            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. WR-40,541-04



                EX PARTE MICHAEL DEAN GONZALES, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                      IN CAUSE NO. D-23,730 FROM THE
            358TH JUDICIAL DISTRICT COURT OF ECTOR COUNTY

       Y EARY, J., filed a dissenting opinion in which A LCALA, J., joined.

                                 DISSENTING OPINION

       This Court treats this—Applicant’s first—post-conviction application for writ of

habeas corpus as a subsequent writ application and rejects it as abusive under Article 11.071,

Section 5(a). T EX. C ODE C RIM. P ROC. art. 11.071, § 5(a). It does so because Applicant,

proceeding pro se, “waived” his right to habeas review by failing to file a timely initial writ

application. See Ex parte Reynoso, 257 S.W.3d 715, 720 n.2 (Tex. Crim. App. 2008)

(“Although Article 11.071 does not expressly provide that an applicant can waive his right

to pursue habeas relief, neither does the statute provide for automatic habeas review. [citation

omitted.] Thus, we [have] implicitly held that an applicant may ‘waive’ his right to habeas
                                                                                        Gonzales — 2


review. However, because an applicant can waffle in his decision until the day the

application is due, a ‘waiver’ is not truly effective until after that day has passed.”). The

Court accepts the convicting court’s finding that Applicant intelligently and voluntarily

waived his right to state post-conviction habeas proceedings.

        Applicant argues that we should treat the present writ application as an original—not

a subsequent—post-conviction application because, even though he was incompetent to

waive his right to pursue state post-conviction proceedings, neither the convicting court nor

this Court made any inquiry into his competency at any time before the period elapsed for

filing an initial application.1 The Court does not address that contention in its order today.

I would file and set the cause to do so. Because the Court does not, I respectfully dissent.

                                         BACKGROUND

        Applicant was originally convicted of capital murder in 1995. His death sentence was

overturned during the course of federal habeas corpus proceedings in 2002. Gonzales v.

Quarterman, 458 F.3d 384, 389 (5th Cir. 2006).2 A second Texas jury once again assessed

the death penalty in 2009. During the retrial on punishment, Applicant refused to cooperate


        1
        By contrast, in Juan Reynoso’s case, “Applicant was evaluated by doctors, who found that
he was competent to choose to forego his habeas proceeding.” Ex parte Reynoso, 228 S.W.3d 163,
164 (Tex. Crim. App. 2007).
        2
          “Gonzales filed a supplemental [federal habeas corpus] petition in August, 2000, asserting
that the State’s psychological expert witness testified, unconstitutionally, that race is an indicator of
future dangerousness. The State conceded that this claim is valid and entitled Gonzales to a new
sentencing hearing. The district court so ordered, and neither party has appealed its ruling on this
point.”
                                                                                    Gonzales — 3


with his trial counsel, cursing and yelling and making obscene gestures in the courtroom. He

insisted on testifying, inviting the jury to “fucking kill me. Makes no fucking difference. Pass

the witness.” The day after being sentenced to death in open court, Applicant insisted that

he wanted to waive his appeals and be executed posthaste. When the trial court explained that

he also had a right to pursue post-conviction remedies and to the appointment of counsel for

that purpose, he replied, “I don’t want no appeals filed on my behalf,” and “I don’t want no

attorney, period.” In reply to inquiries from this Court why the convicting court had

appointed no attorney to represent Applicant in post-conviction habeas corpus proceedings

under Article 11.071, Sections 2(a) and (b), the convicting court informed us that Applicant

“refused to accept a writ of habeas corpus attorney” and that his “election not to accept an

appointed attorney and proceed pro se was intelligent and voluntary.” See T EX. C ODE C RIM.

P ROC. art. 11.071, § 2(a) (“An applicant shall be represented by competent counsel unless

the applicant has elected to proceed pro se and the convicting trial court finds, after a hearing

on the record, that the applicant’s election is intelligent and voluntary.”).3 When the time

expired for Applicant to file an initial writ application with no application being filed, this

Court issued an order stating, “Because of applicant’s expressed desire to waive habeas, the


       3
          At a hearing on the record the day after the jury re-assessed the death penalty, on May 8,
2009, Applicant did indeed tell the convicting court (twice), when asked whether he desired
appointed counsel for post-conviction habeas corpus proceedings, that “I don’t want no attorney,
period.” There is no express colloquy on the record of the hearing, however, by which the convicting
court attempted to determine whether Applicant’s choice to forego counsel was intelligent and
voluntary, and the convicting court made no finding on the record at the conclusion of the hearing
that it was intelligent and voluntary, notwithstanding Article 11.071, Section 2(a)’s requirement.
                                                                                   Gonzales — 4


lack of any vacillation of that waiver appearing in the record, and applicant’s failure to timely

file an application, we hold that applicant has waived his right to the review of an initial

Article 11.071 habeas application.” Ex parte Gonzales, No. WR-40,541-03 (Tex. Crim. App.

del. Nov. 10, 2010) (not designated for publication) (slip op. at 2).4 We went on to declare

that “[a]ny writ application filed hereafter by applicant or on applicant’s behalf will be

labeled a subsequent application and reviewed under Article 11.071 § 5.” Id. We made no

mention of competency.

        COMPETENCY TO WAIVE POST-CONVICTION PROCEEDINGS

       In this proceeding, Applicant raises four claims, including that he was incompetent

to stand trial at the punishment retrial and that his trial attorneys rendered ineffective

assistance of counsel for failing to raise an issue of his competency to stand trial at the

punishment retrial. Applicant does not presently try to satisfy the criteria of Article 11.071,

Section 5. Instead, he argues that we should treat this application as an initial writ application

because he was also incompetent to have waived his initial writ application. He argues that

due process will not countenance such a waiver. I believe that the Court should address that

question.


       4
         Along the way, we observed, “Applicant emphatically stated that he wanted no appeals filed
on his behalf and no attorneys appointed. For purpose of Article 11.071, the court found that
applicant was proceeding pro se on habeas. See Ex parte Reynoso, 257 S.W.3d 715, 720 and n.2
(Tex. Crim. App. 2008).” Ex parte Gonzales, supra (slip op. at 2). But Reynoso is distinguishable
because in that case the applicant was expressly found to be competent to execute the waiver. See
note 1, ante. Applicant, in contrast, has not been found competent to waive habeas proceedings and
no inquiry has been made to determine whether he might have been incompetent.
                                                                                 Gonzales — 5


       A little over a month ago, the Fifth Circuit reiterated that, at least for purposes of the

waiver of federal habeas corpus proceedings stemming from a capital murder conviction and

death sentence in state court, a petitioner must be competent to make the waiver. Lopez v.

Stephens, 783 F.3d 524 (5th Cir. 2015). In 2000, the Fifth Circuit explained, “[A] habeas

court must conduct an inquiry into the defendant’s mental capacity, either sua sponte or in

response to a motion by petitioner’s counsel, if the evidence raises a bona fide doubt as to

his competency.” Mata v. Johnson, 210 F.3d 324, 330 (5th Cir. 2000). The Fifth Circuit

further explained:

       the procedures employed must satisfy basic due process concerns. In sum, if
       the evidence before the district court raises a bona fide issue of petitioner’s
       competency to waive collateral review of a capital conviction and death
       sentence, the court can afford such petitioner adequate due process by ordering
       and reviewing a current examination by a qualified medical or mental health
       expert, allowing the parties to present any other evidence relevant to the
       question of competency and, on the record and in open court, questioning the
       petitioner concerning the knowing and voluntary nature of his decision to
       waive further proceedings.

Id. at 331. The issue is whether a petitioner who would waive his collateral attack has the

“capacity to appreciate his position and make a rational choice with respect to continuing or

abandoning further litigation or on the other hand whether he is suffering from a mental

disease, disorder, or defect which may substantially affect his capacity in the premises.” Id.

at 327 (quoting Rees v. Peyton, 384 U.S. 312, 314 (1966)).

       In my opinion, Applicant’s present writ application alleges substantial facts to

establish a bona fide doubt with respect to his competency to waive state habeas proceedings.
                                                                                        Gonzales — 6


If nothing else, the combination of his mental health history (which includes diagnoses as a

juvenile with such potentially thought-distorting afflictions as Schizoaffective Disorder and

Bipolar Disorder, and treatment with anti-psychotic medications) and his intransigent

behavior during the course of the punishment retrial was sufficient to trigger an inquiry into

his capacity to understand what he was relinquishing by foregoing post-conviction habeas

proceedings. Neither the convicting court nor this Court has made any attempt to determine

whether Applicant possessed the requisite capacity to make a rational, non-delusional choice

whether to continue post-conviction litigation proceedings.5 I believe we should address

whether we were mistaken to overlook the competency issue before accepting Applicant’s

waiver.

                                          FEDERALISM

        Applicant has already raised his current claims in his initial federal habeas

proceedings, but the federal district court has stayed those proceedings and held the cause

in abeyance in order to allow this Court to say whether we will pass on those claims, thus

exhausting them. If we now decline to review the merits of the claims, when Applicant



        5
          I do not mean to suggest that the trial court should have been aware of any duty to do so
at the time. The trial court did inform the applicant that he was “entitled to an attorney to file a Writ
of Habeas Corpus in addition to the attorney for the appeal” and explained that he had the right to
“proceed pro se” or to have appointed counsel “[o]n the habeas corpus.” I simply point out that the
convicting court made no express attempt to ascertain on the record whether Applicant’s decision
to entirely waive his post-conviction habeas corpus proceedings was intelligent and voluntary,
notwithstanding the convicting court’s recommendation—in response to an inquiry from this
Court—that we find that Applicant’s waiver of counsel was knowing and voluntary.
                                                                                    Gonzales — 7


returns to federal court, he will no doubt argue either that: 1) he has now exhausted those

claims; or 2) that there is good reason for the federal courts to excuse his failure to have

exhausted them in a timely initial writ application under Article 11.071.6 His excuse for not

exhausting will be that we allowed him to waive that initial writ proceeding without first

assuring ourselves that he was competent to waive it, as due process apparently requires. See

Mata, 210 F.3d at 331 (specifying minimal procedures for competency-to-waive-habeas-

proceedings that would satisfy due process). With respect to procedural default, he will also

no doubt argue—for the same reason (an incompetent waiver)—that there is good “cause”

for the federal court to excuse his apparent forfeiture. Cf. Martinez v. Ryan, 132 S.Ct. 1309

(2012) (ineffective assistance of initial state habeas counsel may be invoked as “cause” to

excuse the forfeiture of a claim of ineffective assistance of trial counsel for purposes of an

initial federal habeas review of a capital conviction and death sentence in state court).

       I cannot predict whether Applicant will prevail in such an endeavor. But if he does,

the federal district court will not only review his claims, it will likely review them de novo,

rather than deferentially as it would be constrained to do if we were to pass on the merits of

his claims in the first instance. See 28 U.S.C. § 2254(d) (requiring that any federal habeas

review of state court decisions with respect to claims that are “adjudicated on the merits” be

highly deferential). By filing and setting Applicant’s present writ application, we could: 1)


       6
        See 28 U.S.C. § 2254(b)(1) (requiring the exhaustion of state remedies before federal habeas
relief may be granted unless “there is an absence of available State corrective process; or . . .
circumstances exist that render such process ineffective to protect the rights of the applicant”).
                                                                                     Gonzales — 8


explain that, in this case, there was no bona fide doubt about whether Applicant was

incompetent to waive his state collateral proceedings (raising the possibility that the federal

court would treat our conclusion in that regard with some deference); 2) explain why any

incompetency on Applicant’s part does not invalidate the efficacy of his waiver of state

collateral proceedings (thus justifying our holding that he has procedurally defaulted his

present state habeas claims); or else 3) explain that Applicant’s purported waiver was invalid

(in which case we could reach the merits of his present claims and dispose of them, thus

ensuring deferential federal review later on). In my opinion, any of these options is preferable

to the Court’s approach, which is to avoid the issue entirely.

                                         CONCLUSION

       Arguably, a capital habeas applicant who is allowed to make an incompetent decision

to waive his state post-conviction habeas proceedings has not received the one full and fair

opportunity to pursue post-conviction relief that Article 11.071 contemplates. Cf. Ex parte

Medina, 361 S.W.3d 633, 642 (Tex. Crim. App. 2011) (capital habeas applicant was deprived

of his “one full and fair opportunity” at post-conviction relief—it was “[n]ot full because he

is entitled to one bite at the apple, i.e., one application, and . . . [n]ot fair because applicant’s

opportunity, through no fault of his own, was intentionally subverted by his habeas counsel”).

Has the Court determined that there is no requirement under state law that a capital habeas

applicant be competent to waive his statutory right to post-conviction collateral attack of his

conviction and death sentence? If so, it should say so. Because the Court sidesteps this
                              Gonzales — 9


important issue, I dissent.




FILED:        June 3, 2015
PUBLISH
