Opinion
NO. WR-49,391-03
04-22-2019
EX PARTE John William KING, Applicant
A. Richard Ellis, Attorney at Law, 75 Magee Avenue, Mill Valley, CA 94941, for Applicant. Sue Korioth, Special Prosecutor for the Jasper County D.A.’s Office, P.O. Box 600103, Dallas, Texas 75360-0103, Stacey Soule, State's Attorney, Austin, for State.
A. Richard Ellis, Attorney at Law, 75 Magee Avenue, Mill Valley, CA 94941, for Applicant.
Sue Korioth, Special Prosecutor for the Jasper County D.A.’s Office, P.O. Box 600103, Dallas, Texas 75360-0103, Stacey Soule, State's Attorney, Austin, for State.
CONCURRING OPINION
YEARY, J., filed a concurring opinion.
In this eleventh-hour subsequent application for writ of habeas corpus in a capital case, Applicant invokes the opinion of the United States Supreme Court in McCoy v. Louisiana , ––– U.S. ––––, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018), which was decided almost a year ago. He contends that he has satisfied the gateway criteria of Section 5(a)(1) of Article 11.071 of the Code of Criminal Procedure because McCoy constitutes new law that was unavailable to him at the time he filed his initial writ application in 2001. See TEX. CODE CRIM. PROC. art. 11.071 § 5(a)(1) (courts may not consider the merits of a claim raised for the first time in a subsequent capital writ application unless it contains specific facts to show that it relies upon, among other things, a legal basis that was unavailable for use in previous applications).
McCoy either constitutes new law for purposes of Section 5(a)(1) of Article 11.071, or it does not. If it is not new law, it cannot serve to excuse Applicant's failure to raise the issue in prior writ applications. But if it is new law, Applicant must still satisfy the Court that the new law it represents applies retroactively to afford him relief in a post-conviction context. See Ex parte Lave , 257 S.W.3d 235, 237 (Tex. Crim. App. 2008) (following Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) as a matter of state habeas practice to hold that the Sixth Amendment holding of Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) will not be applied retroactively to cases that were already final when it was announced). However, Applicant does not even acknowledge that retroactivity is an issue, much less does he make any argument why McCoy ought to be given retroactive application. For that reason, if no other, he has failed to allege that the new law meets the Teague criteria, and that he may therefore rely upon it for relief in a collateral attack.
Nor am I inclined to believe that either the United States Supreme Court or this Court would actually hold that McCoy should apply to cases that were already final when McCoy was decided. See Chaidez v. United States , 568 U.S. 342, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) (holding that the opinion in Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) rendered a "new" rule of constitutional law for Teague purposes, and declaring that, because Chaidez did not argue that either of the Teague exceptions applied, he could not rely upon it in a collateral attack); Ex parte Maxwell , 424 S.W.3d 66, 71 (Tex. Crim. App. 2014) (holding that, in determining questions of the retroactivity of new constitutional rules to final state convictions, this Court will "follow Teague as a general matter of state habeas practice"). It seems to me that McCoy 's rule, assuming it is new, is neither "substantive" nor "a ‘watershed’ rule of criminal procedure" in contemplation of Teague . See Maxwell , 424 S.W.3d at 70–71 (explaining the Supreme Court's narrow implementation of the exceptions to the Teague prohibition against the retroactive application of "new" rules of constitutional law).
This Court issued its mandate in Applicant's direct appeal on November 13, 2000. There was no petition for certiorari to the United States Supreme Court.
Substantive rules "set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State's power to impose." Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 729, 193 L.Ed.2d 599 (2016). As for "watershed" rules of criminal procedure, "[t]his class of rules is extremely narrow and ‘it is unlikely that "any ... has yet to emerge." ’ " Schriro v. Summerlin , 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (quoting Tyler v. Cain , 533 U.S. 656, 667 n.7, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001), which in turn quotes Sawyer v. Smith , 497 U.S. 227, 243, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) ). See also Maxwell , 424 S.W.3d at 70 ("[I]t is unlikely that any more new [watershed] rules will emerge.").
In any event, like Chaidez, Applicant makes no argument that an exception applies. See Chaidez , 568 U.S. at 347 n.3, 133 S.Ct. 1103 (noting that Chaidez argued none of the Teague exceptions, and therefore regarding the exceptions as not "relevant" to the case). Had Applicant thought he had a strong enough argument that a Teague exception should apply, he has had plenty of time since McCoy was decided to present that argument to us. We should not grant him a stay of execution in order to address an indispensable issue that, even at this eleventh hour, he has not acknowledged.
I therefore join the Court's per curiam order dismissing Applicant's latest subsequent application for writ of habeas corpus and denying his motion to stay the execution.
Newell, J. filed a concurring opinion.
Even if we were to assume without deciding that McCoy v. Louisiana amounts to new law that overcomes the statutory bar against subsequent writs, this case is factually distinguishable from McCoy . Unlike in McCoy , the record here does not demonstrate that Applicant's attorneys conceded guilt at trial. Further, the record does not demonstrate that Applicant maintained his innocence consistently as McCoy did. For me, it is enough to simply say that the unique circumstances present in McCoy are not present in this case; Applicant has not made a prima facie case for relief under the so-called "new" law.
––– U.S. ––––, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018).
––– U.S. ––––, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018).
This is evident in the Fifth Circuit's case denying federal habeas relief in which Applicant litigated a similar claim. In King v. Davis , Applicant argued broadly that his trial counsel was constitutionally ineffective for failing to adequately present the case for King's innocence during trial. As part of that claim, Applicant pointed to the same decisions and actions of trial counsel that he points to in this writ. Noting that counsel faced an uphill battle from the start, the Fifth Circuit held that counsel acted reasonably and maximized King's chances of acquittal. The United States Supreme Court denied certiorari regarding that decision after having decided McCoy .
883 F.3d 577, 581 (5th Cir. 2018).
See Moore v. Texas , ––– U.S. ––––, 139 S.Ct. 666, ––– L.Ed.2d –––– (2019).
Id. at 586.
––– U.S. ––––, 139 S.Ct. 413, 202 L.Ed.2d 314 (2018).
Now, Applicant re-casts his claim as "trial counsel overrode his Sixth Amendment right to present an innocence defense." Putting aside how this may stretch the holding of McCoy , I see very little difference between Applicant's claims in federal court and the ones made here despite Applicant's attempt at re-branding. If the United States Supreme Court was not interested in Applicant's previous federal claims, it seems unlikely the Court will be interested in Applicant's claims here. Of course, that Court's refusal to grant review is not generally indicative of anything, approval or disapproval, of a lower court's opinion. Nevertheless, I would leave it to the higher court to address that possible inconsistency in this case rather than wait years for clarification.
With these thoughts, I concur.
DISSENTING OPINION
Keasler, J., filed a dissenting opinion, in which Hervey, Richardson, and Walker, JJ., joined.
I don't know what the outcome of this case would have been had we granted King's motion for stay of execution and taken more time to consider his claims. It may very well be, as Judge Yeary contends, that after carefully considering the arguments presented by both sides, we would come to the conclusion that the Supreme Court's holding in McCoy v. Louisiana 1 does not afford relief to those whose convictions were already final when that case was decided. It may very well be, as Judge Newell argues, that King's claim will ultimately fail on its merits, irrespective of its procedural availability (or unavailability) at this hour.
What I do know is this: A death-sentenced man who has asserted his innocence since his capital-murder trial has asked us to review his claim that his trial lawyer overrode his express wishes to pursue a defense consistent with his innocence. In light of this Court's recent earnest, but ultimately unsuccessful, attempts to implement new Supreme Court precedent in death-penalty cases,2 and especially in light of the horrible stain this Court's reputation would suffer if King's claims of innocence are one day vindicated (or, perhaps, if the Supreme Court eventually decides that McCoy should apply retroactively), I think we ought to take our time and decide this issue unhurriedly. I would grant the stay.
What harm do we risk by taking that course? If King's claims lack merit, then the justice he so richly deserves will only have been delayed. If, on the off chance, his claims are meritorious, the Court's decision today will have paved the way for an injustice that can never be undone. A few months' delay seems a small price to pay to avoid that horrifying possibility—even if it is but a slight possibility.
Respectfully, I dissent.