            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                          NO. AP-76,665

                           Ex parte ADRIAN CHAVEZ, Applicant

               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                             HARRIS COUNTY


                           K ELLER, P.J., filed a dissenting opinion.


       I agree with the Court and with Judge Price that applicant’s claim must fail. I dissent because

I believe that the claim should be dismissed rather than denied on the merits. I also write separately

to review the differences in the ways that we treat claims, depending on whether testimony is

perjured or merely false, and whether the State knew or did not know of that fact.

                           A. Procedural Question: Dismiss or Deny?

       Under § 4, we cannot consider the merits of a subsequent habeas application unless one of

two exceptions is satisfied.1 The Court holds that applicant has satisfied the “unavailability”




       1
           TEX . CODE CRIM . PROC. art. 11.07, § 4(a).
                                                                                       CHAVEZ — 2

exception found in § 4(a)(1) because our decision in Ex parte Chabot2 constitutes a new legal basis

that did not exist when applicant’s first habeas application was filed. I cannot agree.

        For a “new legal basis” to satisfy the statutory unavailability exception, it must be true that

“the current claims and issues have not been and could not have been presented previously in an

original application . . . filed under this article because the . . . legal basis for the claim was

unavailable on the date the applicant filed the previous application.”3 Applicant’s claim fails under

both the “have not been” and the “could not have been” aspects of the unavailability exception.

        The legislature has specifically defined what constitutes an “unavailable” legal basis:

        For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before
        a date described by Subsection (a)(1) if the legal basis was not recognized by and
        could not have been reasonably formulated from a final decision of the United States
        Supreme Court, a court of appeals of the United States, or a court of appellate
        jurisdiction of this state on or before that date.4

The statute is not satisfied by the mere fact that we have never recognized the legal basis in question.

Habeas applicants are responsible for knowing, not only about decisions from this Court and the

United States Supreme Court, but also about the decisions of the Texas Supreme Court, Texas courts

of appeals, and United States courts of appeals. If any of those courts have recognized the legal

basis, or issued a decision from which the legal basis could have been reasonably formulated, then

the unavailability exception is not met.5


        2
            300 S.W.3d 768 (Tex. Crim. App. 2009).
        3
            Art. 11.07, § 4(a)(1).
        4
            Id., § 4(b) (emphasis added).
       5
         See also Ex parte Hood, 211 S.W.3d 767, 775 (Tex. Crim. App. 2007), disposition changed
on reh’g, 304 S.W.3d 397 (Tex. Crim. App. 2010). The statute does not make habeas applicants
                                                                                   (continued...)
                                                                                       CHAVEZ — 3

       Sanders v. Sullivan is a case from a United States court of appeals that is not exactly on point,

but I believe that applicant’s claim could reasonably have been formulated from it.6 In that case, the

Second Circuit recognized that a due-process violation could be shown through the State’s

unknowing use of perjured testimony:

       In our view however, it is indeed another matter when a credible recantation of the
       testimony in question would most likely change the outcome of the trial and a state
       leaves the conviction in place. In this case, we believe that allowing the conviction
       to stand violates due process.7

                                                ***

       There is no logical reason to limit a due process violation to state action defined as
       prosecutorial knowledge of perjured testimony or even false testimony by witnesses
       with some affiliation with a government agency. Such a rule elevates form over
       substance. It has long been axiomatic that due process requires us “to observe that
       fundamental fairness essential to the very concept of justice.” It is simply intolerable
       in our view that under no circumstance will due process be violated if a state allows
       an innocent person to remain incarcerated on the basis of lies.8

       Sanders was concerned with perjured testimony. It did not hold that the State’s unknowing

use of false, but not perjured, testimony could violate due process. But neither did Chabot, which

also involved only perjured testimony, and which applicant relies on today as a “new legal basis.”9



(...continued)
responsible for knowing the decision of state appellate courts from other states, e.g. the Supreme
Court of California.
       6
           863 F.2d 218 (2d Cir. 1988).
       7
           Id. at 222 (citations omitted).
       8
           Id. at 224 (citation omitted).
       9
           See Chabot, 300 S.W.3d at 772 (“[W]e agree with the convicting court that the
circumstances of the present case merit a finding that the applicant’s due-process rights were
violated, notwithstanding the absence of the State's knowledge of the perjured testimony at the time
                                                                                      (continued...)
                                                                                        CHAVEZ — 4

Chabot was decided after applicant’s first habeas application, but Sanders was decided before it.

If, before his first application, applicant could have reasonably formulated a claim that due process

could be violated by the State’s unknowing use of false (not perjured) testimony, he fails to establish

a new legal basis for his claim.10 I believe that applicant could have formulated this claim from

Sanders. And this belief is vindicated by the fact that he actually did formulate it: he raised it in his

first application.

        This brings us to the reason applicant’s claim fails the other aspect of the unavailability

exception: he has actually already presented the claim. The unavailability exception is met only by

claims that “have not been and could not have been presented previously.” Because applicant

presented his claim previously, it does not fall within the unavailability exception.

        By raising his claim in his original application, applicant gains an advantage compared to the

litigant who fails to do so: there is always the possibility that this Court will reconsider a previous




(...continued)
of trial.”).
        10
            See Ex parte Fontenot, 3 S.W.3d 32 (Tex. Crim. App. 1999) (Even though cases of Ex
parte Jarrett, 891 S.W.2d 935 (Tex. Crim. App.1994), and Ex parte Wilson, 956 S.W.2d 25 (Tex.
Crim. App.1997), recognizing an ineffective-assistance claim arising out counsel’s failure to tell a
defendant of his right to file a PDR on his own, had not yet been decided when applicant’s initial
application was filed, the claim could have been reasonably formulated from statement in Ayala v.
State, 633 S.W.2d 526 (Tex.Crim.App.1982), that an ineffective-assistance claim could arise if the
defendant was deprived of the right to file a PDR because counsel volunteered to file one but failed
to do so.).
                                                                                      CHAVEZ — 5

application.11 Although reconsideration should be a rare event,12 it ought to be available for a false-

testimony claim that has been diligently pursued and would be meritorious under the Court’s current

standards.13 I agree, however, for the reasons given by the Court, that applicant cannot establish

materiality, so a reconsideration of the previous application is not warranted.

       It is worth pointing out that applicant essentially receives a merits review of his claim in all

three of the opinions issued in this case: from the Court in denying his application, from Judge Price

in concluding that applicant fails to satisfy § 4, and from me in concluding that reconsideration of

applicant’s original application is not warranted. But how that review occurs is important because

what this Court says here may impact future cases.14 We should not suggest that applicants who

have failed to diligently pursue false-testimony claims have satisfied the legislative scheme set out

in § 4. The legislature made habeas applicants responsible for what happens in the federal appellate

courts, not only for express holdings, but for legal theories that could be reasonably formulated from

those holdings. We must give effect to the statute as it is written.15

                                B. False-Testimony Jurisprudence



       11
           A motion for rehearing from an order denying relief in an Article 11.07 habeas proceeding
is not allowed, but we may reconsider the case on our own initiative. TEX . R. APP . P. 79.2(d); see
also Ex parte Moreno, 245 S.W.3d 419, 427-29 (Tex. Crim. App. 2008).
       12
            See Moreno, 245 S.W.3d at 427-29; see also id. at 431-32 (Keller, P.J., concurring).
       13
          Id. at 429 (reconsideration warranted, in part, because defendant had not “slumbered on
his rights”).
       14
          See Ex parte Hood, 304 S.W.3d 397, 409 (Tex. Crim. App. 2010) (subsequent writ
holding guided by desire to treat the applicant the same as similarly situated applicants in prior
cases).
       15
            Ex parte Smith, 977 S.W.2d 610, 611 (Tex. Crim. App. 1998).
                                                                                     CHAVEZ — 6

       The general harm standard on habeas is that an applicant will be granted relief if he can show,

by a preponderance of the evidence, that the error or misconduct affected the outcome of the

proceedings.16 It is perhaps time to recognize that the application of the general harm standard on

habeas corpus will be an exceedingly rare event.

       I have not found a case since Fierro in which the preponderance standard has been applied.

It has become apparent from our caselaw that the habeas harm standard applies only to claims that

could have been raised in an earlier proceeding.17 The preponderance standard does not apply, for

example, to ineffective-assistance-of-counsel claims, which usually cannot be raised before habeas.

And the preponderance standard does not apply to a claim about the knowing use of perjury when

the defendant had no opportunity before habeas to discover and challenge the perjury.18 Applicants

like these, who are not responsible for failing to raise their claims earlier, are generally allowed a

more favorable harm standard than the preponderance standard.

       In his dissent in Fierro, Judge Clinton anticipated the main reason the general habeas harm

standard rarely comes into play—the narrowing of the cognizability of claims to exclude most claims

that could have been raised in an earlier proceeding.19 We now almost universally apply the rule that


       16
         Ex parte Dutchover, 779 S.W.2d 76, 78 (Tex. Crim. App. 1989); Ex parte Fierro, 934
S.W.2d 370, 372 (Tex. Crim. App. 1996).
       17
         See Ex parte Ghahremani, 332 S.W.3d 470, 481-83 (Tex. Crim. App. 2011); Fierro,
934 S.W.2d at 374 n. 10.
       18
            Ghahremani, 332 S.W.3d at 481-83.
       19
           See Fierro, 934 S.W.2d at 378 (Clinton, J., dissenting) (would limit cognizability of
habeas review to claims that are “so fundamental to the fair operation of the system as to be 1)
immune from procedural default, 2) not subject to a harm analysis, and 3) fully retroactive in
application” and to those federal constitutional claims “recognized as of the time of trial but for
                                                                                    (continued...)
                                                                                       CHAVEZ — 7

a claim is not cognizable on habeas corpus if it could have been raised at trial or on direct appeal.20

The upshot is that the general habeas harm standard applies only to a claim that could have been

raised earlier, but if a claim could have been raised earlier, then it is most likely not cognizable

anyway.21

        The knowing use of perjured or false testimony is a rare exception to the rule against

considering claims on habeas that could have been raised earlier. It is appropriate to make this

exception because of the egregiousness of the State’s conduct. When the State knowingly subverts

the system, a defendant’s negligence in failing to assert a claim should not by itself end the analysis.

Instead, a belated claim of this sort is subject to the general habeas harm standard.22

         But some confusion has arisen in our perjury/false-testimony jurisprudence because of the




(...continued)
which a record could not have been made, despite due diligence of the accused, in time to preserve
the error for direct appeal”).
       20
             Ex parte Jimenez, 2012 Tex. Crim. App. LEXIS 637, at 34-35 (April 25, 2012)
(“Ordinarily a convicted person may not raise an issue in a habeas proceeding if the applicant could
have raised that issue on direct appeal.”); Ex parte Richardson, 201 S.W.3d 712, 713 (Tex. Crim.
App. 2006) (“Nevertheless, the trend of this Court has been to draw stricter boundaries regarding
what claims may be advanced on habeas. We have often stated that ‘the Great Writ should not be
used’ to litigate matters ‘which should have been raised on appeal’ or at trial, and while we have not
always consistently followed this maxim in the past, in recent years we have more closely adhered
to it.”).
        21
            In most cases, the failure to raise a claim that could have been raised earlier can be made
a part of an ineffective-assistance-of-counsel claim. The prejudice standard for ineffective-assistance
claims—a reasonable probability that the result of the proceeding would have been different—is
slightly more favorable to the defendant than the general habeas harm standard. See Harrington v.
Richter, 131 S. Ct. 770, 792 (2011); Strickland v. Washington, 466 U.S. 668, 694 (1984). But there
will be rare cases in which an ineffective-assistance claim will be unavailable because the defendant
represented himself at trial or on appeal.
        22
             See Fierro, passim.
                                                                                         CHAVEZ — 8

failure to properly distinguish the harm and materiality analyses. Chabot involved the unknowing

use of perjured testimony. In that case, we applied the preponderance standard to determine that

relief was warranted. We characterized our application of the preponderance standard as a standard

of harm,23 but it was not: Chabot could not have raised his claim earlier,24 so the general habeas harm

standard did not apply.25 What we actually did was perform a materiality analysis. As it happens,

the materiality standard for the unknowing use of perjured testimony is the same as the general

habeas harm standard.26 Though it appeared that we were simply applying the preponderance

standard, we were in fact analyzing the perjured testimony for materiality.

        That leaves at least two unanswered questions regarding claims about the unknowing use of

false testimony. The first is whether a defendant may raise such a claim for the first time on habeas

if he had an opportunity to raise the claim at a prior proceeding. I submit that when the State’s use

of perjured or false testimony is unknowing, a defendant may not raise his claim for the first time

on habeas if he could have raised it at trial or on direct appeal. It is only the State’s mendacity in the

“knowing use” scenario that impels us to make an exception to the general rule against the

cognizability of claims that could have been raised earlier.

        The second unanswered question is whether the materiality standard that applies to the


        23
             300 S.W.3d at 771.
        24
          See id. at 770 (“The applicant did not raise this due-process claim in his first application
for habeas relief. Nor could he have brought the claim.”).
        25
             See Ghahremani, 332 S.W.3d at 481-83.
        26
          See Ex parte Napper, 322 S.W.3d 202, 242 (Tex. Crim. App. 2010) (“Chabot does not
appear to have taken into account the caveat in Fierro, and so Chabot simply stands for the
proposition that the preponderance of the evidence standard is appropriate for the unknowing use
of perjured testimony that the habeas applicant had no prior opportunity to discover.”).
                                                                                       CHAVEZ — 9

unknowing use of perjured testimony should also apply to the unknowing use of testimony that is

merely false. We do not distinguish between perjured and false testimony in the “knowing use”

context because the materiality standard depends upon the culpability of the state actor that uses the

testimony, and a state actor who knowingly uses false testimony is just as culpable as one who

knowingly uses perjured testimony. But in the “unknowing use” context, the culpability of the state

actor is not the main issue, if it is an issue at all. When the testimony is perjured, a non-state actor

has knowingly subverted the system, but when the testimony is merely false, the relevant actors may

have been merely negligent or have no culpability at all. All we can say with certainty is that the

showing of materiality for the unknowing use of testimony that is merely false must be at least as

strong as the showing required for the unknowing use of perjured testimony,27 but it is possible that,

when perjury is absent, an even stronger showing is required.

        Regardless of the answer to that second question, our cases have resulted in a “materiality

ladder” in which claims can be arranged in order of how favorable the standard of materiality is to

the defendant. Claims regarding the State’s knowing use of perjured or false testimony occupy one

end of the ladder with the most favorable standard of materiality—a reasonable possibility that the

outcome would be different (not harmless beyond a reasonable doubt).28 Claims regarding newly

discovered evidence that demonstrates a convicted person’s innocence occupy the other end of the

ladder, with the least favorable standard of materiality—clear and convincing evidence that no




        27
             Id. at 244.
        28
             United States v. Bagley, 473 U.S. 667, 678-80, 679 n.9 (1985).
                                                                                   CHAVEZ — 10

reasonable juror would have convicted the defendant in light of the new evidence.29 The unknowing

use of perjured or false testimony falls in between those endpoints, with a mid-level standard (or

standards) of materiality.30

       For these reasons, I disagree with some statements in the Court’s opinion that suggest that

the materiality standard for the “unknowing” use of false testimony is the “reasonable possibility”

standard associated with “knowing” use. The materiality standards for knowing and unknowing use

are in fact distinct. The following chart summarizes the main differences between the various types

of claims that can involve perjured or false testimony:




      The Situation             Materiality Standard         Compared to         Forfeit if claim
                                                               Habeas            could have been
                                                            Harm Standard        but was not
                                                                                 raised at trial
                                                                                 or on direct
                                                                                 appeal?
 State’s knowing use of        Reasonable possibility      Substantially more    No, but if raised
 perjured or false             that the outcome would      favorable to the      late, habeas
 testimony                     have been different (not    defendant than the    harm standard
                               harmless beyond a           habeas harm           applies
                               reasonable doubt)           standard
                               (Bagley)




       29
            Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).
       30
          Although Elizondo was decided as an actual innocence case, it would also have satisfied
the predicate, under today’s standards, for an unknowing-use-of-perjured-testimony claim because
the recantation of a testifying witness was at issue. See id. at 204 (“[L]ast year, the witness whose
testimony was mainly responsible for convicting applicant recanted.”).
                                                                                   CHAVEZ — 11

 Ineffective assistance of   Reasonable probability        Slightly more         Yes (but rare
 counsel (for failing to     that outcome would have       favorable to the      that claim could
 discover or expose          been different (Strickland)   defendant than the    have been raised
 perjured or false                                         habeas harm           earlier)
 testimony)                                                standard
 State’s unknowing use       Preponderance of the          Same as the           Yes
 of perjured testimony       evidence (more likely         habeas harm
                             than not) that the outcome    standard
                             would have been different
                             (Chabot)
 State’s unknowing use       At least preponderance        At least as onerous   Yes
 of false (but not           but possibly heavier          to the defendant as
 perjured) testimony         burden                        the habeas harm
                                                           standard but
                                                           possibly more
                                                           onerous
 Newly discovered or         Clear and convincing          Substantially more    Yes, if the
 newly available             evidence that no rational     onerous to the        evidence would
 evidence that establishes   juror could find the          defendant than the    not qualify as
 the defendant’s actual      defendant guilty beyond a     habeas harm           “newly
 innocence                   reasonable doubt              standard              discovered” or
                             (Elizondo)                                          “newly
                                                                                 available”


       With these comments, I agree with the Court’s conclusion that applicant’s claim must fail.

Because I would dismiss the application, rather than deny it, I respectfully dissent.


Filed: May 23, 2012
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