Rocha v. Thaler

• Citation: 626 F.3d 815
• Decision Date: 17 November 2010
• Docket Number: Nos. 05-70028,Nos. 09-70018,s. 05-70028,s. 09-70018
• Parties: Felix ROCHA, Petitioner-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

626 F.3d 815 Felix ROCHA, Petitioner-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee. Nos. 05-70028, 09-70018. United States Court of Appeals, Fifth Circuit. Nov. 17, 2010.

Appeals from the United States District Court for the Southern District of Texas.

ON PETITION FOR REHEARING

(Opinion Sept. 9, 2010, 5th Cir.2010, 619 F.3d 387)

Kathryn M. Kase (Court-Appointed), David R. Dow, Managing Sr. Counsel (argued) (Court-Appointed), Texas Defender Serv., Houston, TX, for Rocha.

Edward Larry Marshall (argued), Postconviction Lit. Div., Austin, TX, for Thaler.

Before JOLLY, HIGGINBOTHAM and HAYNES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We treat Petitioner-Appellant Felix Rocha's petition for rehearing en banc as a petition for panel rehearing pursuant to Fifth Circuit Internal Operating Procedures under Federal Rule of Appellate Procedure 35. We deny Rocha's petition for rehearing for the same reasons we held he is not entitled to have a federal court review the merits of his federal constitutional claim for habeas relief, reasons which this opinion clarifies and elaborates.

The Texas Court of Criminal Appeals ("the CCA") determined that Rocha's state habeas application could not satisfy the requirements of Texas Code of Criminal Procedure art. 11.071 § 5(a)(3) and dismissed it as an abuse of the writ under art. 11.071 § 5(c). Rocha's petition for rehearing contends that we erred by holding that the CCA's dismissal of his state habeas application rested on an independent and adequate state-law ground. As we explain in Part I, Rocha's contention is without merit. It is true that § 5(a)(3) incorporates a federal standard—specifically, the actual-innocence-of-the-death-penalty standard articulated by Sawyer v. Whitley.¹ However, a claim of actual innocence of the death penalty under Sawyer is not itself a claim for relief under the Antiterrorism and Effective Death Penalty Act ("AEDPA").² It is a gateway claim that, ifsuccessful, authorizes a federal court to review the merits of a habeas claim that would otherwise be procedurally barred. With only a few possible exceptions, ³ a gateway claim of actual innocence of the death penalty and a federal constitutional claim for habeas relief are not equivalent. Section 5(a)(3) allows the CCA to decide the former without reaching the merits of the latter. A determination by the CCA that a successive habeas application does not satisfy the requirements of § 5(a)(3) does not empower us to reach the merits of the underlying claim. All it empowers us to do is make a de novo determination of whether the petitioner is actually innocent of the death penalty—the same determination we make whenever we are asked to excuse a procedural default.

Rocha contends that our decision cannot be reconciled with this Court's prior decisions in Rivera v. Quarterman,⁴ Ruiz v. Quarterman,⁵ and Balentine v. Thaler.⁶ The state responds that Hughes v. Quarterman⁷ is evidence of the correctness of our approach. Neither argument is fully sound. The cases the parties rely on construe Texas Code of Criminal Procedure article 11.071 § 5(a)(1). The CCA dismissed Rocha's state habeas application because his application did not satisfy § 5(a)(3). As we explain in Part II, our precedent interpreting § 5(a)(1) does not compel us to conclude that the CCA did not employ an independent state-law ground of decision when it determined that Rocha could not satisfy § 5(a)(3). When the CCA determines that a successive state habeas application does not satisfy § 5(a)(1) and dismisses it as an abuse of the writ, it sometimes does so because it has concluded that the federal constitutional claim on which the application seeks relief is meritless. We have previously held that in such cases the CCA's decision is interwoven with the merits of the federal constitutional claim and thus does not rest on an independent state-law ground. By contrast, when the CCA determines that a successive state habeas application does not satisfy § 5(a)(3), it does so because it has concluded that the habeas applicant cannot establish that he is actually innocent of the death penalty. To arrive at that conclusion, the CCA need not, and does not, consider the merits of the underlying federal constitutional claim.⁸

I.

A full summary of the facts is provided in our opinion; only those most pertinent are included here. A jury convicted Rochaof capital murder, and on the jury's answers to the special issues the trial court sentenced him to death. Rocha filed multiple unsuccessful habeas applications in the Texas state courts. He then filed a federal habeas petition, which the district court denied and dismissed. Rocha then filed a final habeas application with the CCA, the first of his state habeas applications in which he raised for the first time the ineffective-assistance-of-counsel-at-sentencing claim⁹ that he presses here. The Texas Court of Criminal Appeals found that the allegations of Rocha's final state habeas application "do not satisfy the requirements of Article 11.071, section 5(a)(3)" and therefore dismissed his application "as an abuse of the writ."¹⁰ After the CCA dismissed his successive application, Rocha returned to the district court and filed a motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure. In it, he contended that the CCA's order decided his Wiggins claim on the merits, thereby opening it up for plenary review by a federal court. The district court disagreed and found the claim was procedurally defaulted. We affirmed.

A.

A federal court generally cannot review the merits of a state prisoner's habeas petition if the claims in the petition are procedurally defaulted.¹¹ A habeas claim can be procedurally defaulted in either of two ways.¹² First, if the prisoner has never fairly presented that claim to the highest available state court, the claim is unexhausted. ¹³ The parties agree that Rocha exhausted his Wiggins claim by presenting it to the CCA in a state habeas application. Second, if the prisoner has presented the claim to the highest available state court but that court has dismissed the claim on a state-law procedural ground instead of deciding it on the merits, the claim has been decided on an independent and adequate state-law ground.¹⁴ The parties vigorously dispute whether the CCA's dismissal of Rocha's Wiggins claim as an abuse of the writ rested on an independent and adequate state law-ground.

"If a state court clearly and expressly bases its dismissal of a prisoner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for dismissal, the prisoner has procedurally defaulted his federal habeas claim."¹⁵ The state proceduralrule must be "both independent of the merits of the federal claim and an adequate basis for the court's decision."¹⁶ A state procedural rule is an adequate basis for the court's decision only if it is "strictly or regularly applied evenhandedly to the vast majority of similar claims."¹⁷ The parties agree that a state habeas application that is dismissed because it does not satisfy § 5(a)(3) has been dismissed on an adequate state-law ground. A state procedural rule operates independently of the merits of the federal claim when a federal court could reverse the state court's disposition of any federal-law issues presented by the petition and, because of the state court's resolution of the state-law issues, the outcome of the case would not change.¹⁸ Rocha's petition for rehearing argues that the CCA's determination that Rocha's state habeas application did not satisfy § 5(a)(3) did not operate independently of the merits of his Wiggins claim.

Before turning to our discussion of § 5(a)(3), we pause for a precise explanation of how Texas's abuse-of-the-writ statute operates. Texas Code of Criminal Procedure art. 11.071 § 5(c) requires a successive state habeas application to be dismissed as an abuse of the writ unless it can satisfy the requirements of one of the three subsections of art. 11.071 § 5(a). The rule codified in § 5(c)—that a Texas habeas applicant must bring all of his claims in his first application—is grounded in state law and is procedural in nature. Standing alone, § 5(c) inarguably would be an independent state-law ground for decision.¹⁹ But § 5(c) does not stand alone. Its applicability is conditioned on a finding that none of the three subsections of § 5(a) has been satisfied. Our core inquiry thus reduces to this: Does a finding that § 5(a)(3) has not been satisfied transform a dismissal under § 5(c) from one that rests on state law to one that rests on federal law?

Section 5(a)(3) provides that when a Texas prisoner files a successive habeas application after having previously filed an initial application,

a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that: ... (3) by clear and convincing evidence, 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, 37.0711, or 37.072.²⁰

We are obliged to construe and apply § 5(a)(3) as the CCA construes and applies it.²¹ Therefore we begin our analysis with a discussion of Ex parte Blue,²² the CCA's seminal interpretation of the statute.

In Blue, the CCA held that § 5(a)(3) necessitates "a threshold showing of evidence that would be at least sufficient to support an ultimate conclusion, by clear and convincing evidence, that no rational factfinder would fail to find" that "the applicant is ineligible for the death penalty." ²³ In other words, the CCA makes a threshold determination of whether the facts and evidence contained in the successive habeas application, if true,...