            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                         NOS. WR-79,497-05 & WR-79,497-06



                       EX PARTE KEITH TAYLOR, Applicant

             ON APPLICATIONS FOR WRIT OF HABEAS CORPUS
            CAUSE NOS. D-1-DC-11-300144-C & D-1-DC-12-904028-C
           IN THE 390 TH DISTRICT COURT FROM TRAVIS COUNTY

       A LCALA, J., filed a dissenting opinion.

                                DISSENTING OPINION

       This is another claim of ineffective assistance of counsel addressed by this Court

based on pleadings that have been presented by a pro se litigant. This Court’s judgment

denies post-conviction habeas relief in this case. Instead, I would remand this case to the

habeas court for the appointment of counsel in the interests of justice, permit counsel to

amend applicant’s ineffectiveness-claim pleadings, and decide the ultimate merits of

applicant’s claim after those events. I, therefore, respectfully dissent from this Court’s

judgment that summarily denies relief in this case.

       In my dissenting opinion in Ex parte Garcia, I highlighted what I view as an ongoing
                                                                                      Taylor - 2

and widespread problem regarding the absence of appointed habeas counsel to assist indigent

applicants in pursuing their colorable ineffective-assistance claims. See Ex parte Garcia,

No. WR-83,681-01, 2016 WL 1358947 (Tex. Crim. App. Apr. 6, 2016) (Alcala, J.,

dissenting). I explained that, in many cases, the first opportunity for a defendant to challenge

the effectiveness of his attorney arises in a post-conviction habeas proceeding, but, at that

procedural juncture, an indigent applicant has no established constitutional right to appointed

counsel. See id., slip op. at 2. Given that many indigent applicants must proceed pro se on

habeas, I observed that claims of ineffectiveness, even those that have merit, “will almost

always fail because the pro se applicant is unaware of the legal standard and evidentiary

requirements necessary to establish his claim.” Id.

       My dissenting opinion in Garcia merely recognized the problem that had already been

highlighted by the Supreme Court in Martinez v. Ryan, in which it stated,

       Claims of ineffective assistance at trial often require investigative work and an
       understanding of trial strategy. When the issue cannot be raised on direct
       review, moreover, a prisoner asserting [such a] claim in an initial-review
       collateral proceeding cannot rely on a court opinion or the prior work of an
       attorney addressing that claim.

Martinez v. Ryan, 132 S. Ct. 1309, 1317 (2012). In addition, the Supreme Court noted that

prisoners “unlearned in the law” may not “comply with the State’s procedural rules or may

misapprehend the substantive details of federal constitutional law.” Id.          Moreover, it

observed that prisoners, while confined to prison, are “in no position to develop the

evidentiary basis for a claim of ineffective assistance, which often turns on evidence outside
                                                                                      Taylor - 3

the trial record.” Id. In light of all these considerations, the Supreme Court concluded that,

in order to present an ineffective-assistance claim in accordance with the State’s procedures,

“a prisoner likely needs an effective attorney.” Id. Without the assistance of effective

appointed counsel in a habeas proceeding, the Supreme Court recognized that such a

proceeding may not be “sufficient to ensure that proper consideration [is] given to a

substantial claim.” Id. at 1318. This, it explained, was of particular concern, given that the

right at stake, the right to the effective assistance of counsel, is a “bedrock principle in our

justice system,” without which the very fairness and accuracy of the underlying criminal

proceeding cannot be guaranteed. Id. at 1317.

       In Garcia, I urged this Court to take steps towards remedying this problem through

the appointment of counsel for indigent applicants who have colorable ineffective-assistance

claims. Garcia, 2016 WL 1358947, slip op. at 21. I observed that the statutory basis for

appointing counsel under those circumstances already exists in Texas. In particular, I noted

that Article 1.051 of the Texas Code of Criminal Procedure entitles an indigent habeas

applicant to appointed post-conviction counsel whenever the habeas court determines that

“the interests of justice require representation.” Id. (quoting T EX. C ODE C RIM. P ROC. art.

1.051(d)). Based on that statutory authority, I suggested that this Court should remand any

pro se habeas application to the habeas court for appointment of counsel in the interests of

justice when “either the pleadings or the face of the record gives rise to a colorable,

nonfrivolous [ineffective-assistance] claim.” See id. I explained that such a course would
                                                                                               Taylor - 4

further the interests of justice by ensuring that substantial claims of ineffectiveness were

given full and fair consideration by this Court on post-conviction review, thereby reducing

the likelihood that violations of defendants’ bedrock Sixth Amendment rights would go

unremedied. Id., slip op. at 16, 30.1

        Here, in making my determination that applicant may have a colorable ineffective-

assistance claim that requires the appointment of habeas counsel in the interests of justice,


1
         Perhaps it could be argued that, because there is no established constitutional right to habeas
counsel, this Court should never remand for the appointment of counsel in the interests of justice.
But this suggestion would seriously misunderstand the nature of the complaint before us. Here, the
issue is the right to effective trial counsel and the systematic failure in Texas to provide an adequate
vehicle to ensure that right. Direct appeal, when an indigent defendant has an absolute right to
appointed counsel, fails to adequately protect the right to effective trial counsel because most
ineffective-assistance claims require evidence outside the record, and the seventy-five-day window
of time for resolving a motion for new trial is usually inadequate for that process. See Trevino v.
Thaler, 133 S. Ct. 1911, 1915 (2013) (observing that the “structure and design of the Texas system[,]
in actual operation, [ ] make it virtually impossible for an ineffective assistance claim to be presented
on direct review”) (citations omitted). And habeas-corpus review, when an indigent defendant has
no absolute right to appointed counsel, similarly fails to adequately protect the right to effective trial
counsel because counsel is usually needed to properly litigate ineffective-assistance claims. See
Martinez v. Ryan, 132 S. Ct. 1309, 1317-18 (2012) (observing that, to adequately present an
ineffective-assistance claim, a prisoner “likely needs an effective attorney”; without the assistance
of counsel on post-conviction review, a prisoner’s ability to present an ineffective-assistance claim
is “significantly diminishe[d]”). Thus, unless indigent applicants are afforded the assistance of
appointed habeas counsel to raise their substantial ineffectiveness claims, Texas essentially has no
adequate vehicle for defendants to litigate that issue. The characterization of the Legislature’s
authorization of appointed habeas counsel in the interests of justice as a mere act of legislative grace
fails to acknowledge the reality that, without some means of appointing habeas counsel in this
limited area of ineffective-assistance-of-counsel challenges, Texas’s system fails to ensure that
defendants’ Sixth Amendment rights are protected and thus raises the possibility of a constitutional
violation on that basis. See id. at 1315 (noting that it is an open question of constitutional law
“whether a prisoner has a right to effective counsel in collateral proceedings which provide the first
occasion to raise a claim of ineffective assistance at trial”; the Constitution “may require States to
provide counsel in initial-review collateral proceedings because ‘in these cases . . . state collateral
review is the first place a prisoner can present a[n ineffectiveness] challenge to his conviction,’” thus
making the collateral proceeding his “‘one and only appeal’ as to an ineffective-assistance claim”)
(quoting Coleman v. Thompson, 501 U.S. 722, 755-56 (1991)).
                                                                                     Taylor - 5

I have (1) liberally construed applicant’s pleadings that complained of ineffective assistance

of counsel, and (2) examined applicant’s complaints for substantive merit rather than for

technical procedural compliance. This liberal approach to construing the pleadings is firmly

recognized as appropriate in light of applicant’s status as a pro se litigant. See Estelle v.

Gamble, 429 U.S. 97, 106 (1976) (pro se complaint “is to be liberally construed”); Haines

v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam) (a pro se inmate’s petition should be

viewed liberally and is not held to the stringent standards applied to formal pleadings drafted

by attorneys); see also Hernandez v. Thaler, 630 F.3d 420, 426-27 (5th Cir. 2011) (filings

by habeas petitioners are “entitled to the benefit of liberal construction”); Brown v. Roe, 279

F.3d 742, 746 (9th Cir. 2002) (“Pro se habeas petitioners are to be afforded the benefit of any

doubt.”) (citations omitted). The United States Tenth Circuit Court of Appeals has stated,

       The mandated liberal construction afforded to pro se pleadings “means that if
       the court can reasonably read the pleadings to state a valid claim on which the
       [petitioner] could prevail, it should do so despite the [petitioner’s] failure to
       cite proper legal authority, his confusion of various legal theories, his poor
       syntax and sentence construction, or his unfamiliarity with pleading
       requirements.”

Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (quoting Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir. 1991)). It is well established that this practice of liberally construing

pro se pleadings is a proper judicial function that does not transform a judge into an advocate

for a habeas applicant. See id. (explaining that, although a court “should not assume the role

of [an] advocate for the pro se litigant and may not rewrite a petition to include claims that

were never presented,” a court acts properly when it “look[s] carefully at the facts and the
                                                                                      Taylor - 6

pleadings in an effort to ascertain what occurred in prior state proceedings and the true nature

of petitioner’s claims”).

       In light of these principles, my review for whether an applicant may have a colorable

claim that would justify the appointment of counsel in the interests of justice does not call

upon this Court or the habeas court to make legal arguments for an applicant, nor does it

require any court to become an advocate for him. Rather, by liberally reading the pro se

pleadings and examining the face of the record to determine whether appointed counsel is

required under the circumstances in order to ensure that an applicant’s claims are given

meaningful consideration, I am merely adhering to my judicial duties to afford pro se

litigants wide latitude in pleading their claims and to uphold the requirements of the Code

of Criminal Procedure that entitle applicants to appointed counsel when the interests of

justice require it.

       I further note that my proposed approach that liberally examines the pleadings and

independently reviews the available record is a mild house-cat when compared to the lion’s

share of the much more burdensome independent judicial review of the record that has been

approved of and conducted in Texas state courts for almost five decades in Anders cases. See

Anders v. California, 386 U.S. 738, 744-45 (1967) (requiring appellate courts to conduct “a

full examination of all the proceedings[ ] to decide whether the case is wholly frivolous,” and

stating that an appellate court must “pursue all the more vigorously its own review”); Stafford

v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991). In Anders cases, this Court requires
                                                                                     Taylor - 7

appellate judges to independently review the record for any arguable grounds for appeal

when an appointed attorney has filed a brief asserting that there are no arguable grounds, and

if the judges’ independent review of the record reveals that there are arguable grounds for

appeal, then the appellate court must remand the case to the trial court for the appointment

of new appellate counsel. See Stafford, 813 S.W.2d at 511 (under Anders, “after receiving

a brief claiming that there are no arguable grounds for appeal, the reviewing court must

review the record to make an independent determination”). A judge’s vigorous independent

review for any arguable grounds of appeal in an Anders case is required to ensure that an

appointed attorney has not erroneously asserted that there are no arguable grounds for appeal.

See id. By requiring that judges vigorously and independently review the record for any

arguable grounds of appeal in an Anders case, this Court has essentially already held that this

type of review does not transform a judge into an advocate for a party, and that instead this

is a review that honors a judge’s oath to preserve, protect, and defend the Constitution and

laws of the United States and of this state. And, although in Anders cases an appellate judge

carries a heavy burden to examine the entire record for any arguable grounds for appeal on

any of the numerous possible subjects that could be a basis for appeal, in contrast, in my

proposed approach to post-conviction habeas cases, an appellate judge bears a much lighter

burden to liberally examine the substance of the complaints in a pro se applicant’s pleadings

and to review the available record to determine whether those complaints are arguably
                                                                                              Taylor - 8

meritorious, and then only as to claims of ineffective assistance of counsel.2 I have never

suggested that, in conducting this review, a judge should be an advocate for an applicant or

that a judge must exhaustively scour the record for any possible claims, and such an

aspersion would unfairly oversimplify and mischaracterize my position.

        Applying the foregoing principles here, I would hold that applicant’s pleadings are

adequate to give rise to a colorable ineffective-assistance claim so as to warrant the

appointment of counsel in the interests of justice. Because he is pro se, applicant should not

be faulted for failing to more particularly plead or prove the allegations in his application.

See Estelle, 429 U.S. at 106 (“a pro se complaint, however inartfully pleaded, must be held

to less stringent standards than formal pleadings drafted by lawyers and can only be

dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to relief”) (citations omitted).

I note that, if applicant is deprived of the opportunity to factually and legally develop his

2
         Of course, Anders cases are different in the sense that an indigent defendant has a
constitutional right to effective appointed counsel at the direct-appeal stage, whereas there is no such
right, as yet, to effective appointed counsel at the habeas stage, but that would be a far too simplistic
rationale for disregarding the independent-review analysis here. As the Supreme Court has noted,
the right at stake here is the right to effective trial counsel rather than the right to effective habeas
counsel. See Martinez, 132 S. Ct. at 1318. Furthermore, as the Supreme Court has observed, the first
time that a defendant in Texas likely can challenge the effectiveness of his trial attorney is in his
initial habeas proceeding, thus making that proceeding more like a direct appeal as to the issue of
ineffective assistance of counsel. See Trevino, 133 S. Ct. at 1915; see also Martinez, 132 S. Ct. at
1317 (observing that, when habeas proceeding is the first opportunity to raise an ineffectiveness
claim, that proceeding “is in many ways the equivalent of a prisoner’s direct appeal as to the
ineffective-assistance claim”). Thus, the independent-review requirement that I propose bears more
similarities to the Anders requirement than dissimilarities, in that both of them are concerned with
whether an indigent defendant has arguable grounds to challenge his conviction and sentence as to
those matters that he has the right to appeal in the first instance.
                                                                                      Taylor - 9

ineffective-assistance claim in the instant proceeding, then it is likely that he will be unable

to do so in any future proceeding as a result of the statutory bar on subsequent writs. See

T EX. C ODE C RIM. P ROC. art. 11.07, § 4. In order to afford applicant his one full bite at the

apple in this initial habeas proceeding, and in order to ensure that applicant has been fully

afforded his Sixth Amendment rights, I conclude that the interests of justice require

appointed counsel and further proceedings under these circumstances. I, therefore, would

not deny applicant relief at this stage but would instead remand this case to the habeas court

for appointment of counsel and further proceedings as to his ineffective-assistance claim.

Because the Court declines to do so and instead denies relief, I respectfully dissent.

Filed: June 22, 2016

Do Not Publish
