









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-75,835-01


EX PARTE HECTOR ROLANDO MEDINA, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. W07-32923-S(A) IN THE 282ND

JUDICIAL DISTRICT COURT DALLAS COUNTY



Per Curiam.  Price, J., filed a concurring opinion in which Johnson and
Cochran, JJ., joined.  Keller, P.J., filed a dissenting opinion in which Hervey, J., joined. 
Keasler, J., filed a dissenting opinion in which Hervey, J., joined.  Meyers, J., dissented.

ORDER

 
	We have received a document entitled "Application for Writ of Habeas Corpus" in
this death-penalty case.  We conclude that this document is not, in fact, an "application for
writ of habeas corpus" under Article 11.071 of the Texas Code of Criminal Procedure.  We
therefore appoint new counsel, and set a new filing date pursuant to Article 11.071, §
4A(b)(3). (1)
I.

	In October 2008, a jury convicted applicant of the offense of capital murder.  The jury
answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article
37.071, and the trial court, accordingly, set punishment at death.  This Court affirmed
applicant's conviction and sentence on direct appeal.  Medina v. State, No. AP-76,036, 2011
WL 378785 (Tex. Crim. App. Jan. 12, 2011) (not designated for publication). On direct
appeal, he claimed, inter alia, that he received ineffective assistance of counsel during the
punishment phase of  trial.  Id. at 26-31.  We rejected that claim because it was not factually
developed in the record.  Id. at 31 ("By not specifying what evidence his counsel should have
presented, the appellant has failed to present a basis to conclude that defense counsel's
decision not to present evidence was unreasonable, or that there is a reasonable probability
that the result would have been different.").  
	The trial judge timely appointed present habeas counsel, Mr. Robin Norris, who filed
the document that is pending before us.  That document asserts that "Applicant's restraint is
illegal" for ten listed reasons.  Each of these listed reasons allege ineffective assistance of
either trial or appellate counsel.  The entire "application" is only four pages long and merely
states factual and legal conclusions. (2) That conclusory list does not satisfy our state pleading
requirements, (3) and counsel knew it. Mr. Norris apparently intended to force this Court to
readdress the pleading requirements, as he filed a thorough brief on that very issue in
opposition to the State's motion to dismiss the "application." (4) 
	In this case, both the State and the judge of the convicting court recognized that the
document that habeas counsel filed was not a proper writ application as it did not set out
specific facts or contain any exhibits, affidavits, or a memorandum of law that alleged any
specific facts.  The State even offered "to forfeit to applicant a portion of the time statutorily
allotted to the State for preparing its response" (5) to ensure that applicant could have his claims
addressed on the merits.  According to the State, habeas counsel "informed the State and the
[convicting] Court that he will not allege his claims with any greater specificity and will only
provide 'boilerplate' caselaw if ordered to replead." (6) 
	Because counsel waited until the last possible day to file this document, a dismissal,
even though not on the merits, would foreclose the opportunity to file a new pleading,
bringing those same claims. Similarly, a denial on the merits of the conclusory allegations
would foreclose any opportunity to raise those same claims again.  By all appearances,
counsel has thrown his client under the bus. Therefore, we issued an order to counsel to
appear before the Court on Wednesday, June 15, 2011, to explain his conduct.
II.

	Mr. Norris duly appeared and began his explanation: "Since I did file a pleading
designated as a writ of habeas corpus on time-I think perhaps that the Court regarded it as
not being a writ of habeas corpus."  Indeed, that is so.  However, Mr. Norris maintained that
he had a "good faith" belief that his document "sufficiently pleads cognizable grounds for
habeas corpus relief" even though he did not set out specific facts to support his legal
allegations.  He agreed that "[t]he suggestion that I want to change the law is close to being
right, at least in my view.  But not exactly right.  I'm not trying to change the law.  I'm trying
to get some law."  He admitted that he had "frequently" discussed the situation with his client
"[a]nd he's not happy about it.  But he's a lay person."  Mr. Norris maintained that it is "in
the best interests of [his] client, Mr. Medina, and similarly situated death-row inmates not to
plead evidence in briefing in the initial application because it promotes disposition without
evidentiary hearings."  He largely agreed that he did not want to plead facts that might
support his allegations because he did not want the State to know what his evidence was.  
	Mr. Norris stated that he had been a practicing lawyer in Texas for some thirty-five
years, had worked for a number of years at this Court, and had represented somewhere
between ten and twenty death-row inmates on their post-conviction habeas-corpus
applications.  He admitted that, prior to this case, he had always included exhibits and stated
facts that would support his legal contentions, but he did not do so in this case because he did
not think the law was settled that a habeas application must contain facts.  He stated that he
had thoroughly investigated the facts underlying his claims, but that he intentionally did not 
include them in his client's pleading, and that he intentionally filed his pleading on the last
possible day and refused the State's offer to give him more time to replead and add those
crucial facts.  It is abundantly clear that counsel's actions were not the result of mistake,
inadvertence, negligence, or a lack of legal expertise.  It is also abundantly clear that counsel
is intentionally jeopardizing applicant's "one very well represented run at a habeas corpus
proceeding." (7)
	On July 1, 2011, this Court issued an order inviting the trial judge, the State, and Mr.
Norris to brief five issues concerning this matter. (8) In early August, applicant's pro bono
counsel for purposes of filing a petition for certiorari in the United States Supreme Court (9)
filed a "Motion for Appointment of Conflict-Free Counsel" to respond on applicant's behalf
to the Court's questions.  We appointed the Office of Capital Writs to represent applicant for
that limited purpose on August 8, 2011.  We have now received replies from the State, the
Office of Capital Writs, and Mr. Norris.  We have also received two pro se documents
submitted to the trial court by applicant which purport to be motions to amend the original 
petition for habeas corpus.  We dismiss these pro se filings because applicant is not entitled
to hybrid representation under Article 11.071 and because his filing is a motion to amend the
original "application," but an untimely amendment adding new claims is not allowed under
Article 11.071.   
	The State and the Office of Capital Writs both agree that the document filed by Mr.
Norris was not a proper writ application under Article 11.071 because it does not allege
specific facts, which, if proven true, would entitle applicant to relief.  Both agree that this
Court should put aside that document, proceed under Section 4A of Article 11.071, and
appoint new counsel to ensure that any claims that applicant may have are fully and fairly
litigated in state court.  Mr. Norris continues to assert that Texas law does not require him
to plead specific factual allegations.  He adds that if this Court decides otherwise, he should
be given an opportunity to amend the pleadings, even though he previously rejected that
opportunity when it was offered by the State.  
	We agree with the State and the Office of Capital Writs in their analysis of the law
applicable to this particular case.
III.

	Texas law has long required all post-conviction applicants for writs of habeas corpus
to plead specific facts which, if proven to be true, might call for relief. (10)  Counsel has not
cited a single case in which this Court has granted a writ application that contained only
conclusory allegations or even remanded such an application for further consideration by the
convicting court.  A Texas writ application must be complete on its face.  It must allege
specific facts so that anyone reading the writ application would understand precisely the
factual basis for the legal claim. (11)  Our official form, required to be used in all non-death-penalty applications for a writ of habeas corpus, explicitly states that an applicant must
"briefly summarize the facts supporting each ground" for habeas relief. (12)  The application
may, and frequently does, also contain affidavits, associated exhibits, and a memorandum of
law to establish specific facts that might entitle the applicant to relief. (13)
	Furthermore, Article 11.071 of the Code of Criminal Procedure requires that, after the
applicant files the application and the State files an answer, the convicting court (within 20
days) "shall determine whether controverted, previously unresolved factual issues material
to the legality of the applicant's confinement exist and shall issue a written order of the
determination." (14)
	If the applicant has not alleged facts, this determination could not be made. And the
parties and the court would be unable to prepare for the hearing that is required when there
are "controverted, previously unresolved factual issues material to the legality of the
applicant's confinement." (15)
	Applicant's counsel told us that applicants should not be required to plead "evidence."
We agree. There is no requirement in the statute that they do so, just as there is no
requirement that the State allege evidence in an indictment. But there are clear statutory
requirements for indictments and for these habeas-corpus applications to allege the facts
which must be proved by evidence.
	The predecessor statute to Article 11.07-a statue that governed both capital and non-capital habeas proceedings-explicitly required specific factual pleadings: "When a petition
for writ of habeas corpus contains sworn allegations of fact, which, if true, would render
petitioner's confinement under the felony conviction illegal. . . ." (16)
	This pleading requirement is similar to that set out for the use of federal courts
considering applications for post-conviction writs of habeas corpus. (17)  Under Rule 2 of the
Rules Governing § 2254 Cases in the United States District Courts, a petitioner in federal
court must both "specify all the grounds for relief available to the petitioner" and "state the
facts supporting each ground." (18)  The Advisory Committee's Notes to Rule 2 state that the
petition generally must be on the designated form because "[i]n the past, petitions have
frequently contained mere conclusions of law, unsupported by any facts.  Since it is the
relationship of the facts to the claim asserted that is important, these petitions were obviously
deficient." (19)
	Indeed, the United States Supreme Court has recognized the importance of pleading
specific facts in federal habeas applications because that requirement helps to sort out the
obviously unmeritorious claims from those that deserve more attention. (20)  Under the federal
rules, a petition that does not plead sufficient "particularity" of facts may be dismissed by the
district court without even ordering a responsive pleading. (21)  In federal courts, the standard
to determine whether a hearing and findings of fact and conclusions of law are required, is
whether the petitioner "has made specific factual allegations that, if true, state a claim on
which relief can be granted." (22) 
	As was stated by the Seventh Circuit, a claim of ineffective assistance of counsel is
one in which specific factual allegations and a sworn verification of those specific facts is
particularly important:
	If the allegation is proven, [the petitioner] has been deprived of an essential
constitutional guarantee. If the allegation is false, it could damage seriously the
professional reputation of counsel and disrupt the finality of a most serious
undertaking: vindication of the public justice through a criminal conviction.
Given the very important concerns at stake, the rules sensibly require some
threshold showing, however minimal, of an evidentiary basis before requiring
a district court to undertake the task of evaluating the allegations and
determining whether relief is warranted. (23)
	In sum, we reiterate today what we have long held: an application for a writ of habeas
corpus, whether filed under Article 11.07 or 11.071, must contain sufficient specific facts
that, if proven to be true, might entitle the applicant to relief. 
IV.

	The document filed in this case does not contain such specific facts and is not a proper
"application" for a writ of habeas corpus.  For example, in his second claim, habeas counsel
states,
	Applicant's death sentence violates the Sixth Amendment to the United States
Constitution because Applicant was deprived of the effective assistance of
counsel at the punishment phase of his trial in that his defense attorney failed
to exhaust all available avenues to procure the attendance of necessary
witnesses for the defense in time to meet reasonable trial settings of the court. (24)

That is a perfectly appropriate legal claim, but habeas counsel fails to provide any facts that
would support that claim: (25) What necessary witnesses?  What would they have testified to? 
What means did trial counsel use to procure their attendance?  Why were these means
constitutionally insufficient?  What other means were available?  Why were those means
constitutionally necessary under the circumstances?  How, if at all, was applicant harmed? 
A writ application must be complete on its face.  It must allege specific facts so that anyone
reading the writ application would understand precisely the factual basis for the legal claim. (26) 
And, indeed, habeas counsel was fully aware of this rule as he expounded upon it in his legal
brief in opposition to the State's motion to dismiss.  
	Under Article 11.07-the statute for non-capital writ applications-a document that does
not contain specific factual contentions is not a true writ application and is dismissed without
prejudice to refile.  Dismissal is appropriate because such an inmate has no time limits within
which to file an application.  If he fails to comply with the pleading requirements under
Article 11.07, his first "non-application" is dismissed and he may, at his leisure, file
another. (27)  That is not always possible under Article 11.071, which contains strict time limits
for filing a writ application. (28)  Habeas counsel in this case, acting with intentional design,
ensured that he could not be required to replead because he filed the "non-application" on
the last possible day.  He intentionally filed an improper application despite his client's
objections.
	In Ex parte Kerr, (29) we held that a death-penalty "writ application" that did not
"challenge the validity of the underlying judgment" was no writ application at all. (30)  The rule
in Kerr is as follows: "To constitute a document worthy of the title 'writ application' filed
pursuant to article 11.071, the writ must seek 'relief from a judgment imposing a penalty of
death.' A death penalty 'writ' that does not challenge the validity of the underlying judgment
and which, even if meritorious, would not result in immediate relief from his capital-murder
conviction or death sentence, is not an 'initial application' for purposes of art. 11.071, § 5
. . . ." (31)   As Judge Overstreet stated in his dissent to the dismissal of a stay of execution for
Ricky Kerr, such a "non-application" is  
	a farce and travesty of applicant's legal right to apply for habeas relief. It
appears that this Court, in approving such a charade, is punishing applicant,
rewarding the State, and perhaps even encouraging other attorneys to file
perfunctory "non-applications." Such a "non-application" certainly makes it
easier on everyone--no need for the attorney, the State, or this Court to
consider any potential challenges to anything that happened at trial.
Nevertheless, the Legislature has provided convicted capital defendants with
the right to make such challenges by habeas corpus application. (32)
Indeed, that is precisely why this Court held, in its later decision involving Ricky Kerr, that 
the initial "non-application" filed by his habeas counsel did not qualify as a writ application
for purposes of Article 11.071.  Therefore, Kerr was entitled to have a true writ application,
filed after the denial of the "non-application," considered on its merits. (33) What Kerr called
a "subsequent application" was actually his initial application because it was "the first
document in which applicant's claims and contentions, if true, might merit 'relief from a
judgment imposing a penalty of death.'" (34) That is, the application must contain both legal
claims and factual contentions.
	The Great Writ protects a "proper respect for the concept of justice" and therefore
courts require "that petitions be filed in earnest and that all contentions of merit be presented
and ruled upon as expeditiously as possible." (35) The process for deciding those factual
contentions is found in Article 11.071, § 9, which states, "If the convicting court determines
that controverted, previously unresolved factual issues material to the legality of the
applicant's confinement exist, the court shall enter an order . . . designating the issues of fact
to be resolved[.]" (36)  But the fact issues that must be resolved are those contained within the
writ application and the State's controverting answer.  Without specific facts, factual
contentions, and factual issues set out in the application, the convicting court has nothing to
resolve.
	Applicant, because of his counsel's intentional refusal to plead specific facts that
might support habeas-corpus relief, has not had his "one full and fair opportunity to present
his constitutional or jurisdictional claims in accordance with the procedures of [Article
11.071]." (37) Not full because he is entitled to one bite at the apple, i.e., one application, and
the document filed was not a proper writ application. Not fair because applicant's
opportunity, through no fault of his own, was intentionally subverted by his habeas counsel.
	It has been suggested that the reasoning and result in this case could open the
proverbial floodgates to protracted and repetitious litigation by those who have filed (or
might in the future file) defective pleadings.  But as the State appropriately notes, this is one
of those extremely rare situations envisioned in Kerr, in which habeas counsel has employed
a "'Machiavellian strategy designed to thwart the proper statutory procedure for filing a death
penalty writ.'" (38) We do not foresee that other counsel will emulate such conduct. (39)  As the
State notes, "[t]here should be no landslide of similarly deficient applications. If the court
explicates the pleading requirements in death-penalty writ applications, the outcome in this
case could prevent other habeas counsel from using any ambiguity in the law as an excuse
to file a similarly deficient application." (40)  Furthermore, this case is doubly sui generis
because the State agrees that counsel's filing was not a proper habeas-corpus application, and
it recommends that this Court proceed under Article 11.071, § 4A.  We commend the State
for its position and note its statement that "[t]his is an unusual posture for the State to take
and one that it will not likely assume with regularity in the future."
 	Under these unique and extraordinary circumstances, involving not habeas counsel's
lack of competence but his misplaced desire to challenge the established law at the peril of
his client, we conclude that under Article 11.071, § 4A(a), counsel failed to file a cognizable
writ application.  Thus, we shall proceed pursuant to Section 4A(b)(3).  Under that section
we shall appoint new counsel, specifically the Office of Capital Writs, to represent
applicant. (41) We establish a new filing date for the application to be filed in the convicting
court as being 180 days from the date of this order. (42)  We dismiss applicant's pro se Motion
to Amend the Petition for State Habeas Corpus.  We hold original habeas counsel, Mr. Robin
Norris, in contempt of court and enter an order denying him compensation under Section 2A
of Article 11.071. (43)
	Copies of this Order shall be sent to applicant, counsel, the convicting court, and the
Office of Capital Writs.
	It is so ordered this the 12th day of October, 2011.
Publish
1.  Tex. Code Crim. Proc. art. 11.071, § 4A(b)(3) (if counsel does not file a timely writ
application, "the court may . . . appoint new counsel to represent the applicant and establish a
new filing date for the application").
2.  Counsel's tenth claim, for example, asserts simply that "Applicant was deprived of the
effective assistance of counsel at the guilt stage of trial in that his defense attorney failed to raise
the defensive issue of insanity." Is every trial counsel who does not raise the issue of insanity in
every trial purportedly constitutionally ineffective?  Or are there some specific facts and reasons
why trial counsel in this particular case should have raised the issue of insanity?  Who knows?
3.  Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985) (holding that "it is
not sufficient that the [application for a writ of habeas corpus] allege . . . mere conclusions of
law").
4.  The trial judge found that some of applicant's claims sufficiently "state grounds upon
which, if proven to be true, relief could be granted."  However, the application also contained
"assertions that do not sufficiently state specific, particularized facts on the face of the
application that enable the court to determine whether the application merits further inquiry." 
Rather than address the few discernible claims that the document contained, the trial judge
recommended that "the more prudent action" was to grant the State's motion and let this Court
resolve the problem.
5.  State's Motion to Dismiss at 5.
6.  Id.
7.  See Ex parte Kerr, 64 S.W.3d 414, 418-19 (Tex. Crim. App. 2002) (quoting
Representative Pete Gallego).
8.  Those issues were:
1.	Do any of applicant's allegations sufficiently allege specific facts, which if proven true,
would entitle him to habeas relief, thus requiring further proceeding in the trial court?
2.	What statute or other legal authority supports the State's motion to dismiss and the trial
court's recommendation to dismiss the writ application?
3.	Is a dismissal consistent with current caselaw in this type of situation?
4.	What are the consequences to the defendant and to past, present, and future 11.071 writ
applications and Article 11.07 writ applications if this Court: (1) appoints new counsel
under Article 11.071, §4A, and allows applicant to file a new application; (2) dismisses
the application in accord with the State's motion; or (3) denies relief on the application?
5.	Under the circumstances of this case, what other alternative are available under Article
11.071 to ensure that an application obtains a "full and fair opportunity" to have his legal
claims reviewed by this Court?
9.  That petition was filed in the Supreme Court on May 27, 2011, and is still pending.
10.  The cases are legion in which we remand habeas-corpus applications to the convicting
court for further development when the applicant "has alleged facts that, if true, might entitle him
to relief."  Some remand cases from a single week include, Ex parte Lahood, No. WR-72,580-01,
2011 WL 2369392 (Tex. Crim. App. June 8, 2011); Ex parte Edwards, No. WR-75,213-01, 2011
WL 2378180 (Tex. Crim. App. June 8, 2011); Ex parte Griffin, No. WR-75,528, 2011 WL
2382917 (Tex. Crim. App. June 8, 2011); Ex parte Haas, No. WR-75,757, 2011 WL 2383225
(Tex. Crim. App. June 8, 2011); Ex parte Foster, No. WR-75,856-01, 2011 WL 2383996 (Tex.
Crim. App. June 8, 2011).  All of these remand orders state that the applicant had "alleged facts
that, if true, might entitle him to relief."
11.  See Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985) ("In a
postconviction collateral attack, the burden is on the applicant to allege and prove facts which, if
true, entitle him to relief."); see also Ex parte Tovar, 901 S.W.2d 484, 485-86 (Tex. Crim. App.
1995) ("In order to be entitled to post conviction collateral relief the applicant must raise a
question of constitutional magnitude, allege facts establishing the constitutional violation and, if
appropriate, prove that he was harmed."); Ex parte Akhtab, 901 S.W.2d 488, 490 (Tex. Crim.
App. 1995) ("Because applicant does not allege or prove facts which, if true, would entitle him to
relief, all requested relief is denied.").
	In Ex parte Maldonado, this Court explained why it was necessary to dismiss the writ
application in that case.
	In the context of an allegation of an egregiously erroneous charge, one which rises
to the level of having denied the applicant a fair and impartial trial, this
requirement of pleading will be strictly pursued. In other words, it is not sufficient
that the petition allege the denial of a fair and impartial trial or due process of law,
which are mere conclusions of law; neither is it adequate to allege the bare fact
that the court's charge was somehow erroneous.
		Rather, the applicant must allege the reasons a given error in the charge, in
light of the trial as a whole, so infected the procedure that the applicant was
denied a fair and impartial trial. Once alleged, the burden on the applicant to
prove such a denial is heavy and cannot be carried by merely attaching a certified
copy of the court's charge to the application for writ of habeas corpus, as was
done here.
688 S.W.2d at 116.
12.  Application for a Writ of Habeas Corpus Seeking Relief From Final Felony Conviction
Under Code of Criminal Procedure, Article 11.07 ("Beginning on page 6, state concisely every
legal ground for your claim that you are being unlawfully restrained, and then briefly summarize
the facts supporting each ground. You must present each ground on the form application and a
brief summary of the facts.  If your grounds and brief summary of the facts have not been
presented on the form application, the Court will not consider your grounds."), available at
http://www.cca.courts.state.tx.us/forms/AMENDED11.07%20Writ%20App%20Form.wpd.
13.  See State Bar of Texas Guidelines and Standards for Texas Capital Counsel, Guideline
12.1(B)(7)(d) (Duties of Post-Trial Counsel) (2006).  These guidelines recommend the following:	Habeas counsel should attach all available proof to the application (affidavits,
documentary evidence, etc.) even though doing so is not technically required by
state law.  Failing to attach proof in state court will likely waive the client's ability
to present it in federal court.  When proof is unavailable, habeas counsel should
plead all factual allegations with the greatest possible specificity.
14.  Tex. Code Crim. Proc. art. 11.071, § 8.
15.  Id.
16.  Tex. Code Crim. Proc. art. 11.07, § 2(b) (Act of May 1, 1967, 60th Leg., R.S., ch. 659,
§ 7, 1967) (amended 1977).
17.  See 19A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure, Jurisdiction and Related Matters, Appendix of Forms, at 372 (Petition Under
28 U.S.C. § 2254 for a Writ of Habeas Corpus.)  In that form, a petitioner must set out
"supporting facts" for each ground asserted for relief.  The instructions state, "Do not argue or
cite law.  Just state the specific facts that support your claim."
18.  Id., Rules Governing § 2254 Cases in the United States District Courts, Rule 2 at 337-38.
19.  Id., Rules Governing § 2254 Cases in the United States District Courts, Rule 2,
Advisory Committee Notes to 1976 Adoption, Subdivision (c) at 339.
20.  Mayle v. Felix, 545 U.S. 644, 655 (2005) (noting the heightened pleading requirements
in post-conviction writs of habeas corpus and distinguishing those requirements from the
"notice" pleadings applicable to "ordinary" civil lawsuits).  The Court quoted the Advisory
Committee's Note to Rule 4 that "'notice' pleading is not sufficient, for the petition is expected
to state facts that point to a real possibility of constitutional error."  See also id. at 669-70
(Souter, J., dissenting) ("the purpose of the heightened pleading standard in habeas cases is to
help a district court weed out frivolous petitions before calling on the State to answer").  
21.  Id. at 656.  See also id. at 670 (Souter, J., dissenting), citing 1 R. Hertz & J. Liebman,
Federal Habeas Corpus Practice and Procedure § 11.6, at 573 n. 3 (4th ed.2001) ("[F]act
pleading, like other habeas corpus rules and practices, enables courts . . .  to separate substantial
petitions from insubstantial ones quickly and without need of adversary proceedings"); Note,
Developments in the Law--Federal Habeas Corpus, 83 Harv. L.Rev. 1038, 1175 (1970) ("The
justification for stringent pleading requirements in habeas corpus is thought to lie in the need to
protect the courts from the burden of entertaining frivolous applications"). 
22.  See, e.g., United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011); Koch v.
Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (habeas petitioner's conclusory allegations failed to
establish valid ineffective-assistance-of-counsel claim, no evidentiary hearing necessary); Puglisi
v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (setting out requirements that would entitle a
federal prisoner filing a claim under 28 U.S.C. § 2255 to an evidentiary hearing; "The procedure
for determining whether a hearing is necessary is in part analogous to, but in part different from,
a summary judgment proceeding. The petitioner's motion sets forth his or her legal and factual
claims, accompanied by relevant exhibits: e.g., an affidavit from the petitioner or others asserting
relevant facts within their personal knowledge and/or identifying other sources of relevant
evidence."); Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002) ("While [the
petitioner] is correct that this court requires a district court to grant an evidentiary hearing if a    
§ 2255 petitioner 'alleges facts that, if proven would entitle him to relief,' the threshold
determination that the petitioner has sufficiently alleged such facts requires the petitioner to
submit a sworn affidavit showing what specific facts support the petitioner's assertions.").
23.  Kafo v. United States, 467 F.3d 1063, 1069 (7th Cir. 2006).
24.  Writ Application at 2.
25.  Indeed, this is the very same ineffective-assistance claim that was included in
applicant's direct appeal, but we rejected it because there was no factual basis in the record to
support the claim.  There is still no factual basis in the present document to support that claim.
26.  Compare Blackledge v. Allison, 431 U.S. 63, 75-76 (1977) (habeas petitioner's claims
were sufficiently supported by specific factual allegations to survive summary dismissal;
petitioner "alleged as a ground for relief that his plea was induced by an unkept promise.  But he
did not stop there. He proceeded to elaborate upon this claim with specific factual allegations.
The petition indicated exactly what the terms of the promise were; when, where, and by whom
the promise had been made; and the identity of one witness to its communication.").
27.  See Ex parte Blacklock, 191 S.W.3d 718, 719 (Tex. Crim. App. 2006) ("Because
applicant did not complete the portions of the application form which require a list of the claimed
grounds for relief and the supporting facts, we dismiss applicant's application for writ of habeas
corpus as non-compliant.").
28.  Tex. Code Crim. Proc. art. 11.071, § 4(a) ("An application for a writ of habeas
corpus, returnable to the court of criminal appeals, must be filed in the convicting court not later
than the 180th day after the date the convicting court appoints counsel under Section 2 or not
later than the 45th day after the date the state's original brief is filed on direct appeal with the
court of criminal appeals, whichever date is later.").
29.  64 S.W.3d 414 (Tex. Crim. App. 2002).
30.  Id. at 419.
31.  Id. (emphasis in original) (quoting Tex. Code Crim. Proc. art. 11.071, § 1).
32.  Ex parte Kerr, 977 S.W.2d 585, 585 (Tex. Crim. App. 1998) (Overstreet, J.,
dissenting).
33.  Ex parte Kerr, 64 S.W.3d 414, 415 (Tex. Crim. App. 2002) ("We conclude that
applicant's original filing was not an application for a writ of habeas corpus as defined under
article 11.071, and therefore his application of August 6, 2000, is his initial writ. We consider it
timely filed as of today's date.").
34.  Id. at 419 (emphasis added) (quoting Tex. Code Crim. Proc. art. 11.071, § 1).
35.  Ex parte Carr, 511 S.W.2d 523, 525 (Tex. Crim. App. 1974), quoted in Kerr, 64
S.W.3d at 418 n.11. 
36.  Tex. Code Crim. Proc. art. 11.071, § 9(a).
37.  Kerr, 64 S.W.3d at 419.
38.  State's Response at 23 (quoting Ex parte Kerr, 64 S.W.3d 414, 421 (Tex. Crim. App.
2002)).
39.  While not entitled to relief on a claim of ineffective assistance of habeas counsel under
Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002), and its progeny, a defendant is entitled 
to not have his right to habeas review deliberately sacrificed by highly competent counsel.
40.  Id. at 24-25.
41.  Tex. Code Crim. Proc. art. 11.071, § 4A(b)(3), (e).
42.  Id. § 4A(b)(3), (d).
43.  Id. § 4A(c).
