           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. WR-62,426-04



                 EX PARTE JUAN CARLOS ALVAREZ, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                       IN CAUSE NO. 787007 FROM THE
                338TH DISTRICT COURT OF HARRIS COUNTY

       Y EARY, J., filed a concurring opinion in which J OHNSON and N EWELL, JJ.,
joined.

                               CONCURRING OPINION

       This is a subsequent post-conviction application for writ of habeas corpus, brought

pursuant to Article 11.071, Section 5 of the Texas Code of Criminal Procedure. T EX. C ODE

C RIM. P ROC. art. 11.071, § 5. Such writ applications are ordinarily permitted only under

limited circumstances, such as the availability of new law or facts that initial state habeas

applicants cannot have known to rely upon in an initial or previously considered writ

application, id. § 5(a)(1), or a claim that, but for the subsequently complained-of

constitutional violation, no rational jury could have found him guilty or would have assessed
                                                                                    Alvarez — 2


the death penalty, id. § 5(a)(2) & (3). Applicant alleges a different basis to try to justify his

subsequent writ application. He argues that, but for the ineffectiveness of his initial state

habeas attorney, he could have asserted a “robust” claim of ineffective assistance of trial

counsel in his initial application.

       The    Court    today    dismisses   Applicant’s    subsequent     writ   application   as

abusive—failing to satisfy the criteria for a subsequent writ as set out in Article 11.071,

Section 5(a). Court’s Order at 2. Although the Court’s order does not say so, in dismissing

Applicant’s subsequent writ application, the Court rejects his argument that we should revisit

Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002), in light of recent United States

Supreme Court decisions in Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Trevino v. Thaler,

133 S.Ct. 1911 (2013). The Court also implicitly rejects his alternative argument that we

should treat the present writ application as his first, consistent with our holding in Ex parte

Medina, 361 S.W.3d 633 (Tex. Crim. App. 2011). For reasons upon which I will elaborate,

I am sympathetic to the argument that we should reexamine Graves—particularly in light of

the Court’s subsequent opinion in Medina. But, as I shall explain, my sympathies do not lead

me to conclude that Applicant is entitled to relief in this case.

                               APPLICANT’S ALLEGATIONS

       I will not dwell on Applicant’s present claim any further than to say that he alleges

specific facts that are adequate to establish, if true, both: 1) the ineffective assistance of his

trial counsel—at least in failing to investigate the existence of substantial mitigating evidence
                                                                                  Alvarez — 3


as required under Wiggins v. Smith, 539 U.S. 510 (2003) (if not otherwise); and 2) the

ineffective assistance of his initial post-conviction habeas attorney in failing to conduct the

mitigation investigation that trial counsel should have conducted so that initial state habeas

counsel would be able to plead and prove ineffective assistance of trial counsel in

Applicant’s initial writ application. Applicant has “demonstrate[d] that [his] underlying

ineffective-assistance-of-counsel claim is a substantial one, which is to say that [he has]

demonstrate[d] that the claim has some merit.” Martinez, 132 S.Ct. at 1318, 1320, 1321;

Trevino, 133 S.Ct. at 1914, 1921. Suffice it to say that I am persuaded that, should this Court

refuse to reach the merits of Applicant’s claim of ineffective assistance of trial counsel, the

federal courts may do so, and indeed may conduct their own review de novo, not deferentially

(since there is no state decision on the merits to defer to), under Martinez/Trevino. Applicant

argues that, under these circumstances, he ought to be allowed to raise his claim of

ineffective trial counsel for the first time in a subsequent state writ application. He

acknowledges that our holding in Graves stands in his way, but asks that we reconsider

Graves, if only for the sake of federalism, in light of recent developments. At some point I

believe that we should.

                                          GRAVES

       In Graves, decided in 2002, we addressed the question whether the applicant could

raise, in a subsequent writ application under Article 11.071, “a claim of ineffective assistance

by his first habeas counsel[.]” 70 S.W.3d at 110. We rejected the applicant’s attempt to raise
                                                                                   Alvarez — 4


such a claim in a second collateral attack “for a number of reasons.” First, we recognized

precedent from the United States Supreme Court to the effect that, because there is no

constitutionally endowed right to counsel during post-conviction habeas corpus proceedings,

even in capital cases, there can therefore be no concomitant Sixth Amendment right to

effective counsel in such proceedings. Id. at 111 (“If a convicted person has no constitutional

right to appointment of any counsel in a post-conviction habeas corpus proceeding, it

inevitably follows that he cannot claim constitutionally ineffective assistance of counsel in

that proceeding.”). Thus, there was no constitutional basis for a free-standing claim of

ineffective assistance of initial state habeas counsel. Id. at 113 (“Absent such a constitutional

right to counsel, there can be no constitutional right to effective assistance of counsel in a

habeas proceeding.”).

       Second, the Court rejected the applicant’s assertion that, because Article 11.071,

Section 2(a) requires representation of death row inmates by “competent counsel,” “he is

entitled to bring a subsequent writ complaining of counsel’s deficient performance.” Id.;

T EX. C ODE C RIM. P ROC. art. 11.071, § 2(a). Graves held that the statute plainly refers to the

qualifications of the appointed attorney at the time of the appointment—that the statutory

guarantee of “competent counsel” only “concerns habeas counsel’s qualifications,

experience, and abilities at the time of his appointment.” Id. at 114. Any contrary holding,

we worried, would “eviscerate” Article 11.071, Section 5’s abuse-of-the-writ provisions and

turn it “into a perpetual motion machine” for generating endless subsequent writ applications.
                                                                                 Alvarez — 5


Id., at 114-15 (“A claim of ineffective assistance of prior habeas counsel would simply be

the gateway through which endless and repetitious writs would resurrect.”). We held it to be

beyond our judicial authority to engraft such a “fourth exception” to Section 5’s general

prohibition against subsequent writ applications. Id. at 115.

       In any event, a claim that initial state habeas counsel was ineffective does not

challenge the capital conviction or the death sentence. “It is merely a ‘gateway’ device used

to allow an inmate to resurrect a procedurally defaulted claim which he failed to bring at the

proper time.” Id. at 117. For these reasons, we ultimately concluded that Article 11.071,

Section 2, while it assures the death row inmate of the “appointment of competent counsel,”

nevertheless provides him no basis for a subsequent writ application even if that competent

counsel actually performs incompetently. Id. In my view, recent developments in federal

habeas procedure, as well as, to a certain extent, the rationale underlying those new

developments, counsel that the Court should revisit the holdings of Graves.

                                  MARTINEZ/TREVINO

       In Martinez, the federal habeas applicant argued that he should be able to raise the

ineffectiveness of his initial state habeas counsel in federal habeas proceedings because

initial state habeas counsel had performed in a constitutionally deficient manner, causing him

to forfeit a claim of ineffective assistance of trial counsel for federal habeas review. The

Supreme Court chose to eschew the constitutional question, however. Instead, it narrowed

the issue to ask “whether a federal habeas court may excuse a procedural default of an
                                                                                     Alvarez — 6


ineffective-assistance [of trial counsel] claim when the claim was not properly presented in

state court due to an attorney’s errors in an initial-review collateral proceeding.” 132 S.Ct.

at 1313. It answered this question in the affirmative: “Inadequate assistance of counsel at

initial-review collateral proceedings may establish cause for a prisoner’s procedural default

of a claim of ineffective assistance at trial.” Id. at 1315. In Trevino, which held that the

holding of Martinez applies to Texas convictions, the Supreme Court summarized the

conditions that would give rise to such a “cause” for excusing a state-level forfeiture:

       where (1) the claim of “ineffective assistance of trial counsel” was a
       “substantial” claim; (2) the “cause” consisted of there being “no counsel” or
       only “ineffective” counsel during the state collateral review proceeding; (3) the
       state collateral review proceeding was the “initial” review proceeding in
       respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law
       requires that an “ineffective assistance of trial counsel [claim] . . . be raised in
       an initial review collateral proceeding.”

133 S.Ct. at 1918 (citing Martinez, 132 S.Ct. at 1318-19, 1320-21).

       In justification for this exception to the usual federal deference to state rules of

procedural default, the Supreme Court recognized that, at least with respect to claims that

may effectively be raised for the first time only in initial post-conviction collateral review,

the effective assistance of legal counsel (whether constitutionally mandated or not) is of

paramount importance—as critical as the right to effective counsel on direct appeal.

                Where, as here, the initial-review collateral proceeding is the first
       designated proceeding for a prisoner to raise a claim of ineffective assistance
       at trial, the collateral proceeding is in many ways the equivalent of a prisoner’s
       direct appeal as to the ineffective-assistance claim. This is because the state
       habeas court looks to the merits of the claim of ineffective assistance, no other
                                                                                   Alvarez — 7


       court has addressed the claim, and defendants pursuing first-tier review are
       generally ill equipped to represent themselves because they do not have a brief
       from counsel or an opinion of the court addressing their claim of error.

                [A]n attorney’s errors during an appeal on direct review may provide
       cause to excuse a procedural default; for if the attorney appointed by the State
       to pursue the direct appeal is ineffective, the prisoner has been denied fair
       process and the opportunity to comply with the State’s procedures and obtain
       an adjudication on the merits of his claims. Without the help of an adequate
       attorney, a prisoner will have similar difficulties vindicating a substantial
       ineffective-assistance-of-trial-counsel claim. 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 an ineffective-assistance-of-trial-counsel claim in an initial-review
       collateral proceeding cannot rely on a court opinion or the prior work of an
       attorney addressing that claim. To present a claim of ineffective assistance at
       trial in accordance with the State’s procedures, then, a prisoner likely needs an
       effective attorney.

132 S.Ct. 1317 (internal citations, ellipses, and brackets omitted). Thus, although there is (as

yet) no constitutionally recognized right to counsel for post-conviction proceedings, the

advisability of the participation of counsel at that stage—at least for claims that can be raised

for the first time only at that stage—is as urgent as on direct appeal, where there is a

constitutional right to counsel (and indeed, constitutionally effective counsel) so long as a

state provides for direct appellate review. Evitts v. Lucey, 469 U.S. 387, 400-01 (1985).

                      CONSTITUTIONAL RIGHT TO COUNSEL

       Still, there is no recognized constitutional right to counsel for what the Supreme Court

in Martinez called “initial-review collateral proceedings.” That is to say, Evitts v. Lucey

notwithstanding, as of the present time, a state post-conviction habeas corpus applicant such
                                                                                   Alvarez — 8


as Applicant (even in a capital case) has no constitutional right to the assistance of counsel,

even with respect to claims that he can raise only for the first time in those proceedings.

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Murray v. Giarratano, 492 U.S. 1, 10

(1989); cf. Coleman v. Thompson, 501 U.S. 722, 756-57 (1991). And the absence of a right

to counsel in a post-conviction writ application would seem to rule out any derivative right

to effective counsel. See Finley, 481 U.S. at 558 (Evitts’s recognition of the right to effective

counsel on appeal “depends on a constitutional right to appointed counsel that does not exist

in state habeas proceedings”); Graves, 70 S.W.3d at 111 & n.30.

       I would maintain that, in initial-review collateral proceedings, there yet may exist a

right to effective assistance of counsel that derives from the Fourteenth Amendment

guarantee of due process. As Martinez convincingly illustrates, the need for effective counsel

to raise claims that can be raised effectively only in post-conviction proceedings is as great

as is the need for counsel to effectively assist on direct appeal. It is true that the Supreme

Court has explicitly recognized a right to counsel on appeal, from which a right to effective

counsel flows. There is no concomitant right to counsel in a post-conviction writ proceeding.

But there is an unequivocal and absolute statutory right to counsel (indeed, “competent

counsel”) for death row inmates in Texas under Article 11.071. The right to effective

assistance of appellate counsel that Evitts v. Lucey recognized was a function of the due

process “entitlement doctrine”:

       In short, when a State opts to act in a field where its action has significant
                                                                                  Alvarez — 9


       discretionary elements, it must nonetheless act in accord with the dictates of
       the Constitution—and, in particular, in accord with the Due Process Clause.

469 U.S. at 401. There is no constitutional requirement that states provide an avenue of direct

appeal for criminal defendants. McKane v. Durston, 153 U.S. 684 (1894). But those states

that do must afford the appellant the right to counsel on appeal. Douglas v. California, 372

U.S. 353 (1963). Evitts v. Lucey held this due process requirement would be but “a futile

gesture unless it comprehended the right to the effective assistance of counsel.” 469 U.S. at

397. Thus, having granted an absolute right of appeal (if only by state law), Kentucky was

obligated by due process to grant Lucey, not just counsel, but effective counsel. To arbitrarily

take away the due process right to counsel by tolerating counsel who was ineffective was

recognized to be, itself, a violation of due process. Id. at 404.

       Texas is not required by the federal constitution to provide post-conviction habeas

corpus proceedings; nor is it required to provide counsel for those inmates who wish to take

advantage of the post-conviction habeas corpus proceedings that Texas in fact provides. See

Finley, 481 U.S. at 557 (post-conviction habeas “is a collateral attack that normally occurs

only after the defendant has failed to secure relief through direct review of his conviction.

States have no obligation to provide this avenue of relief . . . and when they do, the

fundamental fairness mandated by the Due Process Clause does not require that the State

supply a lawyer as well”).       But in the context of capital cases, Texas has chosen

unequivocally to provide both. Having provided those absolute rights, albeit by state law, it
                                                                                         Alvarez — 10


may not arbitrarily take them away without impinging on the applicant’s due process rights.

That is the essence of the Supreme Court’s entitlement doctrine. Evitts v. Lucey, 469 U.S.

at 400-01. See also, Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) (appellate court’s denial

of appellant’s statutory right to a jury determination of punishment within the statutory range

was not merely a matter or “exclusively state concern” but implicated a liberty interest “that

the Fourteenth Amendment preserves against arbitrary deprivation by the State”). It is

arguable that the statutory right to counsel to which Article 11.071, Section 2(a), entitles

Applicant would be taken from him arbitrarily, in violation of due process, if it does not

embrace the right to effective counsel—at least for those claims that can be raised only for

the first time in post-conviction proceedings. After all, as Martinez now establishes, in that

context the need for effective counsel is as great as the need for effective counsel on direct

appeal.1


        1
           Indeed, under Article 11.071, Section 4, state post-conviction habeas proceedings in capital
cases run concurrently with the direct appeal. See TEX . CODE CRIM . PROC. art. 11.071, § 4(a)
(providing for the filing of the writ application within six months of the appointment of habeas
counsel by the convicting court, or no later than 45 days after the State files its reply brief on direct
appeal, whichever comes first). Thus, not only has the Legislature expressly provided that capital
inmates “shall be represented by counsel,” it has also made the post-conviction habeas proceedings
contemporaneous with the direct appeal. This is in stark contrast to non-capital habeas proceedings,
which do not even begin until the conviction is rendered final with the issuance of an appellate
mandate. See TEX . CODE CRIM . PROC. art. 11.07, § 3(a) (“After final conviction in any felony case
. . .”); Ex parte Webb, 270 S.W.3d 108, 111 (Tex. Crim. App. 2008) (“It has long been the rule that
a conviction from which an appeal has been taken is final for the purposes of Article 11.07 when the
clerk of the court of appeals issues that court’s mandate.”). For these reasons, capital post-conviction
proceedings seem to have taken on the characteristics of a special appeal—albeit one in which resort
may be made to evidence beyond the appellate record. All of this leads me to believe that the
Legislature intended for our statutory post-conviction habeas corpus remedy in Texas death penalty
cases to be really a kind of hybrid appeal rather than a true “habeas” collateral review proceeding as
                                                                                    Alvarez — 11


       It is true that in Murray v. Giarratano, the Supreme Court rejected the argument that

capital inmates have a constitutional right to counsel in state post-conviction habeas

proceedings in Virginia. 492 U.S. at 10. But Virginia had no statute that provided an

absolute statutory right to state habeas counsel in capital cases of which the applicant could

be arbitrarily deprived. By contrast, Article 11.071 expressly provides such a right, and to

arbitrarily deprive a capital inmate of that right in Texas by tolerating ineffective assistance

of that statutorily endowed counsel arguably violates due process.

                             STATUTORY CONSTRUCTION

       In any event, at some point the Court should reconsider Graves’s construction of

“competent counsel” as meaning nothing more than counsel with the requisite

“qualifications, experience, and abilities at the time of his appointment.” 70 S.W.3d at 114.

Significantly, Article 11.071, Section 2(a), does not provide merely for “the appointment”

of competent counsel. It mandates that death row applicants actually “be represented by

competent counsel,” which would seem to contemplate an on-going enterprise. T EX. C ODE

C RIM. P ROC. art. 11.071, § 2(a). While this phrase does not necessarily endow a right to

effective representation, neither does it plainly dispense with such a right, as Graves (in my

view, mistakenly) held that it does.

       It makes little sense for the Legislature to recognize the need for an attorney who is


those proceedings have been understood in the past. Thinking of it in that light, I believe, lends
weight to the argument that due process would prohibit the State from granting capital litigants the
right to appointed counsel but then arbitrarily denying them counsel who will perform effectively.
                                                                                     Alvarez — 12


competent—that is to say, who has the “qualifications, experience, and ability” to conduct

the daunting factual investigation and to navigate the often-byzantine law involved in post-

conviction habeas corpus representation—with no expectation that he would then actually

provide his client with competent post-conviction habeas corpus representation. Indeed,

Article 11.071, Section 3(a), expressly provides that, “[o]n appointment, counsel shall

investigate expeditiously, before and after the appellate record is filed in the court of criminal

appeals, the factual and legal grounds for the filing of an application for a writ of habeas

corpus.” Article 11.071 as a whole contemplates more than just the appointment of an

attorney who is capable of providing competent representation if he chooses to do so. If it

did not, then the statutory right to counsel would be no less of a “futile gesture” than a

constitutional right to counsel that does not “comprehend[] the right to the effective

assistance of counsel.” Evitts v. Lucey, 469 U.S. at 397. I cannot believe that the Legislature

would have intended such a futile gesture. Nor can I accept that the Legislature would

tolerate the happenstance that some competent attorneys would actually do an adequate job

while other competent but less conscientious attorneys would not. That would engender just

the kind of arbitrary deprivation of a statutory right that the entitlement doctrine disfavors,

and we should avoid statutory interpretation that invites such a constitutional conflict.2


       2
          See TEX . GOV ’T CODE § 311.021(1) (“In enacting a statute, it is presumed that . . .
compliance with the constitutions of this state and the United States is intended[.]”). The Code
Construction Act applies to Article 11.071. See TEX . GOV ’T CODE § 311.002(2) (“This Chapter
applies to . . . each amendment, repeal, revision, and reenactment of a code or code provision by the
60th or a subsequent legislature.”). Article 11.071 was enacted by the 74th Legislature.
                                                                                  Alvarez — 13


Graves itself acknowledged that the Legistature’s intent in enacting Article 11.071 was to

permit “one full and fair opportunity to present all . . . claims in a single, comprehensive

post-conviction writ of habeas corpus[.]” 70 S.W.3d at 117 (emphasis added). This

overarching legislative purpose is ill-served when counsel representing death row inmates

need only be theoretically competent at the time of appointment, but not actually competent

during the course of the representation itself.

                              EVISCERATING SECTION 5?

       But what of Graves’s concern that requiring effective post-conviction habeas counsel

will thwart the intent of the Legislature in enacting Section 5’s abuse of the writ provisions

of Article 11.071? 70 S.W.3d at 114-15. I do not share that concern. The intent of Section

5 was to limit capital habeas applicants to one full and fair opportunity to present all existing

claims in one comprehensive document. Any applicant who has had that one opportunity

must navigate Section 5’s strict gateway if he wants to avail himself of a second opportunity.

But the applicant whose initial post-conviction habeas counsel performed ineffectively did

not receive that first full and fair opportunity that Section 5 presupposes.

       It has been suggested that we could construe Section 5(a)(1) to accommodate the

claim that ineffective assistance of initial state habeas counsel constitutes a new factual basis

for a writ application, thus authorizing a subsequent proceeding. Graves, 70 S.W.3d at 121

(Price, J., dissenting). I do not find this construction feasible, however, because Article

11.071, Section 5(a)(1), as a whole, clearly contemplates new facts to establish a “claim” that
                                                                                         Alvarez — 14


calls into question the validity of the conviction or death sentence,3 which a claim of

ineffectiveness of initial state habeas counsel does not do. But that does not mean we are

without recourse. In other contexts we have permitted applicants to file late or essentially

subsequent applications outside the bounds of Section 5.

                                              MEDINA

        For example, we have not hesitated to relieve death row applicants of initial state

habeas attorneys who have deliberately shirked their duty. When initial state habeas counsel

files a purported application for writ of habeas corpus that deliberately fails to state facts

entitling the applicant to relief, such a document, we said in Medina, 361 S.W.3d at 640, “is

not a proper ‘application’ for a writ of habeas corpus.” For that reason, we permitted Medina

to file another without regarding it as a subsequent writ application, on authority of Article



        3
          See TEX . CODE CRIM . PROC. art. 11.071, § 1 (“Notwithstanding any other provisions of this
chapter, this article establishes the procedures for an application for a writ of habeas corpus in which
the applicant seeks relief from a judgment imposing a penalty of death.”); id. § 5(a)(1) (“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 . . . the current claims and issues have
not been and could not have been presented previously in a timely initial application or in a
previously considered application filed under this article . . . because the factual . . . basis for the
claim was unavailable on the date the applicant filed the previous application.”); Ex parte Alba, 256
S.W.3d 682, 687 (Tex. Crim. App. 2008) (“Applicant has not brought forth any claims attacking the
legality of his conviction or sentence [of death] and has not raised any issues which, if resolved in
his favor, would entitle him to a new trial or a new sentencing hearing. Therefore, Applicant’s claim
is not cognizable under Article 11.071.”); Ex parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim.
App. 2007) (“[T]o satisfy Art. 11.071, § 5(a), 1) the factual . . . basis for an applicant’s current
claims must have been unavailable as to all of his previous applications; and 2) the specific facts
alleged, if established, would constitute a constitutional violation that would likely require relief
from either the conviction or sentence.”).
                                                                                  Alvarez — 15


11.071, Section 4A(a), which permits this Court to appoint new counsel when initial state

habeas counsel, though “competent” when appointed, “fails to file an application before the

filing date” prescribed by statute. Id. at 643; T EX. C ODE C RIM. P ROC. art. 11.071, § 4A(a).

Along the way, we observed:

                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].” 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.

361 S.W.3d at 642. We emphasized that the circumstances justifying our action in Medina

were “unique and extraordinary,” involving not a lack of competence but a “Machiavellian

strategy designed to thwart the proper statutory procedure for filing a death penalty writ.” Id.

at 643 (quoting the State’s response).

       It is not apparent to me that Medina’s attempt at a limiting principle withstands

scrutiny. How is it objectively less fair to a capital habeas applicant that he has been deprived

of his one full and fair opportunity at comprehensive habeas review by the incompetency—as

opposed to the deliberate gamesmanship—of his initial state habeas counsel? Either way,

he suffers “through no fault of his own.” Id. at 642. Whether a document pleads sufficient

specific facts so as to constitute a “writ application” in contemplation of Article 11.071

cannot reasonably be made to turn on the good faith of the attorney who prepared it—it is

either sufficiently well drawn or it is not. Such a document cannot be regarded as a writ
                                                                                  Alvarez — 16


application when competent counsel perniciously omits sufficiently specific facts but not a

writ application when the facts are left out because of competent counsel’s plainly

incompetent representation.

       Initial state habeas counsel in this case filed a twenty-five-page document. It contained

three claims for relief. All three claims were based on nothing beyond the appellate record

and could have been brought on direct appeal. Counsel conducted no extra-record

investigation, and so was in no position to raise legitimately cognizable post-conviction

claims, including what appears to me to be Applicant’s substantial Wiggins claim. Moreover,

it appears that initial state habeas counsel may have had a history of filing capital writ

applications of this kind, several raising essentially the same three claims he brought in

Applicant’s initial application. An applicant whose attorney takes such a cookie-cutter

approach to post-conviction habeas corpus cannot be said to have been “represented by

competent counsel” for purposes of Article 11.071, Section 2(a). And in the absence of

representation by competent counsel, it cannot be said that Applicant has been afforded his

one full and fair opportunity to challenge his conviction or punishment in post-conviction

habeas corpus proceedings.

                                       FEDERALISM

       Reinterpreting Graves’s interpretation of “competent counsel” may have the added

benefit of ensuring state review of claims of ineffective assistance of trial counsel, so that as

many such claims as possible will be conducted according to the deference required by the
                                                                                  Alvarez — 17


Antiterrorism and Effective Death Penalty Act rather than de novo. 28 U.S.C. § 2254(d).

After Martinez and Trevino, many such claims will be reviewed in federal court whether or

not this Court first passes on them, since a federal petitioner who can establish

ineffectiveness of his initial state habeas counsel will be able to establish “cause” for his

failure to raise ineffective trial counsel in his initial state habeas proceedings. Principles of

federalism counsel in favor of Texas making the first determination of the merits of any such

ineffective trial counsel claim, so that federal review will remain as deferential as possible

to our judgments.

                                      STARE DECISIS

       I do not suggest that we undertake lightly the overruling of Graves. But the argument

has been made before that we should revisit it, endorsed by at least three members of the

Court. See Ex parte Buck, 418 S.W.3d 98, 113 (Tex. Crim. App. 2013) (Alcala, J.,

dissenting, joined by Price and Johnson, JJ.).

       Some factors supporting the overruling of precedent are: (1) that the original
       rule or decision was flawed from the outset, (2) that the rule’s application
       produces inconsistent results, (3) that the rule conflicts with other precedent,
       especially when the other precedent is newer and more soundly reasoned, (4)
       that the rule regularly produces results that are unjust, that are unanticipated
       by the principle underlying the rule, or that place unnecessary burdens on the
       system, and (5) that the reasons that support the rule have been undercut by the
       passage of time.

Ex parte Lewis, 219 S.W.3d 335, 338 (Tex. Crim. App. 2007) (footnotes with citations

omitted). An argument can be made under most of these factors for overruling Graves.
                                                                                    Alvarez — 18


       First, a substantial argument can been made that Graves’s construction of “competent

counsel” was flawed from the outset. It seems to conflict with the Court’s later decision in

Medina—in spirit if not in letter. It certainly seems “unjust” to be open to considering a

second chance at a full and fair opportunity for meaningful post-conviction review to Medina

but not to other applicants whose initial post-conviction habeas counsel performed

deficiently. And, while Martinez and Trevino do not dictate that Graves be overruled, they

have opened a door to federal intrusion made possible by Graves’s holding.

                       NEVER-ENDING WRIT APPLICATIONS

       Would recognizing ineffective assistance of initial post-conviction counsel create “a

perpetual motion machine” for the generation of “endless and repetitious writs”? Graves,

70 S.W.3d at 114-15. As a practical matter, I doubt it. Once an applicant has pursued his first

writ with presumably competent counsel, the applicant will not receive additional funds to

pursue a second application unless and until he has actually prepared that second application,

filed it, and obtained permission from this Court to proceed with it. See T EX. C ODE C RIM.

P ROC. art. 11.071, § 6(b-1), (b-2) (providing for attorney compensation and reimbursement

for expenses for subsequent writ applications only after permission to proceed has been

granted by this Court). It is perhaps possible that this Court will be “flooded” with first

subsequent applications (probably from federal habeas counsel who have received federal

funding) alleging that initial habeas counsel was ineffective. But it is likely that most of these

will fail to establish a substantial claim that both initial state habeas counsel and trial counsel
                                                                                Alvarez — 19


were ineffective. In that event, this Court can simply dismiss them as abusive under Article

11.071, Section 5. We need treat only those relatively few subsequent applications that do

present a prima facie case for ineffectiveness of both initial state habeas counsel and trial

counsel as initial state habeas writs consistent with our approach in Medina.

       Moreover, any subsequent subsequent writ application that tries to complain of the

ineffectiveness of initial state habeas counsel will fail. That is to say, a second subsequent

writ application that tries to complain of the ineffectiveness of initial state habeas counsel,

and any other writ application after that one that tries to complain of the ineffectiveness of

initial state habeas counsel, we can simply dismiss out of hand. After all, Article 11.071,

Section 2, grants an applicant only the right to be “represented by competent counsel” in his

initial writ application. It does not guarantee competent representation in any subsequent writ

application, and if an applicant fails to complain of the effectiveness of his initial state

habeas counsel in his first subsequent writ application, he then forever procedurally defaults

that complaint. He cannot raise it in any subsequent subsequent writ application. Thus, the

motion of the machine is not perpetual, and it will continue to operate as the Legislature

intended.

                                  THE PRESENT CASE

       That brings me to the reason that I ultimately agree that the Court should dismiss the

instant subsequent writ application. This is not Applicant’s first subsequent writ application.

He filed his first subsequent writ application in 2010, raising several claims of prosecutorial
                                                                                  Alvarez — 20


misconduct. This first subsequent writ application was filed by the same counsel who has

filed Applicant’s current, second subsequent writ application. There is no reason Applicant

could not have also raised a Wiggins claim at that time—in his first subsequent writ

application. It is true that neither Martinez/Trevino nor Medina had been decided by 2010,

so Applicant lacked much of the fodder for his argument that Graves should be overruled.

But even now, Applicant does not simply argue that Graves should be overruled. He also

make a different, alternative argument for why this Court should reach his Wiggins claim for

the first time in his second subsequent writ application—one that he could just as readily

have made in his first subsequent writ application. He argues that his initial habeas counsel’s

history of filing patently inadequate initial writ applications is so substantial, it establishes

that he was not “competent” to handle capital post-conviction writ applications even at the

time of his appointment, as mandated by Graves itself. Applicant’s Second Subsequent Writ

Application at 32-34. This argument was no less compelling in 2010 than it is today, and yet

Applicant did not make it at the time of his first subsequent writ application. Applicant is not

entitled to the effective assistance of subsequent state habeas counsel—even under Article

11.071. And he has offered no viable explanation why, at the time he filed his first

subsequent writ application in 2010, he did not: 1) raise the Wiggins claim; and 2) argue that

he was entitled to raise the Wiggins claim in his first subsequent writ application because his

initial state habeas counsel was not even the “competent” counsel envisioned by Graves. As

I see it, because Applicant could have raised this claim in 2010 but did not, it has now been
                                                                             Alvarez — 21


procedurally defaulted.

                                     CONCLUSION

       Though I am not unsympathetic to the argument that the Court should at some point

revisit Graves, even if we did so in the present case, in accordance with my view, it would

not make a difference in the outcome for Applicant. I therefore concur in the Court’s

judgment to dismiss the instant application as abusive under Article 11.071, Section 5.




FILED:        April 29, 2015
PUBLISH
