        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                Fifth Circuit

                                                                  FILED
                                                               December 17, 2010

                         Nos. 05-70028 and 09-70018              Lyle W. Cayce
                                                                      Clerk


FELIX ROCHA,

                                             Petitioner – Appellant

v.

RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

                                             Respondent – Appellee



                Appeal from the United States District Court
                     for the Southern District of Texas


                ON PETITION FOR REHEARING EN BANC

(Opinion 09/15/10, 5th Cir., 619 F.3d 387)
(Panel Rehearing Denied 11/17/10)
Before JOLLY, HIGGINBOTHAM, and HAYNES, Circuit Judges.
PER CURIAM:
      The court having been polled at the request of one of the members of the
court and a majority of the judges who are in regular active service and not
disqualified not having voted in favor (FED. R. APP. P. AND 5TH CIR. R. 35), the
Petition for Rehearing En Banc is DENIED.
       Voting against en banc rehearing were: Chief Judge Edith H. Jones,
Judge Carolyn Dineen King, Judge E. Grady Jolly, Judge W. Eugene Davis,
Judge Jerry E. Smith, Judge Emilio M. Garza, Judge Carl E. Stewart, Judge
Edith B. Clement, Judge Edward C. Prado, Judge Priscilla R. Owen, and Judge
Leslie H. Southwick.
       Voting for en banc rehearing were: Judge Fortunato P. Benavides, Judge
James L. Dennis, Judge Jennifer W. Elrod, and Judge Catharina Haynes.*
       Upon the filing of this order, the clerk shall issue the mandate forthwith.
See FED. R. APP. P. 41(b).


ENTERED FOR THE COURT



_________________________
Patrick E. Higginbotham
United States Circuit Judge




       *
        In 2009, the court decided to begin identifying the judges voting for or against en banc
rehearing where a poll is taken and the request for en banc rehearing is denied.

                                               2
DENNIS, Circuit Judge, joined by BENAVIDES, Circuit Judge, dissenting from
the denial of rehearing en banc.
       I respectfully dissent from the majority’s refusal to grant rehearing en
banc in Balentine v. Thaler, --- F.3d ---, 2010 WL 4630829 (5th Cir. Nov. 17,
2010), and Rocha v. Thaler, --- F.3d ---, 2010 WL 4630794 (5th Cir. Nov. 17,
2010).1
       The Supreme Court in Michigan v. Long, 463 U.S. 1032 (1983), announced
the standard for determining “whether various forms of references to state law
[by state courts] constitute adequate and independent state grounds.” 463 U.S.
at 1038. That standard is: “[W]hen . . . a state court decision fairly appears to
rest primarily on federal law, or to be interwoven with the federal law, and when
the adequacy and independence of any possible state ground is not clear from the
face of the opinion, we will accept as the most reasonable explanation that the
state court decided the case the way it did because it believed that federal law
required it do so.” Id. at 1041.
       The Balentine and Rocha panel opinions do not adhere to and faithfully
apply the Long standard. Instead, they engage in the “process of examining [and
unauthorized-Erie guessing at] state law,” which the Court in Long found to be
“unsatisfactory because it requires [federal judges] to interpret state laws with
which we are generally unfamiliar, and which often, as in this case, have not
been discussed at length by the parties.” Id. at 1039. Further, the panel
opinions, in effect, adopt the practice of denying federal court review “if the
ground of the [state court] decision was at all unclear,” which the Long Court
expressly disapproved. See id. at 1038 (rejecting Lynch v. New York, 293 U.S.


       1
       Unless otherwise indicated, “Balentine” refers to the substituted panel opinion in that
case and “Rocha” refers to the panel’s opinion denying panel rehearing.

                                              3
52 (1934), which the Court characterized as “tak[ing] the strict view that if the
ground of decision was at all unclear, we would dismiss the case”). The Court
in Long rejected “outright dismissal of [such] cases [because] there is an
important need for uniformity in federal law, and . . . this need goes unsatisfied
when we fail to review an opinion that rests primarily upon federal grounds and
where the independence of an alleged state ground is not apparent from the four
corners of the opinion.” Id. at 1039.
      In Balentine and Rocha, the panels’ authors, after initially adhering to the
Long standard, make volte-face and examine ambiguous and obscure state court
data to guess that the unexplained dismissals of state habeas claims by the
Texas Court of Criminal Appeals (CCA) are based on an independent and
adequate state ground. I respectfully but strenuously disagree because these
opinions seriously undermine the Long standard in our jurisdiction and
retrogress into the ad hoc method of dealing with cases involving possible
independent and adequate state grounds that the Supreme Court expressly
disapproved as “antithetical to the doctrinal consistency that is required when
sensitive issues of federal-state relations are involved.” Id. at 1039. For these
reasons, I dissent from the very serious step the panel authors undertake, viz.,
departing from a full and faithful adherence to the Long standard, which the
Court adopted in 1983 and has continuously adhered to in numerous decisions
until the present day.
      The Court’s adherence to the full Long standard was demonstrated as
recently as February 23, 2010, in Florida v. Powell, 130 S. Ct. 1195 (2010).
There, the question presented was whether advice that a suspect has “the right
to talk to a lawyer before answering any of [the law enforcement officers’]
questions,” and that he can invoke this right “at any time . . . during th[e]


                                        4
interview,” satisfies Miranda. Id. at 1199-1200. The Court held that it does. Id.
Before fully addressing the issue, however, the Court addressed Powell’s
contention that the Florida Supreme Court, by relying not only on Miranda but
also on the Florida Constitution, rested its decision on an independent and
adequate state ground. See id. at 1201 (citing Coleman v. Thompson, 501 U.S.
722, 729 (1991) (“This Court will not review a question of federal law decided by
a state court if the decision . . . rests on a state law ground that is independent
of the federal question and adequate to support the judgment.”)).                “‘It is
fundamental,’” the Court stated, “‘that state courts be left free and unfettered by
us in interpreting their state constitutions. But it is equally important that
ambiguous or obscure adjudications by state courts do not stand as barriers to
a determination by this Court of the validity under the federal constitution of
state action.’” Id. (quoting Minnesota v. Nat’l Tea Co., 309 U.S. 551, 557 (1940))
      “To that end,” the Court recalled, “we announced, in [Long] the following
presumption”:
      “[W]hen . . . a state court decision fairly appears to rest primarily on
      federal law, or to be interwoven with the federal law, and when the
      adequacy and independence of any possible state law ground is not
      clear from the face of the opinion, we will accept as the most
      reasonable explanation that the state court decided the case the way
      it did because it believed that federal law required it to do so.”
Id. at 1201-02 (quoting Long, 463 U.S. at 1040-41). “At the same time,” the
Court further recalled, “we adopted a plain-statement rule to avoid the
presumption: ‘If the state court decision indicates clearly and expressly that it
is alternatively based on bona fide separate, adequate, and independent grounds,
we, of course, will not undertake to review the decision.’” Id. at 1202 (quoting
Long, 463 U.S. at 1041).
      Ultimately, the Court in Florida v. Powell concluded that “[u]nder the


                                         5
Long presumption, we have jurisdiction to entertain this case.            Although
invoking Florida’s Constitution and precedent in addition to this Court’s
decisions, the Florida Supreme Court treated state and federal law as
interchangeable and interwoven; the court at no point expressly asserted that
state-law sources gave Powell rights distinct from, or broader than, those
delineated in Miranda.” Id. at 1202 (citing Long, 463 U.S. at 1044). This
decision shows that Long is alive and well in the Supreme Court and must be
adhered to by this Court of Appeals.
      Contrary to the Balentine and Rocha writers’ apparent impressions, the
Supreme Court has not changed or weakened the Long standard’s requirement
that when a state court decision fairly appears “to be interwoven with . . . federal
law, and when the adequacy and independence of any possible state law ground
is not clear from the face of the opinion” we must assume that the state court
decided as it did on the belief that federal law required it to do so. The Court’s
recent decision in Florida v. Powell emphasizes and turns on this very same
provision. Nor, contrary to the panel authors’ inference, has the Court treated
its decision in Coleman v. Thompson, 501 U.S. 722, 729 (1991), as changing the
Long standard in any way. This is evidenced by Florida v. Powell’s citation of
Coleman only for the proposition that federal courts will not disturb state court
decisions resting on state law grounds independent of federal questions and
adequate to support the judgment. Id. at 1201.
      Also, Chief Justice Rehnquist’s opinion for the Court in Arizona v. Evans,
514 U.S. 1 (1995), emphatically refused to alter or overrule the Long standard,
agreeing with Justice Ginsburg that “‘[s]ince Long, we repeatedly have followed
[its] “plain statement” requirement.’” Id. at 8 n.2 (quoting id. at 33 (Ginsburg,
J., dissenting), in turn quoting Harris v. Reed, 489 U.S. 255, 261 n.7 (1989)


                                         6
(opinion of Blackmun, J.)) (citing Illinois v. Rodriguez, 497 U.S. 177, 182 (1990)
(opinion of Scalia, J.); Pennsylvania v. Muniz, 496 U.S. 582, 588 n.4 (1990)
(opinion of Brennan, J.); Maryland v. Garrison, 480 U.S. 79, 83-84 n. 4 (1987)
(opinion of Stevens, J.); Caldwell v. Mississippi, 472 U.S. 320, 327-28 (1985)
(opinion of Marshall, J.); California v. Carney, 471 U.S. 386, 389 n.1 (1985)
(opinion of Burger, C.J.); Ohio v. Johnson, 467 U.S. 493, 497 n.7 (1984) (opinion
of Rehnquist, J.); Oliver v. United States, 466 U.S. 170, 175 n.5 (1984) (opinion
of Powell, J.)). The Court in Arizona v. Evans also cited its decision in Coleman,
written by Justice O’Connor, not as changing Long but merely as “declining to
expand the Long and Harris presumption to instances ‘where the relevant state
court decision does not fairly appear to rest primarily on federal law or to be
interwoven with such law.’” Id. (quoting Coleman, 501 U.S. at 740).
      Thus, the Court has consistently applied the Long standard as originally
formulated to “obviate in most instances the need to examine state law in order
to decide the nature of the state court decision, and . . . at the same time avoid
the danger of our rendering advisory opinions.” Long, 463 U.S. at 1041. And in
determining whether a federal court can review a case that is alleged to rest on
adequate and independent state grounds, the Court has “assume[d] that there
are no such grounds when it is not clear from the opinion itself that the state
court relied upon an adequate and independent state ground and when it fairly
appears that the state court rested its decision primarily on federal law [or that
the decision is interwoven with federal law].” Id. at 1042.
      The panel opinions in Balentine and Rocha represent major erroneous
departures from the Supreme Court’s consistent decisions applying the Long
standard, and, under the Long presumption, have erroneously barred federal
court review of petitioners’ federal constitutional claims.


                                        7
       In Balentine, the CCA acknowledged that Balentine presented two
allegations based on federal law: “In the first allegation, applicant asserts that
he was deprived of his Sixth Amendment right to effective assistance of trial
counsel because counsel failed to adequately investigate, develop, and present
mitigation evidence in the punishment phase of the trial.                     In his second
allegation, applicant asserts that the prosecution unconstitutionally exercised
peremptory challenges on two venire persons in violation of Batson v. Kentucky,
476 U.S. 79 (1986).” Ex parte Balentine, Nos. WR-54071-01, WR-54071-02, 2009
WL 3042425, at *1 (Tex. Crim. App. Sept. 22, 2009) (unpublished). However, the
CCA failed to make clear what part, if any, federal law played in its disposition
of the case. Instead, it created ambiguity by dismissing Balentine’s application
after stating only that his allegations fail “to satisfy the requirements of [Texas
Code of Criminal Procedure] Article 11.071 § 5.”2                  Because the CCA has
interpreted an operative provision of the pertinent procedural rule, § 5(a)(1) of
article 11.071, to include a requirement that an applicant must allege a prima
facie claim based on federal constitutional law, the CCA’s disposition is unclear
as to whether it applied state or federal law, or both, in reaching its decision.
       Thus the CCA decision in Balentine fairly appears to be interwoven with

       2
        The operative part of the CCA order stated:
       Applicant presents two allegations in his application. In the first allegation,
       applicant asserts that he was deprived of his Sixth Amendment right to effective
       assistance of trial counsel because counsel failed to adequately investigate,
       develop, and present mitigation evidence in the punishment phase of the trial.
       In his second allegation, applicant asserts that the prosecution
       unconstitutionally exercised peremptory challenges on two venire persons in
       violation of Batson v. Kentucky, 476 U.S. 79 (1986). We have reviewed the
       application and find that his allegations fail to satisfy the requirements of
       Article 11.071 § 5. Accordingly, applicant’s application is dismissed, and his
       motion to stay his execution is denied. Likewise, applicant’s motion to vacate the
       judgment rendered in his initial state writ application is denied, and the Court
       otherwise declines to reconsider that case.
Ex parte Balentine, 2009 WL 3042425, at *1.

                                               8
federal law principles and the adequacy and independence of any possible state
law ground is not clear from the face of the CCA’s decision. Moreover, the CCA’s
decision does not in any way indicate clearly and expressly that it is
alternatively based on bona fide separate, adequate, and independent grounds.
Therefore, under the Long presumption, the Balentine panel’s holding that
federal habeas review is barred is clearly contrary to that presumption and the
Supreme Court’s decisions. See Florida v. Powell, 130 S. Ct. at 1203 (“We
therefore cannot identify, ‘from the face of the opinion,’ a clear statement that
the decision rested on a state ground separate from [the federal law principles
of] Miranda.” (citing Long, 463 U.S. at 1041 (the state court “need only make
clear by a plain statement in its judgment or opinion that the federal cases are
being used only for the purpose of guidance, and do not themselves compel the
result that the court has reached”)). “[B]ecause the [CCA]’s decision does not
‘indicate clearly and expressly that it is alternatively based on bona fide
separate, adequate, and independent state grounds,’” federal habeas review is
not barred. Id. at 1203 (quoting Long, 463 U.S. at 1041) (brackets omitted).
Accordingly, the Balentine decision should have been reconsidered en banc
because it is based on a significant error of law affecting our habeas review of
this and other Texas capital punishment cases.
      The Rocha panel decision also should have been reconsidered en banc
because it similarly fails to correctly apply the Long standard.          Another
operative provision of Texas Code of Criminal Procedure article 11.071, § 5(a)(3),
on its face incorporates federal constitutional standards, and the CCA’s judicial
gloss on §5(a)(3) that left open the possibility that § 5(a)(3) encompasses federal
claims based on ineffective assistance of counsel during the sentencing phase of
death penalty trials, which Rocha raised. In Rocha itself, however, the CCA did
not make clear whether its decision was based on state procedural default or on

                                        9
the merits of the petitioner’s underlying claim based on federal law, or both. The
operative part of the CCA’s order provided only: “We have reviewed the
application and find that the allegations do not satisfy the requirements of
Article 11.071, Section 5(a)(3). Therefore, we dismiss this application as an
abuse of the writ.” Ex parte Rocha, No. WR-52515-04, 2008 WL 5245553, at *1
(Tex. Crim. App. Dec. 17, 2008) (unpublished). Thus, for reasons similar to those
in Balentine, because § 5(a)(3) incorporates federal-law standards and the CCA’s
previous interpretation is ambiguous about whether § 5(a)(3) encompasses
Rocha’s federal-law claim, the CCA’s Rocha decision fairly appears to be
interwoven with federal law; the adequacy and independence of any possible
state law ground is not clear from the face of the CCA’s decision; and the CCA’s
decision does not in any way indicate clearly and expressly that it is
alternatively based on bona fide separate, adequate, and independent state
grounds.


                               FURTHER DISCUSSION
I.     Background
A.     Texas’ subsequent habeas statute3
       These cases involve decisions by the CCA applying § 5 of article 11.071 of
the Texas Code of Criminal Procedure,4 which governs subsequent state habeas

       3
       Texas calls its successive state habeas petitions “subsequent application[s] for a writ
of habeas corpus.” See Tex. Code Crim. Proc. art. 11.071 § 5.
       4
        That statute provides, in relevant part:
       (a)    If a subsequent application for a writ of habeas corpus is filed after filing
              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:
              (1)     the current claims and issues have not been and could not have
                      been presented previously in a timely initial application or in a

                                               10
applications. Section 5 allows a subsequent habeas application that satisfies any
one of the three requirements of § 5(a) by presenting a claim based on: (1) a
previously unavailable factual or legal basis (the “unavailability requirement”);
(2) a constitutional error that affected the guilt/innocence phase of the trial; or
(3) a constitutional error that affected the sentencing phase of the trial. Tex.
Code Crim. Proc. art. 11.071 § 5(c). In order to dismiss such an application, § 5
requires the CCA to determine that the application has failed to satisfy all of the
requirements of § 5(a), including § 5(a)(1). Id.
      In 2005, the CCA added a judicial gloss, holding that to satisfy the
requirements of § 5(a)(1), an applicant must also make a prima facie showing of
a federal constitutional claim that requires relief from the conviction or sentence
(the “prima facie showing requirement”). See Ex Parte Campbell, 226 S.W.3d



                   previously considered application filed under this article or Article
                   11.07 because the factual or legal basis for the claim was
                   unavailable on the date the applicant filed the previous
                   application;
            (2)    by a preponderance of the evidence, but for a violation of the
                   United States Constitution no rational juror could have found the
                   applicant guilty beyond a reasonable doubt; or
            (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.
            ....
      (c)   On receipt of the copies of the documents from the clerk, the court of
            criminal appeals shall determine whether the requirements of
            Subsection (a) have been satisfied. The convicting court may not take
            further action on the application before the court of criminal appeals
            issues an order finding that the requirements have been satisfied. If the
            court of criminal appeals determines that the requirements have not
            been satisfied, the court shall issue an order dismissing the application
            as an abuse of the writ under this section.

                                            11
418, 421 (Tex. Crim. App. 2007); Ex parte Staley, 160 S.W.3d 56, 66 (Tex. Crim.
App. 2005) (per curiam).5 There is no dispute that the prima facie showing
requirement is not independent of federal law. See, e.g., Rivera v. Quarterman,
505 F.3d 349, 359 (5th Cir. 2007).


B.     The state court proceedings in Balentine and Rocha
       Balentine presented two claims in his subsequent habeas application: He
claimed that “he was deprived of his Sixth Amendment right to effective
assistance of trial counsel because counsel failed to adequately investigate,
develop, and present mitigation evidence in the punishment phase of the trial,”
a claim under Wiggins v. Smith, 539 U.S. 510 (2003); and he presented a claim
under Batson v. Kentucky, 476 U.S. 79 (1986). See Ex parte Balentine, Nos. WR-
54071-01, -02, 2009 WL 3042425, at *1 (Tex. Crim. App. Sept. 22, 2009)
(unpublished). The CCA dismissed Balentine’s subsequent habeas application
because it found that “his allegations fail to satisfy the requirements of Article

       5
         The CCA did not always read § 5(a)(1) to include the prima facie showing requirement.
That court adopted the requirement following the Supreme Court’s decision in Atkins v.
Virginia, 536 U.S. 304 (2002), in order to prevent a flood of potentially meritless Atkins claims
raised in subsequent habeas applications brought pursuant to § 5(a)(1) from inundating Texas
courts. See Ex parte Williams, No. 43,907-02, 2003 WL 1787634, at *1 (Tex. Crim. App. Feb.
26, 2003) (Cochran, J., concurring). Judge Higginbotham first noted that the prima facie
showing requirement “render[ed] dismissal of [Atkins] claims under article 11.071 [§] (5)(a) a
decision on the merits.” Morris v. Dretke, 413 F.3d 484, 500 n.4 (5th Cir. 2005) (Higginbotham,
J., concurring). Later, in Rivera v. Quarterman, this court held that “a decision that an Atkins
petition does not make a prima facie showing—and is, therefore, an abuse of the writ—is not
an independent state law ground.” 505 F.3d 349, 359 (5th Cir. 2007). The CCA later imported
the prima facie showing requirement to all other types of claims brought under § 5(a)(1). See
Ex parte Staley, 160 S.W.3d at 63, 66 (“We need not . . . decide whether applicant’s claim was
legally available at the time he filed his original writ because we conclude that his application
does not ‘contain sufficient specific facts establishing that’ his claim is cognizable even if Penry
II, Tennard, and Smith created a new and previously unavailable legal claim.”); see also Ex
parte Campbell, 226 S.W.3d at 421 (citing Ex parte Staley, 160 S.W.3d at 64) (applying the
prima facie requirement for § 5(a)(1) for claims under Brady v. Maryland, 373 U.S. 83 (1963),
and Barefoot v. Estelle, 463 U.S. 880 (1983)).

                                                12
11.071 § 5,” without specifying a particular part of § 5(a). (I refer to CCA
dismissals of this sort as “unexplained CCA dismissals.”)
      In Rocha, the petitioner “present[ed] a claim of ineffective assistance of
counsel for failing to investigate, discover, and present significant mitigation
evidence at his trial[] . . . [and] assert[ed] that the application meets the
requirements of Article 11.071, Section 5(a)(3).”         Ex parte Rocha, No.
WR-52515-04, 2008 WL 5245553 (Tex. Crim. App. Dec. 17, 2008) (unpublished).
The CCA dismissed the petitioner’s subsequent state habeas application because
it found “that the allegations do not satisfy the requirements of Article 11.071,
Section 5(a)(3).” Id. at *1. Therefore, the question we must answer is whether
the unexplained CCA dismissal in Balentine, which necessarily includes a
determination that the § 5(a)(1) requirements were not met, and the CCA
dismissal in Rocha, based on a determination that the requirements of § 5(a)(3)
were not satisfied, rest on independent and adequate state grounds.


II.   Independent and adequate state grounds
      Federal courts “will not review a question of federal law decided by a state
court if the decision of that court rests on a state law ground that is independent
of the federal question and adequate to support the judgment.” Coleman v.
Thompson, 501 U.S. 722, 729 (1991). Before its decision in Michigan v. Long,
463 U.S. 1032 (1983), the Supreme Court had struggled to adopt a consistent
and workable standard for determining whether a state court decision rests on
independent and adequate state grounds. See Coleman, 501 U.S. at 732-33.
Among the Court’s prior methods of analysis that it found “unsatisfactory” in
Long was “[t]he process of examining state law . . . because it requires us to
interpret state laws with which we are generally unfamiliar.” 463 U.S. at 1039.


                                        13
      In Long, the Court resolved to provide a solution that would “minimize the
costs associated with resolving ambiguities in state court decisions while still
fulfilling [the] obligation to determine if there was an independent and adequate
state ground for the decision.” Coleman, 501 U.S. at 733.
      [In Long, the Supreme Court] established a conclusive
      presumption[:] . . . “[W]hen . . . a state court decision fairly appears
      to rest primarily on federal law, or to be interwoven with the federal
      law, and when the adequacy and independence of any possible state
      law ground is not clear from the face of the opinion, we will accept
      as the most reasonable explanation that the state court decided the
      case the way it did because it believed that federal law required it
      to do so.”
Id. at 733 (quoting Long, 436 U.S. at 1040-41)). “After Long, a state court that
wishes to look to federal law for guidance or as an alternative holding while still
relying on an independent and adequate state ground can avoid the presumption
by stating ‘clearly and expressly that its decision is based on bona fide separate,
adequate, and independent grounds.’” Id. (quoting Long, 436 U.S. at 1041)
(brackets and ellipsis omitted).
      The Court later applied the Long presumption to habeas review cases in
Harris v. Reed, 489 U.S. 255 (1989). In Harris, the state court had said that the
petitioner’s ineffective-assistance-of-counsel claim “could have been raised on
direct appeal,” which, under state law, would mean the claim was waived, but
nonetheless, the state court considered and rejected the merits of the claim. 489
U.S. at 258, 266 (internal quotation marks and brackets omitted). The Seventh
Circuit Court of Appeals had found that the state court decision was
“ambiguous” about whether it rested on procedural default under state law or
on the merits of the petitioner’s federal constitutional claims.                 Id.
“[N]onetheless[,] [the Seventh Circuit] asserted that a reviewing court should try
to assess the state court’s intention to the extent that this is possible.” Id.

                                        14
(citations and internal quotation marks omitted). The Supreme Court reversed,
holding that “[t]he adequate and independent state ground doctrine, and the
problem of ambiguity resolved by Long, is of concern not only in cases on direct
review . . . , but also in federal habeas corpus.” Id. at 262.
      In reaching this conclusion, the Court explained that “the mere fact that
a federal claimant failed to abide by a state procedural rule does not, in and of
itself, prevent [federal courts] from reaching the federal claim: The state court
must actually have relied on the procedural bar as an independent basis for its
disposition of the case. Furthermore, ambiguities in that regard must be
resolved by application of the Long standard.” Id. (internal quotation marks and
brackets omitted). The Court explained that the contrary presumption—that “if
a state-court decision is ambiguous as to whether the judgment rests on a
procedural bar, the federal court should presume that it does,” id. at 263-
64—“would impose substantial burdens on the federal courts. . . . [T]he federal
habeas court would be forced to examine the state-court record to determine
whether procedural default was argued to the state court, or would be required
to undertake an extensive analysis of state law to determine whether a
procedural bar was potentially applicable to the particular case. Much time
would be lost in reviewing legal and factual issues that the state court, familiar
with state law and the record before it, is better suited to address expeditiously.
The ‘plain statement’ requirement achieves the important objective of permitting
the federal court rapidly to identify whether federal issues are properly
presented before it.” Id. at 264-65.
      Coleman v. Thompson, 501 U.S. 722 (1991), similarly affirmed the Long
standard. The case involved a summary order of the Virginia Supreme Court,
which, the United States Supreme Court noted, “stated plainly that it was
granting the Commonwealth’s motion to dismiss the petition for appeal. That

                                        15
motion was based solely on Coleman’s failure to meet the [Virginia] Supreme
Court’s time requirements. There is no mention of federal law in the Virginia
Supreme Court’s three-sentence dismissal order. It ‘fairly appears’ to rest
primarily on state law.” Id. at 740. Therefore, the Court held that the Long
presumption did not apply because the state court decision was unequivocally
based only on state law.6 The Coleman Court was clear that it was faithfully
applying the Long presumption, not modifying it, id. at 733, and nothing in the
Coleman decision suggests that it meant to alter or abrogate the Long
presumption by requiring federal courts to attempt to discern the possible
decisional basis of an ambiguous state court decision.
       In fact, since Long and Harris, the Supreme Court has “repeatedly
followed its ‘plain statement’ requirement.” Arizona v. Evans, 514 U.S. 1, 8 n.2
(1995) (brackets and internal quotation marks omitted) (citing Harris v. Reed,
489 U.S. 255, 261 n.7 (1989) (opinion of Blackmun, J.)).7 And the Court on

       6
          In reaching this conclusion, the Court rejected Coleman’s argument that in order to
dismiss his petition for appeal as untimely, the state court necessarily had to decide that he
was not entitled to an extension, which involved an antecedent decision about federal law. 501
U.S. at 742. The Court found that the Virginia Supreme Court’s extension rule did not apply
to Coleman’s case because (1) the exception was applied only where the denial of the extension
itself would cause the abridgment of a constitutional right (such as the right to counsel on
appeal), which was not Coleman’s claim; and (2) the rule was limited only to extensions of time
for “filing a petition” and it was Coleman’s notice of appeal that was filed late, not his petition.
Id. at 741. The Court did not undertake an extrapolation of state law to decide whether the
Virginia Supreme Court’s perfunctory decision rested on either a federal-law or state-law
ground. Instead, the Court simply determined that in Coleman’s case there was clearly no
federal-law issue interwoven with the state’s procedural default rule; the state court had only
dismissed Coleman’s petition for appeal because his notice of appeal was filed late and
therefore procedurally defaulted. Thus, the Court held that the state court decisions “‘fairly
appear[ed]’ to rest primarily on state law.” Id. at 740.
       7
        See also Florida v. Powell, 130 S. Ct. 1195 (2010) (opinion of Ginsburg, J.); Ylst v.
Nunnemaker, 501 U.S. 797 (1991) (opinion of Scalia, J.); Coleman v. Thompson, 501 U.S. 722,
740 (1991) (opinion of O’Connor, J.)); Illinois v. Rodriguez, 497 U.S. 177, 182 (1990) (opinion
of Scalia, J.); Pennsylvania v. Muniz, 496 U.S. 582, 588 n.4 (1990) (opinion of Brennan, J.);
Maryland v. Garrison, 480 U.S. 79, 83-84 n.4 (1987) (opinion of Stevens, J.); Caldwell v.

                                                16
several occasions has expressly refused to reconsider or overrule the Long
presumption and plain statement requirement. For example, Chief Justice
Rehnquist, in Arizona v. Evans, explained the Court’s reasons for adhering to
the Long standard as follows:
       “[A]mbiguous or obscure adjudications by state courts [should] not
       stand as barriers to a determination by this Court of the validity
       under the federal constitution of state action. Intelligent exercise
       of our appellate powers [and habeas review by the federal courts]
       compels us to ask for the elimination of the obscurities and
       ambiguities from the opinions in such cases. . . . For no other course
       assures that important federal issues, such as have been argued
       here, will reach this Court for adjudication; that state courts will not
       be the final arbiters of important issues under the federal
       constitution; and that we will not encroach on the constitutional
       jurisdiction of the states.” [] We therefore adhere to the standard
       adopted in Michigan v. Long . . . .
514 U.S. at 8-9 (footnote and citations omitted) (quoting Nat’l Tea Co., 309 U.S.
at 557). Therefore, the Supreme Court has clearly and continuously reaffirmed
the Long presumption, and instructed the federal courts to follow its mandate.


III.   The Supreme Court’s precedents dictate that the unexplained
       CCA dismissal in Balentine and the CCA dismissal citing § 5(a)(3)
       in Rocha do not rest on independent and adequate state grounds
       The foregoing established principles make clear that the CCA’s
unexplained dismissal in Balentine and the CCA’s dismissal in Rocha must be
presumed to not rest on independent and adequate state grounds. In Balentine,
the CCA’s unexplained dismissal is ambiguous as to whether it was based on a
determination that Balentine’s application did not satisfy the unavailability


Mississippi, 472 U.S. 320, 327-28 (1985) (opinion of Marshall, J.); California v. Carney, 471
U.S. 386, 389 n.1 (1985) (opinion of Burger, C.J.); Ohio v. Johnson, 467 U.S. 493, 497 n.7
(1984) (opinion of Rehnquist, J.); Oliver v. United States, 466 U.S. 170, 175 n.5 (1984) (opinion
of Powell, J.).

                                               17
prong or the prima facie showing requirement of § 5(a)(1), or both. Because the
prima facie showing requirement of § 5(a)(1) is a determination based on federal
law, the CCA’s unexplained determination that Balentine’s application did not
satisfy § 5, and therefore did not satisfy the requirements of § 5(a)(1), is a
decision interwoven with federal law. It does not clearly and explicitly state that
the CCA only decided that Balentine’s application did not satisfy the state-law
unavailability prong of § 5(a)(1).
      Likewise, Rocha’s claims were brought in a subsequent application
pursuant to § 5(a)(3), which, on its face, allows claims that show a federal
constitutional error. The CCA’s perfunctory dismissal of Rocha’s application is
interwoven with federal law because it decided that his claims did not meet the
requirements of § 5(a)(3), which are based on federal constitutional standards,
and it did not clearly base its dismissal on a purely state-law procedural default
rule. Therefore, under the Long standard, the CCA’s decisions are presumed not
to rest on independent and adequate state grounds and a federal court can
review the merits of Balentine’s and Rocha’s constitutional claims on a habeas
petition.
      Contrary to what the panel opinions in Balentine and Rocha contend,
Coleman dictates the same result. There, the state court merely granted the
state’s motion to dismiss Coleman’s petition for appeal based on the state’s
procedural bar, which did not involve a federal-law issue; nor was there any
relevant exception to the state procedural bar that could have involved a federal
law determination. Therefore, the Coleman Court concluded that the state court
decision fairly appeared to rest primarily on state law where there was no
possible federal-law issue interwoven in the state’s procedural rule, nor in the
state court’s application of that rule. 501 U.S. at 739. By contrast, the CCA’s
unexplained dismissal in Balentine necessitated a decision regarding the state’s

                                        18
procedural bar, which is interwoven with federal law. And the CCA’s dismissal
in Rocha involved a state procedural rule that on its face depends on federal
constitutional standards. Thus, there is “good reason to question whether” the
CCA’s dismissals in Balentine and Rocha rested primarily on independent state
grounds, and therefore, Coleman dictates that the Long presumption applies to
these state court decisions. See id.


IV.   The panel decisions in Balentine and Rocha
A.    Balentine and Rocha misapply the Long presumption
      Balentine and Rocha conclude that, although “an unexplained denial of a
subsequent application may have been based on a federal merits ground,” that
is not enough to trigger the Long presumption. Balentine, 2010 WL 4630829, at
*11-12; Rocha, 2010 WL 4630794, at *12.8 According to those opinions, “[t]here
must be more than silence. In some form, the state court has to make a fair
indication that the merits of the claims were reached.” Balentine, 2010 WL
4630829, at *12; see Rocha, 2010 WL 4630794, at *12. They conclude that
“[w]hen the CCA dismisses a successive habeas application on the ground that
it does not satisfy § 5(a)(1),” Coleman, requires the court to “read [the CCA’s]
order of dismissal to determine which of the two elements of § 5(a)(1) was the
basis of the court’s dismissal.” Rocha, 2010 WL 4630794, at *12 (“A boilerplate
dismissal might be ambiguous on this point, but finding clarity in ambiguity is
the bread-and-butter work of a federal court of appeals.”); Balentine, 2010 WL
4630829, at *12-14. And they endeavor to discover the hidden basis of the CCA’s
unexplained dismissal by making an assumption about the CCA’s decisional


      8
        Although the CCA’s dismissal in Rocha referred specifically to § 5(a)(3), the Rocha
panel examines unexplained CCA dismissals like that in Balentine and reaches the same
conclusions as the Balentine panel. Therefore, I will discuss the opinions together.

                                            19
process for all § 5 applications, and presuming that the CCA’s decision was
based on the unavailability prong of § 5(a)(1) because Balentine’s application did
not show that his claim was previously unavailable. Rocha, 2010 WL 4630794,
at *10, *12; Balentine, 2010 WL 4630829, at *12-14.
      Balentine and Rocha short circuit the Long presumption by contending
that a federal court should attempt to determine whether an ambiguous state
court decision applying the state’s procedural rule, which includes a federal-law
component, rests on independent and adequate state grounds. However, the
Long standard, also applied in Harris and Coleman, is that a state court
decision, which fairly appears to be interwoven with federal law, and which does
not clearly rest on independent and adequate state-law grounds, is presumed to
be a decision dependent on federal law. Long specifically rejected “[t]he process
of examining state law” in order to determine the basis of an ambiguous state
court decision. 463 U.S. at 1039. And Harris reversed a court of appeals
decision that had “asserted that a reviewing court ‘should try to assess the state
court’s intention to the extent that this is possible,’” when confronted with an
ambiguous state court decision. 489 U.S. at 258, 266. Long also recognized that
federal courts “may review a state case decided on a federal ground even if it is
clear that there was an available state ground for decision on which the state
court could properly have relied.” 463 U.S. at 1039 n.4.
      Coleman does not sweep away the Long presumption by requiring courts
to guess at the grounds of an ambiguous state court decision, and Balentine and
Rocha accordingly undertake a misguided examination of Texas law.              In
Coleman, the Virginia Supreme Court’s order only granted the state’s motion to
dismiss Coleman’s petition for appeal because his notice of appeal was untimely,
which involved no antecedent or concurrent question of federal law. Coleman
does not stand for the proposition that when faced with a state court decision

                                       20
interwoven with federal law, a federal court should examine the state’s
procedural law and guess as to the decisional basis for the state court’s decision.
Indeed Coleman never purported to upset the fundamental premise of the Long
presumption.
      By expounding on state law and the unspoken decisional processes of state
courts in order to unearth the possible grounds for an ambiguous state court
decision, the Balentine and Rocha panel opinions undermine the Long
presumption and return the independent-and-adequate-state-grounds inquiry
to where it was before Long. See Long, 463 U.S. at 1039 (“The process of
examining state law is unsatisfactory because it requires us to interpret state
laws with which we are generally unfamiliar . . . .”). Only in the limited subset
of cases where the state court decision “fairly appears to rest primarily on state
law” does Coleman hold that the Long presumption should not be applied. Here,
the CCA’s unexplained dismissal does not fairly appear to rest primarily on state
law because such dismissal could have rested on the failure to satisfy the prima
facie showing requirement of § 5(a)(1). By contrast, in Coleman there was no
federal law issue interwoven with the state’s procedural default rule or the state
court’s decision to grant the state’s motion to dismiss the petition for appeal
because Coleman’s notice of appeal was untimely. Therefore, Coleman does not
limit the application of the Long presumption to the CCA’s unexplained
dismissals.
      Finally, Balentine concludes that because “Balentine’s subsequent
application made no effort to show that the facts or law underlying his . . . claim
were unavailable to him at the time of his first state application,” the CCA must
have decided only that Balentine failed to satisfy the unavailability requirement
of § 5(a)(1) and necessarily did not decide that he failed to satisfy the prima facie
showing requirement as well. 2010 WL 4630829, at *14. However, Balentine’s

                                         21
subsequent habeas application to the CCA specifically alleged that the factual
basis for his claim that his trial counsel was constitutionally ineffective in failing
to investigate for mitigating evidence was previously unavailable, because the
attorney on his first state habeas application, who was provided to him under
Texas law, see Tex. Code Crim. Proc. art. 11.071 § 2, was similarly ineffective by
also failing to investigate mitigating evidence. Subsequent Application at 4, 6-
16, 37, Ex parte Balentine, 2009 WL 3042425 (Nos. WR-54071-01, WR-54071-02).
Balentine alleged that the first time any of his attorneys investigated and
located substantial mitigating evidence was after his first state habeas
application, during his federal habeas proceedings. Id. at 6. Therefore, it is not
clear that the CCA found Balentine’s claim to have been previously available.
      Furthermore, it simply does not follow that because one of two essential
requirements appears not to be met that a state court necessarily did not base
its decision on the failure of the other requirement. Cf., e.g., Harris, 489 U.S. at
258 (reviewing a state court decision that had explicitly found the petitioner’s
claim waived but still considered and rejected the merits of the claim). And
Coleman recognized that “[a]fter Long, a state court that wishes to look to
federal law for guidance or as an alternative holding while still relying on an
independent and adequate state ground can avoid the presumption by stating
clearly and expressly that its decision is based on bona fide separate, adequate,
and independent grounds.” 501 U.S. at 733 (internal quotation marks, brackets,
and ellipsis omitted) (emphasis added); see also Long, 463 U.S. at 1039 n.4
(recognizing that federal courts “may review a state case decided on a federal
ground even if it is clear that there was an available state ground for decision on
which the state court could properly have relied”).          Therefore, we cannot
presume that the CCA’s silence means that it did not base its decision on the
alternative, federal-law requirement of § 5(a)(1).

                                         22
B.     The Balentine and Rocha opinions’ interpretation of the CCA’s
       decisional process conflicts with CCA decisions
       Balentine and Rocha also mistakenly conclude that we can discern the
uncertain decisional basis in an unexplained CCA dismissals because “[t]he CCA
first examines whether the factual or legal basis of the claim was unavailable at
the time of the original application[,] [and] [o]nly if the applicant can surmount
the unavailability hurdle does the CCA proceed to ask whether the application
makes out a claim that is prima facie meritorious.” Rocha, 2010 WL 4630794,
at *10.9 However, it is practical that if the CCA confronted a subsequent habeas
application that it concluded failed to make the necessary prima facie showing,
it would not need to determine whether the application satisfied the
unavailability prong in order to dismiss the application.                     Cf. Pearson v.
Callahan, 129 S. Ct. 808, 818 (2009) (“[T]he rigid Saucier procedure comes with
a price. The procedure sometimes results in a substantial expenditure of scarce
judicial resources on difficult questions that have no effect on the outcome of the

       9
          Balentine and Rocha rest this conclusion on a line in the CCA’s decision in Ex parte
Campbell, 226 S.W.3d 418 (Tex. Crim. App. 2007), which refers to the prima facie prong of
§ 5(a)(1) as “‘the rest of the section 5(a)(1) bar.’” Rocha, 2010 WL 4630794, at *10 n.96 (quoting
Ex parte Campbell, 226 S.W.3d at 422) (emphasis added in Rocha). Rocha concludes that
because in Ex parte Campbell the CCA determined first that the applicant’s claim was
previously unavailable, and then determined that the applicant had failed to make the
necessary prima facie showing, therefore all CCA decisions under § 5(a) must proceed in that
order. Id. at *10. However, there is nothing in the CCA’s decision in Ex parte Campbell that
says these two components are necessarily decided in that order in every case.
        Rocha also relies on Ex parte Hood, 211 S.W.3d 767 (Tex. Crim. App. 2007), which,
according to the Rocha panel, “conclud[ed] that § 5(a)(1) did not authorize the CCA to consider
the merits of a claim presented in a successive habeas application ‘because the legal bases upon
which applicant relies were available at the time he filed his second application’ and
undert[ook] no discussion of the prima facie merits of the applicant’s claim.” Rocha, 2010 WL
4630794, at *10 n.97 (quoting Ex parte Hood, 211 S.W.3d at 770). However, Ex parte Hood
involves nothing more than an example of a decision by the CCA that fairly appears to rest
primarily on state law, viz., the unavailability component of § 5(a)(1). Under Coleman, the
Long presumption is not needed to resolve ambiguity in such CCA dismissals. Ex parte Hood
does not support the conclusion that § 5(a)(1) requires the CCA to consider the two
requirements of § 5(a)(1) in any particular order.

                                               23
case. There are cases in which it is plain that a constitutional right is not clearly
established but far from obvious whether in fact there is such a right.”). That
the CCA would first reach the more easily decided of two possibly dispositive
issues is not a novel proposition.10 Indeed, decisions of the CCA confirm that the
CCA does just that in many cases.
       In Ex parte Staley, 160 S.W.3d 56 (Tex. Crim. App. 2005) (per curiam), the
first CCA decision to judicially engraft the prima facie showing requirement for
§ 5(a)(1) to a non-Atkins claim, the CCA said:
       We need not, however, decide whether applicant’s claim was legally
       available at the time he filed his original writ because we conclude
       that his application does not “contain sufficient specific facts
       establishing that” his claim is cognizable even if Penry II, Tennard,
       and Smith created a new and previously unavailable legal claim.
Ex parte Staley, 160 S.W.3d at 63.                  Similarly, in Ex parte Reed, No.
WR-50961-06, 2009 WL 1900364 (Tex. Crim. App. July 1, 2009) (unpublished),
the CCA dismissed the applicant’s subsequent habeas application because it
“fail[ed] to show a Brady violation” without discussing whether the factual basis
for the claim was previously unavailable to the applicant. Id. at *1-2. Likewise,
in Ex parte Johnson, No. WR-56947-02, 2009 WL 1165502 (Tex. Crim. App.


       10
         To illustrate the practical sense of the CCA dismissing a subsequent application based
only on a determination that the application failed to make the necessary prima facie showing
and without reaching the unavailability prong of § 5(a)(1), as it did in Ex parte Reed, No.
WR-50961-06, 2009 WL 1900364 (Tex. Crim. App. July 1, 2009) (unpublished), which involved
a Brady claim: Assume there is a factual dispute about when the Brady material was first
discoverable, e.g., the applicant asserts that he discovered the material after he filed his first
state habeas application and the state contends that the material was reasonably discoverable
by the applicant before he filed his first application for state habeas relief. If the Rocha panel
is correct, then a laborious, fact-intensive inquiry would be required in order for the CCA to
determine if the application satisfied the requirements of § 5(a)(1). If, however, the CCA could
more easily determine that the application did not show a prima facie Brady violation—e.g.,
the CCA determined that Brady did not require that the disputed materials be disclosed—then
there would be no efficient reason to first expend time and effort to make factual findings about
the availability vel non of the material.

                                               24
Apr. 29, 2009) (unpublished), the CCA found “that [the] applicant . . . failed to
make a prima facie case of mental retardation” without discussing whether the
factual or legal basis of the claim was previously unavailable. Id. at *1.11 And
in Ex parte Jackson, No. WR-60,124-02, 2010 WL 2843945 (Tex. Crim. App.
July 19, 2010) (unpublished) the CCA dismissed the application in a summary
order that said, in pertinent part: “Applicant presents two allegations in his
application. In the first, he asserts that the State failed to disclose material,
exculpatory evidence, and in the second, he asserts that his execution would
violate the Eighth and Fourteenth Amendments because he is mentally
retarded. We have reviewed the application and find that applicant has failed
to make a prima facie showing of either claim.” Id. at *1. In short, the CCA does
not always first decide the unavailability prong of § 5(a)(1) before considering the
prima facie showing component.




C.     Contrary to the Balentine and Rocha panel opinions, the plain
       text and the CCA’s own interpretation of § 5(a)(3) permit
       adjudication of federal claims that do not meet the Sawyer
       standard in subsequent habeas proceedings
       In his subsequent habeas application, Rocha raised for the first time a
claim that his trial counsel was ineffective in failing to investigate and present
mitigating evidence at the sentencing phase of his trial, a claim explained in
Wiggins v. Smith, 539 U.S. 510 (2003). Rocha asserted that his subsequent



       11
        Moreover, the dissenting opinion in Ex parte Johnson characterized the majority
opinion as “reject[ing] [the defendant’s] application, not because he fails to invoke new law
under Article 11.071, Section 5(a)(1), but because he does not make out a prima facie case for
mental retardation.” 2009 WL 1165502, at *1 (Price, J., dissenting) (footnote omitted).

                                             25
application met the requirements of § 5(a)(3), because it provides an avenue for
claims asserting that “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”; and § 2(e)(1) of article 37.071 requires the jury to consider mitigating
evidence when deciding whether to impose the death penalty, see Tex. Code
Crim. Proc. art. 37.071 § 2(e)(1). Therefore, Rocha argued, his constitutionally
ineffective representation caused the jury to not consider mitigating evidence,
which, if the jury had received it, would have caused them not to impose the
death penalty; and this constituted a claim under § 5(a)(3). The CCA dismissed
Rocha’s application because it found “that the allegations do not satisfy the
requirements of Article 11.071, Section 5(a)(3).” Ex parte Rocha, 2008 WL
5245553, at *1. Balentine had similarly presented a claim in his subsequent
habeas application that his trial counsel and first state habeas counsel had been
ineffective in failing to investigate and present evidence in mitigation of the
death penalty. Because the CCA dismissed Balentine’s application due to its
failure “to satisfy the requirements of . . . § 5,” the CCA apparently decided that
it also failed to satisfy the requirement of § 5(a)(3). Ex parte Balentine, 2009 WL
3042425, at *1.
      On its face, § 5(a)(3) is interwoven with federal constitutional law: An
application must show “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.”
Therefore, for the CCA to decide that an application does not satisfy the
requirements of § 5(a)(3), the CCA must necessarily decide that the claims raised
by the applicant do not show a federal constitutional violation that affected the
jury’s decision to impose the death penalty. Accordingly, a decision by the CCA

                                        26
that the requirements of § 5(a)(3) have not been met, without explanation, fairly
appears to rest on federal law, and without a plain statement that the CCA did
not reach the merits of the applicant’s constitutional claims, we must presume
that the CCA dismissed the application based on a decision about the merits of
the applicant’s federal constitutional claim. See Ake v. Oklahoma, 470 U.S. 68,
75 (1985) (where “the federal-law holding is integral to the state court’s
disposition of the matter,” the state court’s decision “depends on the court’s
federal-law ruling and consequently does not present an independent state
ground for the decision rendered”).
       The Balentine and Rocha panel opinions, however, conclude that the CCA
did not reach the merits of the petitioners’ federal Wiggins claims because
§ 5(a)(3) allows only claims that satisfy the actual-innocence-of-the-death-
penalty standard announced in Sawyer v. Whitley, 505 U.S. 333 (1992).12
Therefore, the panels reason that when the CCA determined without
explanation that Balentine’s and Rocha’s subsequent habeas applications failed
to satisfy the requirements of § 5(a)(3), the CCA only determined that the
applicants did not meet the Sawyer actual-innocence-of-the-death-penalty
threshold, i.e., that the applicants did not show that they were constitutionally
ineligible for the death penalty, and did not reach the merits of their Wiggins
claims.
       The Rocha and Balentine opinions are mistaken in their assessment that
§ 5(a)(3) is limited only to claims that can satisfy the Sawyer actual-innocence-of-
the-death-penalty showing. The panels’ conclusion conflicts with the plain


       12
        Sawyer establishes a gateway for a federal habeas petitioner to have his otherwise
unexhausted constitutional claims considered: Where the petitioner can show by clear and
convincing evidence that he is actually innocent of the death penalty, a federal court can
review the merits of his constitutional claim. Sawyer is not a freestanding claim for relief, but
a gateway that allows a habeas petitioner to have his defaulted constitutional claims reviewed.

                                              27
language of § 5(a)(3) and the CCA’s precedent. Section 5(a)(3) provides an
avenue for asserting a claim that “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.” One of the “special issues” that a jury
must decided pursuant to article 37.071 is “[w]hether, taking into consideration
all of the evidence, including the circumstances of the offense, the defendant's
character and background, and the personal moral culpability of the defendant,
there is a sufficient mitigating circumstance or circumstances to warrant that
a sentence of life imprisonment without parole rather than a death sentence be
imposed.” Tex. Code Crim. Proc. art. 37.071 § 2(e)(1). Accordingly, Balentine’s
and Rocha’s Wiggins claims assert that but for their constitutionally ineffective
representation, the jury would not have imposed the death penalty after
considering the mitigating evidence, which their attorneys had failed to
investigate and present. The plain text of § 5(a)(3), therefore, encompasses the
petitioners’ Wiggins claims, as Judge Haynes’ concurring opinion in Rocha
astutely notes. 2010 WL 4630794, at *16.
      Furthermore, the CCA’s explanation of the scope of § 5(a)(3) in the seminal
case, Ex Parte Blue, 230 S.W.3d 151 (Tex. Crim. App. 2007), acknowledges this
straightforward interpretation of the claims that are cognizable under § 5(a)(3).
In describing the scope of § 5(a)(3) in Ex parte Blue, the CCA expressly left open
the possibility that § 5(a)(3) was broader than Sawyer:
      We hesitate to declare that Article 11.071, Section 5(a)(3) wholly
      codifies the Supreme Court’s doctrine of “actual innocence of the
      death penalty,” even inasmuch as it has tied the exception to the bar
      on subsequent writs to the statutory criteria for the death penalty
      under Article 37.071. Since 1991, one of the special issues that
      determine whether capital punishment will be imposed is the
      so-called “mitigation” special issue, embodied in Article 37.071,

                                        28
      Section 2(e). Article 11.071 was originally promulgated in 1995,
      after this amendment to Article 37.071. Therefore it is arguable
      that, in theory at least, a subsequent habeas applicant could
      demonstrate by clear and convincing evidence that, but for some
      constitutional error, no rational juror would have answered the
      mitigation special issue in the State’s favor. On its face this would
      seem to meet the criteria of Article 11.071, Section 5(a)(3). But it
      would also permit a subsequent state habeas applicant to proceed
      under circumstances that would not excuse a federal petitioner
      under Sawyer v. Whitley. We need express no ultimate opinion on
      this question here.
Id. at 161 n.42 (citations omitted). Judge Haynes has also noted the significance
of this footnote, see 2010 WL 4630794, at *16, while the Balentine and Rocha
panel opinions give it too little consideration or weight. Furthermore, while the
Balentine and Rocha opinions contend that Ex parte Blue limited § 5(a)(3) to
claims that satisfy the Sawyer standard, the CCA in fact carefully avoided this
result, instead saying: “Section 5(a)(3) . . . represents the Legislature’s attempt
to codify something very much like this federal doctrine of ‘actual innocence of
the death penalty,’” “the Legislature apparently intended to codify, more or less,
the doctrine found in Sawyer v. Whitley,” and “[t]his reading of the exception
seems to limit its applicability.” 230 S.W.3d at 160-61 (emphasis added). Thus,
the CCA’s equivocal language reflects a clear intent to avoid saying that § 5(a)(3)
is defined by the same standard as that announced in Sawyer.
      Therefore, it is not clear that § 5(a)(3) does not encompass Balentine’s and
Rocha’s Wiggins claims even if they did not first meet the Sawyer standard.
According to the principles of Long, this ambiguity must be resolved in favor of
federal review. Therefore, because it fairly appears that the CCA’s decision was
interwoven with federal law, and no possible independent and adequate state
ground was clearly announced or established, the Long presumption prescribes
the same rule here: we must presume that the CCA dismissal was based on

                                        29
federal law. If the CCA had made a clear and express statement that it had not
decided the merits of the petitioners’ Wiggins claims—for instance, by stating
that the claims failed to satisfy § 5(a)(3) because they did not meet the Sawyer
showing—then federal habeas review might be similarly limited to the
petitioners’ claims that satisfied the Sawyer showing. However, the CCA did not
make this plain statement, and therefore, federal review of the petitioners’
Wiggins claims is not barred. In concluding to the contrary, the Balentine and
Rocha panels disregard the mandate of the Long rule.


V.    The controlling circuit precedent of this Court holds that
      unexplained CCA dismissals do not rest on independent and
      adequate state grounds, and subsequent conflicting panel
      opinions are not precedential
      In Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007), this court held that
an unexplained CCA dismissal substantially similar to that in Balentine did not
rest on independent and adequate state grounds. Ruiz involved a decision from
the CCA that read in pertinent part: “We have reviewed these claims and find
that they do not meet the requirements for consideration of subsequent claims
under Article 11 .071, Section 5. This application is dismissed as an abuse of the
writ . . . .” Ex parte Ruiz, No. WR-27328-03, 2007 WL 2011023 (Tex. Crim. App.
July 6, 2007). Ruiz held that this order did not rest on an independent and
adequate state ground: “The boilerplate dismissal by the CCA of an application
for abuse of the writ is itself uncertain on this point, being unclear whether the
CCA decision was based on the first element, a state-law question, or on the
second element, a question of federal constitutional law.” 504 F.3d at 527
(footnote omitted). In reaching this decision, the court relied simply on the
Supreme Court’s independent-and-adequate-state-ground doctrine and the
rationale animating that doctrine:

                                       30
             In deciding whether the CCA refused relief upon an
      independent state-law ground or upon the merits of Ruiz’s petition
      we are aided by the bright light of Michigan v. Long[.] . . . This
      settled principle gives to state courts control over the federal review
      of their opinions. It has become a rote rule at the fingertips of every
      writing member of state courts of last resort—where studied
      ambiguity or clarity in the decisional footing is an art form and an
      absence of clarity in an opinion is seldom inadvertent. Calibrated
      uncertainty can play a mediating role in garnering support for an
      outcome. To the point, that the CCA did not make clear that its
      decision rested on an independent state ground opens the merits of
      Ruiz’s Wiggins claim to federal review. At best, the CCA did not
      make clear whether it relied on state or federal law in dismissing
      Ruiz’s application. As the CCA is keenly aware, its choice of
      language was made against a background legal standard—which
      directs the CCA in either granting an application for consideration
      of subsequent claims or dismissing that application as an abuse of
      the writ—that is interwoven with federal law.
504 F.3d at 527 (footnote omitted) (citing Long, 463 U.S. at 1040-41; Coleman,
501 U.S. 722). Therefore, the panel decided that an unexplained CCA dismissal
did not rest on an independent and adequate state ground.
      Balentine and Rocha contend that Ruiz can be limited to its facts by
arguing that Ruiz depended only on the fact that the CCA’s summary order did
not acquire a majority of the votes of the CCA judges. It is true that in Ruiz, the
court said that “[i]n any event[,] the decisional basis here is uncertain[]” because
only four judges joined the CCA’s summary order and the necessary fifth vote for
a decision by the en banc CCA came in a separate concurrence that explicitly
reached the merits of Ruiz’s application. Id. Therefore, there was no controlling
five-vote opinion that rested explicitly on an independent and adequate state
ground. However, this alternative holding does not affect Ruiz’s principal
rationale. The panel clearly read the unexplained CCA dismissal order alone as
not clearly resting on independent and adequate state grounds, without regard


                                        31
to the number of votes it garnered. This is made clear in the following lines:
      In sum, the three opinions from the seven judges together do not
      clearly rest on an independent and adequate state ground. Even if
      the order of the four-Judge plurality alone left the decisional footing
      certain, and it did not, Judge Womack’s opinion, necessary to the
      court’s judgment, pushes the court toward a clear merit ruling, and
      in any event deprives the plurality of a fifth vote on an independent
      and adequate state ground. This leaves the decisional path far
      short of the clarity insisted upon by Michigan v. Long, . . . of which
      the CCA is acutely aware.
Id. at 528 (emphasis added). Thus, the panel was clear that the vote-counting
portion of its decision did not impact its decision that the summary order of the
CCA did not rest on independent and adequate state grounds. It also reflects the
panel’s correct understanding of the “clarity insisted upon by Michigan v. Long”
as being the certainty that the decision rested on independent and adequate
state grounds, and not clarity that the decision rested on federal grounds.
      The rationale underlying Ruiz underscores this point: The independent
and adequate state ground doctrine is meant to ensure that federal courts
provide the requisite respect to state court determinations and to allow state
courts to insulate their decisions from federal court review. The CCA has
available at its fingertips “rote rule[s]” for dismissing subsequent state habeas
applications on grounds that are certainly independent and adequate—by
making clear that its dismissal is dependent only on a finding that the factual
and legal bases for the applicant’s claim were previously available. Therefore,
because the CCA chose not to make a plain statement that its decisions rested
on independent state grounds, there is no valid rationale by which the Rocha
and Balentine panels can interpret the unexplained, obscure, and ambiguous
CCA decisions as not having been interwoven with federal law and clearly based
only on state law principles.


                                        32
      In place of Ruiz, the panel opinions in Balentine and Rocha rely on Hughes
v. Quarterman, which held that an unexplained CCA dismissal rested on
independent and adequate state grounds. 530 F.3d 336, 341-42 (5th Cir. 2008)
(citing Coleman, 501 U.S. at 729-32, 735); see Ex parte Hughes, No. 45-876-02
(Tex. Crim. App. Nov. 14, 2001) (unpublished), quoted in Balentine v. Thaler, 609
F.3d 729, 737 (5th Cir. 2010). However, Hughes was decided after the circuit
precedent in Ruiz, without citing or distinguishing Ruiz. Ruiz is, in fact,
indistinguishable from Hughes. Because a decision by one panel of this court
cannot overrule an earlier panel decision, see United States v. Castro-Guevarra,
575 F.3d 550, 552 (5th Cir. 2009), Hughes must give way to the clear
precedential authority of Ruiz. More importantly, however, for all of the reasons
discussed, Hughes is not a valid precedent because it is as inconsistent with the
Supreme Court’s precedents in Long and its progeny, as are Balentine and
Rocha.


                                CONCLUSION
      The unexplained CCA dismissal in Balentine required a determination by
the CCA that the application failed to satisfy the requirements of § 5(a)(1), which
the CCA had interpreted to include a component that incorporates federal law,
and the Balentine dismissal does not clearly and expressly state that it rested
on an independent and adequate state ground. Therefore, because it is a
determination interwoven with federal law, the Long presumption applies to the
CCA’s dismissal in Balentine. See Coleman, 501 U.S. at 739 (where an uncertain
state court decision gives “good reason to question whether there is an
independent and adequate state ground for the decision,” the Long presumption
applies). Without a clear statement that the CCA decision rests on independent


                                        33
and adequate state grounds, such as that it was decided only on the
unavailability prong of § 5(a)(1), the Supreme Court has repeatedly said that
such a decision must be presumed not to rest on independent and adequate state
grounds. See Long, 463 U.S. at 1039 n.4 (federal courts “may review a state case
decided on a federal ground even if it is clear that there was an available state
ground for decision on which the state court could properly have relied”).
Indeed, this court held exactly that in Ruiz.
      Furthermore, the CCA dismissals in Balentine and Rocha invoke § 5(a)(3),
which, on its face is interwoven with federal constitutional principles, and from
a plain reading of § 5(a)(3), appears to encompass Wiggins claims. The CCA in
Ex parte Blue specifically left open this obvious interpretation of § 5(a)(3) that
is broader than the state-law interpretation reached by the Balentine and Rocha
panels. The CCA’s unexplained and ambiguous dismissals in Balentine and in
Rocha, which only stated that the applications failed to satisfy the requirements
of § 5(a)(3), accordingly, fairly appear to be interwoven with federal law.
Without a plain statement that the applications were dismissed based on a
procedural default dependent only on state law, the decisions must be presumed
not to rest on independent and adequate state grounds. Therefore, federal court
review of Balentine’s and Rocha’s Wiggins claims is not barred.
      Thus, it is clear that the Balentine and Rocha opinions conflict with the
Supreme Court’s precedents, the CCA’s precedents, and our own controlling
circuit precedent. Most important, however, the panel opinions seriously
undermine the Long standard and retrogress into unauthorized Erie-type
guessing as to the nature of unexplained state court death penalty subsequent
habeas decisions in our circuit.
      For these reasons I respectfully dissent from the majority’s decision to
deny an en banc rehearing in these cases.

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35
                          Nos. 05-70028 & 09-70018




HAYNES, Circuit Judge, dissenting from the denial of rehearing en banc:
      Judge Dennis’s dissent from the denial of rehearing en banc gives a
scholarly analysis of the substantive reasons that the panel opinions in Rocha
and Balentine are incorrect. I write to express the view that these cases merit
en banc reconsideration because they involve a question “of exceptional
importance.”    FED. R. APP. P. 35(a)(2), (b)(1)(B). Further, the decisions in
question “conflict[] with a decision of the United States Supreme Court” (namely,
Long and its progeny). FED. R. APP. P. 35(b)(1)(A). Congress has limited, but not
eliminated, the role of federal courts in the process of state habeas review. See
generally 28 U.S.C. §§ 2244, 2254. The contours of that line are exceptionally
important in any case, but are particularly so here where the death penalty is
involved. Accordingly, I respectfully dissent from the court’s declination to
rehear these cases en banc.




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