publication). If Martinez had been intended to correct state procedures, the United States Supreme Court would not have allowed Arizona to continue following the very state court procedures at issue in Martinez. See Arizona v. Escareno–Meraz , 232 Ariz. 586, 307 P.3d 1013, 1014 (2013) ("Thus, Martinez does not alter established Arizona law."), cert. denied , ––– U.S. ––––, 134 S.Ct. 1943, 188 L.Ed.2d 967 (2014).

Applicant makes a number of claims regarding the representation by his retained federal writ counsel, particularly regarding her involvement in the state habeas proceedings. Yet, for Applicant to prevail, he must not only show the deficient conduct of writ counsel, he must also demonstrate prejudice by showing a reasonable probability that his claim regarding trial counsel would be meritorious. Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (noting that the test for prejudice requires a showing that there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different); see also Martinez , 566 U.S. at 14, 132 S.Ct. 1309 (holding that a prisoner may establish cause for a default for an ineffective assistance claim when the prisoner can establish that appointed counsel on the initial-review collateral proceeding was ineffective under the standards of Strickland v. Washington ). Trial counsel in this case filed a credible affidavit not only disputing claims that he conducted a cursory investigation, but also explaining that he repeatedly sought information regarding physical and sexual abuse of the Applicant. Neither Applicant nor his family or friends indicated such evidence existed. See Ex parte Martinez , 195 S.W.3d 713, 729 (Tex. Crim. App. 2006) (holding that trial counsel's decision not to further pursue an investigation into the defendant's background was reasonable given the lack of cooperation he received from the defendant and the defendant's family). Even applying the Martinez - Trevino exception here, Applicant has not shown a reasonable probability that he would have been entitled to relief.

Nevertheless, the United States...