              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. AP-75,370



                     EX PARTE CHARLES DEAN HOOD, Applicant



           ON RECONSIDERATION ON THE COURT’S OWN MOTION OF
              AN APPLICATION FOR A WRIT OF HABEAS CORPUS
                         FROM COLLIN COUNTY



      K EASLER, J., filed a dissenting opinion in which K ELLER, P.J., and H ERVEY, J.,
joined.

       The plurality ignores the language of Texas Code of Criminal Procedure Article

11.071, Section 5(a), posits a false “conundrum,” and relies upon cases that are

distinguishable. Because Article 11.071 requires that Hood’s application be dismissed, I

dissent.

       Under Article 11.071, the merits of a subsequent habeas application may be

considered only under limited circumstances.1 At issue here is whether the legal basis of




       1
           T EX. C ODE C RIM. P ROC. art. 11.071 § 5(a).
                                                                         HOOD DISSENT—2

Hood’s claim was “unavailable” on the date a previous application was filed.2                The

Legislature has specifically defined what it means for a legal basis to be “unavailable”:

       For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or
       before a date described by Subsection (a)(1) if the legal basis was not
       recognized by or could not have been reasonably formulated from a final
       decision of the United States Supreme Court, a court of appeals of the United
       States, or a court of appellate jurisdiction of this state on or before that date.3

We are not at liberty to ignore this definition. Addressing a prior legislative scheme that

prohibited the consideration of late-filed habeas applications, we emphasized our duty to

enforce the laws written by the Legislature:

       Our oaths are to uphold the constitutions and laws of this country and state;
       they are not a commission to do what a majority of us think is fair. This law
       was passed by the legislature and approved by the governor, in accordance
       with our constitutional form of government. The law is clear: this court shall
       dismiss this application because it was filed late. If the law is barbarous, the
       legislature should repeal it or the governor should commute or pardon those
       who are subjected to it. In the meantime, we must follow it.4

       The plurality does not purport to explain how Hood has shown that the legal basis of

his current claim was not available when he filed his previous application because it cannot.

Notably, there is nothing but silence from Judge Price, who agreed with our disposition of

this case on original submission.5 Judge Price’s contrary opinion today is the sole reason that



       2
           T EX. C ODE C RIM. P ROC. art. 11.071 § 5(a)(1).
       3
           T EX. C ODE C RIM. P ROC. art. 11.071 § 5(d).
       4
           Ex parte Smith, 977 S.W.2d 610, 611 (Tex. Crim. App. 1998).
       5
           Ex parte Hood, 211 S.W.3d 767, 770 (Tex. Crim. App. 2007).
                                                                        HOOD DISSENT—3

yesterday’s minority view is now the law.

       Penry II, decided in 2001,6 was the first time that the United States Supreme Court

ever said that a nullification instruction would not satisfy the dictates of Penry I.7 Penry II

was decided after applicant’s direct appeal, where he had raised a Penry challenge, but before

applicant filed his second habeas application, where he did not raise a Penry challenge.

Unquestionably, then, Hood’s current legal challenge could have been “reasonably

formulated” from the Supreme Court’s decision in Penry II.

       The plurality contends that we can “forgive” Hood for not recognizing that he had a

valid Penry claim, “because we had not yet recognized that fact ourselves.” 8 But whether

this Court had recognized the validity of a claim is not the test under Article 11.071, Section

5(a)(1); the test, in part, is whether the claim was recognized by a decision from any court

enumerated in the statute. Even if the validity of a claim is not recognized by this Court, it

is considered “available” under the habeas statute if it is recognized by a decision from the

United States Supreme Court, a federal appeals court, or a Texas state appeals court.

       The test also includes whether the claim could have been “reasonably formulated”

from a decision of this Court or one of the other courts mentioned above. There are many

claims that can be reasonably formulated that we do not yet recognize as valid. We routinely



       6
           Penry v. Johnson (Penry II), 532 U.S. 782 (2001).
       7
           Penry v. Lynaugh, 492 U.S. 302 (1989); see Penry II, 532 U.S. at 798-800.
       8
           Plurality op. at 18 n.51.
                                                                         HOOD DISSENT—4

grant petitions for discretionary review to consider such claims. When the plurality says that

we should not expect Hood to be “more prescient than ourselves,” 9 it reveals its confusion:

The issue is whether a claim is colorable to the required degree (recognized by or can be

reasonably formulated from a Supreme Court, federal circuit court, or Texas appellate court

decision), not whether we currently recognize it as the controlling law in Texas. This is why

we were correct on original submission when we said, “Another point that deserves emphasis

is that lack of recognition is not enough to render a legal basis unavailable. If the legal basis

could have been reasonably formulated from a decision issued by a requisite court, then the

exception is not met.” 10

       The plurality also suggests that we can “forgive” Hood’s dereliction because of our

decision in Ex parte Smith,11 which held that an unambiguous nullification instruction (such

as the one given here) was sufficiently distinguishable from the instruction given in Penry II

so as to satisfy Penry I.12 There are two reasons that our decision in Smith could not have

rendered applicant’s Penry claim “unavailable.” First, Smith was not a United States

Supreme Court decision. Although Smith had interpreted Penry II in a manner that was

adverse to Hood, the Supreme Court had not yet had occasion to address that interpretation.



       9
            Id.
       10
            See Ex parte Hood, 211 S.W.3d at 775.
       11
            132 S.W.3d 407 (Tex. Crim. App.), rev’d, Smith v. Texas, 543 U.S. 37 (2004).
       12
            See Plurality op. at 18 n.51; see also Smith, 132 S.W.3d at 416-17.
                                                                         HOOD DISSENT—5

So the possibility remained that the Supreme Court could disagree with our interpretation.

And as long as that possibility remained, then, under the habeas statute, there remained a

Supreme Court decision—Penry II—from which Hood’s claim could have been reasonably

formulated.

       Second, our decision in Smith was not final when Hood filed his application. The

decision was only a month old, leaving the possibility open that Smith could file a petition

for writ of certiorari with the Supreme Court of the United States,13 have that petition

granted, and ultimately obtain a reversal.        That is precisely what happened.14         By

distinguishing Penry II (as not applicable to unambiguous instructions) in a published

opinion, our decision in Smith in fact highlighted the issue, so that no one could rely on a

lack of notice as to the issue’s existence. And because it was the first time that Penry II had

been distinguished in that fashion, and the decision was still subject to Supreme Court

review, it was clearly a live issue that any person filing a capital habeas application should

have taken into account.

       The plurality contends that our scheme and the federal scheme create a “conundrum”

because “a death-row inmate must argue in this Court that Tennard, Smith, et al. announced

new law, but he must argue that those same cases simply reiterated clearly established law

       13
           U.S. S UPREME C T. R. 13(1) (“Unless otherwise provided by law, a petition for a
writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court
of last resort . . . is timely when it is filed with the Clerk of this Court within 90 days after
entry of the judgment.”).
       14
            See Smith v. Texas, 543 U.S. 37 (2004).
                                                                         HOOD DISSENT—6

once he arrives in federal court.” 15 As a result, the plurality concludes that Hood “is entitled

to relief in one court or the other.” 16 Even if this were true, that does not give us license to

ignore a controlling state statute that requires the dismissal of the state habeas application.

That an applicant may inevitably receive relief on federal habeas is never a reason to ignore

the requirements of 11.071. If my stance seems harsh or unfair, it should be remembered that

only the Legislature can remedy the situation. This case provides yet another egregious

example of judges legislating from the bench, ignoring what the majority of our citizens,

through their various state representatives, have declared is the law of the state.

       Nevertheless, the so-called “conundrum” does not really exist.             The statutory

requirement that a state habeas claim be “new” applies only to subsequent applications.17 If

a claim is filed in an initial state habeas application, both the state and federal courts may

consider a claim based on long-standing, firmly established federal constitutional law.

Ineffective assistance of counsel claims, for example, tend to be of this variety.

       Even if we are just considering subsequent applications, a claim could easily qualify

as “new” in state habeas court and yet be subject to consideration under the “unreasonable

application of clearly established law” 18 standard in federal court. This would occur if the



       15
            Plurality op. at 16.
       16
            Id. at 19.
       17
            See T EX. C ODE C RIM. P ROC. art. 11.071 § 5.
       18
            See 28 U.S.C. § 2254(d)(1).
                                                                        HOOD DISSENT—7

Supreme Court announced a new rule of constitutional law, a death-row inmate raised a

claim based on this new rule in a subsequent state habeas application that was his first

application filed after the new rule was announced, and this Court held against the inmate

in an opinion that unreasonably applied that newly established rule.

       Further, as we explained in our opinion on original submission, the interplay between

the law of cognizability and the subsequent application requirements of article 11.071,

Section 5, can result in an issue becoming “new” as to a particular applicant even if it is not

“new” in a general sense.19 Some court-made rules can affect the cognizability of a claim in

an initial state habeas proceeding, and one such rule is implicated here: Hood would have

been barred from raising his Penry claim in his first habeas application because a rule

procedurally barring that claim prevents the relitigation of claims on habeas that were raised

and rejected on direct appeal.20 In such a case, direct appeal, and ultimately a petition for

writ of certiorari from our decision in that direct appeal, would be an available avenue for

the adjudication of the claim. With the advent of Penry II, however, habeas corpus also

became an avenue for litigating Hood’s Penry claim because a change in the law is an

exception to the procedural bar.21

       For that reason, the plurality is just plain wrong in saying that our opinion on original


       19
            See Hood, 211 S.W.3d at 776-77.
       20
            See Ex parte McFarland, 163 S.W.3d 743, 748 (Tex. Crim. App. 2005).
       21
         Ex parte McFarland, 163 S.W.3d at 748; Ex parte Drake, 883 S.W.2d 213, 215
(Tex. Crim. App. 1994).
                                                                        HOOD DISSENT—8

submission took a position inconsistent with the Supreme Court’s later decision in Abdul-

Kabir v. Quarterman 22 in suggesting that “Penry II announced new law.” 23 We expressly

declined to decide whether Penry II announced “new” law “in the abstract” but held that it

was “new” as to the applicant because a nullification claim had been resolved against him

in a prior proceeding.24 So even if our holdings before Penry II were “unreasonable

applications of clearly established law,” 25 it was still true that a Penry claim could not have

been “reasonably formulated” by Hood while it remained non-cognizable. Even if Penry II

did not establish “new” law in a general sense, it was a new legal authority for cognizability

purposes and was also a new “Supreme Court decision” from which Hood’s claim could have

been “reasonably formulated.” Had Hood raised his claim in the first application filed after

Penry II was handed down, then he would have satisfied Article 11.071, Section 5. This rule

of showing unavailability by exhaustion, articulated on original submission,26 is not a hollow

one: In Ex parte Martinez, for example, we followed this rule, found that the claims in that

case were not barred by Section 5, and granted relief.27




       22
            550 U.S. 233 (2007).
       23
            See Plurality op. at 18.
       24
            See Hood, 211 S.W.3d at 776.
       25
            See 28 U.S.C. § 2254(d)(1).
       26
            See Hood, 211 S.W.3d at 777.
       27
            233 S.W.3d 319, 322-23 (Tex. Crim. App. 2007).
                                                                          HOOD DISSENT—9

       If Hood faces a “conundrum,” it is because, unlike other habeas applicants, he chose

to file a pro-se habeas application without raising an available Penry claim. This is exactly

the kind of behavior that the Legislature specifically sought to prohibit by enacting Section

5(a). But no “conundrum” exists for Hood because he is simply not entitled to relief in any

forum. The plurality’s contention that he is entitled to relief either in this Court or federal

court is wrong because a dismissal under Article 11.071, Section 5 would be an adequate and

independent state ground that would bar relief in federal court.28

       Finally, the plurality relies upon several prior, unpublished decisions for the

proposition that other litigants have received relief under similar circumstances, and it

                                                                     29
concludes that we should treat Hood like those litigants.                 But those cases are

distinguishable. The habeas applicants in Davis and Robertson did raise a Penry claim in

their first post-Penry II applications.30 The same is true in the more recent cases cited by the

plurality today.31 In some, but not all of the cases, the applicant also raised the claim on


       28
          See Hughes v. Quarterman, 530 F.3d 336, 341-42 (5th Cir. 2008), cert. denied, 129
S. Ct. 2378 (2009); see also Kunkle v. Texas, 543 U.S. 1039, 1039-1040 (2004) (Stevens, J.,
concurring); Moore v. Texas, 535 U.S. 1044 (2002) (Scalia, J., dissenting).
       29
            See Plurality op. at 14 n.41, 20.
       30
         See Hood, 211 S.W.3d at 780, 780 n.56 (distinguishing Ex parte Robertson, No.
AP-74,720 (Tex. Crim. App. Mar. 16, 2005) (not designated for publication) and Ex parte
Davis, No. WR-40,339-06 (Tex. Crim. App. Mar. 29, 2006) (not designated for publication)).
       31
          See Ex parte Buntion, No. AP-76,236 (Tex. Crim. App. Sept. 30, 2009) (not
designated for publication) (prior application filed in 1996); Ex parte Rachal, No. WR-
60,394-02 (Tex. Crim. App. Sept. 23, 2009) (not designated for publication) (prior
application filed in 1997); Ex parte Jones, No. AP-75,896, 2009 WL 1636511 (Tex. Crim.
                                                                        HOOD DISSENT—10
direct appeal and in an initial habeas application.32 Although our opinion on original

submission did not decide whether Penry II made nullification claims newly available in

general under article 11.071, Section 5, some of our subsequent unpublished decisions are

consistent with doing so. Such a view is entirely understandable because Penry II was the

first time the Supreme Court said that a nullification instruction was insufficient to satisfy

Penry I’s dictates. But until today, all of our cases were also consistent with the view that

an applicant could not challenge a nullification instruction if the applicant failed to do so in

a previous application filed after Penry II.

       Because the Court’s decision is contrary to our state habeas statute, I dissent.




DATE DELIVERED: February 24, 2010
PUBLISH




App. June 10 2009) (not designated for publication) (while not setting forth the procedural
history about prior habeas applications, internal court records show that both prior
applications were filed in 1997).
       32
          See Hood, 211 S.W.3d at 780 (outlining Robertson’s procedural history and
indicating that Robertson raised his claim on direct and appeal and his initial habeas
application); Ex parte Buntion, No. WR-22,548-02 (Tex. Crim. App. Nov. 5, 2003) (not
designated for publication) (internal court records indicate that Buntion raised his claim on
direct appeal and in his initial habeas application); Ex parte Jones, No. 2009 WL 1636511
at *3 (summarizing State’s allegations and noting that Jones did not raise his claim on direct
appeal or in his initial application); Rachal v. State, 917 S.W.2d 799 (Tex. Crim. App. 1996)
(claim not raised on direct appeal); Ex parte Rachal, WR-60,394-01 (Tex. Crim. App. Mar.
23, 2005) (not designated for publication) (claim not raised in initial habeas application); Ex
parte Davis, No. AP-76,263, 2009 WL 3839065 at *4 n.26 (Tex. Crim. App. Nov. 18, 2009)
(Keller, P.J. dissenting) (not designated for publication) (referring to trial court’s findings).
